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Conversation with Ali Kalai

Mohammad Saleh Nikbakht, a prominent and renowned Iranian lawyer, has a long and distinguished record in the field of human rights. He has represented numerous political and civil activists, including Hashem Aghajari, Emadeddin Baghaei, Maziar Bahari, Mohsen Sefayi Farahani, Behzad Nabavi, Ebrahim Maddi, Loqman and Zanyar Moradi, and also Amir Javadifar, who were victims of the Kahrizak incident. In addition, he has been present as a defense lawyer in sensitive and controversial cases, such as the “123 Billion” case, which resulted in the execution of Fazel Khodadad (the first economic criminal to be executed in the history of the Islamic Republic of Iran), as well as representing Bank Saderat.

In this issue of the monthly magazine “Khat-e-Solh”, we are discussing with Mr. Nikbakht about Article 48 of the Criminal Procedure Code, the list of approved lawyers by the head of the judiciary, and its contradictions with the Constitution of the Islamic Republic of Iran, as well as the rights of the accused on one hand, and the independence of lawyers and the Bar Association on the other hand.

Dear Mr. Nikbakht,

Generally, what do you know about the intention and motivation behind discussions such as the selection of lawyers and presenting them as approved lawyers by the judiciary, and on the other hand, turning such discussions into law?

Let us first take a look at the past to examine the issue from a historical perspective. This visit helps us better understand how, with this provision, we have returned to the past. In the past regime, political crimes were dealt with as anti-security crimes in military courts, and in these courts, only officers appointed by the military judiciary could defend political prisoners. Until the last year of the past regime, at the order of the king, other lawyers were finally able to intervene in military courts and later, the handling of political crimes was transferred to public courts. After the February Revolution, this issue gradually resurfaced and, like before, political crimes were referred to as security crimes and were handled in revolutionary courts. In fact, revolutionary courts replaced military courts. Until the years of reformists’ victory in 1997 and during the government of Mr. Khatami, lawyers were not allowed to enter revolutionary courts and it was not accepted for lawyers to intervene in the defense process. With the

From the severity of the punishments imposed on political defendants and the numerous violations of the rulings issued by the Revolutionary Courts in the Supreme Court or in the courts of appeal, we gradually came to the conclusion that the presence of a lawyer has a significant impact. Additionally, the defendants themselves were inclined to have a lawyer present. We were able to present defenses that were published in newspapers or through interviews with the media. This resulted in a large number of defendants who had been sentenced to death being saved from this punishment. As an example, I remember my client, Naser Aghajari. As you know, he had been sentenced to death in the Revolutionary Court. Similarly, many Arab activists in Khuzestan province who had been sentenced to prison instead of death, and individuals in Kurdish regions, including Adnan Hassanpour, whose death sentence was overturned. In general, about 20 of my clients who had all been sentenced to death in the initial courts had their sentences overturned either in the Supreme

In fact, I want to say that the situation was like the past regime. I must emphasize that until 2013, despite successful measures taken during the reform era, the presence of defense lawyers was limited, with the most important restriction being the prohibition of lawyers’ presence during the preliminary investigation stage. It wasn’t until international protests against human rights violations and the violation of prisoners’ rights reached a point where Iranian courts finally accepted that lawyers can be present in all stages of the trial for political defendants. About a decade ago, some judges who had become representatives in the Iranian parliament and were mostly members of the Judiciary Committee, thought of making changes to the Criminal Procedure Code to counter the propaganda against Iran. Therefore, in the temporary Criminal Procedure Code passed in 2013 for a period of 5 years, this committee predicted that lawyers can be present in all stages of the trial, including the investigation stage. This law was passed and naturally, if it had been implemented, it would have been a

To what extent does this issue comply with the principle of the right to defense and the stated principles in the constitution regarding the rights of the people?

This law is in conflict with the general laws of Iran, both in terms of Sharia and Islamic laws. In the jurisprudential rulings or in Islamic law, the accused is not forced to choose a lawyer appointed by the court or judicial authority. Furthermore, this is fundamentally against the explicit provision of the Constitution of the Islamic Republic of Iran. The second principle of the Constitution refers to the goals of the Islamic Republic and it is stated in the third principle how these goals should be achieved. The ninth paragraph of this principle states that the Islamic Republic must strive to eliminate unjust discrimination. When out of the 50,000 lawyers who have previously passed through various filters and obtained a license to practice, only a small number (less than one-fifth) are chosen and it is said that only these individuals are approved, it is a clear form of discrimination; a discrimination that the ninth paragraph of the third principle of the Constitution strongly opposes and calls for its elimination.

This same clause continues to state that the Islamic Republic must strive to provide fair opportunities for all members of the nation. When a defendant is forced to choose a lawyer only from those appointed by the judiciary, it is seen as a lack of justice. This means that even before the trial and in the initial investigation stage, where they are merely accused, they are deprived of many rights and facilities, including the right to choose a lawyer.

Furthermore, in Article 14 of this same third principle of the Constitution, it is stated that the government is obligated to strive for fair judicial security and ensure that all people have equal rights. This also shows that when I do not have the right to freely choose a lawyer, I do not have fair and equal judicial security, which is the intention of the legislator.

On the other hand, in articles 19 and 20 of the Constitution, two points have been emphasized. One is that all members of the nation, regardless of gender, ethnicity, tribe, religion, are entitled to equal rights under the law. And the other is that this nation – with these mentioned characteristics – has equal rights in terms of social, cultural, economic, and political aspects. This provision clearly violates this clause of the country’s Constitution.

In your opinion, does this clause call into question the fairness and rulings issued in revolutionary courts? Should we not be concerned about the issuance of harsher sentences in political-security cases?

As I mentioned before and based on my experience with two regimes, I believe that we should not say that from now on, harsher laws will be issued; rather, I want to say that from now on and by following this law and limiting the presence of lawyers in preliminary investigations, we will return to the past. These lawyers who are supposed to be present in the investigation stage, cannot have much of a role in defending their client in the preliminary investigations – which are mainly conducted by intelligence and security agencies. In fact, the accused, like a former convict, will not have the right to have a lawyer by his side in a situation where he has no authority or refuge. We know that in legal systems like our country, which use a mixed investigative and accusatory system, the accused must have access to the lawyer he has chosen during the time when he is alone and does not have the same conditions as his interrogators and judges, in order to be aware of his rights.

There is a concern that this law not only applies during preliminary investigations, but also in later stages, including in court. What is your opinion on this matter?

See, in many courts, especially in the branches of the Revolutionary Courts in Tehran, generally there is no obstruction to the presence of a lawyer. However, in most of these courts, because they know that the lawyer defending the accused of political crimes is of the same kind as the accused (who are against him), they do not pay attention to his defense. On the other hand, don’t forget that when we say preliminary investigations, we don’t mean only the investigations that take place in security and intelligence agencies; rather, it includes investigations that take place in courts, with interrogators, judges, or in the presence of prosecutors. In all of these stages, they do not pay attention to the defenses and objections of the lawyer. The important issue is that at this stage, every cooked dish is served to you in court. So when the case is not properly formed, or if the formalities of the trial are not observed and this stage is passed without the presence of a lawyer, the

Remember this point that in the system currently present in Iranian courts and institutions, they fundamentally do not accept the presence of a lawyer in lawsuits, but they were forced to agree to the presence of lawyers. The gentlemen who were judges in revolutionary courts have repeatedly said, “A living person does not need a lawyer or guardian” (they also said this to me once). The reason is that in reality, these gentlemen do not believe in the role and presence of lawyers in society. They believe that lawyers defend injustice. While I, as a lawyer, do not defend injustice, I defend the accused based on their circumstances and the situation in which they have committed the crime. I am not saying that murder is a good thing; I am saying that if someone is accused of murder, we must see their living conditions, we must examine the circumstances in which they were raised, and see if there was any coercion or threat involved or not.

Dear Mr. Nikbakht, in your opinion, what are the criteria and standards of the judiciary for selecting approved lawyers? This question is raised because in this list, for example, names like Judge Hassan Tardast are also noticeable.

Regarding the specific person you mentioned, I must say that they are one of the judges who are fundamentally opposed to lawyers, to the extent that it was said they would kick lawyers out of the court. Another person on this list was the deputy of Mr. Mortazavi (the famous judge of the Iranian government). Naturally, such individuals cannot be defense lawyers for political defendants. However, as for what characteristics they possess, you should ask this question from the head of the judiciary or the individuals who introduced them. But in general, in my opinion, there are common characteristics among many of these individuals, and that is that they do not have any interest in issues such as a free press, independent parties, or freedom of expression, and they have also demonstrated this lack of interest in their actions. In addition, they have often deviated from the principle of impartiality, and for this reason, the head of the judiciary, their advisors, or the individuals who introduced them have chosen them. I

Moreover, regarding this clause and the published list, there are two other perspectives and as I am impartial and want to maintain my impartiality, I present these cases to you. One is that it is rumored that the head of the judiciary is also not in favor of this list and situation. They say that during the three years since the approval and implementation of this law, he did not announce a list but now, considering that they intend to change the current criminal procedure law – which is coming to an end – this list has been announced in order to create conditions for the removal of this clause.

Another viewpoint is that some believe we should not blame the judiciary for this issue, as the law was passed by the parliament and the judiciary has only enforced it. However, this viewpoint is raised while the judiciary has repeatedly stated that judicial laws are separate from other laws and it is the responsibility of the judiciary to interpret and refer the law to the relevant commission in the government, which prepares and presents the law to the parliament. In fact, the judiciary and its head are not like a government official such as the Minister of Education, Minister of Finance, or Minister of Oil, who may not be knowledgeable about legal matters. Therefore, there is serious doubt in such a belief. It can be said with certainty that the proposal or preparation of this law may have been done by the judiciary itself. We feel that there were bright spots in the new law and they wanted to turn these bright spots into darkness.

Do you think this provision cannot be considered as part of the efforts made to combat the independence of the Bar Association and its affiliation with the judiciary?

This clause is a manifestation of attack and assault on the Bar Association and the independence of lawyers. This clause specifically targets the reactions of institutions and organizations that have allowed an “outsider” to be present as a “lawyer” during the preliminary investigation stage.

Regarding the absence of a lawyer during the investigation stage, there were many protests. Previously, when the representative of the Human Rights Commission had also come to Iran, he had exaggerated three cases of human rights violations, one of which was the absence of a lawyer during these stages. The other two cases were related to long-term temporary detentions and the detainment of the accused in solitary confinement. The government, in order to respond, said that I am in the process of resolving all these cases. He said that I no longer have solitary confinement; I have created cells where instead of one person, I send two or three people (and well, this is no longer considered solitary confinement in appearance). Temporary detention is also usually not one or two years, but a maximum of six or seven months (which is also not considered long-term temporary detention by men). But the fact that an “outsider” is present and defends the accused against an “interrogator” from a security or intelligence organization

I do not know these people as individuals who have any belief in defending the rights of the accused. These people fundamentally do not believe in these issues and if, for example, they have given permission for a lawyer to defend the accused in preliminary investigations and court, it is to prove that they are good people, but their work is only for show at social gatherings. We should ask, what is the problem with this right existing for the accused? What is wrong with someone choosing a lawyer for themselves, with all the filters and legal regulations in place? These gentlemen believe that lawyers may disclose security issues. Personally, I have defended many people who have even had accusations of being combatants, but except for cases where I knew my actions were not against the law, I did not disclose anything. A lawyer is more committed to the law and rights than anyone else. Test this out. If someone acts against the law, then pursue them; don’t eliminate all lawyers.

Thank you for the opportunity you have given us to use the peace line.