Iranian Law and Judicial Practice towards Protestors from the ‘Women, Life, Freedom’ Movement
by Aida Mohaghegh — 20February 2023
A recent wave of executions of political prisoners in Iran has raised serious concern about the welfare of political prisoners. In this post by Transparency Lab, we discuss two important sets of issues. First, we focus on some of the significant violations of defendants’ rights in the pre-trial investigation phase and during the trial. These include illegal arrests, the criminalisation of actions which are not outlawed by Iranian legislation, the deployment of deception and torture to extract forced confessions and the prohibiting of independent legal counsel. In the second part, we focus on the law itself, especially those articles that are used to issue the death penalty to political prisoners. We expose the lack of clarity in these articles and explain how this ambiguity empowers the Iranian judiciary to use the law as a tool of suppression against protestors and political dissidents.
This article was originally published on Transparency Lab Project.
The mass protests that have shaken the IRI since last September have seen thousands of Iranian citizens take to the streets in opposition to the regime and demand their fundamental rights. The state has responded to these peaceful protests and other forms of civil resistance with predictable brutality, ranging from the killing and injuring of protestors on the streets to discrimination within the punishing judicial system, instilling fear in the society by handing out unfair and unjustifiably harsh sentences, including capital punishment.
Although hardly four months have passed since the start of the protests, two ‘warning’ executions have already taken place following the prominent legal cases of Mohsen Shekari and Majidreza Rahnavard. Both executions caused outrage among the general public in Iran and have been condemned widely by the international community. Various other severe judgements have been issued too. Due to the importance and time sensitivity of the topic of executions, however, this post will mainly focus on the laws and judicial practices related to death sentences imposed on the protestors. We will return to other sentences and forms of punishment in a future article.
In the first part, we will examine the laws associated with the executions and how the IRI’s legal structure enables pre-selected and pro-state judges of the revolutionary court to deploy the penal code and the legal system, effectively turning the judiciary into a wing of the state’s repressive apparatus. In the second part of this report, we will explore the articles in Iran’s Islamic Penal Code 2013 that specifically facilitate miscarriages of justice, contravene internationally recognised standards of legal transparency and empower the IRI’s political establishment to extend political and ideological corruption to the judiciary.
The violation of rights and problems with the implementation of the law
In this section, we will focus on how deficient legislation was actually largely ignored or only partially implemented during the recent legal and judicial procedures involving political dissidents and protestors.
The question of the legality of the demonstrations
The IRI state’s lack of regard for its own laws begins at the point of the arrest of a dissident. According to Article 27 of the 1979 constitution, public gatherings, and demonstrations, provided arms are not carried, can be freely held. Moreover, the article does not make these gatherings and demonstrations contingent on acquiring official permission, meaning that the arrests of peaceful demonstrators carried out by security and plainclothes forces is essentially in breach of the constitution.
It is worth noting that there is a typical lack of clarity within Article 27. It claims that gatherings should not be ‘detrimental to the fundamental principles of Islam’, but these supposed ‘principles of Islam’ remain undefined. Not only is this addition essentially at odds with international standards of freedom of speech, but it has enabled the state, which makes itself and its own survival synonymous with these nebulous ‘principles of Islam’, to crack down on peaceful demonstrations and brutally arrest participants.
The illegal criminalisation of the ‘leadership’ of demonstrations
A specific allegation used by state-related media, political and judicial officials and supporters of the state is the term ‘leader’ to single out protestors they deem to be more influential or fearless than others. This is done despite the fact that being a ‘leader’ is not defined as a crime anywhere within the IRI’s laws. The term, which presumably has been fed by the intelligence and security services to the pro-state media, is used in the original English, not the Farsi equivalent, rahbar. In all likelihood, this is because the Farsi equivalent is reserved for the Supreme Leader Ali Khamenei. This English-language label carries clear negative connotations in the IRI’s media, and is often associated with conspiracies portraying so called ‘leaders’ as agents of foreign intelligence services and linking protestors to the carrying out acts of violence and other unfounded allegations. 1
Whilst the IRI media’s strategic use of the term is a symptom of the lack of integrity and independence of these outlets, the deployment of the term has enormous legal ramifications, as it is used by judges and prosecutors and even makes an appearance in official judicial correspondence. The accusation is liberally thrown around during trials and also in media interviews and comments as a way of portraying the seriousness of the accusations or in order to justify harsh sentencing procedures. 2 As a result, many defendants and their families seek to establish their innocence by insisting that they were not ‘leaders’ during the trials and in interviews, which underlines how the Iranian judicial system has been weaponising politicised terminology that has no basis in the country’s laws or legal practices whatsoever. The legal case of Hassan and Farzaneh Ghareh-Hassanlou is particularly noteworthy in this respect, as it is one of the instances where the accusation of ‘leadership’ has, according to their lawyers, been raised as a formal legal charge alongside that of their alleged involvement in the death of a member of the security forces during a demonstration. The prosecution’s dogged insistence on accusing them of ‘leadership’, as well as the defendants’ denial of it, reinforces the significance of this extra-legal charge in the current politicised judicial environment. 3
Essentially, the widespread use of the term ‘leader’, which has the aim of instilling fear in both protestors and the wider public, is a pertinent reminder of the judiciary’s lack of independence and has grave implications for those arrested for protesting.
Torture and deception during the interrogation and beyond
There have been reports of the widespread use of torture after these in many cases ‘illegal’ arrests, as well as during the interrogation period, with the aim of ‘extracting’ forced confessions. 4 These typically involve making detainees admit to using weapons or force against security and plain-clothed state forces and occasionally to planning supposed terror attacks. 5 This happens despite the fact that the Iranian constitution is unequivocally opposed to torture and thus in line with international human rights standards. Article 38 clarifies that: ‘All forms of torture for the purpose of extracting confession or acquiring information are forbidden’. This pledge has, however, been flouted from the very outset of the IRI. What makes the use of torture even more concerning is that the interrogators often combine it with deception. This became evident in many recent cases, including the two youths who were eventually executed. Confessions made under torture are illegal and, according to Article 38 cited above, ‘any testimony, confession, or oath obtained under duress is devoid of value and credence’, with the accused having the right to retract any confessions that were obtained through torture during their trial. To get around this clause, the interrogation teams often resort to trickery to prevent the accused from recanting their confessions: they do so either through threats or by promising lighter sentences, the dismissal of the case in hand, or early release.
And while the use of such methods of deception has been documented, 6 their significance and ramifications are rarely discussed. For instance, such deception is often targeted at people from more disadvantaged socio-economic backgrounds, who tend to lack access to proper legal counsel and media support. Moreover, these methods prove particularly effective because the general public has no faith in the ‘rule of law’ or legal justice, and is thus inclined to believe that personal relations, cronyism and the construction of a ‘good relationship’ with those responsible for their case is ultimately their only option of being released, or of receiving a more forgiving sentence.
The combination of torture and trickery was particularly evident in the recent executions of Mohsen Shekari and Majidreza Rahnavard, who were both pressured into accepting the official charges during their trials and into refraining from raising any publicity for their cases in the media. What is more, the deception extends to the families of the accused, who are threatened and warned not to contact the media. In both cases, the families were called in to visit the prisoners one day before they died, but had no idea that their loved ones faced imminent execution. 7
The authorities have no compunction about deploying religious doctrine and references as a pressure tool to discourage families from protesting against the harsh sentencing, even in cases where the verdict is capital punishment. Primarily used against the defendants and families of unprivileged socio-economic backgrounds, in some cases judicial officials have likened the families’ objections to the harsh verdicts to ‘acting against God and the prophet’. These intimidation tactics are eerily reminiscent of the IRI’s suppression of political prisoners in the 1980s. 8
The problems associated with banning independent legal counsel and imposing court-appointed attorneys
Article 35 of the Iranian Constitution of 1979 grants all parties ‘the right to select an attorney in all courts of law’, which is in keeping with international standards, namely Articles 10 and 11 of the 1948 Universal Declaration of Human Rights. Nonetheless, Article 35 is contradicted by a controversial note in Article 48 of Iran’s 2013 Code of Criminal Procedure (henceforth referred to as the 2013 CCP), which amounts to a clear violation of the fundamental right of defendants to select their own counsel. The note specifies that in ‘security-related’ cases the defendants do not actually have such a right and that they must choose one of the attorneys from a special list compiled by the head of the judiciary, during the ‘preliminary investigation’ phase. This specific note was the subject of constant debate amongst Iranian jurists during the drafting phase of the CCP and subsequently. 9 In the recent cases related to the protests, the court-appointed attorneys have often been imposed upon defendants against their will.
As we explained in detail in our 2022 Transparency Report, 10 it is impossible to view the Iranian judiciary as an independent body — not least because its head of the judiciary is directly appointed by the Supreme Leader. As such, granting the head of Iran’s legal system the right to pre-select the lawyers that represent the defendants in so-called security-related and political cases is inherently flawed, amounting to a legal method of facilitating political and judicial corruption. For instance, in recent cases, there is evidence of pre-selected defense lawyers acting in an ineffective or even detrimental fashion. Below, we list some examples of this negligence.
Although the note to article 48 is a clear violation of the fundamental rights of the defendants, it is important to note that it also clearly only applies to the preliminary investigation phase and does not extend to the representation in the trial. However, in a patent breach of the internal laws and regulations, the Iranian judiciary actually prevents defendants in political cases from choosing independent representations, even during the trial stage; an act which has had serious repercussions for the defendants.
These lawyers do not provide adequate consultation or effective defence
The court-appointed lawyers have proven to be either unwilling to apply the existing laws and judicial practices to the benefit of their clients or ineffective in doing so. They do not provide proper consultation before the trial or an effective defence during it. Although full records of the trials are not published and therefor a rounded appreciation of what exactly goes on in court being impossible, a cursory look at the short excerpts from the trials that are published by Iran’s domestic media makes it obvious that, the majority of these state-appointed lawyers only fulfil a minimum of their formal legal functions before the judge and mount defences of their clients that are largely lackluster and futile. According to the defendants, court-appointed representatives do not attend pre-trial consultations or the vital ’investigation phase’, and effectively only show up at the trial itself. With a few exceptions, the outcome is a completely inadequate defence in trials where so much is on the line. The lack of adequate defence is primarily a product of the pre-selected attorneys’ lack of independence and state-ties, and secondarily these attorneys are allocated a huge number of cases at once, preventing them from preparing a considered defence; this latter issue has been admitted by some of these lawyers themselves. 11 In the two executions mentioned above, for instance, both of the appointed attorneys failed to utilize the legal framework effectively to save their clients: they filed appeals early, even though it is a well-established fact that doing so in such serious cases is actually damaging to the client.
These lawyers occasionally advocate against their clients
In addition to being generally ineffective, the court-appointed attorneys have in some cases proven to be directly detrimental to the case of their clients. These lawyers almost invariably accept the indictment brought against their clients and acknowledge the allegations against their clients, as was the case in the trial of Hamid Reza Rahnavard. 12 Or — worse — they make untrue statements about their clients during trial, as in the case of Hassan Gareh-Hassanlou’s, where his attorney reportedly denied that his client had been tortured during investigations, forcing the client to remove his clothing in the courtroom to prove that he was in fact subject to violence during interrogation. 13 Such injustice amounts to a grave violation of the fundamental right of access to a fair trial and fair representation, especially considering that this lack of proper representation has already resulted in two executions and a large number of harsh sentences, including capital punishment verdicts that might be enforced in the near future.
These lawyers are inaccessible to the families
It has also become evident that the court-appointed attorneys can often not be contacted by the families of the defendants. And if families do eventually succeed in gaining the ear of these lawyers, then they are either not provided with any specific details relating to the case, or are treated dismissively or even aggressively. In short, the imposition of carefully pre-selected, ideologically-oriented and over-worked appointed attorneys for defendants facing political and ‘security’-related allegations amounts to a serious contravention of the Iranian people’s right, in line with international standards, ‘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.’ 14
Fundamental problems with the law
In this section we review several of the issues and shortcomings pertaining to clarity and ambiguity within specific articles of the Islamic Republic of Iran’s current Penal Code. We note how the IRI’s politically corrupt and untransparent judicial system exploits these shortcomings to further intensify its repression of dissidents.
International human rights institutions have widely condemned the sentences that were passed on the basis of sham trials and revenge killings. The protestors have been charged with a wide number of offences, but three in particular, Enmity against God, Corruption on Earth and Baghi (i.e., armed rebellion), have the most severe implications and are often deployed in cases where death sentences and long-term imprisonment are passed.
In the current Iranian Penal Code of 2013 (henceforth: the 2013 IPC), Chapters 8 and 9, as well as a specific number of articles have been used as the basis of passing death penalties for political dissidents in the past few months.
Chapter 8, articles 279–285 pertain to ‘Moharebeh’. This is translated either as ‘Enmity against God’ or as ‘Waging war against God’. Chapter 9, Article 286, relates to ‘Efsad fi al-arz’ or ‘Corruption on Earth’, and article 287 on ‘Baghi’, or ‘armed rebellion’.
These laws, and the infringement of fundamental rights through sanctifying cruel punishments such as execution, amputation and crucifixion have been discussed by human rights experts and lawyers for some time. Here, we wish to highlight two aspects of these laws that directly undermine transparency standards.
Firstly, a key component of transparency is that rules and regulations themselves must be clear and unambiguous. 15 In our June 2022 TLAB report, we explained in detail that due to the hybrid nature of IRI’s legal system 16 and the central role of inherently anachronistic and unclear religious standards in law, including the penal code, many significant laws, especially those that can result in capital punishment, are inherently ambiguous and vague.
The vagueness has two dimensions, first due to the use of jurisprudence-derived terms which, as explained, are inherently vague. As such, their interpretation is a subject of constant debate amongst Islamic jurists themselves; the constant internal debates amongst Iranian lawyers and jurists (such as law professors) and their disagreement on general meaning as well as the applicability of these articles to specific cases, which has peaked since Mohsen Shekari’s execution, and still continues, clearly depicts that, where a matter of the gravest importance, meaning human life, is at stake the Iranian law is deeply problematic and at odds with international standards.
Secondly, and more importantly, we believe that the IRI lawmakers intentionally designed laws to address political activism 17 — and, in some cases, security-related instances — to contain the least possible amount of clarity and legal accountability by allowing for multiple and contending interpretations of the meaning of the crime and the criteria for assessing its ‘realisation’. Ultimately, this lack of clarity enables the judges of the revolutionary court who have connections to the state to exploit these vague articles as a tool of repression against the dissidents by passing punitive verdicts based on a particular reading of an article that invariably damages the defendants. It can be said that the three catch-all articles of ‘sowing corruption’, ‘enmity against God’ and ‘armed rebellion’ complement each other to ensure that a whole raft of ‘crimes’ relating to peaceful demonstrations and activism, can become punishable by death.
An important aside. The sections of the Islamic Penal Code of 2013 (further referenced as the 2013 IPC) that are based on jurisprudence were drafted by a Majles research centre committee of clergy jurists with expertise in Sharia law. In a recent debate, Jalil Mohebi, who sat on this committee, revealed that during the drafting process the jurists approached the Supreme Leader Ali Khamenei, who proclaimed that his interpretation of sharia laws should be prioritised when drafting laws, even over and above that of the Guardian Council. And while it is public knowledge that the Supreme Leader often directly intervenes in all state institutions, this inadvertent revelation 18 highlights the extent of such intervention by revealing how Khamenei has directly shaped the legislative process. Given his political position as the head of an authoritarian state, it becomes clearer why the aforementioned articles in the Islamic Penal Code of 2013, have effectively been conceived of and implemented as tools of repression against dissidents in a judicial system that is structurally and practically an institution led by the Supreme Leader.
To explore this point further, let us now look at the inherent ambiguity of the articles on Moharebeh (i.e., enmity against God) , as an example, and see how the Iranian judiciary has recently deployed them against arrested protestors.
According to Article 279 of the 2013 IPC, ‘Enmity against God’ is defined as ‘drawing a weapon on the life, property or the ‘honour’ of people or to frighten them, in a manner that creates an atmosphere of insecurity.’ The punishment for Moharebeh is crucifixion. When it comes to transparency, clarity and the principles of justice, this law is flawed in three major respects.
a) The criminalisation of the drawing of weapons, even in cases where no injury or death has occurred as a result, clearly contradicts international law that requires countries which have retained capital punishment to impose it ‘only for the most serious crimes, namely those involving intentional killing’. 19
b) The ambiguity about what is meant by ‘people’. Mohsen Shekari, for instance, had allegedly only lightly injured a member of the security forces, leading some Iranian jurists to argue that the sentence of ‘Moharebeh’ was impermissible in this case. After all, they said, Shekari drew a weapon that was aimed at a member of the security forces, which generally do not fall under the term ‘people’. Here we see how the law is not only unclear in the minds of the general public, but Iran’s legal experts too.
c) The failure to clarify what ‘creating an atmosphere of insecurity’ amounts to, or what the defining criteria of this action might be. This major shortcoming was the cause of another public dispute among senior Iranian jurists in Shekari’s case in particular. Some justices claimed that Shekari’s actions could not have created an atmosphere of insecurity, and that the judge could not have been aware of Shekari’s actual intentions.
d) The term ‘life’ in the article, as in the phrase ‘drawing a weapon on people’s life…’ should supposedly entail the act of killing and not merely injuring. Nonetheless, this is not explicitly stated, giving judges the freedom to interpret the law as they see fit and to hand out capital punishments for the infliction of mild injuries.
e) According to Article 282, ‘Moharebeh’ is punishable by execution, crucifixion, mutilation of the limbs or internal exile. Article 283 awards the judge the liberty of choosing either punishment. Regarding the trial of Mohsen Shekari, many Iranian jurists have argued that in cases where no lives have been lost as a result of drawing weapons, the judge should choose the ‘lesser’ punishments. Moreover, given that there are fortunately no precedents of sentences of mutilation and crucifixion in Iran, the general expectation is that, in cases like Shekari’s, the verdict should be ‘internal exile’. But the judges of the revolutionary court clearly sought to make an example of Shekari by exploiting this problematic law and opting for execution over exile.
Similar problems flowing from the lack of clarity that give judges the arbitrary and almost unfettered power of interpretation are also apparent in other articles, particularly those related to the charge of ‘Corruption on Earth’. We will return to these specific issues in a future post.
Other significant problems
This post has highlighted an array of the most pressing problems of the legal and judicial practices related to the ongoing protests in Iran. It must be stressed, however, that the list of violations of rights and laws is much longer, with many other domestic laws and international standards being contravened during the recent trials. We will address these issues in a future post.
- In the recently leaked internal analytical bulletins of Fars News, drafted for the IRIGC, the term is widely used, further demonstrating its likely origins in the intelligence and security forces. Also see: bit.ly/3WElHXt.
- For examples, see: bit.ly/3Cacmi3
- See: https://www.pishkhan.com/news/288048
- See, for example: https://www.rferl.org/a/iran-hosseini-torture-death-sentence-lawyer/32183542.html
- For example the case of the Shirazi mountain climbing team: https://ir.voanews.com/a/another-forced-confession-published-by-tasnim/6876044.html
- For example, in the case of two young protestors, Arash Rahmanipour and Mohammad Reza Alizamani who were arrested during the Green Movement of 2009, and later executed: https://www.radiofarda.com/a/f2_Iran_postelection_detainees_executed_Rahmanipoor_Alizamani/1941892.html
- This tactical deception is at times deployed until the last moments of a political prisoner’s life, as it has been documented in the cases of Mohammad Hosseini and Mehdi Karami, who were constantly reassured by prison authorities that they would not be executed in a bid to prevent rebellion inside their ward; as a result, they were kept in the dark about their eminent execution until the final moments.
- See, for instance, this interview with Mohammad Mehdi Karami’s father, who explains how a judiciary official invoked religion as a way of cajoling the family into accepting the verdict: bit.ly/3WBZ9qr
- The current version is in fact the result of a slight and inadequate amendment from 2015.
- https://www.tlabproject.org/report, p, 42.
- See: https://bit.ly/3CTjRKz
- See: bit.ly/3w9YVeA
- See: bit.ly/3QetDwf
- See: https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-role-lawyers
- We define transparency as follows: ‘Transparency means that decisions taken, and their enforcement, are done in a manner that follows the rules and regulations, which themselves are clear and unambiguous. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided and that it is provided in easily understandable forms and media.’ Our definition is based on a document produced in 2007 by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) and adapted to the Iranian context. For a more detailed explanation of our approach, see our June 2022 report on ‘Transparency, Corruption and Accountability in Iran’ at: www.tlabproject.org.
- Meaning that it draws both on modern standards and (the IRI’s interpretation of) Shia jurisprudence.
- Even if the Iranian lawmakers do not recognize them as such and instead catagorize them as ‘security’-related offences and crimes.
- Note that Mohebi’s ‘revelation’ was actually unintentional, since he made the comment to justify and strengthen his position in the debate by reassuring the audience that the IPC has been drafted with the direct guidance of the Supreme Leader.
- See: https://www.ohchr.org/en/press-releases/2012/10/death-penalty-if-retained-only-permissible-most-serious-crimes-un-rapporteur