Under the International Covenant on Civil and Political Rights (ICCPR), ratified by Iran on 24 June 1975, due process is guaranteed under article 14.^[1] Article 14 aims to ensure the proper administration of justice and to this end guarantees a series of specific rights, including the right to equality before courts and tribunals, regardless of nationality and without any form of discrimination; the right to a fair and public hearing by a competent, independent and impartial tribunal established by law; the right to be informed promptly and in detail about the nature and causes of the criminal charges; adequate time and facilities to prepare one’s defence, to communicate with a counsel of one’s own choosing, to be tried without delay, to examine witnesses; to be present during their trial, and the right not to be compelled for example through physical or psychological pressure to testify against oneself. Article 14 moreover contains particular guarantees for compensation for the suffering of wrongful conviction, the right to appeal a conviction to a higher tribunal, the right not to be tried twice for the same crime, as well as guarantees for the protection of juvenile persons. These elements are all the more important in legal systems that practice the death penalty.

It is commonplace to claim that the Iranian legal system covers the key principles of due process, but that these principles do not go far enough and that their implementation is flawed. And indeed, we do find due process provisions in the constitution, such as presumption of innocence, equal access to court, the right to an open hearing and access to legal counsel.^[2] But is the mere inclusion of certain familiar key principles and the vocabulary of due process in the constitution sufficient to claim that the legal system covers the key principles of due process? Is the main challenge the lack of sufficient due process provisions and their flawed implementation or is the main challenge something else?

The way in which a state regulates and puts into practice the administration of justice reflects the nature of the political regime. Although most societies have similar types of criminal justice agencies (such as courts, judges, police, prosecutors, prisons, etc), the systems of criminal justice differ significantly in their organisation and mission goals. On one side of the spectrum we find systems that are control oriented, where state control has supremacy over the claims of the accused. On the other side of the spectrum, we find systems that are due process oriented, where the political system stresses human rights and is devised to protect the rights of the accused. The international human rights system articulates the standards of this latter, due process oriented system.^[3]

In other words, due process rests on the premise that the legal system is one which recognises individual liberty as the basis for the organisation of the political system and as a limitation for the exercise of political power. Due process therefore involves not only the guarantee of a series of specific rights but also a requirement for a minimum standard of institutional design. It covers both substantive and procedural aspects. Substantive due process asks whether the government’s deprivation of life, liberty or property is justified by a sufficient purpose. Procedural due process asks whether the government has followed proper procedure when it takes away life, liberty or property. Therefore, speaking of due process presumes the existence of a particular constitutional design that facilitates or at least does not establish explicit barriers for the achievement of due process guarantees. Among the main features of such a design we find separation of powers, in particular guarantees for the independence of the judiciary; transparency; requirements on the competency of judges; and accountability. Absent such a minimum design, reforms of criminal procedure provisions and improvement of individual provisions on due process will have limited effect.

The examination of due process in any given country, therefore, requires a prior examination of the political and legal framework to see whether it at all makes sense to speak of due process when analysing the administration of justice in the country or whether the administration of justice is based on a framework different than one of due process.

In Iran, the Constitution of 1979 establishes the foundation for today’s political and legal system. This system, known as velayat-e faqih, is conceptually diametrically opposed to the concept of due process for two main reasons.

Firstly, under the system of velayat-e faqih, the supreme leader directly controls the legislative, executive and judicial branches of the government.^[4] The separation of powers and the independence of the judiciary, both of which are a prerequisite for due process, thereby lack the fundamental constitutional basis in Iran. As a result, the administration of justice may, and in practice does, suffer from undue executive interference, arbitrariness and a lack of transparency. Because of the absence of an independent judiciary, the administration of justice also lacks efficient mechanisms to prevent impunity. The independence of the judiciary also presumes that the judiciary is competent. The vetting process for recruiting judges under the Constitution of 1979, allows the judiciary to exclude anyone who does not adhere to state-sanctioned political and religious ideologies. Judges also risk arbitrary dismissal based on vaguely worded offences that enable the Supreme Disciplinary Court for Judges to arbitrarily dismiss judges for conduct found undesirable. In addition, the system of appointing judges does not ensure that qualified women and members of ethnic and religious minorities are appointed as judges.

Secondly, under the system of velayat-e faqih, individual rights are subordinated to the state ideology and the state interest.^[5] Individual rights are therefore conceptualised in a way that sees rights not as a premise and limitation for the exercise of political power, but instead as something subject to state control. Conceptually, this way of regulating rights is diametrically opposed to the rights-based framework that the concept of due process rests on.

Moreover, under the Constitution of 1979, individual rights suffer from a dual problem. Firstly, they are not held by all individual on a non-discriminatory basis.^[6] The constitution instead establishes a formal hierarchy of persons which is incompatible with the principle of equality which is fundamental to due process. Secondly, the content of rights is narrower than what follows from Iran’s obligations under international human rights law. As a result, a wide range of expression and actions that are legitimate under international human rights law are instead criminalised under the Iranian legal framework and subject to the administration of criminal justice.

In order for the administration of criminal justice to meet Iran’s obligations under international human rights law, it is therefore not sufficient to include independent due process provisions in the Constitution and in the Criminal Procedure Code. The main challenge to the implementation of due process lies in the constitutional framework which establishes institutional barriers for enabling a meaningful system of due process. If the aim is to bring the administration of justice into line with international human rights standards, change must therefore take place at this level.