Mohsen Kadivar was arrested on February 27, 1999 by the Tehran Cleric Court after several hours of interrogation and sent to a closed cell in Evin Prison, Tehran. He was once arrested 20 years before that date in 1979 during the Islamic uprising by the SAVAK (Shah’s secret police) on the streets of Shiraz. Only then, the Shiraz Judiciary released Kadivar on bail until his hearing but the Cleric Court of the Islamic Republic did not change the unconstitutional arrest warrant to bail.
47 days later, Kadivar’s hearing was held by the Cleric Court in a semi-open session without a jury where Kadivar was found guilty for the statements that he had made in a public speech in Isfahan’s Hosseinabad Mosque and during an interview with Khordad Daily; he was sentenced to 18 months imprisonment. Kadivar’s letter of protest to the Attorney General and the Head of Judiciary did not make far and thus he served his full sentence and was released on July 17, 2000 from Evin Prison.
The Price of Freedom is a documentation of this event compiled and published by Zahra Roodi – Kadivar’s wife – in the early months of Kadivar’s imprisonment. This book was reprinted once every three months each edition containing a new document. The fifth edition contains the following documents:
The Cleric Court Prosecutor’s bill of indictment, Kadivar’s defense, the Tehran Cleric Court’s sentence, Kadivar’s appeal, the Appeal Court’s verdict, the complete text of Kadivar’s speech in Isfahan’s Hosseinabad Mosque, the complete text of his interview with Khordad Daily (published in three copies), the letters of Kadivar and his family to the Cleric Court, the Prosecutor of the Judges’ Court, the Supervisory Board of the Implementation of the Constitution, the Attorney General, the Head of the Judiciary, and the President, and the President’s response to Kadivar’s young child, and a diary recording the events of the first three months.
The Cleric Court’s sentence states, “Following the assassinations carried out by a number of individuals including certain devious and headstrong staff of the Ministry of Intelligence, Kadivar makes a public speech on the 23rd of Ramadan in Isfahan’s Hosseinabad Mosque and talks about the assassinations and reviews them historically and from the viewpoint of fiqh and analyzes the concept of issuing sentences about terrorists (moharebin, as those who take up arms and cause public insecurity) and despite the continuous efforts of the officials in arresting the assassins, Kadivar states that the decree of these individuals’ [the ones assassinated] being apostates was issued in their absence and that this is not part of the Islamic tradition and he further tries to link the responsibility of these assassinations with the state and arouse public concern by stating false statements.”
The Cleric Court argued that one statement from that speech was an evidence of crime: “But today we are entangled with another problem. Certain people who have no religious or jurisprudent eligibility issue the decree of apostasy and these decrees become published in the press. There is not even one single case, I repeat, I have made a thorough study and I say that there is not even one single instance in which the Prophet or the Imams have issued the decree of apostasy for an individual in his/her absence. If they believed that anyone was apostate or that anyone deserved punishment, they would openly announce why they thought that person were apostate allowing them to defend themselves and once their defense was heard, the sentence would be issued. Issuing a decree of one’s apostasy in his/her absence and issuing his/her death sentence without the Judiciary’s supervision covertly is indeed not warranted by Islamic tradition.”
The Cleric Court also argued that one statement from Kadivar’s interview with Khordad Daily (February 14 and 15, 1999) was an instance of campaigning against the Islamic Republic of Iran: “Although we have been able to formally eliminate the monarchy, what remains in effect and what we are still entangled with extremely is the regeneration of monarchic events and relations. In other words, people carried out the Revolution so that they could make decisions not that decisions would be made for them even if these decisions are made by the most eligible person for them.”
The Cleric Court sentenced Kadivar to one year of imprisonment for arousing public concern on the grounds of Article 698 of the Islamic Penal Law and six months of imprisonment for campaigning against the Islamic Republic of Iran with reference to Article 500 of the same law.
Kadivar stated in his defense that, “First of all, the Cleric Court is an unconstitutional institution violating many of the principles of the Constitution.
Secondly, Article 168 of the Constitution states that press and political charges are to be dealt with exclusively by the Judiciary in open courts with juries. It is clear then that a court which lacks the aforementioned criteria would not be eligible to deal with press and political charges.
Thirdly, the legality of crime and punishment are the preconditions of judgment. Article 727 of the Islamic Penal law stipulates that the crime mentioned in Article 698 is only subject to prosecution through a real complainant. Since there was no real complainant in this case, Article 698 cannot and does not legally apply to this case.
Fourthly, establishing the commitment of a crime necessitates the proving the actus reus (the physical element of the crime) and the mens rea (mental element of the crime). Resorting to Article 698 would require proving that false statements were propagated with the intention to arouse public concern. There has been no attempt in my bill of indictment to prove that any content of my speech was false. I actually do not know what I have stated that is not true, therefore, I stress that I have not stated anything false and that I had no intention of arousing public concern.
Fifthly, resorting to Article 500 of the Islamic Penal Law concerning my interview with Khordad Daily is inapplicable since this interview was by no means a campaign against the Islamic Republic. Contrarily, it was an analytical defense of the valuable principles of the Islamic Republic and was intended to identify and remove the vulnerabilities of the Islamic Revolution. Again the bill of indictment contains no reasons proving that my statements are examples of what has been stipulated in that article.
“I believe that I was arrested, tried, and sentenced because I stated ideas and views which were different from those held by the Cleric Court and this proves that Article 23 of the Constitution has been violated. I defend every single word and statement that I have made and I believe that all my writings and speeches enlighten public opinion and consolidate the valuable principles of the Islamic Republic. I consider myself not guilty of any crime because of my speech and interview; as a matter of fact, I think I deserve award for having fulfilled my religious responsibilities of enlightening public opinion and advising Moslems on what is justified and what is not. Thoughts and ideas do not remain within the walls of prisons and the Cleric Court has unintentionally proven my claims in effect.”
After receiving his sentence, Kadivar stated that, “The conscience of the alert nation, lawyers, and insightful judges would judge on the attempts made to mutilate the freedom of expression and freedom of thought and how inquisition has been put into effect and the obvious instruments of an equitable hearing have been obstructed.”
Once he received the verdict of the appeal court, he stated, “With the help of God and with complete faith in the solid and valid principles of the Islamic Republic, I shall continue my struggle against religious despotism and the elements threatening the Islamic Republic within the context of law and Islam. I shall go to prison and serve my sentence with smiles on my lips rather than with fear in my heart because I have done nothing but enlightening public opinion and expressing the truth, nothing but my religious duty. Authoritarians and totalitarians shall never have the privilege of hearing the slightest word of frustration from me.”
The Price of Freedom
Mohsen Kadivar’s Defense in the Cleric Court
(Bahayeh azadi: defaiyateh Mohsen Kadivar dar dadgaheh vijeyeh rohaniyat)
Compiled by Zahra Roodi (Kadivar )
Tehran, Nashre Nay, 1999, 5thprinting 2000