Country of origin information report Iran January 2010

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Bail
11.24 A report from the Canadian Immigration and Refugee Board (CIRB), dated 20 June 2006, stated that:
“There are different methods of obtaining a bail. Bail can be obtained through a surety, through providing security or through a cash deposit. Under Islamic law, for minor offences, the accused can be released on his own bail.
“In the case of surety, the person standing a surety has to appear before the office of the court and sign a formal declaration that he will be personally responsible for delivering the accused to the court whenever the court summons him to do so. In other cases, arrangements will be made through the office of the court with a special fund in the Ministry of Justice to provide a deposit of cash or bank guarantee. In the case of providing as security a title deed or the like, the original document of ownership should be deposited with the office of the court and no transaction can be carried out in respect of the property that has been offered as security.
“[In cases where a] person who has been bailed [through a surety] does not appear on the due date … the surety will be summoned to deliver the accused, failing which the cash amount required for bail will be seized from his assets. In other cases, the property or the asset that has been pledged to the court will be confiscated.” [2ad] (p1)
Enforcement of judgments
11.25 The APCI Report 2008 stated that:
“For the purpose of enforcement of the judgments delivered by the common courts; civil and penal, there has been established an entity called Unit of Enforcement of Judgments. In accordance with law, chief of the judicial district concerned shall also act as chief of the unit. Each unit shall have adequate number of assistants, employees and other personnel. The judgments delivered by the common courts and the Revolutionary courts shall, based upon the instruction of the issuing authority, be enforced by the Justice Agents. The issuing authority of the judgment and order may attend or supervise the proceedings of enforcement.
“In order to provide legal advices and guidance to the individuals who are in need of such services, an entity entitled Guidance and Assistance Unit has been established in each judicial district under the supervision.” [6a] (p15)
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Penal code
11.26 The penal code was passed into law in 1991 and last amended in 1996. (Compass Direct News, 23 September 2008) [117b] It is a parallel system to the Iranian civic code. [77d]
11.27 The Danish Immigration Service’s report Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc. (Danish Immigration Service Report 2009), released April 2009, stated that:
“It is a big problem that the Penal Code is interpreted very differently depending on the judge presiding. Sharia Law is often used in very strict, traditional and religious parts of the country and less often in Tehran and larger cities. Though, it cannot be ruled out that Sharia judgements may occur even in Tehran. It is always up to the individual judge to decide how to interpret the law. This causes an arbitrary justice system and one can never know how an offence will be punished.” [86b] (p24)
11.28 The same report added that: “A person may never know which set of laws will be applied in his case. A verdict can be based upon Sharia or upon the Penal Code or the Press Code.” (Danish Immigration Service Report 2009) [86b] (p29)
11.29 The Danish Immigration Service Report 2009 continued: “Sharia Law is pervasive in the Penal Code and will always be considered the superior law. While some judges will apply the Penal Code others may choose to apply Sharia Law and this makes the system of justice unpredictable and arbitrary.” [86b] (p10)
11.30 The report also stated:
“It was further explained that Sharia pervades the Penal Code, although it is not present in all parts of the Penal Code. When the Penal Code does not describe a punishment or verdict, the judge shall apply Sharia Law. According to the Iranian Constitution, the judge must issue a judgement. Since Sharia Law has supremacy to any other laws, this is the law that the judge must turn to for guidance and interpretation.” [86b] (p29)
11.31 In their report Human rights abuses against the Baluchi minority of 17 September 2007, Amnesty International explained aspects of the Penal Code:
“Under Iranian law, people may be sentenced to death for certain hodoud crimes (crimes against God defined by Islamic law) and certain Ta’zir crimes (discretionary crimes that are not defined by Islamic law).
“Under the category of hodoud crimes, capital offences include adultery by married people; incest; rape; fornication for the fourth time by an unmarried person, having been punished for each previous offence; drinking alcohol for the third time, having been punished for each previous offence; ‘sodomy’; same-sex sexual conduct between men without penetration (tafhiz) for the fourth time, having been punished for each previous offence; lesbianism for the fourth time, having been punished for each previous offence; fornication by a non-Muslim man with a Muslim woman; and false accusation of adultery or ‘sodomy’ for a fourth time, having been punished for each previous offence.
“The law of hodoud also provides for the death penalty as one of four possible punishments for those convicted of the vaguely worded offences of ‘enmity with God’ (‘moharebeh’) and ‘corruption on earth’ (‘ifsad fil arz’). These terms are defined in the Penal Code as ‘Any person resorting to arms to cause terror, fear or to breach public security and freedom will be considered as a mohareb and to be mofsed fil-arz (corrupt on earth)’. Further articles clarify that those convicted of armed robbery, highway robbery, membership of or support for an organization that seeks to overthrow the Islamic Republic; and plotting to overthrow the Islamic Republic by procuring arms for this purpose will be regarded as mohareb. References in other articles relating to ta’zir crimes, and other laws, specify other circumstances in which an individual may be considered a mohareb, including espionage and forming a group to harm state security. Corruption on earth is not further defined in the hodoud section of the Penal Code, but a number of other laws provide for the possibility that certain crimes may in some circumstances fall into this category. These include crimes such as economic corruption, embezzlement, repeated drug-smuggling, forgery of banknotes, hoarding and profiteering.
“Judges apparently have a wide degree of discretion in deciding whether a particular crime is so serious that it amounts to one of these categories and therefore can be punished by death rather than a term of imprisonment or other penalties.
“As hodoud crimes are regarded as a crime against God, they are not open to pardon by the Supreme Leader on the recommendation of the Head of the Judiciary in the same way as ta’zir or discretionary punishments are. However, in the case of adultery, ‘sodomy’, same sex sexual conduct without penetration, and lesbianism, if the person has confessed to the crime and repented (publicly sought forgiveness from God), then the judge in the case has the power to seek a pardon from the Supreme Leader or to insist on the implementation of the verdict.” [9b]
11.32 The report of the Secretary-General to the United Nations on the situation of human rights in the Islamic Republic of Iran, dated 1 October 2008, observed:
“The Working Group on Arbitrary Detention noted that the Iranian Penal Code retains five categories of crimes to which diverse punishments can be applied: hudud, qisas, diyah, ta’zir and preventive punishments. Hudud constitutes crimes against divine will, the applicable punishments for which include the death penalty, crucifixion, stoning, amputation of the right hand and, for repeat offences, the left foot, flogging, imprisonment and exile. Qisas is retribution in kind, broadly similar to ‘an eye for an eye’.
“Proceedings against the life or physical integrity of the person are subjected to the decision of the victim, who may ask for the guilty party to suffer the same treatment or may accept financial compensation (diyah) in the case of murder or physical injury. Ta’zir constitutes crimes that incur discretionary punishments applied by the State that are not derived from the Islamic sharia law.
“The death penalty is imposed for certain hudud crimes, including adultery, incest, rape, fornication for the fourth time by an unmarried person, drinking alcohol for the third time, sodomy, sexual conduct between men without penetration for the fourth time, lesbianism for the fourth time, fornication by a non-Muslim man with a Muslim woman, and false accusation of adultery or sodomy for a fourth time. Furthermore, the death penalty can be applied for the crimes of enmity with God (mohareb) and corruption on earth (mofsed fil arz) as one of four possible punishments. Under the category of ta’zir crimes, the death penalty can be imposed for ‘cursing the Prophet’ (art. 513 of the Penal Code). The death penalty may also be applied to such crimes as drug smuggling or trafficking, murder, espionage and crimes against national security.” [10a]
See also Death penalty
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Qisas (retribution)
11.33 Regarding qisas, the Human Rights Watch report Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen of 10 September 2008 stated:
“The majority of juvenile executions in Iran are for hadd crimes or for intentional murder. Intentional murder, which includes ‘cases where the murderer intentionally makes an action that is inherently lethal, even if he does not intend to kill the victim’, is considered to be a crime punishable by retribution in kind (qisas-e-nafs) [Iranian Penal Code, arts. 205, 206]. While the judiciary is responsible for carrying out the trial and implementing the sentence in qisas cases, Iranian law treats these cases as private disputes between two civil parties, where the state facilitates the resolution of the dispute. The victim’s survivors retain the right to claim retribution in kind, to pardon the killer, or to accept compensation in exchange for giving up the right to claim retribution.” [8c] (p8)
11.34 The report continued:
“Iran retains the death penalty for a large number of offenses, among them cursing the Prophet, certain drug offenses, murder, and certain hadd crimes, including adultery, incest, rape, fornication, drinking alcohol, ‘sodomy’, same-sex sexual conduct between men without penetration, lesbianism, ‘being at enmity with God’ (mohareb), and ‘corruption on earth’ (mofsed fil arz).” [8c] (p8)
See also Death penalty
Knowledge of the judge
11.35 An article on Radio Free Europe / Radio Liberty, dated 23 April 2007, states “Laws are often contradictory in Iran and their interpretation remains the preserve of a small number of jurists or religious authorities – in this case Supreme Court judges.” [42ah]
11.36 The International Federation for Human Rights (FIDH) report ‘Iran/Death Penalty: a State Terror Policy’, dated 28 April 2009, stated that: “Judges are … empowered to rule on the basis of their own ‘knowledge’ in various cases. Hence, a good number of stoning as well as other sentences are issued on the basis of the ‘knowledge of the judge’. This is illegal even according to the letter of the Islamic Penal Code.” [56i] (p39)
11.37 The April 2009 FIDH report added that:
“It is notable that the IPC [Islamic Penal Code] has stipulated ‘knowledge of the judge’ specifically as one of the means to prove theft or murder, but not in the case of fornication/adultery. However, Ayatollah Khomeini has granted judges the power to use their knowledge in fornication- and adultery-related cases (Tahrir ul-Vassileh, Vol 4, P 197). The book was invoked to sentence two sisters to stoning in 2007…” [56i] (p39fn)
11.38 The Global Campaign to Stop Killing and Stoning Women website, accessed 5 June 2009, stated that: “Most stoning sentences are issued not on the basis of testimony or confession but on the judges ‘knowledge’ or ‘intuition’. Article 105 of the Islamic Penal code of Iran allows a judge to rule according to his gut feeling instead of hard evidence. As a result, most of [sic] not all adultery cases are unfairly tried.” [115]
11.39 An example of ‘judge’s knowledge’ is in a case posted on the Iran Focus website, dated 8 February 2008: “The charge of ‘adultery’ was substantiated solely by the judge’s ‘knowledge’, based on the video evidence and statements the sisters had made during their interrogation.” [76d]
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Court documentation
Summonses
11.40 The APCI Report 2008 observed:
“In order to invite an individual to a judicial body, a summons must be issued. This would be in the form of ‘Ekhtariyeh’ (sometimes translated as ‘legal notice’) and ‘Ehzariyeh’, Farsi terms which may both be accurately translated into the legal term ‘summons’.
“These serve the same purpose and have the same nature, as both give the opportunity to the defendant to attend the court and defend themselves against certain allegations. Both of these documents are issued by the proceeding court after a lawsuit is filed, stating the name of the defendant, the file number of the case, the court and its branch, the name and address of the defendant, and instructions as to the need to attend the court at a certain time or within a given time period. A copy of the document must be served on the defendant or a family member and signed by both the serving Bailiff and the recipient to show the date of service. After service to the defendant, the original document, along with the ‘return of service’ proving the summons and complaint were served, is filed with the court to show that the defendant has been informed and been given the opportunity to respond.
“Therefore, there is no difference between ‘Ekhtariyeh’ and ‘Ehzariyeh’ in terms of their legal nature and function, as both provide the defendant with the opportunity to voluntarily appear at court and respond to a complaint. However, ‘Ekhtariyeh’ is usually used when someone is called to the court for an investigation that is ongoing against the defendant, whilst ‘Ehzariyeh’ is used when the court intends to hold a trial against the defendant and wants to give a last opportunity for their voluntarily coming forward. The consequence of non-attendance after issuing an ‘Ehzariyeh’ would usually be the issuing of an arrest warrant and an absentia verdict if the person is not found.” [6a] (p19)
11.41 On the same subject the Danish Immigration Service Report 2009 stated that:
“The Attorney at Law explained that summonses can be issued by the Civil-, Criminal- or Revolutionary Court. A western embassy (3) confirmed that there are different kinds of summonses and added that summonses are also issued by the Secret Service.
“The Attorney at Law stated that if a person does not respond to a summons, the person is breaking the laws regulating the obligation to report to the authorities when summoned. Failing to report when summoned does not mean that the person will be prosecuted. This would depend on the reason for the person being summoned. The Attorney at Law added that a person who has been summoned and has subsequently left Iran during the investigation phase, will not necessarily face prosecution upon return just because the person has failed to report to the authorities after being summoned.
“According to a western embassy (3), a person who does not meet when summoned is searched for by the authorities. The embassy does not know what happens to a person who fails to report to the authorities after being summoned.
“The Attorney at Law stated that summonses can easily be obtained illegally and that it is also easy to forge summonses by erasing information in the summons and adding new details.
“The attorney at Law also informed that a notice to meet in court can be send [sic] by text message (sms) and by e-mail. In terms of the use of text messages a document has to be presented as proof of the text being sent to the person.” [86b] (p43)
11.42 Regarding civil cases, the Danish Immigration Service Report 2009 stated that:
“According to a western embassy (3), any person being accused of an offence according to the Civil Code will be summoned. If the accused does not respond to the summons the person will be summoned again. The Attorney at Law stated that a civil summons is issued by the Civil Court or branch when a plaintiff has filed a case at the court house. A person who has been served a summons must respond within five days. If the summons is published in the legal gazette the person has 30 days to react to the summons. If a person who has been summoned does not show up, the court may issue a ruling.” [86b] (p43)
11.43 Regarding criminal cases, the Danish Immigration Service Report 2009 stated that:
“A western embassy (3) explained that a person suspected of having committed a criminal act will be summoned according to the Penal Code. According to the Attorney at Law, when a person is summoned in a criminal case the person must report to the authorities within three days. However, if the summons has been published in the legal gazette, the person must report to the authorities within ten days. If a person fails to report when summoned according to the Penal Code, the person will be searched for and an arrest warrant may be issued.
“A western embassy (3) added that a person who fails to report to the authorities when summoned may be sentenced in absentia to imprisonment if found guilty of the crime. The sentence may be appealed within 10-20 days.” [86b] (p43-44)
11.44 On summonses issued by the Secret Service, the Danish Immigration Service Report 2009 stated that: “A western embassy (3) stated that summonses by the Secret Service do not have a specific format and may even be issued over the phone. A document is rarely issued by the Secret Service. A person who fails to meet for a summons issued by the Secret Service will be searched for. The embassy does not know what happens to the person in such cases.” [86b] (p44)
11.45 The Danish Immigration Service Report 2009 also described a summons:
“According to the Attorney at Law, a summons is a form consisting of blank sections. The court or the requesting authority will fill in the summons by hand. Though, recently some courts have begun to issue computer generated summonses as well. A western embassy (3) stated that summonses are always filled out by hand and only the copy is served to the summoned. The summons is stamped by the issuing authority.
“The Attorney at Law explained that all summonses have a registration number. By this number any Iranian lawyer can find out if the summons is registered in the system and thereby verify the authenticity of the summons. With the use of the number of the summons, the lawyer can find information on the date of issue, the case number, court type (Civil, Criminal or Revolutionary) and branch number of the court issuing the summons. The case number is written in the left top corner. In the top middle there is a number of the court and in the top right corner the date is written. A summons is most often written on A5 size paper.
“Summonses are always stamped, though not necessarily signed. The stamp contains the following information: city, name, court and division. Divisions all have individual numbers. All cities start with the number ‘1’. The name of the city will not appear but only the city’s number code. The Attorney at Law added that if the letter ‘ ‘ [please see original report for the letter] followed by ‘/ xxxx’ (numbers) appears on the summons, this means that a judgement has been made and the authorities may carry out execution of the judgement. The letter [‘ ‘ please see original report for the letter] will be written in the top right corner of the summons by the Execution Court.
“Once there is a judgment in the case, it is sent to the Execution Division. In the Execution Division, a new number for judgment is issued. At this stage, the authorities can execute the judgment even though the person can appeal the decision. The Attorney at Law added that a judgment can be appealed within 30 days. Then the Appeals Court renders a judgment that may be executed. The person may appeal to the Supreme Court; however, this will not prevent execution of the Appeals Court’s decision. However, if a person is acquitted by the Supreme Court the judgment will be reversed.” [86b] (p44)
11.46 Both a Danish fact-finding mission (FFM) report of September 2000 and a Belgian mission report of 2002 noted that in the case of court summonses an attempt was always made to deliver a summons to appear before a court to the addressee in person. If the person concerned was not there, however, the summons might be delivered to a family member. If there was nobody present who could accept the summons, it was taken back to the court, where the judge decided whether an attempt should be made to arrest the person concerned. Such a decision depended on the nature of the case. However, a person might not be arrested without a written order from a judge. [86c] (p22); [43] (p17)
Arrest warrants
11.47 The Danish FFM report of September 2000 also observed that Public Courts have the power to issue arrest warrants in all types of cases unless the case in question falls under the jurisdiction of the Revolutionary Court. The report noted that the process was as follows: arrest warrant is sent by the Public Court to the relevant police station, which is responsible for arresting the person concerned. The arrest warrant is shown to the person under arrest but not served. It is subsequently returned to the issuing court. Forms used for issuing arrest warrants are printed at a special government printing house. The form is completed by hand and contains the following information about the person under arrest:
 First name and surname

 Address

 Occupation

 Father’s name

 ID-card number [86c] (p23) (however the APCI Report 2008 observed that arrest warrants do not contain details of an ID card) [6a] (p19-20)
11.48 Once it has been completed, the form is stamped and signed by the court. Only one arrestee can be covered by the form. The reason for the issuing of the arrest warrant is not normally stated. (Danish Fact-Finding Mission, September 2000) [86c] (p23)
11.49 On the issuance or serving of an arrest warrant and that of a search warrant, the APCI Report 2008 stated:
“… an arrest warrant would not be ‘served’ on the defendant in the sense of physically sending or handing it over to him or her, but rather presenting it as an authorisation for arrest or search. Therefore, there is no legal manner by which the original of an arrest warrant can be physically handed over before the time of arrest, as would a summons as such documents can be served upon a family member. Also, a distinction must be drawn between an arrest warrant and a search warrant, as the latter can be handed over at the time of search, to those who are located at the premises.” [6a] (p19-20)
11.50 A report from the CIRB, dated 20 June 2006, stated that:
“In most circumstances the office of the court issues court documents, such as summons [es] and other relevant notices. Arrest warrants have to be signed by the judge. Also, any judgment of the court resulting in the conviction of the accused should also be signed by the judge himself. Otherwise (unless there is a specific provision), the court officer (normally an unqualified clerk) will sign the notices. The notices are served through the service department of the Ministry of Justice and through a bailiff. The bailiff is employed by the government and there are no private process servers, whether in commercial or criminal proceedings. Even in commercial cases, all the documentation and notices have to be served through the service department of the Ministry of Justice.
“A warrant for arrest should be served on the accused at his last known address. If the address is unknown or the accused cannot be found at his last known address, then the proper service would take place through publication of the warrant in a widely circulated newspaper or a local newspaper where the accused resides. The members of the family cannot be served instead of the accused unless they acknowledge that they are aware of the whereabouts of the accused and they will undertake to deliver the notice/summons to the accused. In principal, [sic] in criminal cases, the substituted service through members of the family is not acceptable. If the accused cannot be found, the arrest warrant would be passed on to law enforcement officers to arrest the accused whenever and wherever he is found.” [2ad] (p1)
See Arrest and detention – legal rights and for information about leaving the country see Exit and return