Following the recent wave of widespread arrests, one of the most significant legal challenges faced by defendants has been the severe restriction on access to an independent and freely chosen lawyer. This situation is primarily justified by reference to Note 48 of the Code of Criminal Procedure, a provision which, at the preliminary investigation stage of certain crimes, reduces the right to freely choose legal counsel to a limited list of lawyers approved by the Judiciary.
Under the prevailing practice, this restriction is applied mainly in so-called political–security cases, including charges related to internal and external security, organized crimes, and cases linked to civil, media, trade-union, or ideological activities. In such cases, defendants are effectively confronted with two options: either to accept a lawyer from the restricted Note 48 list or to undergo the investigation and judicial process without the presence of effective legal representation.
The list of lawyers approved by the Judiciary is neither transparent nor based on clear and objectively assessable criteria. In practice, many independent and human rights lawyers have been excluded from this list. As a result, the legal profession in sensitive cases has lost its supervisory and defensive role and has been reduced to a minimal and tightly controlled instrument within the investigative process. The direct consequence of this situation is the weakening of the principle of equality of arms and the distortion of the very nature of a fair trial.
At the practical level, numerous reports indicate that even in cases where a defendant’s family appoints an independent lawyer, the lawyer’s access to the case file, meetings with the client, and effective participation in the investigation are met with serious obstacles. Delays or denial of meetings, refusal to provide case documents, and the systematic portrayal of independent lawyers as ineffective are among the common practices in such cases. Under these circumstances, the “right to defence” is reduced from a fundamental right to a merely formal and ceremonial one.
From the perspective of domestic law, this situation stands in clear contradiction to Article 35 of the Constitution, which recognizes the right to legal counsel without qualification or restriction. It is also incompatible with Article 190 of the Code of Criminal Procedure, which guarantees the right to the presence of a lawyer from the very first moment of investigation and obliges judicial authorities to inform the accused of this right and record it. Forcing a defendant to accept an imposed lawyer undermines the validity of any purported consent and weakens the independence of the legal profession.
At the international level, the restrictions arising from Note 48 are inconsistent with Article 14 of the International Covenant on Civil and Political Rights (ICCPR). This provision emphasizes the right to a fair trial, the free choice of legal counsel, and the ability to mount an effective defence. As a State Party to the ICCPR, the Islamic Republic of Iran is legally obliged to comply with these standards; however, the prevailing practices in recent detention cases reveal a significant gap between Iran’s international obligations and the actual conduct of its judicial system.
Overall, the current state of legal representation in recent detention cases can be regarded as one of the principal indicators of unfair trials in Iran. In this context, the right to effective defence has been severely weakened by structural and legal restrictions, and the independence of the legal profession, as a fundamental pillar of criminal justice, faces a serious challenge.
Maryam Abedi
