Human Rights Watch
Thursday, 24 March 2016
New Criminal Code Restricts Choice of Lawyer
(Beirut) – Iran should remove restrictions on access to lawyers for people charged with national security crimes, Human Rights Watch said today. Nine months after Iran’s new criminal procedure expanded detainees’ access to a lawyer during the investigative phase, authorities are denying people charged with national security and political crimes access to an independent legal defense. These defendants should be able to choose their own lawyers.
Human Rights Watch interviewed lawyers, political prisoners, family members, and sources familiar with cases of detainees facing national security and political charges. Human Rights Watch documented several instances over the past year in which the detainees were denied access to lawyers during investigations or were forced to change their legal advocate under pressure by judiciary officials.
“While Iran claims the new criminal code has improved defendants’ rights, these efforts are meaningless if parliamentary amendments completely undermine the spirit of fair judicial proceedings,” said Sarah Leah Whitson, Middle East director. “The incoming parliament should ensure that the criminal procedure law is actually a step forward rather than two steps back for the rights of its own citizens.”
Iran’s new criminal procedure law was approved in 2014, and entered into force in June 2015. It stipulated that detainees could choose a lawyer while under investigation, with the exception of those accused of national security crimes, for whom such access could be delayed for up to a week. Article 190 of the 2014 code stated that, “denial of the accused of access to legal defense would nullify the information obtained during the investigation.”
However, three days before the law went into effect, parliament passed new amendments that further restricted the rights of people charged with national security crimes. The amended article 48 now requires people accused of certain offenses to select their counsel from a pool of lawyers approved by the head of the judiciary. These offenses include national or international security crimes, political and media crimes, and charges that incur capital punishment, life imprisonment, or retributive punishment (Qisas).
The new amendments also backtracked from the 2014 code’s provision that information obtained in the absence of a lawyer would be inadmissible, imposing only disciplinary measures instead. The judiciary has yet to provide the list of pre-approved lawyers mandated by the new law, but even in the absence of a list, officials are using this provision to arbitrarily reject lawyers appointed by detainees or their families.
Iran has consistently failed to prevent torture in detention and to investigate allegations of such abuse. Revolutionary courts use confessions obtained under torture as evidence in court. As a result, the right to access a lawyer from the time of an arrest is an important safeguard against abuses in detention.
On July 6, the Iranian bar association published an open letter to President Hassan Rouhani opposing the 48 amendments and asking him to take necessary measures to reform the law. Several lawyers who spoke to Human Rights Watch, some of whom asked to remain anonymous for fear of reprisal, expressed frustration about the last-minute amendments. They noted that in numerous cases involving national security charges, the prosecutor’s office did not allow them to represent their own clients during the investigation. They also said that though they had filed several requests with the prosecutor’s office, officials had refused to allow them to visit their clients in detention or to have access to their case files, citing the lack of an approved list as justification.
Salah Fallah, a lawyer who represents Nizar Zakka, a Lebanese citizen arrested by intelligence officials on September 18, 2015, said that Branch 1 of the prosecutor’s office in Evin Prison has not allowed him to visit his client. “I filed the paperwork two months ago and have not heard back from them,” he said. “All I want is to visit my client according to the law.” Sources close to Zakka’s family told Human Rights Watch that he is detained in Ward 2-A of Evin Prison under the supervision of Iran’s Revolutionary Guards and that the exact charges that he faces remain unclear to his family.
Mahmoud Alizadeh Tabatayi, who represents several journalists, activists, and others facing national security charges, said that since the new criminal procedure went into effect, he has not had access to his clients’ case files during the investigations. He said he specifically requested access to the files of the journalists Davoud Asadi, Ehsan Mazandarani, and Issa Saharkhiz, and of the Iranian-American citizens Siamak and Bagher Namazi, all of whom are detained in Evin Prison.
Iranian authorities arrested the three journalists and several others on November 1, 2015. Tabatabayi said that Saharkhiz and Mazandarani have been formally charged with “acting against national security” and “propaganda against the state.” On October 15, Iranian authorities arrested Siamak Namazi, the head of strategic planning at Dubai-based Crescent Petroleum, who was visiting his family in Tehran. The charges against him are unclear. Authorities arrested his father, Bagher Namazi, a former UNICEF representative in several countries, on February 22, 2016.
Human Rights Watch has also learned that authorities at Branch 2 of the prosecutor’s office denied the lawyer for Esmail Abdi, the secretary general of the Teachers’ Association, visits to his client and access to his case during the investigation. On February 22, Branch 15 of Tehran’s Revolutionary Court sentenced Abdi, who has been detained since June 27, 2015, to six years in prison on charges of “propaganda against the state” and “assembly and collusion against national security,” partly for a teachers’ demonstration in front of the Parliament on May 15.
Citing the new amendments, at least one revolutionary court judge has arbitrarily refused, during trial, to accept lawyers for a person facing national security charges. Several political prisoners said that Judge Abolghasem Salavati, from Branch 15 of Tehran’s Revolutionary Court, had refused to accept their lawyers at trial, or otherwise coerced them into appointing a new one without any clear legal basis.
Arash Sadeghi, a former student activist who was sentenced to 15 years in prison by Branch 15 of Tehran’s Revolutionary Court on charges including “assembly and collusion to disrupt national security” and “propaganda against the state,” told Human Rights Watch that his family had appointed Peyman Hajmahmoud Attar as his lawyer when Sadeghi was detained in Evin Prison, but that the authorities at Branch 2 of the prosecutor’s office had refused to accept Attar, questioning the authenticity of his paperwork and threatening to file charges against him for forging documents.
Sadeghi said that his family then chose Amir Raeesian, who tried to access Sadeghi’s case file several times but was rejected. “After I was released from prison on bail, I went to the court myself and asked Judge Salavati at Branch 15 to allow my lawyer to read my case file before the trial,” he said. “He told me that, according to the new criminal procedure, I can either have a public defender approved by the court, or I have to defend against the charges myself.” He said that Judge Salavati also refused to accept a lawyer for Sadeghi’s wife, Golrokh Iraee. On August 31, 2014, Sadeghi learned that the Revolutionary Court had sentenced his wife to six years in prison on charges of “insulting sacred beliefs” and “propaganda against the state.”
Iranian authorities arrested the couple for their peaceful activities and transferred them to Evin Prison on September 6, 2014. They were released on bail on September 27, 2014, and March 14, 2015, respectively, pending appeal.
International law guarantees anyone accused of a crime access to a lawyer at all stages of criminal proceedings, including during the investigation, the pretrial proceedings, and during the trial itself. Under article 1 of the United Nations’ basic principles of the role of a lawyer, “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” Article 14 of the International Covenant on Civil and Political Rights, ratified by Iran, says everyone charged with a criminal offense has the right to defend themselves through legal assistance of their own choosing, as well as to have adequate time and facilities for the preparation of their defense and to communicate with counsel of their own choosing.
“Defendants having access to the lawyer of their choice is a crucial safeguard for guaranteeing a fair trial in Iran,” Whitson said. “Iran should immediately address this problematic provision in the law and take effective action against abuses committed in its judicial system.”