Report 5: The Defense’s Opening Presentation
In our two previous reports, we gave an overview of the prosecution’s opening presentation and the evidence the case is built on. When the prosecution had concluded its presentation after four trial days, the defendant’s two lawyers followed with their opening presentation. In comparison to that of the prosecution, the presentation was brief and lasted for roughly four hours divided over two days of trial. In this report we intend to provide a summary of the defense team’s main arguments.
As previously reported, the defendant has pleaded not guilty on both counts and maintains his innocence. To clarify his position on the charges, his lawyers claimed the defendant has never been employed as an assistant to the prosecutor (or a similar position) at Gohardasht or held any other position at the prison. The defendant admits to having been employed at the prison Evin between 1983 and 1991, but maintains he was not employed as an assistant to the prosecutor but rather as a regular guard and later as a civil servant in the prison’s financial department and prosecutor’s office respectively. The defendant claims to have only ever visited Gohardasht on a few occasions. He also claims to have been on paternal leave during the specific time frame during which the prosecution argues that he participated in the execution and torture of prisoners, which meant he was not even present at Evin at the time. In support of his claim, the defense has submitted a document which they claim is a form of identity certificate (called a shenasnameh in Farsi) for his daughter and where her date of birth is listed as 29 July 1988.
His lawyers also explained that the defendant is unwilling to attest to the events in the prosecution’s statement of the criminal acts as charged.In other words, the defendant will not attest that the execution and torture of prisoners at Gohardasht have ever occurred. However, the defense does not argue the fact that the death penalty was a form of punishment available to administer within the Iranian legal system at the time and that the issuing of death sentences occurred. The defendant’s position is that the prosecution’s description of the events is built on the testimony of individuals who belong to or may have belonged to organisations in opposition of the Iranian regime and who may benefit from having someone previously employed at a prison sentenced for crimes.
In the opening part of its presentation, the defense argued that the prosecution is “special” in more ways than one and referenced both the widespread media attention surrounding the case, and the political dimension of the charges. As such, the defense argued, the court must be especially careful when examining and evaluating the evidence presented by the prosecution. Furthermore, the defense claimed that the fact that the case revolves around events that are alleged to have taken place 33 years ago, in a country far from Sweden and with its very own cultural and historic context, is an issue in itself.
The defense also brought up a few other issues around the case which it deemed problematic. One referred to a request of legal aid, issued by the prosecution to Iran on 28 October 2020. Although the request went unanswered from the Iranian authorities, the defense claimed it was remarkable that it had not included a request to visit Iran and Gohardasht prison or the alleged mass graves especially, and that it had not included a request for information on the verdicts related to the injured parties and witnesses or any information on the individuals that the prosecution has listed in its appendix of executed prisoners. The defense claimed that it had itself also sent a request of legal aid to the Iranian embassy in Stockholm on 27 March 2021 which included a request to visit Gohardasht prison and to receive documentation on how the prison is constructed. This request had also gone unanswered. The defense then claimed that the fact that neither they or the prosecution have been given any information on the prison means it is very difficult to assess the claims of injured parties and witnesses relating to, for example, what they would have been able to see or hear from a particular location in the prison. They further argued that the difficulty in obtaining said documentation cannot be held against their client.
A particular point that the defense made relates to the close relationship between some of the injured parties and the exchange of information between said parties both prior to and after the defendant’s arrest in November 2019. The defense argues that many of the injured parties are individuals who belong to or have belonged to organisations critical of the Iranian regime and as they would have much to gain from a shift in power, their credibility should be in question. The defense further argued that most injured parties and witnesses have read the various books and reports on events taking place in Gohardasht prison that have been published over the years, including those that the prosecution have included as evidence. Several injured parties and witneeses have also provided information to the organisations behind the various reports or have been involved in the Iran tribunal. The defence also claimed that some injured parties and witnesses have brought books along when giving their statements to the police.
The defense then pointed out that information on the case has been spread widely on social media and various sites and news outlets ever since the defendant was arrested. It further named one of the injured parties as being particularly active in the spread of information and exhibited several examples from Facebook and other sources. Amongst the information being spread has been the defendant’s name, several photographs of him and even a recording of his voice. The defense also exhibited examples from social media where the injured party can be interpreted to push back against claims from others that the defendant is not the person that the prosecution claims that he is. As such, the defense claims, important information speaking against the guilt of the defendant has been kept from Swedish authorities.
The defense further claimed that most of the injured parties and witnesses have read or otherwise, to some extent, been made aware of the information about the defendant after his arrest. It thus questioned if those who claimed to recognize the defendant from their time at Gohardasht really does so or if they are in fact affected by the stories of other injured parties.
In relation to the various books and reports that the prosecution has submitted as evidence, the defense questioned the reliability of the sources and pointed out what it described as discrepancies with regards to names, dates, and other facts.
The defense claims that the actions of certain injured parties have altogether resulted in that the Swedish authorities have been unable to conduct an impartial investigation and that many of the claims made in testimonies stem from the same source.
In relation to the prosecution’s claim that the MEK were involved in an international armed conflict with Iran, the defense attested that the organisation launched an attack on Iran on 26 July 1988, but claimed it acted independently and that the organisation was not part of the conflict between Iran and Iraq. In support of their claim, they referred to a memorandum by Professor Eric Davis of Rutger University which has been submitted to the court. They further pointed out that the MEK was founded long before the Iran-Iraq conflict was initiated and that is was capable of violence before then. They also pointed out that the organisation has launched several attacks on Iran since the war ended.
The defense further went on to question if there could be said to exist a nexus between the “alleged” executions and Operation Eternal Light. In doing so the defense also questioned the validity of the so-called fatwa from Khomeini that the prosecution has submitted a copy of. The defense pointed out that the fatwa is taken from a book published by Hussein-Ali Montazeri, a now deceased former ally of Khomeini, who became embroiled in a conflict with Khomeini while the latter was still alive. The defense thus argued that the alleged fatwa as a source of information must be evaluated with great caution. The defense also noted that the wording of the alleged fatwa, describing the MEK as false believers of Islam, suggested that Operation Eternal Light was not a factor in issuing the fatwa, if the fatwa was in fact ever issued.
In relation to the prosecution’s secondary claim, that the MEK were involved in a non-international armed conflict with Iran, the defense stated that the court must assess if the use of armed force between Iran and the MEK had surpassed the intensity threshold as required by international humanitarian law. The defense went on to claim that even if the court should deem that the MEK were engaged in a non-international armed conflict with Iran, the charge of war crimes should still be dismissed, as section 6 chapter 22 of the Swedish Criminal Code (in its wording prior to 1 July 1995) strictly applies tograve breaches of international law. The defense further claimed that the grave breaches regime only applied to armed international conflicts in 1988. As such, the invoked section 6 chapter 22 of the Swedish Criminal Code, upon which the first charge is based, would not be applicable if the court finds that the acts were committed within the context of a non-international armed conflict between Iran and the MEK. In support of their claim, the defense has submitted a memorandum from professor emeritus Ove Bring.
In our next report, we will provide an overview of the opening presentation from the counsels for the injured parties and in particular the legal issues relation to their claim for damages based on Iranian law.
A translated version of this report in Farsi can be found here.