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​A Closer Look At The Charges Against A Prominent Iranian Lawyer

Iran -- Iranian lawyer Nasrin Sotoudeh smiles at her home in Tehran on September 18, 2013
Iran -- Iranian lawyer Nasrin Sotoudeh smiles at her home in Tehran on September 18, 2013

Three days after going on hunger strike, prominent Iranian lawyer and human rights activist Nasrin Sotoudeh has been charged with new offenses, her husband, Reza Khandan, tells Radio Farda.

Sotoudeh announced her hunger strike on August 25 in a note posted on her husband’s Facebook page.

Sotoudeh who has been behind bars at Tehran’s notorious Evin Prison since June 13, said in the post, “Since none of my correspondence with the authorities has produced a result, I have no option other than starting a hunger strike as of [August 25] to protest the judicial arrests and pressure against my family, relatives, and friends.”

She concluded the note by saying, “With the hope of the establishment of law and justice in our beloved country, Iran.”

While deprived of the right to personally assign a lawyer to represent her, Sotoudeh has insisted she will not attend any court hearing.

The new charges include attempts to hold protest sit-ins and assemblies, participation in anti-death penalty campaigns, LEGAM (the Persian acronym for a step-by-step abolishment of the death penalty), encouraging people to demand a referendum, and helping to launch home churches.

In a Q&A with veteran Iranian lawyer Mohammad Hossein Aghasi, Radio Farda’s Farhang Qavimi asks about the validity of the new charges against Sotoudeh.

RFE/RL: Is it a crime to help others launch home churches?

Mohammad Hossein Aghasi: There are no articles or notes in the Islamic Penal Code that ban launching home churches, let alone assisting others to do so. However, if such a move leads to “apostasy,” it might be counted as abetting a crime. Meanwhile, for every charge, there should be at least evidence along with witnesses who testify that Sotoudeh has been practically active in assisting people to launch home churches or has called upon others to do so and has invested in such activities. [Such evidence and witnesses are missing,] therefore Sotoudeh cannot be charged with it.

RFE/RL: Sotoudeh’s husband tells Radio Farda that the authorities have said his wife was detained last June for being found guilty for espionage in absentia, but her initial indictment had no reference to espionage. Is it possible to sentence someone on the basis of a charge not mentioned in the original indictment?

Aghasi: No. The courts are not authorized to sentence suspects for charges that are not mentioned in the arraignments or original criminal charges. The judge is not authorized to issue a verdict based outside of the frame of legally declared criminal charges and indictments. If, during the trial, a new charge is raised against the defendant, the judge is duty-bound to return the case to the primary court for further investigation. No judge is authorized to independently charge and sentence a suspect. Therefore, what has happened in Sotoudeh’s case is legally baseless and invalid. If a judge insisted on their verdict, the court of appeals would overrule them.

RFE/RL: Is it a crime to demand holding a referendum or calling on people to do so?

Aghasi: Inciting people to commit a crime is a crime and punishable by the law, but demanding a referendum -- which is not banned by the law -- cannot be counted as a crime. Article 2 of the Islamic Penal Code stipulates that “Any act or omission, for which punishment is provided by law, constitutes an offense.”

RFE/RL: And what about campaigning or calling for an end to death penalty?

Aghasi: One should distinguish between “qissas” and the death penalty. Qissas is an Islamic term meaning a retaliation in kind, revenge, or retributive justice. It is a category of crimes in Islamic jurisprudence, where Shari’a allows for equal retaliation as the punishment. Murderers might be executed if not pardoned by the relatives of their victims. Meanwhile, there are people, such as drug smugglers, who might also be put to death for their crimes. Sotoudeh’s participation in LEGAM is focused on this type of capital punishment, which has nothing to do with the Islamic term of qissas.

RFE/RL: Sotoudeh says she has been deprived of the right to freely choose a lawyer to represent her and therefore cannot be forced to pick a lawyer from the limited list of attorneys endorsed by the judiciary. Is there a law that limits the right to pick an attorney?

Aghasi: Sadly, there is. And again, sadly, it is against Article 35 of the Iranian Constitution, which stipulates, “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.” However, without informing an open session of the Iranian Parliament, its Legal and Judicial Commission adds a note to a law that authorizes the chief-justice to endorse qualification of the lawyers responsible for defending individuals charged with security-related crimes in the preliminary stages of legal proceedings. Therefore, the judiciary head has issued a list of attorneys whose qualifications have been endorsed for such cases.

Respecting the note, the head of the judiciary [Ayatollah Sadeq Amoli Larijani] has published a list of 20 attorneys whose qualifications he has endorsed. There are 20,000 lawyers practicing, and [Larijani’s] endorsed list means that 18,980 are not qualified to defend a suspect in the preliminary stages of a legal proceeding related to security cases.