In general, independent, impartial and just judges are trained by and practice within a system based on independence, impartiality and justice. Even though in the constitution of the Islamic Republic of Iran, the judiciary has been referred to as an independent entity, it lacks any measure of independence or impartiality owing to the fact that the highest authority in the judiciary is appointed by the supreme leader from among his most trusted clerics.
In the 33 years of the Islamic Republic of Iran, none of the heads of the judiciary has had any judicial experience. It is obvious that such a system does not tolerate the independence of judges and lawyers; instead, it appoints those who are captive to the will of the institutions of power. In such a system, the intended coordination between the judges and attorneys is carried out by an association of attorneys affiliated to the establishment. The role of the independent association of attorneys is ignored, and the rule of law is sacrificed in order to prevent the presence of independent attorneys in court hearings.
For purposes of illustration, it is worth looking at a few cases:
1. The interference and influence of the ministry of intelligence in the decision-making process is evident in the behaviour of the investigators and judges and manifest in the arrest warrants for the accused, since the agents of the ministry of intelligence are involved throughout the proceedings. In order to illustrate their influence, it suffices to look at the subpoena for Abdolfatah Soltani . The subpoena reads: “ … as soon as the subpoena is seen and communicated in the presence of the agents of the intelligence ministry …” This is when, according to the law, the responsibility for communicating the subpoena to, or arresting, the accused is with the officers of the police force who act as the enforcers of the judicial authority; the intelligence agents have no right to interfere in such affairs. Furthermore, the very wording as cannot be deemed a subpoena, but rather an arrest warrant, although the investigator calls it a subpoena to avoid any legal implications.
2. One of the basic rights of the accused is to lodge an appeal against the temporary arrest warrant issued to them. In order to appeal, they (or their attorney) need to know the nature of accusations and have access to their file. However, in none of the political cases taken up by the revolutionary courts, did the judges issuing the arrest warrants grant access to the files or reveal the grounds for the arrest. Given this lack of access to the relevant files, the defendants can only appeal against the warrant or the arrest without being able to present any arguments in support of their appeals. The best testimony to this claim is the verdict issued by the Tehran appeal’s court in the case of Abdolfatah Soltani .
3. Depriving some of the defendants of the right to have an attorney is yet another case of illegal treatment, which once again undermines the independence of the judicial system. There are cases in which the defendants have gone on trial without an attorney, merely being allowed to choose one for the appeal process. Here again, however, the judges may refuse to accept the attorney. In some cases, they have even refused to accept the appeal petition submitted the attorney. Instead, they have forced defendants (who may well be illiterate or semiliterate) to appeal in person .
4. Under the current legal system prevailing in Iran, common criminal courts are entitled to deal with all crimes, including political offences. According the current law, political defendants have to be tried in the provincial criminal courts in the presence of 5 judges and a jury. Furthermore, the jurisdiction of the revolutionary courts is strictly limited to very specific crimes, which have been named in the law. Unfortunately, all the political and ideological cases are brought before the court by the intelligence apparatus under the heading “national security” and are thus referred to the revolutionary courts. The judges in those courts deal with the cases in blatant violation of the prevailing laws and deal with the political aspects of the defendant’s case and even consider non-political charges against the defendants in the same court. Two clear illustrations of this claim are the charge of “not wearing the Hijab (the Islamic head cover)” against Nasrin Sotoudeh and the charge of “accepting a human rights award” by Abdolfatah Soltani (as a case of illicit earnings) in Tehran’s Revolutionary court.
5. Solitary confinement during the investigation process has not been mentioned in any chapter of the current legislation in Iran. The General Board of the High Court of Justice categorised solitary confinement unreservedly as over-extensive force and hence illegal . That notwithstanding, the judges at the revolutionary courts, in particular the judges at the branches no. 15, 26 and 28 of Tehran’s revolutionary court, issue orders that the defendants be detained in solitary confinement for the duration of the investigation until or even after a verdict has been passed. Blatant examples of this illegality are the detention of the leaders of the Bahaii community for over two years (while isolated from other prisoners) and the detention of Nasrin Sotoudeh for over three months in solitary confinement.
6. According to the procedures of criminal law and an amendment reiterating the rights of citizens, ta defendant has the right to seek legal advice and the court is required to ensure its implementation. However, all political prisoners and prisoners of conscience have been refused access to an attorney at all stages of investigation and this prohibition has not been disclosed in the records. Nasrin Sotoudeh , Abdolfatah Soltani and the Bahai community leaders are examples of such cases. It was only in court that they were permitted to see an attorney once or twice.
7. A trial judge is obliged to be independent, impartial and intent on finding the truth - and to rule according to the Constitution. However the judges at revolutionary court proceedings forbid attorneys to sit next to their clients. If the attorney objects to this rule, he/she will be accused of disturbing the court and threatened with dismissal or even arrest .
8. The verdicts handed down by the revolutionary courts are not transmitted to the defendants prior to their going to jail to serve their sentence. Even the appeal courts reviewing the revolutionary court rulings refuse to inform the defendant of the nature and detail of the verdict as those courts are not independent bodies but selected from among the branches controlled by the revolutionary courts. They also decline to provide written notices to the defendant .
9. The lack of independence among revolutionary court judges is further revealed by the sentences issued against human rights lawyers and the withdrawal of their licences. One clear example is Nasrin Sotoudeh’s case . During the trial, the judge in the presence of a number of lawyers, who had come to witness the hearing, announced that the court was not in the position to terminate an attorney’s license and the prosecutors had to change their tack regarding that practice. However, after several meetings with the officials of the Ministry of Intelligence, Nasrin Sotoudeh’s licence was terminated, as were those of Abdolfatah Soltani, Mohammad Seifzadeh and Mohammad Ali Dadkhah.
10. In the latter encounter, while while attending a court hearing to defend his client, Mohammad Ali Dadkhah was told by the judge of the branch 15 of Tehran revolutionary court that a warrant for his arrest had been issued, whereupon he was forced to surrender to the intelligence police.
11. Javid Hootan Kian, attorney to Sakineh Mohammadi Ashtiani, was arrested in his office in the city of Tabriz along with a German journalist and photographer and the son of Mrs Ashtiani on 1.10.2011. According to Hootan Kian’s attorney, Naghi Mahmoudi, he was both physically and mentally tortured after his arrest. This included using cigarettes to burn his hands, feet and private parts as part of the systematic physical torture. As a result, he resorted to using strong psychotropic drugs to tolerate this inhumane situation. In order to maximize his mental torture, he was transferred three months ago to another section of prison which houses criminals and drug addicts. Mr Mahmoudi believes that the intention of the authorities is to kill Hootan Kian silently.
The treatment meted out to human rights lawyers, be it withdrawal of their licences, imprisonment and/or torture, has forced many to leave the country, including Shirin Ebadi, Mahnaz Parakand, Shadi Sadr, Naghi Mahmoudi, Mohammad Mostafai, Mohammad Olyaeifard and Gholamhossein Raisi. With lawyers in danger of losing their independence and/or their licences they are reluctant to defend political prisoners and prisoners of conscience. This poses a major risk to the judicial system and the association of Iran’s attorneys; it will bear devastating consequences for the Iranian people.