Aadel Collection
Report submitted by the Special Rapporteur on the right to freedom of opinion and expression, Ambeyi Ligabo
UNITED
NATIONS
Economic and Social Distt
Council
GENERAL
E/CN. 4/2004/62/Add.2
12 January2004
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sixtieth session
Agenda item 11(c) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION
OF FREEDOM OF EXPRESSION
Report submitted by the Special Rapporteur on the right to
freedom of opinion and expression, Ambeyi Ligabo
Addendum
MISSION TO THE ISLAMIC REPUBLIC OF IRAN*
* The summary is being circulated in all official languages. The report itself is contained in the
annex to the summary and is being circulated in the language of submission only.
E
GE.04-l0186 (E) 200104
E/CN.4/2004/62/Add. 2
page 2
Summary
The present report has been prepared pursuant to resolution 2002/48 of the Commission
on Human Rights. It presents and analyses information on the situation of the right to freedom
of opinion and expression received by the Special Rapporteur before and during his visit to the
Islamic Republic of Iran from 4 to 10 November 2003, from officials, individuals,
non-governmental organizations and reports of the United Nations.
The Special Rapporteur notes the willingness for reform among civil society, members of
Parliament and at the highest levels of the Government, and that in most of his discussions, an
improved framework for the protection of human rights, and in particular of the right to freedom
of opinion and expression, was identified as an essential initial step towards reform. In this
respect, he acknowledges that the Government and the Majlis are very active at the legislative
level, endeavouring to improve the existing legal framework, in particular in relation to a better
protection of human rights and ifindamental freedoms.
However, the Special Rapporteur notes that a major impediment to reform consists of
various institutional locks on governmental, parliamentary and judicial processes resulting from
the control exercised thereon by unelected institutions and bodies that are not accountable to the
people. In the view of the Special Rapporteur, these institutions and bodies hamper reforms at
the legislative level and in the ifinctioning of the institutions.
As far as the legal framework is concerned, the Special Rapporteur considers that many
of the limitations to the exercise of the right to freedom of opinion and expression provided for
in the Press Law and the Penal Code do not conform to the permissible restrictions listed in
article 19, paragraph 3, of the International Covenant on Civil and Political Rights (ICCPR),
firsily because many go beyond the clauses listed in this article and secondly because in most
cases the grounds for these limitations lack any objective criteria and clear definition, and are
therefore open to subjective and arbitrary interpretation by judges when implementing them.
The Special Rapporteur therefore urges the authorities to review these legal texts in order
to bring them into line with international human rights norms and standards relating to freedom
of opinion and expression, and recommends that the clauses limiting the exercise of this right be
given clear definitions in law, in the framework of article 19, paragraph 3, of ICCPR.
In particular, the Special Rapporteur is of the view that cases of abuse of the right to
freedom of opinion and expression, as defined in article 19, paragraphs 1 and 2, of ICCPR, call
for civil suits, and he urges the authorities to review the Press Law and the Penal Code in order
to repeal all criminal provisions dealing with the peaceffil expression of one's opinion, including
in the press. In this respect, he urges the Supreme Council for Development of the Judiciary to
consider the possibility of providing for alternative sentences to prison for all press- and
opinion-related offences.
The Special Rapporteur also notes that the use of Revolutionary Courts to try
opinion-related offences clearly has a negative impact on the exercise of the right to freedom of
opinion and expression, owing to their severe stance vis-à-vis press- and opinion-related
offences. He recommends that these offences be excluded from the competence of
Revolutionary Courts.
E/CN .4/2004/62/Add. 2
page 3
The Special Rapporteur is also of the view that the Preventive Restraints Act should not
apply in relation to press offences as, in his view, press offences caimot be defined as most
serious crimes, to which this Act applies.
The Special Rapporteur is also concerned about the question of the interpretation of
Islamic principles, especially when it comes to the definition of opinion-related offences, and he
notes that there are varying interpretations thereof, including among clerics. The Special
Rapporteur believes that there is an urgent need to define more clearly the contents of Islamic
principles in the law, and in particular the criteria applied to determine the point at which it is
considered that there is a breach of these principles, in order to avoid arbitrariness in their
interpretation and lack of legal security in their implementation.
The Special Rapporteur recommends the adoption of a national Charter of Human Rights,
elaborating on international human rights law and on article 20 of the Constitution, which would
provide a clear framework within which laws would be drafted and implemented.
With regard to the actual exercise of the right to freedom of opinion and expression, the
Special Rapporteur notes the general perception that over the past few years, the situation in this
regard has deteriorated, as the number of publications closed down and of people arrested,
prosecuted and sentenced for the peaceffil expression of their opinion has increased. The Special
Rapporteur is not in a position to indicate whether this increase is due to the adoption of a more
severe stance by the authorities, and in particular the judiciary, vis-à-vis these offences, or to the
fact that since the accession to power of the reformists in the Government and the Majlis, there is
less fear among the population of being vocal about reform and critical of the ifinctioning of
public institutions.
The Special Rapporteur underlines that the climate of fear induced by the systematic
repression of people expressing critical views against the authorized political and religious
doctrine and the ifinctioning of the institutions coupled with the severe and disproportionate
sentences imposed lead to self-censorship on the part of many journalists, intellectuals,
politicians, students and the population at large, thus in effect impeding freedom of expression.
The Special Rapporteur identified a number of patterns relating to the prosecution and
sentencing of press- and opinion-related offences. In this respect, he endorses the conclusion of
the Working Group on Arbitrary Detention regarding the situation of prisoners of conscience and
notes that they are punished twice over: by having their right to freedom of opinion and
expression infringed and by not benefiting from the basic guarantees to the right to a fair trial.
In particular, the Special Rapporteur notes with concern the use of prolonged periods of
incommunicado detention in press- and opinion-related offences and recalls resolution 2003/32
of the Commission on Human Rights, in which the Commission reminded all States that
prolonged incommunicado detention might facilitate the perpetration of torture and could itself
constitute a form of cmel, inhuman or degrading treatment or even torture, and urged all States
to respect the safeguards concerning the liberty, security and the dignity of the person.
On the basis of the above, the Special Rapporteur calls on the authorities to grant a
complete amnesty to all prisoners prosecuted or sentenced for press- and opinion-related
offences.
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page 4
In the context of the standing invitation extended by the Government to all thematic
mechanisms of the Commission on Human Rights, the Special Rapporteur, taking into account
his findings, believes that a visit by the Special Rapporteur on the question of torture and the
Special Rapporteur on the independence of judges and lawyers would be usd111.
The Special Rapporteur also believes that, as a first step towards the implementation of
his recommendations, the authorities should seek tecimical cooperation in the area of the
administration of justice, in particular with respect to the training of judges and other law
enforcement officials. In the view of the Special Rapporteur, such training should particularly
focus on the norms and standards governing the right to a fair trial and the effective exercise of
the right to freedom of opinion and expression.
E/CN .4/2004/62/Add. 2
page 5
Annex
REPORT SUBMITTED BY THE SPECIAL RAPPORTEUR ON THE RIGHT
TO FREEDOM OF OPINION AND EXPRESSION, AMBEYI LIGABO ON HIS
MISSION TO THE ISLAMIC REPUBLIC OF IRAN (4 TO 10 NOVEMBER 2003)
CONTENTS
Paragrqphs Page
1-9 6
10-15 7
16-34 8
16-21 8
22-34 9
35-88 12
35-46 12
47-54 13
55 -62 15
63-67 17
68-70 18
71-80 18
81-84 20
85-88 20
89-111 21
Introduction
I. PROGRAMME OF THE VISIT
II. INSTITUTIONAL AND LEGAL FRAMEWORK
A. Institutional framework
B. Legal framework for the protection of the right to
freedom of opinion and expression
III. PRINCIPAL CONSIDERATIONS AND CONCERNS
A. The written press
B. Journalists and intellectuals
C. Students
D. Lawyers
E. Parliamentarians
F. The case of Zalua Kazenii
G. Other groups
H. Political activity
IV. CONCLUSIONS AND RECOMMENDATIONS
E/CN.4/2004/62/Add. 2
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Introduction
1. On 24 July 2002, the Government of the Islamic Republic of Iran issued a standing
invitation to all thematic mechanisms of the Commission on Human Rights to visit the country.
By letter dated 7 October 2002, the Special Rapporteur expressed his interest in undertaking a
fact-finding mission in Iran.
2. The visit took place from 4 to 10 November 2003. The delegation comprised the
Special Rapporteur, an official from the Office of the United Nations High Commissioner for
Human Rights (OHCHR) and two interpreters from the United Nations Office at Geneva.
3. The Special Rapporteur would like to mention that, in the preparation of his mission and
of the present report, he used material from official sources, as well as from many
United Nations and civil society sources. He would, in particular, like to refer to the report of his
predecessor on his visit to the Islamic Republic of Iran in 1995 (E/CN.4/1996/39/Add.2) and the
report of the Working Group on Arbitrary Detention on its visit in February 2003
(E/CN .4/2004/3/Add. 2).
4. The Special Rapporteur wishes to thaiilc the authorities for their frill cooperation
throughout the mission. In particular, the Special Rapporteur would like to acknowledge the
receipt of information from the Office of the Prosecutor for the Province of Tehran on individual
cases of alleged violations of the right to freedom of opinion and expression, mentioned in
communications he had sent to the Government since 2000. The Special Rapporteur would like
to highlight that this information will be duly reflected in his report on country situations (which
will be issued in document E/CN.4/2004/62/Add. 1).
5. The Special Rapporteur also wishes to acknowledge the assurances of the Government
that individuals and groups who cooperated with him, in particular individuals who met with him
during his visit and those who have shared information with him, would not face any kind of
reprisals or intimidation from the Government, other State institutions or private individuals and
groups.
6. In this respect, the Special Rapporteur expresses his concern at reports that one person
with whom he met during his visit, Ahmad Batebi, disappeared on 8 November 2003, just after
the meeting. The Special Rapporteur was informed that Mr. Batebi, who was on leave from
Evin prison at the time of the meeting with him, had been arrested and returned to Evin prison
before the end of his leave period.
7. It is also reported that Mr. Batebi, who was sentenced in 2000 to a 15-year prison term
after his participation in the July 1999 demonstrations, was in addition charged with
“participation in illegal associations” after his arrest on 8 November. The Special Rapporteur is
deeply concerned that these charges might be a reprisal against Mr. Batebi for his cooperation
with an independent expert of the United Nations Commission on Human Rights.
8. The Special Rapporteur therefore calls on the Government to comply with Commission
on Human Rights resolution 2003/9, which “urges Governments to refrain from all acts of
intimidation or reprisal against (a) those who seek to cooperate or have cooperated with
representatives of United Nations human rights bodies, or who have provided testimony or
E/CN .4/2004/62/Add. 2
page 7
information to them; (b) those who avail or have availed themselves of procedures established
under United Nations auspices for the protection of human rights and fundamental freedoms and
all those who have provided legal assistance to them for this purpose; (c) those who submit or
have submitted communications under procedures established by human rights instruments; and
(d) those who are relatives of victims of human rights violations”.
9. The Special Rapporteur wishes to express his thanks to the United Nations Resident
Coordinator for his support, as well as to the United Nations Development Programme and the
United Nations Information Centre in Tehran for their logistical and substantive assistance in the
preparation of and during the mission.
I. PROGRAMME OF THE VISIT
10. The delegation met with senior officials from the executive, legislative and judicial
branches of the Government, including the Deputy of the President for legal and parliamentary
affairs; the Minister of Culture and Islamic Guidance; the Deputy Foreign Minister for Legal and
International Affairs; the Deputy Interior Minister for Security Affairs; the Deputy Minister of
Post, Telegraph and Telephone; the Adviser to the President and Head of the Centre for
Women's Participation; the Director-General for international legal affairs of the Ministry for
Foreign Affairs; the Deputy Head of the Judiciary for international affairs; the Tehran
Prosecutor-General of Public and Revolutionary Courts; the Secretary of the Supreme Council
for Judiciary Development; the Deputy of the Supreme Court of Justice and Head of the Office
of the Prosecutor-General; the Head of the Courts of Justice of Tehran Province; the Head of the
Press Court; the Head of the Second Branch of the Special Clerical Court; the Director of the
National Prisons Office; and the Managing Director of the Islamic Republic News Agency
(IRNA).
11. The Special Rapporteur regrets that, although arrangements were made in advance, he
was not able to meet with representatives of the Council of Guardiams and the Islamic Republic
of Iran Broadcasting (IRIB).
12. The delegation also held meetings with the Islamic Human Rights Commission; the
Article 90 Parliamentary Commission of the Majlis, including with members of the
Commission's Committee on Human Rights; the Legal and Judiciary Commission of the Majlis;
the Tehran Bar Association; the Association of Iranian Journalists; and with other members of
civil society orgathzations and families of prisoners.
13. The delegation was also able to meet with seven detainees at Evin prison
(Hashem Aghajari, Reza Alijath, Abbas Deldar, Akbar Ganji, Iraj Jamshidi, Mehrdad Lohrasbi
and Samiak Pourzand). He regrets that, owing to lack of time, he was not able to meet with
three detainees (Taghi Rahmath, Hoda Saber and Behruz Javid Tehrath) and that he was not
authorized to meet with Abbas Abdi on the ground that his name was not mentioned in the list
sent to the prison authorities prior to his visit.
14. The Special Rapporteur notes with appreciation in this respect that a number of
detainees whom he had sought to meet were released before his mission, and that in particular
Dariush Zahedi was released from Evin prison two days prior to his visit as a gesture of goodwill
by the authorities.
E/CN.4/2004/62/Add. 2
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15. However, the Special Rapporteur notes that, despite an express commitment by officials
in the judiciary, including the Deputy Head of the Judiciary for international affairs,
Mr. Larijath, to release Reza Alijath from Evin prison before the departure of the Special
Rapporteur from Iran on 10 November 2003, reports indicate that Mr. Alijath is still detained.
The Special Rapporteur regrets in this respect that at the lime of the finalization of his report, the
Government had not yet responded to his letter asking for official information on this case.
II. INSTITUTIONAL AND LEGAL FRAMEWORK
A. Institutional framework
16. According to the Constitution, the Head of State is the Leader, among whose duties and
powers are ‘The delineation of the general policies of the Islamic Republic of Iran”, and
supervision over their “proper execution”; he is the supreme commander of the armed forces and
is responsible for the appointment and dismissal of the members of the Council of Guardiams and
the heath of the judiciary, the Military, the Revolutionary Guards and IRIB. He also confirms
the suitability of new candidates for the Presidency and signs the decree formalizing the election
of the President (art. 110). The Leader is elected by the Assembly of Experts, (art. 107), which
is composed of 86 clerics elected by universal suffrage every eight years; the candidates for
election to the Assembly have to be approved by the Council of Guardiai s. Article 111 of the
Constitution provides that the Leader can be dismissed by the Assembly of Experts if he loses
his qualifications or is unable to carry out his ifinctions.
17. The President, who is elected by universal suffrage every four years, has ‘The
responsibility for implementing the Constitution and acting as the head of the executive, except
in mailers direcily concerned with the Office of the Leadership” (art. 113). This provision makes
the executive branch, which has only a residual competence vis-à-vis the competences of the
Leader, subordinate in effect to the Office of the Leadership.
18. The legislative branch is composed of the Islamic Consultative Assembly
(Majlis Shura-e Islami), which is elected by universal suffrage every four years, and the
Council of Guardians. The Majlis is responsible, inter alia, for draffing legislation, approving
government bills and ratifying treaties. In accordance with article 90 of the Constitution, it also
examines and investigates written complaints by the public against its own work and the work of
the executive and the judiciary. This is done by its “Article 90 Commission”.
19. The Council of Guardians acts in effect as the upper house of Parliament. It is composed
of 12 members appointed, direcily or indirecily, by the Leader - 6 are appointed by the Leader
among the “fliqaha” (clerical elite) and the other 6 by the Majlis from a list of non-clerical jurists
recommended by the head of the judiciary (who is appointed by the Leader). The Council of
Guardiams monitors, with a right of veto, the compliance with the Constitution and Shariah of all
legislation adopted by the Majlis and endorses candidates for the Majlis after reviewing their
suitability. The broad supervision of the Council of Guardians over the work of the Parliament
and, to a certain extent, over its composition through the approval of candidates prior to
parliamentary elections gives it, and ultimately gives the Office of the Leader, a predominant
role over the Parliament.
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page 9
20. Another institution, which is halfivay between the Office of the Leader and the legislative
branch, is the Council for the Discernment of Expediency for the Interest of the System, or
Expediency Council, which was established in 1988 by the then Leader, Ayatollah Khomeini.
This Council, composed of3l members appointed by the Leader, has two ifinctions: to advise
the Leader and to arbitrate conflicts between the Majlis and the Council of Guardians on the
constitutionality and/or conformity with Islamic principles of a law adopted by the Majlis. One
major concern generally expressed with respect to the Council of Guardians and the Expediency
Council, a concern which the Special Rapporteur shares - is that, although these Councils are not
elected, they are entrusted with extremely wide competences and powers over the democratically
elected Majlis, in particular with regard to its legislative work.
21. The judiciary is, according to the Constitution (art. 156) “an independent power”
responsible for the administration ofjustice, i.e. for all judicial, administrative and executive
mailers relating to the judiciary. In this framework, the head of the judiciary is responsible,
inter alia, for the appointment, dismissal, assignment and promotion of judges (art. 158). In
particular, he is responsible for the appointment of the President of the Supreme Court and the
Prosecutor-General, who shall be selected among “Mojtaheds” (doctors in religious law). The
Head of the judiciary shall also be a “Mojtahed”, direcily appointed by, and accountable to,
the Leader (arts. 110 and 157). Therefore, control is exercisedto alarge extentbythe Office
of the Leader over the judiciary as an institution, and over individual judges.
B. Legal framework for the protection of the right
to freedom of opinion and expression
22. In this section, the Special Rapporteur will briefly consider some aspects of the national
legal framework governing the protection of the right to freedom of opinion and expression in
the Islamic Republic of Iran.
1. The Constitution
23. The Constitution contains a number of general provisions dealing with human rights and
civil and political liberties. In particular, article 3 (7) states that the Government is required to
“direct all its resources ... to ensuring political and social freedoms within the context of the
law”, and article 20 states that “All members of the nation, both men and women, equally enjoy
the protection of the law and enjoy all humai , political, economic, social and cultural rights, in
conformity with Islamic criteria.
24. However, it does not specifically protect the right to freedom of opinion and expression
as ‘The right to hold opinions without interference” and ‘The right to freedom of expression
[ which] shall include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other
media [ of choice]”, as it is defined in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights (ICCPR).
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page 10
25. Nonetheless, the Special Rapporteur notes that some constituent elements of the freedom
of opinion and expression are recognized in the Constitution, such as freedom of belief (art. 23),
freedom of expression for publications and the press (art. 24), freedom of association (art. 26),
freedom of assembly and the right to hold public gatherings (art. 27) and freedom of speech and
expression of ideas on radio and television (art. 175).
2. Other laws with a direct impact on the exercise of
the right to freedom of opinion and expression
26. The Press Law, passed in April 2000 by the fifth Majlis - just before the inauguration of
the sixth (reformist) Majlis - contains provisions which restrict freedom of expression. In
particular, the new law in its article 12 requires the Press Supervisory Board to ban a publication
that violates articles 6, 24 to 29 and 32 of the Law, which deal with issues such as “publishing
atheistic articles or issues which are prejudicial to Islamic codes” or which promote “subjects
which might damage the foundation of the Islamic Republic”, national security, dignity and
interests, insulting Islam or offending the Leader and religious authorities, publishing libel
against officials or institutions or insulting legal or real persons who are “lawifilly respected”,
publishing writings “containing apostasy and mailers against Islamic standards”, and quoting
articles from ‘The deviant press, parties and groups which oppose Islam (inside or outside the
country)”.
27. In the same article, the new law also gives to Revolutionary Courts the competence to
deal with cases of publication of classified documents or instigation to commit crimes against
national security or against the country's foreign policy. In this respect, the Special Rapporteur
notes with great concern the use of Revolutionary Courts to deal with press-related cases.
Indeed, these courts - which were created by edict of the then Leader after the revolution to try
high-level officials of the former regime and confirmed by the law on Public and Revolutionary
courts of 1992, but have no basis in the Constitution - have jurisdiction over serious
security-related crimes, such as offences against the internal and external security of the State,
conspiracy, carrying arms, sabotage, use of terrorism, espionage and smuggling, or offences
linked to illegitimate appropriation of wealth which, in the view of the Special Rapporteur, are
not opinion- or press-related offences.
28. Another provision of the new law bars “members of anti-revolutionary forces . . .,those
who have been convicted by a Revolutionary Court and all persons [ who] indulged in
anti-establishment activities” from pursuing press-related activities and/or holding posts in any
press institution. This provision gives cause for grave concern, as it allows barring journalists
from exercising their profession on the basis of extremely vaguely defined offences.
29. In addition, the Penal Code (Islamic Punishment Act) contains a number of provisions
which have a direct negative impact on the exercise of the right to freedom of opinion and
expression. These provisions deal with:
(a) The violation of national security: articles 498 and 499 provide for prison
sentences ranging from 2 to 10 years for anyone “forming orjoining a group or association
outside or inside the country which seeks to disturb the security of the country”; article 500
provides for prison sentences for “anyone who undertakes any form of propaganda against the
State”;
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(b) Defamation: article 513 punishes by death or by a prison term of between one
and five years “insult” against Islam; article 697 punishes defamation by a prison term of
between one month and one year; and article 609 punishes with a fine, 74 lashes or a prison
sentence of between three and six months criticism of a number of State officials in connection
with carrying out their duties;
(c) The publication of false news: article 698 punishes by flogging and/or
imprisonment the intentional creation of “amdety and unease in the public's mind”, “confusing
people's minds”, “false rumours”, or the publication of falsehoods.
30. The Special Rapporteur notes in this respect that efforts are being made by the current
Majlis to define certain offences more precisely. For example, a law defining insult and
defamation was adopted by the Majlis, but was rejected by the Council of Guardians. This law
was brought by the Majlis for arbitration to the Expediency Council, which has not yet reviewed
it. The practice shows that the Expediency Council has a tendency to either confirm the
decisions of the Council of Guardians on constitutionality or on conformity with Shariah of
progressive laws adopted by the Majlis, or not to take action, as the Council is not constrained by
time limits in its review of laws brought to it for arbitration.
31. In addition, regarding the implementation of laws, the Special Rapporteur would like to
stress that he has noted a number of factors that have a negative impact on, inter alia, the
exercise of the right to freedom of expression. One the one hand, the system of appointment of
judges makes it a requirement for “secular” jurists to train in religious law to qualify as judges,
while religious jurists are not required to train in secular law to become judges. Therefore, many
judges apply civil and public legal norms and concepts only in regard and with reference to
Islamic law.
32. Another concern of the Special Rapporteur regarding the implementation of laws
relates to the alleged practice of the judiciary of assigning political cases (mosily press- and
opinion-related cases) to a number of first instance and appeal courts which are either known for
their severe stance vis-à-vis press- and opinion-related offences, or take orders from the higher
judiciary.
33. Finally, the Special Rapporteur notes that many press offences or offences relating to the
peaceful expression of an opinion listed in the Penal Code are punishable by prison terms and/or
flogging. With respect to the former, the Special Rapporteur is of the view that the provision for
prison terms for press- or opinion-related offences is clearly disproportionate with the effective
exercise of the right to freedom of opinion and expression and should not be permissible.
34. With respect to the provisions governing corporal punishment for press- or
opinion-related offences, the Special Rapporteur is of the view that these are contrary to
international human rights norms and standards, and he wishes to recall Commission on Human
Rights resolution 2003/32 on torture, in which Governments are reminded that “corporal
punishment ... can amount to cmel, inhuman or degrading treatment or even torture”. In
addition, in its general comment No. 20 on article 7 of ICCPR, the Human Rights Committee
considers that the prohibition of torture extends to the prohibition of “corporal punishment
ordered as punishment for a crime . . .
E/CN.4/2004/62/Add. 2
page 12
III. PRINCIPAL CONSIDERATIONS AND CONCERNS
A. The written press
35. The Special Rapporteur notes with satisfaction the important number of newspapers and
magazines published in Irai , as well as the dramatic increase in the number of requests for the
registration of publications (according to the Ministry of Islamic and Cultural Guidance, an
average of 99 per cent of requests to publish newspapers and magazines are granted).
36. As far as books are concerned, the Special Rapporteur notes that, according to official
statistics from the Ministry of Islamic and Cultural Guidance, 35,000 tiles were published
in 2002, against 1,700 in 1978.
37. The Special Rapporteur welcomes reports that a draft bill is being prepared by the Majlis
on the establishment of an independent press council to monitor the activities ofjournalists and
the written media.
38. The Special Rapporteur also appreciates the fact that generally there is no prior
censorship, in law and in practice, of newspapers and magazines.
39. However, he notes in this respect that IRNA, which is direcily subordinate to the
authority of the Government, is governed by five principles (preservation of State secrets and
national security; public morality; strengthening linguistic and religious solidarity; human
dignity; and not publishing information prohibited by law) and that there is rigorous monitoring
by IRNA editorial supervisors of articles written by journalists before they are published, in
order to ensure that all published articles are in line with these five principles. This, in the view
of the Special Rapporteur, amounts to prior censorship and is contrary to the effective exercise of
the right to freedom of opinion and expression.
40. The Special Rapporteur takes note that, with the reform of the judicial system, press
cases will henceforth be investigated by three judges from the Office of the Prosecutor and, after
indictment, heard by three judges. In addition, article 168 of the Constitution provides that
“Political and press offences will be tried openly and in the presence of a jury, in courts of
justice”. The Special Rapporteur considers that this provides procedural guarantees for the
hearing of press offences, although reports indicate that in most cases such offences are in
practice heard in closed trials, either by decision of the competent judge or by effectively
preventing the public from accessing the courtroom.
41. With respect to legislation governing the activities of the press, the Special Rapporteur is
very concerned at the extremely restrictive provisions of the Press Law, as well as at the
numerous provisions in the Penal Code restricting freedom of opinion and expression, as
mentioned in section II.B above. The Special Rapporteur considers that the restrictions on
freedom of opinion and expression permissible under these two laws are far too extensive to
enable an effective exercise of the right to freedom of opinion and expression in the written
press.
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page 13
42. In addition, the Special Rapporteur was informed that over the past few years, the judicial
authorities have frequently had recourse to the 1960 Preventive Restraint Act to temporarily ban
newspapers on the basis of articles deemed to be contrary to the law. The Special Rapporteur
notes that the Act aims at avoiding the recurrence of serious crimes (hooligathsm, murder, etc.),
and that it is not aimed at press offences. A number of temporary baits have reportedly been
imposed on newspapers under the Act, some of which have lasted for more than three years and
are still in force, without a trial and a court decision.
43. The Special Rapporteur was informed that a law was adopted by the Majlis baiming the
use of the Preventive Restraint Act against newspapers, and he notes with concern that the law
was rejected by the Council of Guardiams on the grounds that the interpretation of the Act in this
law excluding the press from its implementation was “discriminatory”.
44. Furthermore, the Special Rapporteur feels that there is a culture of restriction on press
reporting, in particular among officials in the judiciary. In particular, he was struck by the
statement of the Head of the Courts of Justice for Tehian Province, who told him that the press
was not the forum to discuss all issues, and that it should only reflect “proper” ideas.
45. The Special Rapporteur notes that as a result of repressive legislation applicable to the
press and of a perception that there is a repressive culture within the judiciary vis-à-vis press
reporting, there is in practice systematic repression of any expression in the press criticizing the
establishment, in particular religious authorities, calling for reform, or in any other way deemed
unlawful. The Special Rapporteur also notes that the great majority of cases of prosecution of
press offences brought to his attention have resulted in the ban (temporary or definitive) of the
publications concerned and the sentencing of the journalists concerned to prison terms. Statistics
of the Office of the Prosecutor General for Tehian indicated that 81 publications were closed
down - 59 after judicial decision and 22 after decision by the Press Supervisory Board - and
unofficial statistics indicate that 98 publications were closed in the past five years - 59 after court
decision and 39 after a decision of the Press Supervisory Board or after a temporary ban under
the Preventive Restraint Act. Unofficial statistics also indicate that 23 journalists are currently
imprisoned in Tehian.
46. While noting that such a framework is definitely not conducive to an effective exercise of
the right to freedom of opinion and expression, the Special Rapporteur also considers that it
creates a climate of self-censorship among journalists and contributors to newspapers and
magazines.
B. Journalists and intellectuals
47. The Special Rapporteur notes that there are many cases ofjournalists and intellectuals
being prosecuted under various provisions of the Press Law or the Penal Code. It seems that the
great majority of cases are initiated by the authorities (the Council of Guardiams, the
Revolutionary Guards, the Basij, IRIB, the prosecutors or, in the provinces where the institution
of the Prosecutor has not yet been re-established, directly by judges), and not by a complaint
from a private individual or group.
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page 14
48. Having examined all the cases brought to his attention, the Special Rapporteur has
identified the following pattern in the process applied to such cases:
(a) Most cases relate to an alleged violation of national security provisions, or to
provisions on insult to Islam or to religious figures in the Press Law and the Penal Code;
(b) Access to a lawyer is allegedly permitted only after an extremely long period of
incommunicado detention (which can reportedly extend from 30 days to, in some cases, more
than one year). In this respect, the Special Rapporteur expresses his concern that, according to
Commission on Human Rights resolution 2003/32, “prolonged incommunicado detention may
facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or
degrading treatment or even torture”;
(c) After indictment, there is sometimes a provision for release on bail, but the
amounts demanded are reportedly extremely high;
(d) In most cases, hearings take place in closed trials by a Revolutionary Court, in
violation of article 168 of the Constitution, and there are reports that in some cases, witnesses
called by the defence were not allowed in the court and the files transmitted to the defence
lawyers were not complete;
(e) In all cases brought to the attention of the Special Rapporteur, extremely severe
sentences were imposed on the defendants - prison terms of several years, sometimes lashes and,
in rare cases, the death penalty.
49. The Special Rapporteur is seriously concerned about this pattern, which indicates that, in
addition to numerous prosecutions on the basis of substantive legal provisions severely
restricting the right to freedom of opinion and expression, many of which can be interpreted
arbitrarily on account of their vagueness, the procedural rights of the defendants are not
respected.
50. In order to illustrate his concern, the Special Rapporteur would like to refer to a few of
the cases of intellectuals and journalists brought to his attention. For example, Hashem Aghajari,
a history professor at the Tarbiat Modares University in Tehran, was arrested on 8 August 2002
after a speech delivered on 19 June 2002 in Hamadan entifled “Islamic Protestantism”.
Mr. Aghajari was sentenced on 7 November 2003 to 74 lashes, five years' imprisonment,
five years' suspension from teaching, five years' deprivation of his civil rights and to the death
penalty, for insult against Islam and religious leaders, apostasy and heresy. It seems that the
death sentence was later repealed by the Supreme Court, although it is reported that IRIB reports
and some officials in the judiciary continue to refer to his death sentence, and the case has been
referred back to the court in Hamadan which has reportedly not reviewed it yet. In the
meantime, Mr. Aghajari is still detained in Evin prison in Tehran.
51. The Special Rapporteur would also like to refer to the case of the intellectuals who
participated in the April 2000 Berlin Conference. During the conference, some provocateurs
reportedly disrupted the discussions, which were filmed by IRIB and broadcast on public
h/UN .4/2U04/02/Add.2
page 15
television in Iran. As a result, many intellectuals who participated in the Conference, including
Hassan Yosefi Eshkevari arid Akbar Ganji, were arrested upon their return in Iran and charged
with “harming national security” and “spreading propaganda against the regime”. They were
sentenced to seven and six years of imprisonment, respectively.
52. Samialc Pourzand, ajoumalist and film critic, was arrested on 24 November 2001 by the
intelligence services, presumably in connection with his position as manager of the Majmue-ye
Farrhangi-ye Honari-ye Tehran, a cultural centre for writers, artists and intellectuals, and with
his articles, which are critical of the regime. Mr. Pourzand was detained in solitary confinement
for four months after his arrest, without access to a lawyer or medical assistance, although he
is 72 years old and has health problems. 0113 May 2002, he was sentenced by the Tehran Press
Court to 11 years' imprisonment on charges of “undermining State security through his links
with monarchists and counter-revolutionaries”, allegedly on the basis of “confessions”, which
are thought to have been extracted under duress, and at the end of a closed trial where he was
represented by court-appointed lawyers. Also, in July 2002, Mr. Pourzand was apparently forced
to appear on State television in order to make a public confession, which seems to have been
obtained under duress.
53. As far as journalists are concerned, the Special Rapporteur wishes to refer to the cases of
Abbas Abdi and Iraj Jamshidi, which provide concrete illustrations of the pattern described
above. Mr. Abdi, a journalist and director of the Ayandeh public opinion firm, was arrested
on 4 November 2002 on charges of “having received money from either the United States
polling firm Gallup or a foreign embassy”, after the publication of anAyandeh poll indicating
overwhelming support for a resumption of Iran's lies with the United States of America. He was
sentenced on 2 February 2003 by Press Court No. 1410 to eight years of imprisonment. He
seems to have spent a long period in incommunicado detention and his lawyer is said to have
limited access to him.
54. Mr. Jamshidi, editor-in-chief of the economic dailyAsia, was arrested on 6 July 2003
with his wife, Saghi Baghernia, the newspaper's managing editor. Ms. Baghemia was reportedly
released on bail on 7 July, while Mr. Jamshidi was placed in incommunicado detention, initially
at Evin prison in Tehran and on 9 July at an undisclosed location. They were anested on charges
of “publicity against the regime”, after the newspaper carried a photograph of People's
Mujaliideen leader Maryam Rajavi on 5 July alongside an article published earlier by IRNA.
In parallel, the newspaper was suspended on the order of the Tehran Public Prosecutor,
Said Mortazavi. Mr. Jamshidi was transferred back to Evin prison the day before he met with
the Special Rapporteur on 9 November, after having spent 18 weeks in solitary confinement at
an undisclosed location, and he is now awaiting trial.
C. Students
55. During his visit, the Special Rapporteur also enquired about the situation of students, in
particular in relation to the events of July 1999 and June/July 2003, during which numerous
students were attacked, arrested, tried and sentenced for having participated in demonstrations
calling for reform and protesting against the socio-economic situation in the country.
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page 16
56. The Special Rapporteur was informed that, during both the 1999 and the 2003 events,
students demonstrating peacefully were reportedly attacked by members of the Basij (a
paramilitary group under the authority of the Revolutionary Guards, which is represented in each
university through a Students Basij Orgathzation) and of the Ansar Hezbollah (a group
dependent on the authority of the Office of the Leader) and many were arrested.
57. It seems that a number of those arrested (it was not possible to have precise statistics)
were charged with “threats against national security”, “confusing people's minds” and/or
“propaganda against the State”, after long periods of incommunicado detention - in Tehrai ,
mosily in block 325 of Evin prison, which is allegedly the headquarters of the Supreme
Command of the Revolutionary Guards, and in sector 209 of Evin prison*, during which they
were reportedly subjected to long and repeated periods of oral and written interrogation, and to
ill-treatment.
58. The process is then very similar to the pattern identified in the cases ofjournalists and
intellectuals as cited above. Students prosecuted for their participation in the 1999 and
2003 demonstrations were reportedly not allowed the assistance of a lawyer until their
indictments and - in the cases of those who have already been tried - the trials by a
Revolutionary Court were closed and often very short.
59. The Special Rapporteur is seriously concerned that in most cases extremely heavy
sentences were pronounced against students; in particular, a number of students arrested after the
1999 demonstrations such as Mehrdad Lohrasbi and Abbas Deldar, whom he met in Evin prison,
and Ahmad Batebi were sentenced to death, but the sentences were commuted on appeal
to 15 years' imprisonment.
60. In view of this situation, the Special Rapporteur is deeply concerned about the situation
of students indicted after the 2003 demonstrations, most of whom are awaiting trial and who are
at risk of being condemned to very heavy sentences.
61. It is also reported that in parallel to penal prosecutions, the case of these students was
referred to the disciplinary committees of their respective universities for a decision on their
possible expulsion from university. These committees are reported to keep files on students
relating mainly to the students' political activity and religious behaviour, on the basis of files
kept by the Students Basij Orgathzation and the “Guard forces”, which are said to be
representatives of the Ministry of Information (intelligence) at universities. In this connection,
the Special Rapporteur is concerned at reports that these files are used in the selection of public
employees.
* On the basis in particular of the findings of the Working Group on Arbitrary Detention,
section 209 seems to be a sector of the prison under the authority of the intelligence services
through which most prisoners, in particular political prisoners, go through during their pre-trial
detention (see E/CN.4/2004/3/Add.2, paragraph 32 (3)).
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page 17
62. The Special Rapporteur was also informed that a number of students' orgathzations
recently sent a open letter to the Secretary-General of the United Nations, in which they reported
on the human rights situation in the country, in particular in relation to freedom of opinion and
expression, trade union rights, women's rights, etc. Reports seem to indicate that those students
who had signed the letter were later accused by the Prosecutor of Tehian of “creating disorder”,
“threatening the national security” and “insulting the Leader”. It seems that the cases against
these students have not yet been tried. However, there are fears that they will receive heavy
sentences.
D. Lai yers
63. Another concern of the Special Rapporteur relates to reports that lawyers do not benefit
from immunity from prosecution with regard to what they say in court in defence of their clients
or for statements they make on a case. It is reported that often, the legal provision used to
prosecute lawyers is the “dissemination of falsehoods”.
64. In addition, the Special Rapporteur was informed that article 187 of the Third
Development Plan (2000-2004) vests the judiciary with the authority to deliver aimual licences
to new lawyers, licences which were until then issued by the bar associations in each province of
the country. The reason invoked in the Plan is that this will favour an increase in the number of
lawyers in the country, create employment and facilitate people's access to lawyers. As far as
the right to freedom of opinion and expression of lawyers is concerned, the Special Rapporteur
believes that this creates two problems: the first is that the lawyers concerned (i.e. those who
have been granted a licence since the entry into force of the Third Development Plan in 2000)
are extremely cautious as to cases they accept to defend, especially political cases, and the
second is that they will be even more cautious as to what they say in defence of their clients, not
only for fear of penal prosecutions, but also to have their aimual licences renewed by the
judiciary.
65. In the light of information he has received, the Special Rapporteur would like to mention
the case of Nasser Zarafchai , a human rights defender and lawyer. Mr. Zarafchan, a lawyer for
the families of the four intellectuals and opposition figures whose killings in 1998 were
orchestrated by the intelligence services, was arrested on 16 December 2000 by the Judicial
Organization of the Armed Forces - which does not have jurisdiction over civilians - because of
an interview he gave in which he criticized the investigation and complained that information
was missing from the files given to the defence lawyers by the judge.
66. Mr. Zarafchan was charged with “dissemination of confidential information”, although
the case, including its political dimension, was widely publicized in the country and abroad and
with “possession of alcohol and weapons” (a charge widely believed to have been fabricated),
and sentenced to two years in prison on the first charge, to three years on the second and
to 70 lashes. He was also banned from exercising his profession as a lawyer, following a closed
trial by a military court which, however, under article 172 of the Constitution has competence
over “crimes related to the special military or police duties of the members of the army, the
police and the Islamic Revolutionary Guard Corps”, and not over civilians.
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67. The Special Rapporteur is very concerned about reports that those actions are said to
have been taken to prevent Mr. Zarafchan from defending the families of the victims and to
pressure him not to divulge publicly information on those responsible for the murders.
E. Parliamentarians
68. With regard to parliamentariai s, the Special Rapporteur notes that the statutes of the
Majlis provide for immunity from prosecution regarding statements made in the context of their
parliamentary duty. However, in practice, there have been a number of cases where
parliamentarians were prosecuted for statements they made in the Majlis.
69. The Special Rapporteur also notes that, in the context of the forthcoming elections to the
Majlis in February 2004, fears have been expressed that the power of the Council of Guardiai s,
with its right of veto, to screen candidates for election might be used as a form of reprisal against
members of the Majlis who have been either too critical of religious leaders and the
establishment, or too vocal in calling for reform.
70. In this context, the Special Rapporteur notes, as a side point, that article 99 of the
Constitution stipulates that the Council of Guardians “shall be charged with responsibility for
supervising the elections” of the Assembly of Experts, the President and the Majlis. He notes
that a Government Bill adopted by the Majlis attempted to define this provision by, inter alia,
requiring that only objective criteria be applied in the screening of candidates, as opposed to the
subjective criteria, such as “proper religious thinking” or “proper behaviour”, which are
reportedly currently applied by the Council of Guardiams. This draft law was rejected by the
Council of Guardians.
F. The case of Zahra Kazemi
71. The Special Rapporteur would like to make specific reference to the case of
Zahra Kazemi, firstly because of its gravity, secondly because of its exceptional nature, and
thirdly, because of the concerns raised by the way the case is being handled by the authorities.
72. Mrs. Kazemi, an Irathan-Canadian photojournalist and film-maker, was arrested
on 23 June 2003 while she was taking pictures of families of detainees protesting in front of Evin
prison against the detention of their relatives for their participation in the recent demonstrations.
She had obtained a permit to take pictures during her stay in Iran in June and July from the
Foreign Press Service of the Ministry of Culture and Islamic Guidance. After her arrest,
Mrs. Kazemi was interrogated for four days, without any access to a lawyer, by officials from the
Prosecutor's Office, including the Deputy Prosecutor and the Prosecutor, Said Mortazavi; the
Intelligence Unit of the Law Enforcement Forces; and the Ministry for Information
(intelligence). On 27 June, she was taken unconscious to the hospital, where she remained in a
coma until 10 July, when she died. Mrs. Kazemi' s family was informed of her whereabouts only
on 6 July and of her death on 12 July, when the Government made the official aimouncement
through IRNA.
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73. Preliminary reports from the Office of the Prosecutor indicated that Mrs. Kazemi died
from a digestive disorder, but an independent medical examination was not allowed. This
statement provoked waves of protests, both inside and outside the country, as all
non-governmental reports available indicated that Mrs. Kazemi was ill-treated during her
detention, resulting in her death.
74. On 13 July, President Khatami announced that an inquiry into Mrs. Kazemi's death
would be carried out by a Ministerial Inquiry Committee composed of representatives of the
Ministries of Culture and Islamic Guidance, Justice, Information (intelligence), the Interior and
Health. On the same thy, the Director General of the Foreign Press Service of the Ministry of
Culture and Islamic Guidance announced that Mrs. Kazemi died as a result of a stroke.
However, he subsequently wrote a letter to the Majlis indicating that he was pressured by
Prosecutor Mortazavi to make that statement, which was false. On 16 July, Vice-President
Abtahi announced that Mrs. Kazemi had died as a result of a skull fracture after sustaining a
blow while in custody, and on 21 July, the report of the Ministerial Inquiry Committee
confirmed this statement.
75. On that basis, the case was assigned to Judge Javad Esmaeili on 25 July. On 30 July,
the Article 90 Commission of the Majlis decided to launch an inquiry into Mrs. Kazemi' s death.
On 30 August, before the conclusion of the inquiry of the Article 90 Commission of the Majlis,
two intelligence officials were arrested and charged with “quasi-intentional murder”, while no
charges were brought against the Office of the Prosecutor, despite the fact that most reports
indicated that it was involved in Mrs. Kazemi's death.
76. On 28 October, the Article 90 Commission of the Majlis released its report, which
concluded that Prosecutor Mortazavi and other members of the judiciary were directly involved
in Mrs. Kazemi's death, having subjected her to violent interrogations in Evin prison. The
Commission also accused them of attempting to cover up the cause of her death.
77. During his visit, the Special Rapporteur made requests for information on the result of
inquiries into, and the investigation of, Mrs. Kazemi's death to several officials of the
Government and the judiciary, including Vice-President Abtahi, the Tehian Prosecutor, and the
Article 90 Commission of the Majlis. He notes with regret and concern that he has received no
substantive response thereto, as all he was told was that the case was being investigated by a
court, which would take into account the inquiries carried out. The Special Rapporteur is not
satisfied with these answers, especially as the information he received indicates that up to now,
although there seem to have been comprehensive inquiries into the circumstances of
Mrs. Kazemi's death, including who might be responsible, there seem to have been no
comprehensive public report thereon, as the reports of both the Ministerial Inquiry Committee
and the Article 90 Commission of the Majlis are alleged to have been partially censored before
being released to the public.
78. The Special Rapporteur notes with great concern that Mrs. Kazemi was killed after she
was arrested for performing her work as a journalist. He fears that, in the present circumstances,
there will be no adequate and satisfactory response from the authorities to this odious crime and
that the chain of responsibility will not be elucidated, at least not publicly, thus allowing the
persons responsible for Mrs. Kazemi's death to remain unpunished.
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79. The Special Rapporteur is concerned that, by failing to fully disclose the findings of the
comprehensive inquiries carried out, the authorities are favouring a climate of impunity for
officials of law enforcement agencies and send a message that officials are not accountable to the
people for their acts.
80. On a related note, the Special Rapporteur appeals to the authorities to allow Mrs. Kazemi
to be buried in Canada, in accordance with the express wish of Mrs. Kazemi's son,
Stephan Hachemi, and her mother, Ezzat Kazemi.
G. Other groups
81. The Special Rapporteur is also concerned at the situation of writers and artists whose
works are subjected to prior censorship, as all works of arts - from books, plays and movies to
exhibitions and other artistic events - must obtain prior authorization from the Ministry of
Islamic Guidance and Culture on the basis of rules adopted by the Supreme Council of Culture,
appointed by the Leader.
82. In addition, in a number of cases in which the authorization was granted, some books,
plays, movies and exhibitions were baimed or closed down by a judge, and the artists, publishers,
trai slators and editors, as the case may be, were prosecuted. The Prosecutor General for the
Province ofTehian indicated that sometimes, even though the authorization was legally granted
on the basis of the rules defined by the Supreme Council for Culture, the judiciary feels that
there is a need to investigate the case to determine its compatibility with these rules, and a judge
has the competence to revoke an authorization on this basis.
83. The situation of the Baha'i is also a cause of concern for the Special Rapporteur. Noting
that, although the Baha'i are the most important religious minority in Iran (approximately
300,000-350,000 Baha'i are said to be living in the country); however, according to article 13 of
the Constitution, the only religious minorities that are granted the freedom to perform their
religious rites and practise their religion in personal status mailers and religious education are
Irathan Zoroastriai s, Jews and Christians, the only recognized religious minorities.
84. The Special Rapporteur notes that, on this basis, members of the Baha'i community are
barred from expressing themselves as Baha'i. In addition, the Special Rapporteur received
reports that members of the Baha'i community are routinely harassed, arrested and sometimes
sentenced to long periods of imprisonment, either for “apostasy” or “association with Baha'i
institutions”.
H. Political activity
85. Freedom of opinion and expression is central to any form of democratic political life. In
this respect, the Special Rapporteur notes with satisfaction that since the revolution, presidential
parliamentary and local elections, as well as the election of the Assembly of Experts, have been
held by secret ballot at regular intervals.
86. According to general comment No. 25 of the Human Rights Committee on article 25 of
ICCPR, “ [ t]he effective implementation of the right and the opportunity to stand for elective
office ensures that persons entifled to vote have a free choice of candidates. Any restrictions on
E/CN .4/2004/62/Add. 2
page 21
the right to stand for election ... must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as ... by reason of political affiliation”. The Special
Rapporteur is of the view that the practice of the Council of Guardians of screening, mainly on
the basis of subjective criteria, the candidates to the election of the Majlis - the constitutionality
of which is questionable as it does not correspond to the letter of article 99 of the Constitution
(see section II.E above) - is an impediment to the effective exercise of the right to take part in the
conduct of public affairs and to the free expression of voters.
87. In addition, the Special Rapporteur received reports that members of opposition political
parties or orgathzations routinely face harassment or are prosecuted by the authorities, thereby
creating an atmosphere of intimidation vis-à-vis involvement in opposition political activity.
88. In particular, the Special Rapporteur was informed that 14 members of the Democratic
Front of Iran are reportedly imprisoned in Tehrai , especially in connection with the July 1999
events. Similarly, reports indicate that some members of the National Religious Movement are
also imprisoned for the peaceful expression of their opinion.
IV. CONCLUSIONS AND RECOMMENDATIONS
89. The Special Rapporteur wishes to emphasize that the protection of the right to
freedom of opinion and expression is at the heart of the promotion and protection of
human rights. In this respect, he recalls Commission on Human Rights resolution 2003/42,
which states that “the effective promotion and protection of the human rights of persons
who exercise the right to freedom of opinion and expression are of fundamental importance
to the safeguarding of human dignity” and “that restrictions on the exercise of the right to
freedom of opinion and expression could indicate a deterioration in the protection, respect
for and enjoyment of other human rights and freedoms”.
A. Institutional framework
90. During his visit to Iran, the Special Rapporteur found that there was a strong desire
for reform among the civil society, and a parallel willingness to reform among members of
Parliament and at the highest levels of the Government He notes with satisfaction that in
most of his discussions, an improved framework for the protection of human rights, and in
particular of the right to freedom of opinion and expression, was identified as an essential
initial step towards reform.
91. In this respect, the Special Rapporteur recognizes that the Government has on some
occasions expressed its concern over a number of judicial decisions relating to intellectuals
or journalists (for example in the cases of Mr. Aghajari and Mrs. Kazemi) and to the
closure of certain newspapers.
92. He also acknowledges that the Government and the Majlis are very active at the
legislative level, endeavouring to improve the existing legal framework, in particular in
relation to a better protection of human rights and fundamental freedoms.
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93. However, the Special Rapporteur notes that there are impediments to reform, in
particular owing to various institutional locks on governmental, parliamentary and judicial
processes resulting from the control exercised thereon by unelected institutions and bodies,
which are not accountable to the people - such as the Expediency Council, the Council of
Guardians, the Supreme Council for Culture and the Head of thejudiciary - and which in
practice have hitherto hampered reforms at the legislative level and in the functioning of
institutions.
B. Legal framework
94. With respect to the legal framework, the Special Rapporteur deems it necessary to
underline that, according to article 19, paragraph 3, of ICCPR, restrictions on the exercise
of the right to freedom of opinion and expression are permissible only when they are
necessary for respect of the reputations of others and for the protection of national security
or of public order, or of public health or morals. Article 19, paragraph 3, also requires
that such restrictions shall be provided by law, in particular to provide a clearly delimited
frame of precisely identified and defined limitations to the freedom of expression.
95. The Special Rapporteur considers that many of the limitations provided for, in
particular, in the Press Law and the Penal Code, do not conform to the permissible
restrictions listed in article 19, paragraph 3, of ICCPR, firstly because many go beyond the
clauses listed in this article, and secondly because in most cases the grounds for these
limitations (“disturbing the security of the country”; “insult against Islam”; “criticism”;
“propaganda” against the State; “issues prejudicial to Islamic codes”; “matters against
Islamic standards”; “deviant press, parties and groups”; “anti-revolutionary forces”;
“anti-establishment activities”) lack any objective criteria and clear definition, and are
therefore open to subjective and arbitrary interpretation by judges implementing them. In
this respect, the Special Rapporteur wishes to recall that Commission on Human Rights
resolution 2003/42 stresses the “need to ensure that unjustified invocation of national
security ... to restrict the right to freedom of expression and information does not take”.
96. With regard to the Press Law, the Special Rapporteur wishes to recall that in
August 2000, the sixth (current) Maj lis introduced progressive amendments to its
provisions, but that discussion in the Majlis was prohibited by the unprecedented direct
intervention of the Leader. In the view of the Special Rapporteur, this signals that the
press in Iran is perceived by the establishment as a major agent for reform and that, as
such, restrictive legislation governing its activities is purposefully utilized to muzzle it.
97. The Special Rapporteur therefore urges the authorities to review these legal texts in
order to bring them into line with international human rights norms and standards
relating to freedom of opinion and expression, and recommends that the provisions limiting
the exercise of this right be given clear definitions in law, in the framework of article 19,
paragraph 3, of ICCPR.
98. With respect to the provisions of the Press Law and the Penal Code limiting the
exercise of the right to freedom of opinion and expression, the Special Rapporteur is of the
view that cases of abuse of the right to freedom of opinion and expression, as defined in
article 19, paragraphs 1 and 2, of ICCPR, call for civil suits.
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99. The Special Rapporteur therefore urges the authorities to review the Press Law and
the Penal Code in order to repeal all criminal provisions dealing with the peaceful
expression of one's opinion, including in the press. This, in the view of the
Special Rapporteur, could be done in the context of the judicial reform currently under
way in Iran which seeks, inter alia, to identify a number of offences for which alternative
sentences to prison terms will be established. The Special Rapporteur urges the Supreme
Council for Development of the Judiciary to consider including press- and opinion-related
offences in this category of offence.
100. The Special Rapporteur notes that the use of Revolutionary Courts to try
opinion-related offences clearly has a negative impact on the exercise of the right to
freedom of opinion and expression. He refers to the conclusions of the Working Group on
Arbitrary Detention, in particular in paragraph 65, paragraph 1, on the “reduction of the
proliferation of judicial decision-making bodies”, in which it notes that “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, IRevolutionary
Courts] are responsible for many of the cases of arbitrary detention for crimes of opinion”.
101. As far as the use of the Preventive Restraint Act in relation to press offences is
concerned, the Special Rapporteur recommends that the law adopted by the Maj lis in this
respect be re-examined as, in his view, press offences cannot be defined as most serious
crimes, to which this Act should apply.
102. Another issue of concern to the Special Rapporteur is that of the interpretation of
Islamic principles, especially when it comes to the definition of opinion-related offences.
Many interlocutors mentioned to him the existence of a “red line”, the crossing of which is
considered a breach of Islamic principles. However, during his meetings, the Special
Rapporteur found that the criteria applied to determine the point at which the “red line” is
crossed varies extensively, even among clerics. In the view of the Special Rapporteur, there
is an urgent need to define more clearly the contents of Islamic principles in the law, in
order to avoid arbitrariness in their interpretation and lack of legal security in their
implementation.
103. The Special Rapporteur is of the view that the adoption of a national Charter of
Human Rights, elaborating on international human rights law and on article 20 of the
Constitution, would be helpful in regard to a review of the legal framework in Iran, by
providing a clear framework within which laws would be drafted. In this respect, he would
like to draw the attention of the Government to the outcome of the seminar “Enriching the
universality of human rights: Islamic perspectives on the Universal Declaration of Human
Rights”, organized jointly by the Office of the United Nations High Commissioner for
Human Rights and the Organization of the Islamic Conference in November 1998, in the
context of the commemoration of the fiftieth anniversary of the Universal Declaration of
Human Rights, which highlighted the compatibility between Islamic law and its
interpretation and Universal Declaration of Human Rights.
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C. Principal considerations and concerns
104. With regard to the actual exercise of the right to freedom of opinion and expression,
the Special Rapporteur notes the general perception that over the past few years, the
situation in this regard seems to have deteriorated, as the number of publications closed
down and the number of people arrested, prosecuted and sentenced for the peaceful
expression of their opinion have increased. The Special Rapporteur is not in a position to
state whether this increase is due to the adoption of a more severe stance by the authorities,
in particular the judiciary, vis-à-vis these offences, or to the fact that since the election of a
reformist President in 1997 and the inauguration of a reformist Maj lis in 2000, there is less
fear among the population to be vocal about reform and critical about the functioning of
public institutions.
105. The Special Rapporteur also notes that many of the interlocutors he met during his
mission told him that in Iran, “there is freedom of expression, but there is no freedom after
expression”. The Special Rapporteur would go even further, underlining that the climate
of fear induced by the systematic repression of people expressing critical views against the
authorized political and religious doctrine and the functioning of institutions, coupled with
the severity and disproportion of the sentences imposed, leads to self-censorship on the part
of many journalists, intellectuals, politicians, students and the population at large, thus in
effect impeding freedom of expression.
106. In the present report, the Special Rapporteur identified a number of patterns
relating to the prosecution, trial and punishment of press- and opinion-related offences. In
this respect, he would like to endorse the conclusion of the Working Group on Arbitrary
Detention regarding the situation of prisoners of conscience, when it noted that they were
punished twice over: by having their right to freedom of opinion and expression infringed
and by not benefiting from the basic guarantees for the right to a fair trial.
107. With particular reference to the use over prolonged periods of incommunicado
detention in all of the cases of people detained for the expression of their opinion brought
to his attention, the Special Rapporteur recalls Commission on Human Rights
resolution 2003/32, in which the Commission “reminds all States that prolonged
incommunicado detention may facilitate the perpetration of torture and can in itself
constitute a form of cruel, inhuman or degrading treatment or even torture, and urges all
States to respect the safeguards concerning the liberty, security and the dignity of the
person”.
108. In view of the above, the Special Rapporteur calls on the authorities to grant a
complete amnesly to all prisoners prosecuted or convicted of press- and opinion-related
offences. In particular, he welcomes the commitment expressed during his visit by the
authorities to grant Mr. Pourzand a complete amnesly.
109. Noting with appreciation the standing invitation extended by the Government to all
thematic mechanisms of the Commission on Human Rights and the cooperation of the
authorities with the mechanisms that have visited the country, the Special Rapporteur
wishes to underline that such visits should be seen as part of a process of dialogue between
the authorities and United Nations human rights mechanisms, with a view to formulating
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informed and objective recommendations that could be considered as the basis for
technical cooperation programmes. In this context, and taking into account his findings,
the Special Rapporteur believes that a visit by the Special Rapporteur on the question of
torture and the Special Rapporteur on the independence of judges and la' vyers would be
useful.
110. As a first step towards the implementation of his recommendations, the Special
Rapporteur urges the authorities to seek technical cooperation in the area of the
administration of justice, in particular with respect to the training ofjudges and other law
enforcement officials. Such training should particularly focus on the norms and standards
governing the right to a fair trial and the effective exercise of the right to freedom of
opinion and expression.
111. The Government is invited to report to the Special Rapporteur on the measures
taken to implement his recommendations.
