Defense Attorney sons Defense Rights

Based on a logical principle, the defense of a victim’s rights presume respect for the right of the defense attorney’s rights. A defense attorney can convince judicial authorities to respect the rights of an accused person only if the independence of the defense attorney is recognized and political institutions do not violate this independence.
The chief right of the defense attorney is the ability to be present in all the stages of an investigation and the legal process. Any stage where a defense attorney is denied this right, the rights of the victim are threatened. Creating obstacles for defense during the investigation period provides the opportunity for exerting physical and psychological pressure on the defendant. In such a situation, the defendant becomes unprotected and at the mercy of interrogators, who through torture extract statements from him that form the initial pages and basis of his legal case. The denial of the right of defense to be present during the investigation phase enables authorities to operate with a free hand in the absence of any witnesses to corroborate a victim’s protests or to remind the authorities of their duties and limitations.
According to article 128 of Iran’s Criminal Law that was passed by the fifth Majlis (that had a conservative majority) in 1999, a judge has the authority whenever he wishes, to prevent the presence of an attorney during the investigative and interrogation phases of a criminal procedure. In view of this license that violates the rights of a defense attorney, a “fair trial” is basically out of question. Had the independence of Iran’s Bar Association been respected, the Majlis would not have been able to pass such a law which throws out the prerogatives of defense attorneys at the most critical phase of a judicial investigation. With such a critical limitation, there is no guarantee that a defendant’s rights will be respected in the interrogation and investigation phase. Whenever access to all documents of a case or access to see the victim, among other rights, are denied to a defense attorney, his powers of defense are curtailed.
Whenever a defense attorney faces legal or illegal obstacles and senses that he cannot properly defend his client, he refers to the Bar Association to which he belongs. But when the Bar itself lacks independence, then that forum is not a suitable sanctuary.
In Iran, the independence of the Bar Association was recognized over 51 years ago. Independence in this context means that none of the three branches of government has the right to intervene in the Bar’s domain and none can interfere in its elections.
The Iranian government, however, has violated the independence of the Bar in many different ways. About 8 years ago, a law was passed that allowed government agencies to ignore this independence. According to the law that issues licenses to lawyers, the managers of the Bar must posses certain identified qualities. This provision provides government authorities through the judiciary to influence the process of electing the Bar management. Among the qualifications necessary to run for a Bar position are: good character standing, and absence of behavior that is contrary to Islamic principles and image. In practice, when after years the Bar was allowed to hold its elections, many candidates were barred from running for office because they had in their writings exposed injustice and uncovered humanely cruel laws. These lawyers lacked any record of criminality.
Furthermore, according to article 186 of the third Five Year Plan, the judiciary is empowered to take the necessary measures against those who do not hold the title of a legal attorney when they apply for a license to open a law office. This law violates the independence of the Bar Association by two counts. According to this regulation, authorities have tried to extend Bar membership to those individuals that have been trained and selected by the Judiciary. As a consequence, the Judiciary’s control and domination of the Bar Association takes a lawful façade.
Under these circumstances, defense attorneys have no sanctuary. If they attempt to gather evidence and documentation to defend a victim, they themselves can be accused of violating a law. Any time they talk to the free press about their problems in defending a defendant, they will be accused of advancing propaganda against the Islamic Republic or destroying the public conscience. And if they try to find recourse in international human rights organizations that enjoy international legitimacy in this regard, they will be quickly accused of espionage and having relations with foreigners.
It is because of these laws and conditions that Nasser Zarafshan, the defense attorney in the case involving the government serial killings of dissidents, has been spending many of his years behind prison bars. During the past few weeks another lawyer, Abdol Fatah Soltani was arrested on similar charges and is currently in jail.
Had the independence of the Bar Association not been violated, Iranian defense attorneys would not have become so unprotected in their efforts to defend their defendants, criticize laws, and protest injustice and violations.
Mehrangiz Kar is an Iranian attorney currently residing in the United States.

This article was originally published in Roozonline on August 21, 2005