The constant reform of existing laws, especially in the judicial realm, has had its own ups and downs; particularly in Iran, only 112 years after the Constitutional Revolution. A revolution that had one of its main demands the establishment of a House of Justice. Its decree was issued by Mozaffar ad-Din Shah Qajar, but the opportunity never arose to say that in post-Constitutional Revolution Iran and after the February 57 Revolution, there has been an independent House of Justice, separate from the government and defender of people’s rights. Just as today, after 112 years, the authorities of the judiciary consider themselves supporters of the system’s rights, not the people’s.

However, this half-baked judicial system introduced new concepts into the people’s understanding. The concept of a lawyer and defense lawyer was one of them. Although the issue of advocacy has a long history in Shia jurisprudence, the concept of advocacy in modern law and its presence in Iran must be traced back to the Constitutional Revolution and the emergence of a modern judiciary, thanks to the efforts of great figures such as Ali Akbar Khan Davar. However, this issue has been challenged by governments throughout the post-constitutional years, especially in cases referred to as political and security cases. During the first Pahlavi era, with the presence of doctors and sarpas mokhtari, the story of the court and justice, especially in such matters that were intertwined with the politics and power of the rulers, was mostly seen as a joke. However, in the second Pahlavi era, the independent judiciary was able to free itself from the grip of the government, and for this reason,

The 1957 Revolution, however, also disrupted the independence of the judiciary, and this time the name of religion was used to dominate the judicial system. Revolutionary courts were established and the whole concept of defense lawyers was abolished. Asadollah Lajevardi, the prosecutor of the Tehran Revolution at that time, had said, “When the accused is anti-revolutionary, they should not have a lawyer. If they are a political prisoner, they must be guilty. Therefore, a lawyer should not be involved in a process that helps the accused.”

The 60s and 70s passed without this concept being eliminated, until the emergence of the days of Khordad 76, when the whisper of returning to the Constitution and written but unimplemented laws was heard again in the Islamic Republic’s government and judicial system. The issue of defense lawyers, especially in cases related to national security and political and security cases, was once again brought up.

However, all of this issue was about the presence of a lawyer in the court stage and there was no mention of his presence in the preliminary investigation stage. While the content of the case being examined by the judge includes questions and answers and, so to speak, interrogations of the accused, which are taken in the preliminary investigation stage, and it is in this stage that the newly arrested accused must seek the assistance of a lawyer and a legal representative to protect their rights during the trial process. The presence of a lawyer in the first stage of preliminary investigations was first introduced in 1956 by adding a clause to Article 112 of the Criminal Procedure Code, and the accused was able to have one of the court-appointed lawyers with them without being able to interfere in the investigation. As a result, the possibility of a lawyer’s presence in investigations also became possible under Iranian laws. (2)

The mentioned article, later in Article 128 of the 1378 Criminal Procedure Code, was repeated verbatim, but this article added restrictions that made it difficult for the accused to have a lawyer during the investigation stage. “According to the mentioned article, in cases where the subject is confidential or the presence of a non-accused person causes corruption, and also in cases of crimes against national security, the presence of a lawyer during the investigation stage will be allowed with the permission of the court.” (3)

However, the possibility of using a lawyer in the preliminary investigation stage, even with these limitations, and even the possibility of the presence of an independent and desired lawyer for the defendant in court in the next step, faced a serious challenge in amending and drafting the new Criminal Procedure Code; a new Criminal Procedure Code that was approved by the Guardian Council in February 2014 and became effective from July 2015. This law was initially experimental, but in June of this year, it became permanent. The challenge that was mentioned arose under Article 48 of this law. First, we will review the article and its subsection, and then we will discuss the process of its approval.

Article 48 of the Criminal Procedure Code, passed in 2013, had suspended the right of the accused to meet with a lawyer for one week after being placed under surveillance for organized crimes, crimes against domestic or foreign security, theft, drugs and psychotropic substances, or crimes listed in sections (a), (b), and (c) of Article 302 of this law. This article was amended on 23 Khordad 1394 (June 2015) as follows: In cases of crimes against domestic or foreign security and organized crimes that are subject to the punishment listed in Article 302 of this law, during the preliminary investigation stage, the parties to the case may choose a lawyer or lawyers from among the official lawyers of the judiciary approved by the head of the judicial authority. The names of these lawyers will be announced by the head of the judicial authority.

In this article and its clause, however, the presence of a lawyer in the preliminary investigation stage is authorized for cases related to national or internal security, or cases covered by Article 302 of this same law, which is considered a step towards progress in its own right.

Article 302 of this law states that “the following crimes shall be dealt with in criminal court:

A) Crimes that result in the punishment of death.

B) Crimes punishable by life imprisonment

P) Crimes resulting in punishment of amputation or intentional offenses against physical integrity with a penalty of half the full blood money or more than that.

Crimes that result in a third degree or higher disciplinary punishment.

“Political and media crimes.”

In the first step of this article and its clause, it is hopeful that after this law, the accused can benefit from the presence of a lawyer from the beginning of their detention, who can help them legally. However, the clause and clause of this law make it bittersweet; that the names of the mentioned lawyers must be announced by the head of the judiciary. This means that the law officially does not consider all lawyers as confidential and only considers those who are selected by the head of the judiciary based on an unknown mechanism. This is where the castle of hope is destroyed for the accused, because the lawyers introduced by Mr. Amoli Larijani, Azheh, and the current owners of the judiciary will definitely be people similar to themselves; of the same kind.

“When the spokesperson of the Judiciary Power understands the presence of a lawyer in accordance with Article 35 of the Constitution as follows: “We have in the Constitution and in Article 35 that in courts, the parties have the right to choose a lawyer. So according to this article, there is no restriction. It only says “in courts”, “the parties” and “can”. This means that there is no obligation for lawyers to be present in courts and no obligation for lawyers to be present forcibly, because the only thing mentioned in this article is “can”. In other words, from the perspective of the honorable spokesperson of this power, the presence of a lawyer in a case is a matter of possibility, not certainty. And they and their leader and their friends in this power have the right to take away this right from the accused whenever they want, under the pretext of national security, confidentiality, and a thousand other issues that the interrogator and investigator create, and the accused has no choice but

But how was this clause approved? Mohammad Ali Asfarnani, member of the 9th Parliament’s Judiciary Commission, stated in an interview with ISNA on June 11, 2018 that this clause was initially “sent by the judiciary to the government and then presented to the Parliament.” He also emphasized that “representatives of the judiciary have attended all sessions without exception regarding the decisions approved by the Judiciary Commission.”

This law was passed experimentally in 2013 and the final clause of Article 48 stated that “in crimes against internal or external security and organized crimes punishable under Article 302 of this law, preliminary investigations can be conducted without the presence of a lawyer if necessary, upon the recommendation of the investigator and approval of the prosecutor.” (7) As previously mentioned, Esfahani has stated in an interview that “the reason for this issue was also because in our constitution, we have given the right to the defendant to use a lawyer in their defense, and according to the constitution, there is no time limit in this regard, meaning that from the moment a person is pursued and accused, they can have the right to a lawyer, which was observed here as well, that the defendant could have a lawyer from the moment they were accused and the lawyer could also represent them.” He also continued to say that “usually, countries have considerations in their security matters that make the issue more difficult,

However, apparently the Guardian Council has raised objections to this article and then this article is changed to a clause with a present note. According to Esfahani, the issue of being a “problem creator” for this article was raised. So the honorable representatives, judicial authorities, and members of the Guardian Council have gathered and decided, as Esfahani says, that members of the judiciary commission of the parliament can represent and defend the accused of security and organized crimes, which will be introduced by the judiciary and this will be based on a list that the judiciary will publish. Apparently, this issue has been approved in this way. Of course, no one takes responsibility for it. The spokesperson of the judiciary says that “this was not proposed by the judiciary and when it was raised in the parliament and the judiciary became aware of it, it expressed its opposition through several channels.” (8) And a member of the judiciary commission of the parliament states that “in the resolutions approved by the judiciary

In fact, it seems that this clause is so problematic that no one is willing to take responsibility for it. To the point that some say the head of the judiciary himself did not agree with it and after the members of the Bar Association asked, “What proposal do you have for its implementation?” However, all the supporters of the ruling authorities have fully supported this issue. From Mohammad Taghi Rahbar, the former head of the Judiciary Committee in the time of approval, to Reza Farajollahi, the head of Branch 32 of the Supreme Court, and Mohammad Reza Saki, the legal advisor to the deputy of the judiciary, defend this clause that no one takes responsibility for its approval.

The provision restricts the possibility of choosing a lawyer for access to a case and renders it ineffective, taking a step further in violating the principle of the accused’s freedom to choose a lawyer from among a variety of attorneys. It limits them to options approved by the head of the judiciary, with no one taking responsibility for approving this provision and everyone blaming each other. Everyone says they didn’t agree, but the provision has been approved; the usual process in the Islamic Republic’s government is to say “who was it, who was it, it wasn’t me!”

But unfortunately, a bitter coincidence has also occurred. It has been reported by lawyers that this issue has been extended from the court of first instance to the revolutionary court. Shima Ghosheh, a prosecutor’s lawyer, wrote in an article in the Law newspaper dated June 9, 2019 (issue 1218 of this newspaper) entitled “The Challenge of Advocacy in the Revolutionary Court” that “the current problem and dilemma is elsewhere, and that is in the revolutionary court. Unfortunately, the judges handling these cases in the Revolutionary Court of Tehran have also extended this provision to the stage of consideration in the court and prevent the presence of lawyers who have either declared their advocacy in the court of first instance or intend to enter the case in the court. Their argument is apparently based on the “priority analogy” that is, since you do not have the right to advocate in the court of first instance – based on the declared list – you also do not have the right to advocate

In fact, according to this lawyer and other confirmed lawyers, the clause that exempts someone from responsibility has been extended to the revolutionary court, in order to further violate the rights of political-security defendants in the Islamic Republic system and to create another facade of justice. This violation is so blatant that the ILNA news agency reported on June 18th of this year that Mohammad Javad Fattahi, a member of the Judiciary Committee of Parliament, resigned two weeks ago in protest of his colleagues’ lack of support in Parliament to amend this criminal procedure law. He stated that he suddenly faced the announcement of the opinion of the Judiciary and the designation of a list of approved lawyers. The same Judiciary that its spokesperson is trying to say that the President, himself, and his associates were not in favor of this clause and that Parliament approved it. This same member of the Judiciary Committee had previously said on June 9th that “the legislator is questionable for approving a corrupt law in the 9th

The final and permanent Criminal Procedure Code has been passed and this article and its subsection are also definitive. Now it remains to be seen whether the members of parliament, lawyers, and the Bar Association will accept this and only raise objections (or resign like Fathi) or if they will stand up against this law which goes against the principles of the Constitution and fundamental human rights. We must wait and see. Although yesterday, tomorrow may not be so clear.

Notes:

1. “Opening of Power of Attorney” with a list of trusted attorneys, Zeytoon website, 17 Khordad 1397.

2. Khosravi, Vahid, the role of a lawyer in preliminary investigations of crimes in the Criminal Procedure Code of 1392, the website of the Office of Legal Services for Clients.

3. طور که

   As
   

4. “Reopening, Hamidreza, a special case called “Article 48 footnote”; when a controversial law is about to be implemented, Iran newspaper, issue 6803, 27 Khordad 1397.”

5. طور که

   As
   

6. Article 302 of the Criminal Procedure Code of 2013, Iranian Legal Clinic website.

7. Explanation of the Judiciary Spokesperson about the details of Article 48 of the Criminal Procedure Code, Mizan News Agency, 22 Khordad 1397.

8. طور که

   As/Just as

9. طور که

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10. During the reign of Khusrow, the exceptions of Article 48 of the Criminal Procedure Law should and should not be considered. Information newspaper, Tuesday, 28 Esfand 1396.