Contrary to belief, torture is not completely prohibited in the legal system of the Islamic Republic and the principle of “prohibition of torture” has a specific meaning in this legal system. Article 38 of the Constitution of the Islamic Republic states: “Any form of torture for the purpose of obtaining confession or information is prohibited. Forcing a person to testify, confess or take an oath is not allowed and such testimony, confession or oath is invalid and unreliable. Violators of this principle will be punished according to the law.”

We see that in Iranian laws, the examples of torture are prohibited, referred to as “physical” rather than “symbolic”. Torture is only prohibited for the purpose of “obtaining a confession” or “gaining information” and is punishable by law. Other forms of torture are not legally prohibited. The details of the discussions in the parliament regarding the final review of the constitution also indicate that the intention of the legislator in this principle is to prohibit physical torture for obtaining a confession. During these discussions, Ali Meshkini, a former member of parliament, argued against this principle, stating that “although torture is against Sharia, if, for example, members of a criminal group kidnap a government official and two or three members of the group are arrested and we know that they have information but are not talking, and if they are beaten with a stick, it may be discovered, is torture prohibited in such cases?…” Baghestani responded, “The issue is opening a

The view of the writers of the Constitution of the Islamic Republic, towards the prohibition of torture, is very narrow and only limited to obtaining confessions from suspects through physical abuse and harassment. While torture has a very wide scope in the international law and customs of developed countries in the modern era, it includes not only mental and sexual abuse, but also physical punishments.

Article 578 of the Islamic Penal Code, Book of Punishments, approved in 1375, which is essentially the executive article of Article 38 of the Constitution of the Islamic Republic, has only considered physical torture as a means of confession and has prescribed punishment for it. This article states: “Any of the employees and officials of the judiciary or non-judiciary of the government who, in order to force the accused to confess, physically harass and torture them, in addition to retribution or payment of blood money, shall be sentenced to imprisonment from six months to three years, and if someone has given orders in this regard, only the one giving orders shall be sentenced to the aforementioned imprisonment, and if the accused dies as a result of harassment and torture, the executor shall be sentenced to the punishment of the murderer and the commander shall be sentenced to the punishment of the commander of the murder.”

It is clear that the concept of “torture” in the criminal legislator’s imagination only includes physical harm and beating of the accused, and does not consider mental torture and other forms of harassment as torture. In addition, in the punishments listed in Iran’s penal laws, there are the worst forms of torture, such as whipping, stoning, amputation, etc., and the Islamic Republic considers them not as torture, but as “legal limits” and considers their implementation as its “duty” and “honor”. This is exactly why the Islamic Republic has not yet joined the “United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (adopted in 1984 by the United Nations General Assembly).

According to the laws of the Islamic Republic, even torture and harassment of suspects, with the intention other than obtaining confession and information, or forcing them to testify and take an oath, is not prohibited. The legal system of the Islamic Republic has various ways to deal with this issue. Now, assuming that the Islamic Republic accepts that a certain prisoner has been tortured (which it does not), it can claim that the torture was not for obtaining confession and was carried out as a security measure to intimidate the prisoner and put an end to their anti-security actions (from the perspective of the Islamic Republic), which is not prohibited in their legal system.

Can it be claimed by “priority comparison” that if torture is prohibited for obtaining confession, then torture for other purposes, including intimidation, should also be prohibited? If the legal system of the Islamic Republic was a customary legal system, this analysis might have been interpreted correctly, but the system of the Islamic Republic is a system based on Shia jurisprudence and the concept of guardianship of the jurist, in which there is no priority other than “preserving the system” (which is one of the “most important obligations”). In this ideological system, according to Ayatollah Khomeini, for the preservation of the system, even religious obligations can be suspended based on expediency. In 1366, Ahmad Azari Qomi claimed in a controversial article in the newspaper Resalat that “the jurist has the authority to even suspend the principle of monotheism”! Torture for purposes other than obtaining confession is nothing! It also has no explicit legal prohibition. Furthermore

The criminal justice system of the Islamic Republic has many legal loopholes in the area of violence and torture, and its flaws are both structural and systematic. Officials and law enforcers are not considered the main culprits, and therefore changing individuals will not solve the problem. Officials of judicial and security institutions have taken advantage of these legal loopholes and have created many tragedies, leaving behind many wounds and corpses on the hands of the nation and homeland. With this legal system, it is difficult to hold those responsible for the atrocities caused by torture accountable. The only way is to review the constitution and absolutely and universally ban torture, without any exceptions, based on international standards.

The legislator has only considered physical torture within the scope of physical impact and beating, as evident in Article 576, which states that beating can lead to the punishment of torture, where the effects of torture are reflected on the body of the accused. These effects (such as wounds or bruises) can legally result in the retribution of a body part or the payment of blood money. This means that the tortured individual must prove the torture based on the remaining effects on their body. If the effects of torture disappear, the accused can no longer make a claim and the complaints of tortured individuals often go unheard. There is no mechanism in the judicial system or other institutions of the Islamic Republic to prevent torture. Therefore, in addition to amending Article 38 of the Constitution and the absolute prohibition of torture, there should also be measures in ordinary laws such as the presence of a lawyer for the accused during all stages of interrogation and investigation, and greater transparency in the investigation process to prevent or minimize torture.

This disease of criminal legislation in the Islamic Republic, which considers physical punishment as a form of retribution for a member, or blood money for a member, is a separate story that must be addressed in a detailed writing. This style of legislation, derived from jurisprudence, is currently very ridiculous and has no deterrent effect.

Another important issue is that the ruling system in Iran has a security-oriented approach towards even the most unrelated and simplest matters. This includes issues such as workers’ overdue rights, which is the most basic and fundamental right of workers, citizens’ activities in the field of environment, and academic activities in fields like demography. When a political system looks at a matter through the lens of security, it sees its own existence at risk and, according to the law of survival, will do anything to defend itself, including arrest, obstruction, restriction, and in some cases, even murder and torture. Do you have a system that looks at literature, poetry, and novels through a security-oriented lens? In the 1970s, the security-oriented approach went so far as to torture, murder, and silence several poets and writers in this country.