A legal expert claims that most of the charges against Omid Alishenas, the human rights activist who has been in jail since 2014, are illegal or based on no evidence.
Alishenas, 34, has been in prison since 2014, held on a long list of charges, which include “gathering and conspiracy to act against national security,” “propaganda against the regime,” and “insulting the leader.” He is also being punished for “gathering outside the UN office to support the people of Kobane,” “using satellite equipment,” possession of 700 Hollywood films, sharing To Light a Candle, a film about Iran’s Baha’is by IranWire director Maziar Bahari, and other alleged offences.
As Iran’s civil society continues to raise alarm over the harsh treatment of jailed activists and journalists, the plight of Alishenas, who has championed the rights of children, victims of ISIS in Syria, Baha'is and others, has again been thrown into the limelight.
The human rights activist, who is also a civil engineer, was arrested at his home in Tehran on September 4, 2014. He was held at Evin Prison’s Ward 2-A, which is controlled by the Revolutionary Guards, for nearly nine months under “temporary detention” orders, before being transferred to the prison’s Ward 8. Judge Mohammad Moghiseh oversaw his trial, which was held on March 5, 2015 at Branch 28 of the Tehran Revolutionary Courts. He sentenced him to 10 years in prison. Human rights organizations and the European Union have accused Moghiseh of gross violations of the rights of defendants.
Alishenas was sentenced to pay a fine of five million rials ($156) for possession of “satellite receiver equipment” — the family home had a satellite dish — as well as a fine of seven million rials ($218) for the possession of 700 “obscene films,” which his mother said were all international films.
The appeals court reduced his sentence to seven years in prison. However, the original indictment against Alishenas did not change — an indictment on charges that are legally questionable. It's a scenario that is common in many cases concerning national security in Iran.
IranWire talked to the lawyer Musa Barzin Khalifehloo about the charges against Omid Alishenas, and their legality.
One of the charges brought against Alishenas by Branch 28 of the Revolutionary Court concerns his support for the Baha’is because he shared the movie To Light a Candle online. Can that legally qualify as a charge?
This verdict is defective in more than one way. It is not clear what actions have violated what laws. The judge must make it clear what law has been broken by his support for the Baha’is and the same goes for publishing the movie. Another charge is “insulting the Supreme Leader,” but here it is not clear what action is considered insulting to the Supreme Leader. It must specify that he has used certain words at a certain date. And so on.
From a legal point of view, dates are very important. Just listing the charges in the indictment is not good enough. The indictment must say when the accused has done something and what the evidence is to support the charge. For example, it should have cited a confession by the defendant or the testimony of a third party, or should have said that the court is in possession of the movie. The law says that the verdict must be based on evidence. A verdict that is not based on evidence is invalid because it lacks proof of how and when the crime was committed.
Even if proven, do the charges listed — such as supporting a student group, posting a movie on Facebook, or meeting with the families of prisoners — amount to crimes?
Many of the charges listed in the verdict are not crimes even if proven. For instance, the indictment states that the defendant was a member of a “counter-revolutionary” student group in Tehran University centered around [human rights activist] Arash Sadeghi. What specific group? What did he do exactly?
And the term “counter-revolution” is not found anywhere in Iranian laws. Supporting the Baha’i faith is not listed as a crime either. Propaganda against the fundamentals of the Islamic Republic and its Islamic nature is a crime. But meeting with the families of prisoners is not. Anybody is free to meet with anybody. And participating in a demonstration is not a crime in itself even if the demonstration is unauthorized, unless the person damages public property or commits an illegal act.
Another part of the indictment refers to “gathering on Facebook” and publishing the movie To Light a Candle. How can one person “gather” on Facebook? And by “gathering” they mean “collusion,” meaning that more than one individual is involved in committing a certain crime. But how can posting a film amount to “gathering” and collusion?
Another charge in the indictment is insulting the Supreme Leader, insulting the sacred nature of Islam, as well as insulting verses of the Koran. These must be three separate charges. First, it does not cite how the insult was done and, again, the time and the evidence to prove the charge are not specified. Second, insulting the verses of Koran is a separate charge, but the verdict does not cite a punishment for this charge.
All in all, the crime against national security is spelled out in Article 12 of the Penal Code of the Islamic Republic. If an action is not specified [in the code], then it is not a crime. But the Revolutionary Courts level charges such as collusion, propaganda, connections with hostile governments and similar [charges] against defendants in various cases without evidence.
Do you think that the punishments fit the crimes?
One would think that Judge Moghiseh has not even glanced at the laws, because on the second page of the indictment it is written that, based on Article 610 [collusion against national security] of the Penal Code, the defendant is sentenced to seven years in prison. But the maximum sentence stipulated by Article 610 is five years. And if he is combining collusion and propaganda against the regime — which is mentioned in the previous line item of the verdict — then he should have also referred to Article 500, which is about propaganda. And by the way, the maximum sentence for violating the latter article is one year in prison. This means that the total would have been six years, whereas the defendant was sentenced to seven years. Perhaps the appeals court reduced the sentence partly because of this error.
So this verdict is wrong at its foundation. It has problems in form, in content and in organization and it does not offer any evidence. It is also erroneous in citing the articles of the law. It is quite clear that the Intelligence Ministry or the Intelligence Corps of the Revolutionary Guards have submitted reports and the judge has just copied them. Only at the end does he cite a few articles of the law, meaning that the judge himself was not willing do the investigation or to rely on the evidence. He only issued a conviction.
You say that the verdict was issued based on reports by the Intelligence Ministry or the Intelligence Corps of the Revolutionary Guards. So is it true that sometimes the examining magistrates tell the defendants what the final verdict will be before the trial?
The ministry or the Intelligence Corps of the Revolutionary Guards submit a report about the defendant that they have dealt with and make suggestions about the punishment as well. For example, they [might] say: “We suggest punishing him harshly” or “Give him a light sentence,” etc. Most Revolutionary Court judges heed these suggestions.
Is this legal?
No. The Intelligence Ministry and the Intelligence Corps of the Revolutionary Guards have no right to question the defendant. Only judiciary bailiffs can investigate the case. And the Intelligence Ministry can act as a bailiff only in two cases: Theft of cultural heritage artifacts and large-scale financial corruption. Even the 1985 law that established the Intelligence Ministry clearly states that the ministry is responsible for uncovering security crimes, and after discovery [of such a crime], it must hand the case over to the police.
The judiciary itself has declared that the Intelligence Ministry cannot conduct preliminary investigations. But when it drew up the law for the Fourth Development Plan [in 2004], it allowed the ministry to be a bailiff for organized crimes against security. But 95 percent of security cases in Iran are not organized. “Organized” means crimes committed by a group, like a mafia.
Now when a security/political case is opened against an individual, the [judiciary] sends the accused to a security detention center and the case to the prosecutor’s office. And the prosecutor’s office does not change anything. It just sends the case to the court. In this case we can see this clearly because the text is not text that a judge would write. The indictment presents no legal argument. The text was clearly written by security forces.
Does the judge have the authority to set the report aside and do his own investigations?
Yes. The judge can also do his own investigations, but this verdict shows that the judge conducted the trial as a mere formality. Otherwise he would have written that, for example, at a certain date the defendant made this or that statement or, during his final defense, he confessed or denied his guilt.
But in this case we have no information about the trial and there is not even a mention of what the lawyer has said. The judge just wanted to convict — without any investigation or review.