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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-
          
        

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