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Hossein Ahmadi Niaz

In the world of public law, there are two fundamental principles that form the cornerstone of citizens’ right to defense. Based on these principles, the principles of fair and just trial are defined and universally accepted, and the sustainability of these two principles is always emphasized.

• The right to have and freely choose an attorney at law.

• Easy access to a judicial attorney.

Article 35 of the Constitution explicitly states, “In all courts, the parties have the right to choose their own lawyer, and if they are unable to do so, facilities must be provided for them to appoint a lawyer.” This article, which is included in the chapter on the rights of the people, is considered one of the foundations of fair and just legal proceedings. The government, in the general sense, is obligated to provide the necessary facilities for the implementation of this principle; as stated in Article 5 of the Criminal Procedure Code, it emphasizes the right of the accused to access a defense lawyer. Therefore, the right to choose a lawyer is one of the most important conditions for a fair trial process in domestic and international courts. This right is a prerequisite for the secure implementation of another right, known as the “right to defense,” in human rights documents.

When a defendant is in a state of confusion, they will not have the opportunity to defend themselves properly; especially when the defendant is accused of political or security crimes or opposing the government; such as “baghi” (rebellion) under Article 287 of the Islamic Penal Code, which is used today to sentence defendants to execution, and the defendant’s opponent is the government, state, or government institutions, making it difficult to defend themselves. Therefore, in this situation, such defendants must have the right to easy access to a lawyer and the freedom to choose a lawyer, with the help of a free lawyer, they can exercise their right to defense, which guarantees the principle of fair and just trial in such situations.

Article 14 of the International Covenant on Civil and Political Rights, which Iran has also ratified and confirmed, and in accordance with Article 9 of the Civil Law, is among the domestic laws of Iran and is admissible, declares:

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1- All people are equal before the courts and judicial tribunals. Everyone has the right to a fair and public hearing in an impartial and independent court, established by law, to determine their rights and obligations in criminal charges against them or disputes over their civil rights and obligations.

The decision to hold sessions in all or part of a trial will be based on ethical, public order, or national security considerations in a democratic society, whether it is necessary for the well-being of the private lives of the parties involved, or in cases where holding public sessions may be harmful to the interests of justice, to the extent that the court deems necessary. However, a ruling in criminal or civil matters will be public unless it is necessary for the well-being of minors or in cases related to marital disputes or custody of children.

2- If anyone is accused of committing a crime, they have the right to be presumed innocent until proven guilty according to the law.

3- Anyone accused of committing a crime will have the following rights guaranteed to them at the very least with complete equality:

The individual should be informed as soon as possible and in detail, in a language that they understand, of the type and reasons for the accusation that has been attributed to them.

Have enough time and facilities to prepare your defense and communicate with your chosen lawyer.

Judgment should not be made about him without unnecessary delay.

D – Must be present at the trial and defend themselves personally or through their chosen attorney, and if they do not have an attorney, they have the right to be informed of their right to have one appointed for them by the court when necessary for the interests of justice, and in cases where the court deems it necessary, a lawyer will be appointed for them by the court, who will not incur any expenses for the payment of legal fees in case of their inability to pay.

“And if one does not understand the language spoken in court or is unable to speak it, a free translator can assist them.”

This article emphasizes the principle of the defendant’s right to choose a lawyer and considers it as one of the foundations of the defendant’s rights and the principle of fair and just trial.

The reality of the issue is that the clause below Article 48 of the Criminal Procedure Law is contrary to Article 35 of the Constitution and the mentioned principles; because it takes away the right to choose a defense lawyer, which also puts the right to defend the accused in question, as the accused can no longer have the lawyer of their choice and their right to defense is practically lost. On the other hand, the selection of 20 individuals as lawyers under the clause below Article 48 is in contradiction with the principles of easy access and free choice of a defense lawyer, and it leads to a violation of the principles of fair and just legal proceedings. Additionally, there are numerous other flaws and shortcomings in this list, such as the fact that out of seventy thousand defense lawyers, only twenty are qualified.

Firstly, has the butterfly of attorney not gone through the process of issuing and verifying qualifications of these seventy thousand attorneys? Secondly, among these twenty individuals, there is no female attorney or attorney belonging to ethnic or religious minorities. Therefore, this list is a form of discrimination, contradiction, and opposition to the principles and spirit of the constitution and the rights of the people. On the other hand, it is considered as belittling the attorneys in Iran. All countries in the world are striving to elevate the institution of attorney and provide opportunities for all citizens to access a judicial attorney, and are developing and honoring it. However, some individuals in Iran are creating limitations and weakening the institution of attorney.