[PROVISIONAL TRANSLATION FROM PERSIAN]

 

[Translator’s notes appear in square brackets]

[Personal information has been redacted.]

 

A BRIEF OVERVIEW OF JUDICIAL AFFAIRS IN IRAN THE WAY BAHA’IS ARE TREATED BY SOME OF THE COURTS

According to one definition, “man is a being endowed with both life and rights”. In other words, rights are born together with man and are the outcome of man’s thought, awareness, and social life. Human beings are born free and with equal rights. In today’s world the term human rights is applied to the aggregate of principles and rules considered indispensable by national and international communities for respecting the status and dignity of human beings and for allowing their innate capacities to flourish. Therefore, human rights are the expression of inherent rights of human beings. Jurisprudence accords each individual freedom of action as long as its exercise does not hinder or harm the rights and liberty of others, disturb public order or violate the moral code of society. Each person is considered responsible for his deeds and behavior.

Thus, in order to protect the individual’s rights and liberties and maintain order in society, enactment of laws is indispensable. Laws, from the standpoint of lovers of freedom are the guarantors of an individual’s right and liberties. They are the manifestation of the will of the people which is democratically enacted by nationally elected assembly. The Constitution of a country is a codified text defining, through specified procedures, the form, the organization and the powers of the government and the interrelationship of those powers; it demarcates the limits of the powers to be exercised by the government’s agents and its agencies; and it delimits the freedoms to be enjoyed by the individual as well as the public. It goes without saying that the ordinary laws legislated by people’s representatives (namely the parliament must not contradict the principles of the Constitution. Therefore, in democratic societies where the will of the people is expressed in the form of legislation, the rule of law prevails.

In nearly all the countries of the world today, people benefit from having a Constitution, a legislative assembly, and, as lawful citizens, they have a role in the administration of their society. The rule of law is one of the essential principles for preserving the rights of the public. Therefore, it follows that all the power in the country and all public agencies must be under the rule of law and all public authorities are duty bound to observe the statutes and regulations. Powers in the country are divided into three categories; legislative, judicial, and executive. The reason for the powers being thus divided is to prevent despotism and concentration of power and authority. Concentration of powers is essentially the cause of despotism and tyranny, which results in the weakening and undermining or disregarding of the will of people. Under such circumstances individual and public rights as well as basic freedoms will definitely be in jeopardy.

Individualism is the basis of the western way of thought. Thus, the protection of human values is the aim and function of government and the wish and desire of society. In the Universal Declaration of Human Rights, the protection of worth and dignity of man and respect for the rights of the individual are propounded as the aim and purpose of government. In the preamble to the Universal Declaration of Human Rights the recognition of the principle of goodness and nobility of human beings is presented as the source of all of human rights and freedoms.

In Iran according to both Constitutions – that of the constitutional monarchy and the one adopted by the Islamic Republic of Iran – affairs of the country are to be run through public representation and general elections. In the latter part of Principle 9 of the Constitution of the Islamic Republic of Iran, the principle of the legitimate freedoms of every person is upheld and emphasized. In Chapter 3 of the same Constitution twenty-four principles are listed enumerating the rights of the people. According to the provisions of that Chapter, every individual as a human being has rights that have nothing to do with social standing, citizenship, ethnic background, colour and sex. In other words, every individual, whether man or woman, from whether tribe or nation is under the protection of law and enjoys equal rights. Laws are enacted by the Parliament. The law is the expression of the will of the public; it is universal and impersonal. The principle of universality and impersonality of laws guarantees the protection of individual rights and prevents any kind of discrimination.

The law grants the right to each individual to utilize court action in defense of his rights and liberties. He is entitled to appeal to competent courts to seek justice. No one can be denied access to the court from which each has the right to seek redress (Principle #24 of the Constitution). All the members of the nation are entitled to enjoy equal rights in the eyes of the law: such as the right to enjoy security, ownership, residence, employment, and the like etc. Also, all are entitled to receive equal treatment in administrative proceedings, in the application of regulations, and in educational, medical, and insurance services and cooperatives. Therefore, there is no legal basis for any authority to discriminate against certain individuals. Furthermore, the laws are applied prospectively and from its date of enactment not retroactively.

Investigating personal beliefs is prohibited. There is no provision in the laws in Iran stating that personal beliefs constitute a crime or violation of law. Based on the principle of legality of punishments for crimes, a sentence for a crime and its enforcement should be handed down by a competent court and according to a codified law. Article # 2 of the Islamic penal law stipulates: “any action or inaction for which there is special punishment stipulated in the law will be judged as a violation of law.” At the same time personalization of crime and punishment is recognized as a principle. According to Principle # 35 of the Constitution, in every court parties to a lawsuit have the right to engage the services of a legal counsel. There is the principle of assumption of innocence: being considered not guilty unless and until culpability is established by a competent court. Principle #39 of the Constitution forbids the sullying of the reputation of individuals who are legally detained. In accordance with Principle # 156, the judiciary if an independent power, is the upholder of individual and social rights, and is responsible for establishing justice. Courts and trials should be open to the public (Principle # 165) and court decrees must be reasoned and documented with reference to the pertinent articles of the law and principles used as the basis for verdicts (Principle # 166).

It could be concluded therefore that the existence of an independent judicial system and impartial courts in any country is a sign of social justice and of the existence of equal rights for people. It is also an indication of the exercise of public will through proper application of laws and regulations. If the judicial system does not enjoy the necessary independence and authority, surely other powers will find it possible to interfere in the administration of judicial affairs as well as the affairs related to the rights of the people. Such a situation endangers the justice and security of the society. It is obvious that where there are multiple centers of judicial decision making in a country and courts other than the ones in the judicial system are set up, not only is it a sign that the judicial system are violating individual and public rights and the essential freedoms of the members of that society.

In view of the above and considering other principles of the Constitution and undisputed principles of civil law, the Baha’is in Iran are not only deprived of certain civil and human rights but regrettably, are discriminated against in some of the civil courts and in most of the Islamic Revolutionary courts. Since the beginning of Iran’s Islamic Revolution numerous sentences have been handed down against the Baha’is that disregard indisputable principles of human rights as well as the rights which are recognized internally in Iran and are internationally upheld. In many such instances, Baha’is have been prosecuted and even subjected to beating and insult because of their beliefs, remained in custody for months, not knowing what waited them, or were imprisoned for years without trial and due process, unaware of the charges brought against them. When there have been trials, Baha’is have been deprived of the right to retain an attorney, and the established legal procedures have not been followed. The existence of numerous verdicts of execution and property confiscation clearly support the above assertions. Confiscation of property of Baha’is continues in other ways.

Apart from the discriminatory verdicts issued against the Baha’is by civil courts – discrimination that sometimes is blatant, when compared to the treatment received by non-Baha’is – some penal courts’ sentences involving retaliation and blood money (punishment for murder or injury) [qesas and diyeh] are issued that are contrary to Iranian law and to human rights. Since laws are essentially universal and equally applicable to everyone, when a crime is committed the courts must observe the principle of impartiality in issuing sentences and refrain from favoritism for or discrimination against anyone. However, there have been many cases where Baha’is have been victims of murder or manslaughter, but the courts have not required retaliation [qesas] or payment of blood money [diyeh] by the perpetrator to the relatives of the Baha’i victims. These actions of the courts indicate discrimination against Baha’is in the law and its application. It has also been noticed that in civil courts some of the judges have, regrettably, deviated from the path of impartiality and have issued inequitable sentences against Baha’is.

As mentioned earlier, aside from failing to observe proper court procedure and disregarding the principle of impartiality in conducting trials, the Revolutionary Courts have caused severe harms and damages to the lives, possessions, and reputation of the members of the Baha’i community. In the early days of the Islamic Revolution, Baha’is in localities such as Seysan, Ilkhchi, Jasb, Khormouj, Boyr-Ahmad and many other locations, were forcibly evicted from their homes, and their belongings were plundered. Regrettably, the judicial authorities in Iran have taken no action, so far, to address the Baha’is’ appeals for justice. On the contrary, unjustified decrees have been issued against the Baha’is placing their properties at the disposal of the aggressors or certain revolutionary institutions. Neither have other government authorities and responsible officers shown any response or taken any positive action in relation to the numerous pleas of Baha’is for justice.

Moreover, Baha’is are to a great extent deprived of employment and personal security, and do not receive the needed support and protection in this respect. Some of them, according to the decrees issued by the Islamic Revolutionary Courts, have had to refund the salaries they had received during their period of service in government agencies. Such treatments are blatant violation of the Constitution and other laws of the country including the Civil Law.

Another important and note-worthy issue is the fact that since 1990, based on an edict of Ayatollah Khomeini, and later according to the directives of the Supreme Guide, possessions of Baha’is who have been living abroad for a period of time are being confiscated on the justification that they have left the “protection zone” of the Islamic Republic of Iran. It must be explained that, from the point of view of “shari’a” [Islamic canon law] under the Islamic government, Baha’is are considered “protection seekers” (musta’man). A protection seeker is a non-Muslem who also is not considered “Ahl-i-Kitab” (followers of the three religions mentioned in Qur’an, i.e., Judaism, Zoroastrianism, or Christianity). Such persons are covered by Principle #14 of the Constitution. Therefore, non-Moslems who also do not belong to the afore-mentioned three officially recognized religions are considered to be “protection seekers”. According to this interpretation, Baha’is are classified as “protection-seekers.” It should, however, be explained that from the point of view of Islamic thought the term “Musta’man” or protection seeker is applied to those who become residents in an Islamic state for a certain period of time or pass through an Islamic territory. During the time they either reside in, or are passing through, an Islamic territory their lives and belongings are safeguarded by the Islamic government.

Under the Islamic Government of Iran, contrary to the laws and regulations in force (including the Constitution and the Civil Law) the provisions of “Isti’man” (seeking protection) is also enforced. For this reason, those Baha’is who travel abroad and stay there for a period of time are considered having left the protection (Isti’man) of the Islamic Republic of Iran. In other words, the Islamic Government has no responsibility towards them and seize their immovable properties. Thus, since 1990 many cases have been brought against Baha’is living abroad and decrees are being issued for their possessions to be turned over to the Muslims Treasury (baytu’l-mal). Such measures are contrary to the indisputable principles of the Constitution, the Civil Law of Iran and contrary to international law, including the Declaration of Human Rights, the International Covenant of Economic, Social and Cultural Rights. Incidentally, these kinds of sentences, pronounced by Iran’s Islamic Revolutionary Courts, in accordance with the decree of Imam Khomeini and the Supreme Guide, are out of the jurisdiction, authority and competency of the Revolutionary Courts.

Thus, there are the following three decision-making sources in the judicial system of Iran:

1. Civil Courts:

Civil courts, according to the law, deal with all litigation, complaints, and petitions of the people. In the civil courts, often judges adjudicating cases where one party is a Baha’i, have observed the principle of impartiality and have not been afraid to render decisions or rulings in favour of the Baha’i party in accordance with the law. However, in cases where the judges have an unfavourable personal attitude towards Baha’is, or when they are urged and influenced by malicious and biased parties, they deviate unfortunately from the path of neutrality and lead the case in a way that prevents the sentence to be issued in favour of the Baha’i party. For about ten year the judicial system in Iran refused to accept petitions for probate from Baha’is, although that action was contrary to the duties and responsibilities of the judiciary. For the last two years such petitions from Baha’is have been accepted and the appropriate rulings have been issued accordance with civil law and Islamic canonical law. But the legal problems of the Baha’is in this connection have not been fully resolved. Even based on Article 881 (repeated) of the civil law, Baha’is have been disinherited. According to that Article, “infidels cannot inherit form a Muslim. If there are Muslims among the heirs of an infidel the heirs who are infidel are disinherited, even if they precede in rank and class the Muslim heirs”. In some penal courts, Moslems accused of premeditated murder or unpremeditated killing of Baha’is have been exempted from retaliation [qesas] or payment of blood money [diyeh]. A number of such verdicts have been issued. However, as mentioned earlier, in many instances the judges of civil courts have observed the principle of impartiality.

2. Revolutionary Courts:

Revolutionary Courts were set up in 1979 by Imam Khomeini’s decree. It should be noted that there is no mention of establishing revolutionary courts in the Constitution of the Islamic Republic of Iran. The competency, jurisdiction and authority of the revolutionary courts are defined and specified by law. As already mentioned, the revolutionary courts have handed down a number of sentences of execution and confiscation of property against Baha’is. Fewer such judgements have been rendered in the resent years, but they have not been completely eliminated. Charges continue to be brought against the Baha’is ostensibly for “economic plotting,” “threatening internal security” or “apostasy” but in reality, because the accused are Baha’is.

3. The Revolutionary Courts enforcers of Imam’s decrees:

These courts which enforce the edicts of Imam Khomeini and the Supreme Guide are charged with adjudicating the cases of those who have left the Islamic Republic of Iran’s protection zone (isti’man). Because Baha’is in Iran are considered to be “protection seekers” (musta’man), as mentioned earlier, the cases of Iranian Baha’is living abroad are investigated by the Revolutionary Courts. As soon as it is established that those individuals resided abroad for a period of time they are technically considered “fugitives” and because of having left the Islamic Republic of Iran’s protection zone (iesti’man) it is ruled that their possessions must be surrendered or confiscated. It should be pointed out that sentencing such individuals to confiscation or their belongings need no other proof. In other words, the mere fact of departure from the country, which is interpreted as leaving the Islamic Republic of Iran’s protection zone, is sufficient cause for the issuance of such verdicts. As mentioned earlier, this sentences strongly violate the rights of citizenship and other human rights of Baha’is. Principle # 41 of the Constitution states that “Iranian citizenship is the inalienable right of every Iranian and the government cannot take away the citizenship of an Iranian”. Therefore, the issue of citizenship of Iranian Baha’is clearly contradicts the application of the” protection” provision; the rights of Iranian Baha’is in this connection are severely validated.

In addition, there are other judicial institutions which have been established in accordance with the provisions of the Constitution and under the control of the judiciary that are functioning as stipulated in the law. One example is the Military Courts that are established according to Principle # 172 of the constitution for investigating offenses related to the specific military and police duties of the members of the armed forces, the militia (not illegible) (sepah-i-Pasdaran) and the police. Also, in accordance with Principle 173 of the Constitution a tribunal called “Tribunal for Administrative Justice” has been created, under the supervision of the judiciary, for investigating people’s petitions, complaints and objections against government agents, agencies or regulations and for dispensing justice in those cases. Likewise according to Principle # 174 of the Constitution and on the basis of the judiciary’s right to oversee the proper management of public affairs and enforcement of laws in the public sector, and organization called the “State Organization for General Inspection” has been established under the supervision of the head of the judiciary. It should be added that according to the law, Military Courts and the Tribunal for Administrative Justice are empowered to issue verdicts, but the state Organization for General Inspection is not authorized to issue any verdicts. It reports its findings to judicial and administrative authorities for necessary action.

Furthermore, it should be added that recently a law was passed and promulgated by the Islamic Consultative Assembly (the Parliament) for the establishment of civil and revolutionary courts, according to it public prosecutor’s offices, both civil and revolutionary, have been eliminated from the judicial system of Iran. Thus, judges personally undertake the preliminary investigation and then issue the verdict. In provincial capitals and, if needed, in certain regions as many revolutionary courts as necessary will be established. These courts will deal with offenses specified in the law. But it is not known whether the courts that have been formed by the order of Imam Khomeini and the Supreme Guide will continue to function or not.