On October 30, 2017, more than a year after the Law on Political Crimes entered into force, Iran’s first ever jury for the prosecution of “political crimes” was sworn in Tehran.
In a country where many individuals come face-to-face with the justice system on charges that are perceived to have a political nature, the introduction of a jury into the judicial proceedings appears to be a positive and welcome measure. During the jury’s swearing-in ceremony, Gholamhossein Esmaili, the Head of Tehran’s Justice Department, referred to its creation as a testament to the claim that “the Islamic justice system, while adhering to Islamic law, makes the utmost effort to take into account temporal and territorial necessities as well as universal obligations.”
In fact, the authorities are not the only ones who have regarded these developments in a positive light. President of the Iranian Bar Association, Bahman Keshavarz, pointed out some of the shortcomings of the jury selection process in an opinion piece, but referred to its formation as the “advent of a positive and constructive development in the judicial system.”
However, will the 2016 Law on Political Crimes and the requirement for the presence of a jury for political trials prove to be a “constructive development in the judicial system”?
Defining “Political Crimes”
Following decades of debate by Iran’s parliament, the Law on Political Crimes was passed in May 2016. Shortly after, the Guardian Council – a 12-member supervisory body comprised of six lawyers and six Islamic jurists (faqih) – gave its final approval to the law before it officially entered into force on June 17.
The Law on Political Crimes addresses a legal gap that existed in the country’s legislation for nearly four decades. Iran’s 1979 Constitution makes an explicit reference to political crimes in Article 168 which states, “press and political crimes shall be tried in open courts and in the presence of a jury. Jury selection, its qualifications and powers, as well as the definition of political crimes shall be determined under the law and in accordance with the Islamic criteria.”
Despite these constitutional references, the legal procedural requirements, such as the presence of a jury, effectively remained dormant due to the absence of a legal definition for “political crimes”. This long-lasting vacuum perhaps explains the celebratory mood that followed the introduction of a law on political crimes.
Despite these celebratory proclamations, the newly passed law does very little to change the status quo for those who dare to challenge the authorities. Article 1 of the Law provides the definition of a political crime. It stipulates – in a flawed and convoluted fashion – that an offence is considered “political” when committed “against the management of the country and its political institutions and domestic and foreign policies with the intention to reform the affairs of the country, provided that the offender has not intended to harm the basis of the [political] establishment”.
The law, therefore, is explicit in asserting that the intention of a political offender has to be reform – hence implicitly suggesting that criticism of the country’s affairs may be deemed illegal under this provision. To make matters worse, the subject of a political offence is not only state institutions, but also the vague and undefined entity of state policies. This amplifies concerns about the intent of the law to effectively criminalize criticism of how the country is governed.
“Harming the Basis of the Establishment”
In yet another vague phrasing, offenders whose intention has been to harm “the basis of the establishment” are excluded from the law. The law does not provide any definition as to what constitutes “the basis of the establishment”.
One may assume that this “basis” is referring to the “Foundational Principles” of the Islamic Republic as set out in Article 2 of the Constitution. Article 2 states that the Islamic Republic is a system established on the belief that there is one God and it is him who has exclusive sovereignty and the right to legislate. Beliefs in the divine revelation, resurrection, and the continuous role of Muslim jurists in governance are also among these principles. Moreover, a cursory look at cases of national security points to the principle of velayat-e faqih [the governance of the Islamic jurist] as an integral element of Iran’s political establishment.
The new law, therefore, does not stipulate any objective legal criteria for determining the intentions of the accused and whether an act falls within the category of “political offences”. This leaves the issue entirely in the hands of the office of the prosecutor and the court that investigates the offence, given the discretionary authority they are given under Article 5 of the Law.
The law’s definition of political offences adopts the principle of “combined theory” under which a “political offence” rests on both the motives and intentions of the accused, as well as the subject of the offence. 
Article 2 thus proceeds to specify the list of specific “offences” that may or may not be considered “political” depending on the motive of the offender. They include: “insulting or slandering the heads of the three branches [executive, judiciary, and legislative], the head of the Expediency Council, presidential deputies, ministers, members of the parliament, members of the Council of Experts and members of the Guardian Council”; “insulting the head of a foreign state or its representative who have entered the territory of the Islamic Republic of Iran”; “violating the legitimate freedoms of others”; “slander, defamation and spreading rumours”; and “spreading lies”. Some violations of election laws are also included within the provision’s scope.
A number of the above-mentioned offences (for example, those relating to electoral fraud) amount to internationally recognizable crimes. Others, however, dangerously criminalize conduct that falls within the exercise of one’s human rights and should not be criminalized. Moreover, the majority of the offences contained in the law are effectively a repetition of the already existing, vaguely worded, and broadly defined offences contained in other laws, such as the 2013 Islamic Penal Code and the Press Law.
Therefore, the Law on Political Crimes fails to bring Iran’s legislation in line with international law and standards, including the International Covenant on Civil and Political Rights, to which Iran is a state party. It also marks yet another failure of the legislator to adhere to the principle of legal precision.
Privileges or Fundamental Rights?
At the crux of the Law on Political Crimes is the issue of political offenders’ differential treatment as compared to ordinary offenders. This differential treatment is generally referred to as “privileges”. For example, in a media interview in January 2016, Zabihollah Khodaian, the Legal Deputy of the Judiciary, said “the effect of the [adoption of] political crime is that because the offender in such cases has an honourable motive, the ramifications of ordinary crimes are not applicable to them…they can [also] enjoy a series of privileges while serving their prison term…”
Article 6 of the Law lists these “privileges”. According to this provision, those accused of “political offences” must be kept segregated from “ordinary offenders” during their detention and imprisonment and must not be forced to wear prison uniform. The provision prohibits extradition of political offenders to other countries as well as their subjection to regulations that govern repetition of crime. It also guarantees their right to “visit and correspond with first degree relatives during the imprisonment” and “access to books, publications [magazines and newspapers] and radio and television.” Furthermore, the article prohibits “detention and imprisonment in solitary confinement except in cases where a judicial authority fears the risk of colluding or determines that [solitary confinement] is necessary for the completion of the investigations. In any case, [detention in solitary confinement] must not exceed 15 days.”
The Law on Political Crimes thus clings to an old and increasingly fading trend in modern legal systems whereby the law distinguishes between the motives of a security or ordinary offender – as compared to a political offender – and rewards the “honourable intentions” of the latter by treating them differently. The expansion of fair trial rights under international law and standards, and the increased protection for the peaceful exercise of human rights (such as the rights to freedom of expression, association and assembly), has effectively made the category of “political crimes” redundant. Accordingly, granting those accused of these crimes special “privileges” becomes unnecessary.
A cursory look at the “privileges” granted under the Law on Political Crimes illustrates that the majority of them are in fact basic fair trial rights. For example, access to family members should be afforded to all detainees and prisoners regardless of the nature of the charges. Limiting solitary confinement to a maximum of 15 days is the bare minimum required under Iran’s international obligations with regards to the prohibition of torture and other forms of ill-treatment.
Presence of a Jury: Greater Societal Participation in Judicial Proceedings?
The requirement for the presence of a jury in cases of a “political crime” has been praised as a major safeguard for the rights of individuals facing these charges. Yet, the jury selection process, as well as the way in which it is expected to operate, fly in the face of the very rationale on which juries are introduced into criminal proceedings.
Regulations governing the selection procedure and administration of the jury are stipulated under the 2000 amendments of the Press Code – Article 36, which asserts that jury members in Tehran are appointed bi-annually following a meeting, attended by a number of state officials, held by the minister of culture and Islamic guidance.
Jury members (21 in Tehran and 14 in other provinces) must be selected from “different social groups” such as clerics, university lecturers, medical doctors, lawyers, workers, artists and members of the Basij [paramilitary volunteer militia]. They must also be “trusted by the public”, although no clarification is provided as to how the public’s trust is ascertained. Once jury members are appointed, they will serve in the office for a period of two years.
The jury selection procedure, which does not follow the random selection principle, and the heavy role of state officials in the process, is highly likely to result in formation of juries that are politically oriented towards the authorities and thus do not meet the “impartiality criteria”. This in fact defeats the primary purpose of the jury, which is the representation of society’s opinion on the judicial case in question.
Moreover, the tenure period of two years for jury service effectively transforms jury members into ‘professionals’ who no longer can be considered peers’ of the accused.
Lastly, the law’s wording on the force of the jury’s verdict remains vague. Under Article 43, following deliberations, jury members must, in writing, give their verdict on the accused’s guilt or innocence as well as whether the accused should benefit from a more lenient sentence. After receiving the jury’s verdict, the judge will rule on the accused’s guilt or innocence. In cases where the jury has reached a ‘guilty’ verdict, the judge could reject their verdict and acquit the accused person. The law, however, remains silent on cases where the jury does not find the accused guilty. Therefore, jury decisions are effectively non-binding on the court and merely constitute an advisory opinion for the judge.
Flawed but Practically Useful?
While it suffers from serious flaws and inadequacies, the question remains: in a context where hardly any steps towards greater respect for individuals’ rights to freedom of expression, association and assembly are taken by the Iranian authorities, could the 2016 Law on Political Crimes afford individuals enhanced protections?
Given that no individual has yet been tried under the new law, the response to the above question is somewhat speculative. However, the scope of the law as well as the attitude of the authorities with regards to “political crimes” points to the improbability of any major shift in practice when it comes to the state’s treatment of those accused of such offences. It is therefore likely that only a few may benefit from the adoption of the new law. In this regard, two observations are worth noting.
First, the law excludes a wide range of offences from falling under the category of “political offences”. They include “insulting Imam Khomeini and the Supreme Leader”; “insulting Islamic sanctities”; “spreading propaganda against the system”; and “gathering and colluding with intent to commit crimes against national security”. These are in fact the charges that are most commonly thrown against peaceful dissidents. Unlike “political crimes”, trial of these charges remains under Revolutionary Courts that have jurisdiction over crimes against national security and where trials generally fall short of international law and standards.
Second, the attitude of the authorities manifested in their statements and media interviews further brings under doubt any potential positive impact of the law. Iranian authorities have categorically contested the existence of prisoners who could be described as “political prisoners.” This categorical refusal to use the label “political prisoner” raises the question of whether the authorities will be willing to prosecute a large number of individuals under the rubric of the new law rather than under the category of “security crimes” as they have done to date.
Moreover, other official statements reveal that one of the motives behind the adoption of the Law on Political Crimes has been to reduce the reputational cost incurred as a result of Iran’s treatment of dissidents. For example, in response to a question about the negative impact of the legal vacuum on a definition of political crimes, Elahyar Malekshahi, the Chair of Parliament’s Legal and Judicial Commission, commented that “the absence of a definition for what is considered a political crime has resulted in propaganda thus imposing [reputational] costs on the system.” He added that the adoption of such a law “will prevent propaganda by some of the accused individuals”.
Malekshahi’s statements raise serious concerns that the newly adopted law and the additional safeguards, such as the presence of a jury, may primarily aim to serve as a façade for promoting a good image for the Islamic Republic and refuting human rights concerns rather than genuinely affording individuals enhanced fair trial protections.
However, in their attempt to deflate criticism, the authorities seem to have overlooked the reality that persecution and incarceration of those who peacefully exercise their human rights, regardless of the legal labels used to characterize them, will continue to contravene international human rights law and standards – and as such will continue to attract the attention and condemnation of human rights groups. So will their failure to uphold, both in law and practice, fair trial standards – such as public trials, access to a lawyer and prohibition of prolonged solitary confinement – in criminal cases including those of individuals who are accused of internationally recognizable offences.
In sum, the 2016 Law on Political Crimes may offer some hope to a small number of individuals who come face-to-face with Iran’s justice system to enjoy more lenient treatment in the short term. The law, however, does not constitute a step forward. In the long run, it will perpetuate the existing culture of intolerance towards dissent that has characterised the Islamic Republic of Iran’s criminal justice system.
 Mizanonline, ‘The Head of Tehran’s Justice Department: the First Jury for Political Crimes Has Started Its Work’, 29 October 2017, http://bit.ly/2mGxYve accessed on 19 November 2017
 Keshavarz, Bahman, ‘Jury for [Trial of] Political Crimes: a Positive Development’, 30 October 2017, Iran Newspaper, https://goo.gl/xcB3ie accessed on 19 November 2017
 Established under the Islamic Republic’s Constitution, the Guardian Council of the Constitution is mandated with vetting all legislation passed by the parliament for their compatibility with the Constitution and Islamic Law. The Council is comprised of six jurists appointed by the head of the judiciary (who in turn is appointed by the supreme leader) and six jurists in Islamic law [faqih] who are directly appointed by the supreme leader. In addition to reviewing and approving parliament’s legislations, the Council vets and approves candidates for major elections, such as the presidential and parliamentary elections. As such, it enjoys significant influence and authority in realms of law and politics in the country.
 The Constitution of the Islamic Republic of Iran, 1979, Article 168.
 Nayyeri, Mohammad H., ‘The Problem of Political Crimes in Iranian Law’, 2 October 2014, Iran Human Rights Documentation Centre, p.4.
 The Expediency Discernment Council of the System was established in 1987 following a decree by the then Supreme Leader, Ayatollah Khomeini, in order to dissolve disagreements between the parliament and the guardian council that had created deadlocks in ratification of legislations. Following the constitutional amendments of 1988, the body was provided for under the text of the Constitution and mandated with a wider range of responsibilities that included an advisory role to the supreme leader.
 Mizanonline, ‘Different Aspects of Political Crimes [Elaborated] by the Legal Deputy of the Judiciary’, 29 January 2016, http://www.mizanonline.ir/fa/print/127921 accessed on 20 November 2017.
 Nayyeri, Mohammad H., ‘The Problem of Political Crimes in Iranian Law’, p. 16.
 Article 302(e) of the 2014 Code of Criminal Procedure.
 No universal definition of “political prisoners” exists. Some use the terminology to refer to those whose offence contain – either in motivation or the act itself – a political element regardless of whether the conduct has been fully peaceful. Others, however, appear to use the term interchangeably with “prisoners of conscience”. In a resolution in 2012, the Parliamentary Assembly of the Council of Europe set cri