International
Commission of Jurists
The International Commission of Jurists is dedicated to the
primacy, coherence and implementation of international law and principles that
advance human rights.
What distinguishes the International Commission of Jurists (ICJ)
is its impartial, objective and authoritative legal approach to the protection
and promotion of human rights through the rule of law. The ICJ provides legal
expertise at both the international and national levels to ensure that
developments in international law adhere to human rights principles and that international standards are implemented at the national
level.
The Commission was founded in Berlin in 1952 and its membership is composed
of sixty eminent jurists who are representatives of the different legal systems
of the world. Based in Geneva, the International Secretariat is
responsible for the realization of the aims and objectives of the Commission.
In carrying out its work, the International Secretariat benefits from a network
of autonomous national sections and affiliated organisations
located in all continents.
27 August 2002
Iran
Attacks on
Justice 2002
Independence of Judges & Lawyers
The judiciary in Iran
remained heavily under the influence of executive and religious government
authorities. The functioning of Islamic Revolutionary Courts severely
undermined judicial authority in the country. Lawyers were not adequately
protected in exercising their functions by an effective professional association.
The Islamic Republic
of Iran was established in 1979 after a populist revolution overthrew the Pahlavi monarchy. The 1979 Constitution, as amended in
1989, established a theocratic republic.
The Supreme Leader of
the Islamic Revolution, Ayatollah Ali Khamenei, is
the Head of State and constitutionally the highest authority in the country. He
was chosen as Ayatollah Khomeini's successor in June 1989 by the Assembly of
the Experts, a popularly elected group of senior religious scholars and pious
laymen. The Supreme Leader maintains direct control over all internal security
and police forces, the judiciary and the state broadcasters. He is the
commander-in-chief and officially appoints the President, following popular
elections. According to Article 57 of the Constitution, the legislature, the
judiciary and the executive, all must function under the "absolute rule of
the Supreme Leader." The unlimited term of the Supreme Leader and
extremely wide powers vested in that office have been the source of popular
dissatisfaction. Calls are increasing, especially within the ranks of the
clergy, for the office of the Supreme Leader to be made elective and for a
limited term. (See Special Court
for Clergy) .
President Mohammad Khatami was elected in February 1997 for a four-year term
and was re-elected by a large majority in the June 2001 election.
According to Article
113 of the Constitution, the President is second in line after the Supreme
Leader and is responsible for implementing the Constitution. He is the Chief of
the executive power, "except in matters directly concerned with (the
office of) the Leadership." The Leader may dismiss the President
"after the Supreme Court holds him guilty of the violation of his
constitutional duties or after a vote of the Islamic Consultative Assembly
testifying to his incompetence."
The Islamic
Consultative Assembly, or Majles, is a 290-seat unicameral legislative body,
popularly elected for a four-year term. The February 2000 Parliamentary
election resulted in a landslide victory for candidates associated with the
reformist faction. Although the reformist faction presently constitutes the
majority of the Parliament, the legislation adopted by them is often vetoed by
the Council of Guardians.
The Council of
Guardians, which is composed of six clerical members appointed by the Supreme
Leader and six lay jurists nominated by the head of the judiciary and approved
by the Parliament, exercises great influence on the Parliament and is in charge
of reviewing the compatibility of all the legislation passed by the Parliament
with Islamic and constitutional principles. The Council is also responsible for
the supervision of the elections. The Council construes Article 99 of the Constitution,
which grants it "the responsibility of supervising the elections," to
include approval of the qualification of candidates for all elected offices.
This construction is considered unconstitutional by many leading legal
authorities. Furthermore, the Council refuses to provide clear legally based
reasons for disqualifying candidates, and its decisions are widely considered
to be intended to block the election of persons holding political views not in
conformity with the official ideology. In the February 2000 parliamentary
election, the Council annulled the results in a number of electoral divisions
won by reformists, without presenting supporting evidence and in spite of the
fact that the Interior Ministry had found no reason for the annulment.
The Expediency Council
(Majma'e Tashkhis-e Maslahat) is in charge of breaking any deadlock between the
Parliament and the Council of Guardians. The 1989 constitutional amendment
instituted the Expediency Council as an advisory board to the Supreme Leader.
In 1997, the Expediency Council was empowered with far reaching
responsibilities, such as determining the major policies of the state, and Hashemi-Rafsanjani, the former President, was appointed by
the Supreme Leader as the chairman of the Council.
HUMAN
RIGHTS BACKGROUND
Despite the
acknowledgment by high ranking officials of an urgent need for reform in
respect of human rights, the past year has been marked by negative
developments, especially in the areas of freedom of expression and association.
A number of murders of intellectuals and political dissidents have remained
unsolved. Illegal detentions, disappearances in the justice system, and broad
use of torture by law enforcement agencies have increased dramatically, while
impunity has remained widespread. The Secretary of the Islamic Human Rights
Commission in Iran
has confirmed the existence of illegal detention centres in the country.
Extrajudicial groups and semi-official vigilante forces, such as the Basiji and Ansar-i Hezbollah,
have continued to engage in violent attacks against students, journalists and
individuals suspected of "anti-revolutionary" activities.
International standards of fair trial continued to be disregarded by the
judiciary. Some 130 executions occurred between January and July 2000 alone,
including the execution of a woman in the presence of her two children. The
Supreme Court upheld more than 310 execution sentences during the year 2001.
Despite widescale public protest, public executions
and floggings have substantially increased since the re-election of the
President Khatami.
In December 1997, the
Commission for the Implementation of the Constitution and Constitutional
Supervision was appointed by President Khatami to
review complaints regarding rights violations. The Commission, however, did not
function in an active manner. In its report of 30 November 1999,
the Commission declared that it had received more than four hundred complaints
but did not find them appropriate for consideration.
Independent political
parties are non-existent, and the Government maintains a monopoly on all
television and radio broadcasting facilities. Since the election of President Khatami in 1997, the independent press has played an
important role in providing a diverse forum for wide-ranging opinion and
debate. However, during the past year, the independent press has been silenced
and leading reformist journalists, politicians and human rights defenders were
jailed pursuant to decisions by ultra-conservative elements within the
judiciary. On 23
April 2000, 12 journals were arbitrarily closed
without hearings, by order of the judiciary, in contravention of both the
Iranian press law and international standards of fair trial. (see The Judiciary) More than 40 newspapers and magazines
have been closed. In August 2000, efforts by the new Parliament to amend the
Press Law were halted by unprecedented intervention in parliamentary affairs by
the Supreme Leader. Despite the objections of the President and reformist
parliament members, virtually all the reformist press has now been closed down
and dozens of journalists and editors have been detained for prolonged periods
without trial or access to legal council. Others have been sentenced on
arbitrary charges to punishments ranging from the death penalty to long
imprisonment terms (see Unfair Trials).
Mere criticism of the
Supreme Leader's actions or even of the criminal law codes, including the death
penalty and other cruel and degrading punishments, was regarded by the
judiciary as an offense and was punished for "harming the basis of the
Islamic Republic," or insulting the Islamic system." In December
2000, Ata'ollah Mohajerani,
Minister of Culture and Islamic Guidance, resigned from his office in protest
at the constant attacks on the judiciary.
Investigations into
the murders of several prominent Iranian dissidents and intellectual figures
("Serial Murders" case) that prompted public outrage in Iran
in late 1998 and early 1999 have moved exceedingly slowly. Several
intellectuals among the 134 signatories of the 1994 Declaration of Iranian
Writers, declaring a collective intent to work for the removal of barriers to
freedom of thought and expression, have been killed and disappeared. In March
2000, Saeed Hajjarian, a
senior political adviser to President Khatami,
escaped an assassination attempt linked to the serial murders that left him
confined to a wheelchair. Minister of Intelligence Qorban
Ali Dori-Najafabadi and several of his senior
deputies resigned after it was revealed in an official inquiry, supported by
President Khatami that, some senior officials of the
Ministry of Intelligence had carried out the killings. In late December, the
trial of 18 state officials accused of involvement in murders began in the Tehran
Military Court behind closed doors,
allegedly for "security reasons," and they were convicted in January
2001. However, the fairness of these trials has been called into question. (See
Unfair Prosecutions and Trials)
Vigilantes accelerated
their assaults on reformists, breaking up demonstrations and cultural events
following supportive statements made by the highest political and judicial
authorities, including the Supreme Leader and the head of the Judiciary, legitimising their extrajudicial activities,. On the
anniversary of the student demonstrations that took place in July 1999, where
four students were killed and several hundred arrested and wounded, students
marched and expressed their frustration at the unsolved murders of their
classmates and the poor economic conditions. The protesters were beaten and
forcibly dispersed by Ansari Hezbollah.
THE
JUDICIARY
According to Article
61 of the Constitution, judicial power shall be exercised through courts of
justice, in accordance with Islamic criteria, acting to decide in cases of
dispute, to protect public rights, to further the administration of justice and
to uphold the divine jurisdiction. According to Article 4, all the laws and
regulations must be based on Islamic criteria.
The judiciary in Iran
is not free from government influence. Religious minorities, women and men are
not treated equally before the courts. Although the Constitution endorses
certain rights of fair trial, these are not respected in practice. In his
report to the 2000 session of the UN Commission on Human Rights, the Special Rapporteur identified the following difficulties:
ill-treatment in pre-trial detention; forced confessions; overcrowding in the
prison system; the continuing existence of detention centres outside the
official prison system; the denial of fair trial; denial of the right of the
defense to call witnesses; issuance of judgment without provision of adequate
time for the submission of the defense; making statements about cases which do
not fall within the jurisdiction of the court; jailing defense lawyers for such
actions as protesting the judge's refusal to allow them to call witnesses.
In December 1999, the
head of the judiciary announced an initiative to reform the judicial system,
remarking that the country is "still a long way off from having a reformed
and developed judicial organization." He also declared that 40 judges,
clerks, and "middle-men" had been arrested on corruption charges.
Structure of the courts
By a constitutional
amendment in 1989, the High Judicial Council (HJC) was abolished and all the
duties and responsibilities of HJC were conferred to the head of the judiciary,
who is appointed directly by the Supreme Leader for a period of five years. The
head of the judiciary appoints half the members of the Council of Guardians,
all members of the Supreme Court, and the chief judges in all of Iran's
provinces. According to Articles 157 and 162 of the Constitution, the head of
the judiciary, the chief of the Supreme Court and the Prosecutor-General all
must be members of the clergy. Ayatollah Mahmoud Hashemi Shahrudi was appointed by
the Supreme Leader in August 1999 as the head of the judiciary.
The head of the
judiciary exercises extraordinary powers for determining the professional
career of judges. According to Article 158 of the Constitution, the head of the
judiciary is authorized to appoint, dismiss, transfer, promote and discipline
judges, and to make all similar administrative decisions, in accordance with
the law. (See Qualification, Appointment, Dismissal.)
The Law of Establishment
of General and Revolutionary Courts made several widely criticised
changes to the judiciary system. The office of the Prosecutor was omitted from
the institution of the judiciary. Hence, the chief judges of the jurisdictions,
who are at the same time the chief justices of the Courts of First Instance,
function now both as prosecutor and judge in the same case. Chief judges of the
Courts of First Instance, who should be impartial and presume the innocence of
defendants, are in charge of the investigatory procedures in cases, including
interrogation of the defendant, collection evidence of the crime and accusing
the defendant.
Another problematic
change introduced is the establishment of "the General Courts," thus
abolishing the conventional system of civil and criminal courts. In the former
system, courts were divided according to their adjudicative specialization in
civil and criminal offenses. In the new system, "the General Courts"
deal with all types of cases, thus placing a severe burden on the caseload of
the courts and decreasing the quality of the juridical profession.
The Constitution also
establishes Military Courts, the Court of Administrative Justice, and the
Supreme Court. Military Courts, which investigate crimes committed in
connection with military or security duties by members of the Army, the
Gendarmerie, the police and the Islamic Revolutionary Guard Corps. The Court of
Administrative Justice investigates complaints, grievances and objections by
the public with respect to government officials, organs and statutes. The
Supreme Court supervises the correct implementation of the laws by these
courts, ensuring uniformity of judicial procedure and fulfilling any other
responsibilities assigned to it by law.
Islamic revolutionary courts
These courts were
established in 1979 by the Revolutionary Council to adjudicate offenses
regarded as potentially "threatening to the Islamic Republic,"
including offenses against internal and external security, narcotic crimes,
economic crimes, and official corruption. The legitimacy of the Revolutionary
Courts is questionable, as they are not established in the Constitution, and
were only created by the Revolutionary Council, which temporarily functioned as
the legislature
at
the beginning of the Revolution. It was not until three years after their
establishment that the Revolutionary Courts were approved by a law adopted by
the Parliament.
Trials in these courts
are notorious for their disregard of international standards of fair trial. In
addition to those shared by the Islamic Revolutionary Courts with courts in
general, these courts have the following deficiencies: the judges are chosen in
part based on their ideological commitment; defendants are detained for prolong
periods without access to a lawyer and the right to confront their accusers;
secret or summary trials take place; defendants are often indicted for vaguely
defined offenses such as "insulting Islamic tenets", "insulting
the Supreme Leader", "anti-revolutionary behaviour",
"moral corruption", and "propaganda against the state." The
abuses associated with the Islamic Revolutionary Courts appear to be so
numerous and so entrenched as to be nearly beyond reform.
The Special Court for the Clergy
The Special
Court for the Clergy (SCC),
established to deal with all criminal acts committed by clergy, has become an
instrument to discipline and prosecute dissident clerics. The cases are to be
argued on the basis of religious law. Appeals are heard by another chamber of the
Cleric's Court. The Supreme Court has no jurisdiction to review the SCC cases.
The Court tries the
reformist clerics, in sessions closed to the public, for deviating from Islamic
orthodoxy, and may sentence them to severe punishment, including the death
penalty. The defense counsel in a trial before a SCC must be chosen from
designated clergy. In his report to the 1999 session of the U.N Commission on
Human Rights, the U.N Special Representative on Iran
recommended the abolition of the SCC, finding it be an arbitrary and secretive
tribunal that denies its defendants the right to a fair trial.
The SCC is another
extra-constitutional judicial body, yet the violations of the Constitution in
the case of the SSC are more remarkable. Some of the major deficiencies of the
SCC are as follows:
- The SCC lacks
legitimacy, having been established only by decree of Ayatollah Khomeini and
subsequently ratified by Ayatollah Khamene'i.
- A special court only
for a single class of people may violate the constitutional principle of
equality before the law (Article 2).
- The SCC functions
under the supervision of the Supreme Leader and all the judges and prosecutors
of this court are appointed by the Supreme Leader, not the judiciary. Moreover,
the SCC does not follow the general legal principles and criminal procedure
laws applicable in the
other
courts. The establishment of a court outside of the judicial system is in a
clear violation of Article 61 of the Constitution, which provides that only the
General Courts of Justice have jurisdiction to perform the functions of the
judiciary.
- According to Article
13(1) of the Decree of the SCC, "[t]he SCC and its office of the
Prosecutor have a jurisdiction to adjudicate all cases entrusted to it by the
Supreme Leader." Thus, the SCC prosecutes all individuals and all cases
viewed by the Supreme Leader himself as involving a "crime",
rendering its own judgment as to the criteria for criminal prosecution.
- The SCC is in a
position of hierarchy vis-a-vis the other courts.
According to Article 13 of the Decree of the SCC, "[a] ll
the judicial departments should adjudicate the files sent to them by the office
of the SCC Prosecutor."
- In clear
contravention of Article 167 of the Constitution that places the Islamic
sources and verdicts as secondary to the codified laws, the SCC considers these
sources as equal. In a further step, the SCC considers even the Penal Codes as
secondary in line to the Islamic law.
- Judges are empowered
to "give sentences based on their own personal opinions," in the case
of dealing with "a crime which does not have a defined punishment in the Shari'a and the law." Such broad powers given to
judges in criminal cases clearly violate international standards of
fair
trial, as well Article 36 of the Constitution, which provides that "the
passing and execution of a sentence must be only by a competent court and in
accordance with law."
- In contravention of
Article 168 of the Constitution that establishes the General Courts as being
the only judicial authority that has jurisdiction to review press offenses, the
SCC recently has dealt also with press offenses, on the grounds that "the
defendant is a member of the clergy."
Press Courts
The Press
Court is a branch of the General
Courts that handles offenses related to the press. According to Article 168 of
the Constitution, trials for press offenses should be held openly and in the
presence of a jury, whose composition is determined in the Press Law. However,
prosecution of critics of the government and harassment of a number of
independent journalists and writers by the judiciary increased dramatically
during the past year. One of the main factors conditioning this attack is the
lack of legal protection for freedom of expression and association in Iranian
Law.
In contradiction of
international standards, the Press Law, enacted in 1985, significantly
restricts freedom of expression by determining narrow roles for the media and
setting up sweeping prohibitions. Article 6 of the Press Law, for instance,
prohibits the press from publishing materials that "harm the basis of the
Islamic Republic" or "create division among the different strata of
society." The law establishes the Press Supervisory Board, dominated by
members of the executive branch of the government, as the responsible official
body for issuing press licenses and examining complaints filed against
publications or journalists, editors and publishers. According to the Press
Law, and in a violation of Article 14 (1) of the ICCPR, the Board enjoys
semi-judicial powers to determine violations of the Press Law and may close
newspapers or magazines solely by administrative order.
In the case of
referral of some of the complaints to the judiciary by the Press Supervisory
Board, the Press Court,
a special tribunal within the judiciary, hears such complaints. The jury of the
Press Court
is in charge of making recommendations to the judge regarding the guilt or
innocence of defendants and the severity of any penalty to be imposed. In tens
of cases against the newspapers and journalists, the recommendations of the
jury for lenient penalties were disregarded by the judges of the Press
Court in favour of harsher
measures. Most of the press cases were brought before the Revolutionary Courts
and Special Clerical Courts, which do not have jurisdiction to hear press
cases, and where defendants enjoy fewer legal protections. In most of the press
cases, newspapers or magazines were closed down before trial as a result of
unprecedented and highly criticized creation of irrelevant laws by the
judiciary.
Unfair prosecutions and trials
There were several
violations of the right to a fair trial in the "Serial Murders"
cases. Among the accused high-ranking security agents was Saeed
Emami, former Deputy Minister of Intelligence, who,
according to the state's report, committed suicide in prison before the
beginning of the trial. Only five defendants, who were accused of being the
main perpetrators of the killings, were in custody, whereas other suspected
accomplices remained free on bail. The lawyers of the victims' families were
denied access to the case files. The identity of the defendants and the
specific charges against them are still not known. Furthermore, any criticism
of the actions of the judiciary and the conditions of the trial received harsh
punishments from the judiciary. Several citizens, including journalists and
lawyers of the victims' families were arrested and prosecuted merely for criticising the actions of the judiciary in connection with
the case. (See Cases)
The largely peaceful
student demonstration of July 1999, which was conducted to protest the closure
of the popular Salam newspaper, was followed by an
attack on Tehran
University
dormitories by uniformed security forces and members of Ansar-i
Hezbollah. At least four students were killed and 300 were wounded, when
paramilitary forces threw them from the dormitory's windows. Although
investigations by the Parliament and the National Security Council indicated that
the raid had taken place without authorization from the Ministry of Interior
and that "police officers and non-military personnel" were
responsible for the attack on students, no criminal proceedings were conducted.
According to a declaration by the head of the Tehran
Revolutionary Court, Hojatoleslam Gholamhossein Rahbarpour, in September 1999, 1,500 students were arrested
during the riots, 500 were released after questioning, 800 were released
subsequently and formal investigations were undertaken against 200. Four
students were sentenced to death by a Revolutionary
Court for their role in the
demonstrations, but the sentences were commuted to terms of imprisonment. While
98 policemen and senior officers were arrested for their actions, only 20 went
on trial. In February 2000, the court released all but two of the accused
officers. However, scores of students who were arrested during the
demonstrations are still in prison.
In October 2000, Amir Farshad Ibrahimi,
a former member of a vigilant group, was sentenced to two year imprisonment for
defamation after he stated in a videotape that Ansar-i
Hezbollah vigilantes had received payments from senior clerics and conservative
politicians to carry out attacks on reformist personalities and to disrupt public
events and demonstrations. His lawyer, Shirin Ebadi, and another lawyer, Mohsen Rahami were also
prosecuted and received suspended imprisonment in relation with this case. (See
Cases)
Some 17 leading
Iranian reformist intellectuals and politicians who attended an international
conference on Iran
held in April 2000 in Berlin
were arrested and some were detained incommunicado. In October 2001, they were
brought before a Revolutionary Court
in Tehran,
and on January 13,
2001, behind closed doors, the court convicted seven
of them on vague charges concerning "national security,"
"propaganda against the state," and "insulting Islam."
Mr. Amir Entezam, former Deputy Prime
Minister, aged 68, was released after 17 years detention in the notorious Evin
Prison in Tehran.
He had spent much of the past 20 years in and out of prison on charges of
collaboration with the United
States, and his appeals for
a fair and public trial were denied. He was re-arrested in December 1999 after
an interview was published in an Iranian newspaper, in which he made critical
statements about Mr. Assadollah Lajevardi,
an assassinated prosecutor and former chief warden of Evin. His imprisonment
was renewed after his refusal to sign a "confession." The trial of
Mr. Amir Entezam included
several overt violations of Iranian law and international rules concerning a
fair trial, including denial of counsel and access to the allegedly
incriminating evidence against him. Mr. Entezam was
not allowed to attend the first hearing, and the judge stated that he did not
know the reason for his detention, which subsequently was prolonged for 10 more
months to receive accusations. Having been a frequent victim of torture in
prison and denied proper medical treatment, Mr. Entezami
has serious health problems and was the victim of an assassination attempt
during a transfer. Foreign observer missions, including The International
Commission of Jurists (ICJ), were barred from attending judicial proceedings.
On March 18, 2001, The
Tehran Revolutionary Court closed down the Iran Freedom Movement, an unlicensed
political party, whose several members, including Mehdi
Bazargan, (former Prime Minister), had participated
in the first government of the Islamic Republic in 1979, on the grounds
that
the party was attempting to "overthrow the Islamic regime." The
Court's action was in a clear violation of Iran's
Political Parties Law, which provides that the courts may take action against a
political party only after receiving an official complaint from a special committee,
known as an "Article 10 Commission," in charge of reviewing the
activities of political parties. Apparently no such complaint had been made
against the Freedom Movement. The Court also ordered the detention of dozens of
other independent political activists, legal scholars, engineers and physicians
around the country on suspicion of being associated with the Freedom Movement.
Most of the detainees have been held incommunicado on unknown charges, without
access to medical treatment, and their families have had no information
regarding the places of their detention.
Iran's
reformist-dominated Parliament has recently filed suit against several
hard-line judiciary members, including senior judges, for violations of the
Constitution. The Parliamentary Committee in charge of investigating complaints
against the state recently declared that the judiciary had constantly
disregarded the Constitution in the arrest or detention of political activists
and journalists. In an open letter read out in the Parliament by a member, Davoud Hassan-zadegan, the names
of 50 activists are mentioned as having been denied access to lawyers, some of
whom had been held in "temporary" solitary confinement for more than
five months.
The infamous trial of
13 Iranian Jews, accused of espionage for Israel,
failed to meet international standards of a fair trial. The accused were
arrested without warrant in 1999, have been detained for over one year in
solitary confinement, without official charges or access to lawyers and
relatives. Furthermore, trials held behind closed doors and the courts used
televised confessions by the defendants. In July 2000, they received prison
sentences ranging from four to 13 years, which were reduced subsequently by the
Court of Appeals to between two and nine years' imprisonment.
Qualification,
appointment and dismissal
According to Article
164 of the Constitution, "a judge cannot be removed, whether temporarily
or permanently, from the post he occupies except by trial and proof of his
guilt, or in consequence of a violation entailing his dismissal. A judge cannot
be transferred or re-designated without his consent, except in cases when the
interest of society necessitates it, and only by decision of the head of the
judiciary branch after consultation with the chief of the Supreme Court and the
Prosecutor General." The Article insures that "the periodic transfer
and rotation of judges will be in accordance with general regulations to be
laid down by law." However, the authority to determine the "interest
of society" in "exceptional" cases of judges' transfer remains
with the head of the judiciary, thus conferring upon him far-reaching power
over the judicial profession. The 1991 Disciplinary Court of Judges Law (DCJL)
grants the head of the judiciary further authority to disqualify and dismiss
judges. This law contains several deficiencies that severely undermine the
independence of judges:
- The vague criteria
for disqualification of judges: According to Article 1 of the DCJL, the head of
the judiciary may determine disqualification of a judge according to religious
criteria, which could be interpreted in a broad and ambiguous way.
- The dependence and
partial structure of the Disciplinary Court of Judges (DCJ): Once the head of
the judiciary reaches the conclusion that a certain judge is disqualified, he
may refer the case to a Commission of Experts composed of the Prosecutor of the
DCJ, the Deputy Ministry of Justice in Legal and Parliamentary Affairs and the
Deputy of the Prosecutor-General. After reviewing the case, the Commission
transmits the matter for final decision regarding qualification of the judge to
the DCJ, which consists of the head of the judiciary, the head of the Supreme
Court, the head of the first branch of the DCJ, the Prosecutor of the DCJ and
the Prosecutor-General.
- The membership
structure of the DCJ undermines its independence, as two members of the DCJ are
also members of the Commission of Experts, which would have been responsible
for the earlier decision regarding the case. In addition, most members of the
DCJ are not elected, but appointed by the head of the judiciary. Thus, the
presence of the head of the judiciary in the DCJ renders the court's decisions
effectively dependent on the decision of the head of the judiciary, who is in
charge of filing complaints against the judges in the first place.
- Restrictions on the
independent decision-making of the DCJ: According to Article 2 of the DCJL, the
decisions of the DCJ are only valid if the majority opinion includes the
opinion of the head of the judiciary. Secondly, the decision of the DCJ is
restricted only to the announcement of the qualification or disqualification of
the judges. The determination as the type of the applicable disciplinary punishment
in a case (e.g., dismissal, retirement or transfer of the judge) remains under
the authority of the head of the judiciary.
LAWYERS
According to Article
35 of the Constitution "both parties to a lawsuit have the right in all
courts of law to select an attorney, and if they are unable to do so,
arrangements must be made to provide them with legal counsel." The
assigned lawyers, however, typically assume a passive role, and in some cases,
have been openly denounced in the courts by the defendant for not telling the
truth. The disciplinary court for lawyers within the Bar Association has not
been active for a considerable time.
The Independent Bar
Association (IBA) of Iranian lawyers, despite the turmoil concerning the
freedom of press and the courts, was silent on the rights of the defendants to
fair trial and the detention of the lawyers. The Union of Iranian Journalists
met with the Speaker of the Parliament to complaint about the passive role of
the IBA over the detention of three of its members, Mehrangiz
Kar, Shirin Ebadi and Mohsen
Rohami.
According to a 1998
law, the judiciary is empowered to confirm the competency of all law graduates
to receive a license as a lawyer. In his interim report on the situation of
human rights in Iran,
the Special Representative of the Commission on Human Rights asserted that
"as the bar cannot be beholden to the judiciary, that provision clearly
offends international standards of the independence of the bar, as well as the
reputation of the 90-year-old Iranian institution." Several cases of
disrespectful behaviour on the part of judges toward
lawyers were reported to the Islamic Human Rights Commission.
Despite the Law on the
Independence
of the Bar Association, which declares that the Bar Association is the only
competent authority to issue licenses to lawyers, the SCC accepts clergy
members as lawyers. Moreover, the lawyers who are not clergy are banned from
practicing their profession in the SCC, which requires the defendants to choose
clerics as their lawyers. The non-cleric lawyers of Hojatoleslam
Mohsen Kadivar, a reformist
religious scholar, and Hojatoleslam Abdollah Nouri, a former Minister
of Interior, were refused by the SCC and the accused were forced to receive the
services of clergy for their defense.
CASES
Mehrangiz
Kar (lawyer and women's
rights activist): After her participation in the international Berlin
conference, where she made a speech advocating women's rights, Ms. Kar was arrested on 29 April 2000 and detained without charge.
She was freed on $60,000 bail on 21
June 2000. Her family had not been informed of her
place of detention and she was denied access to legal council and a fair trial.
Shirin Ebadi, her lawyer, had to resign, stating in an interview on 5 June that
she was not permitted to meet with her client when she was questioned. On 10 October 2000
she was tried, along with sixteen other reformist intellectuals, who attended
the conference, and on 13
January 2001, she was sentenced to four-year
imprisonment by Tehran Revolutionary
Court on charges of
"propaganda against the state" and "insulting Islam." Mrs. Kar has recently been diagnosed with breast cancer and was
prevented for a while from leaving the country for medical treatment.
Mohsen
Rahami (lawyer, human rights
defender, a former member of Parliament, and professor of law at Tehran
University),
and Shirin Ebadi (lawyer, women's and children's rights defender): Mr. Rahami, a lawyer for students injured during the raid by
security forces on student dormitories in July 1999, and Ms. Ebadi, an advocate
of women's rights and a lawyer for writers and intellectuals murdered in 1998
and 1999, were arrested on 27 June 2000. Having represented the family members
of the victims in "Serial Murders" cases, Mr. Rahami
and Ms. Ebadi were accused of "disturbing public opinion" by
producing and distributing a video cassette, in which Amir
Farshad Ibrahimi, a former
member of Ansar-i Hezbollah, stated that Ansar-i Hezbollah vigilantes had received payments from
senior clerics and conservative government officials to carry out attacks
against reformists and dissidents, including a failed attempt to murder Hojjatoleslam Abdollah Nouri, former Vice President and Interior Minister. The
lawyers were held for weeks in pre-trial
detention
without access to legal counsel. After a closed trial in 27 September 2000,
both lawyers received suspended prison sentences of fifteen months and were
banned from practicing law for five years.
Nazar
Zarafshan (lawyer): Mr. Zarafshan, attorney for the families of the serial murder
victims, was arrested on 10
December 2000 for "revealing state secrets"
and "engaging in propaganda against the Islamic system." Mr. Zarafshan had criticized the lack of investigation before
the trial of those convicted for these murders and suggested that a series of
killings at the end of 1998 was part of a wider plot and that, therefore, other
unsolved murders should be investigated and tried simultaneously. Mr. Zarafshan was freed on 13 December 2000, then rearrested
shortly thereafter and held in solitary confinement until his release on 13 January 2001
on $60,000 bail.
Hojatoleslam
Sayyid Mohsen Saidzadeh (reformist legal
scholar, lawyer and a former judge): He was arrested without a warrant on 28
June 1998, and convicted by the SCC for his criticism of the legal situation of
women under Iranian law and his advocacy of the equality of men and women
before the law. After being held in incommunicado
detention in Tehran
for a prolonged period, he was released from prison in early 1999. He has been
banned from performing any clerical duties and publishing for five years. As a
result, he discontinued writing his monthly column, in which he had discussed
various legal issues, focusing on women's rights.
***
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