Sunday
Jun202010
Iran Special: Legal Analysis of Post-Election Violations of Rights (Shadi Sadr)
Sunday, June 20, 2010 at 11:46 
Shadi Sadr has written this report for the Iran Human Rights Documentation Center:Preface
Nearly one year has passed since the widespread public protests to the announced results of Iran’s 2009 presidential election. In the past year, a harsh crackdown in various forms across various sectors of society has rendered the human rights situation in Iran more precarious than ever before. During this time, many human rights lawyers and activists have voiced their criticisms of Iran’s human rights record under the country’s current, existing laws.
The Latest from Iran (20 June): Remembering the Protests and the Dead
The following article examines the question of which laws may be cited in terms of the rights of the protesters and to what extent violations of these laws occurred in the post-election events. To this end, I’ve based my analysis on basic rights set forth in the Constitution of Iran and officially-recognized common laws. After reviewing the limits and provisions in the law concerning the aforesaid rights, I’ve attempted to highlight of some of the most prominent and specific cases in which widespread violations of these basic rights occurred.
I. Right of peaceful assembly
Article 27 of the Constitution states that “[p]ublic assemblies and marches may be freely held, provided arms are not carried and that they are not detrimental to the principles of Islam.” This Article stipulates two conditions for the right to assembly: participants must be unarmed; and assemblies must not infringe upon the “principles of Islam.” The latter provision, in particular, is subject to broad interpretation due to a lack of legal consensus that any text provides an authoritative definition of the term “principles of Islam.” The law for “Political Parties, Societies, Political and Craft Associations, and Islamic or Recognized Minority Religious Associations” in Article 62 adds other provisions to these two conditions to limit the freedom of association. According to clause 2 of Article 6 of this law, the legal framework for groups to freely assemble is thus defined:
A march may be freely held, provided that it is not detrimental to the principles of Islam as determined by the Article 10 Commission and participants are unarmed . . . and prior notice is given to the Interior Ministry. Assemblies in public squares and parks are also free with permission from the Interior Ministry.
Therefore, in the first place, only political parties, societies, and non-governmental organizations officially registered with the Ministry of the Interior possess the right to request a permit [for holding assemblies], while ordinary citizens not affiliated with a registered organization do not possess the right to freely hold assemblies. Secondly, the Article 10 Commission, which is composed of representatives from various governmental institutions, must determine whether or not the assemblies and demonstrations infringe on the principles of Islam; if they do not, the Commission will issue the permit to hold the assembly.
In summary, the right to freedom of assembly in the Islamic Republic of Iran is limited and contingent on the following provisions:
1. Unarmed assembly
2. Lack of infringement on the principles of Islam
3. Submission of request by a registered organization
4. Issuance of permit by the Article 10 Commission
A review of the circumstances of the post-election public assemblies, and the legal provisions in this regard, indicate that it is clear that none of these assemblies were lawful in the eyes of the existing law. Article 4 of “the Law for the Use of Firearms by Officers of the Armed Forces in States of Emergency” states the following:
Police Forces have the right to use firearms on the order of the commander of operations, for the purpose of restoring order and controlling illegal demonstrations, and quelling insurrection and riots, in situations that are not containable without the use of
firearms, provided that:
1. Other means were tried first in accordance with the law and were not effective; and
2. Prior to the use of firearms, the lawbreakers and insurgents have been duly warned about the use of firearms against them.
According to section 5 of the same law, police forces may intervene to restore order and security in illegal demonstrations only if the demonstrators are armed.
To date, no reliable evidence or witnesses have indicated that the post-election protests were anything other than peaceful. Yet the Revolutionary Guard (IRGC) announced in an official statement that it would take action to crack down on the street protests. IRGC commanders also stated repeatedly in several interviews that IRGC and paramilitary Basij forces were used to put down the demonstrations. These statements were made even though the IRGC and Basij did not have the right to intervene in the post-election demonstrations due to the fact that the marches were peaceful and participants were unarmed.
The police, moreover, only have the right to use arms when other methods of crowd control and restoration of order have failed. The police are legally obligated to give prior warning to protestors, and weapons may be used only if demonstrations continue after this warning is issued. To date, none of the documentation of repeated shootings at protesters has shown that police and military personnel gave warnings to protesters before using their firearms. During several protests (on June 15, 2009, June 20, 2009, Ashura, etc.), gunshots were fired to put a stop to demonstrations, resulting in the killing and wounding of a considerable number of protestors.
Article 57 of the Islamic Penal Code states:
If an officer commits a crime on the order of an official’s unlawful command, both the person who ordered the act and the person who carried out the act will be punished in accordance with the law. If an officer executes an order while mistakenly believing he is acting lawfully, he will only pay the blood-price compensation or a fine.
Article 570 of the same law states:
Any government official, officer, or any person connected to the government and its institutions who unlawfully deprives citizens of their personal rights, or deprives them of their constitutional rights, in addition to discharge from service and prohibition from government employment for three to five years, will be sentenced to a prison term of six months to three years.
Therefore, police and military commanders and officers who used firearms in the crackdown on public demonstrations on various dates, given that a number of people were killed or wounded as a result of this unlawful use of firearms, must be criminally prosecuted. But as we will see in the “Violation of the Right to Justice” section of this article, these laws were almost wholly ignored.
The armed crackdown on the post-election protests, however, was just one instance of violation of the right to peaceful assembly. Thousands of protesters were arrested in the streets and prosecuted on charges of attending illegal demonstrations. In some cases in which the court’s ruling has been declared and finalized, demonstrators have been charged with “acts against national security.”
One such case is that of Atefeh Nabavi, a female university student who attended the June 15 march in Tehran (the largest post-election public assembly, estimated by government officials at more than two million people). She was found guilty on charges of “disrupting public order” and “assembling and conspiring against the establishment by participation in illegal demonstrations” and sentenced to four years in prison.
Book Five, Chapter One of the Criminal Code defines Crimes Against National Security to include the following:
• forming or directing an association with the aim of disrupting homeland security, or membership in such associations (Sections 498 and 499);
• propaganda activity against the Islamic Republic establishment (Section 500);
• espionage (Sections 501, 502, 503, 505, 506 and 510);
• provocation of armed forces to disobey orders (Section 504);
• collaboration with hostile foreign states (Section 508);
• bomb threats (Section 511); and
• provocation of the public to civil war (Section 512).
It is plainly evident that attending a demonstration to protest election results cannot constitute grounds for any national security crimes. Nevertheless, several protesters at such demonstrations were arrested, tried, and punished on charges of acts against national security.
Following the protests on Ashura [Dec. 27, 2009], citing a fatwa issued by Ayatollah Makarem-Shirazi, a hardliner marja in Qom, that designated the Ashura protesters as mohareb or “enemies of God” (an offense punishable by execution), the Revolutionary Courts meted out the death penalty to several allegedly moharab protesters arrested that day. Mohammad-Amin Valian, a 20-year-old student who had thrown stones at Basij forces during the Ashura protests, was convicted of mohareb by the Revolutionary Court and sentenced to death. This is while according to section 183 of the Islamic Penal Code, a mohareb is defined as “one who takes up arms for creating fear and terror among the public and taking away freedom and security from individuals.” Valian was not permitted to choose an attorney, and the court did not accept the defense made by the lawyer appointed to him (who argued that “according to religious edicts, stones are not considered weapons”), and sentenced Valian to death–a sentence that was upheld on appeal.
II. Prohibition against arbitrary arrest
Despite the lack of reliable data on the number of persons arrested arrested, according to Iranian authorities, some 4,000 individuals were arrested in the first month alone following the [June 12, 2009] elections. Some human rights organizations estimate the number of post-election detainees from June 2009-March 2010 to be up to 18,000 people.
These detainees were arrested during street protests or by security agents showing up at their homes and offices. In both cases, based on documents and existing evidence, there was widespread violation of the rights of the detainees.
A. Arrest without court order:
Article 32 of the Constitution states that
No person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. Legal procedures must be initiated as early as possible. Anyone infringing this principle will be punished in accordance with the law.
The law of the Judicial Procedure for General and Revolutionary Courts in Criminal Affairs (Criminal Affairs law), the Reform law for trials at General and Revolutionary, and the law of Respect for Legitimate Freedoms and Protection of Civil Liberties (Civil Liberties law) determine the way in which Article 32 must be implemented. Based on these laws, no person may be arrested without a warrant (issued by the prosecutor or on his authority) except in cases of witnessed crimes. In cases of witnessed crimes, law enforcement (police officers and security agents) must obtain a judicial official’s ruling for release or continued detainment of the detainee within 24 hours of the arrest.
The arrest warrant must also be documented and supported with reasons. The accused has the right to protest the arrest warrant at specific intervals. Even absent such protest, in crimes relating to national security, subsequent to a two-month temporary arrest, the judicial official [overseeing the case] must renew the arrest warrant, unless there is clear reason for continued detention.
In practice, in the course of the post-election events, nearly all of these laws were violated on a large scale. In the first few days following the elections, a large number of well-known political activists and journalists were arrested at their homes or workplaces. The attorneys of some of these individuals later stated that their clients’ files contained a general arrest warrant signed by the Tehran Prosecutor (Saeed Mortazavi) that was issued four days before June 12 [Election Day] –that is, prior to the start of the street protests. These attorneys added that these general warrants did not cite any evidence or reasons whatsoever for the arrests.10 Based on these general warrants, security agents made sweeping arrests and searched detainees’ homes and offices.
Chapter 3 of the Law of Criminal Procedure has comprehensive regulations for searches and investigation of private properties. Many of these regulations were violated in the course of the post-election arrests. For example, Article 100 of this law states:
Searches and investigation of homes must be carried out during daytime hours, and during the night only by urgent reasons as stipulated by a Judge on the arrest warrant.
Yet the homes of many detainees were searched after midnight by security agents who failed to present warrants stipulating the reason for nighttime searches.
Based on the testimonies of some detainees arrested in street protests, they were forced to sign and stamp their fingerprint on pre-written forms, without having an individual file with exclusive documents assembled for them. One detainee testified:
The page listing the crimes was the same for everyone. Acts against national security, disobeying police orders, propaganda against the Islamic Republic regime, serving BBC and VOA foreign media … All we had to do was stamp our fingerprint [onto the form]. They had arrested one [person] at the supermarket, another one in street clashes, and another on Hemmat Expressway before the Tehran Pars exit. We all had the same crime and had to stamp the form. We were supervised by a ranked officer. We kept telling him that we didn’t accept the charges, but he kept ordering us to stamp the forms. I tried not to stamp the form, and I was beaten. They hit me with punches and kicks and a hose. Heidarifar even came down from his bench to personally land a few slaps and kicks on me. I finally stamped it. We all did.
According to section 109 of the Criminal Affairs law, a Judge must inform defendants of the charges against them and make clear to them the reason for arrest, after which an investigation may be opened.
Many of the post-election detainees spent months in temporary detention without benefitting from legal regulations that safeguard their rights. Kobra Zaqehdoust, who was arrested at Behesht Zahra cemetery while attending the 40th day memorial service for those killed in post-election violence, has been in temporary arrest for nine months now, without judicial officials determining the case against her. According to Zaqehdoust’s attorney, her arrest warrant was re-extended after nine months without explanation to her family and lawyer about the reason for this extension.
III. Prohibition against torture
Read rest of report....
Reader Comments (7)
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