Iran: Safety and Independence of Lawyers & Access to Legal Representation | Report

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Safety and Independence of Lawyers & Access to Legal Representation in Iran

by

LRWC and L4L

Advocacy Rights

1.1           As a member of the United Nations (24 October 1945), the Islamic Republic of Iran (Iran) has obligations to ensure the equal enjoyment by all people within its territory of the personal and advocacy rights protected by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).[1]

1.2           Discharge of these obligations entails ensuring for all the right to legal representation guaranteed by the ICCPR as part of rights to due process and equality. Article 14(3) (d) of the ICCPR lists, among the minimum procedural guarantees for persons charged with a criminal offence, the right, “to…defend himself in person or through legal assistance of his own choosing… and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” The United Nations Human Rights Committee (HR Committee) has determined that this right to be represented extends to civil proceedings.[2]

1.3           It is widely accepted that in order to ensure the right to legal representation, states must adopt and maintain effective measures to ensure the safety and independence of lawyers and the freedom to engage in advocacy without reprisals. The United Nations Basic Principles on the Role of Lawyers (Basic Principles)[3] describe specific state duties widely accepted as necessary to ensuring the right to representation through ensuring the independence and safety of lawyers and protecting lawyers from interference by state and other actors. Compliance with the Basic Principles is a fundamental pre-condition to fulfilment of the requirement of every state to ensure effective access both to enforcement of rights and the legal representation required for effective enforcement and remediation.

1.4           The Basic Principles recommend, amongst others, that:

(a)            Lawyers must be able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. Lawyers shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics (Article 16);

(b)            States shall adequately safeguard the security of lawyers who are threatened as a result of discharging their functions (Article 17);

(c)            States shall ensure that all persons are entitled to assistance from a lawyer of their choice to protect and establish rights and to defend them in all stages of criminal proceedings (Art. 1);

(d)            States shall ensure that all people within its territory have equal access to legal assistance without discrimination based, inter alia, on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin (Article 2); and

(e)            States shall ensure that lawyers are free to form and join self-governing professional associations and further that the executive body of such an association is elected by its members and operates free from external interference (Article 24);

1.5           Iran has failed to fulfil these obligations and has not cooperated with the investigation and reporting that could lead to improved compliance with its obligation to ensure rights and access to remedies through safeguarding the safety and independence of lawyers. Requests by the Special Rapporteur on the Independence of Judges and Lawyers to visit Iran in 2006, 2008 and 2011 have been refused.[4]

1.6           In violation of the obligation to protect the personal advocacy rights of individuals and the rights of lawyers to engage in advocacy (as contained in the ICCPR and UDHR), Iran has, inter alia:

(a)            subjected lawyers to politically motivated prosecutions and to arbitrary detention for exercising protected freedoms of expression and association and for carrying out their legitimate work as lawyers;

(b)            carried out reprisals against members of the Defenders of Human Rights Center (DHRC) for their peaceful human rights advocacy;

(c)            denied medical attention and access to legal representation to imprisoned lawyers; and

(d)            carried out reprisals against lawyers representing members of minority groups in cases involving the determination of rights.

2. ARBITRARY DETENTION OF LAWYERS

2.1           Some of the lawyers wrongfully prosecuted and arbitrarily detained in reprisal for their human rights advocacy are listed below. Some of these lawyers have themselves been denied access to legal representation.

2.2           There is a lack of access to adequate healthcare in Iranian prisons, and reports indicate that several lawyers in detention have been denied adequate medical treatment. For example, reports indicate that Mustafa Daneshju was found unconscious in a prison shower; Mohammad Seifzadeh urgently requires treatment for serious heart disease; and, Abdolfattah Soltani and Amir Eslami face health problems.

2.3           Although the ICCPR does not expressly provide for a right to health care, the HR Committee has determined[5] that adequate and timely medical care must be provided to all detainees as part of state duties to ensure the enjoyment by all persons of rights to life (Article 6), freedom from torture and other cruel, inhuman or degrading treatment or punishment (Article 7) and the right of prisoners to humane treatment (Article 10).  As stated by the HR Committee, “the State party [to the ICCPR] by arresting and detaining individuals takes the responsibility to care for their life.”[6]

2.4           In August 2013 authorities released Javid Houtan Kian, a prominent lawyer arrested in October 2010. Mrs. Nasrin Sotoudeh, human rights lawyer and member of the DHRC, was released on 18 September 2013. Despite these releases, many lawyers are still arbitrarily detained or face prosecution and imprisonment as a result of their human rights advocacy.

3. Reprisals against members of DHRC

3.1           In 2001 the DHRC was established by five prominent lawyers: Ms. Shirin Ebadi, Ali Dadkhah, Mohammad Seifzadeh, Mohammad Sharif and Abdolfattah Soltani. The objectives of the DHRC include (i) defending those accused of political crimes and prisoners of conscience on a pro bono basis, (ii) publishing reports on human rights in Iran, (iii) facilitating a dialogue amongst intellectuals and activists, and (iv) providing human rights education.[7]

3.2           Various founding members of the DHRC have been harassed by state agents, and some members were sentenced for founding the DHRC.

(a)            Abdolfattah Soltani has been subjected to abduction and prosecution for representing clients in politically sensitive cases.  Soltani represented the journalist Akbar Ganji and the family of the Canadian photographer Zahra Kazemi who died in prison during or after interrogation. On 4 March 2012, Soltani was sentenced by the Iranian High Court to 13 years imprisonment for: (i) founding DHRC, (ii) spreading propaganda against the regime, (iii) undermining national security and (iv) ‘illegally’ accepting award moneys from the Nuremberg International Human Rights Awards in 2009.[8]

(b)            Mohammad Seyfzadeh was charged and convicted of taking part in the formation of DHRC. He was banned from practicing law and sentenced to 9 years imprisonment in October 2010.[9]

(c)            Mohammad Ali Dadkhah was sentenced on 4 July 2011 to nine years imprisonment and banned from practicing law for attempting to overthrow the government, when he defended a Christian pastor on death row in Iran for apostasy. His sentence was affirmed by the court of appeals on 28 April 2012.[10]

4. Minority groups: denial of legal representation

4.1           The UN General Assembly has expressed concern about human rights abuses against members of minority groups.[11] In October 2013, the Special Rapporteur on the human rights situation in Iran reported that religious minorities have been increasingly subject to various forms of legislated discrimination, including in employment and education, and often face arbitrary detention, torture and ill-treatment.[12] In this context, the ability of counsel to defend their clients without hindrance or harassment is critical.

4.2           Other human rights organisations have recently reported the cases cited below where: (i) legal representation was denied to members of minority groups, and (ii) lawyers were arrested and prosecuted apparently for representing members of a minority group.[13] These reports deserve further investigation by the Special Rapporteur.

Ahwazi Arab people

(a)            In 2009 five men (Ghazi Abbasi, Abdul-Reza Amir-Khanafereh, Abdul-Amir Mojaddami, and Jasim Moghaddam Payam) were arrested and denied access to a lawyer. In 2012 they were convicted by Branch 1 of the Revolutionary Court of Ahwaz on the basis of “enmity against God, corruption on earth” and other vague and overly broad charges. Their death sentences were affirmed by Branch 32 of Iran’s Supreme Court in February 2013, and they were secretly executed in late 2013.[14] Mohammad Ali Amouri and four other men were arrested in 2011, and reportedly tortured in custody. All five were denied access to a lawyer and sentenced to death by a Revolutionary Court in July 2013.  The death sentences were upheld by the Supreme Court in January 2013.[15]

Kurdish people

(b)            Jamshid Dehghani, Jahangir Dehghani, Hamed Ahmadi and Kamal Molayee were arrested in 2009. They were denied representation by a lawyer and in November 2010 all were convicted by Branch 28 of the Revolutionary Court of Tehran of vaguely worded offences and sentenced to death. The Supreme Court affirmed the sentences in September 2013.[16] In the fall of 2013, Iranian authorities executed Habibollah Golparipour, Reza Esmaili and Sherko Moarefi, who had been convicted of national security charges in summary proceedings by the Revolutionary Court. [17]

Azerbaijani people

(c)            Houtan Kian’s legal counsel, Naghi Mahmoudi, fled Iran in 2011 because his own safety was threatened after he represented Azerbaijani cultural rights activists.[18] In 2008, human rights lawyer Hemid Valai and two ethnic Azerbaijani activists were arrested and reportedly tortured while in custody.[19] On 13 July 2013, five Azerbaijani human rights defenders (Mahmud Fezli, Dr. Latif Hasani, Dr. Ayat Mehrali Baglou, Behboud Gholizadeh and Shahram Radmehr) began a hunger strike to protest their nine-year sentences. All were denied timely access to lawyers, their lawyers did not have access to their case files during the investigation, and the appeal court refused to hear the lawyers’ arguments regarding trial irregularities.[20]

Sufi (Dervish) people

(d)            In September 2011 four lawyers (Farshid Yadollahi, Amir Eslami, Afshin Karampour and Omid Behrouzi) were arrested along with over 60 Sufis. Yadollahi and Eslami were imprisoned for representing Sufi clients and for lodging complaints of unlawful actions by security forces. They have been granted access to a lawyer. Three of the lawyers continue to be held in Evin Prison on charges of ‘insulting the Supreme Leader’, ‘spreading lies’, and ‘holding membership in a deviant group’.[21]  Mustafa Daneshju was arrested in his Tehran law office on 18 May 2011 for ‘spreading lies’ in relation to his representation of two Sufi clients. Mustafa Daneshju remains in custody[22]. The Special Rapporteur reported seven people were given sentences of 7.5 to 10.5 years in prison for crimes associated with their roles as lawyers and administrators of ‘Majzooban Noor’, a community news website covering human rights abuses against members of the Dervish community. These individuals refused to submit an appeal as a form of protest against unfair trial standards, including inadequate access to counsel.[23]

5. Independence of the Iranian Bar Association

5.1           In 2012 the Iranian Judiciary drafted a bill on the reorganisation of the Iranian Bar Association: the draft Bill on Formal Attorneyship (the Bill). The Bill introduces supervision of lawyers by the state and thereby severely threatens the independence of the legal profession. The Bill is currently waiting to be submitted to Parliament. The Bill has been met with serious concerns from both Iranian lawyers and international organisations.[24] President Rouhani has recently promised that the Bill will be re-evaluated to ensure that proper attention will be paid to the independence of the Bar Association. However, the Bill has not been amended thus far.

5.2           The Bill introduces two mechanisms that contravene the requirement, set out in the Basic Principles. Firstly, it introduces a ‘Supervisory Committee’ authorised to: (i) control the admission and examination of trainee attorneys; (ii) grant and revoke licenses of attorneys; and, (iii) will be granted the ownership of the Bar Association’s assets.[25] This Supervisory Committee would consist of seven members elected by the Head of the Judiciary. This violates the principle that lawyers must be free to form self-governing organisations, with an executive bodies that are elected by its members and operate free from external interference.[26]

5.3           Secondly, the Bill would empower ‘competent bodies’—a term not defined by the Bill—to suspend lawyers from practising law.[27] The Basic Principles require all disciplinary proceedings against lawyers to be determined by an impartial disciplinary committee established by the legal profession, or by an independent authority or court, and must be subject to judicial review.[28] Further, the Bill stipulates that a member of the Judiciary shall chair each branch of the Disciplinary Court for Attorneys and the Disciplinary Court of Appeal for Attorneys.[29] The Head of the Judiciary would be empowered to approve the appointment of the Disciplinary Prosecutor for Attorneys.[30] These measures, together with the powers attributed to the Supervisory Committee, would place the Bar Association under effective control by the state.

6. Recommendations

6.1           It is recommended that to comply with obligations under the ICCPR and UDHR, Iran:

(1)           Bring legislation and policy into conformity with international obligations under the UDHR and ICCPR to protect rights to equality and freedom of expression and association, prisoners’ rights to humane treatment and rights of all to receive and provide legal representation;

(2)           Allow the Special Rapporteur on the Independence of Judges and Lawyers to visit Iran and conduct investigations related access to and freedom to deliver legal representation;

(3)           Ensure the immediate release from prison of Abdolfattah Soltani, Afshin Karampour, Amir Eslami, Mustafa Daneshju, Omid Behrouzi, Farshid Yadollahi, Kambiz Norouzi, Mohammed Seyfzadeh and Mohammed Ali Dadkhah;

(4)           Ensure the immediate release of all other lawyers currently imprisoned for discharging their professional duties, for defending the rights of persons belonging to a minority group or for belonging to a minority group;

(5)           Enable the DHRC to continue with their activities and to safeguard the personal and professional security freedom of all DHRC members;

(6)           Respect its obligation to provide adequate medically treatment for detained lawyers and other prisoners;

(7)           Amend the Draft Bill on Formal Attorneyship (articles 25 through 30, article 48, articles 90 through 93 and articles 120 through 122) in consultation with the Bar Association of Iran to: a) ensure that the independence of the bar is adequately protected; b) comply with the Basic Principles; and, c) comply with the duty under the ICCPR to ensure access by all to independent lawyers in cases involving the determination of rights.