“این تصویر نشان دهنده یک کودک شاد و خندان است”

This image shows a happy and smiling child.
Hossein Taj

The topic that I am addressing in this writing applies to many political and security prisoners and is the subject of disagreement between judicial authorities, political and security prisoners, and their lawyers. Therefore, despite the fact that valuable materials have been written and recorded on this subject, due to its necessity and importance, it is once again being addressed.

There is no doubt that prisoners have rights and privileges; however, what is of great importance is paying attention to the fact that in the world of law, words have independent and specific definitions and meanings, and the use of specific words by the legislator in the process of legislation is equally important.

At first, it is necessary to mention some of the rights and privileges of political and security prisoners.

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Health, wellness, and access to physicians

The possibility of defense and access to a preferred lawyer.

The possibility of accessing the phone and communicating with family.

Leave

Meeting with family/lawyer

Utilizing legal capacities such as conditional freedom, etc.

Study and access to media

Not using a uniform and wristband and ankle band.

Before delving into the nature of the subject and examining some of the aforementioned cases (only focusing on a few that the writer deems more important), it is necessary to delve deeper and contemplate on the concepts of “right” and “privilege”, and to review them in terms of their historical and contextual origins, and even attempt to analyze their descriptions in order to create a means for fulfilling the rights of prisoners through interpretation in favor of the accused in the criminal justice system. However, as mentioned at the beginning of this article, valuable articles and materials have been presented on this subject; therefore, it must be briefly stated that:

The impact of the interpretation of “right” in its sublime meaning, which is a natural right, on any of the legal institutions or examples and similar cases, is that firstly, the origin and source of the existence of “right” is a transcendent will and belongs to the most sacred essence, and it is not possible for individuals to deprive it, and of course, its limitation is possible with the support of the law and in order to preserve public security and order, under certain conditions.

On the other hand, the interpretation of “right” in a non-supreme sense does not have the ability to be revoked until the continuation of the existing rule of law; except for exceptions that are included in the principle.

It is necessary to mention here that the natural “right” does not have the ability to be deprived at any level of conceptual and practical credibility, and even derogation from it is not desirable or acceptable in fundamental concepts.

The exception to this principle is the preference of general interests and benefits over the individual, which also does not mean abandonment.

However, the term “score” refers to the mentioned cases and similar ones, meaning that the allocation or lack of allocation of it is at the discretion of the assignee.

Based on various principles of jurisprudence and laws in domestic and international rights, which are bound to respect the rights of the accused, it seems necessary to make a distinction in the above cases.

Health, wellness, and access to medical care.

Benefiting from a healthy and hygienic environment and, in case of illness, having access to proper conditions and facilities for seeing a doctor and receiving treatment is the right of the accused.

Therefore, under no circumstances is it possible to deprive it.

It is possible that sometimes, due to personal tastes and exercising personal power, the implementation of the law may be hindered; however, the law supports this and considers the health of the prisoner as a necessary and protected matter.

The possibility of defense and access to a preferred lawyer.

Despite the legislature’s declaration and emphasis on the right of the accused to have a lawyer, the addition of a clause to Article 48 of the Criminal Procedure Code, which limits the accused’s access to a lawyer, is an unforgivable mistake in the legal realm and a major obstacle to the progress and elevation of fundamental and natural human rights.

It is not hidden that having a “lawyer” is an undeniable, essential and fundamental right that is addressed in the constitution, formal laws, and also jurisprudence.

In this regard, it should be noted that -although it will be further discussed in the “leave” section-; it may be possible in some cases and in the interest of society and public order to limit the rights of individuals, but in most cases, such authority cannot be considered legitimate for any power.

The right to have a lawyer for the accused is as such, and limiting this right is fundamentally incompatible with any legal logic; because restricting the accused’s choice of lawyer, even at the stage of the court – which is in fact one of the most important stages of the process of handling criminal cases, especially political and security cases – will result in the violation of the accused’s rights.

Therefore, it is strongly emphasized that having the right to choose a lawyer is a “right”.

Ability to access telephone and communicate with family.

This also falls under the rights of the accused and is non-waivable. However, similar to the above clause, there may be certain limitations that can be justified, but it is by no means waivable or revocable from the accused.

The new criminal procedure law explicitly refers to this right.

Leave/Permission:

The subject that has been repeatedly discussed and elaborated upon is the distinction between the application of “right” and “privilege” in regards to leave.

The importance of identifying the subject – as mentioned before – is that it is not subject to waiver except in cases of no harm, and even then, it is not considered a waiver in this sense.

Taking into consideration the specific laws, including the regulations related to the organization of prisons, criminal procedure, and Islamic penal code, it seems that the furlough of prisoners has both a right and a privilege.

Although the writer emphasizes that leave is a natural right, the prison organization has also made detailed provisions in accordance with its own executive regulations. Of course, the exercise of this right by the accused or convicted person requires deposit and provision of appropriate bail, as determined by the judicial authority.

Opponents of this view claim that furlough is a privilege granted by the judicial authority and the executing organization, if they are satisfied with the convicted person, and the same argument also considers the judicial authority and the executing organization as valid in not allocating this privilege.

But the subtle point that remains hidden is the role of the executing organization and even the judicial authority after issuing a “prison” sentence, in the quality of its execution!

All judicial authority is valid until the issuance of a verdict and supervision of its execution by the Prison Organization, according to the court order. If the convicted behavior requires action, it must be dealt with according to the law. However, imposing additional restrictions beyond what is stated in the court order is considered illegal and unlawful behavior.

This is where attention should be paid to this important matter. A prisoner, according to a firm ruling, must spend some time in prison; meaning that their right to freedom is limited for a period of time, but their right to life and existence is accompanied by communication and continuation of social relationships, which is manifested in prison furlough. Therefore, the use of the term “privilege” for furlough is distorted in this sense.

Meeting with family/lawyer.

It is obvious that meeting with family and the prisoner’s lawyer is a right and no authority can deny it; although some legal limitations may be justifiable.

Regarding the other mentioned cases (such as the use of legal capacities such as conditional freedom, access to media, and not wearing uniform or handcuffs), except for access to media which is an inalienable right, it can be said that the utilization of legal capacities by prisoners is somewhat of a “privilege”; because not only is it mentioned in legal texts that “the judicial authority can…”, but it should also be noted that the situation of prisoners during the period of imprisonment, which reflects the positive or negative effects of punishment and serves as a lesson, can be a reason for the implementation of legal capacities to facilitate conditions or reduce punishment. And as previously mentioned, increasing punishment after the final verdict or execution of a legitimate and legal verdict is not permissible.

It is obvious that increasing the level of public awareness leads to an increase in the level of expectation, questioning, and demanding, which collectively create a brighter horizon.

Explanation: In this text, the term “prisoner” refers to both “convicted” and “accused”.