TEHRAN—The trial of the three American hikers is formally under way. Sarah Shourd is being tried in absentia because she is in the United States and has not returned to Iran. Shourd posted a $500,000.00 bail and the Iranian officials agreed to release her on humanitarian grounds. Shourd’s Iranian defense lawyer has entered a plea of not guilty on her behalf.
The other two hikers, Shane Bauer and Josh Fattal are still being held in an Iranian prison and both were present in court. They have pled not guilty to illegal entry into Iran and spying charges.
The judicial process in Iran is unfamiliar to westerners. The Iranian justice system is based on the Islamic Sharia law and the role of the judge, prosecutor, and defense differ markedly from the civil or common law jurisdictions.
Many legal and political observers in the West are asking whether the American hikers can receive a fair trial in Iran.
To arrive at an answer, one must take a closer look at the Iranian criminal justice system and the role its judges play in dispensing justice.
The judge presiding over the trial of the American hikers is dubbed by Iranian and outside sources as the Iran’s hanging judge. Abolghasem Salavati is one of the judges presiding in the Tehran’s branch of the revolutionary court with jurisdiction over matters pertaining to national security, espionage, and political activity to overthrow the regime. The American hikers are accused of espionage and their cases are therefore pending before the revolutionary court.
According to published accounts, very little is known about the personal and professional background of Salavati. He rose to prominence and became the head of the revolutionary court in Tehran. He was reportedly elevated to that position because of his close alliance with the country’s intelligence and security agencies.
The human rights groups in Iran have repeatedly urged the Iranian judiciary to oust Salavati because he frequently issues judgments that are not supported by evidence. Salavati also has a reputation for regularly finding defendants guilty and passing sentences that are disproportionately harsh relative to the crime.
According to Iranian sources, Salavati frequently rubber stamps indictments issued against political prisoners and finds them guilty on the say so of security agencies. He is believed to have sentenced political prisoners in accordance with the wishes of Iranian intelligence officers.
The Islamic judges in Iran, including Salavati, are not trained jurists like their western counterparts. In most cases, the Iranian Islamic judges are seminary trained clerics or high school graduates who have received on the job training.
In the Iranian criminal justice system, the judge is also the prosecutor and the jury. Defense lawyers are not held in very high regards by Islamic judges and their role during the actual trial appears to be limited.
Iran follows the inquisitorial system in which the judge questions the accused. The Iranian judiciary looks upon the adversarial system as a Western absurdity.
Evidence in Iranian criminal trials is based solely on testimony that may be oral or in writing. But there is no opportunity for the defendant to conduct a cross examination and the judge in his sole discretion may accept or reject the testimony.
The testimony of women is not equal to the testimony of men in the eyes of Islamic Sharia law.
The Iranian Islamic courts do not recognize scientific evidence such as forensic testing or expert testimony. This makes it particularly difficult to conduct a defense in cases involving murder or rape.
It is a common practice in Iran to prevent lawyers from freely visiting and conferring with their clients. It is at the discretion of the judge to determine when and where lawyers may visit their clients.
According to the Wall Street Journal, Masoud Shafii, the Iranian defense lawyer representing the three American hikers complained that he had not been allowed to see his clients since September and was unable to prepare a defense.
The court told Shafii that he would have an opportunity to see his clients on the day of the trial.
Shafii told the Wall Street Journal that his clients dispute the charges and he believes his clients should be “freed immediately”. He added “I think the 18 months they’ve already served is more than enough”.
But most observers in Iran believe an acquittal for the hikers is unlikely.
The trial of political detainees in Iran is usually held behind closed doors. The hikers faced the judge in a closed courtroom accompanied by an interpreter and their lawyer.
In the absence of diplomatic relations with Iran, the Swiss embassy in Tehran represents the interests of the United States. The officials from the Swiss embassy were denied permission to observe the legal proceedings against the American hikers.
Iran has never released details of evidence against the hikers. But even in the absence of corroborating evidence, Salavati has convicted other defendants in previous trials by basing his decision solely on the indictment document.
According to the defense lawyer representing the American hikers, Salavati has upheld the indictment against his clients.
In the mean time, Iranian President has extended a law that allows courts to impose Islamic punishments such as amputation, public lashing, and stoning.
Western societies consider these punishments barbaric.
Other court dates have not been set for the detained Americans.