Commentary :: Right to Counsel and the Problem of Distrust

By Marzieh Tofighi Darian

This commentary traces the evolution of the right to counsel in criminal investigations in Iran’s Criminal Procedure Code, as highlighted in the process of drafting Iran’s new Criminal Procedure Code in 2014 (amended in 2015). I argue that the legislature missed a unique chance to address its long-time practice of ignoring this right. In the end, the final formulation of this right is restricted and has exacerbated the tenuous relationship between the judiciary and bar associations.

The right to counsel is one of the constituent elements of a fair trial.[1] Iran’s judicial system has long grappled with the question whether, to ensure the basic rights of defendants, they must have unqualified access to an attorney in criminal investigations, especially for serious felonies such as national security crimes. In this commentary, through analyzing the legislative history of Iran’s recently passed Criminal Procedure Code of 2014 (and its subsequent amendments in 2015), I argue that the legislature missed a unique chance to make up for its long-time practice of ignoring this right during the investigation process. In fact, the final formulation of the right to counsel has exacerbated the tenuous relationship between the Iranian judiciary and the Iranian bar associations.

Under the previous Criminal Procedure Code (1999), defendants had a right to have one attorney throughout the investigation.[2] After the investigations had concluded, without interfering in them, the defense attorney could present documents to the judge to aid in discovery, defend his or her client, or enforce the law.[3] The note to Article 128 of the old Code restricted the scope of this right by requiring the judge’s permission for the presence of the attorney in “confidential cases,” cases in which “the presence of individuals other than the defendant causes corruption according to the judge,” and in cases of “crimes against national security.”[4] The Code left most of those phrases undefined.

In its first draft of the new Criminal Procedure Code, in Article 48, Parliament went even further. It denied the right to counsel in more instances. According to the new Article 48, “when a suspect is arrested, he can request an attorney. The attorney, observing the secretive nature of the investigation and the negotiations between the parties, should meet with the suspect. At the end of the meeting, which should not last more than one hour, the attorney may submit her written notes to be included in the case file.” In a sweeping note to this article, Parliament deprived the defendant of the right to counsel for one week after the arrest during the investigation in organized crimes, crimes against national security (domestic and foreign), theft, drug related crimes, or crimes listed under Article 302, Sections 1, 2, and 3 of the Criminal Procedure Draft [i.e., crimes punishable by death, life imprisonment, or amputation; and intentional crimes against physical integrity punishable by a third (or more) of a full diyah (blood money for personal injury and homicide)].

Although this revised article on the right to counsel explicitly recognized a right to an attorney during the criminal investigations, it also seriously constrained exercise of this right. It limited it first by limiting the time of meeting between the defendant and his lawyer, and second by significantly expanding the list of crimes for which the defendant was deprived of counsel.

Ironically, given that the excluded crimes comprise the most serious crimes in Iran’s legal system with the severest punishments (death or significant deprivation of liberty), the perils of such denial become more evident. Any evidence acquired during the preliminary investigation, for example through obtaining a confession, becomes a building block of the indictment against the defendant. In such situations, it is imperative to ensure that defendants have adequate access to the legal counsel in this period.

The back-and-forth between Parliament and the Guardian Council over the Criminal Procedure Draft lasted for almost 2 years, and the Guardian Council over 5 series of documents commented on various parts of the draft. In none of these comments did the Guardian Council object to Article 48 and its wide scope. This silence is despite the fact that the Constitution guarantees the right to counsel in Article 35, which requires that: “In all courts of law, the opposing parties to a dispute have the right to choose an attorney for themselves. If they cannot afford to hire an attorney, they should be provided with the means to do so.”[5]

Parliament submitted the final draft of the Criminal Procedure Code  on February 23, 2014, and it was approved by the Guardian Council and became law. However, on May 26, 2015, in an unusual move,[6] Parliament enacted a new law revising some of the articles of the newly adopted Criminal Procedure Code and submitted the revisions to the Guardian Council for review. One of those amended articles was the note to Article 48.  The amended article provided that “in national security crimes (domestic or foreign) and organized crimes whose punishment is subject to Article 302 of this law, if necessary, upon the request of the investigator and approval of the prosecutor, the preliminary investigation will be conducted without the presence of an attorney. This decision can be appealed before a competent court within 10 days.”

This amendment reduced the risks of the original law to some extent. Most importantly, it limited the instances of the infringement upon the right to counsel by authorizing it only for serious national security matters or organized crime. Moreover, instead of an automatic denial, this new article provided a mechanism that could be triggered by the investigator and was subject to subsequent appeal before an authority outside the Office of the Prosecutor, i.e., a competent court.

The changes however left a loophole: under the original article, the defendant was deprived of having access to counsel in these crimes for only one week. But the amended article did not mention any time limit in cases in which the competent court concurs with the prosecutor.

Reviewing the subsequently amended law, in a brief sentence, the Guardian Council declared that Article 48 was “in violation of Article 35 of the Constitution.” Given the fact that the Guardian Council did not give any explanation for its position, it is unclear why the Council did not object to this article in the first place, particularly because the original article was undoubtedly more expansive and damaging. Did the Council welcome the revisions and suddenly think that even this degree of violation of the right was not acceptable? Later, and in response to criticisms of the final version of this article, the spokesperson of the Guardian Council described the Council’s objection to Article 48 as an act of standing up against a constitutional violation and protecting the right to counsel.[7]

In response, Parliament revised this article once again, and came up with an unprecedented solution. The final version of this article provided that “in national security crimes (domestic or foreign) and organized crimes whose punishment is subject to Article 302 of this law, the parties to the dispute are to select their attorneys from a list approved by the Head of the Judiciary. The names of the approved attorneys will be announced by the Head of the Judiciary.” The Guardian Council approved these final revisions, and this law entered into force.

An overall assessment of this new article is difficult to construct. On the one hand, Parliament explicitly acknowledged the right to counsel in criminal investigations. But on the other hand, it seriously tampered with a defendant’s right to freely choose his or her own counsel.[8]

The distrust between bar associations and the judiciary is notorious in Iran. The process of drafting the new Criminal Procedure Code and the debates over the appropriate role of lawyers in criminal investigations illustrates another episode of this tension. Preparing the list of pre-approved lawyers will increase that tensions. It is unclear on what basis the judiciary will designate lawyers deemed eligible to represent defendants accused of the above crimes.

The revised article was not well received among most lawyers in Iran. Many lawyers criticized it on two grounds: the defendant’s right to freely choose his or her lawyer as guaranteed in Article 35 of the Constitution, and discrimination against lawyers by dividing them into two groups: those trusted by the judiciary and those not-trusted.[9] Bahman Keshavarz, the president of the Nationwide Union of the Iranian Bar Associations, moreover, stated that the Head of the Judiciary has the authority to choose judges, not lawyers. He argued that Article 35 of the Constitution is meant to guarantee the right to counsel from the very beginning of investigations to the end of the trial.[10] Nasrin Sotudeh, a prominent lawyer, also emphasized that depriving the defendant of freely choosing his or her own counsel during the investigation, when the defendant is completely isolated, subject to various interrogation techniques, and often in solitary confinement means that there is no right to counsel at all. She also warned against the corruption that might ensue from giving the authority to pick eligible lawyers to the Head of the Judiciary.[11]

In the end, it is not clear how this article will play out in practice: on what basis will the judiciary choose these attorneys and how independent and effective will these attorneys be in defending their clients?[12] It is similarly not clear whether this restriction will extend to the trial phase as well. Imagine that the judiciary imposes its own list of lawyers on the defendant; does this mean that the lawyer designated by the judiciary during the investigation process will also continue to represent the defendant during the trial phase? Or the defendant is free to choose his or her own lawyer once the trial begins? What is clear, however, is that Article 35 of the Constitution explicitly gives the opposing parties to a dispute “the right to choose an attorney for themselves.”

[1] ICCPR, art. 14 (addresses the requirements of fair trial): “3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; … (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” Iran is a signatory.

[2] In addition to the sections on generalities and the implementation of sentences, the Criminal Procedure Code has three main parts: preliminary investigations (mostly conducted by the office of prosecutor and investigators), trial (including both findings of guilt and sentencing) and appeals (including at various levels before different courts).

[3] Iranian Criminal Procedure Code, Art. 128 (1999).

[4] Iranian Criminal Procedure Code, Note to Article 128 (as amended in 2003).

[5] Qānūn-i Asāsi-yi Jumhūrī-yi Islāmī-yi Irān [The Constitution of the Islamic Republic of Iran] of 1358 /1979 as amended in 1989, Article 35. Contrary to the spirit of the article, the word “court” has been used as a loophole for some commentators to exclude pre-trial phase of investigation from its mandatory scope.

[6] Bahman Keshavarz, the President of the Nationwide Union of the Iranian Bar Associations, called the newly adopted Criminal Procedure Code 2014 progressive and criticized MPs who proposed revisions to some of its articles. In response, a member of the Legal and Judicial Commission of Parliament argued that the revisions to some were necessary due to budgetary problems and the lack of sufficient judges required for implementation. See “Budget is an Obstacle for Implementation [in Persian],” Mehr News, Jan. 26, 2015,حاشیه-های-اجرای-قانون-آیین-دادرسی-کیفری-وضعیت-بودجه-مانعی-برای. Nevertheless, as is clear in the case of Article 48, revisions were not limited to structural changes and affected some of the substantive rights as well.

[7]Reactions to the Opposition of Lawyers to Article 48 of the Criminal Procedure Code [in Persian],” Fars News, Aug. 4, 2015,

[8] It should be noted that the case of Article 48 is different from a situation in which the defendant financially cannot afford an attorney. According to Article 35 of the Iranian Constitution, in such cases the defendant has a right to pro bono legal counsel, which is delivered by the bar associations across the country.

[9] See “ICBAR’s Letter to the President with regard to Article 48 of the Criminal Procedure Code [in Persian],” Iranian Central Bar Association, Jul. 6, 2015,

[10]Lawyers’ Concerns about Article 48 of the Criminal Procedure Code [in Persian],” Iranian Students’ News Agency, Jun. 30, 2015,دغدغه-های-وکلا-پیرامون-تبصره-ماده-48-آیین-دادرسی-کیفری.

[11]Nasrin Sotoudeh: Denying the Right to Freely Choose One’s Attorney Equates To Unfair Trial [in Persian],” Deutsche Welle Jul. 1, 2015,نسرین-ستوده-سلب-حق-داشتن-وکیل-اختیاری-یعنی-دادرسی-ناعادلانه/a-18556136.

[12] The Head of the Judiciary said in an interview that in 2009 some lawyers acted against the interests of the government, such that it does not make sense to trust them. “The Bar Association Calls on Hasan Rouhani to Take Steps against the Unconstitutional Article [in Persian],” BBC Persian, Jul. 6, 2015,

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