Report 58: Court of Appeal’s verdict

On 19 December 2023, four years and 1 month after the arrest of the defendant and over two years since the indictment was made, the Svea Court of Appeal issued its verdict in the case concerning mass executions of political prisons in Gohardasht prison in Iran in 1988.

The Court of Appeal sentenced the defendant to lifetime in prison for war crimes and 24 accounts of murder.

As such, the Court of Appeal largely upheld the District Court’s verdict with only two modifications relating to the second charge (murder): the defendant was sentenced for 24 accounts of murder (rather than an unspecified number of murders) and the Court dismissed (rather than rejected) Plaintiff 19’s claim for damages since he had not appealed the District Court’s decision to reject his request.

In the following, we will provide a detailed summary of the Court of Appeal’s verdict. The summary is structured like the verdict.

Civil Rights Defenders has monitored the case at hand since the defendant’s arrest on 9 November 2019 and has published trial reports about the case since the indictment against the defendant was issued in July 2021 and throughout the proceedings in Stockholm District Court and Svea Court of Appeal. All trial reports can be found here, and information about the background of the case can be found here.

THE REASONING OF THE COURT

Jurisdiction of the Court

The Court initiated its reasoning by addressing the issue of whether it had jurisdiction over the case at hand, as the defendant had claimed that the Court lacked jurisdiction and had demanded that the indictment be dismissed.

The Court explained that it had universal jurisdiction over war crimes irrespective of whether the crimes were committed within the context of an international armed conflict (IAC) or a non-international armed conflict (NIAC) and that it had the right to exercise such extraterritorial jurisdiction due to the defendant’s presence in Sweden. As regards to its jurisdiction over the crime of murder, the Court explained that Swedish courts may exercise jurisdiction over crimes committed abroad by individuals present in Sweden, especially if the potential penalty is over six months’ imprisonment. The fact that the defendant was only temporarily present in Sweden at the time of his arrest does not change that. The Court of Appeal affirmed that the defendant was in Sweden upon apprehension.

Additionally, Swedish courts have jurisdiction over crimes abroad targeting Swedish citizens or residents. The crucial factor is the victim’s status at the time of the offense, and subsequent changes in citizenship or residency do not affect jurisdiction. In this case, two victims were residents in Sweden at the time of the alleged offenses, which further strengthens the grounds for trying the entire second charge (murder) in a Swedish court.

The defendant’s motion for the indictment to be dismissed

The defendant had claimed that there had been an unfair influence on the investigation material due to the involvement of a biased police officer in the investigation and that this constituted procedural errors. The defendant had also claimed that the case should be dismissed because he was deceived into coming to Sweden in a manner that violates the European Convention of Human Rights. The defendant had further argued that he had limited opportunities to present evidence that could exonerate him, that the prosecution had not to a sufficient extent attempted to gather information from Iran and that the prosecution had opposed the defendant’s request for supplementary investigation. Furthermore, the defendant had claimed that the correctional services have failed in the care of him and that this affected his possibility to partake in his case, and that the extensive publicity that the case garnered had prejudiced his guilt. These claims have been opposed by the prosecution.

The Court began by addressing the issues of possible rights violations, stating that Article 6 of the European Convention may require an effective remedy for addressing violations of the rights found in the article. However, the Court suggested that it is more fitting to let such circumstances influence the penalty determination, either through reduced punishment or leniency, as indicated in case law from the Swedish Supreme Court.

Regarding the issue of bias, the Court concluded that the information about the police officer’s personal connection to the case and his actions did not warrant a dismissal of the case without a substantive examination of the charges.

In contrast to the defendant’s claim, the Court did not consider that the defendant had been tricked to Sweden in a manner that infringed his rights nor that the publicity had affected the trial to such an extent that the case should be dismissed. The Court further explained that the possible effect that the publicity of the case may have had on plaintiffs and victims had been weighed in by the Court when considering the evidentiary value of their testimonies.

In conclusion, the Court did not consider any of the circumstances described above to have hindered the defendant’s ability to mount an effective defense or to have resulted in a violation of the defendant’s rights. Therefore, the Court found no basis for dismissing the case without substantive examination.

The criminal responsibility of the defendant

The first charge – War crimes

The Court began by assessing the first charge according to which the defendant had, in collaboration with others, committed war crimes by causing the death of numerous prisoners associated with MEK.

The Court firstly assessed if the prosecution had succeeded in proving that a significant number of individuals were killed in Gohardasht prison between 30 July-16 August 1988. The Court conquered with the District Court’s conclusion that the testimonies of plaintiffs who had survived the mass executions in Gohardasht prison was the main source of evidence in the case, that the testimonies had high evidentiary value and that some of the testimonies with less robust evidentiary value were supported by written evidence. The Court also concluded, similar to the District Court, that the lists that had been submitted and which contained the names of persons executed in prisons around Iran in 1988, and the dates and place of their execution could not be given a high evidentiary value as the source of the information was unknown. Similar to the District Court, the Court found that it had been established that a significant number of prisoners were executed in Gohardasht during the relevant time period. Concerning the assessment of whether specific individuals had been executed in Gohardasht prison during the relevant time period, the Court reached the same conclusion as the District Court, with the exception of four individuals: the Court did not consider that the prosecution had successfully proven that A1, A30 and A75 had been executed in Gohardasht during the relevant crime period. However, in contrast to the District Court, the Court found that A49 had in fact been executed at Gohardasht prison during the relevant crime period. The Court further summarised its findings considering some persons who it, just like the District Court, found had been executed in Gohardasht prison but for which the Court considered that further explanations from the Court were needed due to objections from the defendant.

Furthermore, the Court addressed whether the element of “severe suffering”, which forms part of the war crime of torture, had been fulfilled and agreed with the conclusion of the District Court that the people present in the death corridor had endured such severe suffering in the form of death anxiety.

The Court then addressed the specific actions that the prosecution claimed that the defendant had conducted.

The Court first and concluded that it agreed with the District Court’s finding that the defendant had been involved in selecting and escorting prisoners to various locations, including to the room where the death committee presided and to the execution site. The Court further concluded that multiple plaintiffs had confirmed that the defendant had overseen the prisoners in the so-called death corridor and that he had directed their movements. As such, the Court found that the prosecution’s claim that the defendant had guarded prisoners in the main corridor (Author’s note: The corridor outside the room in which the so-called death committee presided. Also referred to previously as “the death corridor”.) was confirmed.  

The Court further explained that it shared the District Court’s conclusion that it had not been successfully proven by the prosecution that the defendant had provided the death committee with oral and written information about the prisoners. As such, the defendant could not be held criminally responsible for these actions.

The Court then moved on to assessing whether the defendant had encouraged and ordered others to participate in the executions by assisting him and other individuals, as expressed by the prosecution in the first charge. Similar to the District Court, the Court of Appeal acknowledged the defendant’s actions as described in the witness statements. However, the Court did not consider the actions to fall strictly within the elements of “incitement and ordering”, as expressed in the first charge, and considered the evidence provided to be insufficient to establish that the defendant had such authority. The Court thus concluded that the defendant could not be held criminally responsible for ordering others to participate in the executions.

In essence, the Court concluded that the defendant should be convicted for having organised and participated in executions. This includes selecting prisoners for the so-called death committee, leading them to the main corridor, guarding them, announcing their names for the committee, escorting the prisoners to the committee, announcing their names for execution, ordering prisoners to line up for escort to the execution site, and finally, escorting them to the execution site where they were hanged.

The second charge – Murder

The Court then assessed the second charge, according to which the defendant had committed the crime of murder by performing similar actions as under the first charge but during a second phase of executions targeting prisoners belonging to other political groups than the MEK. The Court began by stating that it concurred with the District Court’s finding that the defendant had selected prisoners to face the death committee and had led them to the main corridor. Regarding the assertion by the prosecution that the defendant had guarded prisoners in the main corridor, the Court, in summary, found it established that the defendant had in fact guarded prisoners in the manner described by the prosecution.

Concerning the claims that the defendant had announced names of prisoners to be taken to the death committee and had subsequently escorted them to the committee during the second wave of executions, the Court concluded that the evidence was not sufficiently robust to establish this element conclusively in regard to the second charge.

In summary, the Court concluded that the defendant should be convicted for organising and participating in executions, as well as participating in carrying out death sentences imposed by the committee. This involved selecting prisoners to face the committee, leading them to the main corridor, and guarding them there.

Definition and actions of the committee

The Court then moved on to the definition of the committee at Gohardasht that has been defined as the death committee by several plaintiff and witnesses, but that the defendant argued was a pardoning committee. The Court concluded that the evidence in the case strongly contradicted the defendant’s claim about the committee’s alleged purpose and mission, since the fact that the prisoners were executed immediately after facing the committee suggested that it was the committee’s decisions that were being implemented.

The Court then proceeded by assessing the question of whether the committee’s review can be equated with a fair legal proceeding. The Court concluded that there was no reason to doubt that the committee did not function as a regular court, and those facing it did not receive legal representation or support, as described by plaintiffs and witnesses. Additionally, there were no opportunities to appeal the committee’s decisions. The Court therefore agreed with the District Court’s assessment that the committee’s review did not meet the fundamental requirements for a fair trial.

Classification of the acts under the first charge – War crimes

The Court proceeded by addressing the armed conflict between Iran and Iraq and began by assessing the question of whether MEK was a part of the international armed conflict between Iran and Iraq and based this on the overall test from Tadić-case, as had been done by the District Court. You can read more on the classification of the conflict in our report of the District Courts verdict here. The Court concluded that it agreed with the District’s Court’s conclusion that MEK had participated in military operations against Iran during 1988 from the territory of Iraq, and that MEK’s military basis in Iraq benefited from Iraq’s support and protection. The Court also agreed with the District Court that MEK had received military support from Iraq in the form of military equipment, and that the fact that MEK might have economically reimbursed Iraq for the equipment did not disprove that MEK is to be considered to have participated on Iraq’s side in the war.

When it came to the question of operational military cooperation between Iraq and MEK, the Court noted that it is unclear to what extent Iraqi forces actively and concretely exerted direct control over MEK during Operation Sunshine. However, the Court considered that the investigation showed a more active involvement from Iraq in Operation Forty Stars and Operation Eternal Light. As for Operation Forty Stars, the Court found it unlikely that Iraqi forces and MEK forces had not cooperated operationally in the attack, as findings showed an involvement of Iraqi infantry and air force. This, the Court concluded, suggested operational influence over MEK from the Iraqi side. The Court similarly found that the investigation strongly supported that Iraqi military provided MEK with concrete operational support during MEK’s advance into Iranian-controlled territory during Operation Eternal Light, including air support and logistical support.

The Court also addressed the question of whether a non-international armed conflict had taken place between Iran and the MEK and stated that the evidence strongly supported that the armed conflict between MEK and Iran, at the time of the alleged offenses, reached the level of a non-international armed conflict due to its duration and intensity. MEK exhibited the level of organisation and structure of an organised armed group, as seen in its leadership structure, access to military equipment, and ability to plan and execute military operations. The Court concluded, however, that this finding was not crucial in this case since the Court had already concluded that Iraq had such overall control over the MEK that MEK was considered to have formed part of the international armed conflict between Iran and Iraq. As such, the Court of Appeal shared the District Court’s conclusion.

The Court then discussed whether there was a sufficient nexus (correlation) between the armed conflict and the executions in Gohardasht prison for the alleged acts to be classified as war crimes.

It noted that the temporal proximity between the executions and the armed conflict constituted a strong indication of a nexus between the executions and the armed conflict. The Court further noted that the Iranian leadership was under immense pressure after an expensive a lengthy war with Iraq, and that MEK had conducted extensive military operations against Iran in June and July 1988. The Court then went on to examine whether a fatwa had been issued by Ayatollah Khomeini prior to the executions. It found that the magnitude and organisation of the executions suggested that they took place upon orders by Ayatollah Khomeini in a decree that was issued in close connection to the executions, as claimed by the prosecution. Despite the ambiguity about the nature of Khomeini’s decree (i.e. whether it was to be considered as a fatwa or a hokm), the Court found it highly unlikely that the executions occurred without the support and an order from the Iranian leadership and that this therefore established a link between the executions and the international armed conflict.

In essence, the Court agreed with the District Court’s conclusion that the executions were connected to the conflict and that the necessary nexus thus was established.

The Court proceeded to discuss whether the elements of the crime under the first charge were fulfilled. Namely, whether the defendant, together or in consultation with other perpetrators, had subjected a large number of prisoners to severe mental anguish by inflicting severe death anxiety, and whether this amounted to torture and inhuman treatment as expressed in Article 75 Protocol 1 to the Geneva Conventions. The Court concluded that the death anxiety experienced by the plaintiffs during the execution period due to their fear of execution, as described by the plaintiffs in their testimonies, and the fact that the plaintiffs faced the committee meant that they had suffered with such an intensity and in a duration which amounted to torture according to Article 75 Protocol 1 to the Geneva Conventions. Furthermore, the Court considered the committee’s treatment of the victims to stem from the victims’ connection to the MEK and thus considered the treatment to have a nexus with the armed conflict. The Court further noted that not only the plaintiffs, but also the executed prisoners, had suffered severe death anxiety.

The Court then went on to examine what protection the executed prisoners in Gohardasht prison were entitled to under the Geneva Conventions.  The Court noted that while Geneva Convention IV does not protect citizens detained by their own state, Protocol I to the Geneva Conventions protects every civilian in an international armed conflict, regardless of their citizenship. Meanwhile, Article 75 Protocol I prohibits murder and torture against protected persons. The convention also stipulates a number of legal safeguards for persons in the hands of a warring party, regardless of their citizenship. While the Court did not expressly say so, it appears that it concluded that the executed prisoners did in fact constitute protected persons.

Classification of the acts under the second charge – Murder  

The Court found that the evidence in the case supported the claim that the 24 individuals named by the prosecution in the second charge were executed as alleged by the prosecution. However, the Court did not consider the evidence sufficient to support the prosecution’s assertion of additional, unspecified individuals being executed. Therefore, the Court concluded the defendant cannot be held responsible for murder concerning anyone other than those individuals named in the indictment. It is also noted by the Court that each deprivation of a person’s life is generally considered a separate criminal act. As such, the defendant is convicted for 24 accounts of murder under the second charge.

Mode of liability – Co-perpetration or aiding and abetting

The Court then addressed whether the actions of the defendant should be considered as co-perpetration or as aiding and abetting. The assessment was based on jurisprudence from Swedish courts, but with the guidance from the Tadić case of the International Criminal Tribunal. The Court noted that war crimes may involve various acts, each of which could constitute separate criminal offenses. However, within the context of a joint criminal enterprise, it is natural to consider the acts as one single crime. This applies even when the crimes encompass diverse acts such as deprivation of life, infliction of bodily harm, or treatment resembling torture. The Court emphasised, however, that when it comes to the crime of murder, it is not possible nor appropriate to categorise a large number of individual cases of murder as a single crime. Instead, each account for murder should stand for itself. This does not preclude, however, that a number of cases of murder may be considered as a joint criminal enterprise when the murders have been committed in a systematic and organised manner.

The Court noted that a joint criminal plan had been carried out in Gohardasht prison. The plan consisted in carrying out executions of a large number of individuals who, in the language of Khomeini’s decree “stand by their hypocrisy in prisons across the country”, in accordance with instructions in the decree. The implementation of the criminal plan required the cooperation between several individuals. The Court particularly noted that the implementation of the criminal plan had been impossible without a coordinated effort by a large number of individuals.

As for the crime under  the first charge (war crimes), the Court concluded that the defendant’s involvement in executing the criminal plan could not be considered as in any way insignificant or peripheral and that even if it had not been proven that the defendant had influence over which individuals would be executed, his involvement was central for the practical implementation and consummation of the joint criminal enterprise. The Court noted that the mere presence of other perpetrators, whose participation appeared even more central, did not alter this fact. It found that the defendant had been very active during the first wave of the mass executions in Gohardasht prison and that his role had been logistical.

The Court further noted that the defendant could be considered to have been more involved in the first wave of executions, but that it found it to have been established that he had a significant role during the second wave of executions as well and that his actions were clearly connected in time and place to the criminal act and plan. During the second wave of mass executions in Gohardasht prison, the criminal plan consisted in executing individuals that were considered as “mohareb” (“waging war against God”). Since the criminal plan during the second wave of executions also encompassed the execution of a large number of individuals, the Court found no reason to deem the defendant’s responsibility any different than under the first charge, even if each murder under the second charge was to be determined as a separate account of murder.  

The Court then addressed the defendant’s intent and awareness of the criminal plans and concluded that the defendant’s position in the prison hierarchy extended beyond being just a guard or prison officer. Instead, it considered him to have held a position as an assistant or aide to the prison’s dadyar and that in this capacity, he must have had a good understanding of the shared criminal plan, which was to implement the Iranian leadership’s decree to kill certain individuals in the country’s prisons. Furthermore, the Court concluded that considering the defendant’s presence in the main corridor, it must have been evident to the defendant that the committee’s review before the executions did not meet the requirements of a fair trial. Moreover, the Court also concluded that it must have been apparent to the defendant that prisoners were executed in close connection with the committee’s decisions and that the executions of prisoners associated with MEK were linked to the armed conflict between Iran and Iraq.

The Court concluded that, through his actions, the defendant had aligned himself with the shared criminal plan, and that his involvement could not be equated with a passive presence at the crime scene. The Court concluded that this applies to both charges, and that the defendant is to be considered as a co-perpetrator to both offenses under the first charge (war crimes) and the second charge (murder).

Grounds for exemption from liability

The Court concluded that the defendant had not acted under duress and that it had not been claimed by the defendant that he was obliged to follow specific orders as a subordinate. The Court noted, however, that even if such obligations existed, Section 8 in Chapter 24 of the Swedish Criminal Code, expressly states that the fact that an act has been committed as a result of an order from a superior, does not absolve the subordinate from liability in cases of serious crimes such as the crimes in question. Therefore, the Court found that there was no ground for exemption from liability for the defendant.

Sentence

The Court sentenced the defendant to lifetime in prison for one case of war crimes and 24 accounts of murder. The war crimes included involvement in a large number of executions and extensive infliction of severe suffering.

Similar to the assessment by the District Court, the Court considered that the large number of executions carried out, and the severe suffering imposed on the prisoners, rendered the acts of the defendant under the first charge to amount to grave war crimes.

The Court of Appeal agreed with the assessment of the District Court that the defendant had committed such serious crimes that there was no room to impose a lighter sentence than life imprisonment, even when considering that the defendant has been in custody for a long time and with restrictions imposed on his contacts with the outside world. The Court further stated that the fact that a considerable amount of time had passed since the crimes were committed did not affect the sentencing to such an extent that there were grounds to choose a different penalty.

Damages

In accordance with Swedish jurisprudence, the Court based its assessment of the damages to be distributed to plaintiffs’ on provisions in Iranian tort law at the time of the crimes (see our report on the District Court’s verdict). The Court reached the same conclusion as the District Court as regards to the size of the damages and to which plaintiffs that were entitled to damages. Furthermore, the Court dismissed Plaintiff 19 request for damages. The District Court had also rejected his request, but the plaintiff had not appealed the decision. As such, the Court of Appeal could not try his request and thus dismissed it.

Deportation

The Court upheld the District Court’s decision to deport the defendant to Iran once he has served his sentence.

Detention

The Court decided that the defendant shall stay in detention until the verdict has become legally binding, which it will become 16 January 2024 if the verdict is not appealed.

Dissenting opinion

One of the judges was of a dissenting opinion regarding the criminal liability of the defendant in relation to the second charge (murder). The judge believed that the evidence was not strong enough to sentence the defendant for murder but that he should instead be sentenced for abetting 24 accounts of murder.

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Concluding remarks by Civil Rights Defenders: What happens now?

The deadline for appealing the Court of Appeal’s verdict to the Supreme Court is 16 January 2024. For a case to be tried by the Supreme Court, the Supreme Court must first issue a review permit. A review permit may only be issued on certain grounds. The Supreme Court should only issue a review permit if it determines that its verdict can create a judicial precedent or if there are extraordinary reasons. Such extraordinary reasons may be that the Court of Appeal has committed a grave procedural error or that the verdict is the result of a grave mistake.

Thomas Bodström, one of the defendant’s counsels, has already told media outlets that the defendant intends to appeal the verdict. Amongst other things, he repeats the claim that a police officer involved in the investigation has been biased.

Over the past year, there has also been discussions in media about the possibility of the defendant being extradited to Iran after a guilty verdict in the Court of Appeal, as part of a prisoner exchange for Swedish citizens that are currently jailed in Iran. At the time of writing this report, the Swedish government has not made any statements which indicate a clear intention to extradite the defendant. If such intentions exist, the government will have to wait until the verdict of the Court of Appeal has become legally binding.

If the verdict is not appealed, it becomes legally binding on 16 January 2024. If the verdict is appealed and the Supreme Court denies the request for a review permit, the verdict becomes legally binding at the time of the Supreme Court’s decision to deny the request. If the Supreme court grants a review permit, the verdict becomes legally binding once the Supreme Court has issued its verdict.