Aadel Collection
Iran: Islamic Revolutionary Tribunals' Rules of Procedure (International Commission of Jurists – December 1980)
For the Rule of Law THE REVIEW INTERNATIONAL COMMISSION OF JURISTS EDITORIAL 1 HUMAN RIGHTS IN THE WORLD Bolivia 2 India 16 Chile 10 Iran 20 Haiti 14 Zimbabwe 23 COMMENTARIES UN Sub-Commission 26 Copenhagen Conference on UN Decade for Women 34 Human Rights Committee 35 ARTICLES Administrative Law: Civil and Common Law Systems J.F. Garner 39 Code of Marketing for Breastmilk Substitutes James E. Post and Edward Baer 52 JUDICIAL APPLICATION OF THE RULE OF LAW Filartiga v. Pei a. Torture in International Law 62 BASIC TEXTS Riobamba Charter of Conduct 64 No 25 December 1980 BP000143
All those concerned to uphold the prin- ciples of the Rule of Law were deeply shocked by the procedures of the Islamic Revolutionary Tribunals set up after the overthrow of the regime of the Shah. This concern was voiced by the Interna- tional Commission of Jurists in a press re- lease dated 12 March 1979 in the following terms: “It appears that these are specially creat- ed ecclesiastical tribunals having no basis in law. The defendants are tried not according to any pre-existing legal provisions, but ac- cording to general principles of Islamic jus- rice derived from the Koran. Consequently they may be held guilty of offences for acts which did not constitute penal offences un- der national or international law at the time when they were committed, contrary to article 11 of the Universal Declaration of Human Rights. In violation of the same article the de- fendant is denied “the guarantees necessary for his defence'. There is no formal charge or indictment, no time is allowed for the preparation of the defence, and the defen- dant is not entitled to the services or even the advice of a lawyer. There is no form of appeal from the de- cision of the tribunal, and a sentence of death is carried out within an hour or so without any opportunity for an appeal for clemency to be made or considered. A summary trial and execution of this kind is contrary to all recognised princi- ples of justice. Even in time of internal armed conflict, article 3 of the Geneva Conventions, to which Iran is a party, prohibits “the passing of sentences and the carrying Out of executions without previ- ous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indis- pensable by civiised peoples”. It may be added that the procedures of these tribu- nals also depart from the strict require- ments of proof and safeguards for the defence which are a marked feature of Islamic systems of law. It is deplorable that those who have overthrown a regime which they rightly criticised, as did the International Commis- sion of Jurists, for denying a fair trial to their prisoners, should now try their sus- pects under such wholly arbitrary proce- dures.” Three months later, on 17 June 1979, the Council of the Revolution approved regulations governing these tribunals and their prosecuting authorities (‘parquet'). These go some way to meet the world-wide criticisms, but there are still features which give rise to concern, and which appear to conflict with Iran's obligations under the International Covenant on Civil and Politi- cal Rights, to which it is a party. Jurisdictio'i of the Tribunals Article 2 of the regulations states that the Tribunals have competence to try cases of: (1) murder and massacre under orders or aiding and abetting the same with the purpose of consolidating the Pahlavi regime and repressing the struggle of the Iranian people; (ii) torture and imprisonment under or- ders or aiding and betting the same against persons who had fought (the Pahlavi regime); (iii) gross economic crimes, that is to say pillage of the public treasury or the ‘lapidation' of the national wealth for the profit of foreigners; (iv) conspiracy against the Islamic Re- public of Iran by armed action, assas- sination and destruction of institu- tions for the profit of foreigners; (v) armed attack, assault and battery, and manufacture and distribution of drugs. Other crimes are to be tried by military courts or the ordinary civilian courts. In this connection it may be noted that the new Iranian Constitution makes no men- tion of the Islamic Revolutionary Tribu- nals, and confers jurisdiction on the ordi- nary courts to try cases of a political na- ture (Principle 168). The Constitution also contains the principle of non-retroactiVitY of crimes (Principle 169). conviction can be admitted without trial in Perhaps it is time, after three decade 5 of strict legal form. If in the supreme interests experience, for the Law Comm , ssion or of the community the liberty of individuals some other body of experts scview the is taken away, an asylum must be provided entire legislation and its w e rng. Th/hen the of a different order from jail. This is of 1950 Act was introdu , the Hr e Minis. fundamental importance.” ter, Sardar Patel : “It requires to be Detention laws generally empower the closely examin whether a better substj. state to “regulate the place and conditions tute of a re or less permanent nature of detention.” It is only by an executive based o pecific principles can be brought order made under this provision that the in o ot.” Since then the Act has become detenu is lodged in a jail. But imprisonment anent, with changes in nomenclature, is one of the forms of “punishments” pre- but it has not been subjected to a careful scribeci by S.53 of the Indian Penal C . review in the light of experience in India Punishment without trial is patent] iola- and elsewhere. 2 tive of the Constitution (Art. 21 he Con- One safeguard which appears imperative stitution permits “preventi detention”, is legal representation before the Advisory but, surely, not imprison nt without trial. Board. It would, it is su ted, be open to the Finally, Section 3(3) of the Ordinance courts to strike n as invalid executive which enables a District Magistrate or a orders which rescribe jails as places for Commissioner of Police to exercise the de- lodging d nus, especially since the Su- taming power, under certain circumstances, preme ourt has ruled consistently that de- should be deleted. The power of preventive te on is not punishment and a detenu is detention should be exercised only by the ot a convict. Minister concerned. Iran Islamic Revolutionary Tribunals' Rules of Procedure 1) Sampat vs. State ofJammu & KashrnirA.I.R. 1969 SC 1153;Para 10. ‘ 2) Vide the Cardiner (1975) and Diplock (1972) Reports on Northern Ireland; Cmnd. 5847 and Cmnd. 5185, respectively. 2 'O
•1 Prosecutors A special body of prosecutors, known as the prosecutors (‘parquet') of the Islamic Revolution, have been created, with a pro- secutor and investigating magistrates for each province (Ostan), under the general supervision of a prosecutor-general in Tehe- ran. They are appointed by the Council of the Revolution, subject to the approval of the Imam, and are chosen from among the ‘jurists and judges of the Islamic Revolu- tion'. Preliminaty Proceedings The investigating magistrate has the nor- mal powers to summon and examine wit- nesses, to grant bail in appropriate cases, to order sequestration of the pros rty and monies of the accused (‘taking into account the needs of his family'). As a general rule no arrest can be made, nor any entry into a home for purposes of sequestration, without the prior written authorisation of the prosecutor. Where an arrest without warrant is au- thorised (e.g. danger of absconding) the prosecutor must be informed without delay. There are special provisions for accused persons who are members of the armed fbrces or law enforcement bodies, or per- Sons holding important political or admin- istrative positions. In such cases, the summons and arrest must be approved by a commission created by the Revolutionary Council, and the accused's superior officer must be inform- ed in advance. At the end of his investigations, the magistrate gives his opinion on the guilt or innocence of the accused to the prosecu- tor. Any difference of opinion between them on this issue is resolved by the tribu- nal. The prosecutor draws up the ir,- ict. ment. The Tribunals There is a Revolutionary Tribunal in each province, which may sit in several ‘chambers'. Each tribunal is composed of three judges, a President, who is a judge of Islamic Law (qadi shara'), a judge with ad- ministrative responsibilities appointed by the President, and a judge ‘who has the confidence of the people and who knows the needs of the Islamic Revolution', cho- sen by the Revolutionary Council or its delegate. Procedure The indictment must be communicated in writing to the accused or his lawyer at least three days before the trial. The accus- ed can appoint his lawyer. The trial is not to last more than a week, and at least 15 hours must be allowed to the accused and his lawyer to present his defence. Witnesses and experts and the accused can be summoned by the tribunal and com- pelled to attend. Where the accused fails to appear, he can be tried in his absence. After the reading of the indictment and the hear- ing of the defence, the tribunal proceeds to ‘any inquiry it considers necessary to estab- lish the legal guilt of the accused'. Any gap in the evidence will be referred back to the prosecutor. When the evidence is complete the tribunal, ‘after deliberation in confor- mity with the principles of Islam', gives its verdict. This may be a majority verdict if the President forms part of the majority. Otherwise, two Islamic judges must be ad- ded to the tribunal, and then the judgment of the tribunal is final. It is expressly stated that the verdicts are not subject to appeal or review. penalties The penalties are those fixed by Islamic Law (‘shara') and comprise execution, im- prisonment, banishment and confiscation of illegally obtained property, after liquida- tion of the accused's debts. If the offender has no lawful property., the state must maintain those persons who are recognised by the tribunal as being his dependents. Sentences of execution must be report- ed to the prosecutor ten days before they are carried out, and during this period the condemned person must be allowed to meet his family. Where possible the execu- tion is to be carried out at the place of the crime. The ‘special places of detention' of the prosecuting authorities are to be under the supervision of the local prosecutor of the revolution. Comment As will be seen these rules cover a num- ber of important safeguards. There are, however, several glaring omissions. There is no provision for the accused to be repre- sented by a lawyer during the preliminary investigations, nor for his right to see and confer with his lawyer in private before the trial (though it may be that this is ac- corded in practice). The minimum time allowed for the preparation of the defence appears inadequate, and it is not clear whether there are any procedures for ap- plying for an extension of time. The limita- tion of the maximum period of the trials to one week must be inadequate in some cases. Perhaps the most grave omission is the denial of any right of appeal or revi- sion. This assumes that the tribunals are incapable of error, which experience in all countries shows to be an unwarranted as- sumption. Moreover, courts which are not subject to appeal or review tend to become lax in the strict application of the law. This provision is a clear violation of Iran's obli- gation under Article 14(5) of the Inter- national Covenant on Civil and Political Rights. It is to be hoped that the work of the Revolutionary Tribunals will soon be ter- minated and all cases referred to the ordi- nary courts, which already have the neces- sary jurisdiction to try them under the new Iranian Constitution. “... It was been said that the only thing all the parties represented at the Lancaster House Conference were agreed upon from the outset was the name of the state — 23 Zimbabwe On 28 July 1980 the Minister of Jus- mitment tice of independent Zimbabwe, Mr Simbi Mubako, a former lecturer in constitutio - law, spoke to a group of yo bwe ans at a semina oshawa Training Cen following excerpts from his peech demonstrate his government's corn-