In this issue of the monthly magazine, we have had a conversation with Mohammad Moghimi, a first-class lawyer, about Article 48 of the new criminal procedure and its sub-clause.

Mr. Moghimi, in a conversation about peace talks, while emphasizing the violation of one hundred percent independence of lawyers by this provision, said: “The right to choose a lawyer includes the stages before the trial and the trial itself, but this provision deprives defendants of the right to freely choose a lawyer, which in fact undermines the fair trial process and violates the right of the defendant to defend themselves.”

He added: “If these criticisms and civil protests are followed by the legal community and the rest of society, and continue, surely there is a possibility for reform and it is expected that not only lawyers, but the entire legal community including university professors and even judges will not remain silent on this matter.”

Mr. Moghimi, as the first question, please tell us your opinion on Article 48 of the new Criminal Procedure Code.

See, the right to have a chosen lawyer is one of the most important aspects of defending the rights of the accused and ensuring a fair trial. It is divided into two stages: one before the trial and one during the trial. The trial period is when the accused is in court, but the pre-trial period starts from the moment the accused is arrested and is under supervision, for example, at police stations under the supervision of the police.

In traditional human rights documents such as the International Covenant on Civil and Political Rights, which our country had ratified before the revolution, or the African Charter on Human Rights, the American Convention on Human Rights, and the European Convention on Human Rights, the right to choose a lawyer during trial has been recognized. However, this right has not been given attention before the trial. But the new generation of international documents and domestic laws, which emphasize fair and just trial, also pay attention to this right from the time the accused is arrested or placed under surveillance. I can refer to Article 1 and 5 of the Basic Principles on the Role of Lawyers and Rule 93 of the European Rules, which recognize the right to choose a lawyer during pre-trial stages.

In our country, we have a principle in our constitution, Article 35, which emphasizes the right to have a lawyer during trial. However, this principle does not contradict the fact that the accused has the right to have a lawyer from the beginning of preliminary investigations; it is just that in our laws, we had one generation that has made this principle clearer and more transparent. In our new Criminal Procedure Code, Article 48 explicitly states the right to have a lawyer from the time of being under supervision, meaning the pre-trial stage. In fact, our new Criminal Procedure Code has taken into account the latest international standards for fair trial. However, this article also has a flaw; the flaw is that the lawyer must meet with the person under supervision while respecting the confidentiality of investigations and negotiations. This issue is in conflict with the right to access information and documents for defense and the right to have confidential communication between the accused and their lawyer, which is a fundamental principle of the right to freely access

The possibility of appointing a lawyer in the preliminary stages is one of the strengths of the new criminal litigation procedure and its Article 48, while according to the footnote of the same article, the chosen lawyer is not involved. Do you not consider this to be a paradox?

Yes; regarding article 48; this article states that some crimes should be categorized in preliminary investigations before trial. It is stated that if in preliminary investigations, some crimes, such as security crimes – which in Iran have a political meaning – and organized crimes, the accused can only choose a lawyer from a list prepared by the head of the judiciary and made available to them. This issue is clearly in conflict with the latest international standards of fair trial and international documents, and even limits article 48 itself.

We must not forget that the law must be just, rational, compatible with natural rights, and in line with the standards of human rights. In fact, the law should be formulated and implemented in a way that instills a sense of respect in citizens and is inherently dignified. Therefore, I hope that by amending Article 48, the grounds for fair pre-trial proceedings will be provided for all crimes. In fact, considering that this article only refers to security and organized crimes and does not impose any restrictions on other crimes, we hope that by amending it, we will be able to have fair pre-trial proceedings for all crimes.

As you mentioned, this clause states that certain specific crimes must be defended by a lawyer chosen by the head of the judiciary. For example, organized crimes that are punishable under Article 302 of this law. Article 302 covers a wide range of crimes. Could you please provide more explanation on this matter and which crimes the defendants will not have the right to freely choose their lawyer for?

According to this provision, defendants of security crimes and some organized crimes are deprived of the right to choose their own lawyer. Well, our security crimes fall under the category of political issues. Security crimes also include espionage. But when referring to Article 302, it includes those organized crimes that are punishable under Article 302. This means that it is possible for an organized crime to be committed that is punishable by life imprisonment or execution, or results in the severing of a limb; in fact, the organized crimes that are of concern are those that carry these three punishments or imprisonment of level 4 or above. In fact, the scope of organized crimes that fall under Article 302 can be very wide, so in this way, the violation of the right to choose a lawyer becomes very extensive.

What is the importance of having a chosen lawyer and what emphasis has been placed on it in domestic and/or international documents?

The right to freely choose a lawyer means that every person has the right to choose a lawyer whom they want and trust in their honesty, integrity, skill, and most importantly, their independence. This right is based on standards and principles. For example, the right to choose a lawyer should not be limited to a certain number of lawyers. According to the Human Rights Committee, if a list of lawyers is presented to a defendant for them to choose from, their right to choose a lawyer has been violated. Another aspect is that the right to freely choose a lawyer has also been recognized in international criminal courts. When we talk about international criminal courts, they can serve as a standard and model for domestic courts. We know that the exercise of any right belongs to the owner of that right and they can choose to use it or not. In international criminal courts, there have been cases where the defendant has waived their right to a lawyer, but due to the sensitivity of these courts and the need for fair and

In your opinion, to what extent does this clause question the independence of lawyers?

As I mentioned, the right to choose a lawyer includes the stages before the trial and the trial itself. However, this provision not only violates the independence of lawyers, but also deprives the accused of the right to freely choose a lawyer, which ultimately undermines the fair trial process and violates the right to defense of the accused.

Regarding the independence of lawyers, it is obvious that a lawyer must be independent. If I am not an independent lawyer, when I go to court and stand in front of the prosecutor and defend my client, if the prosecutor or any institution related to the prosecutor wants to confirm my qualifications from now on, I cannot defend comfortably and independently.

If this law is not amended, what problems will arise from presenting a list for choosing a lawyer?

Individuals who have become lawyers are those who have previously attended university, studied, and after obtaining their bachelor’s, master’s, or doctoral degrees, have taken the bar exam and been approved by legal institutions for their academic, ethical, and even criminal background and information. They have also completed an 18-month internship during which, in addition to the skills of the profession, they have been trained in professional ethics, and after completing this process, they have been granted a level one license. In fact, these individuals, who are usually educated and elite, have had their professional and ethical competence confirmed through these not-so-simple steps, and a right to practice law has been created for them. But when it comes to separating some of them, their entire competence is called into question and lawyers are divided into their own and non-own lawyers. This is a clear discrimination that is prohibited by the laws of the country, as well as international human rights documents, including the Universal Declaration of Human Rights adopted

Therefore, this issue is not only against the rights of lawyers, but also creates discrimination among lawyers, questions the independence of lawyers, and undermines the right of defense for the accused. Another problem that may arise is that lawyers may ask themselves how we should defend in a way that our competence is not questioned? Should we be included in this list or not? Or even those whose names are on the list may become upset and ask why there should be such a distinction? Therefore, I believe that the legal community has been shocked…

As a final question, please tell us how hopeful you are, as a member of the legal community, that this law will be amended?

I believe that if these criticisms and civil protests are followed by the legal community and the rest of society, there is definitely a possibility for improvement. However, I emphasize that these criticisms and civil protests must come from everyone and continue. Regarding the legal community, it is expected that not only lawyers, but all members of this community, including university professors and even judges, do not remain silent and give their legal opinions on this matter.

Thank you for the time you have given us.