Practicing Law in Iran: Risks and Challenges
Introduction
On January 15, 2018, Ministry of Intelligence (MOI) agents arrested Mohammad Najafi, a lawyer from Arak, following his attempts to investigate the death in custody of a protester, Vahid Heidari.[1] Heidari had been arrested on December 31, 2017, in Arak.[2] The authorities would later claim that Heidari had committed suicide while imprisoned, a claim also made about the death of another detained protester held in Tehran’s Evin Prison.[3] Najafi, who did not believe the government’s account regarding Heidari’s suicide, sought to investigate the cause of his death. His efforts were cut short by his detention by the MOI agents, after which he was charged with eight separate crimes, including establishing a group with the aim of disturbing national security, which is punishable by up to ten years’ imprisonment. [4]
Zeynab Taheri, an attorney representing Mohammad Salas, a Gonabadi Dervish charged with murdering three police officers, was summoned to the Culture and Media Court on May 23, 2018, after she publicly released an audio recording of her client in which he had pleaded his innocence and stated that he had been tortured. Taheri was questioned regarding a possible charge of disseminating falsehoods and disturbing public opinion.[5]
As the examples above demonstrate, lawyers have become particular targets of the government, where they are seen to challenge its authority. The government has arrested and imprisoned lawyers, notably those who represent defendants charged with national security crimes. Furthermore, the Islamic Republic of Iran (IRI) regards the independent bar association as a threat, and consequently exerts significant control over legal practice.
This report first examines the background to the establishment of Iran’s judicial system. It then discusses the contours of an Islamic judiciary. Next, the report explains the impact of the 1979 Islamic Revolution on both the judiciary and the legal profession. Finally, it reviews the challenges of practicing law in Iran, and provides accounts of several human rights lawyers who have been subject to a range of conduct, from intimidation to prosecution, by their government in contemporary Iran.
Practicing Law in Iran: Risks and Challenges relies on interviews conducted with lawyers who have first-hand knowledge of the realities of practicing law in Iran. These accounts, supplemented with news reports and historical information, puts the situation of lawyers in its proper context. The report also provides an analysis of relevant laws aimed at regulating and controlling legal practice in Iran.
TABLE OF CONTENTS
1.2. The Modern Judiciary (ʿAdlīih)
1.3. The Islamic Judiciary (Quvvihyi Qażāʾīih)
1.3.1. De-modernization and Islamization
1.3.2. Shari’a Judges in Revolutionary Courts
2.1. The Iranian Bar Association Before the 1979 Revolution
2.2. Two Decade of Suspension and Governmental Control of IBA (1979-1997)
2.3. Attempts to Restore the IBA’s Independence (1997-2015)
2.4. The Judiciary Draft Bill of Attorneyship (2013)
2.5. The Amended Article 48 in the Criminal Code of Procedure (2015)
3.3. Forced Self Incrimination
4.1. Interviews with the Media
4.1.1. The Case of Javid Houtan Kian
4.2. Defendants from sexual minorities
4.3. Threats by The Security Forces
4.3.1. The Case of Nasrin Sotoudeh
4.3.2. The Case of Nasser Zarafshan
1. Background on the Iranian Judiciary
1.1. The Pre-Modern Judiciary
Since the early years of the Qajar reign, Iran’s judicial system was a combination of secular (urfī) and religious (sharʿī) courts, with each of them under secular and religious authorities, respectively.
The secular courts, which handled criminal cases and torts, were under the control of governors in different parts of the country.[6] Documentary evidence and confessions played major roles in their proceedings. Common punishments included the administration of the bastinado[7] for minor crimes, mutilation for robbery, and capital punishment for the most serious crimes, such as murder or treason.[8]
The religious courts, which investigated civil cases and were mostly based in large towns, were under the supervision of a chief judge (shiykh-al-ʾIslām), who was assisted by one or more judges subordinate to him.[9] In some cases, an Islamic scholar (mujtahid) also could directly adjudicate disputes between people. Like secular courts, confessions and witnesses’ declarative oaths (like qassāmih in murder cases) were the most admissible forms of evidence in religious courts. Although the judges’ services were free of charge in theory, they process of securing a judgment, which involved civil authorities, did often involve giving bribes.[10]
Finally, the chief of an extended family, the elders of a guild, and leaders of mercantile communities were all involved in informal adjudications of most conflicts, without resorting to the courts. There was no defined position for a professional third party to take part in the adjudication process. [11]
1.2. The Modern Judiciary (ʿAdlīih)
The 1906 Constitutional Revolution commenced a new chapter in Iran’s history, in which an ongoing struggle between democratization and socio-economic modernization on the one hand, and Islam on the other, was added to already existing deep-rooted conflicts.[12] Before the introduction of the first legal code by Mirza Hassan Khan Moshir al-Dawleh in 1911,[13] confusion and uncertainty over different procedures in religious and civil courts had prevented any meaningful improvement in the Iranian judicial system (ʿAdlīih).
After the Constitutional Revolution, however, not only did the desire for social justice and modernization result in new legislation, but the new profession of practicing law was also added to the judicial system. In 1911 a law was enacted to facilitate the presence of lawyers, licensed by the Ministry of Justice, in court.[14] This law was called the Law on Sharia Notaries Public and Justices of the Peace. Under this law lawyers could attend court either as a permanent practitioner (rasmī) or as a temporary litigator (muvaqqat). The former had formal legal training, while the latter did not. The latter group were, therefore, referred to as “occasional” lawyers, and they were only allowed to represent clients under specific conditions. . In that era most cases lawyers were “occasional.”[15]
Although the Ministry of Justice had the authority to discipline offending lawyers, those against whom allegations were made could easily escape state supervision, and for this reason, corruption was a major problem in the legal community.[16] Even when the Minister of Justice, Vosough al-Dawleh, tried to tackle corruption, many legal practitioners protested in Tehran, which caused him to become reluctant to take further steps.[17]
In 1914, Mohammad Ali Foroughi made considerable attempts to regulate the legal profession based on an imperial order that was issued, addressing the lawyers’ examination and licensing procedures. The practitioners, however, again resisted the proposed new changes, and stymied further regulations in 1915 and 1917.
1921 was the first year in which the Iranian Bar Association had the power to draft its own statute. However, this effort collapsed within a year due to internal disagreements.[18] In 1928 the Law on Sharia Notaries Public and Justices of the Peace was amended and renamed the Law on Principles of Judiciary Administration, Sharia Notaries Public, and Justices of the Peace.[19] It introduced new professional regulations that were narrower than the previous ones. Accordingly, the Ministry of Justice was authorized to license practitioners and withdraw temporary permission of practice under the supervision of the Disciplinary Court for Judges.[20]
Despite the clear provisions in the 1928 law, which anticipated the creation of an independent lawyers’ association, the Judicial Committee in the Iranian Parliament emphasized the role of the Ministry of Justice in drafting regulations concerning lawyers’ affairs, including the licensing exam. Under the new structure, an applicant could become a licensed lawyer in three ways: obtaining the law degree from an accredited law school, obtaining the certification of the Ministry of Justice’s school, or having sufficient experience as a judge in the ʿAdlīih. [21]
In 1930, lawyers’ professional situation changed when Ali Akbar Davar actively supported the creation of an independent bar association, albeit through the Ministry of Justice. Davar, who was the Minister of Justice in the early years of Reza Shah’s reign, made fundamental changes to Iran’s judiciary system as well. Later, members of the bar suggested that Davar should be the first president of the newly established bar association, which he accepted.[22] Although the new bar association was not independent from the Ministry of Justice, its structure improved and evolved into the 1952 independent association. The announced purpose of the 1930 association was training “good lawyers” as capable components of the modern judiciary.[23]
1.3. The Islamic Judiciary (Quvvihyi Qażāʾīih)
1.3.1. De-modernization and Islamization
Upon its creation, the Islamic Republic started “to eradicate the foundations of a 70-year modern and secular trend of legislative evolution which followed the Constitutional Revolution of 1906.”[24] The secular judiciary and the independent Bar Association were to be targeted. The founder of the Islamic Republic, Ayatollah Rouhollah Khomeini, had vocally opposed modernizing efforts such as granting women the franchise during the Pahlavi era. Furthermore, he believed in Velayat-e Faqih, or Guardianship of the Jurist, which meant that a senior Shia’ cleric should have the final say in all matters of state. Thus, the revolutionary government that came into power in 1979 embarked on a mission to turn back
During the first months after the 1979 Revolution, the progressive Family Code, which guaranteed many rights for women – including the right to divorce and having custody of the children – was abolished and substituted with an approach directed towards what has been called “women’s position and dignity in Islam.”[25] In addition, women were addressed as the lesser gendern the subsequent legislation that provided authorities with high degree of arbitrary discretion in their dealings with women. For instance, the note to Article 638 of the Fifth Book of the Islamic Penal Code provides that, “[t]he woman who has no Islamic hijab in the public shall be sentenced to ten days to two months in prison or shall be fined for fifty thousand to five hundred Rials.”[26] While hijab has different definitions in Islamic literature, law enforcement officials and Basij militia warn or arbitrarily detain women for failure to observe adequate hijab.
The Pre-Revolution Penal Code was the next to be changed so dramatically that “the long-established right to defence in criminal courts was seriously undermined.”[27] A penal code passed in 1982 re-introduced the abolished provisions of retribution and harsh corporal punishments such as stoning, floggings, and amputations.[28] Moreover, the age of criminal responsibility decreased to nine years of age for girls, and fifteen years of age for boys. As a result, the number of juvenile executions for accused individuals who committed crimes when they were under 18 increased considerably, even after Iran ratified the Convention on the Rights of Child in 1994.
Notwithstanding, as Giti Pourfazel a prominent human rights attorney, described, “the regime’s attempts to Islamize the entire Judiciary were lost largely, because they did not anticipate the difficulties of adopting Sharia law into a well-settled civil law system that had inherited modern concepts of law and justice from the 1906 Constitutional Revolution.”[29]
1.3.2. Shari’a Judges in Revolutionary Courts
Under Sharia law, as practiced in Iran, a judge’s “knowledge” can be a substitute for evidentiary proof in some circumstances. Article 211 of the Islamic Penal Code declares,
Knowledge of the judge is defined as a certainty resulting from manifest evidence in a matter brought before him. In cases where a judgment is based on the knowledge of the judge [as the proof of the offense], he is obliged to stipulate in the judgment the manifest circumstantial and hearsay evidence that has been the source of his knowledge.
Note- Means such as an expert opinion, examining the place, local inquiries, statements of people aware [of an issue], reports of law enforcement officers, and other circumstantial and hearsay evidence that typically results in knowledge [about a matter] can be referred to as sources of the knowledge of the judge. In any event, a mere perceptive knowledge that typically does not result in the knowledge of the judge cannot be regarded as a deciding factor in delivering a judgment.[30]
This practice should be distinguished from relying on evidence to come to a conclusion. Rather, a judge’s knowledge is a category of evidence in itself. Due to this situation, judges often rule differently in cases with identical questions of law and fact.[31]
According to many of the lawyers interviewed for this report, judges in Revolutionary Courts have always had close connections with security forces to the extent that security officials determine what sentences the defendants should receive. Indeed, those interviewed indicated that the suppressive nature of the government, together with the overbroad and vague language of the Code of Criminal Procedure (CCP), have created medieval conditions in Revolutionary Courts. Ms. Giti Pourfazel, an attorney in Tehran, describes Revolutionary Courts as follows,
The courtrooms are generally small, as only a limited number of people can attend the trial, including the judge, the secretary of the court, the deputy of the revolutionary prosecutor, the defendant, his or her lawyer(s), and of course security agents and investigators. I often objected to the presence of security agents in the courtroom. Just imagine that how much their presence could be intimidating and inconvenient for the lawyer who must defend the hopeless defendant. More importantly, how much their presence is threatening to the defendant? They intentionally furnished the courtroom with a few chairs and put the lawyer’s chair completely separated from the client’s chair. This is not an acceptable and professional court decorum. How could I negotiate about the ongoing trial with my client, while she/he sits far from me? The judiciary officials are doing whatever is possible to make the court’s environment stressful and inconvenient. [32]
Since the years immediately following the 1979 Revolution, judges have had hostile attitudes to the presence of defense attorneys in the courtroom, and have tried to make the lawyers’ interventions difficult and impractical.[33] According to many lawyers interviewed for this report, judges barely observe the professional standards of conduct in the courtroom. Naghi Mahmoudi, an attorney from Tabriz who represented more than 80 clients charged with political crimes, recounts that “a judge insulted me, using very hostile, vulgar, and defamatory words against me when I objected to the court’s procedures.”[34] Practices such as not providing lawyers with a copy of the court opinion, or not allotting adequate time for defense, are other ways in which judges hinder attorneys’ efforts.
Not surprisingly, female lawyers have always been confronted by more barriers in courts. Although women can serve as consultant judges in family courts, they are not allowed to sit as a judge in Public or Revolutionary Courts. Mehrangiz Kar, a prominent Iranian lawyer and human rights activist currently living in exile, recounts,
Once in a trial, when I was about to consult with my client who was a man, the old Sharia judge yelled at me that ‘You woman! Get away from this strange man! You’re unmarried!’ That was an extremely shameful moment for me to the extent that I left the courtroom without even asking about my client’s case. Later, my client apologized for the inconvenient situation which was made by very disrespectful behavior of that Sharia judge.[35]
Finally, a lack of accountability has contributed to the dysfunction of the Iranian judicial system. Although the High Disciplinary Court of Judges is theoretically in charge of prosecuting offending judges, even Iranian officials admit corruption within the judiciary. For instance, a report by the judiciary found that there were 344 instances of bribery within a one-year period in 2016-17.[36] Moreover, the Revolutionary Courts and the Special Court for the Clergy are not within the scope of the constitutional provisions concerning the Judiciary. For this reason, judges perceive themselves only accountable to the Head of the Judiciary.[37]
2. The Background of the Iranian Bar Association
2.1. The Iranian Bar Association Before the 1979 Revolution
In the years after the Second World War, Iranian lawyers continued their attempts to establish a professional association independent from government intrusion. They constantly negotiated with different judicial officials and submitted multiple requests to the government.
Eventually, in February 1952, Prime Minister Mohammad Mossadeq signed the Bill of the Independence of the Iranian Bar Association (“IBA”). After approving the Bill in the Iranian Parliament, the IBA was established as an independent professional body. According the “Law Establishing IBA”,
- IBA has the authority to elect its own independent board of directors;
- IBA is independent in managing its financial affairs;
- IBA’s board of directors can grant licenses and disbar offending lawyers;
- Only the Lawyers Disciplinary Court is authorized to rule on allegations involving offending lawyers;
- IBA has the authority to hold the bar exam;
- IBA should introduce a list of pro bono lawyers to the judiciary;
- IBA should monitor the professional performance of its members.[38]
This law remained in force until the 1979 Revolution.
2.2. Two Decade of Suspension and Governmental Control of IBA (1979-1997)
In the turmoil of the 1979 Revolution, the IBA did not remain immune from intrusion by the new revolutionary government. The revolutionary fever having broken, Iranian society experienced a long era of political violence, characterized with a high number of arbitrary detentions, summary executions, and professional purges.
In June 1980, the Revolutionary Council passed a single-article law about revolutionary purges in the IBA.[39]According to the “Law on Purges in the Iranian Bar Association,”[40] the council which was put in charge of the Ministry of Justice was empowered to introduce five eligible lawyers to the Revolutionary Council. The five-member commission was to conduct purges at the IBA.[41] Subsequently, the IBA board’s elections were suspended.
The purging commission was to act under the supervision of the Revolutionary Council,[42] and was supposed to be in charge of “completing the desired ideological refinement among lawyers”[43] for only six months. The purging commission was not formed, however. Instead, the Revolutionary Court took charge of revoking the licenses of attorneys it did not find desirable. While Article 7 of the Law Establishing Bar Association provided that “only Lawyers’ Disciplinary Court shall impose sanctions against delinquent lawyers, including disbarment,” by 1983, the Revolutionary Courts had revoked the licenses of 141 lawyers.[44]
In June 1981, the Iranian Parliament impeached President Abolhassan Bani-Sadr and discharged him from the presidency. In the aftermath of his removal, some of the President’s advisors were arrested, including Manochehr Masoudi who was a member of the IBA’s board of directors. Masoudi was charged with being a member of network of individuals engaged in illicit transfer of foreign currencies and documents abroad, receiving bribes from families of “counter-revolutionary” prisoners and attempting to secure their release, receiving bribes in return for granting government contracts, abuse of political office, and collaborating with officials of the former regime.[45] He was convicted and executed shortly after his trial. Additionally, Abdol-Hamid Ardalan and Mohammad Taghi Damghani, two other members of the IBA board of directors, were imprisoned for several years as part of the crackdown on the IBA. Several IBA board members went into exile.[46] The office of the IBA, located at the Ministry of Justice building, was raided, and its furniture and files were taken to the building’s courtyard.[47] These items were later taken to a new office.[48]
Nevertheless, the IBA continued to function, albeit in a different capacity. In May 1984, Mr. Goodarz Eftekhar-Jahromi was appointed as the supervisor of the IBA. According to Abdolkarim Lahiji, a member of the IBA board of directors who years later was elected as the president of the International Federation for Human Rights (FIDH), Eftekhar-Jahromi “took part in the Supreme Judicial Council’s conspiracy to take over the [Iranian] Bar Association and eliminate its independence.”[49] Eftekhar-Jahromi held this position until 1997. Eftekhar-Jahromi was also a member of the Guardian Council for two six-year terms.[50]
2.3. Attempts to Restore the IBA’s Independence (1997-2015)
After Mohammad Khatami took office in 1997 and a more open political climate began to take root, the IBA was allowed to hold semi-independent elections for the first time in two decades. The ongoing clash and conflict between the Judiciary and the IBA, however, led the government to neutralize the IBA’s independence through establishing a parallel association of lawyers (the Center of Legal Advisors of the Judiciary).
In 1997, parliament enacted the “Law on Conditions for Obtaining Attorneyship License”. This law delineated the required qualities for a person applying to obtain a license to practice law. Acceptance of the Guardianship of the Jurist (Velayat-e Faqih) is one of the required criteria.[51] Furthermore, the High Disciplinary Court of Judges was authorized to approve the eligibility of candidates and supervise the elections of the IBA’s board of directors.
During the Ahmadinejad presidency, pressures against the IBA considerably increased. In 2010 elections for the IBA board of directors, about half of the candidates were rejected by the High Regulatory Council.[52]
In a televised debate during his first presidential campaign, President Rouhani famously declared, “I am not a colonel, I am a lawyer,” which was meant to indicate that he was committed to the rule of law, not suppression.[53] In March 2017, he became the first president to attend the ceremony marking the IBA’s establishment.[54] In this event Rouhani stated that lawyers should enjoy as much independence as judges. Despite his statements in support of the rule of law and the independence of the bar, under the Iranian Constitution the president lacks the power to enforce his stated policies with respect to judicial matters.
The most recent elections for IBA board of directors were held in March 2018. The High Disciplinary Court of Judges disqualified 28 attorneys from running in these elections. Among them were Qasem Sholesadi, a former member of the Iranian parliament, Farideh Gheirat, a former member of the Lawyers’ Disciplinary Court, and Abdolsamad Khorramshahi, a prominent criminal attorney.[55]
The Legal Challenges of Practicing Law
2.4. The Judiciary Draft Bill of Attorneyship (2013)
According to Article 212 of the Fifth Economic, Social, and Cultural Development Plan of the IRI, the Judiciary was assigned to the task of preparing the Bill on Attorneyship and submitting it to parliament.[56]
In 2011, the details of the proposed “Bill on Attorneyship” was leaked to the public. This bill, which was prepared by the Judiciary with no consultation with the IBA, seriously undermined its already feeble independence. The provisions of the new bill were almost identical with the “Executive Regulation of the Law of the Bar Association’s Independence,”[57] which were never implemented after the IBA’s objections.
The 2013 “Bill on Attorneyship” introduced the “National Council of Attorneyship” with responsibilities which included coordinating the executive procedures of provincial bar associations; making policies to improve trainees’ and attorneys’ professional knowledge; making policies to protect the attorneys’ right to organize syndicates; making plans for expansion and improvement of attorneyship and make it accessible for people; suggesting fees for legal advice services; and holding the public entrance exam for attorneyship.[58]
In addition, the 2013 bill provided that “the adherence of applicants for attorneyship licenses and membership in the National Council of Attorneyship and provincial boards of directors with the requirements of this law,” is subject to the Supervisory Commission’s inquiry. [59] The Supervisory Commission, all the members of which must be approved by the Head of the Judiciary, was designed to monitor the decisions made by the National Council of Attorneyship[60] and authorize or suspend the license to practice law.
Although the 2013 Bill anticipated the appeal of the Supervisory Commission’s decisions,[61] its proposed heavy supervision practically deprived the IBA of its authority and independence. For instance, Article 41 introduced significant limitations for applicants of the bar exam to prove their eligibility. Accordingly, atheists, political opponents, and individuals who seem to have ‘unusual relations with foreign associations or groups’ were not allowed to sit for the bar exam.
Moreover, the Head of the Judiciary, the Head of the Supreme Court, the Attorney General, the Head of the General Inspection Office, the Prosecutor of the Disciplinary Court of Judges, the Ministry of Intelligence, and Supreme Audit Court were all authorized to monitor lawyers’ performance.[62]
2.5. The Amended Article 48 in the Criminal Code of Procedure (2015)
The new Code of Criminal Procedure (“CCP”) went into effect in June 2015. While the original draft contained some improvements, the amended Article 48 of the CCP was a huge setback for the rights of defendants and the independence of Iran’s lawyers because of its preferential treatment of lawyers picked by the Judiciary.
According to Article 48 in the first draft, “after the arrest, the suspect is entitled to have an attorney. The attorney can have a meeting with the suspect that should not be more than an hour. At the end, the attorney may submit his or her written notes to be included in the case.”[63]
In the final version of the CCP, Article 48 was enacted as follows:
When a suspect is arrested, he or she can request the presence of an attorney. The attorney, observing the secret nature of the investigation and the negotiations between the parties, should meet with the suspect. At the end of the meeting, which should not last more than one hour, the attorney may submit his or her written notes to be included in the case file.
Note – In cases of crimes against internal or external security, and in cases involving organized crime, where Article 302 of this code is applicable, during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the head of the judiciary. The names of the approved attorneys will be announced by the Head of the Judiciary.[64]
Crimes mentioned in Article 302 are (a) crimes punishable by death, (b) crimes punishable by life in prison, (c) crimes punishable by amputation or intentional crimes against bodily integrity of others punishable by one-half or more of a full person’s diya, [65](d) tazir[66] crimes punishable by ten years’ imprisonment or more and (e) political and media crimes.
The note to Article 48 significantly curtails the right to have access to counsel for individuals accused of most serious crimes as well as political prisoners. The Note to Article 48 effectively means that a defendant cannot pick an attorney of his or her choosing during the investigation phase of the judicial process. Furthermore, Article 48 creates two classes of attorneys: those who receive preferential treatment by the judiciary and those who not. This erodes the IBA’s independence by weakening the importance of adhering to its regulations and procedures; instead the Head of the Judiciary makes decisions regarding qualifications of lawyers for the most sensitive cases. This process is quite detrimental to the interests of defendants, as attorneys have a significant disincentive to represent their clients in the most effective way they can. To be placed on the list of pre-approved attorneys, a lawyer will likely have to refrain from acts such as speaking with the media.
An Iranian lawyer who wants to remain anonymous out of fear of government retaliation stated:
How could I argue effectively against a prosecutor who actually controls my position in the case? Such control goes beyond all professional boundaries and may result in my disqualification at any time. Moreover, it is not logical at all. How could I defend my client when I’m always concerned about my own position and my license? On the other hand, if they put my name on the list of approved lawyers, is that a shame?[67]
As Leila Ali Karami, an Iranian human rights lawyer and Executive Director of the Centre for Supporters of Human Rights describes:
There are no professional criteria for being in the list of approved lawyers by the Judiciary. You just need to be ‘a desirable lawyer for the regime,’ and they will select you. Such [a] system, not surprisingly, would result in more corruption and violation of people’s rights. [68]
Ayatollah Sadeq Larijani, the Head of the Judiciary, cited security concerns to justify Article 48, arguing that only trusted attorneys should be allowed to work on cases that are of a sensitive nature. Responding to the criticism that this approach runs counter to the presumption of innocence by excluding qualified attorneys who have not violated any rule, Ayatollah Larijani stated, “Who says that presumption of innocence applies when it comes to keeping the Islamic Republic’s secrets? Here caution, and not presumption of innocence, is applicable.”[69]
3. The Practical Challenges of Practicing Law
In this section of the report real, practical problems faced by attorneys who have worked in Iran will be discussed. Relying on testimony of these lawyers, the extent to which Iranian authorities can hinder defense attorneys will be examined. Mohammad Moghimi, a lawyer who represented a young Iranian cartoonist, Atena Farghadani,[70] was charged with “illegitimate sexual relationship short of adultery” when he shook his client’s hand as they met in prison;[71] under Islamic law a man and a woman who are not married or have blood relationship should not touch each other. Before this incident, Farghadani was threatened not to appoint lawyer known for taking human rights cases. Otherwise, she was told, she would receive a longer sentence. This case provides a glimpse into the difficulties that lawyers have to struggle with in the Iranian judicial system.
3.1. Access to the Client
While an effective defense requires having regular meetings with the client, lawyers often have no chance to read their clients’ cases or even meet them before their trial. According to the lawyers interviewed for this report, even during the customary brief meetings before the trial, the presence of security agents or prison guards restricts their privileged conversation with their clients. One lawyer noted,
Due to the broad jurisdiction of Revolutionary Courts, many cases are sent there.[72] In the main entrance of Revolutionary Courts, security guards check your identity and ask the specific chamber that you need to go. Then, they ask the judge’s office and only if they confirm, you would be allowed to step into the courthouse. You have to go through a more difficult process to meet your client in the prison. Even after the completion of investigations, the prison officials could block your access to your client at their discretion. In late 1990s, lawyers had less difficulty to meet their clients in prison. However, the conditions changed dramatically after the disputed 2009 presidential elections.”[73]
As Nasrin Sotoudeh, a prominent human rights lawyer who was herself imprisoned describes, she could never meet her clients who were sentenced to death before their sentences were to be carried out in prison. She recounts:
Revolutionary Courts don’t need any evidence in their review, as they follow what security agents dictated for them. Even in my own trial, the judge told me that his sentence is solely based on the security agent’s report, in which they mentioned what I did in the past and asked for a specific punishment for what I did! There was no evidence whatsoever in the case.”[74]
3.2. The Value of Evidence
Nemat Ahmadi, a lawyer and university professor in Tehran, describes the value and impact of evidence as a “joke” in the judicial system. He states,
It doesn’t matter to what extent the submitted evidence is admissible, especially in Revolutionary Courts in which most judges do not consider lawyer’s defenses at all. Because it is very common that security agents indeed dictate the sentences.[75]
Confessions are the admissible evidence most heavily relied upon in Iranian courts. Islamic law, which is at the core of Iran’s legal system, puts great emphasis on eye-witnesses and confessions. In the absence of eye-witnesses in many cases, particularly when politically motivated national security charges are brought against defendants, the authorities have to resort to harsh interrogation tactics and torture to extract confessions in order to secure convictions.
Access to information is a constant issue facing lawyers. As Leila Ali Karami explains, “The biggest challenge for lawyers in Revolutionary Courts is having decent access to the case file materials. Lawyers not only do not have access to the entirety of the documents, but they also cannot make copies.” [76] Ahmad Hamid, defense attorney to many Iranian Arab activists, describes that he only could take brief notes from his clients’ cases, because many sections (including transcript of investigations) were not accessible to him.[77]
3.3. Forced Self Incrimination
In the Iranian Judiciary, judges rarely inspect the credibility of confessions extracted during investigations, let alone set them aside. According to the standards of Shari’a law, a valid confession must be made in front of the judge. Therefore, confessions obtained outside the courtroom shall not be admitted. However, this is rarely practiced. As an Iranian lawyer describes:
The defendant’s confession is the main body of the expert report provided by security agents. These very detailed and lengthy reports have critical impact on political cases. Security agents cite the case facts as they understood them. Many times, the judge accepts these fictional facts as the defendant’s confession. At the end of these reports, the security agents ask for the punishment that they believe should be issued. Considering that the government is a party in political cases, we have no chance of having a fair trial for our clients. Moreover, judges are not independent, as they are appointed by the Head of the Judiciary and are accountable only to him.” [78]
4. The Consequences of Defending Prisoners of Conscience
4.1. Interviews with the Media
In the absence of free media and democratic processes, lawyers and human rights activists are among the few reliable resources to report on the human rights situation inside the country. Lawyers who speak publicly about their clients in politically sensitive cases are aware that they could be subject to harassment or persecution by the government. A young Iranian lawyer who does not want to reveal his identity believes that a lawyer in political cases has no option other than to give an interview to international media, because “it would guarantee having access to the client in the detention center” as it puts international pressure on the Iranian authorities.[79] Another lawyer recounts,
When the judge in Revolutionary Court pays no attention to your defenses, you have to be your client’s voice and speak on behalf of him or her. Giving an interview to the media would increase the expense of denying your client’s right by the Judiciary and would inform society about the ongoing litigation on a specific case. It has been proved that the pressures of public opinion would force the Judiciary to respect human rights norms, because otherwise, the system would find itself against the people’s will.[80]
Mr. Nemat Ahmadi was banned from practicing law because of his articles in Iranian reformist newspapers and his interviews with international media. Mr. Ahmadi’s deprivation of his right lasted for five years, while before that, he was actively involved in defending prisoners of conscience. In addition, the High Disciplinary Court of Judges rejected his eligibility to run for the IBA board of directors’ elections. Other human rights lawyers including Shirin Ebadi[81], Abdolfattah Soltani[82], and Mohammad Seifzadeh were also deemed to be ineligible.[83]
Some Iranian lawyers believe that an effective and uncontroversial defense of political defendants would not necessarily result in subsequent difficulties for the lawyer. They all agree, however, that giving interviews to international media about the ongoing case would absolutely put the lawyer in peril. For this reason, many lawyers prefer not to publicly talk about their cases. Leila Ali Karami states,
Until a case has not been publicly discussed the lawyer will be faced with only the usual difficulties of practicing law in the Judiciary, such as the hostile attitude of judges or massive corruption. But once a lawyer breaches her silence and openly speaks up about her case [of course to the extent that is allowed by the law], she would be immediately targeted from all directions. So before doing an interview, you must make yourself ready for its consequences.[84]
Although the IPC does not designate giving interviews to the international media as a crime, the security forces perceive it as a suspicious activity subject to extra scrutiny. According to an Iranian lawyer who wishes to remain anonymous, the government’s red line is doing an interview with Iranian media in diaspora. He recounts that,
After a complaint was filed against me, I was arrested and detained for about a month. It is to be noted that I received no notice about this complaint before my arrest. During the interrogations, the security agents really tried to extract a commitment from me for having no communications with foreign media, and particularly, Iranians media and organizations. They stated that I will be released from prison right after declaring my pledge. I spent a month in prison only for informing the public about the miserable conditions of my client. [85]
Judiciary officials often claim that the lawyers who speak with international media receive financial remuneration from them. In her interview with IHRDC Nasrin Sotoudeh said,
During one of my interrogations, the security agents frequently asked me how much I’ve received for my interviews with foreign media. It was tragically funny that they accused me of accepting money for my interviews about the cases that were mostly pro bono. As their questions were very offensive to me, I decided not to answer them. [86]
Mohammad Oliaei Fard, a human rights lawyer, used to be interviewed by international media about his cases when he was still practicing law in Iran. After the execution of one of his juvenile clients, Behnoud Shojaee,[87] Oliaei Fard criticized the execution during his interviews with BBC Persian and Voice of America. His client was executed because of a crime that he committed when was under the age of 18. Shortly thereafter, Mr. Oliaei Fard was charged with disseminating propaganda against the Islamic Republic and sentenced to one year in prison. He was arrested in the courthouse right after the trial of one of his clients, and was transferred to Evin prison directly after. He stated,
After I was released in 2010, the prosecutor summoned me once again. Among other accusations, I was charged with cooperating with human rights organizations and interviewing with foreign media. They showed me about ten boxes of documents allegedly containing the transcripts of my interviews with different media. This time I did not introduce myself to the court to be jailed. I left the country.[88]
Despite all these difficulties and barriers, Nasrin Sotoudeh believes that human rights lawyers are society’s eyes and ears. She declared,
We have made the job of suppressive security agencies harder. Even my interrogators told me so. If human rights lawyers were not active, there was a high risk of repetition of 1980s massacres in past years.[89]
4.1.1. The Case of Javid Houtan Kian
Many lawyers have experienced threats and harassment from security forces and law enforcement after they gave interviews to foreign media. The case of Javid Houtan Kian, however, is exceptional as he was detained, brutally tortured, and banned from practicing law after his interviews about his client, Sakineh Mohammadi Ashtiani—a woman who was sentenced to stoning to death for allegedly committing adultery and murdering her husband.
After Mohammad Mostafaei, Ashtiani’s first lawyer, was forced to leave the country in 2010, he gave several interviews to international media about the her case. To punish this unwanted attention, the Tabriz Prosecutor General launched a new investigation into the accusation of “illegitimate sexual relationship,” despite the defendant’s case and punishment already having concluded. Sakineh Mohammadi Ashtiani was interrogated again and tortured to confess to adultery and murdering her husband. Shortly thereafter, the stoning sentence was affirmed by the Supreme Court.
Javid Houtan Kian, who replaced Mostafaei as Sakineh Mohammadi Ashtiani’s defense lawyer, sought to publicize his client’s innocence, and the unjustness of the sentence, through his interviews with the media. In October 2010 he was arrested in his law office in Tabriz while two German journalists were there to interview him about the Ashtiani case. Javid Houtan Kian described this incident in his interview with IHRDC,
The security agents raided my office and put me and the two journalists under arrest. After that, they destroyed everything in my office and sealed its door. After five years, my law office and my apartment are still being sealed. When I asked the security agents about the search and seizure warrants, they told me they were issued over the phone. Surprisingly, and during the interrogation, they asked me to write down my accusation or what I believe I committed
The two German journalists, Ms. Ashtiani’s son, and I were in the Ministry of Intelligence detention facility in Tabriz for several days. Eventually, I was charged with apostasy, insulting the Prophet Muhammad, and waging war on God [muharibih] through inviting people to riot in the social media. My formal accusations, however, were cooperation with anti-government groups, and possession of counterfeit ID cards. They transferred me to Evin prison in Tehran, in which I was held in solitary confinement for fourteen months. I passed the rest of my sentence in Tabriz prison. Although I suffered a lot, fortunately the stoning sentence for Ms. Ashtiani was reversed.” [90]
Naghi Mahmoudi, Javid Houtan Kian’s lawyer, learned about his miserable conditions in Tabriz prison during their first meeting. Through Naghi Mahmoudi’s assistance, Javid Houtan Kian was able to send a public letter from prison and describe the physical and psychological torture that he had suffered.
4.2. Defendants from sexual minorities
In Iran’s judicial system, representing a homosexual defendant could potentially put the defendant’s sexual partner in peril. Given that the IPC criminalizes consensual same-sex relations,[91] the passive partner in cases of sodomy may resort to the claim of forced rape as a defense. Otherwise, if the judge concludes that the parties had a consensual relationship, both parties in the danger of being executed.[92]
For this reason, the passive partner has always had a considerable incentive to claim he has been raped. In this situation, the defense attorney’s argument would result in execution of other party.[93] Hossein Raeesi, a criminal defense lawyer explained,
When the attorney argues the forced rape defense or the consensual relationship defense, serious questions about the ethical conduct and the lawyer’s professional responsibility are raised. How could we argue in favor of the other party’s execution? The social taboos against homosexuality and the government’s will to deny homosexual rights have intensified abuse of the IPC’s shortcoming. [94]
4.3. Threats by the Security Forces
As is common practice in Revolutionary Courts, judiciary officials usually warn defendants against appointing known human rights lawyers or doing interviews with the media. In return, the officials promise defendants that they will receive milder sentences. Mousa Barzin Khalifehlou, a lawyer in Tabriz, stated,
In one of my cases, although my client was severely tortured during his detention in Tabriz Prison, judiciary officials threatened him to stop making allegations against officers who had tortured him. In turn, they promised to disregard the charges against him. They threatened me as well but in a different way. I met with the officers who were accused of committing torture on several occasions. During our meetings, they frequently showed me aggressive body language (showing their pistols for no reason), and also tried to bribe me at the same time.
In a similar manner, I was threatened by security agents and judiciary officials in other cases. They often advised me to not accept high profile cases or tried to intimidate me by mentioning lawyers who were punished severely like Javid Houtan Kian or Abdolfattah Soltani. Their conclusion was always the same thing: ‘It could happen to you as well!’”
In addition to all these cases, I was threatened directly by judges. The Head of the Ardabil Revolutionary Court, Judge Hassanzadeh, told one of my colleagues that ‘he will issue my arrest order if I step into his court.’ I eventually went to his courtroom because of my client’s case, but he refused to approve my attorneyship on that case. When in response to his question I mentioned that I am doing human rights cases, he became extremely furious and asked the court secretary to record my answer as ‘this defense lawyer insists that Ms. Shirin Ebadi has sent him here!’ Finally, he called security agents to come and arrest me inside the courtroom. [95]
4.3.1. The Case of Nasrin Sotoudeh
Nasrin Sotoudeh is one of the most prominent human rights attorneys in Iran. She is a member of the “Human Rights Defender Center,” and the founder of the “Child’s Rights Association.” She states,
Many times, judges warned me that if I continue my way in defending political defendants, they will arrest me. When I decided to be a human rights lawyer, I made myself ready for its costs. Two months before my arrest, I received threatening phone calls to stop representing Ms. Shirin Ebadi. I didn’t do so, as I was her lawyer.”[96]
In September 2010 security agents searched Sotoudeh’s office and home and seized some of her family’s belongings. When Sotoudeh went to the prosecutor’s office, she was arrested and charged with conspiring against national security and disseminating propaganda against the Islamic Republic. She was sentenced to eleven years in prison. In addition, she was barred from practicing law. She was also banned from leaving the country for twenty years. The Court of Appeals later reduced her sentence. Despite the reduction, Mahnaz Parakand, a lawyer who represented Sotoudeh, was faced with the same accusations and eventually forced to leave the country. Sotoudeh stated:
During my interrogations, the security agents frequently asked: ‘Why are you working on political cases,’ or ‘Why are you defending street protestors?’ I responded that people only used their constitutional right to protest peacefully. But I was silent in response to their illegal or offensive questions. Even after the interrogator threatened me that he will accuse me of muharibih [waging war on God], I responded that I did not care. Sometimes, they asked me to not practice law; sometimes they asked me to be their informant in the office of Mr. Soltani.[97]
During her detention, Ms. Sotoudeh resisted illegal practices of the prison officials such as forcing the detainees to wear blindfolds, staying in front of a wall for long hours, and wearing the chador.[98] Also, she went on hunger strike several times:
For the first time, I started a hunger strike in protest to the illegal seizure of my family’s properties. During that time, I was in solitary confinement. For the second time, I went on hunger strike to protest the uncertain fate of my case and requested to be released on bail. This time, the hunger strike continued for 23 days. At that time, I was informed that my father passed away, but I was not permitted to attend his funeral. Only after prison officials promised me that they would consider my requests I stopped the hunger strike.
However, prison officials never fulfilled their promises. As a result, I started my third hunger strike. Not only they did not pay any attention to my requests, but they also took me to court for trial while I was on hunger strike. Before that, I had only one meeting with my family and my lawyer.
The hearing was in camera and security agents were present in the courtroom. In protest to such circumstances, I did not respond to the judge’s questions. Eventually, the judge ordered the security agents to leave the courtroom and postponed the hearing to the next week. Although I stopped my third hunger strike on my family’s request, I started a new one in protest to the pressures against my family and the prison conditions.”[99]
Before going to the Court of Appeals, I was interrogated again and asked to cooperate with the Ministry of Intelligence. The court reduced my sentence to six years in prison, and subsequently I was transferred to the public ward. Despite this, the officials frequently asked me to pledge to cease practicing human rights law, and, in turn, they would promise to release me immediately.
Of course, I did not pay attention to their promises and requests. Instead, I focused on the prison’s conditions. First, I refused to wear chador while it was obligatory for all female prisoners. Eventually, the prison officials exempted me from this dress code.[100]
In 2013 they took me to the Iranian Bar Association headquarters in Tehran to attend the Disciplinary Court’s hearing. I was taken there in handcuffs. I held my hands up during the time I was in the courtroom. In the summer of 2013 I went on my last hunger strike in protest to the seizure of the passport of my 11-year-old daughter. Fortunately, they gave back the passport and stopped other pressures against my family, and I ended my hunger strike after 49 days. Unfortunately, I lost my mother on those days, but I was not given any chance to meet her before she passed away.[101]
After Sotoudeh was released from prison in 2013, she initiated another protest in order to reinstate her law license because the Disciplinary Court had suspended her license for three years. In response to a 252 day-long sit-in protest in front of the IBA headquarters, the Disciplinary Court eventually reduced the suspension to nine months.
4.3.2. The Case of Nasser Zarafshan
Nasser Zarafshan, an Iranian lawyer and novelist, was arrested by the Judicial Organization of the Armed Forces (JOAF) in 2002 while representing the families of two victims of the “Chain Murders.”[102] Although Mr. Zarafshan had no professional relations with the Iranian armed forces, he was tried in a military court and sentenced to five years in prison. He has practiced law for four decades, and during this time, has been harassed for defending his clients on different occasions. In a 2015 interview with IHRDC he recounted,
In 1976, I accepted the case of several students of Aryamehr Polytechnic [the current Sharif University of Technology] that were arrested following a poetry night held by Saeed Soltanpour.[103] That was the first time that a political case was sent to a public court, while police already had completed the interrogations. After the creation of SAVAK,[104] its agents were in charge of investigations in political or security cases. It is to be noted that these changes happened in response to the increasing political unrest in the country during the last years of the Shah’s regime. Thankfully despite difficulties during the trial all my clients were acquitted.[105]
Unfortunately, after the 1979 Revolution, only the name of security forces changed, but they continued their previous illegal conduct. Even some old laws such as the ‘Punishment of Disruptors of the National Security,’ which was enacted to suppress communist groups, were adopted into the new system.[106]
My colleagues and I, as the lawyers of the victims’ families in the Chain Murders, had serious restrictions for reading the case files. After about six months, we were finally able to read the cases that contained the suspects’ interrogations. Not only were many pages missing, but the rest was also manipulative. In response to our objections to the authenticity of documents, the officials informed us that the case file was ready and soon would be sent to the Tehran Military Court. In addition, I was not allowed to meet the defendants before the trial. After I was detained in Evin Prison, however, I met one of them by accident. As he described their operations, they were professionals in kidnapping and killing under the instruction of their commanders.[107]
Before his arrest, Mr. Zarafshan received many threatening messages to stop pursuing the case, because the authorities considered the case to be against the interests of national security and damaging to the government’s reputation. Despite this, he did not quit. In the days after that, Mr. Zarafshan attended a debate in Shiraz University in which he addressed some issues in the case. When he was finally arrested, he faced national security charges commonly brought against dissidents, activists, and human rights lawyers.
After I was arrested, I was charged with disseminating propaganda against the government and possession of weapons and alcoholic beverages in my office. Although I announced that they were fabricated evidences, I was sentenced to five years in prison and 70 lashes. [108]
During his imprisonment Zarafshan not only was denied medical care, but also was held in a ward with common criminals in contravention of prison regulations that state prisoners should be separated based on factors including the nature of their crimes.[109] In 2005 he started a hunger strike in protest to the violation of his rights. After he was forced to stop the hunger strike, he was hospitalized in a critical health condition. Eventually, after he served five years in prison, he was released in 2007. [110]
The judiciary officials thought that they could frighten me through sending my case to the JOAF. Even during my imprisonment, their agents tried to encourage me to drop the case of the Chain Murders. But I always made it clear for them that I will never do so because of the professional responsibilities that I have to my clients. After my arrest, all families dismissed their lawyers and did not attend the hearings. Eventually, the defendants were sentenced to short prison terms, and as far as I know, they are free now.[111]
4.3.3. Mahnaz Parakand
Mahnaz Parakand, an Iranian human rights lawyer, obtained her permit to practice law a decade after she passed the bar exam in early 1990s. Parakand was a political prisoner in 1980s. She was initially sentenced to death for being a Mojahedin-e Khalq[112] (MEK) sympathizer; however, her punishment was reduced to eight years behind bars. Regarding her acceptance into the Bar Association, she stated,
I received a letter indicating that I do not meet the required criteria for obtaining the license to practice law. I learned that the Bar Association could not accept me because of pressure from the Ministry of Intelligence. So, my struggle over my right for practicing law started, which continued for about 10 years. During those years, I was in constant communication with the Bar Association. Eventually, I was called for an interview at the Ministry of Intelligence, which was an actual interrogation about all I had done after I was released in 1980s. A few months after that, I started my work as a legal trainee under the supervision of Mr. Abdolfattah Soltani.[113]
This was not an end to her professional difficulties. Parakand remembers how judicial officials routinely threatened her,
Given that I passed my traineeship under the supervision of Abdolfattah Soltani, I joined the Defenders of Human Rights Center[114] and mostly worked on human rights cases in the Revolutionary Court. Intimidation and threats started very soon. Judge Haddad, who knew me since the 1980s, when I was in prison as a political activist, addressed me several times: ‘I know who you are! You do have an execution sentence! And who authorized you to come here and practice law?’ Such conversations happened many times, and everyone in the Revolutionary Court knew that I used to be a political prisoner.[115]
This stressful situation was not limited to the court. Meeting her clients in prison was a challenge as well. Parakand recounts that during one of her frequent attempts to visit her clients in Evin Prison, Judge Mortazavi said, “You are a woman, and why do you need to visit a man in prison?”
Another hurdle was about accepting my designation in the case. Many times, in different branches of the Revolutionary Court, judges refused to accept me as the lawyer in that case. Their excuse was mostly my political background. For instance, Judge Moghiseh, whose courts mostly resemble battlefields, in response to my insistence to be accepted as the lawyer in the case of the seven Baha’i leaders, said, ‘You have not been arrested yet?’ or ‘Would the day come when I could conduct your trial?’
During the final session of the trial, I objected to the manner in which the prosecutor was conducting the case. Judge Moghiseh shouted, ‘Don’t say anything! You are an accused yourself, and you don’t have the right to object!’ It happened in front of my clients and made me sure that I will be the next person after Ms. Sotoudeh and Mr. Soltani, who were already in prison, [to face charges]. Not surprisingly, in March 2011, I received a summons from Revolutionary Court to introduce myself to the prosecutor’ office.”[116]
Considering her prior arrest and imprisonment, Parakand decided to leave Iran, knowing that she could be imprisoned for several years.
Conclusion
The practice of law in Iran is fraught with difficulties. From restrictions imposed on the Iranian Bar Association to the arrest and imprisonment of human rights lawyers, the Iranian government has seriously curtailed the ability of attorneys to organize and represent their clients effectively. Harsh sentences, such as Abdolfattah Soltani’s 13-year imprisonment, serve no purpose but to discourage attorneys from defending individuals charged with national security crimes.
In fact, attorneys who dare to represent these defendants are at risk of facing similar charges themselves. As raising public awareness about defendants has been shown to help the accused in these cases by pressuring the authorities to address the demands of prisoners such as transferring them to a different ward or providing medical care, speaking with media, particularly with outlets based outside Iran, is a tactic often employed by human rights lawyers. This action, however, puts lawyers at the risk of charges such as “disseminating propaganda against the Islamic Republic” or “conspiring against national security,” which are punishable by up to one and five years’ imprisonment, respectively.
Limiting the options of defendants charged with the most serious crimes to a list of pre-approved attorneys, as was done through the last-minute amendment to Article 48 of the Code of Criminal Procedure, does not provide an optimistic outlook for the legal profession. The Iranian government has indicated its intention to tightly control attorneys and the Iranian Bar Association. Absent a profound change in the government’s approach, restrictions on lawyers, particularly those who represent activists and dissidents, will most likely continue.
[1] Mohammad Najafi Vakil-i Dadgustari Bazdasht Shud [Attorney Mohammad Najafi Was Detained], Radio Farda (Jan. 15, 2018), https://www.radiofarda.com/a/28977169.html.
[2] Hasht Ittiham Barayih Mohammad Najafi Vakil-i Araki, Barayih Paygiriyyi Marg-i Mashkuk dar Tazahurat-i in Shahr [Eight Charges Issued for Mohammad Najafi, An Araki Attorney, in Punishment for his Pursuing of a Suspicious Murder that Took Place during the Protests in that City], Center for Human Rights in Iran ( Feb. 15, 2018), https://persian.iranhumanrights.org/1396/11/8-charges-against-mohammad-najafi-lawyer/.
[3] Inside Evin Prison; A Witness’s Account of Sina Qanbari’s Death, Iran Human Rights Documentation Center (Mar. 8, 2018), http://www.iranhrdc.org/english/news/inside-iran/1000000657-inside-evin-prison%3A-a-witness%E2%80%99s-account-of-sina-qanbari%E2%80%99s-death.html
[4] Id.
[5] Iḥżāri Vakīli Muḥammadi Salas Bih Dādsarā Pas Az Rushangarī Dar Muridi Vażʿīati ʾŪ, Deutsche Welle Persian (May 25, 2018), https://www.dw.com/fa-ir/ احضار-وکیل-محمد-ثلاث-به-دادسرا-پس-از-روشنگری-در-مورد-وضعیت-او/a-43928313.
[6] Hadi Enayat, Law, State, and Society in Modern Iran: Constitutionalism, Autocracy, and Legal Reform, 1906–1941 40 (2013) [hereinafter Enayat].
[7] Bastinado, or flogging of the sole of feet, was a type of corporal punishment common in Iran during the Qajar period. This punishment was also commonly used in schools well into the 20th Century.
[8] Enayat supra note 6 at 40.
[9] George Curzon, Persia and the Persian Question 452 (1892).
[10] Id at 454.
[11] Enayat supra note 6 at 35.
[12] Enayat supra note 6 at 133.
[13] The law that was enacted concerning “Religious Courts and Courts of Peace.”
[14] The Law of 16 July 1911 (On Sharia Notaries Public and Justices of the Peace), available at http://rc.majlis.ir/fa/law/show/90189.
[15] Enayat supra note 6 at 139.
[16] Id.
[17] Murūrī Bar Naḥvihyi Tashkīli Kānūni Vukalā Dar ʾĪrān, Aftab (Oct. 15, 2014), http://www.aftabir.com/articles/view/applied_sciences/social_science/c12_1416000343p1.php
[18] Id.
[19] The Law of 16 July 1911 (On Sharia Notaries Public and Justices of the Peace), available at http://rc.majlis.ir/fa/law/show/90189.
[20] Murūrī Bar Naḥvihyi Tashkīli Kānūni Vukalā Dar ʾĪrān, Aftab (Oct. 15, 2014), http://www.aftabir.com/articles/view/applied_sciences/social_science/c12_1416000343p1.php
[21] Id
[23] Enayat supra note 6 at 140.
[24]Hedayat Matine-Daftary, The right of defence and independence of lawyers 1979-1993, The Foreign Policy Center’s Iran Human Rights Review (IHRR), available at http://www.ihrr.org/ihrr_article/justice-en_the-right-of-defense-and-independence-of-lawyers-1979-1993/ (last visited Nov. 1, 2018).
[25] IHRDC Interview with Mehrangiz Kar, (Aug. 22, 2015) (on file with IHRDC).
[26] IHRDC Interview with Giti Pour Fazel, (July 31, 2015) (on file with IHRDC).
[27] Id.
[28] The Hudūd and Qīsās Law of 3 Aug. 1982, available at http://rc.majlis.ir/fa/law/show/90591?keyword=%D9%82%D8%A7%DA%86%D8%A7%D9%82%20%D8%A7%D8%B3%D9%84%D8%AD%D9%87.
[29] IHRDC Interview with Giti Pour Fazel, (July 31, 2015) (on file with IHRDC).
[30] Qanuni Mujazati Islami [Islmaic Penal Code] Tehran 1392 [2013], art. 211, available at https://iranhrdc.org/english-translation-of-books-i-ii-of-the-new-islamic-penal-code/.
[31] IHRDC Interview with Mehrangiz Kar, (Aug. 22, 2015) (on file with IHRDC).
[32] IHRDC Interview with Giti Pour Fazel, (July 31, 2015) (on file with IHRDC).
[33] Id.
[34] IHRDC Interview with Naghi Mahmoudi, (Aug. 9, 2015) (on file with IHRDC).
[35] IHRDC Interview with Mehrangiz Kar, (Aug. 22, 2015) (on file with IHRDC).
[36] Fisād Dar Quvvihyi Qażāʾīyih: Kashfi 15 Hizār Mīlyārd Tūmān “Kār Chāq Kunī” Tanhā Dar Yik Sāl, Radio Zamaneh (July 9, 2017), https://www.radiozamaneh.com/348855.
[37] Id.
[38] Act of Feb. 24 1955 (Independence of the Iranian Bar Association), available at http://rc.majlis.ir/fa/law/show/94754.
[39] The Law of 10 June 1980 (On Purges in the Iranian Bar Association), available at http://rc.majlis.ir/fa/law/show/98943.
[40] Id.
[41] Id.
[42] IHRDC Interview with Giti Pour Fazel, (July 31, 2015) (on file with IHRDC).
[43] The Law of 10 June 1980 (On Purges in the Iranian Bar Association), available at http://rc.majlis.ir/fa/law/show/98943.
[44] Mohammad Hossein Nayyeri, Iranian Bar Association: Struggle for Independence, Iran Human Rights Documentation Center (Nov. 27, 2012), https://iranhrdc.org/iranian-bar-associations-struggle-for-independence/.
[45] Muḥammad Shūrī: Chand Sāl Pīsh (Vi zhihyi ʾAbulḥasani Banīṣadr) Qismati Shishum (Ātashi Tahiyyih),Enghelab-e Eslami (June 27, 2017, 08:17 AM), https://www.enghelabe-eslami.com/component/content/article/19-didgagha/maghalat/25234-2017-07-21-08-17-23.html.
[46] Pāsukhi ʿAbdulkarīmi Lāhījī Bih ʾIddiʿāhāyi Marbūṭ Bih Kānūni Vukalā, Melli Mazhabi (Aug 2, 2012, 01:05 AM), https://melimazhabi.com/maghalat/ پاسخ-عبدالکریم-لاهیجی-به-ادعاهای-مربو/.
[47] Mohammad Hossein Nayyeri, Iranian Bar Association: Struggle for Independence, Iran Human Rights Documentation Center (Nov. 27, 2012), https://iranhrdc.org/iranian-bar-associations-struggle-for-independence/.
[48] Abasalt Binaie, Chālishhā Va Khīzishhāyi Kanūni Vukalā Markaz, abasaltbinaie.blogfa.com (Jan. 9, 2012, 06:29 PM), http://abasaltbinaie.blogfa.com/post-6.aspx.
[49] Pāsukhi ʿAbdulkarīmi Lāhījī Bih ʾIddiʿāhāyi Marbūṭ Bih Kānūni Vukalā, Melli Mazhabi (Aug 2, 2012, 01:05 AM), https://melimazhabi.com/maghalat/ پاسخ-عبدالکریم-لاهیجی-به-ادعاهای-مربو/.
[50]Huqūqdānāni Shūrāyi Nigahban, Guardian Council, http://www.shora-gc.ir/Portal/Home/ShowPage.aspx?Object=NEWS&ID=bc09df6e-37b9-40e9-824f-7a75121d7167&WebPartID=dd02af45-c8ab-4833-b2be-7475f18998b5&CategoryID=7193dabc-1895-4be7-ba71-cf8e4a04d42b (last viewed Nov. 3, 2018).
[51] Law of 6 Apr. 1997 (On Conditions for Obtaining Attorneyship License), available at http://rc.majlis.ir/fa/law/show/92825.
[52] IHRDC Interview with Giti Pour Fazel, (July 31, 2015) (on file with IHRDC).
[53] Rūḥānī: Man Sarhang Nīstam; Huqūqdān Hastam/Qālībāf: ʾIftikhāri Mā Razmandigī Ast, Tasnim News (June 7, 2013, 06:55 PM), https://www.tasnimnews.com/fa/news/1392/03/17/7172.
[54] Arzyābī Vukala Az Sukhanāni Dīrūzi Rūhānī/ʾAvvalīn Raʾīs Jumhūrī Kih Bij Jashni ʾIstiqlāli Kānūni Vukalā Raft, Khabar Online (Mar. 8, 2017, 11:53 AM), https://www.khabaronline.ir/news/644349.
[55] 28 Vakīli Dādgustarī Barāyi ʾIntikhābāti Kānūni Vukalā Raddi Ṣalaḥīyat Shudih And, Radio Farda (Feb. 3, 2016), https://www.radiofarda.com/a/Iran-bar-association-election-disqualifications/29015420.html.
[56] Fifth Economic, Social, and Cultural Development Plan of March 2011, art. 212, available at http://www.isacmsrt.ir/files/site1/pages/barnamepanjom.pdf.
[57] Executive Regulation of 17 June 2009, (On Law of the Bar Association’s Independence), available at http://rc.majlis.ir/fa/law/show/135630.
[58] Bill on Attorneyship of Aug. 2013, art. 29 (2013), available at http://www.ghanoonasasi.ir/Portal/file/?29400/%D9%84%D8%A7%D9%8A%D8%AD%D9%87-%D9%88%DA%A9%D8%A7%D9%84%D8%AA.pdf.
[59] Id., art. 33.
[60] Id.
[61] Id., art. 36 – Decisions of the Supervisory Commission on the disqualification of applicants and attorneys can be appealed within one month in the High Disciplinary Court of Judges.
[62] Id., art. 52.
[63] Naqżi Qānūni ʾAsāsī Dar Māddihyi 49 Āyīni Dādrisīi Kiyfarī: Bāzgasht Bih Qabl ʾAz Mashrūṭil, Kaleme (June 23m 2015),http://www.kaleme.com/1394/04/02/klm-217789/.
[64] Qanuni Ayine Dadrisii Kiyfari [Code of Criminal Procedure] Tehran1392 [2013], amended 1394 [2015]. For English translations of key provisions see https://iranhrdc.org/amendments-to-the-islamic-republic-of-irans-code-of-criminal-procedure-part-1/ and https://iranhrdc.org/amendments-to-the-islamic-republic-of-irans-code-of-criminal-procedure-part-2/.
[65] Diya refers to compensatory payment due to an individual who has suffered bodily harm under Islamic law.
[66] Tazir crimes, as opposed to hodud crimes, are crimes for which there is no explicitly stated punishment under Islamic law.
[67] IHRDC Interview with anonymous attorney, (Aug. 24, 2015) (on file with IHRDC).
[68] IHRDC Interview with Leila Ali Karami, (Aug. 12, 2015) (on file with IHRDC).
[69] Matni Sukhanrānīi Āyatullāh Ṣadiqi Lārījānī Dar Hamāyishi Quvvihyi Qażāyīih, Parsine (Apr. 7, 2016, 05:49 PM), https://www.parsine.com/fa/news/280159.
[70] Atena Farghadani is artist who was imprisoned because of a cartoon that was drawn in protest to the government’s plans for banning voluntary sterilization and restricting the access to contraception.
[71]Matilda Batersby, Female cartoonist could have 12 year prison term extended for shaking her lawyer’s hand, Independent (Sept. 9, 2015), http://www.independent.co.uk/arts-entertainment/art/news/female-cartoonist-could-have-12-year-prison-term-extend ed-for-shaking-her-lawyers-hand-10492837.html.
[72] According to the Article 5 of the law “Establishing the Public and Revolutionary Courts” (passed in 1994, amended in 2004), the jurisdiction of Revolutionary Courts encompasses:
- All of the offenses against the internal and external security of the country, combating and behaving in a corruptly manner on the earth (Moharebeh);
- Uttering slander against the Founder of the Islamic Republic of Iran and the Supreme Leader;
- Conspiracy against the Islamic Republic of Iran or carrying arms, use of terrorism, destruction of building against the Islamic Republic;
- Engaging in espionage for aliens;
- All crimes involving smugglings and narcotic items; and
- The cases pertinent to Article 49 of the Constitution of Iran.
[73] The disputed presidential election of 2009, which was held on June 12 of that year, was followed by massive demonstrations by protesters who believed the election results had been rigged. While official results indicated that President Ahmadinejad was comfortably reelected, reformist candidates Mir Hossein Mousavi and Mehdi Karroubi refused to accept the results. Sporadic protests followed for month. Mousavi and Karroubi were subsequently put under house arrest in February 2011.For further information, see Violent Aftermath: The 2009 Election and Suppression of Dissent in Iran. IHRDC Interview with Nemat Ahmadi, (Aug. 10, 2015) (on file with IHRDC).
[74] IHRDC Interview with Nasrin Sotoudeh, (Sept. 8, 2015) (on file with IHRDC).
[75] Id.
[76] IHRDC Interview with Leila Ali Karami, (Aug. 12, 2015) (on file with IHRDC).
[77] Witness Statement of Ahmad Hamid, Iran Human Rights Documentation Center (June 26, 2015), https://iranhrdc.org/witness-statement-of-ahmad-hamid/.
[78] IHRDC Interview with Osman Mozayan, (Aug. 19, 2015) (on file with IHRDC).
[79] IHRDC Interview with anonymous attorney, (Aug. 24, 2015) (on file with IHRDC).
[80] IHRDC Interview with Mohammad Moghimi, (Aug. 25, 2015) (on file with IHRDC).
[81] Shirin Ebadi, Iran’s first female judge and a prominent human rights attorney, was awarded the Nobel Peace Prize in 2003 for her efforts for democracy and human rights.
[82] Abdolfattah Soltani, a prominent attorney who took on sensitive cases and represented various dissidents, was arrested in 2009 and again in 2011. He was sentenced to 13 years’ imprisonment on national security charges.
[83] Lacking Independence, Bar Association Remains Silent as Lawyers are Prosecuted, Center for Human Rights in Iran( Aug. 24, 2011), http://www.iranhumanrights.org/2011/08/bar-association-under-attack/.
[84] IHRDC Interview with Leila Ali Karami, (Aug. 12, 2015) (on file with IHRDC).
[85] IHRDC Interview with anonymous attorney, (Aug. 24, 2015) (on file with IHRDC).
[86] IHRDC Interview with Nasrin Sotoudeh, (Sept. 8, 2015) (on file with IHRDC).
[87] Iran: Another Execution of Juvenile Offender, Human Rights Watch (Oct. 13, 2009), https://www.hrw.org/news/2009/10/13/iran-another-execution-juvenile-offender.
[88] IHRDC Interview with Mohammad Oliaei Fard, (2015) (on file with IHRDC).
[89] IHRDC Interview with Nasrin Sotoudeh, (Sept. 8, 2015) (on file with IHRDC). In 1988 the Iranian government carried out its most egregious violation of human rights in Iran’s modern history by executing thousands of political prisoners after summary trials. For further information see Deadly Fatwa: Iran’s 1988 Prison Massacre.
[90] IHRDC Interview with Javid Houtan Kian, (Sept. 21, 2015) (on file with IHRDC).
[91] The Penal Code was amended in January 2012, and the new version subsequently adopted in 2013.
[92] For further information see Denied Identity: Human Rights Abuses against Iran’s LGBT Community.
[93] IHRDC Interview with Hossein Raeesi, (2014) (on file with IHRDC).
[94] Id.
[95] IHRDC Interview with Mosa Barzin Khalifehlou, (Aug. 5, 2015).
[96] IHRDC Interview with Nasrin Sotoudeh, (Sept. 8, 2015) (on file with IHRDC).
[97] Id.
[98] The chador is the Islamic Republic’s preferred mode of mandatory veil for women.
[99] IHRDC Interview with Nasrin Sotoudeh, (Sept. 8, 2015) (on file with IHRDC).
[100] Id.
[101] Id.
[102] The term “Chain Murders” refers to a series of assassinations that took place in Iran in the mid-to-late 1990s. The victims were mostly writers and political activists. After a government investigation, a group of “rogue elements” within the Ministry of Intelligence were arrested for orchestrating the assassinations. The investigation, however, failed to pursue high-level government officials. For further information see
[103] Iranian Poet, novelist and leftist political activist who was executed in 1981.
[104] The Organization of Intelligence and National Security that consisted of the secret police, domestic security, and intelligence service units.
[105] Interview with Nasser Zarafshan, (Aug. 30, 2015) (on file with IHRDC).
[106] Id.
[107] Id.
[108] Id.
[109] Prisons Regulations of 26 Jan. 1986, available at http://www.dastour.ir/brows/?lid=201862.
[110] Retrieved form: http://www.idhbb.org/uk-page5.1.ira3.htm (Last visited 9/20/2015)
[111] Mr. Nasser Zarafchan was arrested on August 7th 2002 and in now being detained in Evin Prison, The Observatory( Aug. 9, 2002), http://www.idhbb.org/uk-page5.1.ira3.htm.
[112] Mojahedin-e Khalq are a leftist-Islamist political group formed in 1960s. The group, which engaged in guerrilla warfare against the Pahlavi monarchy, supported Ayatollah Khomeini during the 1979 Islamic Revolution. Thereafter, however, tensions grew between the newly formed government and the MEK. In 1981, MEK members staged a demonstration after President Bani-Sadr was impeached by the Iranian parliament. Scores of MEK members and sympathizers were arrested, and many were executed. The MEK declared that it would start an armed struggle against the Islamic Republic, and it carried out several bombings and assassinations. The group’s leadership moved to Iraq in mid-1980s and received support from the government of Saddam Hussein. The MEK launched a failed military campaign aimed at toppling the Iranian government in the summer of 1988. After turning back the offensive, the Iranian government retried MEK political prisoners in secret tribunals and executed thousands of MEK political prisoners along with other leftist prisoners. The executed prisoners had already been tried and sentenced before, and their execution remains the Iranian government’s most severe human rights violation.
[113] Witness Statement of Mahnaz Parakand, Iran Human Rights Documentation Center (Dec. 9, 2012), https://iranhrdc.org/witness-statement-of-mahnaz-parakand/.
[114] The Center for Human Rights Defenders was founded in 2001 in Tehran. The five founding members were Shirin Ebadi, Mohammad Ali Dadkhah, Mohammad Seifzadeh, Mohammad Sharif, and Abdolfatah Soltani. In December 2008 Iranian authorities closed the Center’s building.
[115] Witness Statement of Mahnaz Parakand, Iran Human Rights Documentation Center (Dec. 9, 2012), https://iranhrdc.org/witness-statement-of-mahnaz-parakand/.
[116] Id.
