[PROVISIONAL TRANSLATION FROM PERSIAN]

 

[Translator’s notes appear in square brackets.]

[Personal information has been redacted.]

[The excerpt below is from the section of the article that pertains to the Baha’i Faith]

 

[Adapted from website:] Aasoo

[Date:] 16 February 2021

 

On the Confiscation of Property of Non-Muslim Citizens in Iran

Hossein Raeesi

In this article, Hossein Raeesi, a human rights lawyer and professor in the Department of Law and Legal Research at Carleton University in Canada, provides an overview of various laws and regulations to answer the question, “Does encroachment, burning, or confiscation of property of non-Muslim citizens [incur] a legal charge or not?”

 

Foreword

The right to property is one of the most important and fundamental human rights. Iran’s civil law [1] and the Universal Declaration of Human Rights [2] emphasize the right to non-discrimination in property; in accordance with this right, it guarantees and provides mechanisms for its protection in the civil and criminal law structures.

The recognition of and respect for the right to property requires peaceful and non-violent coexistence with others. This is not a merely a moral issue; rather, it is a measure that brings us closer to justice and attention to the “otherness” of the “other”.

The right to property is not an absolute right; there are certain limitations to this right. Exceptions to the right to property are made for such purposes as: a) preventing corruption, b) preventing encroachment on the property of others without legal authorization, c) matters involving taking possession of other people’s property, d) contributing to economic prosperity based on authorized and legitimate activities, and e) prohibiting the government from intrusion and seizure of people’s property.

Criminal conduct and the acquisition of property through illegitimacy do not legally provide a healthy relationship between property and the owner; in other words, they do not provide the necessary components for the realization of the right to property, between the property and the possessor. Therefore, restrictions are needed to ensure a sound, legal and legitimate relationship between the property and its owner; that is, appealing to evil and falsehood cannot be a source of legitimacy. As a result, only a court free of political, ideological and security flaws can find the action of the owner or owners to be illegitimate and based on corruption in the acquisition of property and, in a fair process, relying on conclusive reasons, order the confiscation. Otherwise, even if the possessor has seized the property by court order he/she is considered a usurper. Based on personal observation and experience, I can confirm that in popular culture, confiscated property has no ordinary customer, and their transaction value is less than the fair market value because people are less interested in trading property or other confiscated items. Usually the identity card, or the history and registration status of the confiscated property, are taken into consideration at the time of the transaction. It should not be forgotten that lack of the rule of law and justice regarding property confiscation since the revolution of 1979 has caused irreparable damage to the economic structure of Iranian society. Not only has it not led to a suitable distribution of wealth in society, but it has spread a rent-seeking economy. An important feature of economic health is the establishment of the rule of law in economic relations and the guarantee of property rights.

In this article, we take a brief look at the various laws and regulations and answer the question of whether or not encroachment, the burning of property, and ultimately, the confiscation of property of Baha’i citizens, has a legal basis?

 

Challenging Property Seizures

When we talk about the challenge, it means that ethics and justice are not considered in confiscations. In the Quran, God commands Muslims to treat others peacefully and justly (Sura Al-Mumtahanah: 60:8). Peaceful behaviour requires coexistence with others. But it is the governments that unjustly restrict or violate the rights of others, including their right to property, by their own perceptions. Governments often take advantage of exceptions to property rights and expropriate the property of dissidents and individuals or minorities who do not belong to the government, under various pretexts. In a legal process within a democratic, legal and just structure, the law protects all people equally and thus eliminates the possibility of abuse of power.

After the 1979 revolution, one of the most controversial issues was the encroachment of new rulers on the property of others, to the extent that the supreme leader issued a decree [3] to prevent preferential behaviour regarding the intrusion into, seizure and confiscation of people's property without complying with Islamic law. Nevertheless, preferential behaviour continued, and the property of many non-Muslims was confiscated without a fair trial or even religious proof, and simply because of their differing views. Baha’is were among those whose property was confiscated in whole or in part. Not only does the law not deprive Baha’is of their property rights, but the Constitution equates all citizens of all ethnicities, tribes, races, etc., without exception, and considers them the same according to the law. [4] Although part of the Constitution refers to legal protection in accordance with Islamic standards, because the Constitution recognizes the equality of the people unconditionally, it protects the lives and property of citizens from invasion. Also, according to the Sharia, the principle and rule is to respect the rights of all and prohibit attacking the property and lives of non-Muslims. In this sense, the law must protect the lives and property of non-Muslims, and religious belief alone should not and cannot be the source of deprivation of rights. Of course, if a Muslim acquires property through illegitimate means, if proven, it is possible to deprive him of property rights, a rule that also applies to non-Muslims.

There is a difference of opinion among Islamic jurists with regard to the Sharia rules (and not in the law). Some may consider it permissible to seize Baha’i property. For example, we can refer to the explicit opinion of Ayatollah Makarem Shirazi, who did not consider it permissible to associate with them and considered that the confiscation of their property should be unimpeded. Of course, none of the jurists’ views in the legal structure, based on the Constitution, is the source of creation or deprivation of rights. The only permission for the confiscation of non-Muslim property comes from the provision of legal conditions, such as committing important crimes such as muharaba (war) with Muslims or with the Islamic government, which can be justification for the deprivation of rights. This means that the criterion of a just decision of the court is the observance of the law and not the fatwa of one or more religious scholars, because the Constitution does not give such authority to any jurist, not even a religious leader, to issue an extra-judicial ruling in any case. According to Article 67 of the Constitution, referring to religious jurisprudence is permissible only in the silence of the law. It also means the consensus of opinions of the Islamic jurists. As soon as the law recognizes the equality of all citizens in this regard and prohibits encroachment on people’s property, the possibility of invoking the views of Islamic jurists is subjectively ruled out. In other words, from a legal, human rights and even Islamic law point of view, confiscation of property is possible only as a punishment; that is, the punishment of persons who have committed a crime and acquired property illegally, and only in accordance with the principles of fair trial, so that this punishment does not cause poverty for the person and his family.

 

The Principle of Respect for the Property Rights of All Citizens

The Constitution of the Islamic Republic of Iran [5] respects the right to legitimate property, and the Civil Code [6] before, and in conjunction with this principle, has explicitly stated the principle of the need for individuals to be able to control their property. Article 17 of the Universal Declaration of Human Rights [7] also considers the right to individual and group property as one of the fundamental human rights, and depriving human beings of this right is a violation of their human rights.

According to various laws in different fields―including the rules of usurpation [8]―illegal possession, nuisance, prevention of the rights and destruction of the immovable property of others, including non-Muslims, are not permissible. [9]

On one hand, Article 19 of the Constitution of Iran considers all citizens equal without exception; on the other hand, Article 22 of the Constitution protects dignity, life, property, rights, residence, and occupation of the individual are inviolate, except in cases sanctioned by law. Of course, in practice, we do not see behaviours that comply with the above-mentioned regulations. Therefore, this is where legal challenges can lead the way in distinguishing between fair and the unfair behaviour.

Although government can doubt the legitimacy of people’s property and try to confiscate their property through ostensibly judicial means, this does not mean that the government can, by relying on unfounded reasons, with the support of the judiciary and by inciting the religious sentiments of the majority, forever encroach on the property of religious minorities and other citizens, since proof of the illegitimacy of the acquisition of property requires strong and unquestionable legal reasons.

According to the existing laws, the purpose of deprivation of property is to establish social justice and avoid the accumulation of illegitimate wealth, to prevent the damage to the society’s economy, and not to encroach on the property of some citizens with unjustified excuses .Equal protection of the law for all citizens has no conditions. However, experience has shown us how the property of many non-Muslim citizens has been confiscated through the courts of the Islamic Revolution by citing Article 49 of the Constitution and related regulations.

 

Conditions for Confiscation of Property in the Iranian Law

Article 47 of the Iranian Constitution states: “The private property ownership of a person which is gained legitimately, is respected. Its guidelines are determined by law.” In the same Article, the proof of the instance of illegitimate property ownership is left to the rules to be determined by law. The most important element or legal supposition and inference from that phrase, contained in Article 47 and other related laws and in compliance with the Article, is that the “Citizens’ property is legitimate”, unless proven otherwise by law. The enforcement mechanism of Article 49 and the law for implementing Article 49 approve this principle, at least in appearance. Accordingly, property acquired through crime and lacking in legitimacy is subject to the provisions of this Article. Article 49 of the Constitution refers to examples of illegitimacy of property and the government’s obligation to them. The said Article states, “The government has the responsibility of confiscating all wealth accumulated through usury, usurpation, bribery, embezzlement, theft, gambling, misuse of endowments, misuse of government contracts and transactions, the sale of uncultivated lands and other resources subject to public ownership, the operation of centres of corruption, and other illicit means and sources, and restoring it to its legitimate owner; and if no such owner can be identified, it must be entrusted to the public treasury. This rule must be executed by the government with due care, after investigation and furnishing necessary evidence in accordance with the law of Islam.”

By paying close attention to this legal principle, it is understood that only properties that are obtained through crime or through illegal activities are subject to the provisions of this Article. Undoubtedly, it is the responsibility of the court to determine the usurpation, the aggressiveness of citizens’ behaviour towards other people’s property, the usury of transactions, the acquisition of property through embezzlement, theft, gambling, and misuse of endowments, along with disturbing government transactions. Therefore, recognizing the illegitimacy of certain property also requires two principles: first, that all property of citizens is assumed to be legitimate unless proven otherwise; second, the finding of a violation of this principle can only be made by a competent court through a fair trial. As a result, confiscation of property is considered a form of punishment, a punishment imposed on the perpetrator of a criminal act or misconduct.

 

Condition of Illegitimacy of Property in Iranian Law

Article 49 shows that the verdict of illegitimacy must be proven through Sharia. The most important source of Islamic law is the Holy Quran. In verse 29 of the Sura of An-Nisa [10], the Quran states a rule that is accepted by all Islamic scholars. This legal rule is called Taslit [absolute legal power of the owner to exercise dominion or control over property]. According to that, the property of the people (regardless of religious belief) is declared to be sacred and lawful (halal). Much of the research by Muslim jurists on the ruling of the Quran indicates that “every owner, even if he/she is not a Muslim, has control over his/her property and can have any kind of permissible control of his/her property, and no one can forbid him/her from seizing it without religious permission.” These cases imply a basic principle, which is that no one has the right to seize the property of others. [11] In other words, an occupation that does not have its origin in a right is void and does not create a right for the possessor, even if it is ordered by a court of Article 49 or any other court. A court ruling can be the source of a right, when it relies on conclusive reasons for the illegitimacy of the owner’s possession. Undoubtedly, the term “Sharia licence” is controversial. To address this challenge, we need to look at the legal rules governing this principle. The rule is that the Sharia cannot go beyond the principle and, by ignoring the indisputable principles that are rooted in its original source, give permission to seize the property of non-Muslims. The various interpretations of the previously mentioned verse confirm the same conclusion―that the property and lives of others cannot be encroached upon. Just as the lives of non-Muslims cannot be attacked, their property must be safe and respected. The shedding of non-Muslim blood is not permissible; the Qur’an equates life and property and forbids aggression against both. Consequently, in legal logic, this ruling prohibits any kind of encroachment on life and property, and giving permission for any activity that violates this principle.

The question is, have the provisions related to confiscation of property been applied to confiscation cases? In response it should be said that, although the principle is that the property of citizens is protected by law and the principle is their legitimacy, for non-Muslim citizens, including Baha’is, this principle is often violated. There is no difference in the law between Muslim citizens and non-Muslims, or between citizens who are constitutionally recognized as free to perform their religious rites and affirm their personal status, and other citizens in respect of other rights, including the right to property [12]. In practice, however, there are numerous cases in which fundamentalist Islamic views are applied to non-Muslim citizens, especially Baha’i citizens. Contrary to the opinion of Ayatollah Makarem Shirazi, mentioned earlier, the latest inquiry from Ayatollah Khamenei’s office regarding the Baha’i citizens has been answered; the rule is whatever has been stipulated in the laws and regulations. [13]

Despite the fact that the Iranian Constitution requires all laws to implement the Twelver Shiite jurisprudence [14], the Islamic scholars do not have a common view on the subject. In jurisprudential studies, the sentence to confiscation of property is a sentence to punishment for some non-Muslims who are active in opposition and military confrontation against the Islamic State and are known as “kafar-i-harbi [non-Muslim who is at war against Muslims]” [15]. In general, Iranian law has restricted the condition of the confiscation of property only to the illegitimacy of the property of any citizen, whether Muslim or non-Muslim. Although the reference to Article 49 of the Constitution in cases of suspected acquisition of property through illegitimate means, referring for canonical proof must be considered; there are set conditions for it in the law and instructions for the implementation of this Article. Nowhere in these provisions does it presuppose that being “non-Muslim” is a legitimate reason or condition for the illegitimacy of the property. Rather, it explicitly states that “the property of natural and legal persons is assumed to be legitimate unless proven otherwise.” [16] In practice, we see that most judicial decisions and rulings of Sharia courts or Article 49 courts presuppose illegitimacy, mainly through general and sometimes unrealistic analysis. For example, my personal observations of the case of a Baha’i citizen indicate that after his death, regardless of the principle of the legitimacy of all property, without justification and without his having committed a crime, his punishment was confiscation of his property, simply because he was a Baha’i. In a small town, the Execution of Imam Khomeini’s Order (EIKO) divided his large house with two registration plaques. While the family of the deceased lived in that house, it was divided into two by a wall; one part was confiscated and the other part abandoned. Undoubtedly, this is an illegal confiscation order. It seems that such confiscation rulings are not in full compliance with the law, the spirit of the law and even Islamic law, because the crime that would be the source of corruption in property ownership has not taken place. In accordance with the Sharia and the law, the mere fact of “being a non-Muslim” does not in itself allow the confiscation.

 

Case Study

Although the laws governing confiscation or confiscation rights in Iran mainly consider a property which is obtained through committing crimes or through non-economic activities such as gambling to be subject to a confiscation order, it is observed that the properties of many non-Muslim citizens are confiscated, without observation of legal formalities and investigation into the origin of their ownership. Baha’i citizens living in the Village of Ivel in Mazandaran Province are an example among thousands of citizens. Without their having committed any crime, and without any legal or Sharia investigation, their properties were set on fire by some local residents, or illegally possessed. Long after the complaints of some owners of the destroyed properties, the Court of Article 49 of Mazandaran Province issued confiscation orders for their properties, without naming the owners of these properties, and without making a clear accusation against them, simply because the owners were Baha’is, and in order to prevent them from returning to the village. [17] In this verdict, there is no evidence about the living conditions of the owners of this property, or any indication of their having committed criminal acts that deserved to be punished by confiscation of property. [18] The confiscation order came years after destruction, arson and illegal seizures. This attitude indicates that the legal rules regarding citizens are not observed.

 

Conclusion

In conclusion, it should be said that confiscation of exceptional property is based on the principle of property rights. The principle is to respect the right to property of all citizens, unless their property and assets have been obtained through criminal or illegal means and this illegitimacy is legally proven by a competent judicial authority by conducting a fair trial. But in practice, this is not the case, and judicial procedures in the post-revolutionary years have relied on personal preferences and the political goals of the regime. Even relying on the rule of law in the Islamic Republic, it is possible to prevent the issuance of confiscation orders, including the case of the Ivel Village of Mazandaran and the citizen whose house was divided in two. But there is no doubt that the wrong practices of the special courts and the disregard for the due process of law and the religious principles of justice have led to the violation of the rights of non-Muslim citizens.

Hossein Raeesi is a lawyer and professor in the Department of Law and Legal Research at Carleton University in Canada.

 

Notes:

[1] Article 22 of the Constitution: The dignity, life, property, rights, residence, and occupation of the individual are inviolate.

[2] Article 17 of the UDHR

[3] The famous recommendation of Ayatollah Khomeini’s 8-article command, dated 24 Azar 1361 [15 December 1982], regarding the observance of people’s rights. This command has no rule of law.

[4] Chapter on the Rights of the People, Articles 19 and 20 of the Constitution of the Islamic Republic of Iran

[5] Article 47 of the Constitution: Private ownership, legitimately acquired, is to be respected. The relevant criteria are determined by law.

[6] Article 31 of the Civil Code: No property can be alienated from the possession its owner except in accordance with a legal order.

[7] 1. Every human being has the right to own property alone or in association with others. 2. No one shall be arbitrarily deprived of his property.

[8] Article 308 of the Civil Code: Seizure of another’s right by violence is called usurpation. Laying hands on another’s property without justification is also considered usurpation.

[9] See Chapter 26 of Book 5 of the Islamic Penal Code, Articles 690 to 696, approved in 1375 [1996/1997].

[10] “O believers! Do not devour one another’s wealth illegally, but rather trade by mutual consent. And do not kill ‘each other or’ yourselves. Surely Allah is ever Merciful to you.”[1]

[11] Page 101 Quarterly Journal of Islamic Jurisprudence and Law Research / Year 10 / Issue No. 34 / Winter 92 [2013/2014]

[12] Article 13 of the Constitution of the Islamic Republic of Iran

[13] For more information, see Tabnak website, news code 857561, dated 14 Azar 1397 [5 December 2018]

[14] Article 4 of the Constitution of the Islamic Republic of Iran

[15] Infidel deserving to be fought with.

[16] Article 2 of the Law on the Implementation of Article 49 of the Constitution, approved on 17 Mordad 1363 [8 August 1984]

[17] Judgment No. 980997151280084, dated 13 Aban 1398 [4 November 2019], Article 49, Court of Mazandaran Province.

[18] Judgment No. 453, dated 11 Mordad 1399 [1 August 2020] Branch 54 of the Tehran Court of Appeals, Article 49

 

 

 

 

 

 

[1] [Quran 4:29] https://quran.com/4