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Ctrl+Alt+Delete: Iran's Response to the Internet

Article 9(4) provides that anyone detained “shall be entitled to take proceedings before a court” in order to decide the “lawfulness of his detention and order his release if the detention is not lawful.”347 Article 14(b) mandates that states provide “adequate time and facilities for the preparation of … defen[s]e and to communicate with counsel of [one’s] own choosing.”348 In addition to these rights, the ICCPR guarantees the right to counsel (both at trial and at stages prior to trial) and doctor,349 the right to humane treatment,350 and the right to be presumed innocent.351

Iran’s Constitution and laws provide a narrower but still significant range of due process protections relevant to arrest and detention, including:

• Prohibition against arbitrary arrests;352
• Requirement that charges be promptly explained to the accused and provision for judicial oversight;353
• Punishments stipulated for judicial officers and other agents of government who illegally take people into custody or initiate criminal prosecutions;354
• Presumption of innocence;355 and
• Prohibition on torture for the purpose of extracting confessions or information.356

In addition, Iran’s Criminal Code of Procedure (CCP), lays out strict guidelines, which trial judges and law enforcement agencies must follow when conducting criminal investigations. For example, all preliminary investigations leading to temporary arrests and detentions of individuals suspected of committing national security crimes must be conducted pursuant to orders issued by trial judges and overseen by the Judiciary.357 Such orders must conform to due process standards.358 Pretrial arrest warrants are appealable and are only valid for a month unless extended by the issuing judge.359 If the judge fails to extend a warrant, the suspect must be allowed to post bail.360

[347]Id. art. 9(4). Victims of unlawful arrests are entitled to compensation. See id. art. 9(5).
[348]Id. art. 14(b).
[349]In addition to the right to counsel at trial, there is a right to counsel in the stages prior to trial, stemming from Article 14(3)(b). The HRC has stated unequivocally that “all persons who are arrested must immediately have access to counsel, be examined by a doctor without delay and be able to submit promptly an application to a judge to rule on the legality of the detention.” Concluding Observations on Georgia, U.N. Doc. A/52/40 ¶ 254 (1997). Presence of counsel is required to ensure that rights of accused persons are protected, that detainees are not ill-treated and that any confession obtained using impermissible methods is excluded.
[350]Article 10(1) of the ICCPR demands that states treat detainees “with humanity and with respect for the inherent dignity of the human person.” The accordance of such respect has various components, likely including the prohibition on torture and illtreatment, as well as adequate due process.
[351]Two other requirements safeguard the right to treatment with humanity: the right to be presumed innocent (required by Article 14(2); ICCPR General Comment 13 sets the standard of proof at “guilty beyond a reasonable doubt”), and the interconnected right of accused persons to be kept separated from those convicted (Article 10(2)(a)).
[352]Article 32 of the Constitution emphasizes that “[n]o one may be arrested except by the order and in accordance with the procedure laid down by law.”
[353]Article 32 of the Constitution provides that “[i]n case of arrest, charges with the reasons for accusation must, without delay, be communicated and explained to the accused in writing, and a provisional dossier must be forwarded to the competent judicial authorities within a maximum of twenty-four hours so that the preliminaries to the trial can be completed as swiftly as possible.” The article also specifies that violators of the above provisions are “liable to punishment in accordance with the law.” In addition, Articles 24, 129, and 192 of Iran’s Criminal Code of Procedure oblige the authorities to inform the accused of the charges and the reasons for such charges. Qanun-i Ay’in-i Dadrisiyih Dadgahhayih Umumi va Inqilab dar Umur-i Kayfari [Criminal Procedure Code for Public and Revolutionary Courts] (1379) [2001], arts. 24, 129, 192 (Iran), available (in Persian) at http://hoghoogh.online.fr/article.php3?id_article=67 (last visited Feb. 23, 2009) [hereinafter Criminal Code of Procedure].
[354]In addition, Article 575 of the Iran Penal Code provides that “judicial officials or other officers who, contrary to the law, take a person into custody, initiate criminal prosecutions or convict and sentence a person, are liable to a punishment of permanent dismissal from their judicial post and five years ban of serving in governmental positions.”
[355]Article 37 of the Constitution provides that defendants must be presumed innocent until their guilt has been established by a competent court.
[356]Article 38 of the Constitution provides that “[a]ll forms of torture for the purpose of extracting confession[s] or acquiring information” are prohibited, as is “compulsion of individuals to testify, confess, or take an oath.” It also states that “any testimony, confession, or oath obtained under duress is devoid of value and credence.” In addition, Article 129 of the Criminal Code of Procedure provides that an investigating judge shall not resort to compulsion and duress when interrogating a defendant
[357]Criminal Code of Procedure, supra note 353, arts. 38, 42.
[358]The requirement to state the nature and cause of the allegation goes beyond mere statement of the charge. See id. arts. 37-39 (requiring the Judiciary to act based on evidence, conform to the rule of law, and be impartial during the investigation phase); see also id. art. 32 (allowing temporary arrests and detentions of suspects only when circumstantial evidence indicates that a crime has been committed and certain conditions are satisfied).
[359]Criminal Code of Procedure, supra note 353, art. 33.
[360]Id. art. 37.

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Free Speech, Right to Protest, Cyber Journalism, Torture, Inhuman and Degrading Treatment, Punishment, Due Process, Right to an Attorney, Free Association, Political Freedom, Equality Before the Law, Discrimination