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Defence Bill of Saieed Torabian

Dr Yousef Mowlaei and Parviz Khorshid; Attorneys - at Law

The Esteemed President of Branch 14 of Tehran Islamic Revolution Court

Subject: File Classification

Your Honor,

Mr. Saieed Torabian is the honest and hard working driver at the Tehran Vahed Company, who has carried out all the assignments, which have been given to him by Vahed Company, with sympathy, and hasn’t committed any offences in his entire career’s life.

Mr. Saieed Torabian as a hard worker and justice seeker observed the disarray, mismanagement and inefficiency at the Vahed Company, while he was in the extreme financial hardship and his salary wasn’t sufficient for his livelihood’s needs. On the other hand, the managers and the trade unions at the Vahed Company hadn’t taken any effective actions in order to fulfill the legitimate workers’ demands. Therefore, he was attracted to the activities at the Vahed’s Syndicate, in the situation that the trade union’s activities didn’t cause any political and security sensitivities, and despite of the fact that the security authorities were aware of forming the Syndicate and holding election they didn’t take any measures against the members to be accused of being the member of the Syndicate. Grown up within the Islamic Revolutionary’s values, Mr. Torabian, had never had any trade union’s experiences before the establishment of the Syndicate, and under the influence of the emotional and moral approach, indicated that revolutionary’s justice has been less applied in the interests of workers, attended some of the meetings and protest’s gatherings which had been organized by the Syndicate, with enthusiasm and passion as a thoughtful worker in order to conduct the authorities to take the proper and logic decisions which would be adopted with the spirituality and values of Islamic Revolution. All of these trade union’s activities has been introduced as propaganda activities by the esteemed security and judiciary authorities, and in the issued bill of indictment the punishment has been requested by referring to the articles 610 and 500 of the Islamic Penal Code. Unfortunately, in the issued bill of indictment is not clearly identified which of the client’s activities has been considered as the propaganda against Islamic Republic of Iran and which one has been attributed to the article 610. This ambiguity would seriously question the validity of the indictment. Any doubts and suspicions in the criminal affairs would be interpreted in the favor of the accused person, and unidentified and unrecognized criminal cases would violate the defence of accused; therefore, this bill of indictment has the serious error. The issues have not been proven by reasoning and this is another objection to the indictment. There has not been given any reasons why the client’s trade union’s activities have been evaluated as propagandas against the Islamic Republic of Iran and against the national security. Issuing the protest’s leaflets, ultimately, keeping the buses’ lights on, and calling the stop working for an hour are the ordinary workers’ trade union activities. If these usual activities undermined or damaged any national securities, there wouldn’t be any security in any of those 150 countries where, everyday, different social strata protest or go to strike for any reasons. In contrast, the countries where trade unions and associations are active and taking dozens protest’s actions daily, specifically in the transportation, are among the most economically developed countries. Interpreting any calls a strike or a peaceful protest as actions against security indicates that security factors as a multidimensional concept, which should be recognized in economic, social, cultural, political, and military context, has not been anticipated properly. Workers’ trade union activities are the best tool to identify the economical and social bottlenecks and would help authorities to solve the problems before they reach to the crisis point. Trade Union’s leaflets and statements are warning sounds which make thoughtful and benevolent authorities to recognize the problems in their management system; therefore, the impact and consequences of these leaflets and statements is to strength and stabilize the national security. On the other hand, trade union’s activities by improving workers’ abilities results in their increasing productivity and responsibility. As the behavior of those drivers who are the members of the Syndicate shows they utilize and maintain Buses properly and behave to satisfy passengers as much as they could in order to decrease satisfaction and strength national security, they help the economical security to be stronger by criticizing the Vahed Company managers in order to find out the deficiencies and problems in their management system. The importance of the trade union activities of workers has increased to such an extent that it has been emphasized and supported in the Constitution of International Labor Organization, International Covenant on Economic, Social and Cultural Rights, as well as in the Constitutions Laws and Labor Laws of most of the countries. In all the developed countries the cost of the protests and strikes in compare with the long term socio economic benefits has been considered a little and they tolerate it in the sake of the public interest, and this cost has not been considered undermining security in any places in the world. Therefore, a deeply rooted and extensive common law has been formed indicating that supporting trade union activities results in economical development and workers’ satisfaction and encouragement. Therefore, ignoring the positive impacts of the trade union activities, misinterpreting the security concept, its components and elements, and identifying the workers’ peaceful actions under the Article 610 weaken the legal base of the indictment severely, and unfortunately, presents a wrong and weak image of Iran’s security power; whereas Iran properly identifies the country as a high secure regional power against the external’s threatens and pressures.

Therefore, the esteemed prosecutor should scientifically and technically prove the relation between the country’s security and trade unions’ peaceful activities, and present how within the country security’s project and strategy’s framework keeping buses’ lights on to draw the attention of Vahed Company’s managers to the workers’ problems, or calling merely the protest action may affect on internal security. Even though, assuming that this relation exists the Syndicate’s workers, who drew the attention of the authorities to the at risk point of the national security, shouldn’t blame under the criminal acts, because their activity could be realized as an effect not a cause. In the indictment has been mentioned that the Syndicate’s activists intended to cause dissatisfaction and disable the Tehran’s transportation through the strike. It can not be justified because of the following reasons:

1. Such an extensive strike which has been mentioned in the indictment has not been occurred and the Syndicate’s activists didn’t plan for such an intensive strike.

2. The Syndicate’s members have never intended to pursue the radical actions.

3. If the Syndicate enjoys such popularity and support, the authorities of the Vahed Company, who causes this dissatisfaction among the Company’s hard workers, shall be interrogated instead of the workers who are the victims of the corrupt practices of the managers.

4. Since the drivers’ strike has the trade’s intention and the addressees are the managers of the Vahed Company it couldn’t get any security direction, while eventually it could be prevented and controlled by giving some promises like the other places in the world, as previously several times negotiations between the authorities including Tehran Mayor with the Syndicate’s activists had resulted in.

5. One of the anxieties of the security authorities, which has been reflected in the file and mentioned in the legal procedure, is that the opposition political groups against Islamic Republic Regime make use of the Syndicate’s activities. Trade’s activities could be controlled by the intelligent authorities, and recognizing the trade union’s activities could show the good intention and self confidence of the regime and would change the negative propaganda to positive. On the other hand, it has been seen that some of the political authorities’ words has been mistaken and following the waves of propaganda against the Regime have been made in abroad. Is it acceptable to ask Iran, as a powerful country with the self determination governance right, ignore its rights under the influence of the unhealthy atmosphere and political issues in abroad? As nobody can blame the country’s authorities because of the mistaken of their words by the politicians of the other countries, nobody should take the political groups’ behavior and mistaken within the country or in abroad as a reason against the workers of the Vahed Company.

6. The client, who has any criminal record, wanted to propose the trade union’s demands by utilizing the capacity of the Constitution and the other Laws, facilities and resources in Islamic Republic of Iran. So, his presence and activity in the Syndicate could not be realized as gathering and conspiracy for commitment of an offence under the subject of the Article 610 of the Islamic Penal Code. Forming Syndicate, even though its legal permission has not been issued, can not be considered as a crime because issuing leaflet and call the strikes can not be realized as the measures of the violence against security, subject of the Article 610.

7. Interview with the media in abroad, which might be blamed, has not been mentioned as a crime in any articles of the Penal Code. With regards to the principle of the legality of the punishment when there is a lack of law to forbid interview with the media in abroad the sentence can not be issued based on the merely personnel interpretation as the criminal act which has not criminal description. Interpretation in the criminal affairs has completely forbidden, on the other hand, with regards to the content of these interviews, which were only about trade’s issues and the news on harassment of the workers’ family when they were arrested, there is no legal justification to attribute propaganda against the Regime to the client act.

8. The client is in an extremely financial hardship and his family has borne so much pressures. Justice and fairness order to issue a just writ of guiltlessness of the client and provide him to return to his job before his problems arise to the crisis.

9. Possible misusing by the political groups or media in abroad doesn’t cause any responsibility for the client, otherwise the criticisms of the authorities from one another which causes sometimes negative propaganda in the foreign media should be considered criminal act, such as the recent interview of the esteem head of the judiciary power in criticism of the changing managers in the government. Thus, an act can not be described criminal merely by referring to the reaction and intention of the media or groups in abroad.

10. Mr. Torabian, who is from the deprived layer of the society, has not taken any actions or has not said anything against the Regime with the intention of changing or undermining Islamic Republic of Iran. It is possible that he has misused the words and expressions by mistake, because he hasn’t had enough education and experience in the trade union activities. This can be ignored by considering his efforts in the fronts of the war to save the holy regime of Islamic Republic of Iran.

To make everything clear for the court, briefly pose our opinion on the theoretical basis of the Articles 610 and 500 of Islamic Penal Code.

Article 500 of the Islamic Penal Code does not apply in our client’s case

Any crime requires realization of three legal, mental and material elements:

1. Legal element; The crimes of propaganda against Islamic Republic of Iran and supporting opposition groups was included in Iranian penal Code in 1996. The definitions of these two crimes faces problems and is in contradiction with the principle of legality of crimes because of conceptual generality and ambiguity in phrases like “any propagandistic activities”, “the Islamic Republic of Iran Regime”, “opposition groups and organizations”, “issues contrary to Islamic Principles and foundations of Islamic Republic”; furthermore it may interpreted according to the political trends and positions of the interpreter. Thus taking the rights of the accused into consideration, we draw your attention to the principle of narrow interpretation and not referring to (logical and essential) analogy. However, the interpretation of the article 500 has been considered by the esteemed prosecutor.

2. Mental Element; Considering the mental element, it should be said that the crime subject of Article 500 of Islamic Penal code is a public offence and the intention of propagandistic activity against the Islamic Republic of Iran is the condition of realization of the offence. Thus if the accused states issues or writes something not with the intention of damaging the government but with the intention of criticism, the offence mentioned in Article 500 shall not be considered realized. The accused not only shall have intention in his criminal deeds, but he also should be in search of destructive results from his activities.

3. Material Element: In material element there are two components which are a) any form of propagandistic activities and b) being against the Islamic republic of Iran. By propagandistic activity, publication and repeated expression of a particular message and promotion of a particular thought by promoters and propagandists is meant. Although, realization of propaganda requires repetition of an ct and seemingly this offence shall be include in habitual offences, but since the act of perpetrator of the offence is propagandistic act, it should be included in continuing offences. In the terminology of political sciences, propagandistic and promotional activities are contrary to scientific, research activities. Propaganda and promotion is based on rhetoric and polemic techniques, and the addressees are usually ordinary people. Propagandistic activity comes after scientific activity, since the scholars shall do researches first and theorize the issues and then the propagandists and promoters shall promote those issues among ordinary people. The separation between promotional activity from one hand and scientific research activity from other hand is seen in the resolution of the High Council of Cultural Revolution which is the highest authority in this regard. In the collection of laws (1987, pp 18-22) approved by High Council of Cultural Revolution regarding book publication objectives, policies and regulations dated may 10^th 1988 in paragraph (b) of Article 3 of this approval, while discussing legal limits, first mentions those books which are disturber of Islamic Principles and public rights and thus are not suitable to publication, which include<

a) Propaganda and promotion of atheism and denial of religious foundation

b) Promotion of obscene acts and moral corruption

c) Provoking the society to rebel against Islamic Republic of Iran

d) Propaganda and promotion for illegal and combatant (mohareb) groups and sects, as well as defending royal, totalitarian regimes

e) Propaganda for dependence to one of the world’s powers and opposition with the policy of independency

In Notes 2 and 3 of the same resolution it is read that the following cases are exception of the mentioned legal limits:

a) Scientific and research books in the ground of atheistic schools which are not propagandistic

b) Explanation of issues required by the society in the fields of sexual and moral affairs, for educational objectives

c) Proposing defects and criticisms an deficiencies of Islamic Republic on order to fine a deepr and better recognition of the state of affairs and finding proper and constructive solutions with a reasonable style of expression and without any accusation and calumny.

d) Proposing the ideas and scientific positions of those who oppose the Islamic Republic and the Islamic Revolution for scholarly investigation of their thoughts.

e) Criticizing and denial of wrong customs and rituals to correct them without any political and colonial tail.

In the above mentioned resolution. It is clearly seen that propaganda against the Islamic Republic of Iran means arousing the society against the Islamic System and not proposing the deficiencies and reasonably criticizing the Islamic Republic and we also see that there is a difference between defending royal and totalitarian regimes with scholar investigation on the ideas of those who oppose the Islamic system. The first is forbidden and the second is allowed. In the Act of the Press a difference is considered between the scholar and academic researches which are allowed and propaganda and promotion which are forbidden. According to Article 3 of the said Act, the press are allowed to inform people from constructive critical opinions and ideas, observing the Islamic principles and the society’s interests.

Note: Constructive criticism is conditioned to being reasonable and avoiding accusation calumny.

Article 6 – The press are free except in the cases of disturbing Islamic principles and public rights.

Publication of atheistic materials and issues against Islamic principles and promotion of ideas which are against the foundations of Islamic Republic.

Promoting people and groups to commit deeds against the dignity and interests of Iran inside or outside the country.

Considering the above rights it becomes clear that the legislator’s using the phrase propagandistic activities in Article 500 of the Islamic Penal Code is not scholar and scientific researches and opinions based on logic and reasoning, but superficial, unscientific and destructive expressions against Islamic Republic of Iran.

Second Component, Against Islamic Republic

In this component we should first see what “against” means and also what “Islamic Republic System” means.

“Against” here means opposing and confronting and finally “Against the System” means taking measures to abolish the Islamic System and to change it and the Islamic Republic System is a system introduced in the Constitutional Law and includes two main essential parts of Islam and Republic. Thus “against Islamic Republic” shall mean opposing the system through denial of its Islamic element and propaganda for secular republic, Socialist republic, non – Islamic democratic republic, or on the other hand denial of its republic element and propaganda for Constitutional monarchy regime, or denial of both elements and propaganda for other types of regimes. Thus, Propagandistic activity against Islamic Republic of Iran means unscientific, non- academic and non – scholarly opposition to Islamic Republic of Iran and one who does such activities can’t believe in such a system, but should be considered as one who denies the Islamic system and tries to overthrow it. But, our client has been active in the victory of Revolution and has fought in the fronts of the imposed war against Iran and has cast vote for the Constitutional Law and according to the Constitutional Law and Artice 26, he has considered syndicate activities as the proper way of defending the workers’ rights who are the main supporters of independence, territorial integrity and internal security.

Therefore, with regards to the accused defense which he honestly explained the political actions as the trade union activities and denied any political intensions and objectives in those actions, and considering that he is a decent worker, as well as regarding the above defence bill, it is expected that the esteem court, issues a just writ of guiltlessness from the attributed charges.

Dr. Yousef Mowlaei - Parviz khorshid

Attorneys of Mr. Saieed Torabian

September 19, 2007