Defence Bill of Ebrahim Madadi
by
Dr. Yousef Mowlaiee and Parviz Khorshid
November 2007
The Esteemed President of the Tehran Province Court of Appeals
Your Honor,
In protest at the verdict issued by the Tehran Court of Revolution, chamber 28, regarding the case number T/8861/186, the following issues are being informed:
1. According to the Article 214, the court should issue reasonable and justified order by referring to the legal articles and principles. This article has been proposed to respect the guiltlessness principle and put the heavy duties on the court’s shoulders. To respect the guiltlessness principle, the esteem court should order charges against the accused person based on the strong reasons, otherwise, at the judgment status, it violates principle 27 of the Constitution of Law. In the criminal affairs, reasons have been identified and court would evaluate the attributed reasons within the legal framework. The judge does not have the right to issue sentences based on the assumptions, what has been heard or said, and pre judgments. On the other hand, the court does not have the absolute power and authority in referring to the legal articles. However, based on the case situation, the way of forming the material element (the actions which could be attributed to the accused person) and the mental element (the knowledge and intention of the accused have been known) the court should identify the appropriate referral legal article, and be fully careful in the adoption of the articles with the accused actions. Regarding these matters, the issued indictment is not strong enough because of the following reasons:
a. In the issued indictment, there has not been given any reasons to prove that conspiring collectively has been taken place. The statements of the accused person, the officers’ report and the contents of the file have been referred as the reasons of issued verdict in the indictment. The accused person, in all the interrogation meetings and in his defence at the court, clearly stated that he intended to go to Osanloo’s house and he was arrested before he entered in. The reports by the officers and agents also indicated that Mr. Madadi was arrested before he entered to Osnaloo’s house.
b. Conspiring and gathering requires of the participation of at least two people. In the present case, nobody has been sentenced as the Madadi’s accompany in the gathering and conspiring. Whereas if the gathering and conspiring had been taken, Mr. Madadi along with the other people who gathered and conspired with Madadi as partners, assistants or supervisors, should be tried within the one case. The arrested people along with Mr. Madadi were freed with the order to stop further following up.
c. The material element of the attributed crime, which had not been reasonably proven by the court, was replaced with the intention of the crime, and Mr. Madadi, according to the issued indictment, was sentenced because he had the intention of disturbing the national security. Regardless of the fact that the mental element can not be referred as a reason in the absence of the material element, in this case, the court denied to submit the reasons of the criminal intention.
d. Most part of the indictment has been allocated to the client’s trade union activities at the Syndicate of Vahed Company which indicates that action of going to Mr. Osanloo’s house by my client has no criminal dimension and the client has been sentenced because of the charges irrelevant to this case, and it is against the principles of the fair trial, procedure of the criminal trial, and civil rights and respect the legal and legitimate freedom.
e. If we accept that the assumption of Mr. Madadi’s intention of gathering in front of Mr. Osnaloo’s house had been proven, regardless of the fact that any gatherings has not the criminal attribution and only the gatherings which led to the crime should be followed up, as the Disciplinary Forces arrested Mr. Madadi before he entered to Mr. Osanloo’s house, this criminal action can be considered as the abortive crime and maximum the start point of the criminal action for which no sentences had been predicted, according to the law.
2. Criminal Mental Element of Article 610
Referring to the article 610, a crime can be considered if, first of all, the intention of the accused person to conspiring and gathering to be known, and secondly the intention of criminal action (action against the security) through the conspiring to be proven. The respected court in any of the mentioned matters has not submitted any reasons, and has not proven the specific or public intention by the accused person.
Therefore, regarding this bill of defence and referring to Principle 27 of the Constitution of Law, we request the order of breaking the issued verdict, and writ of guiltlessness of the accused person from the attributed charges. Also, for more information, the legal issues of the Article 610 are being described to the esteem Court of Appeals as follows:
1) Material Element in Article 610
Offence of gathering and conspiracy for commitment of an offence will be materially realized when at least two people jointly commit an offence. In other words, the main and key element of realization of provisions of this article is commission or omission of a criminal act by individuals and on the other hand the consequences of these crimes or their effects should be damaging and undermining the country’s security. In this article the criminal act is defined as activities and doings with special particulars which considering the intensity of the act and its consequences, they are considered as dangerous offensive acts. For example creating fear and danger, committing wicked acts, using cold and warm arms, robbery, kidnapping are some of the examples of such crime. In this case, in addition to criminal act, the means and method of commitment and partnership of at least two people are required in what is considered a crime under article 610, and thus it is logically impossible to regards our client’s activities which include giving lectures, issuing statements and holding Syndicate meetings as examples of crime under 610. His behavior and activities have not the criminal description. Establishing Syndicate with the votes of the majority of the workers at the Vahed Company is not a crime. Participation and gathering of the workers at the Vahed Company for their trade union affairs and claim the trade’s rights, according to Principle 26 of Constitution of Law, can not be considered a crime.
2) Mental Element
Considering the mental element of crime, it should be mentioned that the subject of article 610 is public offence, its conditions will be satisfied taking into consideration the criminal intention and its consequences in internal security. In other words the perpetrator should commit the crime intentionally and jointly wit at least one another person and in addition he should have bad intention in his deeds.
In a situation that none of the Syndicate activities are considered as offence and supposedly if the Syndicate is not officially recognized, it will not benefit from any legal privileges. Thus, my client has not committed any crime in his Syndicate activities and recognition of his bad faith, general or particular subject of article 610 is nonsense. As reflected in the records and our client has announced in the court, the objective and intention of the client and other members of the Syndicate have always been defending legal trade rights through peaceful activities and the result of such activities is reinforcement of national security through preventing the claims of deprived layers of the society to be radicalized. Defending the workers’ rights with good faith is an evident of his good faith in organizing the affairs of his area of working and removal of managerial deficiencies, and finally Mr. Madadi’s deeds and behavior has been in the direction of justice benevolence. There is no trace of bad faith and consequently article 610 does not apply to his case.