Proposal Aims to Allow Authorities to Hold Detainees For at Least 20 Days Without Counsel

On May 5, 2019, the Iranian Parliament’s Judicial and Legal Affairs Committee approved a problematic proposal that would allow detainees accused of national security crimes to choose their own lawyer rather than one from a court-approved list.

But the proposal, which would have to make it through two other stages before it could become law, would allow the authorities to hold these detainees while denying them access to counsel for at least 20 days during an initial “investigation” stage.

Since late 2017, detainees held on national security-related charges—including journalists, activists, and defense lawyers—have been told to choose their counsel from a list approved by Iran’s chief justice.

This violation of international standards of due process has been condemned by lawyers and rights groups based inside and outside the country.

Iran’s Constitution sets no limits or conditions on the right to counsel.

Article 35 states, “Both parties to a lawsuit have the right in all courts of law to select an attorney,” and 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.”

If approved, the new proposal would allow these detainees to petition to be able to choose their own lawyer after 20 days of being held without one—subject to certain conditions.

For example, if the detaining authority decides that the detainee should be held without access to counsel for longer than 20 days, the detainee would be allowed to file an objection.

But it’s not clear exactly how the detainee would be able to object without having a lawyer. And if they did manage to make an objection, the detainee would have to wait for an undeclared amount of time while a court decides whether or not they should be allowed access to counsel.

According to the parliamentary committee’s spokesman, Hassan Norouzi, the proposal states that those accused of acting against internal and external security, financially supporting terrorism, conducing organized crime or committing financial misconduct involving more than 10 billion rials ($237,206 USD) could be prohibited from accessing a lawyer during an initial investigation stage for up to 20 days.

If the arresting authority deems it necessary to hold the prisoner without counsel for more than 20 days, the accused could challenge the decision in court, Norouzi added.

The proposal was presented to Parliament after Supreme Leader Ali Khamenei appointed conservative cleric Ebrahim Raisi as Iran’s new chief justice in March 2019.

Since then, the Judicial and Legal Affairs Committee has been trying to amend the controversial law without actually restoring the right to counsel.

Continued Policy of Denying Detainees Due Process

If the proposal becomes law, it would cancel the Note to Article 48 and eliminate the lawyer’s lists while prolonging the time for which a detainee could be legally held without access to a lawyer.

Since gradually coming into effect in 2017, the Note to Article 48 was criticized by Iran’s legal community for severely restricting detainees’ due process rights as well as a lawyer’s right to retain clients of their choosing.

The list became so unpopular in the legal community that former Chief Justice Sadegh Larijani tried to convince people that he was not responsible for it.

“The Note to Article 48 was not our idea at all and we tried to avoid it for the longest time but eventually we had no choice but to comply with the law in order to remove obstacles in prosecuting certain security cases,” Larijani said at a June 2018 meeting with senior judiciary officials.

The Note to Article 48 was ratified by Parliament and the Guardian Council in June 2015 but courts in various provinces only began issuing lists of lawyers to detainees in late 2017.

In January 2018, 155 Iranian lawyers called on Larijani to end judiciary-enforced restrictions on legal counsel.

“To help attorneys implement the law and protect the rights of every detainee, which should certainly be your concern as well, and to resolve past and present problems arising from the Note to Article 48 of the Criminal Procedure Regulations, it is our expectation that you take the necessary steps to help lawyers accept requests to represent the detainees,” said the letter.

In June 2018, the opposition-run Zeitoon news website reported that the list of allowable lawyers issued in Tehran included some with a history of serious human rights violations.

Prominent defense attorney Nasrin Sotoudeh was a vocal critic of the list before she was sentenced to 33.8 years in prison (of which she must serve 12 years subject to appeal) in April 2019.

“In the past, political suspects had a limited right to defend themselves and lawyers could take up their cases and carry out their professional duties despite all the dangers they faced, but now even that limited right is being completely eliminated,” she told Center for Human Rights in Iran (CHRI) on June 5, 2018.