Abdorrahman Boroumand Center

Form drafted by the records office                                                                    General Register No 7/05
On this day, ………                                                                                                      Register No 20/06

Insertion of judgments

No 35305/04 RGNR
No 21046/04 RG GIP

FIRST COURT OF ASSIZES OF ROME
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE

24 November 2006, Rome

THE FIRST COURT OF ASSIZES OF ROME

Composition:
1. Giovanni Muscara, President
2. Giancarlo De Cataldo, Associate judge
3. Patrizia Ferrero, Lay judge
4. Stefano De Mattia, Lay judge
5. Salvatore De Angelis, Lay judge
6. Tullio Parisio, Lay judge
7. Antonio Pietro Cirulli, Lay judge
8. Sandro Pancianeschi, Lay judge

With the Public Prosecutor’s office, represented by
Franco Ionta
and with the assistance of the C1 Registrar: Silvia Iannaco
has issued the following

JUDGMENT

in the criminal case

AGAINST

AMIR MANSUR ASSL BOZORGIAN – place of birth: Tehran, date of birth: 11 July 1958 – order for pre-trial detention in prison No 35303/04 RGNR and No 21046/04 RGGIP of 31 August 2004 – Report of failure to locate an individual of 11 September 2004 – Decree regarding fugitive status No 35305/04 RGNR and 21046/04 RG GIP of 24 September 2004.

FUGITIVE IN CONTEMPT OF COURT

CHARGED UNDER

(A) Articles 110-575 and 577 of the Criminal Code with having, acting in concert with persons currently unidentified, caused the death of Mohammed Hussein Naghdi, who was hit by life-threatening shots from a firearm. Premeditated and planned murder within the context of a campaign to physically eliminate dissidents against the Iranian regime;

(B) Articles 110-61 of the Criminal Code, Article 10-12 of Law No 497 of 14 October 1974 and Article 23 of Law No 110 of 18 April 1975 with having, acting in concert with persons currently unidentified, unlawfully possessed and taken to public places with the aim of committing the crime of murder described in the paragraph above a 7.65 calibre CZ 61 [translator’s note: it appears this should be VZ 61] Skorpion silenced machine gun with its serial number scratched out, appropriately loaded.
(A) and (B) in Rome on and in the days preceding 16 March 1993.

PLAINTIFF CLAIMING DAMAGES

Ahmad Akaramian – place of birth: Tehran (Iran), date of birth: 6 June 1959, resident at: 15 Via delle Egadi, Rome, acting as representative in Italy of the National Council of Resistance of Iran – represented and defended – as per the special power of attorney provided – by Paolo A Sodani, lawyer, with offices at 9 Viale delle Milizie, Rome.

FORMS OF ORDER SOUGHT BY THE PARTIES

Public Prosecutor’s office: imposition of a life sentence on the accused.
Plaintiff claiming damages: conviction of the accused and payment of compensatory damages.
The accused: acquittal of the accused.

FACTS AND LAW.

CONDUCT OF THE PROCEEDINGS.

The present proceedings concern the murder of Iranian citizen Mohamed Hossein Naghdi in Rome on 16 March 1993. The person to be tried for this offence, in absentia, is another Iranian citizen, identified (in the manner specified below) as Amir Mansur Assl Bozorgian.

The considerable length of time taken by the pre-trial inquiry was due, in large part, to the need to have recourse to international letters rogatory in respect of the main witness for the prosecution, another Iranian citizen, Abolghasem Mesbahi, resident in Germany, who gave evidence in the prescribed manner at the German court offices on 27 and 28 March 2006.

The following were joined as plaintiffs claiming damages: Ms Ferminia Moroni, the victim’s widow (who subsequently withdrew), and the National Council of Resistance of Iran, the organisation of those opposed to the regime currently governing Iran in which, Mr Naghdi had been active and had occupied a position of authority until he was killed.

The parties’ conclusions are set out in the records of the hearings of 24 October 2006 and of today’s date.

THE PROSECUTION’S ALLEGATION.

The prosecution submits that the murder of Mr Naghdi should be seen as a political crime ordered in Iranian government circles within the context of a broader plan to disrupt the resistance abroad. Mr Naghdi was therefore attacked because of his specific political commitment in Italy, because of his ability to forge relationships at the highest levels with national political leaders, because of his undisputed human capacities and his impassioned struggle conducted, openly, against a regime of which he had originally been a member. In that context, the execution was, the prosecution claims, ordered by senior political and religious leaders in Tehran, who appointed a group of executioners sent for that purpose to Italy. The prosecution submits that the team was coordinated, on the ground, by the accused Mr Bozorgian, acting as the person in charge on the ground of a logistical and information unit (which was, clearly, secret) reporting directly to our country’s Iranian diplomatic representatives, and specifically to Ambassador Abutalebi. The evidence for those allegations is made up of the depositions by Ms Moroni and by Colonel Scriccia and Major Messina, officials from the Raggruppamento Operativo Speciale [Special Investigative Department] who followed the developments in the investigation, and by a comprehensive and well-structured package of documents and, first and foremost, by the statements by the witness Mr Mesbahi.

DESCRIPTION OF MR NAGHDI. HIS POLITICAL ROLE.

Ms Moroni gave a detailed overview (in the hearing on 30 May 2005) of the personal and political life of the victim. A geologist, and an excellent scholar who was initially an advocate of the revolution that, in 1979, abolished the Shah’s regime and placed Iran in the hands of the men of Shi’ite Muslim spiritual leader Ayatollah Khomeini, Mr Naghdi, who had already been in a romantic relationship with Ms Moroni for some years, was in 1981 appointed chargé d’affaires at the Iranian embassy to the Holy See in Rome. Conflicts with the regime manifested themselves when Mr Naghdi was asked, in practice, to ‘spy’ on opponents of the regime in Italy. Mr Naghdi refused, but he delayed the decision that, according to Ms Moroni, he had already taken to distance himself from the regime, because he had learned that one of his brothers had been arrested in Iran. There was to be no further news of Mr Naghdi’s brother. In March 1982, again following a ‘kidnapping’ (Mr Naghdi was confined within the embassy and subject to a sort of ‘trial’, or in any event to pressure to induce him to collaborate), the situation worsened. Mr Naghdi and Ms Moroni fled their home, took refuge with an old female friend and, a few days later, Mr Naghdi publicly declared his break from the Iranian regime, handing in his passport to the Italian authorities (see the detailed statement of defence produced by the Public Prosecutor’s office at the hearing of 30 May 2005) and travelling to Paris. There, Mr Naghdi contacted Massoud Rajavi and Abolhassan Bani-Sadr. They were two prominent representatives of the Iranian dissident movement (Mr Bani-Sadr, a relative of Ayatollah Khomeini, had been the first president of the Republic, and then made a miraculous escape to Europe – see, in that regard, the statements by Ms Moroni and by Major Messina, made at the hearings of 26 May 2006 and 24 October 2006). In practice, they were the main leaders of the resistance, as well as founders of the National Council of Resistance of Iran, which set out to bring together, in operational form as well as for advice, the various ‘leading lights’ of the dissident movement. Mr Naghdi swiftly became the main representative of the Iranian resistance in Italy, carrying out many political and propaganda activities, adopting personal positions that Ms Moroni defined as ‘secular and democratic’. His work was unanimously appreciated. He was in contact with all the parties across the constitutional spectrum and maintained personal friendships with Professor Ungari and with elected representatives Mr Achilli and Mr Trabacchini (see also Colonel Scriccia, Major Messina, and the extensive documentation produced by the plaintiff claiming damages).

THE THREATS. THE WARNINGS. THE EXECUTION.

Back in 1982, when a Hezbollah group (Libyan militia members loyal to the Iranian regime) had confined him inside the embassy, Mr Naghdi had realised that his break with the regime and his subsequent political activities had exposed him to the risk of attack. Immediately after the decision to leave the embassy, in 1982, therefore, when he and Ms Moroni had just got off a bus, Mr Naghdi was confronted by an Iranian man who said his name was Mehdi Mogaddam. Mr Mogaddam threatened that he would ‘kill him with his own hands’. In spring 1990, in Geneva, Kasem Rajavi, the brother of Massoud Rajavi (the above-mentioned head of the Iranian resistance) was assassinated. Mr Naghdi received a threatening telephone call. Ms Moroni described the event as follows: Mr Naghdi did not inform her of the threats but, after his death, as she was tidying up some notes, she came across a note from her husband. ‘These people who had telephoned’, wrote Mr Naghdi, alluding to a telephone call he had received, ‘had thought they were going to speak to Ferminia Moroni. They were not expecting to hear my voice. They said: I would like to speak with your wife. She is not here. Ah, so it’s you, tell your wife that Imam Khomeini’s fatwa has begun to run its course’. As was explained in the pre-trial inquiry, ‘fatwa’ means a sentence issued by the religious authority, and so the meaning of the message is unambiguous: Mr Naghdi had been condemned to death. Although he did not tell his wife about the telephone call, Mr Naghdi appeared to be understandably preoccupied.

Ms Moroni, who was unaware of the telephone call, thought that her husband’s preoccupation was the result of the killing of Mr Rajavi, a fact that in the circles of the Council of Resistance was interpreted as the sign of a specific strategy to eliminate political opponents. Mr Naghdi asked for and obtained a limited form of protection: his movements were communicated to the law enforcement authorities. But during various journeys he remained ‘exposed’.

Many more ‘silent’ telephone calls followed.

In the days immediately preceding the crime, and specifically on 9 March 1993, one week before it took place, two ‘officials’, as Ms Moroni refers to them, told Mr Naghdi that his security was to be stepped up, as they had received indications to that effect. But nothing concrete happened.

On 13 March, three days before the killing, Ms Moroni and Mr Naghdi were walking on via del Boschetto when they passed two individuals who both appeared to have beards in the typical ‘Hezbollah’ style.

On the morning of 16 March, finally, as an epilogue to an event whose outcome had been so dramatically foretold by a multitude of signs that were difficult to mistake, two masked men on a scooter killed Mr Naghdi, who had been driving in a car to the headquarters of the Council of Resistance.

The weapon used in the crime, a 7.65 calibre CZ 61 [translator’s note: it appears this should be VZ 61] Skorpion silenced machine gun with its serial number scratched out, was found the same day following an anonymous tip-off.

According to Ms Moroni, some time later, an official from the ‘Services’, a certain Mr Gismondi, said to her, in relation to the encounter with the two presumed Hezbollah members on 13 March: 'so two entered'. In other words, two assassins infiltrated Italy to carry out the death mission.

FIRST INVESTIGATIONS.

The above-mentioned written submission by the Public Prosecutor’s office and the statements made by Colonel Scriccia and Major Messina permitted a reconstruction of the first investigation into the murder.

The investigations immediately focused on the enemies of the Iranian resistance and thus on those who could have displayed, in ideology or in practice, adherence to the regime opposed by Mr Naghdi.

Shortly after the killing, in the Non-Catholic Cemetery in Rome, at Mr Naghdi’s tomb, a flyer was found, signed by the pro-government Islamic Association of Iranian Students, which contained, in the view of operatives, an implied claim, of sorts, of responsibility for the crime. A certain Nejad Alireza Yazdi was suspected of having put the flyer there, while other persons were indicted for conspiracy to commit murder, both on the basis of the investigations and because of identifications by Ms Moroni. They included a certain Hamid Parandeh, who was very similar to the identikit sketch produced on the basis of statements by Mr Naghdi’s driver, eye-witness to the crime (see the above-mentioned written submission by the Public Prosecutor’s office), who was also identified by Ms Moroni as one of the two individuals who seemed to be Hezbollah members that she had encountered, together with his companion, three days before the crime. The investigation into Mr Parandeh was, however, archived, since he was protected by diplomatic immunity.

In the judgment of 25 September 1996, the Giudice d’Indagine Preliminare (judge for the preliminary hearing) acquitted all the suspects in full, since the evidence against them had been found to be weak (for the grounds, see the written submission by the Public Prosecutor’s office, pp. 9 and following).

SUBSEQUENT DEVELOPMENTS. THE ‘MYKONOS’ CASE. IDENTIFICATION OF THE WITNESS MR MESBAHI.

In the interim, other court authorities, particularly in France, Austria and Germany, had launched proceedings against the perpetrators and instigators of politically motivated murders, gathering items of evidence against senior officials of the Iranian regime, and building a picture of a far-reaching plan to exterminate the regime’s political opponents.

Specifically, attention was focused on two acts of bloodshed. The first, which took place on 13 July 1989 in Vienna, consisted of the killing of three members of the Kurdistan Democratic Party of Iran (KDP-I), and the second took place on 17 September 1992 in Berlin when, inside the Mykonos restaurant, an armed commando team had killed Sadegh Sharafkandi, head of the above-mentioned KDP-I, and three of his men, who had been engaged in delicate negotiations with Iranian envoys on the Kurdish issue.

By its judgment of 10 April 1997 (entered into the record of this case in its Italian translation pursuant to Article 234 of the Code of Criminal Procedure), the Criminal Court of Berlin sentenced Kazem Darabi, an Iranian, and three Lebanese members of Hezbollah as the planners and perpetrators of the murder, which formed part of the above-mentioned strategy to eliminate political adversaries conducted by the Iranian regime.

As part of the latter proceedings, the statements by Abolghasem Mesbahi were of particular evidentiary value. In outlining the political and criminal background to the Mykonos crime, Mr Mesbahi let slip the fact that he knew of other criminal incidents that could be traced back to the same strategy.

DESCRIPTION OF MR MESBAHI AND HIS ROLE. INTRODUCTION.

In the course of the proceedings concerning the Mykonos crime, and subsequently as part of the interviews under letters rogatory relating to these proceedings, Mr Mesbahi has stated that, like Mr Naghdi, he was initially a backer of the Khomeini revolution. A ‘Koranic’ judge, and then a notable member of VEVAK (officially the Ministry of Information, but in fact the secret service, which was established, at the instigation of Ayatollah Khomeini, in 1985), he declared that he had held important positions in the security services, first as head of operations in France and then, after he was expelled from that country (in 1983), as an ‘advisor’ (but in fact also an operative) to the highest offices of the regime. Related, by his sister’s marriage, to the Khomeini family, even after he fell from grace (in 1988), because of his ‘doveish’ attitude, opposed to the ‘hawks’ of the regime, and after a short period of detention, he retained his reputation, freedom of movement and, above all, access to privileged sources of information. It was only in 1996, when he learned that he had been included in a list of banned persons, that he decided to flee, breaking all links with the regime and developing good relations with Abolhassan Bani-Sadr (head, together with Massoud Rajavi, of the resistance abroad). Before examining the credibility of Mr Mesbahi (who is not just one of the sources of the indictment, but is in fact ‘the’ source of the indictment par excellence in the present proceedings), it will be useful to review the statements given by him, on various occasions, concerning the murder of Mr Naghdi. It should be noted that, following the letters rogatory implemented by this Court on 27 and 28 March 2006, the statements previously made by the witness were entered into the record, with the agreement of all the parties.

STATEMENTS BY MR MESBAHI.

International letters rogatory of 23 September 1997 (in the ‘yellow’ file of miscellaneous documents).

• The elimination of Mr Naghdi was ordered in 1984 by a ‘revolutionary court’ that condemned him to death as an apostate and traitor following his move to the resistance;
• Hamidreza Abutalebi, Iranian ambassador in Rome, from Pasdaran, the ‘revolutionary guard’, a select paramilitary body of those known to be loyal to Khomeini, had ‘made a promise to himself to kill Mr Naghdi, whom he knew personally’;
• he had made that decision even though formally he was not head of the intelligence services in Italy (in other words, the agent responsible for gathering data), ‘a description that more aptly fitted Mr Bozorgian’;
• the intention was to eliminate Mr Naghdi, possibly by attacking him alone, without a broader action plan, and possibly without involving any other people’;
• a ‘mole’ in the Italian resistance passed on to the Iranian intelligence service, four or five months before the crime, all the information needed to build a detailed picture of the designated victim’s habits;
• Mr Mesbahi had learned these details from a certain Mr Yadzi, who boasted about the action, and from Mr Ali Reza Bonakdar, the director-general of VEVAK, who had previously told him that Mr Yadzi had been involved in the killing of Mr Naghdi;
• two other members of VEVAK, Hassan Pourzamani and Hadavi Moghaddam, were aware of the event, but the witness did not know whether this was because they had taken part in it or through indirect knowledge;
• the person who procured the entry visas for members of the group was the Iranian Minister for Postal Services, Mr Sheikhattar;
• concerning the details of the crime, it was presumed to have been carried out by a hitman on foot armed with a pistol, perhaps a Beretta, calibre 7.65; the weapon was presumably then taken into the possession of Mr Bozorgian;
• he was not aware of the names of the other participants (apart from Mr Yadzi);
• he did not know who was in charge on the ground of the operation as a whole, ‘I can only say that
• Mr Yadzi was head of the operational group of the forces working on the ground’;
• he did not know whether, apart from Mr Abutalebi and Mr Bozorgian, other diplomats were involved;
• he knew Mr Parandeh, a man from VEVAK (editor’s note: the diplomat suspected in the first inquiry, investigation of whom was archived because he has diplomatic immunity).

Letters rogatory of 3 March 1998.

In the course of the questioning under these letters rogatory, the witness recognised individuals in certain photographs, but was not shown a picture of Mr Bozorgian, as the investigators were not yet in possession of such an image.

Letters rogatory of 24 July 2003.

• The sentence against Mr Naghdi was issued in 1984 by a court presided over by Judge Reyshari, who subsequently became Minister of VEVAK, and Hamid Senobari, known as Professor Hamid, was the prosecutor;
• in that regard, the witness stated that he had read a ‘report’ that had come from the government;
• Mr Abutalebi, ambassador in Italy, did, as stated in the previous questioning under letters rogatory, have a personal interest in killing Mr Naghdi (because of the professional advantages that might result from it and because of the fact that he had previously known the victim, which made him particularly capable of putting the plan into action), but he was always acting within the framework of instructions received from higher up;
• the methods adopted in the decision to eliminate Mr Naghdi reflected a ‘standard’ procedure, applied in other similar ‘operations’;
• only a small circle of powerful individuals was aware of operations of this kind;
• the sentence issued against Mr Naghdi was confirmed by the highest spiritual authority, Ayatollah Khomeini, Leader of the Revolution;
• in other words, this was a ‘fatwa’, in the sense described above of a sentence/order of execution with a political/religious basis;
• the operation had a code name (which the witness did not remember), and before proceeding with the operational phase Mr Abutalebi was to ask for the green light from Tehran;
• Mr Bozorgian was the head of the intelligence service in Rome, while only Mr Abutalebi could give ‘operational’ orders. Reason: intelligence operatives must live in the country hosting them, and cannot ‘get their hands dirty’, except in exceptional cases, with operational tasks;
• Mr Bozorgian, whose first name the witness did not fully remember (he thought he might be called Mohammad) had been an operative in Vienna in previous years;
• the witness knew Mr Bozorgian personally because he had met him twice in 1986/87 (and described him);
• when he was shown a photograph of Mr Bozorgian (which had in the interim been sent, as a photocopy, to the Italian authorities by the Austrian authorities – see below), the witness, Mr Mesbahi, stated: ‘this could be Mr Bozorgian. But I must say that when I saw him, he had more hair. The photograph shown to me must therefore have been taken perhaps some years later. Actually I am sure that the man shown is Mr Bozorgian. It’s only the missing hair that makes me doubtful’;
• Mr Bozorgian was involved in the Vienna attack in a cover role for the perpetrators;
• in Rome, however, Mr Bozorgian was ‘head of the operation on the ground, namely he was the commander on the ground; in other words, he commanded the small team that directly carried out the operation’;
• there was a ‘mole’ among the Mujaheddin of the People (a faction of the Council of Resistance) of Rome. That information also follows from the report, referred to above, which was supposedly shown to the witness by Minister Eslami, who was his friend, and was later assassinated. That happened at a time when he (Mr Mesbahi) was no longer part of VEVAK: however, his membership of the intimate circle of the Khomeini family, the prestige deriving from his services to the Revolution and the dense network of relationships that he had developed during the time when he was an operative also allowed him access to such confidential sources;
• the members of the commando team arrived separately in Rome, under documents that were not Iranian;
• Mr Abutalebi coordinated operations from Tehran, probably by telephone;
• Mr Bozorgian had met the members of the team outside Italy and then met them again in clandestine premises, in Rome, prior to the action. From the above-mentioned report that had been shown to him by Mr Eslami, the witness stated that he had learnt that, prior to the action, either Mr Abutalebi or Mr Bozorgian, and in any case one of the two, had left Italy using their real documents, so as not to be present at the time of the murder, and then re-entered on false papers;
• when challenged on this point (he had just said that Mr Abutalebi was in Tehran coordinating the operations by telephone) he denied that there was any contradiction, and explained that a distinction had to be drawn between making preparations for the action and carrying it out. Mr Abutalebi could well have been in Tehran making preparations, and in Rome at the time of the execution. Mr Bozorgian, moreover, could also have been in Rome at the time of the execution;
• Mr Bozorgian used an alias – ‘Elias’ – and another name that the witness did not know;
• while the decision to eliminate Mr Naghdi was decreed by the fatwa, implementing it was the task of a Committee for Special Missions, which had in this case entrusted the Minister of VEVAK, Mr Fallahijan, with ensuring it was carried out. He in turn had delegated the task to Mr Abutalebi. In turn, Mr Abutalebi usually relied on two people, in this case Mr Bozorgian and Mr Yadzi. This was confirmed by the witness, who denied the apparent contradiction with his previous statements in which he had indicated that Mr Yadzi (or Yazdi: the identity of this individual, within the limits specified by the witness, is certain, while in the interviews under letters rogatory he is sometimes referred to as ‘Yadzi’ and sometimes as ‘Yazdi) was both the perpetrator of the murder and the operational head on the ground:
• Mr Yadzi was in charge of the ‘military’ aspect, while Mr Bozorgian dealt with the logistics, namely: acquiring information, procuring accommodation, documents and weapons;
• Mr Bozorgian was not in direct contact with the ‘mole’;
• Mr Yadzi and the witness had met in 1982, then in 1985, during shooting practice, and finally in 1990;
• at this point, the witness was challenged on why he had said, previously, that it was Mr Yadzi himself, together with Mr Bonakdar, who had spoken to him, in 1994 or 1995, about the details of the Naghdi crime. To that, Mr Mesbahi answered: ‘Yes, you are right. On hearing the name ‘Bonakdar’, I remember that he, Mr Yadzi and a certain Mr Esfandiari were once in my house and that it was at that time that he spoke to me about the attack. That happened in 1993 or 1994’;
• Mr Mesbahi then described Mr Yadzi, and stated that Yadzi is ‘a ministerial name’, owing to the fact that the individual concerned speaks the Yazdi dialect (editor’s note: in Italian, we would say the Calabrian, or the Tuscan);
• when further challenged, again regarding the statements he had previously made in 1997, the witness, admitting that perhaps, at the time, he had mis-spoken, stated that there had been two meetings with Mr Yadzi and with his other sources, one in his house, and the other, subsequently, at the premises of an Iranian firm;
• Mr Mesbahi then confirmed that he had received information from the two other sources mentioned in the interviews under the previous letters rogatory, specifically from Hadavi Mogaddam and from Hassan Pourzamani, other members of  VEVAK or of bodies in any event engaged in the ‘active’ defence of the Tehran regime. He then added that Mr Pourzamani had operated in Switzerland and Mr Mogaddam in Germany, and that the latter had been involved in the preparatory stage of the attack on the Mykonos restaurant;
• he knew Mehdi Mogaddam (alleged author of the threats against Mr Naghdi in 1982, according to the account by Ms Moroni), and he knew that Mehdi Mogaddam had lived in Italy, having moved there ‘for personal reasons’. He identified Mehdi Mogaddam and other subjects from photographs;
• he confirmed he had received information on the Rome crime from several sources and that all the descriptions of the event had been ‘broadly similar’;
• with regard, finally, to the finding of the weapon following an anonymous tip-off, he observed, although he had not previously heard of this circumstance, that this could have been a clever move by the authors of the crime to avoid searches of potential suspects; similarly, in his view the flyer claiming responsibility by Iranian students could be read as a signal intended to make a wide range of addressees aware of the background to the crime.

Letters rogatory of 27-28 March 2006.

• Having referred first to his life story, and having hinted at the alleged responsibility of the Iranian regime for the attack of 11 September 2001 on the Twin Towers in New York, Mr Mesbahi went back again to the killing of Mr Naghdi;
• that crime should, he said, be seen in the context  of a set of operations conducted by the Tehran regime against the leaders of the resistance abroad;
• every operation was given a code name;
• various institutions could ask for, and obtain, a fatwa against one or more opponents of the government: VEVAK (the Ministry of Information, namely the Secret Service), the Prosecutor’s Office of the Revolutionary Republic, the Military Prosecutor’s Office, the Special Clerical Court and the Public Prosecutor’s Office;
• in the period between 1989 and 1997 the supreme coordinator of activities of this type was Minister Fallahijan;
• a fatwa had been issued against Mr Naghdi following his departure from his previous support of the regime;
• the operational unit of the Ministry of Information, namely the agents of VEVAK, had the task of ‘recovering’, Mr Naghdi, persuading him to withdraw from the Resistance or, if that strategy failed, of eliminating him;
• Mr Naghdi refused any attempt to convert him, and so in 1990 or 1991 the decision was taken to kill him and to that end a fatwa was pronounced;
• the decision-making process in respect of the fatwa was conducted without any regard to forms of legality; no formal court was constituted, but nonetheless Hamid Senobari, Professor Hamid, upheld, so to speak, the ‘indictment’, while the ‘judge’ (with a certain degree of uncertainty) is thought to be named Hosseini;
• the fatwa, decreed by Ayatollah Khamenei (the successor of Ayatollah Khomeini at Iran’s helm) was forwarded to the Committee for Special Functions, which appointed Minister Fallahijan, referred to several times above, to carry it out;
• Minister Fallahijan’ s first move consisted of gathering information. To that end, Minister Fallahijan used informants from the Iranian Embassy, the students’ association and also ‘informants from cultural institutions’, all of which were operational and at the disposal of governmental activities;
• in that regard, the murder of Mr Naghdi was not dissimilar from all the other similar ‘political terrorism’ operations;
• more specifically, Mr Mesbahi stated: ‘I learned from my contacts with the Ministry of Information that a death sentence had been issued against Mr Naghdi as well. Before the order was carried out, all I knew was that it had been issued. After the order had been carried out, I was interested to know which groups had participated in the execution (…) whether it was a group of Sepah Pasdaran or from the Ministry of Information (editor’s note: Iranians) or Lebanese. The whole logistical operation was taken care of by a team from the Ministry of Information (editor’s note: VEVAK). The team was made up of ‘young’ Revolutionary Guards and members of Hezbollah, who were Lebanese. They were called the operational team. Teams like that are made up of seven people. I can’t be more precise. I know that the head of the group had an alias, which was Khalil. I don’t know the other members. They are normally unknown people. For this group everything had been planned in advance by the relevant section in the Ministry of Information. There they got hold of a current photo of Mr Naghdi and any security measures. For example, they got hold of a motorbike or weapons, and they obtained passports and visas from the Committee for Special Functions;
• the team entered Italy and then left again. I don’t know any specific facts about the operation, but usually they enter under false names, between a week to two days prior to the operation;
• I don’t know the name of the person who fired the shot. Probably only Khalil knows who it was. I know, through information, that Mr Naghdi must have been assassinated by a shot to the head;
• I don’t know any other information about participation by Mr Bozorgian in the execution group.’
• At this point, Mr Mesbahi, the witness, was challenged in terms of his previous statements: on Mr Yazdi being the actual executioner and on the role of Mr Bozorgian. Mr Mesbahi stated: ‘I understood the question about Mr Bozorgian only in relation to his actual participation in the crime. I won’t go over that again. About Mr Yazdi, I can remember some things again. When I went further into the issue, I learned from the Ministry that this Mr Yazdi had an important position there, and that he was highly praised. It is true, I learned that directly from Director General Alì Reza Bonakdar. (…) Yes, now it comes back to me that I met Mr Yazdi and that I spoke about the crime. He said to me ‘yes, we have hit him’ (…);
• the entry cards, continued Mr Mesbahi, thus echoing his previous statements, were provided by Mr Sheikhattar, Minister for Postal Services, who had previously been the author of similar forgeries for the perpetrators of the killing of Mr Bakhtiar (editor’s note: this refers to the former Prime Minister Bakhtiar, killed in France in 1990);
• Mr Sheikhattar was, in turn, a source for Mr Mesbahi regarding the killing of Mr Naghdi. The exchange of information took place during a meeting in 1994, in Mr Sheikhattar’s office, whom the People’s Mujaheddin (editor’s note: namely, members of the Resistance) had condemned to death precisely because of the role he had played in the killing of Mr Naghdi;
• the code name of the operation that led to the killing of Mr Naghdi (a name which in the preceding interviews Mr Mesbahi did not remember) was Marg bar Monafegh, which means ‘Death to the Hypocrite’. This detail was revealed by Mr Yazdi in the document in which he claimed responsibility for the attack;
• Mr Mesbahi met Mr Bozorgian both in Vienna and in Tehran, in 1986/87. In Vienna, the witness ‘presumed’, since he did not have direct knowledge of the fact, that Mr Bozorgian was a ‘local agent’ of the Iranian secret service;
• Mr Mesbahi was then shown photographs which the witness, given the long period that had elapsed in the interim, was unable to fully focus on;
• in one of the photos (editor’s note: photo number 1, attached to the case file, which had been shown to him in the questioning under the previous letters rogatory), the witness seemed to recognise Mr Bozorgian. He said: ‘in photo exhibit 1 it could be Mr Bozorgian. Given the circumstances mentioned (editor’s note: that is, the long period of that had elapsed in the interim ), I reserve the right to not give an identification’;
• at the time of the attack on Mr Naghdi, however, Mr Bozorgian was head of the secret service bureau in Italy;
• after the entry into Italy of Khalil’s commando team, ‘Mr Bozorgian took on the position of leader of the group, in other words he became the coordinator of the planned attack. He was informed from guard posts on Mr Naghdi’s section of the street, and he passed this on to Khalil. This happened just before Mr Naghdi reached the crossing where the attack was carried out. Just before, Mr Bozorgian notified Khalil and he gave the order to kill Mr Naghdi. I received this information from various people, for example from Mr Yazdi. After all this time it’s difficult for me to associate these people’;
• at this point, the German judge who was conducting the interview, having identified the clear discrepancies between the account of the murder (and of the sources of information) between the different interviews, expressly asked Mr Mesbahi: ‘are you certain that this was how things went, and how sure are you that there might not be some confusion with another attack?’;
• Mr Mesbahi answered: ‘once the name ‘Yazdi’ was mentioned, the entire sequence of events came back into my mind. I am sure that I was informed of the facts as I am now describing them. I am so certain that I would be willing to swear to it’;
• as for the role of Mr Bozorgian, in short ‘he was the only person on the ground who could decide whether the attack should take place or not. He was the only person who could have cancelled the operation’;
• Mr Mesbahi was then asked if he had ever heard the name of Gharfour Darjazi (see below) stated in relation to that of Mr Bozorgian. The witness replied that this was a frequently heard name, that he remembered it associated with an individual with whom he had had a telephone conversation before 1985, when VEVAK did not yet exist. Today this Mr Darjazi is apparently part of Sepah Pasdaran’s ‘Division 2000’, which is the division of VEVAK that deals with foreign issues. He was not aware of the fact that this Mr Darjazi might be the head of the secret service office in Iranian television or radio;
• he confirmed the existence of a ‘mole’ in the Iranian Resistance, the ‘mole’ active in the murder of Mr Naghdi;
• the defence asked him if he had known from direct sources of the role of Mr Bozorgian in the murder, or if this had been a reconstruction after the facts. Mr Mesbahi replied: ‘if as a witness I declare that a specific person carried out a specific function, that is based on precise information. I have already made it clear when I say that one person was active in performing certain tasks’;
• therefore, the role of Mr Bozorgian in the murder does not derive from the mere fact of the tasks he performed in Rome, but the witness knew this with certainty from someone; 
• moreover, it was ‘unusual’ for the head of the secret services bureau to take on such a task on the ground, but ‘in this case that’s how it was’;
• Mr Bozorgian was the head of the Italian bureau, but he did not necessarily have to live in Rome;
• at the time of the event, however, he was in Rome, and probably inside the embassy;
• Ambassador Abutalebi was told of the decision to kill Mr Naghdi, ‘as a member of Pasdaran’;
• the witness did not know whether ‘Bozorgian’ was his real name or a ‘ministerial’ name. The individual that he had known, and indicated, introduced himself by the name ‘Bozorgian’. All those who were in contact with him in Rome knew him as ‘Bozorgian’;
• ‘Yazdi’ was ‘part of a ministerial name’, which the witness tried to remember in full (but did not succeed in doing in the course of the interview);
• it is true that, after 1988, the date of his arrest, Mr Mesbahi had not worked for his country’s secret services. But ‘I was, because I had belonged from the start to the innermost circle of the Islamic Revolution, a person who was trusted by the political leaders and the secret service. That is not unusual’;
• at this point, it was pointed out to Mr Mesbahi that, previously, the name of ‘Khalil’ as head of the ‘operational team’ responsible for the murder of Mr Naghdi had not been stated. The witness affirmed that Khalil’s team had been used in various operations, and added ‘when I heard the name ‘Yazdi’, it suddenly sparked a memory that Khalil’s team was also active in the operation. When Jost (editor’s note: the German Public Prosecutor), said the name’ Yazdi’ in relation to the case, I was even more certain that at that time there had been contact between Mr Yazdi and Khalil, and that Mr Yazdi belonged to Khalil’s team’;
• the ‘source’ of the information on Khalil was Hossein Tehrani, Vice-Minister for Information, whom he had often met;
• regarding the methods used in the attack, ‘it could be the case that I learned from the press’ some details (whether the killer was on foot, for example), and so the witness may not be able to give valid evidence on that point;
• Mr Mesbahi was sure that there were only Iranians in Khalil’s team (no other non-Iranian name is known’);
• he did not know anyone by the name ‘Parandeh’;

THE IDENTIFICATION OF MR BOZORGIAN.

The first, and most meaningful, question raised by the statements by Mr Mesbahi, and all the documents in the case, is the need for a full identification of the defendant Mr Bozorgian.

His name was first mentioned by Mr Mesbahi in relation to the killing of Mr Naghdi in the 1997 interview, and since that time he has indicated that Mr Bozorgian was the ‘logistical’ and ‘intelligence head of the Rome station, and therefore a prominent individual in the services faithful to the Iranian regime.

But it not until the 2003 interview that the witness was shown a photo of Mr Bozorgian whom he, after some initial confusion, recognised.

In the interim, the following facts had been ascertained:

• in Vienna, on 13 July 1989, in an apartment in Link Bahngasse, secret negotiations had been conducted between emissaries of the Iranian government and representatives of DKP-I, the Kurdistan Democratic Party, seeking to establish an autonomous province of Iranian Kurdistan;
• at the end of the meeting, which had been preceded by another meeting a few days earlier, armed men had burst into the apartment, killing Ghassemlou Abdulrahman, Secretary General of the DKP-I, and his colleagues present there;
• as part of the investigations carried out after the massacre, Iranian citizen Amir Mansur Assl Bozorgian was arrested. His date of birth was 11 July 1958, and his place of birth was Tehran. He was alleged to be ‘in charge of security issues’;
• in the following days, Mr Bozorgian, who had been identified and photographed, was released, and went missing;
• an international arrest warrant was issued against him at a late stage (in compliance with the legislation of that country) by the Court of Vienna (arrest warrant dated 19 December 1989, in the exhibits attached to the hearing of 28 November 2005).

The facts set out above, taken from the above-mentioned written submission by the Public Prosecutor’s office and from the depositions by Colonel Scriccia and Major Messina, should be included in the documentation obtained at the request of the plaintiff claiming damages, in relation to the uproar caused by the Vienna crime and the subsequent implications. In brief, there remains no convincing explanation for why the Austrian authorities initially stopped and identified Mr Bozorgian, and then released him, and then imposed on him a restraining order to which no effect has, as of the present, been given.

In 2003, after the interviews of 1997 and 1998, but before the interview of July 2003, the Austrian authorities (see the deposition by Major Messina) sent the Italian operatives a photocopy of a photograph of Mr Bozorgian (and not the original requested, as explained by Major Messina, a witness). That photocopy was then shown to Mr Mesbahi both in 2003 and in the interview of March 2006, and was recognised as set out above.

In the interview of 2006, the witness was asked whether Mr Bozorgian could be the same person as Gharfour Darjazi, to which he responded in the negative. That name – known to the requesting office at the time of the interview – was alleged to be the alias – or the real name of Mr Bozorgian – according to information that had filtered through from Iran in the following way: a journalist who had fled Iran contacted Mr Bani-Sadr, the above-mentioned leading member of the Resistance, saying that he was prepared to make statements about the Vienna crime. According to him, Mr Bozorgian was the same person as Gharfour Darjazi, the current (at that time) head of the security services of Iranian radio and television. The information from Mr Bani-Sadr was communicated to Ms Ferminia Moroni, firstly through Ms Moroni, and then by means of the confirmation of a letter sent by Mr Bani-Sadr to this Court. The requesting office, as has been stated, was already in possession of that knowledge prior to the Court: a trace of the possible origin of that information is found in the above-mentioned written submission by the Public Prosecutor’s office (on page 7, in the footnote). It appears in the section stating that an Iranian named Rad Amir Bozorgian (thus a name different from, although similar to, that of the defendant), born in Tehran on 11 July 1958 (the same date and year and the same place as the defendant) apparently transited via Canada in 2003. That Mr Bozorgian stated, at the border, that he was ‘deputy director general of IRIB Iran Broadcasting’, namely the top manager of Iranian  radio and television. The Court rejected the request for a hearing of the Iranian journalist who would have been able, he claimed, to give a full identification of Mr Bozorgian because he (who had in fact asked to be heard under conditions of guaranteed anonymity) would not have been able to give any useful information regarding the murder of Mr Naghdi (through his own express admission), and because any confirmation of an alias would not have brought altered the evidentiary framework concerning the core point at issue: whether, that is, it should be considered proven that a natural person corresponding to the characteristics of the defendant in this case actually exists.

In the light of the elements considered so far, it may therefore be concluded that the defendant in the present proceedings has been fully identified. He is an individual who, at some points in his life, took the name of Amir Mansur Assl Bozorgian, and it is of no relevance whether that is his true identity or a ‘ministerial’ name. He was identified and photographed by the Austrian police in July 1989, during investigations concerning the murder of representatives of the Kurdistan Democratic Party. There is an outstanding international arrest warrant against him issued by the Austrian authorities. The same individual, under the identity of Amir Mansur Assl Bozorgian, has been, on at least two occasions, physically seen and recognised by the witness Mr Mesbahi. The name ‘Bozorgian’ was mentioned by Mr Mesbahi in the first interview (1997) at a time when the Italian investigators did not even know of the name’s existence. Mr Mesbahi recognised in the photograph the person known to him as Mr Bozorgian. Once the existence of the individual known as ‘Bozorgian’ has been ascertained, any alternative identities are of no relevance (see, inter alia, Division I of the Court of Cassation No 10150 of 10 October 1997, Est. Silvestri).

CREDIBILITY AND RELIABILITY OF MR MESBAHI.

As the witness is the main, if not only, source for the prosecution in this case, the credibility or reliability of Mr Mesbahi is of central importance for the purposes of the decision.

As already mentioned, Mr Mesbahi appeared on the stage as witness in the proceedings, heard before the German authority, concerning the quadruple murder in 1992 in the Mykonos restaurant in Berlin.

The German court, while observing that the autobiographical information provided by Mr Mesbahi had remained, largely, without any confirmation by third-party sources (clearly, because of his status as a refugee critical of the Iranian regime it was unthinkable that the Iranian government would provide certifications of any kind regarding the role allegedly played by the witness within State institutions: when he began to speak out, the Tehran government sought to demolish the credibility of Mr Mesbahi – see below), in those proceedings Mr Mesbahi was considered to have a high level of credibility. That fact, in itself, does not constitute evidence of the witness’s credibility, since it was the view of another authority in proceedings concerning completely different events. Nor can we overlook the limits of the probative value, in these proceedings, of an act (the Berlin Court's judgment) deemed, pursuant to Article 234 of the Code of Criminal Procedure, to be an assertion of a chain of historical facts: the existence of a trial against Iranians and Lebanese for a crime committed in Berlin, its outcome, and Mr Mesbahi's role as a witness. Nevertheless, useful conclusions may also be drawn from the judgment. During the proceedings, a dossier from the Iranian government was forwarded to the German court, containing accusations against Mr Mesbahi. These claimed that he had never worked in Iranian espionage, and that he had been dismissed for unspecified financial offences. The German court disregarded the statements provided by Iran. At times they did so on the basis of arguments deriving from police reports that corroborated Mr Mesbahi's role and tasks in Iranian espionage, and at others they relied on documentary evidence that, according to the German court, confirmed the existence of a close link between Mr Mesbahi and ‘his’ government, contradicting the latter's attempts to minimise it. Subject to all the reservations set out above, the historical account that emerges is therefore that the German court believed Mr Mesbahi.

A similar argument applies in relation to the witness’s reliability, and thus in relation to the quality of the information provided and the accompanying evidence. Again according to the German court, Mr Mesbahi provided ‘useful details concerning the decision-making processes in the pursuit and elimination of politically undesirable persons and on the tasks of Iranian representations abroad and other institutions, as well as Iran's relations with Hezbollah’. The German judgment emphasises Mr Mesbahi’s constant use of sources of information inside the regime, with which he maintained constant contact even after his apparent ‘fall from grace’, and his capacity to distinguish between facts that he had learned of personally and deductions, and his open and sincere admission of his ignorance regarding the operational details of the death missions decreed by the regime against its opponents: ‘the witness acknowledged openly and without hesitation when on particular issues he knew nothing more’. The statements by Mr Mesbahi, in short, were valued because of the witness’s ability to frame individual criminal episodes within the broader context of a political/terrorist strategy, and confirmed that details of individual operations were either relayed to him by others or were not known to him. In fact, the statements by Mr Mesbahi were useful to the German court in connecting the quadruple murder in the Mykonos restaurant to the policy of exterminating opponents, ascribed, in that court, to resolutions adopted by Iranian government circles. However, for the identification, during the investigation stage, of the perpetrators of the attack, the court relied on ‘confidential sources’ of the German secret services, and the convictions were delivered following a complicated investigation accompanied by robust scientific evidence and corroborated by partial confessions by some of the perpetrators. In other words, the statements by Mr Mesbahi were neither the only nor even the main source of evidence in the Berlin trial, but were complementary to other evidence obtained from elsewhere. Finally, they did not relate specifically to the facts themselves, but to how they fitted into the broader picture.

As may be seen from the previous comments on the Mykonos trial, Mr Mesbahi is therefore seen as a credible witness because of his long-standing activism in the apparatus of government and his knowledge of State secrets, deriving from the prestige he had acquired in the Khomeinist revolutionary circles from the very beginning. He is also seen as reliable, because of his familiarity with the decision-making mechanisms within the Iranian regime's chain of command, and because of the ease with which he was able to gain access to information, including that of a confidential nature. Thus, the German courts found Mr Mesbahi to be credible and reliable, with reference to the statements he made regarding the political and ideological context in which the decision was taken to commit a series of attacks on the regime’s opponents. With regard to the Mykonos crime, however, the German courts recognise the limitations of the statements by Mr Mesbahi and, in coming to the view regarding liability, they rely on further evidentiary findings, since his revelations are not a sufficient basis for a convincing judgment of liability. In the final analysis, another historical fact may be seen as proven by the Mykonos judgment: namely, that in the proceedings the statements by Mr Mesbahi were used, almost exclusively, to draw a picture of the political and ideological context in which the attack came into existence, while the statements (which in that case were second-hand declarations) only contributed, together with other, more significant elements, to determining the trial court’s view as to the dynamics of the specific event and the responsibilities of the perpetrators and participants within it.

The situation that arose at the end of the pre-trial inquiry in the present proceedings is, in certain aspects, similar, and in other aspects very different from the situation the German courts had to deal with. The position of the witness Mr Mesbahi is similar, and the analysis of his statements is also similar. Those statements relate to a direct knowledge of the political and ideological context and a merely indirect knowledge of the murder of Mr Naghdi. The overall framework of the situation is very different: in Berlin it was possible to work on confirmations and evidence relating to the event, making use of numerous witness statements, the partial confessions by some of the perpetrators, scientific evidence regarding the weapons used, gunshot residues, the documents used by the perpetrators to enter Germany, the role of the ‘accomplices’, hideouts and so on. In the present case, Mr Mesbahi remained the sole witness for the prosecution: both in terms of the political and ideological context and the facts themselves. The court will draw the appropriate conclusions.

ASSESSMENT OF THE STATEMENTS  BY MR MESBAHI.

The context. ‘Political’ project of eliminating the Resistance.

As in the Mykonos trial, Mr Mesbahi revealed the existence of a plan to eliminate political dissidents, and in particular members of the Resistance abroad.

Mr Mesbahi outlined the chain of command for decision-making: identification of the enemy to be attacked; pronouncement, by an unusual and unorthodox ‘court’ of a political or religious type, of a fatwa; approval of the fatwa by a higher authority; identification of the entity charged with carrying it out; designation of an operative in charge; gathering of information through the self-styled ‘diplomatic network’, which was in fact an espionage network, on the ground; creation of an ‘operational team’; identification of the head of the team; procurement of documents and weapons; creation of a code name for the operation; selection of the time for the action to take place; operational involvement of the heads of the secret service at the relevant bureau. On these points, the statements by Mr Mesbahi made in these proceedings overlap with those made in Germany. The Berlin judgment had highlighted the existence of the political project to eliminate political adversaries. The impressive list of opponents of the Iranian regimes who were victims of attacks between 1988 and 1994 (see the depositions of Colonel Scriccia, Major Messina and Ms Moroni, and the written submission by the Public Prosecutor’s office that has already been referred to several times) constitutes, as well as a confirmation of the statements made by Mr Mesbahi, a historical fact that is difficult to refute. Unless one is willing to accept the government's thesis of a continuous and incessant ‘settling of scores’ within the Iranian Resistance and its various leaders, resembling a suicidal ballet that makes no sense at all when compared to the open struggle of the members of the Resistance Council and other organisations, there can be no explanation for such a bloody sequence of murders other than the regime's declared intent to wage all-out war against dissidence, anywhere in the world. Responsibility for that war, moreover, was claimed in a series of interviews and public statements (see the extensive press review produced by the plaintiff claiming damages, and in particular the well-documented article in the New York Times, Appendix 15).

In that context, confirmed not only by the extensive collection of documents from the international press produced by the plaintiff claiming damages, but also by other ‘open’ sources (namely accessible by the public) cited by Major Messina in his deposition, the murder of Mr Naghdi is ‘justified’ as an act intended to remove a prominent figure in the Resistance, a man capable of weaving a dense web of international relationships in support of his cause, a fierce and intransigent opponent of the Tehran government who enjoyed the unconditional esteem of prominent Italian figures (see also, on the prestige that Mr Naghdi was gradually acquiring in the context of the Resistance, the statements by Ms Moroni, Colonel Scriccia and Major Messina).

With reference to the context outlined above, the information provided by Mr Mesbahi proved, as in any case had already transpired in the Mykonos trial, to be broadly reliable and supported by unequivocal confirmations.

A different argument, as mentioned above, applies with regard to the witness’s statements concerning the conception, preparation and execution of the murder and its perpetrators.

The murder of Mr Naghdi.

Everything stated by Mr Mesbahi concerning the murder of Mr Naghdi is second-hand, rather than a product of his direct knowledge. The sources of his statements were not subpoenaed. The statements are, in theory, unusable. Nor may it be argued otherwise, as submitted by the plaintiff claiming damages, regarding the existence of a secret submission/report on the murder to which Mr Mesbahi, again by virtue of his ‘ministerial’ connections, supposedly had access. The fact that the witness may have been able to consult a document (and in any case we do not know who wrote it, on what occasion, and for what ‘institutional’ purposes) is not sufficient to transform an indirect witness into a direct one. Even leaving aside the rule under Article 195(5), which extends the limits of indirect testimony to the case of a witness who has had knowledge of a fact in another manner (in the present case, from a written report), it must be observed that nothing that was written in the report, should such a report be deemed to exist, can be said to be ‘confirmed’. Moreover, what if it was drafted in an artificially distorted way, in order to muddy the waters? What if the person who wrote it was given ‘benefits’ that were not due to them? What if Mr Mesbahi was shown a false report? Mr Mesbahi himself, moreover, speaks of the report in the 2003 interview but does not refer to it in the subsequent interview: had he forgotten the circumstance, as he forgot others that, as we will see, apparently came back into his mind only after prompting by the investigators? In short, the same set of observations apply to the ‘report’ as may be applied to indirect testimony from an oral source: in the absence of the acquisition of the source, a second-hand account is fundamentally unusable. But, one could argue, the individuals, associated with the Iranian regime in various ways, who revealed to Mr Mesbahi the background to the Naghdi crime are clearly to be considered, in any event, as ‘untraceable’. Some of them, in addition, (Mr Yazdi and Mr Sheikhattar in particular) should be considered to be not witnesses but persons complicit in the crime: and perhaps, going back to the question of the regime’s internal chain of command, all those who were aware of what happened contributed in some measure to it. Thus, it could be said that Mr Mesbahi referred to a set of extra-judicial confessions that had allegedly been made to him by planners, principals and also some of the perpetrators of the crime. The issue of the correct categorisation, in substantive and procedural terms, of the statements made by Mr Mesbahi is, however, both fascinating in theoretical terms and devoid of any practical application for the purposes of the judgment. On the specifics of the murder, Mr Mesbahi made statements that , however one may wish to configure them, remain confused, contradictory, uncertain. May the truth prevail.

On the overall reconstruction of the murder.

The only certain fact, which Mr Mesbahi maintained during the three interviews under letters rogatory, was the fact that the murder was the result of the ‘political’ project to eliminate adversaries, conceived by the Iranian regime. On this point too, moreover, initially the witness seemed to trace the action back to a personal initiative on the part of the ‘dynamic’ revolutionary Ambassador Abutalebi, and then subsequently he outlined a more complex sequence of events. With respect to all the rest, however, including the roles, the composition of the commando team, the times of execution and the methods of execution, there were divergences between one account and the other, and the accounts were sometimes openly contradictory.

On the roles of Mr Abutalebi and Mr Bozorgian. On the composition of the murder team.

In the 1997 questioning under letters rogatory, the decision to kill Mr Naghdi was attributed to Ambassador Abutalebi ‘for personal reasons’, while Mr Bozorgian was said to be the person who, when the time came, took delivery of the weapon. The assailant was alleged to be Mr Yazdi.

In 2003, Mr Mesbahi stated that, alongside his personal motivation, Mr Abutalebi had a specific mandate to commit the crime. Mr Bozorgian was the head of operations on the ground, or was not on the ground. Mr Yazdi was in contact with Mr Bozorgian.

In 2006, first of all Mr Bozorgian did not play any role in the execution, which was ordered in Tehran and entrusted to a commando team led by a certain Khalil, the only person who knows how things truly happened. Mr Mesbahi was not aware of other names used to refer to Khalil. When he was challenged over the contradictions with the previous statements, he defended himself by saying that he thought those statements alluded to the executive role of Mr Bozorgian. The name of ‘Yazdi’ sparked something in his memory, and he remembered that Mr Yazdi and Khalil were often acting in partnership. Mr Bozorgian came back on the scene, and even became the true head of operations  on the ground. That is strange, given that previously he had explained that the head of the intelligence bureau, who had to live in the relevant location, usually did not get his hands dirty with a murder, which would expose him to enquiries, retaliation, etc. It is strange, but ‘that’s how things went’. As for Mr Abutalebi, if in 1997 he was the person responsible almost solely for the murder, now he had become a person who could not be informed because he belonged to the Pasdaran.

On the fatwa timeline

In 1997, as stated above, the interviewers mentioned a ‘sentence’ and not a ‘fatwa’. The term, which introduces a clear further level of liability and adds a more meaningful religious symbolism to the ‘procedure’ adopted, appears in the subsequent interview in 2003, where it is stated that the fatwa had been issued against Mr Naghdi in 1984.

In 2006 Mr Mesbahi stated that initially attempts were made to win back the ‘deserter’, and that the fatwa was not issued until 1990/91, once it had been found that the attempts to convert him from his opposition to the regime had been unsuccessful. That results in a further discrepancy in the identification of the religious authority responsible for approving the fatwa: firstly said to be Ayatollah Khomeini (in power in 1984) and subsequently, as the date of the approval had been moved a few years later, said to be Ayatollah Khamenei (since Ayatollah Khomeini had died in the interim).

On sources of information.

In 1997 Mr Mesbahi declared that he had heard the news of the murder of Mr Naghdi from Mr Yazdi, who was boasting about it, and from Mr  Bonakdar, the director-general of VEVAK. This was said to have happened during a conversation in 1994. Other sources were said to be Mr Mogaddam and Mr Pourzamani.

In 2003 Mr Mesbahi said he had met Mr Yazdi for the last time in 1990. When it was pointed out to him that he had previously declared that he had learned of the event directly from Mr Yazdi, but in 1994, he complained that the records were wrong, and he remembered subsequent meetings with Mr Yazdi, and remembered Mr Bonakdar.

In 2006 he spoke of general information obtained in the context of VEVAK, and said that Khalil was the head of the commando team, the only name known to him. In the German court, doubt arises as to whether he is confusing various crimes. Then he ‘remembers’ and then, on hearing the name ‘Yazdi’, something ‘suddenly sparks his memory’ and he makes statements that are more in line with his previous ones, but without explaining in a convincing way how it is only at that time that the name ‘Khalil’ has come to his mind. However, he reveals that another source spoke to him about Khalil (who had not been mentioned up to that point): Hosseini Tehrani, a religious figure and a senior dignitary in the regime.

Other inaccuracies.

Other inaccuracies, of less importance, relate to Mr Mesbahi’s knowledge of Parandeh (which was initially affirmed, and then denied), the ways in which the crime was carried out (whether the hitman was on foot, whether he arrived at the location on a moped) and the presence of Mr Abutalebi and Mr Bozorgian (that is to say, of one of them, or of both) at the location at the time of the crime: first he asserts this, but with a certain degree of doubt, then he denies it, and finally he says that it is possible but considers it to be irrelevant, since the operation had by then been launched.

ASSESSMENT OF THE STATEMENTS.

In contrast to the assertions by the plaintiff claiming damages, the clear contradictions by the witness between his successive statements cannot be put down to mere forgetfulness owing to the passage of time, and cannot be taken as signs of increased credibility. It is only tenable to argue that such contradictions in the subsequent statements are irrelevant with reference to marginal aspects of the case, and in particular to the reconstruction of the actual commission of the crime. Since it is clear that Mr Mesbahi is speaking of what he has heard, it is easy to understand that, given the many sources to which he is referring, one of them might have said that the hitman was on foot, or that he was on a motorbike, or that he used a semi-automatic pistol or that he fired a single shot, and so on. Here we are decidedly in the sphere of inaccuracies that relate to elements of the situation (not with regard to the fact itself, but to particular ways of reconstructing it, as has been done in the present case) without affecting the objective materiality of the incident. What remains in the initial statement, and subsequently, is that the Naghdi crime was a ‘political’ crime conceived and implemented as part of a larger project to exterminate dissidents, conceived and pursued by government circles.

All the other contradictions, however, cannot be so easily absorbed into the picture that has been outlined. And, indeed, they in no way satisfy the standard of appropriateness, gravity and lack of ambiguity set out in Article 192 of the Italian Code of Criminal Procedure. In other words, as already stated above, there is a central core of the statements by Mr Mesbahi, fully confirmed elsewhere on this specific point, which outlines, with a high level of reliability, the conceptual context of the crime. But all the other information provided by the witness is unconfirmed (and there are, moreover, clear rebuttals – see below). Moreover, the statements by Mr Mesbahi are, as has been seen, in some key points, particularly regarding the role of Mr Bozorgian, contradictory.

Regarding the absence of confirmation, two points emerged from the pre-trial inquiry. The first concerns the alleged presence, mentioned several times by Mr Mesbahi, of a ‘mole’ among the Mujaheddin of the People. Such a fact was not backed up by any evidence from the investigation, and was strongly denied by Ms Moroni, widow of Mr Naghdi. Even if one were to suppose that the alleged infiltrator has an enormous capacity for camouflage, so that up until now he has remained undiscovered, the lack of any confirmation remains, precisely, just that.

A second element, which is even more meaningful than the first, relates to a further lack of confirmation of the witness’s statements. It concerns the presence of Mr Bozorgian in Rome not only at the time prior to and close in time to the crime. It concerns any presence at all in Rome of an Iranian citizen corresponding to the identity of the defendant in the present case. Here, we must embark on a general reflection concerning all the statements made by the witness, Mr Mesbahi. In spite of the punctilious clarifications with which the interviews under letters rogatory are punctuated (Mr Mesbahi repeatedly vaunts his ability to distinguish between the institutional roles played by his ‘sources’ and their possible direct responsibility for the criminal acts on which he dwells), it appears that this is precisely what the witness did: tracing roles and responsibilities back to a single plot, making substitutions and interpositions to fill obvious memory gaps, all in the context of a worrying tendency to pander to the investigator on duty (the ‘spark’ that ignites when Yazdi's name is mentioned) by adjusting, especially in the last interview in 2006, the way his account develops to the inputs that are offered to him from time to time. The way in which the 2006 interview develops is, on this point, a prime example. Initially, Mr Mesbahi gives a version of the facts that is completely incompatible with the two statements he gave previously: no longer are Mr Bozorgian and Mr Abutalebi acting pursuant to a 1984 fatwa, but it is a commando team under the orders of a certain Khalil in the name of a fatwa issued several years later than that. The actual assailant is no longer Mr Yazdi, but Khalil or one of his men. The witness knows nothing of the other people involved nor of whether or not Mr Bozorgian played a role. He is challenged with the discrepancies with his previous statements. Mr Mesbahi then ‘remembers’, repositions Mr Yazdi and Mr Bozorgian (but not Mr Abutalebi, initially said to be the person who conceived of and carried out the crime ‘in rem suam’), confirms the role of Khalil, never previously named, and indicates a new ‘source’ (Tehrani), also never before referred to. Legitimately, on this point, the German court wonders (and asks) whether Mr Mesbahi may not be confusing different crimes. The response is also a prime example: his memory returned after the investigators’ prompting. He is ready to ‘take a legal oath’. The tendency to pander, mentioned above, here appears very clearly: before the ‘spark’, Mr Bozorgian was not part of the crime. After the ‘spark’, he once again becomes, according to the charge, one of the principal actors. But, one could argue, the witness first spoke about Mr Bozorgian, at a time when he was not suspected, as far back as 1997. He stuck to his accusation, apart from the not insubstantial failing just mentioned, in the main, even in the last interview. The occasional oversights may be forgiven. The overall picture ‘holds’, and is explained in the following terms: 

• all the crimes against opponents of the regime have the same pattern;
• Mr Mesbahi knows this pattern, and nobody doubts that point;
• the pattern sets out that the head of the secret services bureau in the relevant location should be involved in the action;
• at the time of the murder of Mr Naghdi the head of bureau in Rome was Mr Bozorgian;
• Mr Bozorgian is involved in the crime, in spite of the inaccuracies of the witness (including the statement that Mr Bozorgian, being ‘resident’ and having to remain so, should not have been involved in order to avoid ‘getting his hands dirty’).

However, and here we come to the second lack of confirmation of Mr Mesbahi’s statements, there is no evidence not only that Mr Bozorgian, during the years referred to, was the VEVAK head of bureau in Rome, but even that an Iranian citizen corresponding to the defendant Mr Bozorgian as identified in these proceedings has ever been in the city of Rome. The investigations confirmed the presence of Mr Abutalebi (who was accused by Mr Mesbahi, but who has not been charged) in Rome, but not that of Mr Bozorgian. All attempts to ‘link’ Mr Bozorgian to Rome (see the depositions of Colonel Scriccia and Major Messina) have been unsuccessful, as noted by the Public Prosecutor’s office itself in the above-mentioned written submission pursuant to Article 121 of the Code of Criminal Procedure: ‘all attempts to identify Mr Bozorgian as one of the accredited and notified staff, in the years 1992/93, at the Diplomatic Consular Network of the Islamic Republic of Iran at the Italian Government or the Holy See have been unsuccessful’. A counter-argument could be made that the failure to detect Mr Bozorgian's presence in Rome was due to the use of false documents, which is to be ‘taken for granted’ given the criminal pattern outlined above. Such an assumption, although worthy of consideration from a logical viewpoint, is nonetheless unproven.

If, therefore, the only possible link between the contradictory set of statements by Mr Mesbahi and the defendant (his presence in Rome) fails, all that remains from the evidentiary framework outlined is the finding of the contradictions themselves which, since they are contained within a framework of second-hand assertions, do not appear sufficient to constitute full proof of the defendant's liability for the crime with which he is charged.

ON THOSE GROUNDS

pursuant to Article 530 of the Code of Criminal Procedure,

finds Amir Mansur Assl Bozorgian NOT GUILTY of the crimes with which he is charged, because he did not commit the crime. The Court assigns a time limit of 30 days for the drafting of the statement of grounds of this judgment. 

Rome, 24 October 2006

 

Judge who wrote the judgment                    President

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Lodged at the Registry

Today, 13 December 2006

The Registrar

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[Circular stamp reading: Court of Assizes at First Instance, Rome]