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UNITED
NATIONS
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Economic and Social
Council
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Distr.
GENERAL
E/CN.4/2004/3/Add.2
27
June 2003
ENGLISH
Original: FRENCH
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COMMISSION ON HUMAN RIGHTS
Sixtieth session
Item 11 (b) of the provisional agenda
Civil
and Political Rights, Including the Question of Torture and Detention
Report
of the Working Group on Arbitrary Detention
Addendum*
Visit
to the Islamic Republic of Iran (15-27 February 2003)
Executive Summary
The Working
Group on Arbitrary Detention visited the Islamic Republic of Iran from
15 to 27 February 2003 at the invitation of the Government. This was the first visit under the machinery
established by the Commission on Human Rights since February 1996. The delegation visited a number of prisons,
detention centres and police stations in Tehran, Shiraz and Esfahan and met
government, legislative and judicial leaders, representatives of non‑governmental
organizations and families of prisoners.
The report
analyses the prospects for reform of the administration of justice, in
particular with regard to detention pending trial and visiting rights, and
reform of the public prosecution service and criminal procedure. During the visit the Working Group noted that
situations of arbitrary detention were essentially related to infringements of
freedom of opinion and expression and many malfunctions in the administration
of justice, in particular concerning due process of law, abuse of “solitary
confinement”, the role of the revolutionary tribunals and clerical courts, the
failure to take account of the principle of proportionality in passing
sentence, and the consequences of the abolition of prosecutors between 1995 and
2002 on observance of the right to a fair trial.
In its
recommendations the Working Group gives priority to the progressive transfer of
authority from the revolutionary tribunals and clerical courts to the ordinary
courts to reduce the proliferation of judicial decision-making bodies, review
of the practice of solitary confinement, the progressive freeing of prisoners
of conscience, guarantees of due process and reform of imprisonment for debt. The Working Group concludes with the hope
that the current obstacles to the reforms needed will be removed with a view to
strengthening the rule of law.
Annex
CONTENTS
Introduction
I. PROGRAMME
FOR THE VISIT
II. INSTITUTIONAL
AND LEGAL FRAMEWORK FOR DETENTION
A.
Institutional framework
B.
Legal framework
III. EFFORTS
NOTED AND DIFFICULTIES ENCOUNTERED IN
COOPERATING WITH THE WORKING GROUP
IV. PROSPECTS
FOR REFORM
V. SITUATIONS
OF ARBITRARY DETENTION NOTED AND THEIR
CAUSES
A. Arbitrary
detention related to recurrent infringements of
freedom
of expression
B. Arbitrary
detention related to malfunctions in the
administration
of justice
VI. CONCLUSIONS
VII. RECOMMENDATIONS
Introduction
1. On 24 July
2002 the Government of the Islamic Republic of Iran announced that it was
issuing a standing invitation to all thematic mechanisms of the Commission on
Human Rights. In a letter dated 23
October 2002 the Permanent Representative stated that his Government had
decided to invite the Working Group to visit the Islamic Republic of Iran.
2. The visit
took place from 15 to 27 February 2003.
The delegation comprised Mr. Louis Joinet, Chairman of the
delegation and Chairman-Rapporteur of the Working Group, and Ms. Leïla
Zerroügui, Vice-Chairperson of the Working Group, as well as the Secretary of
the Working Group, an official from the Office of the United Nations High
Commissioner for Human Rights and two interpreters from the United Nations
Office at Geneva. It should be noted
that the visit by the Working Group was the first by a thematic mechanism of
the Commission since 1996, when the Special Rapporteur on freedom of religion
or belief (formerly called the Special Rapporteur on religious intolerance)
visited the country. The visit by the
Working Group was also the first mission to the country by a Commission
mechanism since February 1996, the date of the last mission by the Special
Representative of the Commission on Human Rights on the situation of human
rights in the Islamic Republic of Iran, Mr. Maurice Danby Copithorne.
I. PROGRAMME FOR THE VISIT
3. The
delegation twice visited Evin prison in Tehran, Esfahan and Shiraz prisons, the
Shiraz military prison, the main police station in Tehran and police stations
in Shiraz and Esfahan.
4. The Working
Group met senior officials from the executive, legislative and judicial
branches on a number of occasions, including the Deputy Head of the Judiciary
for International Affairs, the Vice‑President of the Supreme Court for
International Affairs, the chief administrative officer of the judiciary in
Tehran, the Deputy Minister of the Interior for Security, the Governor-General
of the province of Esfahan, the Governor-General of the province of Fars, the
Director-General for Legal and International Affairs of the Ministry of Foreign
Affairs, the members of the Supreme Council for Judicial Reform, the President
of the second division of the Special Clerical Court, the Vice-President of the
Revolutionary Tribunal, the Director of the National Prisons Office, and the
Commander of the Police Force of the Islamic Republic of Iran.
5. The
delegation also held working meetings with the Islamic Human Rights Commission,
the Article 90 Parliamentary Commission and the Bar Associations of Tehran,
Esfahan and Shiraz, non-governmental organizations and prisoners’ families.
6. Throughout
the mission the Working Group enjoyed the full cooperation of the Government
regarding access to prisons and holding cells in police stations.
7. The Working
Group wishes to thank the authorities for their full cooperation during the
visit, as well as the United Nations Development Programme and the United
Nations Information Centre in Tehran for its assistance and its substantive and
logistical support.
8. The Working
Group adopted this report at the 7th meeting of its thirty‑sixth
session. In accordance with paragraph 5
of its revised methods of work, the Iranian member of the Working Group did not
take part in its deliberations.
9. For 14
years, starting in 1984, the Commission designated a so-called “geographical”
special representative to make a thorough study of the human rights situations
in the Islamic Republic of Iran. From
1997 on, i.e. for a little over six years, in a reaction to the creation of
this procedure, the two successive Special Representatives, Mr. Reynaldo
Galindo Pohl and Mr. Maurice Copithorne, were no longer permitted to visit
the country.
10. Taking into
consideration this impasse, the Iranian authorities finally took the initiative
in cooperating with the Commission by issuing a standing invitation in 2003 to
all those responsible for thematic mechanisms.
It is in this context that the Working Group’s visit took place.
11. This report
will consider:
The
institutional and legal framework for detention (II);
Efforts
noted and difficulties encountered in cooperating with the working group (III);
Prospects
for reform (IV);
Situations
of arbitrary detention noted and their causes (V).
II. INSTITUTIONAL AND LEGAL FRAMEWORK FOR
DETENTION
A. Institutional framework
12. The President
of the Islamic Republic of Iran, head of the executive but not Head of State,
is elected by universal suffrage for a four‑year term, renewable once
only. He chairs the Council of
Ministers.
13. The Head of
State is the Supreme Leader of the revolution.
He is elected for life by an 86‑member college of religious
experts who, in turn, are elected by direct universal suffrage.
14. Legislative
authority lies with a unicameral chamber of 290 representatives elected by
universal suffrage. Candidates must have
previously been endorsed by the Council of Guardians, comprising
12 members responsible for monitoring compliance of legislation with the
Constitution and Islam. The Council has
a veto. In the event of conflict between
Parliament and the Council of Guardians, the dispute is arbitrated by the
Council on the Higher Interest of the Regime, comprising some 30 members
appointed by the Supreme Leader. Hence
the absolute pre-eminence of the authority of the Supreme Leader over the head
of the executive and the legislative and judicial branches.
B. Legal framework
15. Since its
Islamization the Iranian legal and judicial system has been heavily influenced
by Shariah laws and norms. Under the
system the conception of justice is rooted in Islamic law, conceived of and
practised at a time when the norms of due process, as defined in contemporary
international law, were neither known nor applied. For example, the principle of separation of
authority for prosecution and judgement, the authority of res judicata,
the prohibition of discrimination on the basis of sex, religion or nationality,
the prohibition of the use of certain sanctions which today are comparable to
torture or cruel, inhuman or degrading treatment. That explains why, as observed by the Working
Group, the legal framework for detention, as applied in the Islamic Republic of
Iran, has significant shortcomings with regard to international principles and
norms. Thus, the role of counsel -
fundamental in a State subject to the rule of law - is secondary in the
administration of justice.
1. Code of Criminal Procedure
(a) Procedure applicable in prosecution,
committal proceedings and sentencing
16. Under article
32 of the Constitution, “no one may be arrested other than in accordance with
the procedure laid down by law. In case
of arrest, charges with the reasons for the accusation must, without delay, be
communicated to the accused in writing, and a provisional dossier must be
forwarded to the competent judicial authorities within a maximum of
24 hours so that the preliminaries to the trial can be completed as
swiftly as possible”.
17. In practice,
most of the individuals visited by the Working Group were prosecuted and
sentenced during the seven-year period in which the prosecution service was
suspended. Prosecution was subject to
authorization by the National Security Council (Code of Criminal Procedure,
art. 15). Prosecutors were
ultimately reinstated at the end of 2002, a development welcomed by the Working
Group.
(b) Due process of law
18. During
committal proceedings, counsel may be present, but may not speak until the end
of the proceedings. In “sensitive”
cases, the judge has the discretionary authority to exclude counsel from the
hearing for sentencing (Code of Criminal Procedure, art. 128).
(c) Public trials
19. The judge may
refuse a public trial if it seems incompatible with “accepted principles of
morality or public order” (Constitution, art. 165) and proceedings in
camera are conducted when the charges relate to national security or if a
public trial “would offend the religious sentiments of the people” (Code of
Criminal Procedure, art. 188).
Thus, following a series of political assassinations and kidnappings
resulting in the disappearance of opposition figures in the second half of
1998, the military court trying the Ministry of the Interior agents involved met
in camera, so that the victims were not able to attend the hearings. It will be noted that under article 168 of
the Constitution political and press offences are to be tried openly in courts
of law in the presence of a jury.
(d) Rules of evidence
20. The rules of
evidence are based on the constitutional principle of the presumption of
innocence (art. 37). Their scope is
however limited in practice by the importance attached to confession, to the
“satisfaction of the judge” - comparable to “reasonable certainty”, and to
evidence by witnesses. The latter point
is all the more disquieting since evidence by a man is equivalent to that of
two women. Moreover, in
establishing the existence of certain offences (adultery, theft, homosexuality,
lesbianism, corruption, etc.), testimony by women alone or given jointly with
just one man cannot be accepted as evidence (arts. 119, 74, 75, 76,
199). It should be noted that the use of
torture “for the purpose of extracting confessions or acquiring information is
expressly forbidden” by the Constitution (art. 38).
(e) Appeals
21. Under article
232 of the Code of Criminal Procedure judgements by ordinary courts and
revolutionary tribunals are final, and are not subject to appeal on points of
law. However, in the event of a sentence
to the death penalty or to stoning, a sentence under lex talionis, a
flogging, confiscation of an asset worth more than 1 million rials, a term
of imprisonment longer than three months or a fine of more than
500,000 rials, appeal is possible. It should be noted that appeals against
decisions of religious courts are still more restricted.
(f) Res judicata
22. If a judge
considers that his decision is flawed or that he is not competent, he may refer
the case to a higher court for appeal or annulment (Code of Criminal Procedure,
art. 235). As there is no time
limit for proceedings, this right accorded the judge generates legal
insecurity, which results in inconsistency or arbitrariness, as noted by the
Working Group.
2. Islamic Penal Code (Islamic Punishments Act)
23. Iranian
criminal law comprises three categories of offence: crimes for which punishments and sentences
are determined and specified in Shariah, crimes infringing on the rights of
society and public order, and crimes violating the rights of natural persons
and/or legal entities (Code of Criminal Procedure, art. 2).
24. Crimes and
offences under the Islamic Penal Code fall into three categories, on the basis
of the applicable punishments. There are
five punishments for crimes: hudud,
quisas, diyah, ta’zir and preventive punishments.
(a) Hudud
25. This body of
criminal law is based on a comparison of crimes and offences with sin as an
offence against divine law. Proceedings
against perpetrators of these offences are initiated by the president of the
court even if no complaint is made (Code of Criminal Procedure,
arts. 3 and 4).
Applicable punishments are: the
death penalty; crucifixion; stoning; amputation of the right hand and, for
repeat offences, the left foot; flogging; imprisonment and exile. By way of example, the death penalty is
applicable in the following instances:
fornication involving a non‑Muslim man and a Muslim woman
(art. 82) and fornication by a single person involving a fourth act
(art. 90), the three previous offences being punishable by 100 lashes
of the whip (art. 110); homosexuality (art. 179); and consumption of
alcohol as a third offence, the punishment for the earlier offences being
80 lashes of the whip. Hudud
is also applicable to “apostates and corrupters” (art. 190) and
perpetrators of theft (art. 201) committed under the circumstances
provided for in article 198. Sixteen
conditions must be met for the following sentences to be carried out: amputation of the right hand, and for repeat
offences, the left foot, for the third instance of theft, life imprisonment,
and the death penalty for multiple repeat offenders; for the corrupter, four
punishments are applied: death;
crucifixion; amputation of the right hand, and for repeat offences, the left
foot; or exile.
(b) Qisas and diyah
26. This body of
criminal law is based on the ancient lex talionis. Proceedings against the life or physical
integrity of the person are subject to the decision of the victim, who may ask
for the guilty party to suffer the same treatment as he or she suffered or
accept financial compensation (diyah) in cases of murder (blood money)
or physical injury. In the absence of
agreement between victim and perpetrator, diyah is calculated on the
basis of a predetermined scale, with diyah for a woman being assessed at
half that for a man. This same highly
discriminatory principle is also applied to the three religious minorities
recognized under the Iranian Constitution.
(c) Ta’zir
27. Ta’zir
is defined in article 16 as “a punishment the nature or limits of which are not
defined in Shariah law but which are left to the discretion of the religious
judge and which may be imprisonment, fine or the lash (…)”.
(d) System of preventive punishments
28. In this
category article 17 of the Islamic Penal Code provides for: imprisonment in the form of detention pending
trial, fines, loss of civil rights, house arrest, banishment order, closure of
commercial premises, and withdrawal of authorization to carry out a profession
or activity. Under the article these
measures have an interlocutory character pending trial. As such they are at the discretion of the
competent judges and courts, without there apparently being any specific
guarantees.
III. EFFORTS NOTED AND DIFFICULTIES ENCOUNTERED
IN COOPERATING WITH THE WORKING GROUP
29. The Working
Group, aware that its visit was taking place after a long interval in
cooperation with international mechanisms, expected some misgivings. In fact, some weeks before the arrival of the
Working Group and despite the invitation issued by the Government, a senior
representative of the judiciary expressed hostility towards the Government’s
initiative, denying the news that a group of special rapporteurs was to travel
to the Islamic Republic of Iran to visit prisons (Islamic Republic News Agency,
20 February 2003).
30. It is not
unusual, in visits by the Working Group, for its working methods to be accepted
only reluctantly at first, inasmuch as they imply, in particular for junior and
mid‑level officials, a sea change in outlook when they realize, as was
the case on our arrival, that:
We
ourselves have chosen the prisons to visit;
We ourselves have selected the
prisoners to be interviewed, including some on the basis of evidently
“sensitive” lists, mostly on a random basis and in situ;
We select the place of interview at
the last moment, out of the field of view of surveillance cameras, with
frequent changes of venue;
Lastly, and this is the most
difficult aspect to have accepted, the interviews take place using our own
interpreters and without any witnesses, staff being invited to leave the
quarters visited.
31. Apart from
two incidents, one on a visit to sector 209 of Evin prison (see below), the
other during a visit to a women’s prison where a guard, quickly detected by the
Working Group, attempted to pass herself off as a prisoner, which led to a
formal protest by the Chairman‑Rapporteur, for the most part the Working
Group is pleased to note that these rules were respected. The Group was even able to conduct an unannounced
visit to Shiraz military prison, which, with very few exceptions, is refused in
most countries. So as to pre‑empt
any risk of manipulation that might tarnish the willing cooperation displayed
by the authorities, the Working Group, whenever possible, drew up a plan of
each prison to be visited on the basis of accounts by former inmates in exile
and obtained photographs of most of the political prisoners it intended to
interview. This wise precaution made it
possible for the Working Group to refute rumours of hidden places of detention
in the prisons visited and of prisoners being substituted. In terms of access to prisons and prisoners,
the Working Group thus considers that cooperation by the authorities was on the
whole positive.
32. The difficulties
encountered concern:
(1) Relations with families of prisoners. While the Working Group was able to arrange
meetings at its hotel without difficulty with two delegations of families of
Iranian prisoners of war imprisoned in Iraq during hostilities, that was not so
for family members of political prisoners held in the Islamic Republic of
Iran. Some examples: one of the few people met at the hotel was
later questioned by the police and his identity card was confiscated; while the
Working Group was visiting the provinces, on several occasions groups of
families meeting near the hotel in Tehran were dispersed and some 20
participants arrested on the ground - according to the authorities - that they
had held unauthorized demonstrations.
The Working Group regrets these incidents all the more since, in its
view, these are instances of arbitrary detention in that the information
received indicates that these people were simply exercising the “right of
peaceful assembly” guaranteed under article 21 of the International Covenant on
Civil and Political Rights, to which the Islamic Republic of Iran is
party.
On its
return to Tehran the Working Group intervened to obtain their release and an
assurance that the people in question would not be harassed once the Working
Group had left. The authorities
subsequently confirmed that all the individuals had been released and would not
be prosecuted.
(2) The question of lists of prisoners. The Working Group wishes to recall that it
has always interpreted its mandate as applying as much to prisoners under
ordinary law as to political prisoners and prisoners of conscience. While many interviews were held without
difficulty with prisoners in the first group, around 140 selected at random,
the Iranian authorities insisted that a list should be provided in advance for
prisoners in the second category. On
principle, to avoid pressure on the prisoners to be interviewed, the Working
Group provided the list only on its arrival at the prison. The Group ultimately agreed to this
derogation on condition that it did not constitute a precedent. Owing to a lack of time, of 45 people on
this list, 14 were interviewed.
Accordingly, in a letter dated 6 March 2003, the Working Group
requested the Iranian authorities, in the spirit of the good cooperation
enjoyed, to provide details of the place of detention and legal status of the
31 other people on the list. To its
great regret, two months later, the Working Group had still not received any reply
at the time of adoption of this report.
(3) Visit to sector 209 at Evin. Access to this sector is in principle
“prohibited”. The delegation was finally
able to enter the sector, but the visit and interviews of prisoners were cut
short under the pressure of two unidentified individuals, apparently belonging
to the intelligence service, who, without identifying themselves, firmly
requested the delegation to leave, even though the authorization for the visit
and interviews with a number of prisoners had just been finally agreed by high‑level
ministerial representatives, who were with the delegation and thus present in
the prison. The incident was all the
more regrettable since it gave the impression, on the one hand, that there was
something to hide, and, on the other hand, that a secret service agent had
obstructed the will of senior government authorities, which is disquieting for
the future of the reforms being prepared.
One positive result, however, was that the Working Group was able to
visually verify the existence of this “prison within a prison” through which
most of the prisoners, in particular political prisoners, interviewed by the
Group had passed.
33. The Working
Group was informed by former prisoners in exile of a prison known as
No. 59, located in Tehran on the Vali Assr-e des Pasdaran base. The Group was unable to visit it owing to a
lack of time. These reports indicate
that a number of opposition figures have allegedly been held in that prison in prolonged
solitary confinement.
IV. PROSPECTS FOR REFORM
34. The judicial
authorities recognize the need for reform and assert that reform is a central
concern for them. The Working Group held
a meeting with the Supreme Council for Judicial Reform, responsible for reform
of the system of justice. The Council
comprises judges and academics working on an ongoing basis to strengthen,
according to our interlocutors, respect for human rights in the administration
of justice and to bring the Iranian judicial system and legislation into line
with international standards. Also
according to our interlocutors, the legal and judicial systems of over
40 countries have been studied in preparing the proposed reforms. It is this council that formulates and has
formulated draft legislation on reinstatement of the prosecution service, the
system of juvenile justice and the application of alternative sentences instead
of imprisonment. The Council is
currently preparing a reform of criminal procedure. The Working Group has asked to be kept
informed of this work and proposals for reform, but, to its great regret, has
not always received the information promised.
Information collected in situ nevertheless suggests that initiatives on
some issues have begun, but, as one member of the Council emphasized, “it is not
enough to reform laws, mentalities must change”. Three examples will confirm this:
(1) Detention pending trial and visiting
rights. In 2000 the Special
Representative, Mr. Copithorne, expressed particular regret that a
circular by the head of the judiciary concerning the right to family visits was
rarely applied. The point came up with
most of the
prisoners met. It seems that while the
situation has somewhat improved in some institutions - at least for ordinary
law prisoners - significant difficulties remain in the case of political prisoners,
particularly those held in solitary confinement wings such as sector 209 in
Evin prison.
(2) Reform of the prosecution service. In receiving the Working Group, the head of
the Tehran judiciary stated that the abolition of prosecutors seven years earlier
had been a disaster for the administration of justice. An amendment to the Code of Criminal
Procedure, voted by Parliament and approved by the Council of Guardians on
11 November 2002, has recently reinstituted the prosecution
service. The amendment also provided for
a merger of the prosecution function in ordinary courts and in revolutionary
tribunals with the aim of ending various inconsistencies. As it is, the reform has begun to be applied
in only three jurisdictions, including Tehran.
(3) Reform of the Code of Criminal Procedure. The Working Group regrets that the draft text
being prepared was not submitted to it.
Information from members of the Supreme Council suggests that the draft
would require the presence of a lawyer immediately after arrest, the right for
the accused to remain silent, assertion of the exceptional nature of detention
pending trial, proportionality between bail and the seriousness of the offence,
increased use of alternatives to imprisonment, introduction of the concept of
compensatory justice, access to legal aid for accused and victims and
codification of the rules for the protection of victims.
35. As to whether
the draft code has any chance of being promulgated as it stands, there is room
for doubt in view of the obstacles that must be overcome to bring about reform.
36. This issue is
of great importance for the future of bilateral and multilateral international
cooperation, which has meaning only if reform is successful. The Working Group has noted that, while the initiatives
by Parliament relate to political debate itself, its deliberations - and thus
reform - are subject under articles 93 and 96 of the Constitution to
endorsement by the Council of Guardians.
The Council exercises control over Parliament in two ways: at a preliminary stage candidacies of
deputies must be approved by the Council, whereas at a later stage in
proceedings it has the authority to censure Parliament’s deliberations, so that
no reform can be adopted without its approval.
Thus, several laws embodying international human rights standards have
been blocked by the Council of Guardians after having been approved by
Parliament (the Majlis). These include
legislation ratifying the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, proposed by 100 deputies and
unanimously approved; a law defining various acts of torture, rejected by the
Council of Guardians because “certain parts of the law defied judicial
authority”. The Majlis noted instances
of torture in prison, and stated that confessions obtained by torture were not
valid as submissions before a court.
In 2000 the Supreme Leader effectively vetoed draft legislation on
guaranteeing the independence of radio and the press, and in 2001 the Council
of Guardians prevented the Majlis from reviewing the use of resources and
expenditure by institutions under the authority of the Supreme Leader. The Working Group also regrets that in April
2003 the Council of Guardians rejected a law voted by Parliament providing for
equality in diyah (blood money to be paid by the perpetrator to the
victim or to his or her assigns), to correct the discrimination in favour of
Muslims to the detriment of those belonging to the three religious minorities
recognized by the Constitution, and which, moreover, seems to completely
exclude non-recognized religious minorities and non‑nationals. In other words, while Parliament seems to be
independent vis‑à‑vis the Government, its oversight authority does
not extend to the executive in the broad sense, that is including the Supreme
Leader as Head of State. In the Iranian
system, the legislative, executive and judicial functions are under the
“absolute” authority of the Supreme Leader (Constitution, art. 57). The Council of Guardians, which
systematically monitors all parliamentary initiatives, has prohibited
Parliament from exercising any control whatsoever over the management of bodies
under the direct authority of the Supreme Leader, thereby greatly limiting its
oversight authority. This handicap
considerably reduces Parliament’s influence over political life. This limitation probably explains the name
given to it in title II of the Constitution, “Majlis‑e‑Shura-e-Islami”,
the official English translation of which is “The Islamic Consultative
Assembly”. Hence the importance of the
emergence of so-called countervailing centres of power. Two were visited by the Working Group:
(a) The Islamic Human Rights Commission. Originally established by the judiciary, of
which it formed part and whose head was an ex officio member, the Commission
partially distanced itself after the election of President Khatami. The Commission has offices, inadequate but
separate, and has its own budget. In
this context, the head of the judiciary, seeing the chairmanship of the
Commission elude him, refused to continue to sit, which ultimately strengthened
the Commission’s autonomy. The most
recent summary report of the Commission (available in English), covering the period
April 2001-January 2002, reported - and regretted - a number of factors which
undermined its credibility:
“Some citizens have no confidence
in the Islamic Human Rights Commission.
This is due to the fact that in Iran there are no independent organs for
the protection of human rights; they thus doubt that the Commission is
independent and think that it is a government body.” (report, p. 8);
In the
context of its monitoring function the Commission indicated that,
of 444 complaints received, 161 (i.e. more than a third) concerned
problems attributable to the judiciary, which shows the urgent need for
reform, indeed a thorough overhaul, of the administration of justice.
If it is to
meet the expectations of Iranians, the Commission must be given greater
latitude to increase its autonomy and move towards independence;
(b) The Article 90 Parliamentary
Commission. The Working Group held
an important working meeting with the Commission, entrusted under article 90 of
the Constitution with investigating and handling individual complaints. Subsequent to complaints, the Commission
investigated prisons at which arbitrary treatment occurred.
The aim of
the investigation was twofold: to
identify unofficial (secret) prisons and visit them, then induce the ministries
concerned to place them officially under the sole authority of the National
Prisons Office.
The
resultant list shows that prisons are run by several authorities, such as the
Ministry of Information, the Army and Military Police Counter-Intelligence
Service, the Law Enforcement and General Inspectorate Protection Service, the
Pasdaran Counter-Intelligence Service and Military Police, the Bassidj, the
Ministry of Defence Counter-Intelligence Service.
Even if,
through the efforts of the Article 90 Commission, most of these prisons are
gradually being placed in principle under the sole authority of the National
Prisons Office, the intelligence services retain an obviously predominant
influence, as the Working Group was regrettably able to verify during its visit
to sector 209 of Evin prison.
37. The Working
Group requested the Chairman of the Article 90 Commission to send his report,
but to date it would appear that he has not been able to accede to this
request.
38. At the end of
the meeting, the Article 90 Commission drew the Working Group’s attention to
the inadequate training of many judges, even though they enjoy considerable
authority, and to the inadequate knowledge of their rights of those arrested or
detained - as noted by the Group - and lastly to the need to strengthen and
make more effective parliamentary immunity.
39. This last
criticism coincides with that made by the Islamic Human Rights Commission in
its report. After being informed of
accusations against a certain number of deputies and the verdicts pronounced
against them, the Article 90 Commission - in its role as countervailing
authority - informed the judiciary of its serious concern at such violations of
parliamentary immunity (report, p. 27).
40. Members of
the Article 90 Commission drew the Working Group’s attention to “inconsistencies
as a result of the proliferation of judicial decision-making bodies” (see
below).
v. SITUATIONS
OF ARBITRARY DETENTION NOTED AND THEIR CAUSES
41. The Working
Group, pursuant to its mandate, focused its activities on the causes and
consequences of situations of arbitrary detention in all their forms. Such situations are essentially linked on the
one hand to infringements of freedom of opinion and expression, and on the
other to the many problems noted in the administration of justice by the judiciary.
A. Arbitrary
detention related to recurrent infringements
of freedom of expression
42. In formal
terms this fundamental freedom is guaranteed by a series of articles of the
Constitution, such as article 23 (freedom of belief), article 24 (freedom
of the press), article 26 (freedom of association), article 27
(freedom of assembly and demonstration).
Almost all the 45 prisoners on the list given to the
authorities were prosecuted or tried for having peacefully exercised these
constitutional rights which, moreover, are guaranteed in articles 19, 21
and 22 of the International Covenant on Civil and Political Rights, which makes
their detention arbitrary under category II of the Group’s working
methods.
43. In this
regard the Working Group regrets that certain judicial authorities deliberately
sought to undermine the credibility of the invitation issued by the Government
to the Working Group by proceeding, during its visit, to arrest four
journalists from the cinema press, followed by the arrest of two of their
colleagues, and finally very recently (23 April 2003) a seventh cinema
journalist.
44. According to
information received by the Working Group, since the fifty-eighth session
of the Commission on Human Rights (March 2002) 18 newspapers have been
temporarily closed and/or banned by judicial decisions, including at least
10 reformist newspapers, while with regard to journalists, 12 have been called
before the courts or police. In
addition, some 30 reporters are currently in prison or have been
sentenced to imprisonment. To the
knowledge of the Group, only two have been set free recently
(Mohsen Sazegara after a hunger strike, and Ali Reza Eshraghi,
who, for reasons that were not made clear, the Working Group was unable to meet
during its visit, although his name was on the list).
45. Under
articles 12 and 13 of the Constitution, Islam is the official religion of the
Islamic Republic of Iran, and the religions of the Zoroastrian, Jewish and
Christian minorities are the only others recognized. Article 14 also specifies that the human
rights of non-Muslims must be respected.
One grave concern is that followers of the Baha’i faith are continually
persecuted. The Working Group noted in
particular during its visit that four of them had been sentenced to very
long sentences for “association with Baha’i institutions” (Bihnam Mithaqi
and Kayvan Khalajabadi, held in Evin since 29 April 1989), or for
“apostasy” (Dhabihu’llah Mahrami, held at Yazd since 6 September 1995). The Working Group also visited at Esfahan one
of the best known of them, Musa Talibi, 70 years old and imprisoned
for the past nine years. His 10-year
prison sentence, commuted to 18 months, was challenged at the time by the
prosecutor in the Supreme Court, which referred the case to a revolutionary
tribunal. The tribunal sentenced him to
death for apostasy, subsequently commuted to life imprisonment.
46. During its
stay the Working Group was informed of the announcement on radio and television
of the release of prisoners aged 65.
This was confirmed by the director of Esfahan prison and by the
representative of the judiciary; accordingly the Working Group called for
release of Musa Talibi before the fifty-ninth session of the Commission on
Human Rights, indicating that this would serve as a test of the willingness of
the judiciary to engage in effective cooperation. Mr. Talibi was ultimately released at
the beginning of June 2003, a development welcomed by the Working Group.
47. Specific
corroborative information gathered by the Working Group indicates that the
Baha’i community is kept under pressure by the use of revolving arrests for
short periods: the Group has drawn up a
list of 23 people who over the past six months have been arrested for belonging
to the Baha’i community, then interrogated regarding practice of their faith,
and ultimately released.
B. Arbitrary detention related to malfunctions
in the administration of justice
48. Ayatollah
Hashemi Shahroudi, head of the judiciary, recently stated before senior members
of the judiciary that on assuming his duties he had inherited the ruins of the
judiciary, and he undertook to make restructuring his priority. Among the causes of situations of arbitrary
detention, the working group has noted the problems indicated below.
1. First cause:
failings in due process
49. The Working
Group was struck by the absence of a culture of counsel, which seriously
undermines due process. This situation
is explained in part by the fact that criminal proceedings in their entirety
are, as we have emphasized, concentrated in the hands of a single person since
the judge prosecutes, investigates and decides the case. The Group noted that many ordinary law
prisoners have no understanding of the role of counsel and do not request the
assistance of State appointed counsel.
The latter are in any event few in number, and largely unmotivated owing
to the low pay. As for choice of counsel
by political prisoners, this is increasingly difficult owing to the serious
risk of harassment. The Group has noted
that lawyers have been prosecuted or sentenced simply for having, as a
legitimate part of their role as defence counsel, drawn the attention of the
court to the ill‑treatment suffered by their clients or malfunctions in
the system of justice.
50. As an
aggravating circumstance, these lawyers have for the most part been tried by
revolutionary tribunals, and even, in one case, by a military tribunal, rather
than initially being submitted to the authority of the lawyers’ disciplinary
panel provided for by law. Hence the recent
protest by the Tehran Bar which, apparently unsuccessfully, sought to visit two
of its members (Mr. Dadkhah and Mr. Soltani). In several cases of which the Working Group
is aware, lawyers defending colleagues have themselves been arrested.
51. Another
alarming observation: through an
extremely restrictive interpretation of article 128 of the Code of
Criminal Procedure and of note No. 3 to the law on the selection of
counsel, the revolutionary tribunals - in addition to the fact that they have
no constitutional legitimacy - abuse the already questionable authority given
them under these instruments to exclude counsel at their discretion from
hearings in cases covered by this article, that is, those involving the
internal and external security of the State, cases in which their presence is
all the more necessary. This derogation
is so serious that it makes these tribunals “special courts”.
52. The Bar
Associations fear a further deterioration in due process following recent
statements by the highly influential Tehran chief justice that lawyers could no
longer enjoy immunity if their behaviour was critical of the system of
justice. This position is firmly
contested by the Bar, which emphasizes that it indicates an unacceptable non‑separation
of power, in that such a decision can stem only from the legislature and not
from the judiciary.
53. The Working
Group is particularly concerned by the seriousness of these remarks owing to
their likely impact on many judges whose understanding of due process is already
inadequate.
2. Second cause:
abuse of “solitary confinement”
54. Solitary
confinement covers the generalized use of “incommunicado” imprisonment. The Working Group, for the first time since
its establishment, has been confronted with a strategy of widespread use of
solitary confinement for its own sake and not for traditional disciplinary
purposes, as the Group noted during its truncated visit to sector 209 of Evin
prison. This is not a matter of a few
punishment cells, as exist in all prisons, but what is a “prison within a
prison”, fitted out for the systematic, large-scale use of absolute solitary
confinement, frequently for very long periods.
55. The Working
Group considers that owing to the absence of guarantees such “imprisonment
within imprisonment” is arbitrary in nature and must be ended. All the more so since the Group’s
observations indicate that:
It
appears to be an established fact that the specific use of this kind of
detention has allowed the extraction of “confessions” followed by “public
repentance” (on television); besides their degrading nature, such statements
are manifestly inadmissible as evidence;
Furthermore,
such absolute solitary confinement, when it is of long duration, can be likened
to inhuman treatment within the meaning of the Convention against Torture. The Working Group has brought this matter to
the attention of the competent Special Rapporteur, in that he is also a
recipient of the standing invitation issued by the Iranian authorities.
3. Third cause:
role of clerical courts
56. The Special
Clerical Court - not provided for in the Constitution - was established under a
directive issued by Imam Khomeini on 15 June 1987 in the context of the
revolution. De facto these special
courts seem to be under the ultimate authority of the Supreme Leader. They have their own prison comprising a
special wing at Evin, where the Working Group met, among the 50 or so
clerics held, Mr. Hassan Youssefi-Eshkevari, clearly imprisoned for his
views.
57. The Court and
its provincial branches are competent rationae personae for clerics,
regardless of the offence. According to
information provided to the Working Group by judge Salimi, head of the
second division of the Special Clerical Court, 92 per cent of cases
involve ordinary law offences. It would
appear, without further clarification, that the
remaining 8 per cent concern offences relating to interpretation
of Shariah, falling, in the view of the Group within the category of
crimes of opinion. These courts, which
also lack any constitutional legitimacy, are incompatible with article 20
of the Constitution, which provides for equality of citizens before the
law.
4. Fourth cause:
failure to observe the principle of proportionality
58. In its
interviews both with political prisoners and ordinary law prisoners, the
Working Group has noted that, in many cases, the length of the sentences handed
down is disproportionate to the seriousness of the offence. There are also manifest disparities from one
court to another. Similarly, contrary to
the demands of the law, bails set in connection with release are too often out
of proportion to low family incomes. The
Working Group encountered, for example, a low‑income family whose bail
had been set at over 1 billion rials.
The same is often true of diyah where the perpetrator of the
offence is insolvent. A further
example: the Working Group noted that
despite having completed their terms of imprisonment some people were kept in
prison, in some cases for several years, since they were unable to pay the fine
and/or damages and interest (diyah) demanded by the civil party. The law provides that imprisonment for debt
can last for up to five years. Women
prisoners are penalized by the system, since they are generally from the most
disadvantaged sectors, but also because female criminality is often domestic in
nature. The vulnerability of women in
prison is all the greater since they are frequently imprisoned for violating
legal norms or social rules that regulate their sexuality or relationships with
men on a discriminatory basis.
59. These
problems concerning proportionality are largely responsible for overcrowding in
prisons.
5. Fifth cause: Non-respect
for procedural formalities
as a guarantee against arbitrary treatment
60. The Working
Group has noted on several occasions that certain decisions, including
decisions on release, have been taken orally, without written
notification. Cases include that of four
Jews arrested in June 1999 whose legal status the Group was unable to fully
clarify owing to this failure to observe formalities. Their situation was successively represented
as:
Temporary release during the visit
of the Working Group in the form of prison leave;
Unconditional release (according to
one of them), but notified only orally;
According to the Islamic Republic
News Agency (15 April 2003) a spokesman for the judiciary, Ghalam Hossein,
officially denied that they had been released;
In a letter dated 23 April 2003 the
Group accordingly asked for written notification of the decision to be provided
and for a copy to be sent to it;
In a note verbale of 6 May 2003 the
Permanent Mission of the Islamic Republic of Iran denied the denial by the
judiciary and confirmed that they had been released, with the clarification,
however, that they had been released on bail.
Despite several requests, no written notification of their release has
been sent to the Working Group.
61. This
experience makes it easier to understand why some members of the
Article 90 Commission have highlighted the inconsistencies resulting from
the proliferation of judicial decision‑making bodies.
6. Sixth
cause: Abolition of prosecutors between
1995 and end 2002,
and the consequences for observance of the right to due process
62. While a
recent reform provides for reinstatement of prosecutors, it is nonetheless true
that over the period preceding implementation of this reform cases were tried
in a manner that is incompatible with the norms guaranteeing the right to due
process, including the essential norm on the impartiality of the judge since -
as we have emphasized - in each case the same judge acts in succession as
prosecutor, then investigating magistrate and lastly sentencing judge. The Working Group thus considers that this
multiplicity of functions is such as to vitiate the right to due process and
that account should be taken of this in the context of amnesty laws and
pardons.
VI. CONCLUSIONS
63. The recent
increase in cooperation in the form of standing invitations from which the
Working Group benefited to conduct its visit to the Islamic Republic of Iran is
to be encouraged, on condition, however, that such visits are considered a
means not an end, a beginning and not the culmination of a process. In other words the fact that the Working
Group was able to visit prisons transparently and without major hindrances,
while very positive, must be evaluated from two aspects.
64. These
aspects are:
Cooperation
during the visits: from this perspective
the Iranian authorities made every effort to allow the Working Group to conduct
its visits in transparency and without major hindrances, which should be
highlighted;
Cooperation
in terms of the immediate follow-up to the visit: the situation is more nuanced, as indicated
by various recent events subsequent to the Group’s visit which it wishes to
bring to the attention of the Commission on Human Rights;
(1) In a letter dated 23 April 2003 the
Group requested the Islamic Human Rights Commission to investigate the
circumstances in which a riot at Esfahan prison resulted in at least 2 dead and
some 10 wounded. In a letter dated 7
May, the Islamic Human Rights Commission informed the Working Group that, owing
to difficulties encountered with the National Prisons Office, it was not able
to comply with that request;
(2) In a letter dated 6 March 2003 the Group
asked to be informed of the fate and legal status of the 31 prisoners not
visited whose names appeared on the list initially requested by the
Government. To date the Group has not received
any reply;
(3) On 23 May 1996 the Working Group adopted
its decision No. 14/1996 and on 29 November 1996 its opinion No.
39/2000 declaring as arbitrary the detention of opposition figure Abbas
Amir-Entezam, 70 years old, who had then been released on health grounds a
little over a year previously. The
Working Group during its visit met him at some length at his home, and has just
been informed that he has again been arrested, in violation of Commission on
Human Rights resolution 2003/9 urging Governments to refrain from all acts of
reprisal against those who have cooperated with the United Nations;
(4) Another disappointment for the Working
Group: far from ceasing or even
diminishing, persecution of the press has increased. Since its return the Group has been informed
of the arrest or detention of the following journalists: Abbas Abdi and Hossein Ali Ghazian,
visited by the Group in Evin, were sentenced on appeal to four years’
imprisonment; Ahmad Zeydabadi was imprisoned in Evin (23 months’ imprisonment
and 25 years’ loss of civil rights); Ali-Reza Jabbari was released on bail on 3
February 2003 and sentenced to four years’ imprisonment, a fine, and 253
lashes; and Sina Mottalebi, a cinema journalist, was arrested on 28 April
2003;
(5) A further regrettable example: the recent appointment, questionable and
questioned, of judge Said Mortazari, a judge at the Administrative Court for
the Press, as Attorney‑General of Tehran, with the task of reforming the
prosecution service. The appointment was
seen as a provocation by the press. In that
connection the Commission on Human Rights will recall, on reading the most
recent report by the Special Representative, Mr. Copithorne
(E/CN.4/2002/42, paras. 11, 22 and 40), that this judge was responsible for the
mass closure in 2000 of newspapers (12 were banned) and for the wave of arrests
of journalists and editors, several of whom were visited by the Working Group
in Evin. He is also responsible for
the sentencing of academics and intellectuals who on 7 and
8 April 2000 participated in a conference in Berlin on the subject of
“Iran after the elections”, including Akbes Ganji and Ali Afshari, visited by
the Group in Evin, and of attorneys Mohammad-Ali Dadkhah and Abdul Soltani,
visited by the Group after their sentencing for events relating to the
legitimate exercise of their functions as defence counsel;
(6) Indictment of parliamentarian Akbas
Moussari Khoini for having allegedly made false statements to the Working Group
against the national interest - which he denied. The Group also formally denied having met Mr.
Khoini. The Group simply learned of an
interview by him concerning the problems of official and unofficial prisons and
their ongoing regularization, further to the investigation by the Article 90
Commission.
VII. RECOMMENDATIONS
65. In the
light of the foregoing and the observations made, the Working Group makes the
following recommendations:
1. On the reduction of the
proliferation of judicial decision-making bodies. It should be recalled that the Article 90
Parliamentary Commission highlighted, in receiving the Working Group, “the
injustices and inconsistencies resulting from the proliferation of judicial
decision-making bodies”. The
revolutionary tribunals, one such group of bodies, as well as the religious
courts, should be abolished for the following reasons and in the following
manner.
Historically
the revolutionary tribunals were established essentially to judge
“collaborators” with the former regime.
There seems to be no rationale for their continued existence. Moreover, since these tribunals have no
constitutional basis, their absorption by the ordinary courts would not require
reform of the Constitution. A further
reason: owing to their jurisprudence,
which is extremely restrictive of freedom of opinion and expression on the one
hand and of due process and the right to a fair trial on the other, they are
responsible for many of the cases of arbitrary detention for crimes of opinion,
as noted by the Working Group.
This
reform would have the merit of reflecting recent developments: a first stage has just been completed with
the reform reinstating the prosecution service by merging prosecutors in the
revolutionary tribunals with those in the ordinary courts. From this standpoint this would constitute a
second stage in the current modernization of the system of justice sought by
the head of the judiciary, Ayatollah Hachemi Chahroudi, who, speaking before
senior members of the judiciary in early March 2003, stated that restructuring
of the system of justice would be his priority.
A
further stage concerning religious courts could be completed in due course to
further reduce the proliferation of judicial decision-making bodies. The competence of these courts - which also
have no constitutional basis - would be transferred to the ordinary
courts. There are two reasons: according to the second division of the
Tehran Special Clerical Court, these courts were originally established to
prosecute usurpers who, taking advantage of the early confusion in the
revolution, styled themselves “clerics”.
As this
problem is in the past, this special competence no longer seems justified. These progressive abolitions would also have
the merit of restoring respect for article 20 of the Constitution, which
embodies the principle of the equality of all citizens before the law and thus
before the system of justice.
2. On the practice of “solitary
confinement”. As this practice
generates arbitrary situations, plans should be drawn up for the closure of
these prisons, retaining only a few punishment cells in each institution for
short disciplinary periods of solitary confinement. In addition, the report of the Article 90
Parliamentary Commission on prisons should be made public or at least debated
in Parliament. The Commission would then
be responsible for publishing a list of prisons each year.
3. On the situation of prisoners of
conscience. These prisoners are
punished twice over. Many of them have,
on the one hand, simply peacefully exercised their fundamental right to freedom
of opinion and expression and, on the other, have been unable to benefit in
most cases from the guarantees which are essential to the right to fair trial,
as we have emphasized with regard in particular to the abolition of the
prosecution service. Solutions must be sought
to bring about their release in the near term.
With
this aim the Article 90 Parliamentary Commission which, as we have seen, has
investigated situations of arbitrary detention, could usefully be employed to
propose a reformed legal framework. These
releases could be announced on the holding of the next national or religious
holiday.
4. On the right to due process. Three points should be borne in mind, in the
following order of immediacy:
The
immunity of counsel in pleading cases must be reaffirmed and expressly
guaranteed in a legislative instrument formulated in cooperation with
representatives of the Bar;
The
active involvement of counsel must be provided for, whatever the nature of the
case, starting with the custody or, the very least, the investigation phase,
throughout the trial and in the appeals stage;
Access
to legal aid must be made more effective.
5. On imprisonment for debt. The Working Group has noted that destitute
individuals, in particular women without resources, are kept in prison for a
period which can extend, according to information gathered in situ, for up to
five years for non-payment of a fine or diyah. The Working Group recommends that the
Government should accelerate the ongoing reform of alternatives to imprisonment
to avoid destitute individuals being subjected to lengthy imprisonment in
connection with their insolvency.
66. These are
the principal recommendations made by the Working Group. The Group wishes them to be taken into
consideration by other Special Rapporteurs who may visit the Islamic Republic
of Iran and that they be taken into account in the context of various
cooperation programmes and the interactive dialogue under way.
67. The
Working Group appreciates the Government’s current efforts to promote substantive
reforms. It hopes that such reforms will
be consolidated. It also hopes that
further reforms will be approved so that the legal system will become
progressively imbued with the spirit of the Universal Declaration of Human
Rights and the provisions of the International Covenant on Civil and Political
Rights, to which the Islamic Republic of Iran is party.*
68. The
Working Group wishes to thank the Government of the Islamic Republic of Iran
which has now joined those States which accept the risk of being criticized
because they have taken the initiative of cooperating, rather than those which
are open to severe criticism because they refuse to cooperate.
69. The Working Group wishes further in particular to thank the
senior officials who made every effort to facilitate its visit. These thanks go also to all the
representatives of the authorities who worked unstintingly, including, in some
cases, to convince their reticent colleagues.
We wish to commend all of them.
-----
* The executive summary of this mission report
is being circulated in all official languages.
The report itself is contained in the annex to the executive summary and
is being circulated in the language of submission and English only.
GE.03-14777 (E)
140703 240703
* Following the adoption of this report,
the Working Group was informed of the following developments which it wishes to
bring to the attention of the Commission on Human Rights.
The Council
of Guardians has just vetoed two significant pieces of draft legislation aimed
at modernizing institutions: one
abolishing the need for the prior endorsement of the Council of Guardians
currently required for candidates to elections; the other making effective
article 113 of the Constitution, which confers responsibility on the President
for guaranteeing the Constitution. More
than 100 parliamentarians and religious reformers have challenged these vetoes
by making public a petition which analyses the obstacles to the reforms sought
by Parliament and calls for a referendum as provided for in article 59 of the
Constitution.
The Working
Group trusts that these two reforms aimed at strengthening the rule of law will
prove successful.
