Iran Human Rights (IHR); May 4, 2021: IHR's Annual Report of the Death Penalty in Iran sets out the procedures in the issuance of death sentences by Iran’s judicial system.
Access to lawyer
Article 35 of the Iranian Constitution grants access to lawyers. The Criminal Procedure Code drafted in 2013 and the 2015 amendments address, among others, a suspect’s right to access a lawyer in the pre-trial phase. Article 48 of the Criminal Procedure Code states: “When a suspect is arrested, he or she can request the presence of a lawyer. The lawyer, observing the secret nature of the investigation and the negotiations between the parties, should meet with the suspect. At the end of the meeting, which should not last more than one hour, the lawyer may submit his or her written notes to be included in the case file.”
However, a note added in the final draft places limitations on the suspect’s rights to choose a lawyer. The amended note says: “In cases of crimes against internal or external security, and in cases involving organized crime, where Article 302 of this code is applicable, during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the Head of Judiciary. The names of the approved attorneys will be announced by the Head of Judiciary.”
The note effectively states that in serious criminal cases and those involving charges commonly used against political prisoners and prisoners of conscience, during the pre-trial investigation phase, defendants may only select lawyers from a list approved by the Head of Judiciary. In June 2018, the judiciary announced a list of 20 lawyers approved to defend citizens with security and political cases.
Following objections from lawyers, the Iranian Parliament’s Judiciary Committee tried to propose a bill to change the law. The proposed bill removes the phrase “To select their lawyers from a list approved by the Head of Judiciary.” However, it imposes new limitations, including the possibility of limiting the right to access legal counsel for 20 days (which can be extended by order of the judge for an indefinite period) for defenders subject to Article 302 of the Code. Several lawyers expressed their concern regarding this limitation. Some of these concerns are published in interviews with the IHR bi-weekly Farsi law journal, Hoghoghe-ma (“Our Rights”). However, none of the people sentenced to death, regardless of charges, which IHR has acquired information about, have had access to a lawyer in the initial phase after their arrest.
Torture in detention
Article 38 of the Iranian Constitution bans all forms of torture and forced confessions. However, reports gathered by IHR and other human rights organisations indicate that torture is widely used against the suspects after their arrest and in the pre-trial phase in order to extract a confession. All death row prisoners IHR has been in contact with have testified that they were subjected to torture in order to confess to the crime they were charged with. This is not limited only to those with political or security-related charges. Almost all prisoners who were arrested for drug-related offences have been kept in solitary confinement and subjected to physical torture in the investigation phase following their detention, while being denied access to a lawyer. In many cases, confessions extracted in detention have been the only evidence available for the judge to base his verdict upon. Torture is also used in other criminal cases involving rape or murder where there is not enough evidence against the suspect.
On 28 August 2020, IHR published court document evidence that protester Navid Afkari had been sentenced to death after confessing under torture. In response, the judiciary issued a statement denying all evidence of torture and judicial injustices, which was rejected and refuted by IHR. Recordings of his phone conversations with his family where he describes the torture were later released and court recordings were also later obtained by IHR, in which Navid can be heard stating in court that he had been tortured to obtain a confession. He vehemently denied the charges and spoke out against his forced confessions being used against him as evidence, until the day of his execution on 12 September.
Courts and Trials
Among the charges punishable by death, murder and rape charges are tried by the Criminal Courts, while moharebeh, efsad-fil-arz, baghy and drug-related offences fall under the jurisdiction of the Revolutionary Courts.
Established in 1979 on the orders of Ayatollah Khomeini to try former officials of the Pahlavi Government, Iran’s Revolutionary Courts have continued to operate and are responsible for issuing heavy sentences to human rights defenders, journalists, dissidents and all those criticising the authorities. Additionally, they are responsible for the vast majority of all death sentences issued in the last 40 years. The Revolutionary Courts are not transparent, and its judges are known for greater abuse of their legal powers than any other judges. Revolutionary Court judges routinely deny lawyers access to individuals who are subjected to extensive interrogations under severe conditions. According to the former UN Special Rapporteur on the Situation of Human Rights in Iran, Ahmed Shaheed, who interviewed 133 people facing trial in the country for a 2014 report focused on Iran’s judicial system, 45% of those interviewed reported that they were not permitted to present a defence; in 43% of cases, trials lasted only minutes and 70% of interviewees reported that coerced information or confessions had been reportedly used by the judge or made up at least part of the evidence presented by the prosecution; some 65% of interviewees reported that the judge displayed signs of bias such as by reproaching or interrogating defendants and limiting their ability to speak and present a defence. A Resolution presented at the European Parliament in 2020 set out that Iranian courts regularly fail to ensure fair trials, with the denial of access to legal counsel and denial of visits by representatives from consulates, the UN or humanitarian organisations, and allow the use of confessions obtained under torture as evidence; whereas there are no independent mechanisms for ensuring accountability within the judiciary, and serious concerns remain over the politicisation of judges, particularly those presiding over Revolutionary Courts.
In a series of interviews with Hoghogh-e-ma, several prominent Iranian lawyers and jurists in the country questioned the constitutionality of Iran’s Revolutionary Courts and called for their dissolution.
All cases regarded as security-related, such as cases involving political and civil activists and others allegedly involved in corruption and drug-related charges, are processed by the Revolutionary Courts.
Methods of proving guilt
Confessions are the most common way of proving guilt in death penalty cases. As previously mentioned, confessions are often extracted under torture. In security-related cases mainly used against political dissidents, televised confessions are aired even before a final judgement is determined. Other ways of proving guilt include testimony by eyewitnesses (only by two men; a woman’s testimony is worth half of a man’s).
Witness testimonies are also used to prove guilt in the absence of a confession. In addition, according to the Islamic Penal Code, when there is no confession or witness testimony in a case, the judge can make a decision based on his exclusive opinion, without any reference to laws and codes. This is known as “knowledge of the judge”, or elm-e-qazi. The law requires that rulings based on a judge’s “knowledge” derive from evidence, including circumstantial evidence, and not merely personal belief that the defendant is guilty of the crime. However, there have been cases where elm-e-qazi has been arbitrarily applied. For instance, in December 2007, Makwan Moloudzadeh was executed for sodomy charges based on the “knowledge of the judge”.
Qassameh, or a sworn oath is another way to prove guilt of a crime (murder or injury) in Islamic jurisprudence (fiqh) which is practiced in Iran. Qassameh is based on swearing an oath on the Quran by a certain number of people and is performed when the judge decides that there is not enough evidence proving guilt of a crime, but the judge still thinks that the defendant is most probably guilty. It should be noted that the people who swear in qassameh ceremonies are not usually direct witnesses to the crime. In 2017, at least two people were executed for murder without any hard evidence or a confession. They were sentenced to death only based on qassameh by members of the plaintiff’s family. In one case, the defendant insisted that he was innocent and that he could prove that he was in another city at the time of the offence. However, 50 male members of the plaintiff’s family gave a qassameh that the defendant was guilty. He was sentenced to death and executed in Mashhad on 23 May 2017.
In 2017, IHR dedicated a full issue of Hoghogh-e-ma to qassameh and interviewed several lawyers and religious scholars on the issue. Since then, there have been increasing debate around the issue of qassameh inside Iran and in the Farsi media outside the country. In 2020, there was one case of qassameh.
 A. Asghari, S.A. Ashgar Mosavi Rokni, “Changes in Personal Knowledge of the Judge with Emphasis on Islamic Punishment Law”, International Journal of Social Sciences and Education, Volume 5, Issue 2, 2015 https://docs.google.com/viewer?url=http%3A%2F%2Fijsse.com%2Fsites%2Fdefault%2Ffiles%2Fissues%2F2015%2Fv5i2%2FPaper-22.pdf
 New Islamic Penal Code, Article 211
 New Islamic Penal Code, Articles 313 and 336.
 See section “Executions in practice: qisas”