Abdorrahman Boroumand Center

for Human Rights in Iran

https://www.iranrights.org
Omid, a memorial in defense of human rights in Iran
One Person’s Story

Ali Panah Malmir

About

Age: 30
Nationality: Iran
Religion: Islam (Shi'a)
Civil Status: Married

Case

Date of Killing: October, 1990
Location of Killing: Nahavand Prison, Nahavand, Hamedan Province, Iran
Mode of Killing: Hanging
Charges: Murder
Age at time of offense: 30

About this Case

was known among his relatives and the village people as an educated, responsible, and handsome man. It all began with a dispute regarding water....

The news and information regarding Mr. Ali Panah Malmir’s execution was obtained through the Abdorrahman Boroumand Center’s interviews conducted with persons with knowledge of the case  on June 1 and 29, 2018, and August 8, 2018 (ABC interview). Kayhan newspaper also published a report about this execution on October 21, 1990.

Mr. Ali Panah Malmir was from the city of Nahavand’s Borzul village, located in Hamedan Province. He was approximately 30 years old and was married. He was a teacher in several villages. Mr. Malmir had a 2-year-old daughter and his wife was pregnant. He had five sisters and a brother, with one of his younger sisters and two younger brothers living with his parents. In addition to being a teacher, Mr. Malmir had a minibus that he drove and thus provided for the expenses of his family and his elderly parents.

According to people with knowledge of the case, he was known among his relatives and the village people as an educated, successful, and handsome man. Members of his family and close relatives described him as a kind, funny, caring, and responsible individual.

Mr. Malmir’s case is related to the death of a young man in the course of a group altercation over agricultural water use in the village.

Arrest and detention

After the altercation in the spring of 1990, the region’s police force arrested Mr. Ali Panah Malmir at his home along with a number of other male members of his family. According to the interviewees, after the fight occurred on the farm and the injured individual was taken to the hospital, the latter’s relatives attacked the homes of Mr. Malmir and his relatives with such intensity that the police had to intervene to defend their lives. The police then arrested Mr. Malmir, his brothers, and several other men in the family and took them to a detention center in the city of Nahavand. Mr. Malmir was interrogated there. Mr. Malmir was detained at Nahavand Prison. According to persons with knowledge of the case, Mr. Malmir was released on bail for a few days and was then returned to prison.

During the few months that he spent in jail, Mr. Malmir was allowed weekly visitations with his family from behind bars.

In mid-October 1990, prison officials told Mr. Malmir’s family to come to the prison for a last visitation. That visitation with a large group of his family members and relatives took place in a small room in the Nahavand Prison yard.

Trial

Mr. Malmir’s case was initially heard at the Nahavand Court, but the judge subsequently referred it to the Province capital stating that it could not issue a ruling in the case. (ABC interview). Hamedan Province Criminal Court, Branch One, adjudicated Mr. Malmir’s case. (Kayhan newspaper).

Charges

The court charged Mr. Malmir with “intentional murder”. (Kayhan newspaper). According to available information, he was accused of having murdered a young man in the course of a mass altercation. (ABC interview)

The validity of the criminal charges brought against this defendant cannot be ascertained in the absence of the basic guarantees of a fair trial.

Evidence of guilt

According to available information, a few days prior to the event, the murder victim had beaten Mr. Malmir’s father, an elderly man, stating that he had used their share of irrigation water to irrigate his own farm. Mr. Ali Panah Malmir went to him to protest his actions but the victim and his brothers attacked him. Mr. Malmir’s brothers and relatives got themselves to the scene of the altercation to defend him and a group fight ensued. In the course of the altercation, the murder victim lost consciousness and was taken to the hospital, where it was determined that he was in a coma due to blows to his head. The murder victim’s family then attacked Mr. Malmir and his relatives’ homes, killing their livestock, destroying their property, and setting their houses on fire. Persons with knowledge of the case claimed that the victim’s father had said that since the fight was over the father of the family, that he had to introduce his best son as the murderer. That was why Mr. Ali Panah Malmir had been introduced. The victim’s family stated in their complaint that Mr. Ali Panah Malmir was the person who had committed the murder. The victim’s brother testified against the Defendant in court; however, his and other impartial eyewitnesses’ testimony and description of the events was not sufficient to find Mr. Malmir guilty of murder.  Furthermore, the court accepted the swearing of ten of the victim’s relatives and acquaintances in the form of “Qassameh”* as evidence. (ABC interview)

Defense

Mr. Malmir denied the charge of murder at various stages of the adjudication. The eyewitnesses present at the crime scene also testified that they had not seen the Defendant strike a direct blow to the victim. According to persons with knowledge of the case, the evidence was not sufficient to issue an indictment against Mr. Malmir and the court was not able to convict him. Mr. Malmir had an attorney of his own choosing but his defense bore no fruit and the court resorted to “Qassameh” in order to issue a ruling. In response to the Defendant’s father who had stated the people [swearing during the rite of Qassameh] were not even present at the scene of the fight, the judge said: “Well, that’s something they have to answer for on Judgment Day. That does not concern you   and me. They swore on the Koran and this boy is convicted.” (ABC interview)

He said to the victim’s father: “You are hanging me but I swear to God I did not kill your son. I’m not a murderer.”

According to available information, Mr. Malmir was under pressure to incriminate himself during interrogations. Furthermore, Mr. Malmir’s brothers were beaten and tortured in order to make incriminating statements and admissions against him, but ultimately, none of them made any admissions concerning the murder. According to a person with knowledge of the case, the judge released him for a short time on bail (contrary to what is customary in murder cases) since he knew that Mr. Malmir was not guilty. Mr. Malmir’s relatives found the release to be a good opportunity for him to flee but he had told them that there was no reason for him to run away since he hadn’t committed murder, and if he fled it would not be good for people close to him, especially his family and his sisters, who would be susceptible to harm by the victim’s family. (ABC interview)

On the day the sentence was to be implemented Mr. Malmir had said to the victim’s father: “You are hanging me but I swear to God I did not kill your son. I’m not a murderer.”

A summary of the Legal Defects of Mr. Malmir’s legal proceedings

Due to the insufficiency of the evidence against the Defendant, the court considered this case to be an instance of “Lowth”, and ordered for the rite of “Qassameh” to be carried out. “Lowth” occurs when the existence of certain evidence [which is not sufficient to prove the commission of the murder in accordance with the law], makes the judge suspect a particular person, in which case the next of kin can [demand, and the judge can order] the rite of “Qassameh” [in order to] prove the [commission of] murder by said suspect. There is not sufficient information as to what type of evidence existed in the case file which the judge [deemed insufficient] and determined “Lowth” to have occurred. However, given existing information, it seems that the Defendant’s presence at the altercation was an indication of “Lowth” pursuant to Article 37 of the Law of Qesas and Hodud [Punishments] of 1982. Aside from the fact that this Article in a way considers the existence of evidence of the crime, in addition to the person’s presence at the murder scene, to be an instance of Lowth, “Qassameh” is one of the weakest [means of providing] evidence in proving the commission of a crime, and it must be used as a last resort when there is no other way to discover the truth. The information in this case shows that the victim was killed in a mass altercation. A considerable number of people must have witnessed the fight and there must be have been multiple pieces of evidence at the crime scene as well. It therefore seems that if the court had conducted a more thorough investigation, it might have been able to discover the truth without resorting to “Qassameh”. The fact that Mr. Malmir was arrested and subsequently released on bail a few days later, is further indication that the evidence against him was not sufficient.

In the present case, the next of kin introduced ten of their relatives to perform the swearing rite of Qassameh, who collectively swore fifty times. Article 38 of the Law of Qesas and Hodud of 1982 provides: “In order to prove his claim, the plaintiff may invite 49 male relatives who are aware of the commission of the murder, to swear along with the plaintiff himself, in order to prove said claim; in the event that the number of relatives does not reach the required number, they may repeat the swearing until the requirement of fifty oaths has been satisfied; in the event that the plaintiff has no relatives or the plaintiffs are not aware [of the murder] or are unwilling to swear, the plaintiff may swear fifty times in order to prove his claim.” This provision is most certainly contrary to the standards and principles of criminal law: First, swearing in order to prove the occurrence of a crime is no longer a viable means of proof in today’s world, and secondly, Qassameh is a procedure that many Islamic scholars and jurists, as well as Islamic religions have either not accepted, or have solely [allowed its] use for the purposes of dismissing a charge. Furthermore, the fact that the plaintiff or the people he introduces can swear multiple times is contrary to logic and reason; therefore, there is very serious doubt as to the guilt of all persons convicted on the basis of Qassameh.

Judgment

The court could not establish that the murder had been committed by Mr. Malmir, and the case was determined to fall within the definition of “Lowth” and the rite of “Qassameh” was performed. Ten of the murder victim’s relatives swore that Mr. Malmir was the murderer. The court sentenced Mr. Ali Panah Malmir to death (Qesas of life) pursuant to the rite of “Qassameh”. The Supreme Court upheld the ruling. Mr. Malmir was hanged in late October of 1990, at Nahavand Prison in the presence of the next of kin.

According to available information, Mr. Malmir had no knowledge of his sentence, and when they had taken him to the yard and had told him to get on the stool he had asked “why should I get on the stool?” At the time of the implementation of the sentence, the Nahavand Prison yard was surrounded by security agents in order to prevent the Defendant’s family and relatives from getting in.

Mr. Malmir had no knowledge of the proximity of the implementation of his sentence during the last visitation with is family.

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* “Qassameh” means an oath taken by a group of people. It is one of the ways that a defendant’s guilt or innocence can be proven for both intentional and non-intentional offenses. Per Iran’s Islamic Penal Code, “qassameh” is carried out in instances where a crime has occurred and no convincing evidence or witnesses exist which could prove the defendant’s guilt, and where a judge has doubt about the defendant’s guilt based solely on circumstantial evidence – a circumstance referred to in religious jurisprudence as “lowth.” Where “lowth” obtains, the judge is bound to ask the defendant to produce evidence disproving the charge. If the defendant demonstrates his innocence in this way, he is acquitted. Failing this, the plaintiff may perform “qassameh” in order to prove the defendant’s guilt, or request that the defendant perform “qassameh” to disprove the charges. This procedure, which requires a defendant to prove his innocence, is contrary to the principle of presumption of innocence and violates the defendant’s right to remain silent. The principle of the presumption of innocence - recognized in Iran’s constitution, Code of Criminal Procedure, and international agreements to which Iran is signatory – holds that all persons are to be considered innocent until proven guilty. A defendant should not be made to prove his own innocence. Proving the charges made against the defendant by presenting adequate evidence and witnesses is the duty of the prosecuting authority (in the Iranian context, the public prosecutor or a private plaintiff.) The right to remain silent is among the defendant’s rights of defense, affording him the right to refrain from answering questions regarding the charges entered against him. Such silence may not be treated as an indication or evidence of guilt or innocence.

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