NEW HEARINGS BEGIN IN THE CASE OF MALAK GHORBANY
Sunday, December 25, 2006
NEW HEARINGS BEGIN IN THE CASE OF MALAK GHORBANY
The retrial of Shamameh "Malak" Ghorbany began yesterday in branch 12 of the western Azarbaijan district court.
In June 2006, Malak was found guilty of having inappropriate relations with a man named Morad. On the day of the incident, Malak's brother and husband reportedly found Malak and Morad in Malak's home. When Morad tried to escape, the two men chased after him, caught him, and killed him by stabbing him approximately 25 times. They then returned to Malak and used the same knife to stab and beat her repeatedly, almost taking her life as well. Malak was rushed to the hospital, where she remained in a coma in the Intensive Care Unit for several days.
According to Mohamad Mostafaee, Malak's legal counsel, the Islamic Republic's Supreme Court rescinded Malak's original sentence – death by stoning -- primarily due to legal ambiguities surrounding Malak's alleged crime of adultery.
The Supreme Court explained that because the punishment of stoning is a religious punishment, it can not be issued in cases where there are any doubts or ambiguities regarding the underlying crime. The Court emphasized two topics in particular: First, there was evidence that Morad had coerced Malak into an inappropriate relation with him. As such, even if Malak had in fact engaged in inappropriate relations with Morad, she had done so under extreme duress. Second, the Court considered the distance between the farm where Malak's husband worked and the couple's house.
The judge questioned Malak about the distance between the farm and the couples' house, and asked her if there were normal marital relations between Malak and her husband. Malak explained that she and her husband were happily married, that they engaged in normal marital relations, and that the distance between the couple's home and her husband's farm was no more than an hour's travel time. Malak further explained that her husband would come home to her every other night. All of these statements were fully confirmed by Malak's husband, Mohammad Daneshvar.
Mostafaee explained that in addition to what the Supreme Court had specifically emphasized during the proceedings, Malak's legal defense includes the existence of further ambiguities that should be considered by the reviewing court at the next session.
Mostafaee went on to state that, in an attempt to prevent her husband and brother from receiving the death penalty for murdering Morad, Malak had claimed that she had been having an affair with Morad, and that the two men had murdered Morad to restore their family's honor. Malak, a young woman from a small village in the Kurdistan region of Iran with no formal education, did not understand that the punishment for a woman who commits adultery is death by stoning. In a letter written to the trial court with the assistance of prison authorities, Malak stated the following: "I, Shamameh Malak Ghorbany, have been imprisoned in the women's ward. I am a woman from a small village with no formal education. I did not know the ramifications of my statements in court when I made them. I thought that if I confessed to having inappropriate relations with the man who was killed, my husband and brother would not be found guilty of pre-meditated murder. It is only for that reason that I uttered that nonsense in court about having relations with Morad, which I now fully regret. For God's sake, please consider my plea and the true evidence of my case."
In reference to this letter, Malak's volunteer lawyer explained that only Malak could have brought about the acquittal of her husband and her brother from murder in the first degree. Her so-called confession in the original judicial proceedings was in fact successful in preventing the two men from receiving capital punishment. The general court sentenced Malak's husband and brother to only six years imprisonment for murdering Morad. However, the same court condemned Malak to death by stoning for having committed the crime of "adultery." In her letter to the court, Malak had clarified her motivations for confessing to the crime of "adultery" ( i.e. to save her brother and her husband from execution for murder). Additionally, her letter is evidence that Malak had no knowledge of the legal punishment associated with a woman's confession to the crime of "adultery." Thus, based on Article 64 of the Islamic Republic's penal code, the case against Malak was legally flawed from the very beginning.
Kamran Ghorbany, Malak's brother, and Mohamad Daneshvar, Malak's husband, murdered Morad with repeated stabbings. Under the Islamic Regime's laws, the punishment for murdering another person is capital punishment. The only way that a person can escape this type of punishment in a case such as this one, where marital relations are at stake, is the application of Article 640 of the Islamic Republic's penal code. According to this Article, "in the event a man personally witnesses his wife engaged in a sexual act with another man and is sure that the wife is participating in such conduct willingly, the husband has the right to kill his wife and her lover at that exact time." Thus, the reduction of the offense of murder from first degree, pre-meditated murder to a lesser-degree offense is dependant upon proving the actual commission of "adultery" in court. In this context, Malak was the only person who could have effectively provided such "proof," thereby saving the lives of the co-conspirators to the murder of Morad by reducing the charges of their crime from first degree murder to a lesser degree offense.
Mostafaee believes that although Malak had confessed to her so-called crime on four different occasions, as required by law under the Islamic regime, she had been coerced by her brother to do so and had not made the confessions willingly. In addition, there are other legal misgivings about Malak's confession to having committed the crime of adultery. For example, there is absolutely no evidence of a physical relationship between Malak and Morad, and such evidence is specifically required under Article 64 to prove adultery.
Additionally, although Malak's confessions had been executed before a judge, they were not legally binding. According to subsection 1 of Article 86 of the Islamic Republic's Criminal Judicial Code, the investigation of crimes that carry the punishment of death by stoning must be executed in the presence of the defendant's lawyer. If the accused does not have a lawyer, the court is obligated to assign her a lawyer. In Malak's case, she was represented by counsel in only two of the four court proceedings against her. Even if the two confessions that were executed in the presence of her legal counsel were to be considered as legally valid, Malak could not have made the four necessary confessions that are required under the law. As such, she should not have been found guilty of adultery based merely on her own confessions in court.
Further, a defendant's recession of her confession serves to nullify her prior statements of guilt. In this case, Malak's letter to the court effectively rescinded her prior claims about inappropriate relations with Morad, and notified the court of the underlying reasons for her initial statements. Accordingly, the court should not have found Malak guilty of adultery based on her personal confession, and it should not have sentenced her to death by stoning for having committed the crime of adultery.
President
Legal Rights Institute
Washington, DC
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http://www.petitiononline.com/nostones/bfYlHGlnttax.cgi
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