Violations of Legal Procedures

Under international law, the seven Baha’i leaders, who were initially sentenced to 20 years imprisonment, should never have been arrested in the first place.

The charges against them clearly stem from their religious beliefs and activities – and freedom of religion is protected by numerous international covenants and treaties, most of which Iran itself is party to.

But even under Iranian law, the seven – members of an ad-hoc group known as the “Friends” (Yaran in Persian) who with the full knowledge and permission of the government had been tending to the spiritual and social needs of the Iranian Baha’i community – have been repeatedly denied their rights. Such violations include:

  • Iranian law requires that detainees be quickly and formally charged with crimes. The seven Baha’is were held for at least nine months before any word of the charges against them were uttered by officials, and even then it was at a press conference, not in a court setting.
  • The right to legal counsel is spelled out in Iranian law. The seven were denied access to their lawyers for more than a year and then only allowed barely one hour of contact before their trial began.
  •  Detainees who have been charged also have the right to seek bail and to be released pending trial. The Baha’i leaders were consistently denied bail, despite numerous requests.

Application of new penal code

With the adoption of a new penal code in 2013, the degree to which Iranian national law has been applied selectively in the case of the seven has become even more marked.

Under the new code, for example, those convicted of three or less charges are required to serve only the longest sentence. The application of this code has (correctly) resulted in the reduction of their sentences from 20 years to 10 years. News of this reduction came in November 2015.

What has yet to occur, however, is an application of provisions of the new code with regard to conditional release. Section 58 of the new 2013 code says that prisoners are eligible for conditional release after they have served half of their sentence – and in the case of shorter sentences, after only serving one-third.

Having served eight years of a 10 year sentence, the seven are obviously eligible for immediate release.[1]

Details of protections under Iranian law

The Iranian Constitution also offers a number of protections for defendants in terms of legal process, even if the government does not always heed them.

One of these is the right to be promptly informed of charges. Article 32 of the Constitution states that in cases of arrest, “charges with the reasons for accusation must, without delay, be communicated and explained to the accused in writing…”

The seven Baha’is were not presented with any charges during the first nine months of their imprisonment and have, in fact, never been directly informed of the charges against them as required by law.

The right to an attorney of one’s choice is also spelled out in the Iranian Constitution. Article 35 states: “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.”

Those accused also have the right under Iranian law to have a lawyer present during the investigation and legal procedure. This right was denied to the seven Baha’i leaders for more than a year. When their rights were finally granted, they were allowed less than an hour to meet with their attorneys. Further, many attempts were made to dissuade them from using as their attorney Nobel Peace Prize laureate Shirin Ebadi and other members of the Defenders of Human Rights Center founded by Mrs. Ebadi.

Mehrangiz Kar, a prominent Iranian lawyer and human rights activist, has said that even though the Iranian Constitution excludes Baha’is from the full rights of citizenship, the laws regarding legal procedure and due process still apply to them.

“Those parts of the legal system that deal with the process of investigation and the processes of the trial, they do have very good rights for the accused,” said Ms. Kar, “And you cannot find any exception in these articles that separate Baha’is and Muslims.”

While the Constitution itself does not spell out the right to bail, it does uphold the idea of the presumption of innocence, which is recognized as the legal foundation for any sort of pre-trial release.

Article 37 of the Constitution states: “Innocence is to be presumed, and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court.”

Illegalities of their detention

None of Iran’s regulations under the old penal code concerning “temporary detention” have been observed in the cases of the seven.  Contrary to the law, the seven Baha’i leaders were held in temporary detention for more than two years without a writ of conditions for release, without the judicial authorities having provided evidence of grounds for the extension of the detention, as required by law. Further, once the preliminary investigations were completed and a hearing date set, the judiciary had no right to extend the writ of arrest.

Iran’s laws regarding solitary confinement have also been violated in the case of the seven. Immediately following their arrests, one of the seven was held alone for 175 days and the other six for 105 days. Yet, at the time, statutes governing the operation of prisons in Iran restricted the holding of inmates in solitary confinement to not more than 20 days.

Further, an inmate may only be held in solitary confinement with the approval of the prison’s governing council and only in cases involving “disciplinary violations;” there is no provision that allows the holding of inmates in solitary while an investigation is being carried out against them. The seven were held in solitary confinement without any disciplinary violation or a notice from the prison’s governing council.

International law

Iran is signatory to many of the international treaties that spell out human rights in international law.

The International Covenant on Civil and Political Rights (ICCPR) is perhaps the most important of these.  In 1975, Iran became one of the first countries in the world to ratify the covenant, which spells out clearly the concept of freedom of religion or belief.

Article 18 of the ICCPR, for example, states that “[e]veryone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

The ICCPR also spells out specific rights to due process “without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

These include freedom from arbitrary arrest or detention, the right to be “promptly informed” of charges, and the right to legal counsel.

Article 9 of the ICCPR states that “[n]o one shall be subjected to arbitrary arrest or detention.”

It also states that “[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

The seven Baha’is were accepted as “arbitrarily detained” by the United Nations Working Group on Arbitrary Detention, giving further legal force to this issue.

Article 14 spells out the right to legal counsel, stating everyone has the right “to defend himself in person or through legal assistance of his own choosing….”

[1] Section 10 of the 2013 Penal Code states: “When a law passes subsequent to the commission of an offence and the subsequent law is more favorable to the perpetrator of the offense, the subsequent law shall have an effect on the final judgement.” Hence, the rules for conditional release should also be immediately applied. Section 134 of the code states that in cases of conviction on up to three charges, only the longest sentence should be served.