This contribution is an extract from Part 2 of an unpublished brief presented to the Iran Tribunal convened at the Hague on 25–27 October 2012 entitled ‘Penal Policy in the Islamic Republic, an Instrument of Flagrant Abuse of Human Rights’. It traces the history of legal institutions in the Islamic Republic in its first fourteen years. It consists of two parts: (1) ‘The development of the judiciary and the penal code in the first decade of a sectarian state’ and (2) ‘A brief review of the situation of human rights at the end of the first decade.’ It argues that when Khomeini took control of the destiny of Iran in 1979 and imposed theocratic rule on the country, a major part of his political project was to eradicate the result of a 70-year modern and secular trend of legislative evolution which followed the Constitutional Revolution of 1906, and to discard the resulting secular judiciary as well as the independent Bar Associations. However, he goes on to point out, as often observed by scholars who have addressed the subject, that these early aspirations to Islamise and replace the whole body of laws … petered out because of the difficulties of adapting the principles of Islamic law to a complex modern society and that much of the law (civil and commercial in particular) that is in force is inherited from the Constitutional Revolution and the legal system for which it stood, and developed over the following eight decades. However, there were two extremely significant exceptions to this, namely, the judiciary itself and penal policy, both crucial from the point of view of human rights. In this extract we trace the process, and logic, by which the long-established right to defence in the criminal courts was undermined.
Traditionally and in accordance with established laws which had not been abrogated or modified by the present regime in Iran, the accused had the right to select lawyer(s) for his or her defence in all courts and tribunals, before the investigating judge, prosecutors, all civil and police authorities and for all charges, big and small. Furthermore, if the defendant was unable to find, appoint or pay for a legal counsel, then the court would, upon his or her request, appoint a member of the Bar as their counsel.
In felonies when the proposed punishment exceeded 3 years of imprisonment, Article 9 of the Law for the Establishment of the Courts of Assizes of 1958 obliged the clerk of the court to automatically appoint a defence counsel for the accused in the event that he or she failed to introduce their counsel(s) within 10 days of receiving a court notice. In fact, the court could not convene and hearings could not begin unless a qualified member of the Bar was present as counsel for defence. This general rule was also extended to Military Tribunals in 1978 where, prior to this date, only military counsel could attend. Article 35 of the Constitution of the Islamic Republic reaffirmed this basic right in 1979.
On 19 September 1984, the General Council of the Court of Cassation (Supreme Court), comprised of all members of the various chambers of the court and empowered to set legally binding precedents on guarantees for due process of law, reaffirmed and at the same time modified, the established legal rights of defence. It held that:
[…] intervention of counsel for defence, briefed by the court, in the event that the accused, personally, has not appointed attorney(s) for defence, is essential in criminal proceedings in cases where the main punishment for the crime in question could be a death sentence or life imprisonment […]
In this binding decision, the court had with great caution reiterated a principle that already existed, had been reaffirmed by the 1979 Constitution and was already a provision in the Law for the Establishment of Islamic Revolutionary Courts in the earlier days of 1979. At the same time, the right to a court-appointed lawyer was reduced from crimes exceeding 3 years of imprisonment to crimes carrying a sentence of life imprisonment or death.
Although this important guarantee was binding upon all courts of law throughout the period since February 1979, when the present regime gained power, members of the Bar faced multiple obstacles and harassments, as well as closed doors, in their attempts to represent anyone before the Revolutionary courts. Of the activities of defence attorneys, Ayatollah Rabbani-Amlashi, the then Prosecutor General, ignoring the principle of the presumption of innocence, said in an interview published in Ettela’at daily on 9 March 1982:
“[…] since defence from the point of view of Islam and the constitution of the Islamic Republic is permitted, the accused and the complainant may both employ the services of attorneys in courts. Of course only those attorneys who are defenders of Islam and the constitution of the Islamic Republic and not the attorneys who use their tongue and receive large sums to make the right wrong, and with a biting eloquence put falsehood on the seat of righteousness.”
On the subject of defence in courts for political prisoners or, as he described them, prisoners from ‘mohareb’ (warrior against God) and ‘ilhadi’ (atheist) crowds, Rabbani-Amlashi added:
“Their attorneys may defend the prisoners, provided that at least, they have belief in the guilt of these groups as mohareb and ilhadi (atheist) and would be ready to base their defence on the grade of their crime, demanding clemency and lenient punishments. They should not declare that the terrorist, the agent, the mohareb and the mofsed are innocent and demand their return to the society enabling them to repeat their crimes. …”
In general, throughout the 1980s and for several years after, lawyers were not allowed entry into the Revolutionary Courts. One distinguished member of the Bar, Hadi Esma’ilzadeh, who tried, in vain, to defend a political leader and to impose himself upon the court in 1980 was arbitrarily arrested in 1982 and as an act of vengeance for his deed was tortured and kept in prison for 8 years.
Apart from the Revolutionary Courts a considerable number of other courts, too, even in civil cases refused entry to counsels for defence. Lawyers, eventually, became too intimidated to appear before the courts.
The Iranian Bar Association, a much respected secular institution, which had gained autonomy by a cherished Law of Independence on 5 May 1953, organised the legal profession, monitored the right of defence, provided legal aid both in civil and criminal cases with all members participating pro bono. Known for its commitment to secular justice, to the universal heritage of the enlightenment, to the right of defence and to human rights, it was, side by side with the judiciary, a prime target of the new sectarian religious authority. Comprised of the bulk of practicing attorneys in the country, it was directed by the Bar Council composed of 12 members and 6 alternates. Election to the Council took place on a regular basis according to the law every two years. It had its independent Disciplinary Prosecutor and Disciplinary Courts and other officers appointed by the Council, who, together with the members and officers of the Council, acted pro bono.
The process chosen to eradicate the independence of the legal profession and to suppress the exercise of the right of defence and secular justice as obstacles to the legal persecution of human beings has faced the resistance and continued struggle of several generations of lawyers, old and young, over the past 30 years. It is a sad story, yet to be told in full… I can only touch briefly on this planned and sordid process during the first decade of the Islamic Republic that was designed to pave the way for a new religious penal policy that facilitated the suppression of non-conformist opponents. Hostile actions had already begun in the early summer of 1979, but the following are the major stages of the process:
In June 1980 the Revolutionary Council prevented the scheduled Bar Council election from taking place, citing ‘the need to purge the Bar before elections could be permitted.’
In May 1981 the offices of the Bar Association located in the Palace of Justice were occupied by force. The archive, the library and the funds of the association were all blocked and the offices sealed. The Council rented a property outside the Palace where the offices of the Bar Association were reopened.
In December 1981 the International Commission of Jurists recorded that a newly qualified lawyer, Mohsen Jahandar, had been condemned and executed by firing squad in August 1981 for having defended persons on trial in revolutionary tribunals. On 1 November 1981 another young lawyer, Mohammad Reza Khaksar Bakhtiari who defended political prisoners (members of the Mojahedin) was executed solely for ‘having undertaken the defense of the enemies of the regime.’ Other members of the Bar executed in this period included Manouchehr Masoudi, the former legal adviser to President Banisadr; Zia Moddaress a prominent lawyer and former Assistant Disciplinary Prosecutor of the Bar; Dr Mahmoud Majzoub; Mehdi Amin-Amin a veteran lawyer of prominence, former legal advisor of Iran National Airlines and a leader in the Baha’i faith, and Dr Manouchehr Ghaem-Maghami also of the Baha’i faith.
On 30 January 1982, by order of an Islamic revolutionary judge, the new premises of the Bar Association were occupied and Abdol Hamid Ardalan, the President of the Bar Council, Dr Mohammad Taghi Damghani and Jahangir Amirhosseini, two members of the Council, as well as Ms Batoul Keyhani, the Administrative Secretary of the Bar Association, who were present at the time, were arrested. The remaining members of the Council, who had not already been forced to leave the country for their safety, chose to hide and eventually ask for asylum abroad. In the same period, amongst other prominent members of the Bar, Hadi Esma’ilzadeh was arrested for counselling a well known political prisoner since, during the trial, he was not admitted to the court. His detention lasted six years during which he suffered torture and his health deteriorated badly.
On the same day, by order of the Islamic revolutionary judiciary, a young conformist, Eftekhar Jahromi, at the time a newly qualified lawyer, was placed in charge of the Association. Those arrested suffered torture and were arbitrarily given minimum sentences of six years as mofseds. The President and Dr Damghani lost their health as a result of torture and the severe condition of their detention. Mr Ardalan, a highly respected veteran lawyer died shortly after his release and Dr Damghani died ten years later in 1998 at the age of 72.
On 19 December 1982, the new administrative secretary of the occupied Bar, in an interview published in the daily Ettela’at, said that disciplinary action would be taken against some 300 members of the Bar by ‘devout’ and ‘committed’ individuals who had been invited to take up the office of disciplinary prosecutor. On the subject of a purge he added that a major purge has to be ordered by the Supreme Judicial Council.
On 18 June 1983, as demanded on the same day by the revolutionary prosecutor of Teheran, the Revolutionary Court presided over by Ayatollah Mohammadi-Gilani, in a single collective judgment made in their absence, disqualified 57 prominent members of the Bar and revoked their permits. The judge also declared a ban on their future employment with government departments. The list included the past and present members of the Council as well as disciplinary judges and prosecutors.
On 2 January 1984 the same revolutionary judge issued another collective judgment disqualifying in a similar manner 53 prominent members of the Bar.
A new law modifying the right of defence was legislated and under international pressure following the visits by the UN Special Representative for Human Rights in Iran, Reynaldo Galindo-Pohl, went into force in 1991. The law was an ineffective noisy drum, a publicity stunt, which quietly curtailed even the existing rules. Under the law the courts are only obliged to receive attorneys appointed by ‘the parties to a legal case’. The law did not oblige the courts to appoint counsels for the defendant and to observe the rule of counsel’s imperative presence ‘in cases when the main punishment for the crime could be death sentence or life imprisonment.’
Under the same international pressure after Galindo-Pohl’s visits, the efforts and effective protests of lawyers in exile, the authorities in Tehran accepted to restore the Bar and allow the election for a Bar Council to take place. The zeal shown by the members of the Bar for making the new turn a success was remarkable. Polling was scheduled for 9 October 1991. However, one day before, on 8 October, in an unconventional act, a bill was prepared, presented to the Islamic Consultative Assembly, and approved on the same day to be enforced immediately, to suspend the event pending a purge under the direction of the Head of the Judiciary.
As indicated above, the Iranian Bar had a long tradition of independence, a brilliant record in defending human rights and fundamental freedoms and in developing the right of defence and extending legal aid to the needy.
Today, though the dismantled Bar has been reopened with only a quasi-independence controlled by the Islamic judiciary and administered by the same persons who took over by force from the elected Bar Council, an important bulk of the new generation of members, have bravely and clearly shown their devotion to the right of defence. Many are to be found in prisons or under prosecution for protecting others or have sought asylum as a last resort. The saga has yet to be told.
Throughout the 1980s not even one counsel for defence was briefed by the Islamic Revolutionary Courts to defend persons who were accused of offences whose punishment was death or life imprisonment.
In the first 14 years of the Islamic Republic, thousands of political prisoners were massacred or killed in cold blood in prisons throughout Iran by order of the Revolutionary Tribunals. Trials were held in camera, the observance of due process of law, the principle of presumption of innocence and rules of proper investigation were not observed, more importantly, in the absence of defence lawyers. Thousands of others, too, for various reasons—for their social and religious beliefs; for apostasy; for their way of life and social and cultural expression; for their relationships; for their sexual habits; or for being charged with drug trafficking and armed robbery—were executed or given long prison terms in the same kind of summary trials.
According to long standing laws and traditions of the country, the binding opinion of the General Council of the Court of Cassations of 1984, which reaffirmed the imperative presence of a counsel for defence, as well as international norms and standards pertaining to fair trials and the right of defence, trials held in the absence of defence lawyers are at all times illegal and judicially have no impact.
Those who head the regime in Iran, its government and those responsible for its judiciary are, therefore, and must be considered as responsible for taking the lives of many thousands of innocent human beings by hanging, by shooting and by various other means. The executions are not administration of justice but extra-judicial killings. Therefore, the offenders should be brought to trial. The situation in Iran calls for serious action.
 International Commission of Jurists, Review No. 27 Justice in Iran, December 1981, p. 7. http://www.iranhrdc.org/files.php?file=PUBLIC/pdf/1323440481940-tiffdocs.pdf
 The incident is recounted in “Final Report on the Situation of Human Rights in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr. Reynaldo Galindo Pohl”, E/CN.4/1993/41, 28 January 1993, para 130.