UNITED

NATIONS

______________________________________________________________________________

IRAN

Economic and Social Council                                                               

Distr. GENERAL

E/CN.4/1989/26

26 January 1989

Original:  ENGISH

COMMISSION ON HUMAN RIGHTS

Forty-fifth session

 Item 12 of the provisional agenda

QUESTION OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND TERRITORES.

Report on the human rights situation in the Islamic Republic of Iran

by the special Representative of the Commission on Human Rights,Mr. Reynaldo Galindo Phol, Pursuant to Commission resolution 1988/69

CONTENTS

I. INTRODUCTION ………………………………………….

II. CONTACT AND COMMUNICATIONS WITH THE GOVERNMENT OF THE ISLAMIC REPUBLIC OF IRAN………………………………………………………..

A. Contacts with the Permanent Representatives

Of the Islamic Republic of Iran………………………...

B. Written communications with the Iranian

Government……………………………………………..

III. INFORMATION AVAILABLE TO THE SPECIAL REPRESENTATIVE………………………………………..

A. Information provided by the Iranian Government……..

B. Information Provided by other Sources………………...

1. Oral information………………………………..

2. Written information……………………………

IV. CONSIDERATION OF CERTAIN ISSUES PERTAINING TO THE LEGAL SYSTEM

APPLICABLE IN THE ISLAMIC REPUBLIC OF    IRAN……………………………………………………

A. The question of punishment………………………..

B. The question of the death penalty………………….

C. Irregularities concerning the investigation and trial

1. Arbitrary arrests……………………………..

2. Information on reasons for arrest…………...

3. Ill-treatment and torture…………………….

4. Solitary confinement………………………..

5. Legal aid……………………………………

6. Public hearing………………………………

7. Calling of witness………………………….

8. Review by a higher tribunal………………..

9. Pardon or commutation of sentence……….

10. Remedies…………………………………..

V. GENERAL CONSIDERATION AND CONCLUSIONS

I.     INTRODUCTION

      By its resolution 1988/69, the Commission on Human Rights decided to extend the mandate of its Special Representative on the situation of human rights and fundamental freedoms in the Islamic Republic of Iran, as contained in its resolution 1984/54, for a further year, and requested the Special Representative to present an interim report to the General Assembly at its forty-third session on the human rights situation in the Islamic Republic of Iran, and a final report to the commission at its forty-fifth session.

In compliance with the above-mentioned resolution, the Special Representative presented an interim report (A/43/705) to the General Assembly and herewith submits his final report to the Commission.

      The interim report described the written communications and other contacts with the Government of the Islamic Republic of Iran, gave a detailed account of oral and written information received by the Special Representative concerning the situation of human rights in the country during the period October 1987 to September 1988, considered certain pertinent views expressed by the Government of the Islamic Republic of Iran during the examination of the item by the Commission at its forty-fifth session and contained the Special Representative’s general observations on the situation.

      The final report contains a description of the contacts and discussions which the Special Representative held with representatives of the Iranian Government in New York on the occasion of they forty-third session of the General Assembly, and in Geneva, as well as communications addressed by the Special Representative to the Iranian Government after the publication of the interim report.  It further contains and update of the information provided to the Special Representative by the Iranian government and by other sources, and a consideration of some issues pertaining to the legal system applicable in the Islamic Republic of Iran and related problems.  The final chapter of the allegedly executed in the Islamic Republic of Iran during the period July-December 1988 appears as an annex to the report.

      This final report should be considered by the Commission as forming a -*cole with the interim report presented to the General Assembly.  The general -* contained in the interim report are still valid.

II.    CONTACTS AND COMMUNICATIONS WITH THE GOVERNMENT OF THE ISLAMIC REPUBLIC OF IRAN

Contacts with the Permanent Representatives of the Islamic Republic of Iran

On 20 November 1988, the Special Representative had a long talk with Permanent Representative of the Islamic Republic of Iran to the United Nations, Ambassador Mohammad Ja’afar Mhallati, who was accompanied by six -* of the Permanent Mission.  The Permanent Representative indicated that -* to present a procedural decision under which the Iranian Government would express its commitment to co-operate with the Special Representative in all respects before the end of 1988, for the purpose of -* out date, provided that a consensus with the other sponsors could be found in due time.  On the same occasion, the difficulties faced by the Iranian Government in implementing the resolutions of the Commission on Human Rights and General Assembly were discussed.  The Permanent Representative emphasized the root causes of the pending human rights problems, mainly the war imposed on the Islamic Republic of Iran during the past eight years, and suggested that the question of implementation should be viewed in relation to those root causes.

A second meeting took place on 29 November 1988, at which the Permanent Representative referred to the alleged wave of executions mentioned in the interim report and denied the allegations.  He indicated that many killings had in fact occurred on the battlefield, in the context of the war, following the invasion of the Islamic Republic of Iran by the organization called the National Liberation Army (NLA).  The Permanent Representative showed the Special Representative a videotape produced by NLA, which he qualified as political and propaganda material, indicating that films of that nature were regularly being broadcast into the Islamic Republic of Iran from the NLA headquarters in Iraq (see also paras. 11-13).  He said that that that fact in itself discredited the information provided by that organization to the Special Representative.

On 13 January 1989, a meeting was held in Geneva between the Special Representative and the Permanent Representative of the Islamic Republic of Iran to the United Nations Office at Geneva, Ambassador Sirous Nasseri, who was accompanied by two members of the Permanent Representative reiterated his Government’s position that the working of the various pertinent resolutions of the Coon on Human Rights and the General Assembly remained the major obstacle to full realization of his Government’s co-operation with the Special Representative.  As long as such politically motivated language continued to be used in resolutions regarding the situation of human rights in his country, the In Government would find it very difficult to extend its full co-operation.  The Permanent Representative suggested that the Special Representative might engage in some of a dialogue- on the occasion of the forthcoming session of the Commission on Human Rights – with both the Iranian Government and the sponsors of a possible resolution, in order to achieve a compromise that could be acceptable to all parties and would result in full co-operation by the Iranian Government with the Special Representative in the discharge of his mandate.  The Permanent Representative indicated that, since the cease-fire had been achieved in the war with Iraq, his Government was in better position to turn its attention to the question of human rights.  The Special Representative pointed to the various practical measures mentioned in his final report, which the Iranian Government might wish to adopt in order to improve the human rights situation in the country.  He also referred to the desirability of receiving detailed replies from the Government to the various allegations, which he had brought to its attention.  He further raised the possibility of a visit to the country.

B.    Written communications with the Iranian Government

On 9 January 1989, the Special Representative addressed the following letter to the Permanent Representative of the Islamic Republic to the United Nations Office at Geneva:

            “As you haven informed by r for Human rights, I am at present visiting the Center in connection with the completion of my report to the Commission on Human Rights.  I am planning to stay in Geneva until 13 January 1989 and would hope that I shall have an occasion to meet you for a further exchange of views.

         I should like to emphasize that I was particularly pleased and encouraged by the statement made at the Third Committee of the General Assembly by your Permanent Representative to the United Nations in New, Ambassador Mahalatti, who repeatedly promised that your Government would extend to me its full co-operation in the discharge of my mandate.

         I believe that it would be very useful if we could discuss ways and means for furthering such co-operation in concrete terms.  In this connection, I wish to reiterate my strong conviction that a visit to the Islamic Republic of Iran, in conformity existing practice in the Commission on Human Rights, would be a most significant and important step towards such full co-operation, ac conviction which I expressed already in my letter of 24 July 1986.”

On January 1989, the Special Representative addressed the following letter to the permanent Representative of the Islamic Republic of Iran to United Nations Office at Geneva:

         “I should like to inform you that, on 9 January89, I received, in the framework of my mandate under Commission on human rights resolution 1988/69, eight persons who claimed to have pertinent information on certain aspects of the human rights situation in the Islamic Republic of Iran.  A summary of the allegations made by these persons is enclosed herewith for your information. [see para. 14]

         A summary of allegations regarding in particular the right to life, contained in various documents and letters provided to me recently by various other organizations and individuals concerned, is also enclosed herewith for your information. [see para. 15-22 and annex]

         I would greatly appreciate receiving any information or comments that your government may wish to provide with regard to these allegations.  I would also like to draw your attention to the fact that the detailed replies to allegations communicated to your Government on earlier occasions, which, I was assured, were under preparation, have still not been received.

         I should also like to seize this opportunity to express my appreciation for the useful and cordial exchange of views we had in Geneva on 13 January 1989.  I am looking forward to continuing our dialogue during the forthcoming session of the Commission on Human Rights, with  a view to realizing the full co-operation of which I was assured by your Government.”

III.  INFORMATION AVAILABLE TO THE   SPECIAL REPRESENTATIVE

A. Information provided by the Iranian Government

11. At the second talk with the Permanent Representative of the Islamic Republic of Iran, a film on the armed activities of Iranian émigrés was projected.  The film was compilation of NLA video films telecast from abroad, which showed scenes of military parades, military training, battlefields and statements by NLA leaders.  The Permanent Representative requested the Special Representative to include the film among the documents handed over tot him by the Iranian government.  On the basis of that request a summary o  contents follows.

12. The compiled video films presented an important military operation that was launched from bases located in Iraq in July 1988.  its code-name was “Eternal Light”, and it was qualified as “a new phase of NLA”.  In the course of that operation, NLA apparently penetrated at least 150 kilometers into the Islamic Republic of Iran.  NLA claimed the capture of several military garrisons, including those of Islamabad, Najab-2 Logistic Headquarters of Keren, Islamabad Road, Revolutionary Guards Corps, 27th Division, Revolutionary Corps Training, and the Behesti Garrison.  NLA also claimed to have killed 40,000 members of the Iranian military forces stated that all those actions “now established NLA credibility powerful, well-equipped and trained army … capable of tearing up the warp and woof of the regime and destroying  forever …”.  After initial success, the offensive was halted and finally repulsed.

13. One of the video films contained a public evaluation of the “Eternal Light” operation.  The audience, wearing fatigues, chanted a hymn and shouted slogans praising the leaders.

B. Information provided by other sources

11. Oral information

14. On 11 January 1989, the Special Representative conducted a series of informal hearing in the course of which eight persons who claimed to have pertinent information on certain aspects of human rights situation in the Islamic Republic of Iran made statements.  Seven of them were sympathizers of the Mojahedin organization.  They were: Mr. Asghar Ahkha Laghi, Mr. Azam Nyakan, Mr. Reza Hosseini, Mr. Amar Alnajer and Mr. Bijan Hadizadeh.  Two other persons requested that their identity should not reveal.  The eighth person was Mr. Jalal Gandjai, a religious figure who described himself as independent of any link with any political body.  All the persons appearing before the Special Representative alleged that one or more members of their family had been executed in the Islamic Republic of Iran in recent months.  The following people were mentioned as having been executed recently: Hamez Mahjoob. Mohammad Ahkhlaghi, Behrooz Behnamzadeh, Mr. Shukrulahi, Syrus Sephri, Forhad Zamani, Jaber Kabi, mad Reza Naim, Hossein Abdolvahab, Mohsen Bahrani, Hossein Nyakan, Nahid Tahsili, Hamid Tashili, Zahra Byjanyar, Javad Mashoof, Bijan Makvandi, Mohsen Vazin, Said Mazaheri, Mohammed Kaseb Ghani and Mojgan Latifi.  It was alleged that all the person who were executed had been previously convicted and were serving sentences for periods of various durations.

2.    Written information

(a) Information regarding the right to life

15. the information received by the Special Representative since the preparation of his interim report the General Assembly contained in particular alleged violations of the right to life.  In his interim report (paras. 47-49) the Special Representative referred to information he received in September 1988 alleging that a large number of prisoners, members of various oppositions groups, had been executed during the months of July, August and September 1988.  since that date, the Special Representative has continued receiving persistent reports about a wave of executions of political prisoners.  These reports were made available by various sources, including non-governmental organizations in consultative status with the Economic and Social Council and other bodies directly concerned by the alleged wave of executions.  In addition, the Special Representative received hundreds of petitions and letters from private individuals, including members of parliament from Australia, France, Germany, Federal Republic Ireland, and the United Kingdom of Great Britain and Northern Ireland, as well as members of European Parliament from several countries, and trade-union and church officials, expressing deep concern at the alleged wave of executions and calling for United Nations intervention to bring such executions to a halt.

16. The precise number of alleged victims of the recent wave of executions has not been reported.  The Special Representative has received more than 1,000 names (see annex), but it was alleged that there were in all probability several thousand victims.  In that connection, the Special Representative was informed that the Special Rapporteur on summary or arbitrary executions had, during the period from July to December 1988, transmitted to the Iranian Government allegations regarding the summary or arbitrary execution of several hundred persons, and sent urgent appeals regarding approximately 150 persons said to be facing an imminent danger of execution.

17. Most of the alleged victims were said to be members or supporters of the People’s Mojahedin Organization of Iran, but members of other opposition groups, such as the Tudeh Party, the People’s Fedaiyan Organization, Rahe Kargar and the Komala Organization in Iranian Kurdistan, as well as at least 11 mollahs, were also said to be among the alleged victims.  Many of the people said to have been executed had been serving prison terms for several years, while others were former prisoners who were rearrested and then executed.  It would therefore seem unlikely that these persons could have taken part in violent activities against the Government, such as participation in the NLA incursion into the western part of the Islamic Republic of Iran in Jul 1988.  among those said to have been executed were several women and , in some cases, several members of the same family.  It was alleged that many of the death penalty, in contravention of article 14, paragraph 7, of the International Covenant of Civil and Political Rights to which the Islamic Republic of Iran is a party.  Many of the executions were said to have been carried out in secret while others were reported to have occurred publicly, by hanging or firing squads.

18. Statements by several high-ranking officials were published by the Iranian news media to the effect that members of opposition groups should be dealt with severely, but there was no official acknowledgement of the wave of executions.  Nevertheless, reports have been received according to which people witnessed large numbers of bodies being buried in shallow graves in the usually buried, and in other parts of the country.

(b) The situation of the Baha’i community

19. According to information received by the Special Representative, two members of the Baha’i community were executed in November 1988 or at an earlier date in the latter half of 1988.  their names were reported as Mr. Binaham Pashai, aged 49, of Semnan, who had been imprisoned since November 1983, and Mr. Iraj Afshin, aged 55, who had been imprisoned since late 1986.

20. The number of Baha’i prisoners continued to decrease in the latter half of 1988, and stood, as of January 1989, at 101, including four who remained detained without charges.  The sentences of a number of Baha'i prisoners have reportedly been  reduced and the conditions of detention of some have improved.  Since February 1988 no further arrests have been reported.

21. Regarding the economic situation of members of the Baha’i community, it was reported that most of the Baha’is who had been dismissed from their positions in education and government in the early 1980s continued to be denied their jobs or the pensions to which they were entitled.  In that connection, the Special Representative received a translation of an  article published in Etela’at on 12 October 1988, containing two lists of some 50 Baha’is whose property in the Islamic Republic of Iran had been confiscated by the authorities.  The article invited the legal Muslim relatives of these Baha’is to contact the authorities, if these Baha’is resided outside the Islamic Republic of Iran, and it was announced that he authorities would then consider their rights and claims.  The list included names of Baha’is who were presumed to be dead.  The Special Representative also received a translation of a notice issued by the General Employment Office in December 1987.  the notice contained 13 names of persons who had lost their jobs in the Bank Melat on the grounds of “belonging to the depraved Baha’i sect”.

IV.    CONSIDERATION OF CERTAIN ISSUES PERTAINING TO THE LEGAL SYSTEM APPLICABLE IN THE ISLAMIC REPUBLIC OF IRAN

22. According to official information, the Penal Code was adopted on a temporary basis, for a trial period of five years.  The Law of Hodoud and Qasas (punishment and retribution) was enacted in 1982, and the Ta’azirat (lesser penalties whose maximum is set forth by law and minimum by the judge) was promulgated in 1983.  that means that the trial period has expired or is about to expire and that the study of amendments or the preparation of a new code may be under way or may begin shortly.

23. It may be expected that the Iranian government will take advantage of this occasion to consider not only the domestic experience, but the views of international organs entrusted with the protection of human rights.  Examination of the situation of human rights in the Islamic Republic of Iran has given rise to much learned thinking, which may be considered when the time is right.

24. A representative of the Iranian Government stated at the forty-second session of the Commission on human Rights that the fundamental peculiarity of the Iranian constitution was based on the peculiarity of the revolution, which, in relation to their movements in the contemporary Iran, was that it was it is precisely that indigenous school of thought that might turn its attention to international obligations in order to try to build a bridge, notwithstanding obstacle of different sorts, between the autochthonous political movements and the requirements of an increasingly interdependent internationally community.  Certainly there are sensitive points involved, but it may be expected that, with creative thinking and deep study, and taking advantage of contributions from different quarters, a kind of model might be developed.  The revision of the Penal Code may provide a unique opportunity to think again on the requests made by the competent human rights organs of the United Nations.

A.    The question of punishment

25. This is a delicate question because it touches upon the traditions of a genuinely Islamic people. Nonetheless it is essential to examine it.  In that context, it is important to note that the Sub-Commission on Prevention of Discrimination and Protection of minorities, in resolution 1984/22, interpreted the Universal Declaration on Human Rights (art. 5) as prohibiting amputation and urged Government having such legislation or practices to take measures to provide for other punishment consonant with article 5.  moreover, in 1986 the Human Rights Committee has interpreted the International Covenant on civil and Political Rights (art. 7) as prohibiting, inter alia, “corporal punishment, including excessive chastisement as an educational or disciplinary measure.” 1/

26. the Geneva Convention relative to the Protection of Civilian Persons in  Time of War, to which the Islamic Republic of Iran is a party, prohibits corporal punishment.  The well-known and widely acclaimed article 3 common to the four Geneva Conventions of 1949 gives civilians and members of the armed forces who have laid down their arms protected status, prescribing that they must be treated humanly and prohibiting outrages to personal dignity, cruel treatment, mutilation and torture, this article sets out firmly established standards and feelings which also cover civilians in time of peace.

B.   The question of the death penalty

27. The International Covenant on Civil and Political Rights envisages the applications of the death penalty to the most serous crimes only (art. 6, para. 2) : “This penalty can only be carried out pursuant to a final judgment rendered by a competent court.”  It should not be imposed on persons under 18 years of age, should not be carried on pregnant women and anyone sentence to death should have the right to seek pardon or commutation of sentence (art. 6, para. 4 and 5).

28. The main question relates to the meaning and scope of  the term “the most serious crimes”.  The language of the International Covenant on Civil and Political Rights suggests that a gradation of crimes is implied: crimes, understood in generic sense of acts or omissions liable to punishment; serious crimes or grave crimes; and the most serious crimes; that is, those which reach the greatest or highest degree of evil, harm and danger to the society.  According to the International covenant only the most serious crimes are punishable by the death penalty.

29. The term “the most serious crimes” used in the International lacks precision and is liable to disparaging interpretations. The annotation of the text of the International Covenants, prepared by the secretary General (A/2929) retained the criticism of this term stating that the concept of “serious crimes” differed from one country to another (Chap. IV, para. 6).  Legal definitions facilitate, but do not necessarily ensure, a uniform interpretation.  The absence of legal definitions does not diminish the binding character of legal obligations, nor does it impede or jeopardize the application and interpretation of the norms in question.  The simple reference of a common and accepted legal definition, the text itself, first, and the context, second, as stipulated in the Convention on the Law of Treaties, should direct the application and interpretation.

30. The Human Rights Committee stated that “the expression ‘most serious crimes’ must be read restrictively to mean that death penalty should be a quite exceptional measure”, and that, as State parties are not obliged to abolish the death penalty totally, “they are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes.” 2/

31. The Economic and Social Council adopted Safeguards guaranteeing protection of the rights of those facing the death penalty in the annex to its resolution 1984/50, which states that the term the most serious crimes must be understood as meaning that their scope “should not go beyond intentional crimes with lethal and other extremely grave consequences”, that the death penalty may be impose only when the guilt of the accused is “based upon clear facts”  and that it should be carried out so as to inflict the minimum possible suffering.  On the other hand, the lawful application of the death penalty implies compliance with the guarantees of the due process of law, in conformity with articles 6, paragraph 2, and 14 and 15 of the International Covenant on Civil and Political Rights.

32. The law of Hodoud and Qasas punishes with the death penalty a variety of actions aiming at the overthrow of the Government (art. 198-200).  Capital punishment is also imposed for to the following (a) “all members and supporters” who, knowing the stand of the group or association which rises in arms against the government, actively participate in the furthering of such organizations, even if they do not participate in the military wing (art. 198); (b)  those plotting to overthrow the Government who procure arms and explosives to that purpose, as well as those who put means, tools and weapons at their disposal with knowledge and intention (art. 199); and (c)  anyone who, in the plot to overthrow the Government, nominates himself for a sensitive post in the coup d’etat government and whose candidature is effective in any manner in realizing the coup d’etat (art. 200).

33. The penal provisions mentioned above do not distinguish between crimes, serious crimes and the most serious crimes.  In the absence of any distinction it may be understood that all the actions punishable by the death penalty are considered the most serious crimes.  The language use is extremely loose, and consequently includes members and “supporters” of violent organizations, even though such “supporters” have not necessarily participated in military action.  Thus, all kinds of support are punished by the death penalty.  This raises the question whether sympathizers are considered to be supports and whether support includes ideological support and, for example, the distribution of leaflets.  There is no differentiation between substantial support and minor support, between active support or mere opinion.  Furthermore, the use of the word “means” in article 199 of the Law of Hodoud and Qasas, in the absence of any qualification, implies that an extremely broad interpretation is technically admissible.

34. There is no trace in the Law of Houdad of any gradation of penalty to accord with different degrees of participation in the offence.  Criminal methodology distinguishes between degrees of liability in the iter criminis, either in terms of the offender’s guilt or in terms of his supposed dangerousness.  In descending order, punishment is imposed for the same offence on perpetrators, accomplices and accessories after the act.  In the case of offences committed by groups of persons, the maximum sentences generally given to some of the persons convicted and somewhat lighter sentence to the rest of the joint defendants.

35. The absence of these technical differentiations may result in a large number of death penalties, and the drafters of the new Penal Code may wish to examine technical innovations in order to reduce the offences punishable by the highest penalty and give the judges power to choose from a broad range of punishments in or to adapt each punishment to the particular circumstances of other offence and the conditions of the offender.

36. In addition to technical arguments and the required coherence with the International Covenant, enlightened opinion and indigenous schools of thought in the Islamic Republic of Iran may wish to bear in mind that there are groups of Islamic legal scholars and practitioners who recommend the abolition of the death penalty for political crimes on the grounds that it is contrary to Islamic law.  They state that the number of crimes punishable by the death penalty is limited. 3/

C. Irregularities concerning investigation and trial

37. irregularities during the investigation and trial of accused persons sometimes result from the absence of legislation in keeping with international instruments, but more often from shortcomings in the enforcement and supervision of existing law.  It may be useful to present for the consideration of the Iranian government a brief catalogue of irregularities denounced under the terms of the International Covenant on Civil and Political rights.

1. Arbitrary arrests

46. According to recent information, the Supreme Judicial Council has issued a directive approving the imprisonment or exile for up to two years of anyone with a criminal record, even without evidence of further criminal acts.

47. Detention of family members of person’s accused of political crimes in order to obtain information on their whereabouts appears to be a common practice.  These detainees rarely go on trial, but remain in gaol for unspecified, usually long, periods of time.  An article in Etela’at on 4 August 1987 reported that 36 parents had been arrested because their sons had not reported for military service.

48. The practice of detention of prisoners after the expiration of their sentence has frequently been reported.  This practice affects in particular political prisoners, and is reported to occur mainly when, in the opinion of the lower echelons of authority, they are not sufficiently repentant, or are suspected of possible continuation of political activities upon release.  Political prisoners are some times requested to sign a declaration undertaking that they will no longer participate in activities against the Government.  If they fail to sign such a promise, they are remanded.

49. Arrests are apparently so numerous that some high officials have requested the authorities to act with more moderation.  A high-ranking official was reported on 6 June 1987 to have advised security forces to be satisfied with “the minimum number of arrests necessary”, and to have said that the arrested persons should be promptly charged and tried.

2. Information on reasons for arrest

46. The International Covenant on Civil and Political Rights prescribes that anyone who is arrested shall be informed immediately of the reasons for his or her arrest and the ensuing charges (art. 9 para. 2).  The Iranian Constitution contains a similar provision: “In the case of arrest, charges and supporting evidence must be communicated immediately in writing to the prisoner and be elucidated to him” (art. 32).

47. Information received over several years indicates that these provisions are not properly applied.  Reliable witnesses have affirmed that many prisoners remain ignorant of the charges against them for weeks and even months, and that it is through interrogation that they sometimes learn of the reasons for their arrest.

3. Ill-treatment and torture

46. Reports on ill treatment and torture continued to be received.  Arrests are said to be made in an intimidatory manner, and investigation, trial and serving the sentence are reportedly effected under duress, hardships, and different kinds of torture.  The Revolutionary Guards, some law enforcement officers and prisons warders have been specifically accused of a variety of biased procedures.

47. The existence of torture has been officially denied although indications of hardships during the first years of the Revolution have been alluded to.  In an interview published by Die Welt on 10 August 1987, a very high government official stated: “there may have been hardships in interrogation in early phase of Revolution”, and continued, “there is no torture in our Islamic Republic… because it is forbidden by our Constitution”, and “anyone using torture during interrogation is punished himself”.  According to this statement, torture or ill treatment are not condoned by the higher circles of power.  This being the case, those circles may wish to undertake a thorough and impartial investigation of the reiterated charges communicated by the United Nations during the past few years.

4. Solitary confinement

46. Former prisoners have complained of incommunicado or solitary confinement, not as a disciplinary measure to punish misdemeanors related to the prison regime, but as part of a method of obtaining confessions or information.  According to witnesses with personal experience, the moral and mental health of the prisoners suffer on account of this treatment.

5. Legal aid

47. The Iranian Constitution provides for legal aid: “in all the courts, the parties to the case have the right to choose their own lawyer and, if a person cannot afford to secure legal counsel, it must be provided for through legal aid.”  The International Covenant on Civil and Political Rights states that everyone shall have adequate time and facilities to prepare his defence and to communicate with counsel of his own choosing, and to have legal assistance, in any case where the interests of justice to require, without payment in case of need (art. 14, para. 3 (b) and (d)).

48. According to oral and written information received, political detainees have no opportunity to prepare their defence or communicate wit a legal counsel, nor do they receive legal assistance.  Usually they are alone during the trial, which generally takes a few minutes and finishes before the defendants realize what is happening.

6. Public hearing

49. The International Covenant on Civil and Political entitles defendants to a fair and public hearing by a competent, independent and impartial tribunal established by law.  Only reasons of morals, public order or national security, or the interests of private parties, permit exclusion of the public and the press from the hearings (art. 14, para. 1).  None of the less, hearings concerning political defendants are usually held in the sole presence of judges and security officers, and without a lawyer, family members, the public or the press.

7. Calling of witnesses

50. The International Covenant on Civil and Political Rights prescribes, as a guarantee of a fair trial, the examination of witnesses against the defendant and the attendance, under the same conditions, of witnesses on his behalf (art. 14, para. 3 (e)).  According to the information collected, judges usually rely more on confessions than on testimony ,  and officers in charge of the investigation try to obtain the defendants’ confession, by whatever means they consider appropriate.  Defendants are not permitted to call witnesses in their own defence or to examine witnesses for the prosecution.

8. Review by a higher tribunal

51. The International covenant on Civil and Political Rights states that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal (art. 14 (5)).  The review of death sentences by the Supreme Judicial Council has been introduced recently.  This revision is pertinent and in line with the International Covenants.  Nonetheless, it needs improvement since, for the time being, the convicted person has no right to present statements with respect to his trial and conviction.

9. Pardon or commutation of sentence

52. The International Covenant of Civil Political Rights states that every person condemned to death is entitled to seek pardon or commutation of sentence (art. 6, para. 4).  According to reliable information, there is no such recourse under Iranian legislation.

10. Remedies

53. In the International Covenant on Civil and Political Rights, States parties solemnly undertake to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the Covenant (art. 2 para. 2).  Insufficient legislation or flaws in application may be found in any country, and no country is immune to abuse of power.  On the understanding that some violations of human rights may occur everywhere, the question of judicial remedies is an important one.  Every State party to the International Covenant on Civil and Political Rights is required to establish a legal and administrative system that ensures compliance with international obligations.  Problems concerning human rights may be subject o an immediate and equitable remedy.

54. Each State party to the international Covenant on Civil an Political Rights undertakes to ensure that any person whose rights are violated shall have a an effective remedy “notwithstanding that the violation has been committed by persons acting in a official capacity” (art. 2 para. 3 (a)).  Every person claiming such a remedy shall have his right there to determined by competent judicial, administrative or legislative authorities, and to develop the possibilities of judicial remedy (art. 2 par. 3 (b)).  Every person shall be ensured that the authorities shall enforce such remedies when granted (art. 2 para. 3 (c)).  In case of unlawful arrest or detention anyone “shall have an enforceable right to compensation” (art. 9, para. 5).

55. The Islamic Republic of Iran has officially informed the Human Rights Committee, in its initial report (CCPR/C/1/add. 58) of basic laws and regulations that have been adopted in order to guarantee human rights and fundamental freedoms.  This report mentioned the following laws: (a) the state General Inspection Act, which enables the judiciary, on the basis of article 174 of the constitution, “to investigate, in its continuous and extraordinary inspections, any discord or offence committed by civil and military organs and all the Revolutionary institutions, and to pursue the matter through legal channels until the attainment of the full results”; (b) the Administrative Court of Justice Act, which empowers the Court, on the basis of article 173 of the Constitution “to investigate litigations, complaints and protests of the public against the government officials, units or regulations”, and enables any individual to lodge a complaint against any injustice or oppression committed by government officials.  Furthermore, the review of death sentences by the Supreme Judicial Council has been introduced recently.  These laws provide remedies, but, at present, for reason, which are not easy, to determine, it appears that the action of government agencies in this field has not been sufficiently effective. To date there is no known case of punishment of a government official for abuse of power nor of compensation for arbitrary arrest.  Citizens need to be assured that complaints against government agencies or officials will not be construed as destabilizing acts.

56. Under these conditions, it seems that definite and decisive action may come from the highest spheres of power, through the adoption of a determined policy and comprehensive planning from the enactment of appropriate legislation.  Political leaders have started to advise government agencies on humanitarian treatment of prisoners.  In that context, it is pertinent to note that a high-ranking official was quoted by Keyhan on 16 August 1987 as stating that prisoners should be well treated and not harmed and insulted, and that those who had suffered ill treatment should be compensated.  Addressing the Supreme Judicial Council, the same official stated, as reported by Keyhan in July 1987, that “if the rights of the people are safeguarded by the State Judicial apparatus, then the regime can be recognized as a just regime”, and that “if we can make our country a judicial example in the world, then other countries will imitate us”.

57. Examining the compliance of State parties with the International Covenant on Civil and Political Rights, the Human Rights Committee stated that it was not sufficient to prohibit torture, and inhumane or degrading treatment or punishment or to make it a crime. “States must ensure an effective protection through some machinery of control”, and, “complaints about ill treatment must be investigated effectively by competent authorities.  Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation.” 4/

VI. GENERAL CONSIDERATIONS AND CONCLUSIONS

58. The observations formulated by the Iranian Government on the final report of 1988 (E/CN.4/1988/24) and on the draft resolution, subsequently adopted by the Commission on Human Rights, contained important views that were analyzed in the interim report (A/43/705, paras. 52-63).  In that document, the Special Representative considered that, although, in some respects, insufficient progress had been achieved to make the Iranian position convergent with the demands of binding international instruments, several positive approaches and opinions had made those observations useful, promising and conducive to a better understanding of views, which was a prerequisite for the improvement of the human rights situation.

59. In the interim report, the Special Representative expressed full conformity with the principle of fairness, objectivity and no-selectivity regarding the international system of human rights, as expressed in the comments made by the Permanent Representative of the Islamic Republic of Iran during the consideration of the item at the forty-fourth session of the Commission on Human Rights.  Two approaches seemed essential to ensure the fair use of that principle: first, the meticulous exclusion of political objectives and second, the strictest adherence to the universally recognized protection of the inherent rights of all human beings, irrespective of nationality, race, religion, political affiliation or sex.  That principle should regulate all studies, activities and recommendations regarding human rights.

60. Among the statements of the Iranian Government, the following deserves to be highlighted: “maters raised by the Special Representative may still be considered in practical terms; there is no unsolvable complication stemming from [in] compatibility between Islamic and international law’.  Furthermore, the Iranian government indicated- and this may be the crucial point of the statement- its readiness to seek a practical approach to the pending problems, a kind of modus operandi purposely designed to attain specific results.  As a matter of fact, provisionally setting aside questions of doctrine and philosophy, as happened during the adoption of the Universal Declaration of Human Rights, may facilitate the convergence between national and international human rights systems.  Notwithstanding the importance of beliefs and concepts in the world and society, what is needed first and foremost is compliance with international standards.  The position of the Iranian Government, properly developed, may determine practical goals, establishing a scale of priorities and a timetable for their attainment, that is, for the formulation of a complete plan of action.

61. Another interesting point was assertion that the Iranian Government was ready to extend full co-operation to the competent organs of the United Nations.  This assertion was, however, qualified by the indication of two obstacles: one concerning the language of the resolution of the Commission on Human Rights and the other the sources of information used for the preparation of reports.  Adopting a pragmatic approach, and in order to facilitate the progress of the current exercise, which is moving slowly but steadily, it might be considered a viable option to engage in a certain kind of dialogue and negotiation that could mainly be an exercise of persuasion, undertaken by the parties concerned.  Instead of waiting for a change of circumstances and dispositions, some concerted contribution to such a change might be made, within a modus operandi, in which for example, a distinction could be drawn between what is essential and what is not, the abstract and the concrete, and areas where concessions can be cannot be made.  The Special Representative expresses his willingness to engage in such an exercise.

62. The Special Representative expresses appreciation for the co-operation that the Iranian government has extended to him so far and reiterates his expectation of full co-operation in the near future, as repeatedly requested by the General Assembly and the Commission on Human Rights.  The Special Representative reaffirms his belief that the agreement on some important issues recently reached with the Iranian government constitutes a step forward in the discharge of his mandate, and that recognition of the co-operative nature of the surveillance of human rights by the United Nations, together with a pragmatic approach to pending problems, may lead to a gradual improvement of the current human right situation along the lines requested by the competent organs of the Nations.

63. Previous reports noted the coexistence of two complementary levels or structures concerning human rights, the normative and the administrative.  The normative structure is formed by both international instruments and municipal law, the latter adapted to the former in order to constitute a harmonious legal body.  It is up to each State party to the Charter of the United Nations and the International Covenants on Human Rights to take legislative and administrative measures to ensure the enjoyment of human rights.  The obligation to investigate possible violations and eventually to redress them stems from the obligation concerning the protection of human rights.  This obligation flows normally and necessarily from the agreed goals, as it is understood that those agreeing on the ends also agree to provide the means needed for their attainment.  The refusal provide the means for effectiveness would render the agreed goals meaningless and would constitute an infringement of the fundamental principle of good faith in international relations.

64. As the trial period for the Penal code has expired or is about to expire, the Iranian government has golden opportunity to co-ordinate that Code with international instruments on human rights.  Shortcomings regarding fair trial may be remedied, punishment may be graduated to fit the crime, the death penalty may be restricted to the most serious crimes, provisions on political crimes may be developed in a more sophisticated way, and punishments considered to constitute torture may be replaced by others that are more in conformity with international standards.  This may be the opportunity to exempt juvenile offenders under the age of 18 from the death penalty.

65. The Special Representative voices his concern with respect to the apparent flaws in the legal system. And in particular: (a) frequent irregularities regarding fair trial, such as the absence of prompt information of detainees regarding the charges against them, legal aid, presentation of witnesses and public hearings; (b) the larger number of arrests and the intimidatory manner in which they are carried out; (c) poor conditions of imprisonment, such as overcrowding, prohibition of regular visits by family members and friends and sometimes incommunicado or solitary confinement.

66. Reiterated and concurrent reports on ill treatment and torture during investigation, trial and imprisonment continued to be received during the period under consideration.  Oral information provided by first-hand witnesses and victims was pathetic and moving.  The statements of witnesses convinced the Special Representative that the treatment of political prisoners in some Iranian prisons was inconsistent with international standards.  As stated before, international obligations imply a duty to investigate complaints and ensure redress.  The alleged facts, as described, are sufficient in number and nature to arouse suspicion that all is perhaps not as it should be, and therefore full and prompt investigation and redress are required.

67. During the period under consideration, executions were reported to have been carried out in secret, apparently in order to avoid uproar in the media and international public opinion.  The trend over the past two years towards a steady reduction in the number of executions was abruptedly interrupted during the months of July, August and September 1988, when a wave of summary executions took place following the invasion of the Islamic Republic of Iran by an irregular army.  These events prompted the Special Rapporteur on summary and arbitrary executions to resort to the urgent appeal procedure in an effort to put an end to the anomalous situation.  The Special Representative shared the concern of the Special Rapporteur and supported his action.

68. The global denial of the wave of executions, which allegedly took place from July to September of last year and, according to recent information, continued in October, November and December 1988, is not sufficient to dismiss the allegations as unfounded.  Within the framework of normal procedures for the international monitoring of human rights, concrete allegations should be refuted in concrete terms.  Therefore circumstantiated replies are needed to clarify the facts.  There is no doubt that an invasion of Iranian territory was undertaken by rebel Iranian groups in July 1988, is not sufficient to dismiss the international monitory of human rights, concrete allegations should be refuted in concrete terms.  Therefore circumstantiated replies are need to clarify the facts.  There is no doubt that an invasion of Iranian territory was undertaken by rebel Iranian groups in July 1988, and that bloody battles ensued in towns and villages along the border with Iraq.  Nonetheless the allegations received from several sources, including non-governmental organizations, and reported in the media, referred to summary executions in places that were not affected by military operations.  Many allegations contained names, places and dates of supposed executions, and some of them referred to persons arrested long before those events had taken place and to former prisoners who were rearrested.  These allegations deserve to be the subject of detailed investigation and information form the Government concerned, in conformity with international practice.  In particular, it may be expected that the application of the norms on fair trial with respect to each case should be investigated and the results of that investigation reported.

69. Independently of the motivations behind summary executions, and even on the assumption of compliance with the Penal norms in force with respect to the application of capital punishment, summary executions suggest per se that there are flaws or loopholes in the normative system for a fair trial.  Summary executions do not provide enough time to prepare the defence of the accused or to present proof, still less do they allow for other examination of such proof beyond reasonable doubt.  Whenever there is a summary execution the preliminary presumption is that the norms for a fair trial have been disregarded or do not exist.  Certainly this preliminary presumption may be dispelled if it is demonstrated that the norms for the fair trial have been duly applied.  The preliminary presumption referred to is one of the specific reasons for the particular interest of the international community regarding summary executions, reflected, inter alia, in the continuous monitoring of such events by a special rapporteur.

70.  The number of political prisoners is another matter of concern.  Even on the basis of official figures, the number is high and has moved high-ranking officers to demand moderated zeal in the application of security means aimed at preserving order and peace.  It seems that there is some veracity in the allegations that persons may be goaled on the basis of mere suspicion of misdoing or on account of adverse political opinions or political criticism.  In other words, it seems that there are indeed a number of prisoners of conscience.

71. The situation of the Baha’is continued to be uncertain.  Two members of the Baha’i community were reportedly executed in November 1988.  Although the number of prisoners diminished to around 100 and no new arrests have been reported since February 1988, there were proofs of harassment and persecution of those who remained free.  Copies of official document and advertisements in local newspapers confirmed that the Baha’is continued to be denied access to universities as well as employment.  Their frozen or confiscated property has not been returned to them and their commercial licenses were removed or refused, depriving them of their means of livelihood.  Concurrent reports indicated that they were incessantly advised that all hardships would cease as soon as they recanted their faith.

72. It is not advisable to dismiss any allegation on the mere ground of the supposed political bias of the source collecting the information.  The collecting or intermediary source may be distinguished from the direct source.  As explained in previous reports, the Special Representative is primarily interested in individual cases, because the rights enshrined in the International Covenant on Civil and Political Rights are individual rights.  Certainly in evaluating evidence, information collected by independent sources may, in principle, have more weight than that from compromised ones.  In the cases under consideration, the information was provided by various sources, such as witness with personal experience of the facts, Iranian newspapers, media from several countries and mom-governmental organizations, and they broadly corroborated each other.

73. When introducing his interim report to the Third Committee, the Special Representative stated that recent political events in the region of the Persian gulf could have a positive incidence on the general atmosphere and be conducive to increasing respect for the effective observance of human rights in conformity with international requirements and standards.  The introduction highlighted the expectations stemming from the cease-fire between Iraq and the Islamic Republic of Iran and welcomed that development.  In fact, the cease-fire was one of the most celebrated international achievements in 1988 and should constitute the first step towards stable and just peace.  The special Representative again expresses his immense satisfaction and deep appreciation for that development which has rightly been acclaimed by the international community.  The Special Representative also expects that, under the new circumstances, the Iranian Government will soon turn its positive attention to pending human rights problems, as indicated in the official attention to pending human rights problems, as indicated in the official statement made by its Permanent Representative to the United Nations.

74. It seems that, in order to improve the human rights situation, at both the legislative and administrative levels, a firm, consistent and enforceable policy adopted by the highest authorities may be necessary.  As an important part of that policy, investigation of abuse power at all levels of the administration and in particular at the level of law enforcement units would have to be undertaken as a matter of urgency and priority, punishing violators turn its attention to human rights, these grievances may find timely and pertinent relief.

75. The Special Representative continues to believe that the Islamic Republic of Iran might benefit from the establishment of a national commission on human rights.  Such a body could be composed of independent, competent and representative personalities, with full guarantees for traveling, communications inside and outside the country, collection of information, visits to prisons and prisoners, access to the authorities, exposure to the media and guaranteed exercise of independent functions.

76. The Iranian Government may wish to consider the establishment of a programme of information on human rights for law enforcement personnel and take advantage of the technical assistance provided by the [Center] for Human Rights of the United Nations.

77. In order to solve the pending problems regarding the resolutions of the competent organs of the United Nations the Special Representative considers it timely and appropriate to plead with the Government of the Islamic Republic of Iran, as a matter of urgency, to take measures such as the following: (a) to extend full co-operation to the Special Representative for a total fulfillment of his mandate, including a visit to the country; (b) to investigate all allegations of human rights violations to report in detail on the result of such investigations; (c) to take legislative and administrative steps to ensure fair trials; (d) to ensure that the prison regime conforms to international standards and that prisoners are not subjected to unjustified or unnecessary hardships; (e) to suppress ill treatment and torture, during both investigation and imprisonment;  (f) to limit use of the death penalty strictly to the most serious crimes, to exempt from the death penalty strictly to the most serious crimes, to exempt from the death penalty those under 18 years of age and to replace punishments involving torture by punishments with international instruments on human rights is adopted and enforced by the highest competent officials.

78. In conclusion, the basic pattern of the human rights situation of the past few years still prevails, with its essential features, but with changes here and there.  The Special Representative maintains his belief that acts persist in the Islamic Republic of Iran that are inconsistent with international instruments on human rights, and that the prevailing situation in that country justifies international concern, study and constant monitoring by the United Nations and its specialized organs such as the Commission on Human Rights.

Notes

         1/            Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40),  annex V, general comment 7 (16), para. 2.

         2/            Ibid., general comment 6 (16), paras. 6 and 7.

         3/            Les droits de l’homme en Islam,  International Commission of Jurists, University of Kuweit and Arab Lawyers Union, Report of an international symposium held in Kuweit, December 1980, chap. II, recommendation 36.

         4/            Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 7 (16), para.1.