“بهار آمد و با خود نور و شادی آورد”

“Spring has come and brought light and joy with it.”
Mousa Barzin

Without a doubt, the presence of a lawyer in the process of litigation is one of the most important elements of the defendant’s rights and also a tool for achieving fair trial. The intervention of a lawyer in trials, especially criminal trials, will ensure the principle of equal arms and equality of defense tools; because in a criminal process, the defendant is facing a court that relies on power and has much more defense resources. If the legal system or judicial procedure prevents the defendant from having a lawyer or limits the presence of a lawyer in trials, it is very likely that justice will not be served and the defendant will be deprived of their rights and unjustly convicted. This possibility is very high in countries where their judicial system lacks sufficient independence.

After the revolution of 1979, the Iranian legislator imposed significant restrictions on lawyers. Every time a law was passed, it was a blow to the legal community. The approval of Article 48 of the Criminal Procedure Code was also part of the government’s hostile policy towards lawyers and limiting the rights of security defendants. If we look at the limited and biased security cases in Iran, we can see that conviction has always been one of the important tools used by the government to deal with critics and protesters. In other words, the use of the judicial system to suppress protests is a visible policy of the Iranian government. Therefore, restricting lawyers’ access to these cases can be seen as a step towards this policy.

The judiciary has separated twenty lawyers out of thousands who have received licenses according to the laws of the country and only allowed them to practice in cases related to security crimes. Judicial authorities have justified this action by stating that this regulation only applies to the preliminary investigation stage. Despite the fact that this restriction is applied in all stages of the trial, in response to these authorities, it must be said that a security suspect is arrested by security forces and handed over to these officers for interrogation, and all documents and evidence are collected at this stage and ultimately, in this stage, with the issuance of an indictment, it is determined that the person in question has committed a crime. The majority of violations by security and judicial authorities in dealing with suspects are carried out at this stage, and in other words, the skeleton of the case is formed in this preliminary investigation stage. This is why the most important stage in which a suspect of security crimes needs a lawyer is the preliminary investigation stage. The Iranian government authorities are well

Paying attention to the process of approving clause 48 and regulating the list of twenty individuals may better reveal the depth of injustice in this provision.

According to the Law of Procedure of Public and Revolutionary Courts in Criminal Cases, passed in 1378, the right of access to a lawyer for the accused in the preliminary investigation stage was limited and for crimes against security, this right was almost completely taken away by the law. As a result, lawyers were unable to defend their clients during the preliminary investigation stage. According to Article 128 of this law: “The accused can have one lawyer accompany them. The lawyer of the accused can inform the judge, without interfering in the investigation, of any information that is necessary for discovering the truth and defending the accused or in accordance with the laws. The statements of the lawyer will be reflected in the court session. Note – In cases where the subject matter is confidential, the presence of a non-accused person may be deemed corrupt by the judge, and also in the case of crimes against national security, the presence of a lawyer during the investigation stage will be with the permission of the court.”

This provision has always been criticized by many lawyers because, on one hand, access to a lawyer and the use of their services, including the right to a fair trial, are essential for the accused, and on the other hand, preliminary investigations, especially in cases related to national security, are the most crucial stage of the trial and determine the fate of the accused. However, the legislator had restricted the presence of a lawyer during the preliminary investigations without considering this important matter. In cases related to national security, it can be boldly said that lawyers were not allowed to be present or intervene in the preliminary investigations. This issue led to an increase in violations of the rights of the accused, to the extent that security forces and court officials could treat a national security suspect however they wanted without any consequences. Ultimately, the case of the accused was formed through illegal methods and sent to the court for a verdict. These drawbacks and criticisms from lawyers, legal experts, and human rights activists prompted the legislator to

It should be noted that in the new Criminal Procedure Code, Article 48 initially provided that the accused has the right to access a lawyer and use their services during the preliminary investigation stage, and for certain crimes, including crimes against national security, the accused will have this right one week after being placed under supervision. This means that for the first week of detention, the accused cannot have access to a lawyer, but after one week, they have this right. According to Article 48 and its footnote: “Upon being placed under supervision, the accused can request the presence of a lawyer. The lawyer must meet with the person under supervision while respecting the confidentiality of the investigation and negotiations, and the lawyer can provide their written observations at the end of the meeting, which should not exceed one hour, to be included in the case file.” Footnote: “If a person is placed under supervision for the accusation of committing one of the organized crimes, crimes against internal or external security of the country, theft

Although this regulation was discriminatory towards security and political defendants, it was more appropriate compared to the previous law and paid more attention to their defense rights. This article was approved and published in the official newspaper, but the legislator, contrary to customary legislation, amended the article before its implementation by adding an exception at the end and limiting the right to access a lawyer during the preliminary investigations for security defendants. According to this amendment: “In crimes against internal or external security, as well as organized crimes punishable under Article 302 of this law, in case of necessity and upon the request of the investigator and the approval of the prosecutor, preliminary investigations are conducted without the presence of a lawyer. The order issued in this regard can be objected within ten days in the court responsible for hearing the main charge.”

With this amendment, legislators returned to the previous law and once again restricted the rights of political and security defendants to have a lawyer. This amendment, which was in conflict with the rights of the accused and the constitution, was opposed by the Guardian Council. The Judiciary Committee of the Parliament, considering the opinion of the Guardian Council, took action to amend the matter and completely changed the clause 48. According to this change, security defendants in the preliminary investigation stage can only choose a lawyer from those approved by the head of the judiciary. In other words, these defendants do not have the right to choose their desired lawyer. According to clause 48, which is now executable: “In crimes against the internal and external security of the country, as well as organized crimes punishable under Article 302 of this law, in the preliminary investigation stage, the parties to the case choose their lawyer from among the official lawyers of the judiciary approved by the head of the judiciary. The names of these lawyers are announced by

Article 48 and the list of twenty individuals are in violation of legal principles and also the rights of the accused in various ways. Firstly, the right to choose a lawyer and have access to them is a citizen’s right according to Article 35 of the Constitution. According to this principle, both parties have the right to choose their own lawyer. This right requires that the accused be able to choose their desired lawyer, but this article in a way forces security defendants to choose lawyers they do not want, and also gives the power to choose a lawyer to the head of the judiciary. Therefore, this article is in violation of Article 35 of the Constitution. Secondly, according to a fundamental principle of criminal law, the defense tools for both parties in a dispute must be equal. If a person is arrested and the judiciary has brought a case against them, the accused must have access to necessary defense tools. Choosing their own lawyer is one of the most important defense tools for the accused. In crimes against