This week, Nasser received that news — but it was not as the family had hopped.

Farhad jas been sentenced to four years imprisonment after being held, without charge, at Tehran’s Evein prison in Iran for more than four months — the victim of a 30 year campaign of religious persecution waged by that country’s extremist Islamic regime against people of the Baha’i faith.

Read full article from IPW’s repository here.

Read full article from Dubbo Weekender’s on-line publication: Saturday 22 Oct. 2011, page 19: http://www.dubboweekender.com.au/index.html

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Source: http://www.dubboweekender.com.au/index.html, Page 19, Saturday 22 Oct. 2011, Dubbo Weekender,

The Editor
Iran Press Watch]

by Hamed Saburi (15 Sep 2010)

The Cult scenario is a new trick by anti-Baha’i theoreticians of the Islamic Republic in Iran, intended to justify the past 32 years of atrocities against Baha’is and to create a legal rationale for future atrocities. For example, in passing 20-year sentences against the seven [former] leaders of the Baha’i community [editor's note: now commuted to 10 years], instead of acknowledging that they were prisoners of faith, they were branded by baseless accusations of “cult” activities against national security, spying and opposition to Islam, in order to justify the regime’s own atrocity.

Sayyed Kazim Moosavi, the expert activist against(!) the Baha’i faith, further revealed this scenario in an interview entitled “Baha’ism was involved in the Ashura 88 events” (1), by repeating his earlier falsehoods and calumnies (2) which had been repeatedly refuted by the Baha’is (3). The goal of this scenario is the justification and legality of the repression of Iranian Baha’is. This is the same scenario presented by Mohammad Javad Larijani in Geneva against the Baha’is (4) [at a February meeting of the UN Human Rights Council, to which Larijani is the Iranian delegate]. Using the space of the Western dialogue about the difference between the concept of official religious “sects” versus unofficial “cults” (5), some of which are despised and considered dangerous and illegal, he declared the past 32 years of repression and deprivation in the Islamic Republic against Baha’is to be a consequence of the “cult-like” activities of the Baha’is, rather than accepting that they were belief-based. (6)

Now, Mr Moosavi, who like Mr Larijani is among the theoreticians attempting to justify repression against Baha’is, says:

“Today, in the political language of the West the word ’sect’ is used for a branch of a religion and ‘cult’ is used for a following. In the Oxford dictionary, the word ‘cult’ is used for those who are enamoured of and are loyal to an individual. This word entered Western literature in the ’60s. At any rate, today we are facing a cult phenomenon in our country… I must say that up until the time of Shoghi [Effendi, the Head of the Baha'i Faith from 1921 to 1957], Bahaism was a ’sect’, but we saw that during Shoghi’s time it gradually changed into a cult. During this time, Baha’ism entered a period of serious administrative circles and set up a destructive organization.” (7)

But this trick and the new approach of the likes of Larijani and Moosavi has not only been unable to justify their systematic oppression of Baha’is over the past 32 years, it has also confronted them with contradictions and admissions that reveal the falsity of their earlier lies and claims about Baha’is, as well as showing the hollowness of their new scenario.

Among the contradictions, one is that for the past 167 years the likes of Mr Moosavi have portrayed the Baha’i faith as a misguided sect of Islam. Yet now, in a complete about-face, in order to prove their new scenario of showing the Baha’i faith as a ‘cult’, they have been forced to say that “the Baha’i sect is also one of the non-Islamic sects because they essentially have no belief in Islam” (8); whereas actually the Baha’i faith is neither a sect nor a cult but a religion. Baha’is, as testified in their holy books, are the only religious group apart from Muslims themselves who accept Islam as a religion (9). The interesting point is that he says “…during Shoghi’s time, we saw Baha’ism gradually changing into a cult”. Even if we were to accept Mr Moosavi’s fantasies, according to the definitions of the political language of the West that he uses, some cults become sects if they prevail, not the reverse. (10)

In another place, based on his assertion about the Baha’i community being a cult because it has an administration, Mr Moosavi makes a strange admission which is of interest to Iranian and international human rights organizations:

“Although there are several centers for dealing with and confronting these phenomena, only the security element has succeeded fairly well. However, confrontation by the security element alone is no longer effective, and unfortunately we have acted very weakly in the cultural arena.” Moosavi called the legal vacuum one of the main reasons for not seriously confronting deviant sects and added: “…apart from clarifying and disseminating information, the only effective approach in dealing with the Baha’i sect is to cut off the connection between the Baha’i administration and the Baha’i community.” (11)

Another admission related to the “legal vacuum”, that reveals the “cult scenario” of his kind and of Mr Larijani as a basis on which to legalize the repression and deprivation heaped upon Iranian Baha’is is his statement in the 29 April 1989 closed session of “Reviewing the issues on Irfan and semi-religious elements”, conducted by the Strategic Research Center of the regime’s Circle for Determining Propriety:

“Bearing in mind that in neighbouring countries like Pakistan and India there are laws against sects/cults which we lack it in our country, and so are deprived of their benefit, we see that in serious cases a judge needs a fatwa [religious ruling] from [religious] authorities.” (12)

His admission means that it has now been 32 years during which Shi’a sources and judges in the Islamic Republic have illegally been heaping all kinds of repression on Baha’is while lacking “anti-sect laws”! Now, in the new scenario, imitating the West and countries like India and Pakistan, they intend to portray the Baha’i religion as a “cult” and “legalize” repression and cruelty against Baha’is. For 32 years they have repressed illegally(!); now that the world has become aware of their cruelty toward Baha’is – as well as the noble people of Iran – they want to legalize the cruelty! Having failed in their plan to eradicate Baha’is by castigating them as “the misguided sect”, they now try to eradicate Baha’is from history by portraying them as a cult.

Please note the following:

“This expert on Baha’ism, highlighting the Baha’i sect’s administration, identifies an effective way of confronting it — a break between the Baha’i community and its administration. At this juncture it is the administration of the Baha’is that threatens the regime; if the administration is removed from the community, the sect will be history.” (13)

The question that needs to be asked is if, as he says, “Baha’ism” (14) developed its administration during Shoghi Effendi’s time, and changed into a “cult”, and the reason for not “becoming history” was the existence of the administration, then why during the preceding seventy-seven years (1844 to 1921) was it that the same community — without an administration and in spite of 20,000 of them being killed, with many thousands in jail and under torture, and facing large amounts of anti-Baha’i propaganda, along with other pressures and deprivations — not only survived, but actually bloomed, thundered on proudly and took on the task of building the administration which still survives in spite of all the repression, but has NOT been removed from the pages of history?!

For Mr Moosavi’s better understanding, we should also add that during the 29 months during which you have cruelly thrown in jail the innocent seven leaders of the Baha’i community and dozens of others, who attended to the affairs of the Iranian Baha’i community in the absence of the usual Baha’i administration of the community, did you not notice the clamor with which leading Iranians arose to defend their Baha’i fellow citizens?! For instance, did you not see the “We are Ashamed” statement?! (15) Are you still not aware that the primary and total reason for the continuation of the lively Baha’i community is not its administration but the penetrative power of the force of the divine Words of His Holiness Bah’u'llah? It is this divine force which flows in the New World Order and in the Baha’i administrative system, which in the fullness of time, and with the cooperation of all world citizens, will establish global peace and the unity of humanity on earth.

Alas! that the likes of Mr Moosavi, motivated by their hate, have forgotten that, contrary to other religious communities, the Baha’i spiritual administrative system did not come from the minds of ulama [Islamic clerics] or outstanding personalities, but emanated from the pen of Baha’u'llah Himself, and are contained in His Writings. They are not the kind of administrative structures that are imagined in Mr Moosavi’s mind (16). This administration and the Baha’i community have for decades been officially recognized — by the United Nations, by Western countries, and even by the India and Pakistan which Mr Moosavi identifies as having anti-cult laws — not only as a religious community, but also praised for its useful and constructive force for morality, cultural and social activities in areas such as human rights, education, equality of rights beween women and men, world peace, unity of the human race and socio-economic development at the national and international level. (17)

The likes of Mr Larijani and Mr. Moosavi, faced with world opinion, are attempting to justify and operationalize the eradication and gradual repression of Iranian Baha’is with the same trickery that the tribe of Qoraish utilized with the king of Ethiopia against Ja’far and the Muslim refugees (18) [editor's note: this is a reference to opponents of Islam in its early days]. In front of the United Nations and world human rights tribunals, they refer to anti-cult laws in the West, in India and Pakistan, yet they deliberately ignore the views, acknowledgements, praise and official recognition [of the Baha'i religion] of these same sources and governments, that see Baha’is as members of a “religion” and not a “cult”.

For instance, the Supreme Court of Germany has decreed: “The nature of the Baha’i cause as a religion, and the Baha’i community as a religious community, is evident and without a doubt — whether in its daily life or in its cultural tradition, in the public perception or in the science of comparative religions.” (19)  With respect to India, it is enough to know that Mahatma Ghandi, in contrast to the political and religious leaders of the Islamic Republic, stated that “Belief in Baha’ism is soothing to the world of humanity” (20); that a group of thinkers in India has recently issued a statement opposing the 20 year sentence of the seven Baha’i leaders who are incarcerated in Raja’i prison (21). For years the government of India has officially recognized the Baha’i religion; Baha’is have innumerable socio-economic projects aimed at the betterment of the material and spiritual conditions of the nation, and that the government of India has praised and thanked them, instead of throwing them in jail for three years, as Iran did to three youth in Shiraz who had undertaken similar projects (22). As for Pakistan, it is enough to know that Professor Mohammad Lahouri, a Muslim, says “All the lines and evolution of diverse thought in Iran is once again seen as a complete compilation in a great religious movement of the new Iran, i.e. the Babi and Baha’i religion.” (23)   It is not necessary to remind the likes of Larijani and Moosavi, who are anti-Baha’i “experts”, of the Baha’i faith’s official recognition by the United Nations as a religious and non-political body since 1949, and of the many declarations of that agency in defense of Baha’is in Iran. (24)

Having said the above, no doubt Mr Larijani and Mr Moosavi and their like — who have seen the uselessness of the results of their plans, scenarios, projects and anti-Baha’i activities of the past during both the Qajar and Pahlavi periods — must know that the “Cult scenario” will also have no lasting effects in eradicating and repressing the Baha’is, and that the Baha’i community of Iran will remain steadfast and erect as it has for the past 167 years (25); that it will serve both beloved Iran and noble lranians who have often been the supporters of their Baha’i fellow citizens, for:

“They have no aim save their Beloved, they seek no perfection save attaining His presence. They soar on the wings of reliance [on God] and fly, remaining confident on Him. The bloodstained sword to them is preferable to heavenly silk, and the piercing dart more pleasant than mother’s milk… Adversity doth not overtake them, and this voyage is not traversed by feet, nor is this Face to be covered as by a veil.” (26) [from the Writings of Baha'u'llah]

Endnotes and References:

(1) http://www.sanayenews.com/content/view/24085/78
(2) http://bahaism-news.blogfa.com/post-41.aspx
http://www.tabnak.ir/fa/pages/?cid=113356
http://www.adyannews.com/114/1848-news.html
http://www.javanonline.ir/Nsite/FullStory/?Id=307004
http://www.adyan.net/114/2063-news.html
http://www.farsnews.com/newstext.php?nn=8702300482
http://www.hawzah.net/Hawzah/Magazines/MagArt.aspx?MagazineNumberID=7151…
http://www.iqna.ir/fa/news_detail.php?ProdID=583438
http://www.javanonline.ir/Nsite/FullStory/?Id=306544
http://www.saharnews.ir/view-12411.html
(3) See answers to his untrue comments: notes 1 and 2 of NoghteNazar site below, also see Negah and Veleveledarshahr in the links below:

http://www.velvelehdarshahr5.info/content/view/114/46/
http://www.ketabhayebahai5.info/kankashi-dar-bahai-setizi
http://www.bahai-projects95.info/taxonomy/t/16
http://www.velvelehdarshahr5.info/content/view/138/37/
http://www.velvelehdarshahr5.info/content/view/138/37/
http://noghtenazar5.info/node/610
http://noghtenazar5.info/node/854
http://noghtenazar5.info/node/746
http://noghtenazar5.info/node/499
http://noghtenazar5.info/node/683

Mr. Musavi’s strange behavour includes his changes to the text of the messages from the Universal House of Justice . To compare his changes with the originals see the links below and his lies will be evident.
http://www.universal-house-of-justice-messages5.info/
http://noghtenazar5.info/taxonomy/term/39
(4) “Bahais have to answer to the courts in Iran because they engaged in cult-type activities contrary to the the most basic human rights of the people,” Mr Larijani told the UN Human Rights Council.
http://www.bbc.co.uk/news/10494631
http://www.human-rights-iran.org/view.php?objnr=1262
(5) for example see:  http://www.adyannews.com/156/1356-news.html
http://en.wikipedia.org/wiki/Cults_and_governments
http://www.skepticfiles.org/xhate/csdm.htm

(6) Regarding The Baha’i Faith being a religion and not a cult or sect, see Mr. Behrooz Sabet’s article in response to Mr. Larijani’s claim: http://www.negah5.info/quotes/quotes/2010-02-21-19-10-59 and also see: http://www.velvelehdarshahr5.info/content/view/109/

(7) http://www.sanayenews.com/content/view/24085/78
(8) http://www.sanayenews.com/content/view/24085/78
(9) http://aeenebahai5.info/node/505
(10) http://www.adyannews.com/156/1356-news.html

(11) http://www.rahva.ir/104/11118-89.html
(12) http://gozashtehalayande.blogfa.com/post-77.aspx
(13) http://gozashtehalayande.blogfa.com/post-77.aspx

The separating the Baha’i Community from its Administration has been in the plan of the anti-Bahai theoreticians of the Islamic Republic of Iran for many years and continues to-date. See the published book, “Dawning of Love” (Tolu-i Ishq): http://www.ketabhayebahai5.info/tolooi-eshgh

Also, the goal of extermination of the Baha’i Community has been around for the last 167 years, see: http://noghtenazar5.info/node/588

(14) The name Baha’u'llah means The Glory of God. The religion established by Baha’u'llah is referred to as the Baha’i Faith, or the Baha’i Cause, or the Baha’i Religion. The use of the term “Baha’ism” is incorrect. http://bahaullah.persian-bahai.org/notes/

(15) http://www.we-are-ashamed.com/pages/languages/fars6cc.php and  http://news.persian-bahai0.info/ and
http://noghtenazar5.info/node/479

(16) For references on “the Bahai Administration” see the following links:
http://noghtenazar5.info/node/443
http://www.aeenebahai95.info/taxonomy/t/169
http://www.ketabhayebahai5.info/negahi-tazeh
http://www.bahai-projects95.info/taxonomy/t/369
http://www.bahai-projects95.info/taxonomy/t/455
http://www.velvelehdarshahr5.info/content/view/156/37/
http://www.velvelehdarshahr5.info/content/view/157/37/
http://www.velvelehdarshahr5.info/content/view/158/37/

And also, see the book “The Baha’i World Order” here:  http://reference.persian-bahai0.info/fa/t/alpha.html

(17) http://www.aeenebahai95.info/node/2073
http://www.aeenebahai95.info/taxonomy/t/17
http://www.ketabhayebahai5.info/negahi-tazeh
http://www.bahai-projects95.info/taxonomy/t/369

(18) http://www.velvelehdarshahr5.info/content/view/138/37/

(19) Statement named “The Century of Light” p. 105 [Editor: this page refers to the Persian publication]. Germany is one of the countries that has laws on cults. http://www.adyannews.com/156/1356-news.html

(20) http://aeenebahai95.info/node/262
(21) http://news.bahai.org/sites/news.bahai.org/files/documentlibrary/iu_indiaOpenLetter.pdf
(22) http://www.bahai.org/persian/persecution/newsreleases/06-02-08
(23) http://aeenebahai95.info/node/60
(24) http://aeenebahai95.info/node/264
http://www.agahee.org/taxonomy/t/39
http://news.persian-bahai.org/yaran-special-report-un-statements

(25) With regards, please read the message of the Universal House of Justice to the Baha’is in Iran regarding Iran and Iranians, dated 26 November 2009: http://www.velvelehdarshahr5.info/content/view/114/46/ [Editor: the message is in Persian].
(26) Baha’u'llah, in one of his Works named Shikar-Shikar Shavand [Editor: the translation of this passage in this article is by Iran Press Watch and provisional for use of this article only].

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Translation By Iran Press Watch
Source: http://www.iranpresswatch.org/fa/post/1219 and http://noghtenazar5.info/node/948 and http://news.gooya.com/politics/archives/2010/09/110319.php

In 1952, an emissary went to Ayatollah Boroujerdi (the highest ranking Shi’a cleric) to ask him to tell members of the Fedayeen-e Islam not to engage in disruptive and violent acts. Boroujerdi did not relent. After all, he and Ayatollah Kashani were the spiritual leaders of the Fedayeen. Since long before and during the 1950’s, members of the cult were engaged in acts of violence including the murder of historian Ahmad Kasravi, journalist Mohammad Masoud, PM Razmara, and members of the Bahai faith. That emissary was my father who had been given the task by Mohammad Mosaddeq.

Even though many Bahais had supported Reza Shah [1], he had chosen to close down their main schools, Tarbyiat. Historians interpret this move differently, some arguing that in his decision to close the Bahai schools the Shah was motivated less by anti-Bahai sentiments than by a suspicion of anything beyond his control. Bahais at times suffered discrimination, but they also grew in number under his rule, encountering less violence than under the Qajars.

Nearly four decades later, a General, who had broken down Mosaddeq’s house door and was involved in the coup against his government, was given clemency by the newly established Islamic regime. Under Mohammad Reza Shah, he was given the task of desecrating Hazirat ol -Qods, the main shrine [2] of the Bahais. The General’s name was Nader Batmanglidj. After the fall of the Shah, as a number of generals were executed, his life was spared because of his role in the destruction of the shrine.

Recently I came across an informative but disturbing article , “The stabbing of Dr. Berjis,” from the hand of Nasser Mohajer, published in Baran, Spring/Summer 1387/2008, regarding the killing of a Bahai doctor in Kashan. This happened in 1942. Dr. Sulayman Berjis, whose ancestors had come from Hamadan, had moved to the city of Kashan with his family. He was a physician doing good deeds for the community and saving lives in his practice. He had a pharmacy where poor people could get free medicine and treatment. He was also the head of the Bahai community in a city where Bahais once thrived. He had acquired a good name because of his compassionate work. One day, a few young men entered his practice, asking him to come and help a sick person. He left his patients and went with them to a location where he was met by another man. They threatened him that if he didn’t abandon his faith, they would kill him. Realizing that he was trapped, he tried to escape to a nearby house. But the four killers went after him with knives. They caught him, threw him down and viciously stabbed him to death. Rasoul Zadeh, their leader, (In June 1988, Kayhan published Haj Rasoul Zadeh’s obituary as having been a devout Muslim and a true follower of Navab Safavi, who had engaged in the heroic act of killing a Zionist element in Kashan!) then cut his throat. Blood was everywhere. Dr. Berjis had done nothing wrong. In fact, he was an exemplary citizen and a dedicated doctor in a place where his services were much needed. He had saved lives and was in the prime of his life (he was only 54 when he died) but he lost his own life because he was a Bahai.

The murderers went to the police and confessed to the killing. They were proud of their action and had no remorse. After all, the killing was done according to a Fatwa (religious decree) issued by Ayatollah Gharavi , the local Grand Mojtahed ( highest cleric in town). A trial took place and after 8 months of investigation, upon the orders from Tehran, all four (and an additional four more who were co-conspirators in the crime) were acquitted. All the young men, ages 17 and 18, barely having grown a beard, had been members of the Fedayeen-e Islam. Kashani and Boroujerdi (the latter being a staunch anti-Bahai ) had intervened on their behalf and had asked that they be set free. Their request had been granted. The killers went free while an innocent doctor had been given the death sentence. His family never got any form of justice. They had quietly buried him in a cemetery designated for Bahais. (See article that details the entire episode and the trial).

In 1979, shortly after the Iranian Revolution, the Bahai cemetery in Shiraz, one of the largest in Iran, was desecrated by extreme elements. Bahais were rounded up and beaten. Many were arrested. Families were dispersed. Many were not able to attend universities as a few students who were working at a grocery store in the Washington area and had left Iran through Turkey told me. They said they had wanted to stay and continue with their education in their hometown of Shiraz if they had been allowed. But they were denied their basic right as citizens to get an education. “Compared to other religious minorities in Iran, the Bahais lived under much harsher conditions, for they were the only religious minority that was neither officially recognized nor given freedom of worship.” (The Forgotten Schools: The Baha’is and Modern Education in Iran, 1899-1934, Soli Shahvar).

The Islamic Republic is merciless when it comes to members of the Bahai faith. It is the greatest sin to be a Bahai because in the eyes of Islam the idea of divine revelation after the death of the Prophet Mohammad—the Seal of the Prophets— is unacceptable. The regime’s Shi’a leaders consider the Bahai faith dangerous; to them it is the highest form of apostasy. The Bahais are also branded as Zionists. One reason for this is that Mirza Hossein Ali Nouri, aka Bahaollah, who was forced to leave Iran, ended up in Ottoman Iraq and by way of Istanbul went to Palestine where he died in 1892 in the city of Akko, now in Israel. Following an anachronistic reading of history, the clergy see him and the Bahais as brothers –in- arms of the Jewish state and its potential ally.

According to a brochure published in 2009 by the International Federation of Human Rights Communities (FIDH) on the history of execution in Iran, there are about 300,000 Bahais in Iran( It is inherently difficult to establish an accurate number). “Not only they are denied their civil rights but the number of executions has been higher than any other religious minority.” The same report states that between 1979-1980, more than 200 Bahais had been executed or murdered. Fifteen others had disappeared most likely killed. In 1984, in Shiraz alone, 10 Bahai women were executed after disobeying orders giving up their faith for Islam. One was Mona Mahmoud Nejad, who at the time of her arrest was 16 years old. She was seventeen when she was executed in Adel Abad prison in Shiraz. Another 15 year old boy, Peyman Sobhany, was beaten and then stoned to death.

In recent times, a number of Bahai leaders and community members have been arrested and incarcerated. It is now a repeat of what took place almost three decades ago. Bahais are not just targeted by extreme elements of the Islamic regime. The sad part is that even a Khatami official told me once that Bahais are not to be supported even if they are imprisoned. I shook my head in disbelief and my reply was (I know I am not alone in this respect as many Iranians and Iranian Americans have expressed their outrage): “They are no different from you and I.” They should not be singled out for their faith or way of life, especially if they have committed no crime, are honorable citizens and love and worry about Iran as much as the next person.

I remember talking with those young men while they were packing bags of grocery. They were two brothers and their cousin. I saw sadness in their eyes. They had lost a few years waiting in Turkey for their papers in order to travel to the US. One of them said to me, I wish I could go back and live again in the city of Shiraz where I grew up and had my roots. “I loved Shiraz,” he said.

Hafez and Sa’adi of Shiraz, who wrote about beauty, wine and their love for mankind, are now turning in their graves at the thought of what is happening to Iran. Wouldn’t you?

—
Editor’s note:

[1] The Baha’is, in accordance with direct teaching of the Baha’i Faith, obey the ruling government of the land in which they live. As much as this practice can be interpreted as “supporting” the ruling government, that is not case. In a worldview of dichotomies where people “have positions” or “take sides” or “support” or “reject”, are “pro” or “anti” one thing or another in the frenzy of debates and clashes, it is very difficult to fully understand this particular aspect of the Baha’i teachings.

[2] “Hazirat ol -Qods” (Haziratu’l-Quds), is an Arabic term that is used to refer to Baha’i Centres. The structure that the author refers to here was a Baha’i Centre for gatherings and meetings of the Baha’i community in Tehran.

Source: http://www.iranian.com/main/2010/sep/greatest-sin

Rosa Vasseghi, faithful to her belief in nobility of humanity and absolutely convinced by the truth of the core teaching of the Baha’i Faith on oneness of mankind, sets out to “tell” the world, in her book Where is the Justice: stories from behind closed doors, about her life in her homeland Iran, and the life of her dear sister, Rozita, who is at this moment in prison in Iran for her belief in same truth that motivates millions of Baha’is around the world to dedicate themselves at the hour of down of every day to the dual character of their purpose in life: to achieve a personal transformation, and to effect a social transformation to help bring about an ever advancing civilization.

Some excerpts from Rosa’s interview at Treasures of Wonderment:

“I came from across the ocean to tell you stories from behind closed doors.
I came to tell you about the ugly face of our world and of humans.
I came to tell you about women’s lives, their light, their hope, their fears and death.
I came from the world where blind law and power denies truth and smiles.
It is time that our stories shock the conscience of humanity.”

Annick: Thank you Rosa for taking the time to share your story with us. I know that you were born in Iran; how old were you at the beginning of the 1979 Islamic revolution in Iran?

Rosa Vasseghi: I was 24 years old.

Annick: How did you first feel discriminated against?

Rosa Vasseghi: When the new government took power they didn’t let me continue my work and my studies and they also took everything I had built for my future. I remember I was working in a big company in the South of Iran. I was asked by the people who had taken over the company to change my religion and sign a paper that I was not Baha’i any longer to allow me to continue working, which I didn’t do. So they fired me and confiscated all the valuable things I had in my house in the South. Also they blocked my savings in the bank and took all the savings I had. And at the same time two of my sisters could not continue their studies at their universities as they were prohibited from attending. They took the house where my parents lived and my mother’s shop and all her inheritance. My sisters’ children also could not study at universities and many times were harassed by teachers, the principals and people from The Centre of Education in their cities because their parents were Baha’i. It is important to remember that all these things that I mentioned have been happening to other Baha’is too. Many people were thrown from their homes, jobs and universities – their only crime was that they were Baha’i.
…
Annick: You mention that the birth place of your faith is in Iran, so why would the Iranian government attack its own people and destroy its own cultural treasures?

Rosa Vasseghi: I really can’t understand why the authorities always attack Baha’i people but if you look at the history of Iran you can see, the manifestation of God , the founder of the Baha’i Faith, Baha’u’llah, was born in Tehran, the capital of Iran. Baha’u’llah came from a noble family. But He refused to accept a high position in the court of the King. He spent his time helping the oppressed, the sick and the poor, and championing the cause of justice. People in Iran really should be very proud and happy to have a manifestation of God in their own land. A person who prefers to give His life for people rather than hold more power. Someone who brings messages of love, unity and peace for the world. But the Iranian government cannot realize and understand what a valuable treasure it has. In reality I think people who have power are afraid of knowing new things. They don’t want to accept the value of the lives of all people. When they have chosen materialism, fundamentalism or other belief systems, it is difficult for them to have their principles challenged and also they are afraid of losing their power. The clergy in Iran have always interpreted Islam in their own way and as a result the Iranian government attacks its own treasure.
…
Annick: If the persecution ends, and we hope that it is soon, would you move back to Iran and could you find happiness there?

Rosa Vasseghi: We are citizens of the world, and, Iran is the land of my Beloved, my birth place and where I grew up. But I also love Australia too because when I didn’t have any place to go Australia opened its door for me and accepted me for who I am. I think if one day I will be able to go back to Iran, I will be very happy but I can’t gave up the country and people who showed their love and support to me when I needed it.

Please read the full article here: http://www.treasuresofwonderment.com/story/2010-06-19/i-came-tell-you

Editor
Iran Press Watch.

According to these reports, on Tuesday, August 10, 2010, four (4) of the Yaran were transferred to room 17 in Section 6 of this notorious prison. One of the four has been identified as Mr. Behrouz Tavakkoli.

Based on these reports, in order to humiliate the Baha’is and put them under further psychological pressure, the Mafia-like gangs incarcerated in the same facility have began to refer to the Yaran as “infidels”. They have also tried to pressure other prisoners to insult and belittle the newly-arrived Baha’is, but it appears that most other prisoners have so far refused to comply with this suggestion. In fact, it is reported that most other prisoners are showing considerable respect to the Baha’is and try to be hospitable.

Section 6 is infamous in human rights circles, and the fact that some of the Yaran have been transferred there is deeply worrying. Often this section is a scene of bloody fighting among prisoners, and it is considered extremely dangerous. It is where certain political prisoners are sent to vanish. In the most recent clash among the prisoners in this section, 40 prisoners were injured, 10 of them so badly that they had to be transferred to outside hospitals for treatment.

Since the sentencing of the 20 years of imprisonment for these 7 Baha’is, the Human Rights and Democracy Activists in Iran, many Governments of the world, United Nations, European Community, many international humanitarian organizations, religious leaders, well-known individuals and people around the world have strongly denounced the manifestly inhumane treatment of the seven Baha’i prisoners, the unjust sentence against them and condemned their banishment to Raja’i prison in Gohardasht (see Iran Press Watch for complete listings of the said announcements).

Editor,
Iran Press Watch.

Ivel, Mazandaran, Iran

Just over a month has elapsed from the devastating demolishment of 50 homes of Baha’is in a remote and previously unknown village of Ivel in the northern provence of Mazandaran, Iran. (See in Persian, in English) Now, the women of Ivel have voiced their call to the authorities and the world at large. In form of a letter and signed by many of them, they recount the story of their village from its inception; they share with love those difficult years where their parents and grand parents built the village brick by brick, stone by stone; they remember the flourishing time of working together –everyone, side by side, with no distinction– to build their community; they express their anguish towards the turn of events in their village around the time of the Islamic Revolution (late 1970’s); they lament the recent demolishment of their homes; they report on the continued harassment their families have made to suffer; they state with conviction their belief in

letter of women of Ivel (click to enlarge)

justice and law; they express their obedience to the law of the land; and, they ask for ears to hear their voices and eyes to observe their situation — they put it on paper, they sign it with their names for the world to know and remember!

Editor
Iran Press Watch.

Read the letter here (in Persian): http://www.iranpresswatch.org/fa/post/1012

[Editor’s Note: Iran Press Watch is presenting a new work in a series of analytical articles around the Iranian legal framework. This new article, by Dr. Christopher Buck, applies a few of the provisions of Iranian legal document, "Respecting Legitimate Freedom and Protecting Citizen's Rights," to the case of Yaran to demonstrate the procedural violations that Dr. Shirin Ebadi, Yaran's legal representative, has pointed out in her interviews.

In this series you can see:

“Iranian Islam, not the Yaran, on trial in the court of international opinion,”

“The Trial of the Yaran under Iranian Criminal Procedure: ‘The Justice of God’ or Procedural Injustice?”

“Respecting Legitimate Freedoms and Protecting Citizens' Rights”

The legal framwork, the court proceedings, the interviews and facts are all available -- well is it with them that judge fairly طوبی للمنصفین]

The Trial of the Yaran under the Iranian “Citizens’ Rights” and “Legal Procedures for Revolutionary Courts” Standards

Christopher Buck, Ph.D., J.D.

Æequum et bonum, est lex legum.
The equitable and good is the law of laws. (Latin maxim)

Jura debet esse omni exceptione major.
It is proper that laws be greater than any exception. (Latin maxim)

On February 7, 2010, the seven Baha’i former informal leaders, known as the Yaran (“Friends”), were tried in the second session of their trial, reportedly presided over by Judge Moghiseh, head of Branch 28 of the Revolutionary Court in Tehran. (Also transliterated as Moqiseh, from Persian قاضی مقیسه. See http://www.en-hrana.com/2010/02/17/hossein-noorani-nejad-sentenced-to-three-years-in-prison.) This branch, under Judge Sohrab Heydarifard, had previously sentenced Iranian-American journalist, Roxana Saberi, on a charge of espionage, to eight years of imprisonment, then released her and allowed her to leave Iran, and later staged an appeals trial held in absentia, in which Ms. Saberi was formally cleared of espionage. Not so in the case of the Yaran. The fabricated charges that the Yaran face are the work of the intelligence and security organizations of the Islamic regime. As stated by lead defense counsel, 2003 Nobel peace prize laureate, Dr. Shirin Ebadi, the charges include “spying for America and Israel, acting against national security and [engaging in] propaganda against the [Islamic Republic’s] system.” (See “Iran’s Ebadi says seven Baha’is must be acquitted,” Iran Press Watch, January 13, 2010) Press and pundits have not yet picked up on this evidently new charge of “spying for America” – which has yet to be independently verified.

The January 12, 2010 arraignment and the February 7, 2010 trial session were closed to the public and to the press (at least to the “free press”). Family members of the accused were not permitted to enter the courtroom. (See “Baha’i leaders make second court appearance”) In legal parlance, this closed hearing is called an “in camera” (Latin: “in chambers”) session. The approximately one-hour session on February 7, 2010 was reportedly focused on procedural matters.

Dr. Ebadi has recently commented on both the substantive and procedural aspects of this case. On January 24–25, television “News X” of India broadcast an in-depth documentary series on the persecution of the Baha’is of Iran, which included an interview with Dr. Ebadi. As for the charges that have been preferred against the seven Yaran, Dr. Ebadi characterized the charges as baseless and politically motivated:

I am the head of the legal team representing these seven Baha’is. I have studied their files thoroughly. There is not a shred of evidence for the charges leveled against them. Charges such as espionage for Israel, propaganda against the national security and others, are all excuses. Any just and impartial judge would, without a doubt, issue a complete acquittal and release them immediately. …

I repeat, my clients are innocent. There is absolutely no evidence for any of these accusations. They should be released and acquitted immediately. If the judge finds them guilty and sentences them, he will be breaking the law.

Shirin Ebadi, “Iran: Baha’i Persecution,” News X. See “News X of India broadcasts series on Baha’is in Iran,” online at http://iran.bahai.us/2010/01/27/news-x-of-india-broadcasts-series-on-bahais-in-iran. Select link for “Part 2.”

Regarding the arraignment, which took place on Tuesday, January 12, 2010, Dr. Ebadi commented:

The legal proceedings took place behind closed doors. Even the families of my clients were not permitted to be present during the sessions. Also the legal team initially was not permitted to be present in the sessions, during the trial of their own clients. But they objected to this absurd decision and eventually were permitted to be present during the session.

Asked if these proceedings were “fair and transparent,” Dr. Ebadi replied:

These procedures are neither just nor transparent. They are not even in accordance with legal procedures and laws of Iran. I want to add that these clients of mine are not the only victims of injustice in Iran, though. The same unjust procedures are applied to all political prisoners. And in that case, I cannot tell you how far he will go in terms of breaking the law.

It should be pointed out, however, that the Iranian authorities do not recognize the existence of “political prisoners” as a distinct category. Asked if international pressure might be effective, Dr. Ebadi agreed, saying:

International pressure will be very effective. We need more international pressure on the government of Iran. But this is not only in the case of the Baha’is, but for all of the many political prisoners in Iran.

From the beginning of the revolution, there has been a lot of persecution against the Baha’is. They have not even been permitted to continue with their university education. But I must add that discrimination has been applied not just against the Baha’is, but against all other religions and religious minorities in Iran.

Despite the chorus of condemnation from around the world, there has been no obvious effect. Yet international pressure must be maintained, as informed commentators agree that the government of Iran is influenced by global opinion.

As this trial proceeds, protractedly and painfully, some further legal considerations may be brought to bear in the case at bar, particularly as regards the application of an important legal document that has just been made available by Iran Press Watch, in translation. The translation of “Respecting Legitimate Freedoms and Protecting Citizens’ Rights” (Qánún-i Ihtirám bih Ázádíháyih Mashrú’ va Hifz-i Huqúq-i Shahrvandí), a landmark legal document adopted on May 4, 2004 by the Parliament (Majlis) of the Islamic Republic of Iran, invites commentary in the context of its meaningful application to the current human rights situation in the Islamic Republic of Iran, in which the trial of the Yaran affords a test case. See “‘Respecting Legitimate Freedoms and Protecting Citizens’ Rights’: Excerpt from the Iranian legal framework,” translated by Omid Ghaemmaghami, a Ph.D. candidate in Islamic studies at the University of Toronto – published for the first time in its entirety by Iran Press Watch – at http://www.iranpresswatch.org/post/5505. The original Persian may be consulted online at http://www.bia-judiciary.ir/tabid/144/Default.aspx).

A brief application of a few selected provisions of this document will further illuminate the procedural violations to which Dr. Shirin Ebadi has pointed in her “News X” interview, cited above. Since Dr. Ebadi was Iran’s first woman judge, she is fully conversant with the Iranian Code of Criminal Procedure, with Iran’s Penal Code, and with this newly translated document, “Respecting Legitimate Freedoms and Protecting Citizens’ Rights.” Although she does not explicitly reference these documents, Dr. Ebadi implicitly invokes them (or evokes their purport) in the course of her interviews. As such, some, if not all of the following selections from the Iranian code may not only be brought to bear on the trial of the Yaran, but may offer a heuristic, or key, for a more nuanced appreciation of Dr. Ebadi’s arguments within the Iranian legal framework.

“Respecting Legitimate Freedoms and Protecting Citizens’ Rights”

1. The investigation and prosecution of crimes, the performance of searches, and the issuance of rulings governing security and temporary arrests must be based on the law, and must result from judicial decisions and warrants that are clear and transparent. Investigators, prosecutors and judges must set aside all personal interests and eschew the abuse of power or any act of violence or undue detention.

Commentary: The Iranian Islamic Revolutionary Court is considered an “extraordinary court” – that is, a special tribunal whose jurisdiction is primarily security matters. Enacted in 1996, a section within Iran’s Islamic Penal Code, entitled “Offenses Against the National and International Security of the Country,” sets forth those offenses over which Revolutionary Courts have jurisdiction. The charge of espionage is obviously a security matter, which explains why the Yaran were detained and eventually summoned before Branch 28 of the Revolutionary Court in Tehran. Extraordinary tribunals are typically set up to try certain offenses, generally without following all the procedures of the ordinary court system. The United Nations Working Group on Arbitrary Detention has observed that these types of courts generally practice arbitrary detention, and typically deny their detainees the due process of a fair trial:

One of the most serious causes of arbitrary detention is the existence of special courts, military or otherwise, regardless of what they are called. Even if such courts are not in themselves prohibited by the International Covenant on Civil and Political Rights, the Working Group has none the less found by experience that virtually none of them respects the guarantees of the right to a fair trial enshrined in the Universal Declaration of Human Rights and the said Covenant.

(Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/1996/40, at 26.)

Notwithstanding the foregoing, it is important to note that this provision, Section 1 of “Respecting Legitimate Freedoms and Protecting Citizens’ Rights,” requires the issuance of “warrants that are clear and transparent” for “the investigation and prosecution of crimes … and temporary arrests.” The present writer has not been able to determine whether official arrest warrants were issued, as required by this provision. Iran Press Watch readers are invited to inform the present writer as to whether these required warrants were duly issued, or not.

In connection with the “abuse of power” that this provision proscribes, the Baha’i International Community has implicitly suggested that the Iranian criminal justice system, in cooperation with the Ministry of Intelligence, has abused its power in its treatment of the Yaran. In its open letter of March 4, 2009 to Ayatollah Qorban-Ali Dorri-Najafabadi, Prosecutor General of the Islamic Republic of Iran, the Baha’i International Community implied an abuse of power in the following documented abuse of the seven accused Baha’is:

Then last year the seven members of the Yaran were imprisoned, one of them in March and the remaining six in May. For some time they were held in solitary confinement and denied access to their families. Although eventually family members were allowed brief visits under strict observation, the prisoners have yet to be given access to legal counsel. The conditions of their incarceration have varied in degree of severity over the course of the past several months, with the five male members confined at one time to a cell no more than ten square meters in size, with no bed.

(Baha’i International Community, “Letter to Ayatollah Qorban-Ali Dorri-Najafabadi, Prosecutor General, Islamic Republic of Iran,” online at http://bic.org/areas-of-work/persecution/prosecutor-general-iran-en.pdf.

Precise dates, within a general timeframe, may be noted here. On March 5, 2008, Mahvash Sabet, one of the Baha’i leaders, was arrested by agents of the Ministry of Intelligence in Mashhad. (The case was later transferred from the Ministry of Intelligence and is now in the hands of the Judiciary.) On May 14, 2008, the remaining six Baha’i leaders – Jamaloddin Khanjani, Behrouz Tavakkoli, Saeid Rezaie, Fariba Kamalabadi, Vahid Tizfahm, and Afif Naeimi – were arrested at their respective homes in Tehran. The first reported family visit took place in September 2008, after the Yaran had spent about four months in solitary confinement. The Yaran are incarcerated in Section 209 of Iran’s largest and most notorious prison, Evin Prison, located in the northwestern region of the Iranian capital, Tehran. The four-month solitary confinement had no justification whatsoever, and was an arbitrary abuse of power.

2. Convictions must be in accordance with legal procedures and should be restricted to those who commit the crime and their accessories. Until such time as the crime has been established in a court of law and a verdict that is based on sound arguments and supported by legal evidence or based on sources of religious jurisprudence (in the event that legal evidence is not available), the defendant is presumed innocent. Each person is entitled to protection under the law.

Commentary: In the American legal system, as is common practice elsewhere, criminal charges are presented as “allegations,” and the judiciary refrains from conclusory statements prior to the conclusion of any given trial. Not so in the case of the Iranian judiciary. Ayatollah Qorban-Ali Dorri-Najafabadi, Prosecutor General, for instance, was quoted by Iran’s state-run “Press TV” as stating that the Iranian Baha’is in general (and, by direct implication, the Yaran in particular) are enemies of Islam and pose a threat to Iran’s national security: “Baha’i organisations are illegal and their connections to Israel and their enmity toward Islam and the Islamic system are absolutely certain and their threat against the national security is a proven fact.” See this statement in the original Persian online at http://www.farsnews.com/newstext.php?nn=8711271271.

According to the Fars News agency, this statement was made in a letter that Ayatollah Qorban-Ali Dorri-Najafabadi had addressed to Hojjatol-Islam Gholam-Hossein Mohseni-Eje’i, who was the head of the Ministry of Intelligence in Iran from 2005 to July 2009, when he was abruptly dismissed and then appointed Iran’s prosecutor general by the new judiciary chief, Ayatollah Sadeq Larijani. Dorri-Najafabadi commented on why the Baha’is should not be guaranteed the protections otherwise afforded by Article 20 and Article 23 of the Constitution of the Islamic Republic of Iran, which, under Chapter III (“The Rights of the People”), commands:

Article 20
All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria.

Article 23
The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.

Dorri-Najafabadi has taken the position that these constitutional protections do not apply to those Iranians who, individually or collectively, have been identified by the Government as posing a national security threat (regardless of whether or not evidence exists to support that claim). Freedoms enjoyed under the Iranian Constitution, according to Dorri-Najafabadi, must, in the public interest, be suspended in favor of the national security and to preserve territorial sovereignty. Referring to Israel as “Occupied Palestine,” Dorri-Najafabadi states that there is incontrovertible evidence of ties between Iranian Baha’is and the “Zionist” state. The Baha’i World Centre is located on Mount Carmel in Haifa, Israel – not because of any connection with “Zionism,” but because the prophet-founder of the Baha’i Faith, Baha’u’llah (1817–1892), was exiled, along with around 70 other exiles, to Palestine, and was incarcerated in the most notorious prison of the Ottoman Empire, the ancient Crusader fortress-prison of ‘Akká, next to the Bay of Haifa.

Dorri-Najafabadi’s “finding of fact” (to use the American legal expression) is hardly a presumption of innocence. Rather, it is a foregone conclusion – that is, a decision made before the evidence for it is known. Although citing unspecified documents that reputedly provide evidence of such a connection, the argument that Dorri-Najafabadi has articulated is basically nothing more than what may be termed, “guilt by association.” Here, the guilt is not defined at all. Nowhere does Dorri-Najafabadi accuse Baha’is of overtly plotting to overthrow the Iranian regime, or covertly seeking to undermine its authority, or perversely intending to commit terrorist acts, or inchoately attempting to transmit state secrets. As such, Dorri-Najafabadi’s vague accusations amount to scarcely more than a presumption of guilt, not a presumption of innocence.

Dr. Shirin Ebadi clearly evoked the purport of Section 2 of “Protecting Citizens’ Rights” when she said: “If justice is to be carried out and an impartial judge should investigate the charges leveled against my clients, no other verdict can be reached save that of acquittal.” See “Iran’s Ebadi says seven Baha’is must be acquitted.” Iran Press Watch (January 13th, 2010). (Hear the audio in Persian, online at http://www.televisionwashington.com/media1.aspx?lang=fa&id=2802.) Pursuant to the clear terms of Section 2 of “Protecting Citizens’ Rights,” Judge Moghiseh’s investigation must be based on “sound arguments” and his verdict must be “supported by legal evidence.”

3. The court and the public prosecutor’s office must not deprive defendants and the accused of the right to a legal defense, and must always provide the accused an opportunity to seek the counsel of an attorney or [legal] expert.

Commentary: This requirement has partly been met, yet partly denied. First, in the case of offenses against national security, Article 128 of Iran’s Code of Criminal Procedure permits a judge to deny access to lawyers during the investigation phase (which can last months). Article 128 may also be invoked where strict confidentiality must be maintained, or where the presence of someone other than the defendant may, at the discretion of the judge, cause “corruption.” Thus, Article 128 is routinely used to deny the accused access to family members and their attorneys during the course of the inquest. There appears to be no judicial review, much less judicial oversight, of a judge’s abuse of this discretionary authority.

5. The guiding principle that individuals should not be arrested or detained without due process demands that all necessary arrests and convictions follow the procedures and conventions that have been determined by the law. In the event of a moratorium, the file must be sent to the appropriate judicial authorities, and the family of the detained must be apprised of any and all developments.

Commentary: With respect to this provision, the present writer has previously published an analysis of the pretrial proceedings in light of the Constitution of the Islamic Republic of Iran, and with reference to Iran’s Code of Criminal Procedure. (See Christopher Buck, “The Trial of the Yaran under Iranian Criminal Procedure: ‘The Justice of God’ or Procedural Injustice?”) Clearly, “the family of the detained” was not regularly “apprised of any and all developments” after the serial moratoria (procedural delays), as mandated by Section 3 of “Protecting Citizens’ Rights.”

15. The head of the judiciary must appoint a committee to supervise the implementation of the above provisions. All departments that are in some way affected by this law must cooperate with this committee. The committee has the duty to prosecute those whom it finds to be in violation of these provisions. It must also work to correct any deficiencies in procedures, and bring them into compliance with these legal stipulations. It must prosecute violators severely, and must report all its actions to the head of the judiciary.

Commentary: If the pretrial and trial proceedings of the Yaran are any indication, this provision is largely inert. What is interesting is that, in principle, although not in practice, egregious violations of the protections and procedural guarantees mandated by “Protecting Citizens’ Rights” would, within the Iranian criminal justice system, constitute actionable criminal behavior.

Trial Rights (and Exceptions) under Another Iranian Standard:
The “Code of Legal Procedures for Common and Revolutionary Courts in Criminal Matters”

The Revolutionary Courts follow the rules of court known as the “Code of Legal Procedures for Common and Revolutionary Courts in Criminal Matters,” the Persian original of which may be consulted online at http://hoghoogh.online.fr/article.php3?id_article=67. Three of its provisions will here be cited in translation, and applied to the trial of the Yaran.
Article 188

Court proceedings are open to the public, except in cases in which:

1. The case involves acts that are incompatible with norms of chastity and crimes that are against morality.
2. The case involves family or private matters, as per the request of the individuals involved.
3. Openness of the court might harm religious feelings or security.

Commentary: Here, the third exception, which is the standard that has been applied in this case, again proves that the trial of the Yaran has been ruled by exceptions to the clear provision of Iranian criminal procedure. Regarding the arraignment on January 12, 2010, Dr. Ebadi recounted:

On the basis of the information given to me by the families of my clients, the first session of the trial began today; out of the four lawyers which the Centre for the Defense of Human Rights [established by Ebadi and other lawyers in Iran, and currently closed by the authorities] had assigned to them – myself, Mr. [Abdolfattah] Soltani, Mr [Hadi] Esma’ilzadeh and Ms. [Mahnaz] Parakand – [the latter two], Mr. Esma’ilzadeh and Ms. Parakand took part in the hearing, but in spite of our request, it was announced that the hearing would be held behind closed doors, and they even made the relatives leave the room.

See “Iran’s Ebadi says seven Baha’is must be acquitted.” Iran Press Watch (January 13th, 2010).

While the closed hearing operated pursuant to an exception to the public trial requirement of Article 188, if there is really no security risk posed by the seven Baha’i accused, then one can only conclude that the closed session was intended to protect the Court from public scrutiny, in the name of safeguarding Iran’s security interests.

Article 190

When the investigations are complete and a date for the trial is set, the defendant or his lawyer have the right to go to the court office and receive necessary information regarding the contents of the dossier.

Commentary: Here, the involvement of Dr. Shirin Ebadi caused pretrial procedures and trial proceedings to be studied more scrupulously. Commenting on the pretrial procedings, Dr. Ebadi stated:

When I and my colleagues accepted to act as their defense lawyers, they [detainees] had not been allowed to see their families for over a year. And for some time too, they were not allowed to meet with us. After a year and a half when the investigation ended, I and the rest of the lawyers were permitted to read the dossier, and we met them on one occasion in prison.

After the inquest had run its course and the investigation was completed (presumably by the Ministry of Intelligence), the case file, or dossier, was finally given to Dr. Ebadi and her legal team. After examining the government’s case as presented in the dossier, Dr. Ebadi remarked: “I read the dossier and fortunately or unfortunately, found in it no cause or evidence to sustain the criminal charges upheld by the prosecutor.” See “Iran’s Ebadi says seven Baha’is must be acquitted.” Iran Press Watch (January 13th, 2010).

Article 210

The judge must make no public statements regarding either the innocence or guilt of the defendant until a verdict is pronounced and the trial is ended.

Commentary: Unlike Ayatollah Qorban-Ali Dorri-Najafabadi, Judge Moghiseh, head of Branch 28 of the Revolutionary Court in Tehran, has refrained from making public statements on the guilt or innocence of the accused Yaran. In theory, execution of the “Respecting Legitimate Freedoms and Protecting Citizens’ Rights” Act and its executive code is supposed to prevent any infringement of the constitutional and statutory rights of individuals as Iranian citizens. But various exceptions to these protections have been applied to the Yaran, with the result that their pretrial and trial proceedings have in many instances followed, not the black letter law, but its exceptions.

Conclusion

The United Nations Human Rights Commission (UNHRC) is scheduled to review the Islamic Republic of Iran’s human rights record on February 15, 2010. On February 8, 2010, Dr. Ebadi wrote to the UNHRC, urging the Commission to review Iran’s record in light of recent events. She states, in relevant part:

Although I have already highlighted the deteriorating human rights situation in Iran on several occasions in writing and in person, I deem it necessary to once again draw the attention of Your Honour and the distinguished members of the UNHRC to the following issues as you prepare to review the Islamic Republic of Iran’s human rights record, on 15 February 2010: …

Not only non-Muslims are persecuted – such as members of the Baha’i faith who, since the establishment of the Islamic Republic of Iran, have not even been allowed to study at university – but even the followers of Iran’s official religion, Shi‘ite Islam, have not been immune from government repression; as an example, one could cite the persecution and detention of the Gonabad Dervishes. …

So, I urge you, yet again, to use whatever means possible to convince the government of the Islamic Republic of Iran to abide by the resolutions adopted by the UN General Assembly, in particular the resolution of December 2009; to allow human rights rapporteurs, especially those who deal with arbitrary arrests, freedom of expression, religion and women’s rights, to enter Iran, and to cooperate with them.

I also urge you to appoint a special rapporteur on the human rights situation in Iran, who would be able to continuously monitor the government’s conduct and, by offering prompt advice and suggestions, help end the political crisis and mounting repression.

My honourable friends! Please bear in mind that we are all responsible and accountable to history.

Dr. Shirin Ebadi
08 February 2010

See “Open Letter to Honourable Madam Navanethem Pillay, United Nations High Commissioner for Human Rights, and Members of the United Nations Human Rights Council (UNHRC), By Shirin Ebadi, Human Rights Advocate and 2003 Nobel Laureate,” online at http://www.humanrights-ir.org/php/view_en.php?objnr=345.

In my survey of the relevant Iranian law, it is clear that Iran’s Constitutional protections may be effectively suspended if anything deemed contrary to the current Government’s interpretation of “Islamic criteria” may be invoked. In the immediate aftermath of the Islamic Revolution of 1979, Iran’s draft constitution was published by the provisional government of Bazargan in June 1979. This draft was modeled on the 1958 constitution of the French Fifth Republic. The cleric-dominated Assembly of Experts subsequently altered this draft beyond recognition. A case in point is Article 4.

Article 4 presumptively and preemptively trumps all Iranian constitutional guarantees and safeguards. All that has to happen is for the Guardian Council to decree that any protection, whether extended to an individual or a group, effectively conflicts with “Islamic criteria.” A binary opposition of principles obtains here: Islam and the Constitution are potentially brought into conflict within this presumably “Islamic Constitution.” Article 4 commands:

Article 4

All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ [jurists] of the Guardian Council are judges in this matter.

See “The Constitution of the Islamic Republic of Iran,” online at http://www.iranchamber.com/government/laws/constitution_ch01.php.

Within the four corners of this Constitution, citizens’ rights are cornered. The effective application of each and every one of those rights may be compromised by interpretations of “Islamic criteria.” Not only are Constitutional protections subject to suspension, but the Code of Criminal Procedure contains various exceptions as well, which I have previously analyzed. Doubtless there are even more exceptions that can effectively neutralize, nullify and nix whatever procedural guarantees have been extended to all Iranian citizens, on paper. With respect to “Respecting Legitimate Freedoms and Protecting Citizens’ Rights” that Iran Press Watch has recently brought to light in Omid Ghaemmaghami’s translation of that document, reputedly “Islamic criteria” and putative “security” considerations have combined to effectively create a subtext that renders this document largely ineffective and unenforceable.

These unrelenting erosions of citizens’ rights have altered the social landscape of Iran. The judicial face of Iran has been transmogrified. Unfortunately, the proverbial parchment, on which the Constitution of the Islamic Republic of Iran has been indelibly inscribed, has itself been parched and blackened by flaming abuses of power, seething violations of criminal procedure, and scathing pretextual accusations without foundation – not to mention by the protracted inquest conducted in the name of the criminal “investigation,” by the harassment and various threats posed to lead defense counsel, Dr. Shirin Ebadi, and her family, by the imprisonments of her co-counsel, Mr. Abdolfattah Soltani (co-founder of the Center for the Defense of Human Rights), by the isolation of the Yaran from family members for extended periods of time, by cells without beds, and by the possible occurrence of unspoken, but unspeakable acts of intense interrogation constituting unreported psychological torture.

The real “security risk” is not any connection of the Yaran with Israel or America. The actual security risk is the threat to the security of Iran’s citizens. The sanctity – both secular and sacred – of their constitutional and statutory rights is in grave peril.

“Unfortunately, for some time now,” Dr. Ebadi has commented, “the Judiciary has distanced itself from justice.” Because of the several violations of criminal procedure, the Yaran have been subjected to procedural injustice. This is why Dr. Ebadi concludes: “This case was set up wrongly from the start, that is, my clients should have been released immediately. This delay which has lasted up to now is a contravention of the laws of the Islamic Republic of Iran.” See “Iran’s Ebadi says seven Baha’is must be acquitted.” Iran Press Watch (January 13th, 2010).

The Hon. Judge Moghiseh has the duty and discretion to review the procedural violations that Dr. Ebadi has publicly decried, as well as the duty to review the procedural exceptions that have been applied, even if lawfully so. May the Hon. Judge Moghiseh be guided by this venerable Latin maxim: Jura debet esse omni exceptione major. “It is proper that laws be greater than any exception.” May the procedural exceptions no longer prove to be the rule in the trial proceedings, as they have in the pretrial proceedings.

The evidence of procedural violations should carry special weight in the calculus of determining the outcome. The Hon. Judge Moghiseh has the discretion to dismiss the state’s case against the Yaran on procedural grounds alone, without ever reaching the merits of the case. This would arguably be the most expedient resolution of these proceedings, thereby allowing the state to “save face” by not subjecting the Iranian judiciary to worldwide opprobrium when the state’s evidence is exposed as a sham, just as Dr. Ebadi, after having read the state’s dossier, “found in it no cause or evidence to sustain the criminal charges upheld by the prosecutor.” May the Hon. Judge Moghiseh be guided by this venerable Latin maxim: Æequum et bonum, est lex legum. “The equitable and good is the law of laws.”

As the trial proceeds, the Hon. Judge Moghiseh must evenhandedly consider the state’s case, hear the defense, weigh the evidence, and render a just verdict. Pursuant to Iranian law under the provisions of “Respecting Legitimate Freedoms and Protecting Citizens’ Rights,” may the Hon. Judge Moghiseh “set aside all personal interests,” assure “the accused of the[ir] right to a legal defense,” uphold “due process” and, “based on sound arguments and supported by legal evidence,” issue a “judicial decision” that is “clear and transparent.” May the Hon. Judge Moghiseh, after reviewing the evidence (or lack of evidence, as the case may be), see fit to dismiss all seven of the Yaran, on procedural grounds alone, or on the merits of the case, or both.

We may never know the full history of the trial of the Yaran – the “canaries in Iran’s cages.” (See http://www.theglobeandmail.com/news/opinions/the-canaries-in-irans-cages/article1427611/.)

But history will know full well of our response.

* * *

[Editor’s Note: Iran Press Watch has recently published a number of articles by qualified authors in an effort to make the Iranian legal framework accessible to the readers. Recently, in this series you can read “Iranian Islam, not the Yaran, on trial in the court of international opinion,” and “The Trial of the Yaran under Iranian Criminal Procedure: ‘The Justice of God’ or Procedural Injustice?” by Dr. Christopher Buck. Now we are happy to provide a translation of a portion of a piece of legislation, “Respecting Legitimate Freedoms and Protecting Citizens' Rights,” adopted in Iran on 4th of May, 2004. The translation is by Mr. Omid Ghaemmaghami, a doctoral student at the University of Toronto.]

Respecting Legitimate Freedoms and Protecting Citizens’ Rights

“Single Act”: From the date of the adoption of this statute, all public tribunals, Revolutionary Courts, military courts, public prosecutor offices, and judicial officials are bound to observe the provisions articulated below in carrying out their legal duties. Violators will be prosecuted to face punishment, as prescribed by law.

1. The investigation and prosecution of crimes, the performance of searches, and the issuance of rulings governing security and temporary arrests must be based on the law, and must result from judicial decisions and warrants that are clear and transparent. Investigators, prosecutors and judges must set aside all personal interests and eschew the abuse of power or any act of violence or undue detention.

2. Convictions must be in accordance with legal procedures and should be restricted to those who commit the crime and their accessories. Until such time as the crime has been established in a court of law and a verdict that is based on sound arguments and supported by legal evidence or based on sources of religious jurisprudence (in the event that legal evidence is not available), the defendant is presumed innocent. Each person is entitled to protection under the law.

3. The court and the public prosecutor’s office must not deprive defendants and the accused of the right to a legal defense, and must always provide the accused an opportunity to seek the counsel of an attorney or [legal] expert.

4. Islamic ethics and rules of conduct must be completely observed in dealing with the complainant, the accused, the perpetrator of a crime, or any source with information about the crime, as well as in the performance of all assigned duties.

5. The guiding principle that individuals should not be arrested or detained without due process demands that all necessary arrests and convictions follow the procedures and conventions that have been determined by the law. In the event of a moratorium, the file must be sent to the appropriate judicial authorities, and the family of the detained must be apprised of any and all developments.

6. During the arrest and interrogation or search of individuals, [the authorities] must avoid harassing individuals by blindfolding, shackling, humiliating or demeaning them.

7. Interrogators and investigators must not cover the faces of the accused, nor sit behind them [during an interrogation], nor transfer them to an unknown place. They must not use any unconventional methods [of interrogation]. Instead, they should rely wholly on controlled, proper methods of investigation and modern techniques of interrogation.

8. Local inspection and investigations aimed at arresting fugitives or locating machinery or equipment related to a crime must be in accordance with the stipulations of the law. No attempt may be made to harass anyone. All precautions must be observed. Officials must refrain from inflicting harm to documents or objects that are not related to the crime or the accused. They may not attempt to reveal the contents of letters or private documents, nor display family pictures and home movies and tapes [to the public].

9. All manner of torture of the accused to obtain a confession or force him to do anything else is prohibited. Any confessions obtained through torture have no legal merit or legitimacy.

10. Investigations and interrogations must be supervised and completed by individuals with prior training, and be based on balanced principles and procedures of the law. Those who choose to ignore these stipulations and resort to illegal measures in the performance of their duties will face prosecution with severe consequences.

11. Questions [posed by the interrogator] must be clear, purposeful, and related directly or indirectly to the accusations. Curiosity about private personal and family matters, questions about previous transgressions or queries into issues that are unrelated to the case must be avoided.

12. Responses must be recorded as they are stated without any changes or amendments, and then must be read back to the accused. Those who are literate may write their own responses if they wish, so that no doubts about distortion or misrepresentation may be created.

13. The court and the public prosecutor’s office must oversee the detention centers and the special rules that govern their work. They are also responsible for supervising how officers and officials treat the accused. They must encourage and appreciate those officials who act in compliance with legal stipulations, and prosecute those who circumvent and transgress the same.

14. The improper spending of funds or use of belongings seized from the accused must be avoided. As soon as possible, a ruling or decision must be issued by the court, and the public prosecutor will determine what will happen with the accused’s belongings. Until such time that a ruling is reached, all precautions must be to taken to protect such belongings; under no circumstances may they be subject to personal or administrative use.

15. The head of the judiciary must appoint a committee to supervise the implementation of the above provisions. All departments that are in some way affected by this law must cooperate with this committee. The committee has the duty to prosecute those whom it finds to be in violation of these provisions. It must also work to correct any deficiencies in procedures, and bring them into compliance with these legal stipulations. It must prosecute violators severely, and must report all its actions to the head of the judiciary.

The above legislation consisting of a “single Act” was ratified by the Parliament of the Islamic Republic of Iran in open session on Tuesday, 4 May 2004. It was endorsed by the Guardian Council of the Constitution on 5 May 2004.

Mehdi Karroubi, Speaker of Parliament

Source: You can see the original text of the legislation at Iran’s Bureau of International Affairs’ official web site: http://www.bia-judiciary.ir/tabid/144/Default.aspx

by Christopher Buck, Ph.D., J.D.

[Editor: Iran Press Watch welcomes back Dr. Christopher Buck, a distinguished legal scholar. While most writers expose the injustice of Iranian practice in contrast with the international practice, Dr. Buck demonstrates how the current treatment of the Yaran is even problematic within the context of Iran's own legal framework. Dr Buck's article comes in a critical time when in two short days, on the 7th of February, 2010, the second trial of Yaran is scheduled to take place. The Baha'i Communities around the world are holding devotional gatherings as a response to the call of the Universal House of Justice, the international governing body of the Baha'i Community: "The prayers offered by the  [Baha'is] … worldwide have been a constant source of comfort and support to the  former members of the Yaran who have withstood their long ordeal with heroic  fortitude and patience.” With these thoughts in mind we invite you to consider the discourse by Dr. Buck.]

Part I:
The “Justice of Islam,” Jurisdiction and Venue, Prosecution and Indictment

The trial of the Yaran, the “first session” of which took place on January 12, 2010, is being conducted under the current system of Iranian criminal procedure, a creature of the Islamic Revolution of Iran. Just as my previous article, “Iranian Islam, not the Yaran, on trial in the court of international opinion” (published by Iran Press Watch on January 12, 2010, the day of the first session of the trial of the Yaran), was an effort to show how the treatment of the Yaran reflects poorly on Iranian Islam inasmuch as the “Justice of Islam” is concerned, the present article demonstrates how, by Iranian legal standards, the treatment of the Yaran is in clear violation of the current Constitution of the Islamic Republic of Iran and its existing Code of Criminal Procedure (CCP).

Both articles, therefore, are essentially “Iranian” and “Islamic” arguments. I have not seen this approach taken by others. While the international community is interested to know how the treatment of the Yaran violates international standards, I believe that the Iranian audience would like to know how the legal course of the case of the Yaran is problematic within the Iranian legal context itself. This is not an easy task for anyone who has to comprehend a completely different system of criminal procedure for the first time. Consequently, I add this disclaimer: that my understanding of Iranian law is imperfect, to say the least; yet I have made every attempt to ground my argument in clearly documented principles of Iranian criminal procedure.

The Yaran — who have been held in the notorious Evin Prison since the spring of 2008 — are represented by four lawyers from the Center for the Defense of Human Rights based in Tehran — Ms. Shirin Ebadi (Iran’s first female judge prior to the 1979 Islamic revolution, and awarded the Nobel Peace Prize in 2003), Mr. Abdolfattah Soltani (co-founder of the Center for the Defense of Human Rights), Mr. Hadi Esma’ilzadeh and Ms. Mahnaz Parakand. The latter two, Mr. Esma’ilzadeh and Ms. Parakand, took part in the hearing on January 12, 2010 and represented the accused, as Ms. Ebadi is out of the country. Mr. Soltani was unavailable, having been twice imprisoned previously.

“Representation” was unduly restrictive. Shortly after the trial, Ms. Ebadi commented: “When I and my colleagues accepted to act as their defense lawyers, they [detainees] had not been allowed to see their families for over a year. And for some time too, they were not allowed to meet with us. After a year and a half when the investigation ended, I and the rest of the lawyers were permitted to read the dossier and we met them on one occasion in prison.” (“Iran’s Ebadi says seven Baha’is must be acquitted.” Washington TV. Online at http://televisionwashington.com/floater_article1.aspx?lang=en&t=1&id=17143.)

The purpose of this article is to help render translucent the otherwise opaque system of Iranian criminal procedure, which will never be fully transparent. See, e.g., Richard Vogler, “Islamic Criminal Justice: Theocratic Inquisitoriality,” A World View of Criminal Justice (Hants, UK/Burlington, VY: Ashgate Publishing, 2005), 105–126.

As a general rule, Islamic jurisprudence does not recognize the primacy of rights that exist under Western legal systems, but stresses the paramount importance of duties under Islamic religious law. Iran is no exception. Whatever fundamental human rights protected under international law are ostensibly enshrined in the Iranian Constitution, such rights are qualified by subjecting them to ill-defined “Islamic criteria.” Any attempt to modernize the Iranian Islamic criminal justice system so as to be compatible with progressive international human rights standards will be doomed to frustration and failure, to the extent that the goals and requirements of Shari‘a law are not met. Their reconciliation is, frankly, impossible.

Consequently, Iran’s authoritarian criminal justice has obvious conflicts with international human rights standards, thus tempting a hasty generalization that Islam and human rights are incompatible. The reader, however, should resist this conclusion by understanding that the Iranian system is not a definitive “Islamic” legal system (a consensus on which simply does not exist). Indeed, Vogler describes the new Iranian criminal justice system as, inter alia, one that “massively overcriminalises” and which may be characterized as “discriminatory, disruptive and a criminogenic endeavour” (124, citations omitted), although, to be fair, some Iranian reformers have been calling for a paradigm shift in the application of Islamic law.

The present writer’s primary, but not exclusive, source of information regarding the current system of Iranian criminal procedure is a peer-reviewed article: Hassan Rezaei, “The Iranian Criminal Justice under the Islamization Project,” European Journal of Crime, Criminal Law and Criminal Justice 10.1 (2002): 54–69. Rezaei notes that the current “project of Islamization of criminal justice” has, in practice, catered mainly to “the interests of the political clergy which determined the guidelines of Islamization, not the ultimate goals of Islamic law.” (Rezaei 2002, 68.) Rezaei accentuates the tension between the concept of rights under Western law and the concept of duties under Islamic law: “Observing the difference between the language of modern law under the rubric of rights and the field of Islamic law, which deals with duties, illustrates the depth of the rift between the secular and religious legal theories. Thus the notion of ‘God’s right’ in prosecution of offences and punishment is quite peculiar.” (Rezaei 2002, 64.) This dichotomy is instructive, and the reader should bear in mind that the entire notion of “justice” under Islamic law is radically different from the prevailing notions of justice under Western systems of criminal law and procedure.

Since Iran currently does not respect or abide by international human rights standards, as I have previously argued, it should be pointed out that Iran is also a signatory to “The Cairo Declaration on Human Rights in Islam” (CDHRI), Adopted and Issued at the Nineteenth Islamic Conference of Foreign Ministers in Cairo on 5 August 1990. See http://www.religlaw.org/interdocs/docs/cairohrislam1990.htm. In the Part III of this article, the principles enshrined in this document will be applied to the case of the Yaran.

The “Justice of Islam”
The “Code of Criminal Procedure of the Public and Revolutionary Courts” (CCP) was passed by the Iranian Parliament on September 20, 1999, and came into force on 26 October 1999. The system of criminal procedure that now prevails in Iran is predicated, in part, on the principle of “the Justice of God in creation and legislation.”

Rezaei observes that the Iranian criminal justice system is unique in that it is predicated on the Iranian (i.e., Shi’i) interpretation of Islamic law: “Since the principal aim of drastic changes in the Iranian criminal justice was the application of the divine laws, the features of Iranian criminal justice are different from all other forms of contemporary criminal justice reforms in the West. It may therefore be regarded as a fascinating subject for comparative criminal justice scholars, whose interest is the study of the full range of possible legal phenomena.” (Rezaei 2002, 55.)

However, serious questions have been raised, both within Iran and in the international community at large, as to how procedurally fair and just this system of the “Justice of Islam” really is, when principle is put into practice. According to Rezaei, it is primarily the Revolutionary Courts that have, so far, drawn international criticism:

Rather than being Islamic and fair, the history of the last 20 years shows that these courts are in fact revolutionary and arbitrary. Most of the criticism of the international human rights organizations against Iran is based on the practice of these courts. The judges of these courts are mostly clerics with no, or little, knowledge of legal matters, and for this reason they are rarely satisfied with the presence of defence counsel in their proceedings. These Courts created ecclesiastical tribunals having no basis in the law. The procedure of these tribunals also departed from the strict requirements of proof and safeguards for the defence. Initially, the verdicts of these Courts, inspired from the Islamic system of Qadi Justice, were final, and were enforced without any judicial review. It was only in 1988 that a right of appeal was provided. Proceedings have largely taken place in secret and defendants are rarely given the opportunity to have defence counsel. (Rezaei 2002, 62–63.)

The Revolutionary Courts of the Islamic Republic are based on an inquisitorial system, rather than an adversarial system, as exists in the United States, the United Kingdom, and elsewhere throughout the West and the developing world. The judge serves as prosecutor, judge and jury, as well as arbiter. In a word, the judge is an all-powerful authority in any case over which he presides.

In the West, a judge without legal training would be as untenable as it would be unthinkable. In Iran, by contrast, judges generally have no legal training whatsoever. By 1981, the Iranian judiciary was purged of judges who had been trained in law schools. Trained jurists were replaced by untrained seminary graduates and students, as well as by political appointees. By law, Iranian judges today are only required to have a high school diploma. Their primary qualification is unswerving adherence to the Islamic Republic’s tenets. An Iranian judge is typically characterized by partiality rather than by impartiality.

Article 232 of the Code of Criminal Procedure provides that the decisions of the Revolutionary Courts (and of the Common Courts) are final, except when the punishment handed down is severe — such as in cases involving the death penalty, in which the case can be appealed to the Supreme Court, which is Iran’s highest judicial authority, as vested under Article 161 of the Constitution of the Islamic Republic of Iran, adopted October 23, 1979, amended July 28, 1989. It remains to be seen what the verdict will be, when judgment is rendered in the trial of the Yaran. If the verdict is severe, as it is expected to be, whether the Supreme Court will hear an appeal is pure speculation at this point.

Thus, the implementation of the “Justice of Islam” in principle has, in practice, been one of procedural injustice, tempting a verdict of the “Injustice of [Iranian] Islam” by prevailing international standards. This verdict may be underscored by the existence of torture and rape complexes within the Iranian archipelago of prisons. As 2003 Nobel Peace Prize laureate, Shirin Ebadi, recently commented: “Unfortunately, for some time now, the Judiciary has distanced itself from justice.” (See “Iran’s Ebadi says seven Baha’is must be acquitted,” Iran Press Watch, January 13, 2010)

In the course of the present writer’s analysis, an effort will be made to “judge” the course of this trial in accordance with Iran’s own procedural standards. This is a more challenging standard by which to judge the procedural aspects of the trial of the Yaran, since Iran has effectively distanced itself from the due process revolution that has taken place worldwide since World War II.

Ms. Ebadi, as lead defense attorney for the Baha’i seven, the Yaran, has criticized the trial of the Yaran squarely on procedural grounds, independent of the merits of the case and apart from the substantive (or insubstantive) basis of the charges themselves, each of which, as capital offenses, may carry the death penalty: “This case was set up wrongly from the start, that is, my clients should have been released immediately. This delay which has lasted up to now is a contravention of the laws of the Islamic Republic of Iran.” (See “Iran’s Ebadi says seven Baha’is must be acquitted,” Iran Press Watch, January 13, 2010.) Here, Ms. Ebadi, who has a far greater knowledge of Iranian criminal procedure than the present writer, argues that the Yaran should have been released (and, presumably, charges dismissed) on procedural grounds alone. On comparative grounds, notably absent from Iranian criminal procedure is the notion of “probable cause” which apparently does not have to be demonstrated as a precondition of arrest and “temporary” detention.

The Baha’i International Community has noted (http://news.bahai.org/story/753) that the January 12, 2010 trial in Tehran was marked by “numerous violations” of legal due process. Both domestically and internationally, the trial of the Yaran has been roundly criticized. But whether counsel for the defense can move for a mistrial would have to be addressed under a separate legal analysis.

Jurisdiction and Venue
Jurisdictionally, this case is being tried by the Revolutionary Court, which is essentially a security court. Revolutionary Courts were established in July 1994 under the so-called “Act of Establishing Public and Revolutionary Courts.” Article 5 of the 1994 Act sets forth the jurisdiction of the Revolutionary Courts:

Revolutionary Courts as may be required in number shall be formed in each provincial capital and in the districts determined by the head of the judiciary and under the administrative supervision and legal authority of the judicial districts to investigate the following offences:

1. Any crime against the domestic or foreign security of the Islamic Republic of Iran and corruption on earth.
2. Any act amounting to an affront against the founder of the Islamic Republic and/or its leader.
3. Any conspiracy or plot against the Islamic Republic of Iran or any armed uprising, terrorism or demolition of public buildings or facilities with the aim of confronting the Islamic government of the country.
4. Spying for foreigners.
5. Drug trafficking or related crimes.
6. Suits filed under Article 49 of the Constitution (related to the confiscation of illicitly obtained wealth).

Here, the Revolutionary Court in Tehran has properly exercised its jurisdiction in accordance with the charges of the alleged espionage — in which the Yaran, curiously, have been charged with acting as agents for America and Israel, allegedly acting against the security interests of the Islamic Republic of Iran, and allegedly engaging in propaganda against the Islamic Republic’s system — with each these charges having been strenuously denied by counsel for the accused. Although the venue is proper, there are serious problems with other procedural aspects of this case under Iranian criminal procedure.

Prosecution and Indictment
Briefly, there are serious problems with the merits of this case. Without any real grounding in evidence, the charges cannot withstand scrutiny. As to the charge of “espionage,” on comparative legal grounds, this case bears no facial semblance to any act of “classical spying” that is criminalized under any statutory “Espionage Act” under any other system of jurisprudence. Therefore, I can only conclude that the prosecution, on behalf of the Islamic Republic of Iran, cannot meet its burden of proof by laying out a prima facie case for espionage.

In the West, espionage statutes are typically explicit in phrasing the crime of espionage as an act of obtaining information relating to the national defense to be used to the advantage of any foreign nation (often with no distinction made between friend or enemy). In light of the foregoing, what “state secrets” have been compromised? Where is the threat to the State’s external security and internal stability? The accused are not agents of Israel, nor of America. They are not even “minor” espionage agents. In fact, there is not a shred of evidence that any of the seven accused were involved with any known conspiracy, nor has the Court made any attempt to provide any such evidence to the counsel for the accused, nor has any such evidence ever been published.

Provision for capital punishment in case of acts of espionage and treason is based on the tenet that forfeiture of the life of the spy or traitor will serve as a deterrent to those who may thereafter be tempted to commit similar acts. Instantly, this social policy would be frustrated by the wrong outcome in this case. Here, where there is no identifiable act of espionage or treason, any guilty verdict would work a manifest injustice.

However, it is not the purpose of this article to offer a detailed, substantive defense of the Yaran, as the primary focus of this article is to provide a fairly objective analysis of the legal treatment of the Yaran under Iranian criminal procedure. This is a challenging task for two reasons: (1) information on the legal details pertaining to the case of the Yaran is extremely limited; and (2) information on the intricacies of Iranian criminal procedure (especially as regards the exceptions to black letter Iranian law) is also limited, although there is sufficient information available in order to make this analysis possible.

The principal difference between the new “Islamized” system (i.e., supposedly compatible with Shi’i Islamic criteria) and the former Iranian criminal procedural system (under the former Shah of Iran) is that all judicial procedures take place under the supervision of the Court. Thus, the pre-court prosecutorial indictment was removed. There is now no formal pre-trial indictment process under the current system. Instead, the explanation of the charge is regarded as the indictment itself. There is still a “Prosecutor’s Office” under the current system, but pre-trial prosecutorial indictment has been dispensed with entirely.

This procedure is in clear contradiction with Article 37 of the Constitution of the Islamic
Republic. Article 37 commands: “Innocence is to be assumed and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court.” The majority of Iran’s people were not previously aware of this problem. However, during the 1999 trial against the mayor of Teheran, Mr. Karbaschi, which was broadcast on Iranian television, this contradiction was publicly disclosed. Since then, the general consensus is that the new Iranian system of criminal procedure cannot preserve impartiality.

Thus the indictment was effectively conducted in the hearing that recently took place on January 12, 2010, when the Yaran were accused of “spying for America and Israel, acting against national security and [engaging in] propaganda against the [Islamic Republic’s] system.” (See “Iran’s Ebadi says seven Baha’is must be acquitted,” Iran Press Watch, January 13, 2010.) It would appear that the charge of espionage on behalf of America has been added to the previously announced charge of spying for Israel.

In spite of the request by defense counsel, the Court ruled that the hearing would be held behind closed doors, and required that relatives of the accused leave the courtroom. (See “Iran’s Ebadi says seven Baha’is must be acquitted,” Iran Press Watch, January 13, 2010.) On the same day as the trial, the European Union was quick to react, demanding that international norms be applied: “The EU calls for a just, fair and open trial respecting all international standards and obligations.” Whether or not this trial may be considered “just” or “fair” by Iranian standards, it is quite clear that the Iranian judiciary will not respect international standards and obligations, and has turned a deaf ear to the EU’s call for an “open trial.” Indeed, current Iranian criminal procedure is far from “open.”

Prior to the commencement of trial on January 12, 2010, the Baha’i seven were technically under temporary detention. Article 132 provides that “for the purpose of having access to the accused and his due appearance before the court when necessary, and to avoid absconding or hiding or interfering with others, the judge, after explaining the charge to the accused, shall use one of the following guarantees: (1) Obligation under the word of honor to appear before the court; (2) Obligation under bail to appear before the court until the trial has finished and the judgment has been enforced. In case of non-appearance, this shall be converted to surety; (3) Surety; (4) Pawn, including a sum of money or bank guarantee or real or personal property; (5) Temporary detention in accordance with rules.”

Here, the Yaran are perceived as a security risk, and thus release under the “word of honor,” bail, surety, and “pawn” provisions is unavailable, leaving “temporary detention in accordance with rules” as the option that the Court has exercised. However, whether the detention of the Yaran is indeed “temporary” or even “in accordance with rules” is open to serious question inviting open debate. In any event, the term “temporary detention” has been stretched beyond the limits. Any “temporary detention” that has lasted for over a year and a half stretches credulity and should shock the judicial conscience. (The defendant, Mrs. Mahvash Sabet, was arrested on March 5, 2008 in northeastern city of Mashhad, while the other six defendants, Mr. Behrouz Tavakkoli, Mr. Saeed Rezai’i, Mrs. Fariba Kamalabadi, Mr. Vahid Tizfahm, Mr. Jamaloddin Khanjani and Mr. Afif Na’imi, were arrested in their homes in Tehran on May 14, 2008.) Thus the Yaran have effectively been held under what may be analyzed as “compulsory detention.”

Thus, whether the Yaran continue to be held under “temporary” or de facto “compulsory” detention, under Iranian criminal procedure, “temporary detention” has its own “rules” — rules established under the Constitution of the Islamic Republic of Iran and Code of Criminal Procedure for the Courts of General Jurisdiction and Revolutionary Courts that outline the rights of detainees and set clear limits for what is permissible during arrest, interrogation, and detention.

Part II:
Temporary Detention, Access to Counsel

Detention is not about the length of incarceration alone. There are aspects of detention that must also be considered, such as whether the detainees have been properly treated or improperly mistreated. Among the kinds of maltreatment to which a detainee can be subjected are denial of access to counsel, denial of regular visits with family in accordance with prison regulations, denial of humane treatment in a variety of ways — especially when it comes to subjection to physical torture and psychological abuse — in clear violation of applicable provisions of international law. But, for the sake of developing what may be characterized as an “Iranian” or “ Shi’I Islamic” argument, this article narrowly focuses on treatment of the Yaran under Iranian criminal procedure, which is said to be predicated on Iranian Islamic law. Accordingly, the question of international law, and its application to the Yaran, will not be treated, except marginally, in this article. Previous publications, including those of the present writer, have provided ample documentation noting the various violations of international law to which the Iranian Baha’is, in general, and the Yaran, in particular, have been subjected.

Evidence suggests that some or all of the Yaran have been variously detained in solitary confinement. The record is quite clear that, with a single exception, the Yaran were denied access to counsel up until the time the first session of the trial, which took place on January 12, 2010. The Yaran, moreover, have been denied regular visits with their families, although visits have taken place on rare occasions. Further evidence can be produced to show that the Yaran were subjected to severe psychological and physical pressure to recant their belief in the Baha’i Faith.

The present writer has relied on several sources of information, including one important source: “‘You Can Detain Anyone for Anything’: Iran’s Broadening Clampdown on Independent Activism.” Human Rights Watch 20.1(E) (January 2008), available online at http://www.hrw.org/reports/2008/iran0108/iran0108web.pdf. Other sources will be cited throughout the remainder of this article.

Temporary Detention
Under the Iranian system, is there a distinction between lawful temporary detention and unlawful, arbitrary detention? How long may detainees remain in pretrial detention without formal charges? The answer, at first, appears deceptively simple and straightforward. Article 32 of the Constitution of the Islamic Republic of Iran requires that “charges with the reasons for accusation must, without delay, be communicated and explained to the accused in writing, and a provisional dossier must be forwarded to the competent judicial authorities within a maximum of 24 hours.” Consistent with the Constitution, Article 24 of the Code of Criminal Procedure likewise sets 24 hours as the limit within which authorities must provide a detainee with a written reason “in cases where the detainee must be kept in detention in order for authorities to continue their investigation.” This, a judge is required to authorize any pretrial detention and provide written charges within 24 hours of any arrest. These laws obviously were not applied to the Yaran. How is that possible?

There are many exceptions and loopholes under Iranian Islamic law. Article 32 of the Code of Criminal Procedure provides that a judge may issue temporary detention orders for cases involving criminal offenses under Iran’s “Offenses Against the National and International Security of the Country” (“Security Laws”), allowing authorities to hold detainees beyond the 24-hour period, without charge:

Article 32 [Arrest]
No one may be arrested except by the order and in accordance with the procedure laid down by law. In case of arrest, charges with the reasons for accusation must, without delay, be communicated and explained to the accused in writing, and a provisional dossier must be forwarded to the competent judicial authorities within a maximum of twenty-four hours so that the preliminaries to the trial can be completed as swiftly as possible. The violation of this article will be liable to punishment in accordance with the law.

What recourse, if any, does the accused have under such circumstances? Article 33 of the CCP gives the accused the right to appeal his or her detention order within 10 days, and that the detainee’s case must be resolved in the course of one month. The exception to this rule is one that allows the judge to renew the temporary detention order, and there is no limit on how many times the judge may renew this order. It the case of the Yaran, the ongoing “investigation, which took over 18 months, effectively kept the Baha’i detainees under a perpetual “temporary” detention that would last until the state had completed its investigation. During this period, the Yaran have been held largely incommunicado during the pretrial investigation period, and were denied access to their attorneys during this period, except for one meeting in Evin Prison, and the authorities allowed but little communication with family members.

On October 17, 2009, Mr. Abdolfattah Soltani — spokesman for the Defenders of Human Rights Center (co-founded by 2003 Nobel Peace Prize laureate, Shirin Ebadi) and one of the four attorneys representing the Yaran, was interviewed by the Committee of Human Rights Reporters. On the issue of improper detention, Mr. Soltani stated:

On 15 Shahrivar (September 6, 2009), I and other attorneys on this case objected to the temporary detention of these individuals. The deadline for the temporary detention had already expired, and the court did not have the legal right to extend the length of the temporary detention. The case was, therefore, sent to the appeals court to consider our objection. Cases of prisoners who are accused of a crime are usually considered within 4 to 5 days. But 40 days have passed since this case was sent to the appeals court, and we do not even know to which branch it has been sent. Our follow-up with the computer section [of the court] has been futile and they have not yet announced to us which branch is considering the case. (“Interview with human rights lawyer Soltani,” Iran Press Watch, October 22, 2009)

Here, Attorney Soltani, acting on behalf of the Yaran, has filed an appeal with an appellate court on the grounds that the lower Revolutionary Court exceeded its jurisdiction in extending, yet again, the length of temporary detention. This appeal illustrates the application of Iranian criminal procedure to the case of the Baha’i seven. Note that, in this legal action, Mr. Soltani has filed his appeal pursuant to the clear provisions of the Code of Criminal Procedure, and not under the authority or procedures of international law. The basis for this appeal is clear: The Revolutionary Court, according to the appeal filed by the Defenders of Human Rights Center through Mr. Soltani, exceeded its own authority by violating procedural rules governing temporary detention under Iranian criminal law. The present writer does not presently know of the outcome or current status of this appeal, and it may well be that Mr. Soltani himself has not been so informed.

Access to Counsel
The right to counsel is protected under Iranian law as well as under international law. Article 35 of Iran’s Constitution guarantees the right to counsel:

Article 35 [Right to Counsel]
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.

Article 128 of the Code of Criminal Procedure, however, effectively undermines this right. Article 128 provides that, during the investigative phase, counsel may be denied “in cases where the issue has a secretive aspect or the judge believes that the presence of anyone other than the accused may lead to corruption.” Although the investigative phase may last up to a month, a judge may renew the detention phase indefinitely. In crimes involving national security, “the presence of the lawyer during the investigative stage takes place with the permission of the court.” Article 128 grants the judge discretionary power to deny counsel during the investigative phase. In the case of the Yaran, the Baha’i seven were permitted to meet with their attorneys only once prior to the first session of the trial on January 12, 2010.

This protection, however, is of little avail unless upheld by the Iranian authorities, both in spirit as well as in letter. The Yaran, as previously mentioned, are represented by four lawyers from the Center for the Defense of Human Rights — Ms. Shirin Ebadi (Iran’s first female judge prior to the 1979 Islamic revolution, and awarded the Nobel Peace prize in 2003), Mr. Abdolfattah Soltani, Mr. Hadi Esma’ilzadeh and Ms. Mahnaz Parakand. The latter two, Mr. Esma’ilzadeh and Ms. Parakand, took part in the hearing on January 12, 2010, as Ms. Ebadi is out of the country. Mr. Soltani was unavailable, have been twice imprisoned previously.

As noted earlier, the Yaran’s “representation” was unduly restrictive. Shortly after the trial, Ms. Ebadi commented: “When I and my colleagues accepted to act as their defense lawyers, they [detainees] had not been allowed to see their families for over a year. And for some time too, they were not allowed to meet with us. After a year and a half when the investigation ended, I and the rest of the lawyers were permitted to read the dossier and we met them on one occasion in prison.” (“Iran’s Ebadi says seven Baha’is must be acquitted.” Washington TV)

Although the application of international law to the case at bar is outside the purview of this article, brief mention will be made of applicable international standards. There are a number of applicable provisions of international law that may be brought to bear in the case of the Yaran. Two representative provisions will be provided here, for purposes of illustration: (1) The United Nations’ “Basic Principles on the Role of Lawyers” provides, in relevant part: “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within hearing, of law enforcement officials.” (Basic Principles on the Role of Lawyers, A/CONF.144/28/Rev.1 at 118 (1990), art. 8.) (2) Similarly, the United Nations’ Standard Minimum Rules for the Treatment of Prisoners requires, in relevant part: “An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.” (Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977), Rule 92.) As the two foregoing provisions of international law demonstrate, Iranian authorities have clearly violated international standards regarding the treatment of detainees in denying the Baha’i seven immediate and adequate access to counsel, and denying regular family visits in accordance with prison regulations. In this respect, the Yaran have not received equal treatment with similarly situated detainees in Iran in general, although it could be argued that the Yaran have, indeed, have received equal mistreatment with similarly situated security detainees.

Strangely, international human rights law does not specify a maximum allowable period of detention before trial. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) commands that “anyone arrested or detained on a criminal charge … shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subjected to guarantees to appear for trial.” However, the Iranian Code of Criminal Procedure (CCP) does set limits (i.e. Article 32 of Constitution of the Islamic Republic of Iran and Article 24 of the Code of Criminal Procedure both set a limit of 24 hours within which formal charges, in writing, must be communicated to the accused), although security exceptions are commonly applied to circumvent requirements of Iranian law. However, the security exceptions in Article 32 of the Code of Criminal Procedure (and ensuing provisions allowing for judicial renewals of temporary detention orders of indefinite duration) stand in stark violation the ICCPR’s due process guarantees.

The present writer had originally intended to discuss the treatment of the Yaran inside Evin Prison, having had access to some personal narratives that provide important details as to their experience in prison. However, the author has chosen not to engage in this analysis because of the security risks to parties in Iran involved. Moreover, disclosure of such intimate details could have the unwelcome effect of subjecting the Yaran to even worse treatment. However, what has been made public is the following information:

Each one of them [the Yaran] is facing a particular physical hardship, while they are deprived of things as basic as having a bed to sleep on. (Ma‘man Rezaee, “For my Father,” Iran Press Watch (October 21, 2009).

Here, each of the Baha’i seven were denied so basic a necessity as a bed upon which to sleep. Moreover, each of the Yaran was subjected to unspecified instances of “physical hardship.” The reader is left to fill in the details, as it simply was not expedient for the daughter to reveal specific details regarding the physical deprivations that the Yaran have been made to endure.

Part III:
Application of “The Cairo Declaration on Human Rights in Islam” (CDHRI)

To be fair, “The Cairo Declaration on Human Rights in Islam” (CDHRI) — promulgated at the Nineteenth Islamic Conference of Foreign Ministers in Cairo on 5 August 1990 — is a historic document that should command international respect. Certainly, each of the members of the Islamic Conference of Foreign Ministers, including Iran, which is a signatory, is bound by the terms of this declaration. Although no enforcement provisions have been incorporated, each member of the Islamic Conference of Foreign Ministers stands accountable for its compliance, or noncompliance, with respect to each and every one of its provisions. In the present analysis, it makes sense to begin with Article 1, which provides:

Article 1
(a) All human beings form one family whose members are united by submission to God and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations. True faith is the guarantee for enhancing such dignity along the path to human perfection.
(b) All human beings are God’s subjects, and the most loved by him are those who are most useful to the rest of His subjects, and no one has superiority over another except on the basis of piety and good deeds.

Here, note that respect for all human beings is the respective of “religious belief.” The problem is that Iran has taken every measure to ensure that the Baha’i Faith is not recognized as a religion. By excluding Iran’s largest non-Muslim religious minority — a community estimated to be 300,000 — from the category of a “recognized” religion, the Iranian regime has rendered Article 1 inapplicable to the Baha’is of Iran.

Even if another member Islamic state were to lodge a protest against Iran’s treatment of the Baha’is in general, and of the Yaran in particular (an unlikely event), Iran can easily appeal to the final provisions of the CDHRI, which state:

Article 24
All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari‘ah.

Article 25
The Islamic Shari‘ah is the only source of reference for the explanation or clarification to any of the articles of this Declaration.

Here, the application of the Islamic law code (the “Shari‘ah”) can effectively nullify the application Article 1 to the to the Baha’is of Iran, and, indeed, application to the Baha’is of every member state of the Islamic Conference of Foreign Ministers, for the simple reason that Islam does not recognize even the possibility of a post-Islamic religion.

There are, however, other provisions that, although predicated on the application of Islamic law, may be invoked as “Islamic” protections that should be extended to the Baha’is of Iran and, instantly, to the Yaran:

Article 19
(a) All individuals are equal before the law, without distinction between the ruler and the ruled.
(b) The right to resort to justice is guaranteed to everyone.
(c) Liability is, in essence, personal.
(d) There shall be no crime or punishment except as provided for in the Shari‘ah.
(e) A defendant is innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defence.

Article 20
It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of humiliation, cruelty or indignity. … Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.

Here, Article 19(e), in principle, should be fully and evenhandedly applied to all individuals, irrespective of religious affiliation. Unfortunately, this Declaration offers no definition of what constitutes a “fair trial.” Nor does this Declaration provide any legal or diplomatic recourse for violations under any of its (presumably inviolable). provisions.

Article 20 prohibits any act of “physical or psychological torture or to any form of humiliation, cruelty or indignity.” Without divulging significant details that may pose a danger to the Yaran, suffice to say that evidence exists that the Yaran were subjected to privations, indignities, as well as physical and psychological abuse, some of which may well qualify as acts of “torture.”

Conclusion
The foregoing legal analysis of the case history and treatment of the Baha’i seven, known as the Yaran (“Friends”), has demonstrated clear violations of Iranian criminal law, as set forth and the applicable provisions of the Code of Criminal Procedure (as previously cited), and egregious infringements of constitutional protections as enshrined in the Constitution of the Islamic Republic of Iran. One further example regards freedom of religion. In principle, but not in practice, the Iranian Constitution protects freedom of belief:

Article 23 [Freedom of Belief]
The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.

Of course, this constitutional protection has never been extended to the Baha’is of Iran. Instead, what has happened is quite the opposite: The full panoply of Iranian state apparatus has been extensively mobilized to conduct investigations of individuals’ Baha’i beliefs, and Baha’is have, in the very terms of Article 23, been regularly molested and taken to task simply for holding Baha’i beliefs.

Part IV:
The Right to a Defense

The Iranian State is using the instrumentality of the legal system to prosecute what may be fairly characterized as a “show trial” for the benefit of anti-Baha’i hardliners—yet to the great detriment of Iran’s international standing in the community of nations, as well as a betrayal of its own stated principles. Worst of all, the fair name of Islam—which stands for “submission” to the powerful presence of justice under divine precept and praxis—will be tarnished if this travesty of pretextual espionage, and other security charges, is allowed to go forward.

On procedural grounds alone, the Revolutionary Court should dismiss this case, with prejudice, for lack of due process. As a signatory of the U.N. International Covenant on Civil and Political Rights Due, Iran has committed itself, under international law, to the exercise of due process. Due process, however, is absent from this case.

Even if Iran were to openly repudiate international law (instead of maintaining the pretense of abiding by it, albeit on its own terms and subject to its own legal interpretations), Iran cannot escape the charge of violating its own procedural requirements.

The closed trial of the Yaran, moreover, has put Iranian Islam on open trial. This charade of justice promises to be a spectacle of debacle, a travesty of due process, a perversion of Iranian “Islamic” justice, a flagrant repudiation of universal standards of human rights, a shock to the judicial conscience, an affront to human dignity, an international scandal and a national disgrace. This high-profile, show trial will backfire.

The Iranian authorities should take into consideration the ramifications of this trial should it produce an unjust result. The international community, according to Article 3 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, is duty-bound to roundly condemn such actions, and to make compliance with this requirement of international law a precondition to normalized diplomatic relations. The “world court” of international public opinion will render its verdict, either way, depending on the outcome of this widely publicized and highly symbolic case. If the Yaran are declared guilty and are sentenced, Iran will be roundly declared as having violated international law (and, arguably, Iranian criminal procedure) and pronounced “guilty”, and sentenced to further isolation by the international community.

In the final analysis, Iran’s anti-Baha’i policy does serious damage to the reputation of Islam globally, not only to the Shi’i Islam of Iran, but also to the Sunni Islam of most other Islamic countries. As a consequence of Iran’s treatment of its Baha’i minority — and especially of the Yaran — the ultimate injury-in-fact is refractory damage to the reputation of Islam in the eyes of the international community. As Mr. Soltani has stated in his October 17, 2009 interview: “Therefore, given international conditions, as well as the domestic situation in Iran, keeping the Baha’i leaders in prison is nothing but a [political] cost for the authorities. This is especially true because these individuals were not politically active, and do not represent a political front. They were only active within the realm of their beliefs.” And furthermore: “No physical evidence exists for any of the seven individuals on the charge brought against them. The charges are only in terms of generalities and, like many political and religious cases, contain no legal reasoning at all.” (“Interview with human rights lawyer Soltani,” Iran Press Watch (October 22, 2009).

Taking the charitable view that the State’s case here may be the result of invincible ignorance, dismissing the case against the Yaran on procedural grounds alone would be the best way for all parties to “save face.” This way, the Iranian state will not have to meet its burden to “prove” its baseless accusations, as the merits of the case will no longer have to be reached. This, I submit, would be the most expedient way for the Court to extricate itself from the procedural objections which, on appeal, would predictably go before the Supreme Court of Iran for judicial review.

The sentencing trial of the Yaran is now set for February 7, 2010. This trial will test legislation passed less than six years earlier. On May 2, 2004, the “Law of Protection of Citizens” was passed by former President Mohammad Khatami and the Sixth Parliament of Iran. It was accepted by the Council of Guardians the next day. Article 3 obliges the court to observe the right of the accused to offer a defense, and the court’s duty to provide the accused with the opportunity to obtain an attorney and an expert. Although Article 3 of the Law of Protection of Citizens has removed the limitations imposed by Article 128 of the Code of Criminal Procedure, the courts have reportedly not implemented Article 3 of the Law of Protection of Citizens. See “Rights of Detainees and Accused in the Legal System of Islamic Republic of Iran,” by Navid R. Sato, Esq. See also Silvia Tellenbach, “Aspects of the Iranian Code of Islamic Punishment: The Principle of Legality and the Temporal, Spatial and Personal Applicability of the Law.” International Criminal Law Review 9 (2009): 689–705.

According to Judge Stefan Trechsel, Duty Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia (ICTY), at The Hague in The Netherlands, criminal proceedings must comport with two fundamental principles of justice: procedural and substantive. Procedural due process, under a defined code of criminal procedure, must uphold the right to a fair trial. Fair trial guarantees include the right to a public hearing, the right to be tried within a reasonable time, the right to be heard before an impartial and independent and tribunal, the right of the accused to be presumed innocent—until such time as the prosecution can prove culpability beyond a reasonable doubt—and the right to an appeal under judicial review. There must be an equipotent “equality of arms” between the prosecution and defense. The right to a fair and open trial protects the defendant from secret trials. Trials must be fair in order to succeed in their “presentation of justice” and thus inspire confidence in the administration of justice. A fair trial is not only for the accused; it also protects the right of the public (including the international community) to scrutinize the integrity of proceedings. It confirms or denies the legitimacy of State authority to its own people and to the world. See “Report: Workshop: Procedural Justice—Comparative Aspects, 1st December 2007”

Is an “Iranian fair trial” an oxymoron? The Yaran’s access to fundamental fair trial rights is a key indicator of equitability in the Iranian system of criminal justice. Iran’s criminal justice system will lose its integrity and credibility if due process standards are not applied in this high-profile show trial. Unless and until the Yaran are tried for internationally recognizable criminal offenses in proceedings that meet internationally recognized fair trial standards, the Iranian criminal justice system will lose face—indeed, will be shamefaced—in the court of international opinion.

APPENDIX:
CHECKLIST OF PROCEDURAL DUE PROCESS REQUIREMENTS
UNDER IRAN’S CODE OF CRIMINAL PROCEDURE

The manner in which the Yaran were treated violated the Constitution of the Islamic Republic of Iran, Iran’s Code of Criminal Procedure, and international standards of due process.

To consult the Iranian Code of Criminal Procedure, see Qanun-i A’yin-i Dadrisiyih Dadgahhayih Umumi va Inqilab dar Umur-i Kayfari [Criminal Procedure Code for Public and Revolutionary Courts] (1379) [2001], online at http://hoghoogh.online.fr/article.php3?id_article=67 (in Persian).

See also the Qanun-i Ihtiram bih Azadihayih Mashru’ va Hifz-i Huquq-i Shahrvandi (“Law Respecting Legitimate Freedoms and Protecting Citizen Rights” or “Citizen Rights Law”) 1383 [2004], online at http://www.bia-judiciary.ir/tabid/144/Default.aspx (in Persian).

The following provisions from the Iranian Code of Criminal Procedure provide a checklist by which the Iranian judiciary’s compliance with its own national (and Islamic) standards, as applied to the Yaran’s due process rights, may be measured.

1. Article 112: “The accused shall be summoned by an arrest warrant. There should be two copies of the arrest warrant; one is served to the accused and the other must be signed by the accused and handed back to the serving officer.”
2. Article 119: “The accused shall be summoned by an arrest warrant. The arrest warrant, which contains the reasons for the summons, must be read to the accused.”
3. Article 121: “The accused should be summoned during the day, except in case of an emergency.”
4. Article 123: “The accused shall be accompanied and monitored from the time of summoning to the time he or she is presented to a judge.

Comment: The officers are responsible for presenting the summoned person immediately to a judge. The accused may only be detained if there is the possibility of flight or the destruction of evidence; in the absence of these two conditions, officers do not have the right to detain an individual for more than 24 hours.”

5. Article 132: “For the purpose of having access to the accused and his due appearance before the court when necessary, and to avoid absconding or hiding or interfering with others, the judge, after explaining the charge to the accused, shall use one of the following guarantees: (1) Obligation under the word of honor to appear before the court; (2) Obligation under bail to appear before the court until the trial has finished and the judgment has been enforced. In case of non-appearance, this shall be converted to surety; (3) Surety; (4) Pawn, including a sum of money or bank guarantee or real or personal property; (5) Temporary detention in accordance with rules.”
6. Article 185: “All parties to a criminal dispute have the right to select and introduce their own legal counsel(s) to a court of law. The date and the time of the court appearance will be announced to the accused, plaintiffs, defendants and their attorneys. If the disputing parties have multiple lawyers, the presence of one lawyer from each side is sufficient for the court to proceed.”

Even the claim that the opposition leader is a Baha’i is not a new tactic, and was no surprise. The hope of conservative elements in Iran in so doing is to portray him as being under the dark cloud that they have tried so hard to cast over the Baha’is, thereby turning public opinion against their rivals. How ironic that the same person – Mir-Hossein Musavi, as the Prime Minister during the time of Khomeni who arrested, jailed and killed so many Baha’is — is now being stigmatized and is suffering himself by the very scheme he help to establish! Of course, it is clear that these persons are not Bahai’s – either Mr.Musavi or the courageous attorney whose firm is representing the accused Baha’i leaders, Shirin Ebadi.

The list of baseless accusations, false representations and claims is very long, quite imaginative, and simply ridiculous. The Baha’is are referred to as a “colonialist sect,” who are responsible for “the desecration of religious sanctities” and “disturbances witnessed on `Ashura,” and who are “spying for the Zionist regime” and “speaking out against the Islamic government.” The volume of such accusations is so high that Iran Press Watch could never translate and publish all of them. We include a selection of the headings below:

Baha’ism, Led by Zionism, is Hatching Intrigue Behind the Scenes of the Recent Unrest ( http://www.farsnews.com/newstext.php?nn=8810071122)

“It is evident that these inhumane and criminal acts, these nefarious deeds committed by deviant and misguided people, were designed and organized by global arrogance, international Zionism, the misguided Baha’i sect, and other shunned and condemned groups of traitors…” (http://www.irna.ir/View/FullStory/?NewsId=866869)

President of the Coordinating Council for Islamic Propagation in Western Azerbaijan: “Of course, this movement of hooligans and agents of (global) arrogance bent on desecrating religious sanctities has only one goal: to harm the Revolution and Islam and advance the objectives of America, Israel, and Baha’ism.” (http://www.isna.ir/isna/NewsView.aspx?ID=News-1464140)

Regarding the role of Baha’ism in desecrating religious sanctities, our expert in matters of security stated, “The path that the Musawi camp is taking in their attack on religious sanctities is the exact same path that the misguided Baha’i sect has been on for years.” (http://www.javanonline.ir/Nsite/FullStory/?Id=200302)

Iran State Media Blames the “Baha’i Sect” for Recent Unrest (http://www.bahairights.org/2009/12/29/iran-state-media-blames-the-bahai-sect-for-recent-unrest/)

Muhammad Karim Abedi, “..Zionism and Baha’is, the ill-wishers of Religion, tried all in their power to disturb Ashura” (http://www.farsnews.com/newstext.php?nn=8810081569)

The list very long. In the interest of making this note short, the list has been limited to the above.

It is well known, and there has been a long and exhaustively documented history showing that two central tenets of the Baha’i Faith are obedience to the government of whatever country in which Baha’is reside, and reverence for the revelators of all major religions, especially for the Prophet Muhammad. The International Baha’i Community has rejected the above allegations in a detailed article at the following link: http://news.bahai.org/story/747

Interestingly enough, today, the Universal House of Justice, the world governing body of the Baha’i Faith, in a letter to the Baha’is of Iran, has clarified that the Baha’is, whereever they may live, must exert their utmost effort, shoulder to shoulder with their countrymen, for the betterment of that country. (see the letter here: http://www.universal-house-of-justice-messages.org/payam/2010-01-10.html ). “The betterment of the World” Baha’u’llah tells the people of the world, “can be accomplished through pure and goodly deeds, through commendable and seemly conduct.”

Iran Press Watch will continue to provide information regarding the context for this current discussion. We will soon be providing historical documentation to facilitate readers’ comprehension . This is the first in a series of Editorials to enable readers to understand the recent baseless fabrications by the government of Iran.

The Editor,

Iran Press Watch.