Iranian Lawyers: Judiciary’s Mandatory List of Approved Counsel Sets “Dangerous Precedent”
Note to Article 48 Detrimental to Fundamental Right to a Fair Defense
Three human rights lawyers in Iran have strongly criticized the judiciary’s decision to force defendants held on politically motivated charges to pick their lawyer from an approved list.
Prominent human rights lawyer Nasrin Sotoudeh told the Center for Human Rights in Iran (CHRI) that such lists “violate suspects’ rights because they strip them of their right to choose their own lawyer.”
“It’s like telling someone you can get an operation from only three surgeons selected by us, not any of the thousands of other doctors in the city,” she said.
“The judiciary chief’s [Sadegh Larijani’s] ill-conceived action is a dangerous precedent,” added Sotoudeh. “In a big province such as West Azerbaijan, where there are more than 3,000 lawyers, only 32 have been put on an approved list.”
In January 2018, judicial offices in several Iranian cities received lists of lawyers that have been allowed by the judicial branch to take on cases involving national security charges at the preliminary investigation stage.
Iran’s Constitution sets no limits or conditions on the right to legal counsel.
Article 35 states, “Both parties to a lawsuit have the right in all courts of law to select an attorney, and if they are unable to do so, arrangements must be made to provide them with legal counsel.”
According to Article 48 of Iran’s Criminal Procedures Regulations, people have the right to ask for and have a meeting with a lawyer as soon as they are detained.
However, the “Note to Article 48” makes exceptions: “In cases of crimes against internal or external security…during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the head of the judiciary.”
The Note to Article 48 in Action
There are several known cases of the Note to Article 48 being used to deny due process rights to people held on politically motivated charges in Iran, including lawyers.
A lawyer who has been detained and is facing eight charges for accusing police in the city of Arak of covering up the real cause of death of his client in custody has been denied access to counsel of his choice.
“In response to our inquiries regarding Mr. Najafi’s case, we have been told that we are not on the judiciary’s list of authorized lawyers,” attorney Payam Derafshan told CHRI on March 10, 2018.
Several human rights lawyers have been imprisoned in Iran for peacefully engaging in their profession including Abdolfattah Soltani, who is currently serving a 13-year sentence for the charges of “being awarded the  Nuremberg International Human Rights Award,” “interviewing with media about his clients’ cases,” and “co-founding the Defenders of Human Rights Center.”
On January 18, 2018, a website devoted to news about Iran’s Sufi Gonabadi minority faith reported that judicial authorities in the city of Yazd denied a lawyer who had been asked to represent four detained Gonabadi Dervishes from taking on the cases by citing the Note to Article 48.
In an opinion piece in the Iranian daily, Vaghaye Etefaghiyeh, on February 17, 2018, attorney Saleh Nikbakht wrote, “[The Note to 48] has curbed lawyers’ independence and weakened the foundations of fairness from the start of the investigation process.”
“This misstep will lead to nowhere and have a lot of costs and raise questions about Iran’s judicial system,” he added.
Lawyers as Political Stooges
Sotoudeh, a vocal human rights advocate who was also previously imprisoned in Iran for taking on politically sensitive cases, told CHRI that the Note to Article 48 not only undermines due process rights, it also undermines lawyers’ independence.
The Note to Article 48 also permits judicial authorities to delay an individual’s access to a lawyer by up to a week in cases involving alleged “crimes against the country’s domestic and foreign security.”
“We object to the judiciary chief’s indefensible behavior in introducing what amounts to discriminatory rules against the right to a fair defense, and if our objections do not result in reforms, we will take further action,” she said.
“If the head of the judiciary can stop lawyers from practicing, it’s time to say goodbye to this profession,” she added.
Two other Iranian human rights lawyers, Hossein Ahmadiniaz and Mohammad Moghimi, told CHRI that they were prevented from representing defendants accused of security charges because of the Note to Article 48.
“They have divided the legal profession into us and them; those who are approved by the state and those who are not,” said Ahmadiniaz.
“This is against Articles 3, 19 and 34 of the Constitution,” he added. “Article 19 clearly emphasizes equality among all citizens and Article 34 calls for fair and just adjudications. Article 3 calls for ending discrimination and yet what is taking place is discrimination on a large scale.”
Article 19 of the Constitution states, “All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights; and color, race, language, and the like, do not bestow any privilege.”
Article 3 states that the government has a duty to work toward “the abolition of all forms of undesirable discrimination and the provision of equitable opportunities for all.”
“Easy access to a lawyer is one of the pillars of justice,” Ahmadiniaz added. “This access should be especially available to suspects who have been accused of security crimes by the state. But these recent lists based on the Note to Article 48 take away the right to choose.”
The human rights lawyer continued: “I went to the judiciary regarding a security case and I was told that based on Article 48, I am not qualified to take on this case. There was another case in Tehran and I was told I have to be on the list.”
“How can a lawyer handpicked and approved by the security establishment defend a suspect accused of political crimes?” he added. “On one side, you have a person accused of political and security crimes, and on the other side there are representatives of the Islamic Revolutionary Guard Corps and the Intelligence Ministry who show up in Revolutionary Courts run by their own people. On top of all that, you want to force suspects to hire one of your own state lawyers? Well, that’s not fair.”
Continued Ahmadiniaz: “Lawyers who lack independence will not point out the flaws and problems in cases against their clients. They will not give interviews. You don’t have to give interviews but we do talk to the media because there are times when clients need to exercise their natural right to inform the public. That’s not espionage or breaking the law. Lawyers talk about rights and the rule of law. They must be advocates for social rights and demand justice for their clients.”
According to attorney Mohammad Moghimi, the Note to Article 48 “has really reduced to nothing the right to defend yourself.”
“The family of one of the people arrested in the recent protests contacted me and when I went to the judiciary to follow up on the case, I was told that I cannot represent this case because I have to be on a list,” he added. “I demanded to see this list but they didn’t have one. I said I have a license to practice law and that means I have the right to take this case. But they said based on Article 48, I’m not qualified.”
Continued Moghimi: “What they want is someone who listens to them and won’t stand in their way. That’s a betrayal of the law. It will make lawyers more cautious and cause them to fear doing many things that could leave them off certain lists.”