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Mohammad Moghimi

Following the protest against the order to prosecute myself and 8 of my colleagues by the issuing investigator to block the messaging app Telegram, in response to the request of many people in this issue of the monthly magazine “Khat-e-Solh”, this protest bill is being published.

First, we address the formal issues related to the issued ban on prosecution.

A- Structural defects.

1- The head of the judiciary, the deputy prosecutor general of the country, and the prosecutor of Tehran, after receiving complaints from us and before the intervention of the competent authority, expressed their opinion that the accused act was not a crime. Regardless of the fact that this action is considered a violation of public order, it is also a clear violation of the principles of criminal procedure and a blatant example of not observing the principles of impartiality and judicial independence. It goes without saying that the authority responsible for handling the case is also unable to conduct a fair trial under the influence of these statements.

2- In the session dated 20/3/1397, the interrogator defended himself for about 4 hours with extensive arguments regarding his biased actions. We were compelled to remind him of the principle of impartiality during that same session. To our surprise, he responded by saying, “I am not a judge, I don’t have to be impartial.” This behavior further raises doubts about his impartiality.

In essence, the exporting interrogator has issued a prohibition on prosecution and has made arguments that we will now examine and respond to.

B – Meteorological issues.

1- In the mentioned order, it has been stated that Moshki’aneh has referred to Article 114 in the issued order for filtering Telegram and has argued that: “…continuing the mentioned activity in this platform is harmful to the health and jeopardizes the security and public order of the society, and based on this, the mentioned order has been issued…”. In response, it is stated that firstly, this article is an exception and the principle is freedom of the mentioned activities; as it is prohibited in the beginning of the article. Therefore, this article must be interpreted in a limited manner. Secondly, in this article, prevention of all or part of activities such as trade, agriculture, workshops, factories, companies, and cooperatives, which based on reasonable evidence and positive reasons, continuing these activities would result in committing criminal acts that are harmful to the health, jeopardize the security of the society, or disrupt public order, is the responsibility of the investigator. None of these

2- Considering that the decision made regarding Article 114 of the mentioned law is subject to objection in the criminal court within 5 days of notification to the stakeholders, and given that these stakeholders are a large portion of the Iranian nation, the question arises as to what solution has been taken to notify them and preserve their right to object?

On the other hand, Mashatki has disregarded the principles of rule of law, incompetence, personal nature of decisions and punishments, compensation for damages (no harm), respect for acquired rights, innocence, permission, legality, and has gone beyond the law. According to the principle of personal nature of punishments, any decision issued by the prosecutor must fall within his jurisdiction and be specific and limited to a particular dispute or case. However, it is observed that Mashatki’s orders go far beyond the limits of legal authority and, in addition to violating the principle of personal nature of punishments, also violate the principle of relative nature of judicial decisions and, by issuing a general and universal order, have deprived 40 million Iranian citizens of their individual rights and freedoms.

4- On the other hand, according to the decision of the Leader dated 17/12/1390, the Supreme Council of Cyberspace was formed; this council is the only legal authority for monitoring the cyber and virtual space, and all institutions are required to comply with the decisions of this council. It is worth mentioning that the Judiciary is also a member of the Supreme Council of Cyberspace. According to Article 2, Clause 6 of the aforementioned decision, the Judiciary is obliged to draft a regulation within one month in order to protect citizens’ rights, privacy, public security, and trust, and to review criminal content on social messaging platforms in support of legal protection for the continuity of businesses and activities. In this regard, Article 46 of the Fifth Five-Year Development Plan emphasizes on the development of information technology – including the expansion of internet speed and bandwidth. Therefore, the competent authority for decision-making regarding the virtual space is the aforementioned council, which in a way refers to

5- In the order to prevent persecution, it has been declared that preventing crime is an inherent duty of the judiciary and accordingly, any action against it is considered justifiable. The concept of crime prevention, according to criminal law, is a set of actions and strategies aimed at reducing the risk of committing a crime and minimizing its harmful effects on individuals and society, including fear of crime, and it affects the factors that lead to crime. Therefore, citizens’ rights cannot be ignored under the pretext of predicting and preventing crime, and fundamental freedoms cannot be revoked. Can anyone resort to criminal behavior to fulfill their inherent duty? Can the judiciary ignore citizens’ fundamental rights in order to fulfill a duty?

6- The order issued to prevent prosecution is based on the principle of the validity of the judicial decision. First, this order is not a judicial decision. The judicial decision is made in court and the prosecutor’s office is the place for preliminary investigations, and its authorities are also obliged to investigate. Therefore, the validity of the judicial decision is only established when the judge issues a ruling in accordance with the law and after going through fair legal procedures, including the possibility of appealing to the Supreme Court, the ruling becomes final. Second, appearance is only a preliminary matter and despite its appearance, it does not take precedence over the principle. In this case, the occurrence of a crime and the violation of the rights of Iranian citizens is as clear as the sun. Third, the principle of validity of judicial decisions can only be discussed when it is based on other principles such as the independence of the judiciary, impartiality, etc. Fourth, the principle remains valid until proven otherwise; in this case, the

7- It has been argued that Moshaki has acted in the capacity of legal inference. In response, it must be stated that legal inference has principles and rules; including the methodology of legal and judicial interpretation that must be learned and followed. The previous discussions make it clear that Moshaki’s actions can include any subject, except for legal inference.

8- The absence of a legitimate and legal vision is another argument that has been documented. This argument is shocking. It is because the actions of the government have led to the deprivation of the fundamental rights and freedoms of over 40 million Iranians, and many of these illegal actions have directly and tangibly harmed them. Therefore, the prominent reason for the occurrence of arbitrary violence and its instances in Iranian society and people is the government itself.

9- Finally, in the aforementioned provision, reference has been made to the three elements of material, legal, and spiritual for the realization of the crime, which the spiritual element and criminal intent have not been proven. It is worth mentioning that the crime under Article 570 of the Islamic Penal Code is one of the types of “absolute crime” and the mere fact that an official, whether directly or indirectly, causes the deprivation of personal freedoms and the deprivation of their rights guaranteed by the Constitution, constitutes a crime. In fact, the legislator has absolutely prohibited and punishable any action that violates the rights and freedoms of the people. Therefore, despite the clarity and application of the mentioned legal provision, first; the intentional act of the perpetrator and their abuse of power resulting from their position in violation of fundamental rights is sufficient for more than 40 million citizens. Second; general criminal intent, meaning the intention to commit this criminal act, is fulfilled and specific criminal intent is not a condition and is not