Report 53: Expert witness hearing
In our previous report , we provided a summary of the introduction to the fifth block of recorded testimonies presented before the Court of Appeal on 19 June 2023. On 1 September there was a witness hearing with the police officer first mentioned in report 51. Unfortunately, we were unable to attend the hearing but in report 54 we have summarised the hearing based of official recordings provided by the Court of Appeal.
In this report, we have summarised a witness hearing conducted on 9 October 2023 with expert witness 11, Eduardo Toledo, who was introduced by the defence counsels and who had not been introduced during the trial in District Court.
Opening of the trial day
Presiding judge Lund opened the day by welcoming everyone to the Court. He explained that the day would consist of a hearing with an expert witness which would be preceded by brief statements from the prosecution and Plaintiff Counsel Lewis regarding newly submitted evidence.
Judge Lund then stated that the Court had received questions considering the request to the Court (by the defence counsels) to dismiss the case. Lund explained that the Court would not assess the request and issue a decision until all the scheduled hearings have been conducted.
Lund went on to address the defence counsels’ request to present evidence that had required the aid of Iranian authorities to obtain. He explained that, following the request, the Swedish Ministry of Justice had forwarded the defence counsels’ request to the Iranian authorities on 28 September. No response had been given from the Iranian authorities, however. This, said Lund, raised questions about how to plan the remainder of the trial. Defence counsel Bodström responded that the defence counsels were planning to conduct a meeting with the defendant’s Iranian lawyers in the evening following the day’s trial and that they would return to the Court with a response after that. On the same note, the Court asked the defence counsels about their previous mention about wanting to submit statements or hold a hearing with a potential new expert witness and whether they were planning on doing so. Defence counsel Bodström said that they had been in touch with the witnesses but that they needed more time to decide whether to do so. Judge Lund gave the counsels a deadline for 12:00 PM on October 10 to request a hearing. No request for a hearing was made by the counsels before the deadline and they chose to instead submit a written statement.
The defence counsels’ supplementary statement
The Court then moved on to give the floor to the defence counsel for a statement concerning evidence that the counsels had recently submitted to the court. The evidence included a video clip for the morning television show “TV4 Nyhetsmorgon”, in which a police officer who had been involved in the investigation of the defendant participated in an interview.
Defence counsel Rampe asked the Court to pay particular attention while watching the video clip to what the police officer said about the content of his conversations with the defendant.
Rampe showed the clip in which a speaker voice summarises the content of a documentary that was aired on the same tv channel. The speaker voice explains how the police officer in question, who is a Farsi speaker, was requested to assist with interpretation upon the defendant’s arrival at the detention centre when the defendant was meeting with the embassy. The clip also shows the police officer saying that he had met the defendant on a weekly basis over the court of three years (while the defendant was in detention), and that they occasionally corresponded via telephone. The police officer describes the defendant as a complex individual, exhibiting narcissistic traits, and possessing a good memory. He goes on to say that he has gotten to know the defendant well as he has monitored conversations between the defendant and his wife and children, and all his interactions with embassy personnel. The police officer also speaks about how his own uncle was executed in Evin prison while the defendant had been working there and that he had brought this up with the defendant after the verdict was delivered in District Court. Additionally, the police officer is heard saying in the clip that his language skills had led him to assist in the investigation by, inter alia, extracting and translating relevant information from the defendant’s phone.
After showing the video clip, defence counsel Rampe reiterated the defence counsels’ concern about a biased police officer being involved in the investigation.
Rampe then drew attention to the memorandum that the defence counsels had submitted as new evidence. Rampe stated that the relevant aspect is not the content of the memorandum but rather to underscore that they have not received sufficient information regarding the police officer’s involvement.
The prosecution’s supplementary statement
The prosecution explained that it had come to its attention that Eduardo Toledo, the expert witness which the Court would hear this day, and who was appearing before court upon the request of the defence counsels, had been mentioned in a publication by the Islamic Republic of Iran News Agency as a legal advisor to the defendant’s and his family. Judge Lund asked if the prosecution intended to submit this as evidence, and the prosecution responded that it was not intended to be submitted as evidence but rather to be used as a reference during the hearing with the expert witness. If necessary, the prosecution would submit it later.
Plaintiff counsel Lewis’ supplementary statement
The floor was then given to plaintiff counsel Lewis, who had submitted several new pieces of evidence. He underscored the significance of a statement from Lincoln Bloomfield, an individual referred to by the prosecution in its opening statement and whose statement had been made available in preparation for the trial. The statement was intended to shed light on Iran’s relationship with Iraq during the armed conflict. Lewis questioned the sources that the District Court referred to in its verdict regarding the NLA’s connection to Iraq and criticised the fact that Bloomfield was not mentioned at all, despite that he had made what Lewis referred to as substantial contributions in scrutinising the relationship between Iraq and the NLA.
Lewis then emphasised that much of the purported information used in the District Court’s verdict lacked proof and underscored his prior remarks on the discussion on whether it was an international or national conflict. He proceeded to explain the information that he had submitted as new evidence and reiterated that there had not been an intimate collaboration between the NLA and Iraq. Lewis then elaborated on reports by foreign journalists’ who were covering the conflict at the time and which indicated an absence of Iraqi forces on the ground during the NLA’s operations and emphasised the lack of a connection between the NLA and Iraq.
Lewis then continued by addressing his submission as evidence of a journal in which reference was made to leaked documents stemming from a comprehensive hacking operation which resulted in hackers obtaining thousands of confidential files. Some of the confidential documents referred to the establishment of the “Iran Expert Initiative”, which was aimed at recruiting various experts who would be tasked with influencing Western governments and public opinion in the West concerning Iran. While not determinative in this trial, one of the experts mentioned in this initiative is someone who was heard as an expert witness in District Court. Lewis then stated that whether he was a part of this initiative, which allegedly Parsi had not denied, was of relevance to assess his impartiality.
Hearing with expert witness 11
The session then proceeded with the hearing of Eduardo Toledo. Defence counsel Bodström initiated the hearing by asking Toledo to introduce himself.
Toledo stated that he was a lawyer with a master’s degree in international law and international criminal law, currently working as a researcher at the INEPPA institute (Instituto de Estudios del Proceso Penal Acusatorio) in Mexico. In addition to this, he has served as a legal adviser and researcher for various other institutes.
Bodström then asked about how Toledo became involved in this trial. Toledo responded that he met a professor from Iran in 2018 various collaborations and had opportunities to assist and support him in matters of international criminal law. Bodström then addressed the claims by the prosecution that Toledo had acted as an adviser to the defendant’s family. Toledo explained that he had participated in several conferences in Iran, and that he had sometimes provided the professor from Iran whom he met in 2018 with legal advice, who in turn acted as a legal adviser for the defendant’s family.
Bodström then explained that Toledo had been called as an expert to be heard about the prison structure in Iran and proceeded to ask him to expand on this. Toledo stated that the matter of prisons and the work conducted within them had been of interest to him since 2011 when he began his involvement in Argentina and that he had been able to analyse prisons in different parts of the world.
Bodström asked Toledo to explain the prison structure in Iran. Toledo began with providing a historical context. He explained that after the 1979 revolution, and the establishment of what we now know as the Islamic Republic of Iran, fundamental institutional and constitutional changes took place and a new order of the distribution of power was introduced. The distribution of power and functions deriving from this were then incorporated into new legislative changes aimed at overseeing the prison system. The legislative act regulating of prisons was enforced on 26 January 1986. Within this law are the norms that were applicable during the summer of 1988, and which regulated the work of prison guards. Toledo continued by stating that the prisons operated with an individual in charge who was responsible for organising the work of the guards and specifying their functions within the prison. This did not only pertain to administrative tasks but also involved the legal aspects of the prison’s function. Toledo then said that it is very complicated to explain the prison structure in detail, since it was difficult to access documentation and records from prison. From what he could gather, however, he had concluded that there were three levels of responsibility: a prison chief, supervisors, and prison guards. Bodström asked which sources Toledo relied on, to which Toledo responded that he primarily relied on academic sources and an interview.
Toledo was then asked to expand further on the roles within the prisons and asked about the function of a dadyar. Toledo stated that the roles were outlined in the 1986 law, which specifies the different functions within the prison administration and the role that they have in carrying out the imposed sentences. Toledo continued to explain that a dadyar served as an assistant to the prosecutor and would usually have five distinct tasks: 1) the investigative function, 2) overseeing investigations conducted by colleagues, 3) executing judgments, 4) supervising the management of the prison, and 5) acting as the prosecutor’s representative during trials. Toledo stated that these conclusions were based on his studies and findings about “this specific prison” (author’s note: most likely referring to Gohardasht prison when only saying the prison), and that there was only one dadyar who conducted these tasks.
Bodström went on to ask about the role of an assistant to a dadyar, to which Toledo answered that the assistant’s role would be to fulfil not only the tasks that belonged to an assistant but also what the dadyar needed in the moment. Toledo was then further asked about the role of a “pasdar” (revolutionary guard), and if an assistant to a deputy prosecutor can have the tasks of a “pasdar”. Toledo explained that a “pasdar” was a guard and that even if it would be possible for a dadyar to perform the tasks of a “pasdar”, a “pasdar” would more likely be an assistant to a dadyar.
When asked about the committees (referred to by the defence counsel as pardoning committees, and by the prosecutor as death committees), Toledo again referred to the creation of new institutions after the 1979 revolution, and that ayatollah Khomeini organised committees to stabilise the country after the revolution. These committees, which consisted of judges who were directly appointed by ayatollah Khomeini, were organised to analyse sentences and verdicts. In 1985 there a small change was conducted as regards to which members that would form part of these committees. Prior to 1985, the committees consisted of one representative from the intelligence department, one prosecutor and one judge. When asked about the mandate of the committees, Toledo explained that the decisions they made involved whether to reject or uphold the decisions made by the judges previously and that the committees could also select cases and individuals whose verdicts they would review. Once they selected these individuals, the individuals would be interviewed, and the committee would deliberate over their verdicts. For regular crimes, the person had to show remorse for them to be pardoned or receive a shorter punishment. In cases of terrorism, the committee would ask if the person felt remorse and if the person renounced their affiliation with the organisation in question. If they expressed remorse and, when required, renounced the organisation in question, the sentence would be reduced, or the verdict would be annulled. If they did not show remorse, the verdict remained as it was.
Toledo then clarified that he was not passing judgment on the work of the committees but merely describing the administrative process. Toledo then continued by addressing the status of the individuals of the committee, stating that according to the Iranian constitution, these were individuals in high positions not only appointed based on competence but directly chosen by the Ayatollah.
When Bodström had conclude his questioning, Judge Lund gave the floor toFormulärets överkant
Judge lLJ the prosecution. The prosecution began its questioning of Toledo by asking him to clarify if he has been involved in the defendant’s defence, for example, together with his Iranian counsels. Toledo then stated that he, to his knowledge, only had direct contact with the Iranian professor (mentioned above) who advises the defendant’s family. He explained that he advises the professors on international criminal law applicable to the case of the defendant and reviews the decisions the professor makes as legal adviser to assist the family.
The prosecution asked whether he was paid for his services. Toledo explained that he did receive payment but was unable to answer questions about the source of the payments apart from the fact that he received the payments from the professor and that he has not asked the professor about the source of the payments.
The prosecution further asked whether Toledo had met the defendant’s family, which confirmed Toledo confirmed that he had. Referring to an article that detailed Toledo’s participation in an academic gathering in 2022, the prosecution asked Toledo to speak more about the gathering. Toledo explained that he was invited to provide a “general analysis of the situation” concerning the case at hand on the basis of a presentation made by the defendant’s family, and to emphasise the importance of the human rights of prisoners and the significance of international criminal law in the future. When asked about the content of his ‘general analysis of the situation’, Toledo stated that he could not recall what it was about. He further explained that the article referred to by the prosecution contained several errors and incorrect information.
Toledo was then asked whether he had made any statements concerning the prosecution’s jurisdiction over the case, which Toledo answered that he had done based on international criminal law. The prosecution also asked whether Toledo had made any statements regarding the defendant’s human rights and his imprisonment to which he answered that he could not recall. Toledo then asked to clarify the fact that he had not met the defendant before the day’s hearing and had never talked to him personally regarding his situation.
The prosecution then asked whether the committees previously mentioned by Toledo, could also convert a time-limited sentence into a death penalty. Toledo responded that he only knew of two cases that had been referred by the committee to a court which subsequently decided on a harsher penalty than before. Both cases had been decided between 1985 and 1989.
The prosecution then asked if Toledo knew the names of the committee’s appointed members. Toledo responded that he had to refer his written material, upon which the Court intervened to explain that he should try to answer from memory and only refer to his notes when he could not remember something. The prosecution then asked the question again so that Toledo could respond without conferring to his notes. Toledo knew that he had just read the names in his notes and that he could thus refer to the names of the members. He then stated the names (which were inaudible to the court reporter).
The Court then gave the floor to plaintiff counsel Hesselberg, who asked Toledo about who the source was of the interview that he had referred to earlier and whether he had spoken with a person who worked at Gohardasht prison in 1988. Toledo answered that he had not done so personally. Hesselberg asked whether Toledo had come across any statistics regarding pardoning cases decided in Gohardasht prison in 1988 or whether he could estimate how many pardons that had been delivered there in 1988, upon which Toledo responded that he did not believe that such documents exist and that he could not provide an estimate of the number of cases.
Plaintiff counsel Lewis then continued by asking Toledo whether he had studied the actual staff hierarchy at Gohardasht in 1988 and asked him to explain this. Toledo responded that he had and referred to what he had stated earlier during his hearing. He repeated that there were three different levels: a prison director, some administrators who were tasked with assigning duties to the guards, and then the guards. Lewis then asked about the dadyar in relation to this structure, to which Toledo stated that even if the dadyar had their office in the prison, they were not part of the prison structure.
Plaintiff counsel Lewis then inquired about who decided about visits at the prison. Toledo stated that according to the law that regulated the prison administration in 1986, the decision was made by the prison director. Lewis asked if this could not be done by the dadyar, to which Toledo responded that the dadyar had other functions related to the execution of the sentence and that prison administration was something entirely different than the dadyar office. Lewis responded that he found this odd and contradictory to what the defendant had stated regarding him being able to make decisions regarding visits.
Lewis continued by asking about whether those who appeared before the pardoning committee, or the death committee had the right to bring a lawyer with them. Toledo responded that, to his knowledge, the procedure before the committee was an interview that the convicted person or the detainee had directly with the committee and that it did not have the character of a trial.
Lewis then questioned Toledo about his sources and expressed that might not be competent to speak about the prison structure in Iran as his sources spoke about a pardoning committee rather than about the prison structure. Toledo responded that he had visited prisons, amongst other in Iran, and that he had served at a mechanism for preventing torture. Lewis tasked whether Toledo was aware that the UN had identified 60 cases of torture and execution, and what his assessment of this was. Toledo responded that he was aware of this but that he did not believe it to be appropriate to evaluate the investigations of UN bodies before the Court. Lewis then concluded his questioning, and the Court gave the floor to the defence to ask some final questions.
Bodström began by asking whether the committee members had the authority to delegate the task of singling out individuals to bring before the committee. Toledo responded that he found that difficult to believe as they worked in a state and structure that was hierarchical, and that it was unlikely for someone subordinate to them to have this mandate. Bodström then concluded his questions by asking whether Toledo spoke Persian to which he answered that he did not. Judge Lund then thanked Eduardo Toledo and concluded the hearing.
Closing of the trial day
Judge Lund moved on to ask whether the prosecution wished to submit as evidence the article that it had referred to during the questioning. The prosecution explained that it did, for the purposes of showing that Eduardo Toledo was not an impartial expert witness. The prosecution then stated that it also wanted to invoke as evidence the video clips that were presented by plaintiff counsel Lewis. The prosecution wished to invoke this in support of the claim that MEK was an armed group with the capability and necessary level of organisation to plan and implement an operation, and that the use of violence and the scale of the violence met the requirements for a non-international armed conflict.
During the next court session, which takes place on 16 October 2023, the prosecution will deliver its’ concluding remarks. The next report, which will be published shortly thereafter, will summarise the content of the closing remarks.