Professional victimisation of lawyers and the protective duties of the State in the light of the Council of Europe Convention on the protection of the profession of lawyer (CETS No. 226)

Abstract

Because it is directly bound up with the defence of other people's rights, legal practice exposes the lawyer to a particular form of victimisation: an attack that occurs not because of personal characteristics but on the occasion of performing a professional duty. Threats, intimidation, assault and the identification of lawyer with client harm more than the individual; they weaken the right of defence and ultimately affect the quality of the fair trial. The Council of Europe Convention for the protection of the profession of lawyer, opened for signature in Luxembourg on 13 May 2025, is the first international treaty devoted specifically to this subject; once in force it converts part of the previously scattered and non-binding standards into treaty obligations subject to monitoring. Using a descriptive-analytical method and a comparative approach, this paper first explains the position of the lawyer in victimology. It then shows that Imami jurisprudence possesses the normative capacity to support legislative protection of the defence function, and that Article 167 of the Constitution, within its limited scope and subject to the principle of legality, can play a complementary role. It goes on to examine the principal innovations of the Convention, in particular the conditions in Article 9, the State's duty of effective investigation, the prohibition on identifying lawyer with client and the GRAVO monitoring mechanism. German law, as a Council of Europe member with a coherent bar structure, serves as a functional benchmark. The concluding assessment shows that Iranian law, despite Article 35 of the Constitution, Note 3 of the Act on the Choice of Counsel and Article 20 of the Bar Independence Act, is deficient in four respects: the ambiguity of the term protective measures, the practical weakness of the sanction in Article 20, the absence of a regular procedure for notifying the bar, and the absence of a national data-recording system. The Luxembourg Convention can therefore serve as a model for legislative and professional reform, irrespective of whether Iran ever accedes to it.

Keywords: victimology of the lawyer; Convention CETS 226; professional security of the lawyer; identification of lawyer with client; comparative law.

Introduction

Victimology initially asked above all which characteristics expose some people to crime more than others. In more recent research, attention has shifted from individual characteristics to the situations that raise the risk of victimisation. Some occupations create such a situation in themselves. Legal practice is a clear example: the lawyer stands in the middle of a conflict of interests and may face the anger of the opposing party, the dissatisfaction of the client or the pressure of public opinion. The greater danger lies in being identified with the client or with the subject matter of the case. In that event the attack is not directed merely at a citizen; it disrupts the performance of the defence function and through that route affects the fair trial. Article 35 of the Iranian Constitution likewise recognises the right to counsel as one of the guarantees of the proceedings.

The question had been raised in international instruments before the new Convention. The Basic Principles on the Role of Lawyers and the Recommendation of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer were among the most important examples, but they lacked treaty force and a dedicated monitoring system. The decisive development came in 2025: after adoption by the Committee of Ministers, the Council of Europe Convention for the protection of the profession of lawyer was opened for signature in Luxembourg on 13 May 2025. For that reason it is also referred to as the Luxembourg Convention.

The central question of this paper is what message the Convention carries for Iranian law when read from a victimological perspective. It must be established which of its guarantees have a relative counterpart in domestic law, which are ambiguous or incomplete, and which are not provided for at all. The analysis rests on three premises: special protection of the lawyer is not a professional privilege but is necessary to safeguard citizens' right of defence; Imami jurisprudence and the limited complementary role of Article 167 supply the justification for such legislation; and Iran's principal difficulty is less the absence of a foundation than the weakness of the sanction, the shortage of procedural and institutional arrangements, and the absence of a recording and notification system.

The research follows a descriptive-analytical method and a functional comparison. Its main sources are the text of the Convention and the explanatory report, the case law of the European Court of Human Rights, and Iranian and German provisions. The comparison proceeds on seven criteria: institutional independence, freedom to practise, confidentiality, guarantees on arrest and search, the response to profession-related attacks, effective investigation, and mechanisms of recording and notification. On that basis, after setting out the victimological and jurisprudential foundations, the paper examines the development of the international instruments and the content of the Convention; it then assesses the German experience and the state of Iranian law and proposes workable measures. The claim is deliberately limited: the paper proposes neither immediate accession nor the wholesale transfer of the European model; its aim is to show that the protective part of the Convention concerning the position of the defence is the logical continuation of a principle the Iranian legislature has already accepted but for whose full implementation it has not provided the instruments.

Part One: The lawyer as victim, theoretical foundations

::1-1. From the person-centred to the situation-centred victim

In contemporary victimology, situation and pattern of daily activity matter as much as the characteristics of the person. Routine activity and lifestyle theories explain how the manner of a person's presence in social settings alters the likelihood of encountering an aggressor. By the nature of the work, the lawyer meets conflict, dissatisfied opponents and sensitive cases, and cannot avoid the encounter in order to avoid the risk; for that very encounter is an inseparable part of the duty. Judges, emergency physicians and journalists may also face occupational risk, but in legal practice the attack is in many cases directed precisely at stopping or punishing the act of defence.

Seen in this way, the lawyer is an occupational victim, yet the risk differs from many workplace hazards. In fields such as medicine or industry, harm may arise from an accident or unintended contact; in legal practice the aggressor frequently targets the professional role deliberately. This feature has two consequences. Physical measures such as protecting the office are necessary but do not remove the motive arising from the case. And the criminal response is not only about punishing the offender; it must state clearly that the independent performance of the defence function stands under the protection of the law.

1-2. A typology of the victimisation of lawyers

Five principal forms may be distinguished for a better understanding of the phenomenon. The division does not rest on a single criterion and its elements overlap; it is therefore an analytical tool, not an exhaustive and mutually exclusive classification. The first form is physical assault or direct threat. Such conduct may not be the most frequent statistically, but its consequences are severe and can influence the decisions and conduct of a large group of lawyers. The small number of cases is not a sound reason to treat them as marginal in policy.

The second form is sustained harassment or intimidation: repeated messages at unusual hours, following on the way to work, contacting family members, or non-explicit threats. Each act on its own may not constitute a clear offence or may be difficult to prove, yet their repetition and cumulative effect erode psychological security and the capacity to continue in practice. For that reason official statistics usually do not capture every dimension of this form of victimisation.

The third form occurs in the digital sphere: the harassing publication of personal data, mass messaging, the creation of fabricated content, or the organisation of an attack on social networks. The online environment lowers the cost of acting for the aggressor, while erasing the traces, proving the origin of the attack and restoring reputation are costly for the lawyer. This very imbalance between the cost of committing and the cost of repairing increases the likelihood of repetition.

The fourth form is institutional victimisation. Here instruments originally designed for a lawful purpose, such as a disciplinary complaint, a criminal report, a search of the office or the seizure of documents, become a response to the acceptance or the manner of the defence in a particular case. Because the measure has an outwardly lawful form, the abuse is hard to identify and the motive hard to prove. Even so, its message to other lawyers may be clear and may deter them from taking sensitive cases or defending vigorously.

The fifth form is secondary victimisation: the processes following the attack reproduce or intensify the original harm. The publication of the lawyer's name and image alongside the accused, tendentious media coverage, or a demeaning response from the investigating authority when the complaint is lodged are examples. In this situation the lawyer faces fresh pressure in the course of seeking redress or in the public sphere, in addition to the original harm.

1-3. Identification of lawyer with client as the cognitive root of victimisation

One of the most important sources of these harms is the identification of lawyer with client, that is, treating the lawyer as one with the client or with the subject matter of the case. On that reading, professional defence is construed as moral endorsement of the client's conduct, and the anger attaching to the case travels from the accused or the opposing party to the lawyer. The phenomenon appears on three levels: a citizen may regard the lawyer in a controversial case as a supporter of the client's conduct; the media may reinforce that impression through the arrangement of names, images and headlines; and an official may treat the acceptance or pursuit of the case as a sign that the lawyer is aligned with the client. The last level is the more dangerous, because there a mistaken perception can be translated into institutional action.

The significance of this cognitive error does not lie only in its inaccuracy. Identification can supply the perpetrator with a psychological justification: he sees himself as attacking a partner or supporter of the client's conduct, rather than a person performing a legal duty of defence. For that reason the international instruments do not treat the prohibition of this perception as a mere recommendation about the ethics of speech, but place it alongside the practical guarantees protecting the lawyer.

1-4. The functional victim and the answer to the objection of discrimination

The harm arising from an attack usually does not stop at the person of the lawyer. A frightened lawyer may refrain from a full defence; concern about disciplinary proceedings can reduce professional courage; and repeated attacks without response can make it harder for the profession as a whole to take sensitive cases. In all these situations the ultimate harm falls on the client and on the quality of the proceedings. To describe this the paper uses the term functional victim: a person in whose case the attack, beyond the direct harm, also impairs an institutional function and the rights of others.

That very effect beyond the individual supplies the answer to the objection of discrimination. Differentiated protection of the lawyer is justified where its purpose is to preserve the right of defence, not to privilege an occupational group. The criterion is neither social standing nor professional power; the question is what public function the attack destroys. Iranian law has accepted the same logic in relation to a public official in the performance of duty. Differentiated protection is of course not confined to an increase in penalty and may include preventive, protective and procedural measures. The creation of a specific offence is likewise justified only where the distinct risk, the insufficiency of the general rules and the necessity and proportionality of the intervention are demonstrated. The central question is why this logic has not been fully applied to the defence function.

Part Two: The jurisprudential foundations of differentiated protection for the defender

Before examining the European instrument a basic question must be answered: is special protection of the lawyer an imported institution deriving solely from contemporary human rights, or can support for it also be found in the foundations of Iranian law? The question has a practical consequence, because under Article 4 of the Constitution a legislative proposal in Iran must be compatible with Islamic standards, and Article 167 provides that where the law is silent or unclear the judge is to have recourse to authoritative Islamic sources and reputable legal opinions. In criminal matters this complementary role is limited by the principle of legality: without a statutory provision, a jurisprudential source can create neither an offence nor a new penalty. The discussion in this part therefore serves to explain the basis of legislation, not to substitute a legal opinion for a statute.

2-1. The prohibition of injustice, harassment and unjustified harm

The first pillar consists of the general rules prohibiting injustice, encroachment and unjustified harm, and requiring respect for the life, property, honour and dignity of the person. The prohibition on harassing the believer is a particular confirmation of that same general foundation rather than an exclusive foundation; protection must therefore extend to all lawyers irrespective of their religion or denomination. Harassment and violation of honour may, where the necessary conditions are met, give rise to liability beyond the prohibition itself; but that result always depends on attributable harm and on the particular circumstances of each case. As to the rule against causing harm, notwithstanding the differences in its interpretation, it can at least be said that the rule supports rejecting arrangements that lead to unjustified harm. Even so, none of these general foundations establishes on its own a special criminal protection or an increase in penalty. To justify differentiated protection the particular importance of the defence function must also be shown.

2-2. The standing of assistance in the establishment of justice

The second pillar concerns the value of defence itself. Legal practice, where it observes the applicable standards, is a means of establishing justice, vindicating rights, preventing encroachment and securing the possibility of a defence. Even the lawyer of an accused who is ultimately convicted does not defend the offence; he defends the client's right to a lawful proceeding. The evidence concerning assistance to the wronged and cooperation in what is good may confirm this function, but it is not the basis of every kind of retainer; not every client is necessarily a wronged party, and before judgment no such description can be treated as settled. The merit of this activity, together with the institutional importance of the right of defence, the transmission of harm from lawyer to client and the insufficiency of general protection, can therefore justify protective legislation; but on its own it does not require an increase in penalty.

This argument has two clear limits. First, the protective value of the lawyer's activity depends on the performance of the duty within the law and professional standards, and confers no absolute immunity. Second, a jurisprudential foundation does not of itself create a criminal sanction. Under the principle of legality, only conduct for which the law has prescribed a penalty is an offence, and the imposition of the penalty falls to the competent court. Article 167 is accordingly not an authorisation for judicial criminalisation on the basis of a legal opinion. The role of jurisprudence in this discussion is to explain the possibility and legitimacy of protective legislation, not to permit a court to fix a penalty in the absence of a statute.

2-3. The personal character of responsibility as the jurisprudential basis of the prohibition on identification

The third pillar, which matters more for this paper, is the principle that responsibility is personal. The Luxembourg Convention has turned the prohibition on identifying lawyer with client into a treaty obligation; jurisprudence likewise contains a clear rule that no one bears the burden of another's act and that each person answers for his own conduct. Attributing the conduct, belief or characteristics of the client to the lawyer is therefore incompatible with that principle. Identification is of course not confined to the formal transfer of responsibility and also encompasses defamation, social pressure and institutional pressure. Countering these manifestations rests, beyond the personal character of responsibility, on the general rules prohibiting injustice and unjustified harm.

This foundation is also of direct use in shaping public understanding. It is sometimes supposed that defending a person accused of reprehensible conduct means endorsing that conduct. The answer lies in distinguishing the defence of a right from the endorsement of an act: the lawyer defends the right to a lawful proceeding, not necessarily the conduct attributed to the client. Expressing that distinction in the familiar language of the personal character of responsibility is clearer and more persuasive for a domestic audience than a bare reference to international instruments.

2-4. The conclusion of this part

The result of this part must be stated in limited and precise terms. Imami jurisprudence possesses the capacity required to justify, in legislative terms, protection of the defence function: the prohibition of injustice and unjustified harm is the basis of general protection; the value of assistance in establishing justice explains the particular attention paid to the defence function; and the personal character of responsibility is the closest foundation for prohibiting the identification of lawyer with client. Converting these capacities into a specific offence or penalty is nonetheless possible only through an express, clear and proportionate statute. The claim is therefore not that jurisprudence has already prescribed a particular penalty; it is that the legislature faces no foundational obstacle to enacting appropriate protection.

Part Three: From Havana to Luxembourg, the development of the international instruments

The first comprehensive international framework was provided by the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress in Havana in 1990. Paragraphs 16 to 18 require States to ensure that lawyers can perform their functions without intimidation, harassment, hindrance or improper interference, to provide adequate safeguards where a lawyer's security is threatened, and not to identify lawyers with their clients or their clients' causes. Despite their normative weight, these principles were not a treaty and had no dedicated body to monitor their implementation; their effect therefore appeared mainly in international and professional assessments and reports.

In Europe, Recommendation Rec(2000)21 of the Committee of Ministers set out these standards in greater detail. The European Court of Human Rights, interpreting Articles 6, 8 and 10 of the European Convention, likewise protected the independence, professional expression and confidentiality of lawyers in a range of cases. Even so, these two routes did not replace a dedicated treaty: the recommendation lacked treaty force, and the case law took shape only after a dispute had arisen and within the confines of the particular case.

The increase in documented reports of attacks on and pressure upon lawyers over the past two decades carried the subject beyond the level of recommendation. Resolution 44/9 of the United Nations Human Rights Council likewise reflected concern for the independence of judges and lawyers. Within the Council of Europe, resolutions of the Parliamentary Assembly, a feasibility study and the work of an expert committee prepared the way for drafting a treaty; that course is recorded in the preamble and the explanatory report. Convention CETS 226 is the result of that process. The instrument condemns attacks, threats, harassment and intimidation connected with the activity of lawyers and aims at independent practice free from discrimination or improper interference. Its essential difference from earlier instruments lies not only in its name: recommendatory standards have been converted into monitorable obligations, and a specialist body assesses their implementation.

Part Four: The Luxembourg Convention, anatomy of a binding instrument

::4-1. Structure, scope and concepts

The Convention consists of twenty-four articles and an appendix. Chapter one states the purpose, scope and terms; chapter two contains the substantive obligations; chapter three is devoted to monitoring, and the following chapters govern the relationship with other instruments and the implementing provisions. Under the Convention's definition, a lawyer is a natural person qualified and authorised under domestic law to practise. Each State must also declare, on signature or ratification, which domestic professional titles the instrument covers. This approach respects the differences in the structure of the legal profession between States: neither a uniform title nor a uniform internal organisation is imposed, while a common minimum of protection is established.

Protection extends in certain cases beyond the holder of the licence, but that extension is limited and tied to a specific provision. Persons whose authorisation has been wrongfully suspended or withdrawn, as well as staff and assistants of the lawyer or the bar, fall within the scope of protection only under particular provisions, notably Article 9(4). That choice matters in practice, because pressure on a lawyer's activity may be applied through the secretary, the trainee or a colleague. At the same time, the text has refrained from an unlimited extension of the Convention's personal scope.

4-2. The substantive provisions

The substantive obligations can be summarised in four groups. The first concerns the independence and self-governance of the bars and their effective consultation on legislation affecting the profession; the bar must also be able to act for the welfare of lawyers and for the protection of them and their families. The second concerns admission to the profession on objective criteria and the possibility of challenge before a judicial and independent body. The third comprises the rights necessary to practise: prompt and effective access to a client deprived of liberty, confidentiality of lawyer-client communication, and a limited immunity for statements made in proceedings, on behalf of the client, in good faith and with professional care. The fourth concerns the freedom of expression of the lawyer and the bar regarding cases and the justice system, and the observance of fair trial guarantees in disciplinary proceedings.

The importance of the disciplinary guarantees lies in the fact that the disciplinary process is not only a means of maintaining professional standards but may also be used to exert pressure on a lawyer. By requiring the observance of procedural guarantees, the Convention acknowledges the possibility of such abuse. This is precisely the form described above as institutional victimisation.

4-3. The victimological core: protective measures and the duty of effective investigation

Article 9, headed protective measures, has the closest connection with victimology and orders three levels of protection. The first concerns situations in which the lawyer faces public authority directly. A lawyer deprived of liberty must have access to a lawyer of his choosing and be able, without delay, to inform the bar of his detention and place of custody. On a search of the person, the office, belongings or professional tools, and on the seizure of documents, the presence of an independent lawyer or a representative of the bar must be enabled, subject to the narrow exceptions in the provision itself. The aim is not to obstruct lawful investigation; the aim is to prevent an investigation from becoming professional pressure and to safeguard confidentiality.

The second level concerns the role of the bar. The bar must, at the lawyer's request, be able to gain access to a detained member and to attend proceedings where a connection with professional activity appears possible. The duty of notification is likewise precisely delimited: the lawyer must have been killed or subjected to a serious attack; there must be indications of a connection between the incident and professional activity; the event must not yet be public; and the lawyer must be unable to inform the bar. In that situation the competent authority must inform the bar without undue delay. This provision enables an organised response and must not be generalised into an automatic duty of notification on every arrest.

The third level states the general duty of the State. The State must ensure that the lawyer and the bar can act without physical attack, threat, harassment, intimidation, hindrance or improper interference; must restrain its own agents from such conduct; and must conduct an effective investigation wherever there are grounds to believe an offence has been committed. This structure is influenced by the concept of positive obligations in the case law of the European Court of Human Rights. The State's responsibility is therefore not limited to abstaining from attack and also covers prevention and effective response to the conduct of others. The significance of this approach lies in breaking the cycle of attacks that go unanswered.

4-4. The prohibition on identifying lawyer with client

The Convention requires States to counter the adverse consequences arising from identifying a lawyer with the client or the client's cause. Article 6(5) does not prohibit every reference to the relationship between lawyer and case and must be applied together with freedom of expression and of the press. What is prohibited is the infliction of detriment or pressure by reason of that mistaken attribution. The importance of the provision lies in its attention to the social cause of part of the attacks and not merely to their result. Its implementation requires a review of official and media language concerning lawyers in sensitive cases and, as shown in Part Two, can also be justified on domestic foundations.

4-5. The monitoring mechanism: GRAVO and the urgent procedure

Specialist monitoring is the essential difference between the Convention and earlier instruments. The Group of Experts on the protection of the profession of lawyer, GRAVO, consists of eight to twelve independent members elected for four years. It works through questionnaires and evaluation rounds and, where necessary and with the State's consent, conducts country visits; its reports and conclusions are published. Alongside ordinary evaluation there is an urgent mechanism: where reliable information is received about serious violations requiring immediate action, GRAVO may request a special report and, in cooperation with and with the consent of the State, carry out an independent inquiry. For a profession in which attacks on its members sometimes come to light late or incompletely, such a mechanism creates the possibility of an institutional alert.

Entry into force of the Convention requires the expression of consent by eight signatories, at least six of which must be members of the Council of Europe. At the time this paper was finalised, that condition had not been met. Once in force, non-member States may accede only on the invitation of the Committee of Ministers. The instrument therefore has the capacity to extend beyond Europe; but for non-member States its principal significance, at least in the short term, lies in providing a legal model rather than an immediate possibility of membership.

Part Five: A functional comparison, German law and the case law of the ECtHR

The analysis of a treaty remains incomplete without observing how comparable questions are resolved in domestic law. Since the Convention has not yet entered into force, the comparison in this paper is functional and is not an assessment of treaty implementation. Germany was chosen for this purpose because it is a member of the Council of Europe, has a statutory and coherent professional organisation, already recognises part of the guarantees the Convention pursues in its domestic law, and has in recent years enacted a legislative response to new forms of digital harassment.

The aim of this section is a limited picture of how a few institutions and provisions operate. The discussion is confined to the official text and to the points relevant to this paper and should not be taken as a comprehensive study of the German legal profession or of German criminal law.

5-1. The professional structure: the regional bar associations

In Germany a bar association exists for the district of each higher regional court. The bar is a public-law corporation, membership is compulsory for lawyers, and the regional justice administration supervises the lawfulness of its conduct. This structure is not identical with every conception of professional independence, but it has one notable feature: supervision, advice, mediation and representation of the profession's interests are combined in a body whose competences are defined by statute. The relationship of the member to the bar is therefore not merely that of a person under investigation to a disciplinary authority.

5-2. The criminal response to digital harassment: criminalising the dangerous dissemination of personal data

In 2021 the German legislature specifically criminalised the dangerous dissemination of personal data. The provision covers the public dissemination of another person's data in a manner which, in the circumstances, is capable of and directed towards exposing that person or persons close to them to the risk of a criminal offence or unlawful acts against life, liberty or significant property. The penalty is ordinarily up to two years' imprisonment or a fine and, where the data were not previously publicly accessible, up to three years. The legislative background was the so-called enemy lists circulating in extremist networks, which published data on lawyers, judges, journalists and activists for the purpose of targeting them.

The provision contains three points that can be put to use. First, the offence does not depend on a subsequent attack actually occurring; it suffices that the dissemination, subject to the stated conditions, is capable of and directed towards creating the risk. Second, the provision was not written to protect a particular profession but is a general rule that also covers targeted professionals. Third, the higher penalty for disclosing non-public data shows that the law distinguishes between redistributing accessible information and revealing data that were not previously available to the public.

This specific offence has not displaced the general offences. The provisions on insult, coercion and threat remain applicable as the case requires. The German approach therefore consists in adding a precise provision for an identified gap alongside the general offences. The proposal put forward for Iran follows the same logic, and not the removal or wholesale replacement of the general provisions.

5-3. The case law of the European Court of Human Rights

Before the Convention was drafted, the Court had shaped part of the protection lawyers require through its interpretation of the European Convention on Human Rights. In Nikula v. Finland, the conviction of a defence lawyer for criticising the prosecutor's strategy was held to violate Article 10. The Court distinguished criticism of the prosecutor's conduct from a personal attack and warned that even a conviction subsequently quashed may have a chilling effect on vigorous defence. That chilling effect shows that the consequence of the measure reaches beyond the person of the lawyer and diminishes the capacity to defend the client; precisely the situation described in this paper by the notion of the functional victim.

In Morice v. France, the Grand Chamber, having regard to the context of a public debate, the existence of a sufficient factual basis and the proportionality of the response, held the conviction of a lawyer for defamation to be a disproportionate interference with freedom of expression; it did not, however, accord the lawyer absolute immunity. In André and Another v. France likewise, the search of the office and the seizure of documents were assessed by reference to necessity, proportionality and the existence of special safeguards for confidentiality, rather than by reference to an absolute prohibition on searches. These judgments show that the Convention's rules on professional statements, confidentiality and the presence of a bar representative build on prior judicial experience. They are therefore solutions whose core elements have been tested in practice.

Part Six: Iranian law measured against the Convention

::6-1. The existing foundations

An assessment of Iranian law must begin with the capacities already in place. Article 35 of the Constitution recognises the right to choose counsel before all courts. That article does not speak directly of the professional security of the lawyer, yet the right to counsel is effective only where the lawyer can act independently and in safety. The Bar Independence Act has moreover established the bar as a professional body. Whether every aspect of that body, from elections and admission to disciplinary rules, conforms to Article 4 of the Convention is the subject of a separate study. For the present discussion the most important domestic provision is Note 3 of the Act on the Choice of Counsel: in the position of defence the lawyer enjoys the respect and the protective measures afforded to members of the judiciary.

The logic of that Note aligns with the core of the Convention: special protection is justified not by a personal privilege of the lawyer but by his function in the proceedings. The Act on Respect for Legitimate Freedoms likewise guarantees the right of defence and the opportunity to use a lawyer, but it is directed above all at protecting the accused, and direct protection of the lawyer against profession-related attack does not follow from its wording. In practice, certain bar commissions, in particular the human rights commission of the Central Bar, have followed the situation of detained or targeted lawyers case by case. Note 2 of the same Act even makes the denial of the accused's right to counsel, upon determination by the Supreme Court, a ground for invalidating the decision and for the judge's disciplinary responsibility. The problem is therefore not the complete absence of protection; it is the fragmentation of the rules and the weakness of the mechanisms for enforcing them.

6-2. First deficiency: the normative ambiguity of Note 3

Almost thirty-five years after the enactment of Note 3, the meaning of protective measures is still neither clear nor uniform. Two advisory opinions, although not issued on the same question, reveal two different readings: the earlier accepts the application of the criminal protection in Article 609 to insulting a lawyer in the position of defence; the later treats the Note as directed at preserving dignity and enabling independent defence, and derives from it no special judicial immunity for the lawyer. There is thus no complete logical contradiction between them, but their juxtaposition shows that one view extends protective measures as far as differentiated criminal protection while the other confines them to professional and institutional guarantees. Absent a clear interpretation or clear text, an attack on a lawyer is usually examined under general offences, and no published, settled case law on Article 20 or Note 3 is available. Moreover, the extension of Article 609 to the lawyer, who is not a State employee, is seriously doubtful. The result is asymmetrical protection: the judge enjoys special protection, while the lawyer, whom the law has endowed in the position of defence with the protective measures of a judge, may in practice be protected as an ordinary victim.

That position cannot be defended in legislative terms. The legislature laid down a general protective principle but did not define its limits and effects. For that reason Note 3 has in many cases acquired a declaratory and symbolic function rather than serving as a practical instrument of protection.

6-3. Second deficiency: the ineffectiveness of the existing criminalisation

Despite that ambiguity, Iranian law is not entirely without a specific offence. Article 20 of the Bar Independence Act provides that anyone who insults a lawyer during the performance of the professional duty, or on account of it, is liable to fifteen days to three months of corrective detention. The phrase during the performance of the duty or on account of it establishes precisely the connection the Convention requires between the attack and professional activity. The problem is therefore neither the absence of a foundation nor the absence of an offence; the problem is the ineffectiveness of the existing provision, which appears in three respects.

First, the penalty under Article 20 sits at the lowest level of the grading of discretionary punishments. Since its maximum is three months, it counts as a penalty of the eighth degree. Article 609, by contrast, provides for insulting officials and public servants in the performance of duty, alongside a term of imprisonment reduced to forty-five days to three months, also lashes or a fine in the alternative. Even where imprisonment may be converted, the court retains recourse to other penalties; Article 20, by contrast, contains only a term of imprisonment that is subject to mandatory conversion. In addition, the list of persons in Article 609 is exhaustive and does not name the lawyer. The lawyer therefore neither clearly falls within the protection of Article 609 nor does the sanction designed for him match it. That result does not sit with the promise in Note 3 that the lawyer shall enjoy the protective measures of members of the judiciary.

An important paradox arises here. After the 2020 Act reducing terms of discretionary imprisonment, the penalty for simple insult under Article 608 became a fine of the sixth degree. If Article 20 is treated as the earlier special statute and the application of the later general Article 608 is excluded within its field, then a duty-related insult to a lawyer attracts a penalty of the eighth degree, while the same insult to an ordinary citizen attracts a penalty of the sixth. On that reading, a provision enacted to afford greater protection affords less. Two theoretical routes are conceivable: accepting concurrence or applying the later general provision in the light of the relation between the general and the special; or amending Article 20 expressly. The first must be weighed against the principle of interpretation in favour of the accused and is not sufficiently certain; the second is clearer and safer. A final comparison must also take into account effects such as whether the offence is subject to complaint, suspension, mitigation, alternative penalties and the consequences of conviction, which calls for a separate study.

Second, the nature of the penalty under Article 20 has changed at the enforcement stage. The offence remains valid, but because the maximum term does not exceed three months the court must impose an alternative penalty. Unification of Judicial Precedent Decision No. 746 has likewise emphasised that within this range the imposition of an alternative penalty is mandatory and does not depend on the complainant's waiver or on the presence of mitigating grounds. It cannot therefore be said that Article 20 lacks a criminal sanction; the precise answer is that its penalty is necessarily converted into an alternative one. The absence of imprisonment does not of itself mean ineffectiveness; certainty, speed and proportionality of the response also matter. The essential defect is that no clear, proportionate response with a visible protective message has been designed for that mandatory conversion.

Third, the behavioural scope of Article 20 is very narrow. It covers insult alone, whereas professional victimisation today may take the form of threats, sustained intimidation, digital harassment, the dangerous dissemination of personal data or institutional abuse. None of these falls under a special provision by virtue of Article 20. In addition, the archaic expression corrective detention has not been aligned with the language and grading structure of the 2013 Islamic Penal Code, and that very linguistic distance can generate uncertainty in application. The German experience shows that a more precise provision can be enacted for novel and dangerous conduct alongside the general offences.

The consequence of the weakness of Article 20 is not only the mildness or ambiguity of the penalty. Where a provision is seldom invoked in practice and its consequence is indeterminate or barely visible, it gradually falls out of the sight of the police, the prosecution and the profession. Then it is less often asked and recorded whether the attack was connected with the professional duty; and data that are not recorded appear neither in statistics nor in policy. In this way a legislative deficiency leads to a shortage of information and reinforces the next deficiency, the absence of a recording mechanism.

6-4. Third deficiency: the absence of a notification and recording mechanism

Iranian law contains no clear counterpart to the duty of immediate notification of the bar in cases of serious victimisation of a lawyer. Nor could any national and coherent system for recording and publishing data on the victimisation of lawyers be identified in publicly available sources. A phenomenon that is not measured cannot properly become the object of policy. The absence of data both reduces the capacity of the bars to advocate and reinforces the impression that attacks are isolated and exceptional. The holding of the present conference may be read as a sign of professional attention to that very gap.

6-5. Fourth deficiency: the structural vulnerability of the position of defence

Certain structural constraints may also render the position of defence more vulnerable. A contested example is the Note to Article 48 of the Code of Criminal Procedure, which in certain offences restricts the choice of counsel at the investigation stage. Contrary to what is sometimes assumed, that Note remains in the text of the law, even though advisory opinions stress its exceptional character and narrow construction. Such a restriction may convey the message that the presence of a lawyer is conditional in certain fields and, by that route, reinforce the social ground for identification or for pressure on the lawyer. In this paper, however, that connection is no more than an analytical hypothesis; empirical proof of a link between the Note to Article 48 and an increase in professional victimisation calls for a separate study.

Part Seven: Lessons for Iranian law

At the time this paper was finalised the Convention had not yet entered into force. Under Article 18 a non-member State that did not participate in its drafting may accede only on the invitation of the Committee of Ministers and subject to the prescribed conditions; Iran therefore has no right of unilateral accession. Accession is accordingly not a practical solution in the near term, but the use of the Convention's legislative and professional model does not depend on membership. On the basis of the foregoing, six proposals may be advanced.

The first proposal is to clarify the meaning of respect and protective measures in Note 3 of the 1991 Act by an express amendment. Any extension of criminal responsibility requires an independent, clear and prospective provision. An interpretative statute can only explain the non-criminal and institutional guarantees; interpretation cannot extend Article 609 to lawyers or widen the scope of the offence to the detriment of the accused, since that would be incompatible with the principle of legality and with the prohibition of retroactivity.

The second and more durable proposal is to amend Article 20 of the Bar Independence Act. As regards insult, the amendment is merely an updating of existing protection; adding threat, intimidation or the dangerous dissemination of personal data would, by contrast, create a new offence or a new aggravating element and requires an express and prospective provision. The amendment may proceed along three axes. First, aligning the level of protection with that afforded to public servants, without any need to imitate imprisonment or lashes; effective fines, contact bans, protective orders or proportionate non-criminal responses also merit consideration. Second, a precise extension of the behavioural scope, with conditions such as intent or knowledge on the part of the offender, a connection between the conduct and the professional duty, general capacity to cause serious fear or a definite risk, repetition in cases of sustained harassment, and the absence of a legitimate public interest in publishing the data. Lawful reporting, professional criticism and legitimate information must be expressly excluded. Third, transferring the provision into the Penal Code or creating a clear cross-reference between the criminal statute and the professional statute. This amendment can be pursued within the framework of the bill for the protection of lawyers.

The third proposal is a precise, non-expansive adoption of Article 9: a lawyer deprived of liberty must have the right to inform his own bar without delay; and where there has been a killing or a serious attack connected with professional activity, if the event has not become public and the lawyer is unable to give notice, the competent authority must inform the bar. Automatic notification on every arrest, however desirable it may be as a matter of protection, goes beyond the Convention's minimum and must be presented as a separate proposal. Implementing this mechanism requires a formal channel of communication, identification of the competent bar, recording of the time and content of the notification, data protection and training for the police; it is therefore inexpensive but not costless.

The fourth proposal is the creation of a national system for recording the victimisation of lawyers within the national union of bars, together with the publication of an annual report. Transparency of data can both improve understanding of the problem and have a deterrent effect. Such a system is nonetheless unacceptable without data-protection rules. The appropriate structure is two-layered: a confidential, case-based layer for protective intervention and an anonymous, aggregated layer for general statistics. The data controller, the method of verification, levels of access, retention periods and the requirements of client and case confidentiality must be settled from the outset, so that the identity of the reporting person is protected and duplicate or inaccurate reports are controlled.

The fifth proposal is a protective protocol between the bar and the prosecution service: a protocol for advice and legal assistance, accompaniment through the complaint process and access to psychological support. This mechanism institutionalises the task the Convention envisages for promoting the welfare of lawyers and assisting them and their families. Its domestic basis should not be sought solely in the traditional notion of legal aid; the more suitable support is the independence and legal personality of the bar, its task of administering the affairs of the profession and its power to issue internal rules within the limits of the law. Until the prosecution service has accepted it, this protocol is only a proposed memorandum and must be described as such.

The sixth proposal is to counter the identification of lawyer with client through education, culture and practice. That rule can be reflected in legal education, in professional ethics and in media guidelines. As explained in Part Two, for a domestic audience it is better to express the prohibition in the language of the personal character of responsibility and of the distinction between defending a right and endorsing conduct.

These proposals lie on three levels. Professional and immediate measures, such as the recording system, an internal protective protocol and training on the prohibition of identification, can begin within the powers of the bars and the union. Inter-institutional measures, such as notification, the presence of a bar representative and cooperation with the prosecution service, require agreement among the bodies concerned; binding the police and judicial authorities is possible only by statute or by a binding regulation of the competent authority. Amending Article 20, defining aggravating conduct and fixing the sanction lie at the legislative level and within the competence of parliament. Costs must likewise be estimated realistically: many measures are feasible within the existing structure and at manageable expense, but the national system and the support services require budget, personnel and data-protection rules. What they all share is the realisation of a promise that Note 3 has expressed since 1991 but for whose full implementation no mechanism has been provided.

Conclusion

The Luxembourg Convention is a new stage on a path that began with the Havana Principles: protection of the lawyer has moved from the sphere of non-binding recommendations towards treaty obligations subject to monitoring. Those obligations will be binding on States Parties once the Convention enters into force. From a victimological standpoint, the core of the instrument may be summarised in the three duties of prevention, protection and effective investigation, together with the prohibition on identifying lawyer with client; precisely the links that in Iranian law are either absent or of uncertain scope.

The findings of the paper have three axes. First, differentiated protection of the lawyer is not a professional privilege, because the effect of the attack passes beyond the person of the lawyer and also weakens the client's right of defence. Second, Imami jurisprudence, through the rules prohibiting injustice and unjustified harm, the value of assistance in establishing justice and the personal character of responsibility, supplies the foundation required for protective legislation, and Article 167 has a complementary role only within its own limits. These foundations do not replace a criminal provision, and the creation of a specific offence or penalty remains dependent on an express and prospective statute. Third, the principal difficulty of Iranian law is not the absence of a foundation but the weakness of a visible sanction, the absence of a notification and institutional protection mechanism, and the absence of reliable data. The existing gap is therefore at once normative, procedural, institutional and statistical.

In answer to the central question it may be said that Iranian law possesses significant relative counterparts: Article 35 of the Constitution, the Bar Independence Act, Note 3 of the 1991 Act, Article 20 and the general criminal offences. By contrast, the meaning of protective measures, the relation between Articles 20, 608 and 609, the guarantees on search and seizure, and the limits of the bar's protective role remain ambiguous or incomplete. What is largely absent is regular notification of the bar, national recording of data, a protocol of immediate protection, and a coordinated response to attacks occurring on account of the profession.

Iranian law faces no theoretical gap in protecting the lawyer. Note 3 of the 1991 Act holds significant capacity, but converting it into an effective system requires removing the statutory ambiguity, reforming the criminal sanction and creating a professional mechanism of recording and protection. Until those reforms are achieved, research, data collection and public discussion of the victimisation of lawyers can return the professional security of the bar from a merely corporate demand to its proper place: one of the preconditions of a fair trial for every citizen.

الف) منابع فارسی و عربی

1. قرآن کریم.

2. نهج‌البلاغه، نامهٔ ۴۷.

3. قانون اساسی جمهوری اسلامی ایران، اصول چهارم، سی‌وپنجم و صد و شصت و هفتم.

4. لایحهٔ قانونی استقلال کانون وکلای دادگستری، مصوب اسفند ۱۳۳۳.

5. قانون انتخاب وکیل توسط اصحاب دعوی، مصوب ۱۳۷۰ مجمع تشخیص مصلحت نظام.

6. قانون مجازات اسلامی (کتاب پنجم — تعزیرات و مجازات‌های بازدارنده)، مصوب ۱۳۷۵.

7. قانون آیین دادرسی دادگاه‌های عمومی و انقلاب در امور مدنی، مصوب ۱۳۷۹.

8. قانون احترام به آزادی‌های مشروع و حفظ حقوق شهروندی، مصوب ۱۳۸۳.

9. قانون آیین دادرسی کیفری، مصوب ۱۳۹۲ با اصلاحات و الحاقات بعدی.

10. قانون کاهش مجازات حبس تعزیری، مصوب ۱۳۹۹.

11. رأی وحدت رویهٔ هیئت عمومی دیوان عالی کشور به شمارهٔ ۷۴۶ مورخ ۲۹/۱۰/۱۳۹۴.

12. نظریات مشورتی ادارهٔ کل حقوقی قوهٔ قضاییه: شمارهٔ ۳۶۰/۷ مورخ ۲۵/۲/۱۳۹۱؛ شمارهٔ ۷/۹۷/۲۸۱۰ مورخ ۱۶/۷/۱۳۹۸؛ شمارهٔ ۷/۹۹/۸۲۳ مورخ ۱۹/۷/۱۳۹۹؛ شمارهٔ ۷/۱۴۰۱/۶۷۳؛ شمارهٔ ۷/۱۴۰۱/۹۱۸ مورخ ۷/۹/۱۴۰۱.

13. نجفی ابرندآبادی، علی‌حسین (زیر نظر)، دانشنامهٔ بزه‌دیده‌شناسی و پیش‌گیری از جرم، تهران: نشر میزان، چاپ نخست، ۱۳۹۳.

14. نیازپور، امیرحسن, پیش‌گیری از جرم، تهران: انتشارات دادگستر، چاپ دوم، ۱۴۰۲.

15. نیازپور، امیرحسن، حق متهمان مبنی بر داشتن وکیل در فرآیند کیفری؛ جلوه‌ای از حقوق شهروندی، مجلهٔ حقوقی دادگستری، شمارهٔ ۵۸، ۱۳۸۶.

16. مکارم شیرازی، ناصر، القواعد الفقهیة، ج ۱، ۱۳۷۰ش.

17. نیازپور، امیرحسن، بزهکاری به عادت: از علت‌شناسی تا پیش‌گیری، تهران: انتشارات فکرسازان، ۱۳۸۷.

18. محقق داماد، سید مصطفی، قواعد فقه؛ بخش مدنی، تهران: مرکز نشر علوم اسلامی.

19. موسوی بجنوردی، سید محمدحسن، القواعد الفقهیة، ج ۱، قم: نشر الهادی.

20. پایگاه خبری وکلاپرس (vokalapress.ir)، گزارش پیگیری وضعیت وکلای بازداشتی توسط کمیسیون حقوق بشر کانون وکلای دادگستری مرکز، مهر ۱۴۰۱.

ب) منابع غیرفارسی

1. Council of Europe, Convention for the Protection of the Profession of Lawyer, CETS No. 226, opened for signature 13 May 2025, Luxembourg.

2. Council of Europe, Explanatory Report to the Convention for the Protection of the Profession of Lawyer, CETS No. 226, 2025.

3. Council of Europe, Committee of Ministers, Recommendation Rec(2000)21 on the freedom of exercise of the profession of lawyer, 25 October 2000.

4. Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4 November 1950.

5. United Nations, Basic Principles on the Role of Lawyers, Havana, 27 August – 7 September 1990.

6. UN Human Rights Council, Resolution 44/9, 16 July 2020.

7. ECtHR, Nikula v. Finland, application no. 31611/96, judgment of 21 March 2002.

8. ECtHR (Grand Chamber), Morice v. France, application no. 29369/10, judgment of 23 April 2015.

9. ECtHR, André and Another v. France, application no. 18603/03, judgment of 24 July 2008.

10. Strafgesetzbuch (StGB), § 126a, inserted by the Act of 14 September 2021, BGBl. I p. 4250.

11. Bundesrechtsanwaltsordnung (BRAO).

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