Briefing note in view of the fourth session of the EU/Iran human rights dialogue

04/06/2004
Press release

Contents
I. General framework : the legislative election
II. The administration of justice
a) arbitrary grounds for arrests and detentions
b) right to a fair trial
c) conditions of detention
d) the death penalty and other inhuman punishments
e) discriminations against women in the administration of justice
f) discriminations against minorities in the administration of justice
III. Cooperation with UN human rights mechanisms

1. General framework : the legislative election

In its conclusions of 23 February 2004, the Council “expressed its deep regret and disappointment that large numbers of candidates were prevented from standing in this year’s parliamentary elections, including many sitting members of the Majlis, thus making a genuine democratic choice by the Iranian people impossible. This interference was a setback for the democratic process in Iran”.

The Conservatives won the legislative election on 20 February, victory which was confirmed at the second ballot which took place on 8 May 2004. The Conservatives now have 195 seats on 290 in the Parliament (Majlis). Reformists, who held 190 seats in the outgoing assembly, won around 40. The new parliament is effective since 27 May 2004.

February’s elections saw the lowest turnout since the Islamic revolution in 1979 with just over 50% of the electorate turning out to vote.

In early February, the FIDH had already expressed its extreme concern at the pre-electoral situation in Iran. In January 2004, the Council of Guardians had rejected about 2500 on the 8000 candidates to the legislative election. The reason alleged to justify the rejection of those candidates was that they had violated the Islamic principles and the Constitution of Iran. The majority of the rejected candidates were reformists, including 87 members of the outgoing Parliament. This was nearly a third of the members of the Parliament.

After his visit in Iran last November, the UN Special rapporteur on freedom of opinion and expression said that “the current practice of the Council of Gardians of screening, mainly on the basis of subjective criteria, the candidates to the election, 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”. It consequently violates art. 25 of the International Covenant on Civil and Political Rights, ratified by Iran.

Under those circumstances, the perspectives for reforms are dim.

2. The Administration of Justice

a) Arbitrary grounds for arrests and detentions
Arbitrary arrests are still commonplace. People are arrested for the exercise of the rights and freedoms guaranteed by international human rights treaties binding on Iran, in particular the International Covenant on Civil and Political Rights.

In that regard, it should be noted that Mr Nasser Zarafchan, a lawyer and human rights defender, is still in prison. He is one of the founding members of the Defenders of Human Rights Association, of which Shirin Ebadi is the president.

Many journalists and intellectuals are still in prison. 13 Journalists are currently behind the bars.
- Akbar Ganji, arrested in April 2000
- Hassan Yussefi Eshkevari, arrested in August 2000
- Hossein Ghazian, imprisoned since October 2002
- Abbas Abdi, arrested in November 2002
- Ali-Reza Jabbari, arrested in March 2003
- Syamak Pourzand, in prison since 30 March 2003, whose detention had been considered arbitrary by the WGAD in May 2003.
- Reza Alidjani, Taghi Rahmani and Hoda Rezazadeh-Saber were condemned to heavy sentences on 10 May 2003 by the Revolutionary Tribunal of Tehran, and were arrested in June 2003
- Iraj Jamshidi, arrested in July 2003
- Alireza Ahmadi, in jail since July 2003
- Ensafali Hedayat, imprisoned since 16 January 2004
- Mostafa Sabti, arrested on 19 March 2004

Several tens of students are still in prison in connection with the protests of 1999; this is notably the case of Ahmad Batebi, Manoutchehr Mohammadi, Mehrdad Lohrasbi and Akbar Mohammadi.

The UN Special Rapporteur on freedom of opinion and expression, in its report published in January 2004, called “on the authorities to grant a complete amnesty to all prisoners prosecuted or sentenced for press- and opinion-related offences”.

In the same report, 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 functioning 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”.


b) Right to a fair trial

The judiciary is not independent in Iran. As noted by the UN Special rapporteur on freedom of opinion and expression in his January 2004 report, “the judiciary is, according to the Constitution (art. 156) “an independent power” responsible for the administration of justice, i.e. for all judicial, administrative and executive matters 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”, directly appointed by, and accountable to, the Leader (arts. 110 and 157). Therefore, control is exercised to a large extent by the Office of the Leader over the judiciary as an institution, and over individual judges” (para 21).

The Special Rapporteur has identified the following pattern in the process applied to journalists and intellectuals prosecuted:
“(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” (para 48).

The Special Rapporteur “is seriously concerned about this pattern, which indicates (...) that the procedural rights of the defendants are not respected” (para 49).

The Ambassador of Iran, during the last session of the UN Commission on Human Rights in Geneva, declared that revolutionary courts no longer have jurisdiction over press cases : those cases will be tried by a committee composed of three judges and a jury (provincial criminal courts). This was an express recommendation of the UN Special rapporteur on freedom of opinion and expression. However, in practice, the situation did not change. Journalist Ensafali Hedayat, e.g., was condemned to one year inprisonment in April 2004 by a tribunal composed of one judge only, and no jury. Hashem Aghajari (it is not a press case but a case related to freedom of expression) saw his death sentence for blasphemy confirmed by a regional court in May 2004 - the court was composed of one judge only, and no jury...

With regard to students arrested after the peaceful protests of 1999 and June 2003, the UN Special rapporteur notes that the process is “very similar to the pattern identified in the cases of journalists 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” (para 58).

It should also be noted that the UN working group on Arbitrary Detention, in its report made public in June 2003, made a number of recommendations regarding the administration of justice in order to ensure the respect of the right to a fair trial. It notably recommended the abolition of revolutionary tribunals and religious courts, to guarantee the immunity of counsel in pleading cases in a legislative instrument and to provide for the active involvement of the counsel from the outset of the case and during all stages.

c) Conditions of detention

Torture
In April 2004, the Head of the Judiciary, Ayatollah Mahmoud Hashemi Shahroudi, issued instructions for the judiciary, the police and the security forces asking them to respect the law : "During arrests or questioning, blindfolding, restraining pestering and insulting of detainees must be avoided. (...) Agents carrying out interrogation should not hide their faces, nor stand behind the accused backs, nor take them to secret locations (...) "All forms of torture aiming to obtain confessions is banned, and confessions obtained in this way have no legal or religious value (...)”. The directive added that arrests must be the exception, carried out within a legal timeframe and "where possible, families must be informed".

In May 2004, the Council of Guardians approved a bill banning torture. The legislation strengthens rights enshrined in Iranian law and the constitution, by giving the force of law to the above mentioned directives. It should be noted, however, that the bill does not cover corporal punishments, although they are covered by the UN Convention against torture. In addition, there is no indication on how this new legislation will be respected in practice.

The same month, for the second time, the outgoing Parliament adopted a bill approving ratification of the UN Convention against torture. In August 2003, the Council of Guardians had rejected the bill. There are no indications that the text be adopted by the Council of Guardians.

Zahra Kazemi
The trial following the death of the Irano-Canadian photo-journalist Zahra Kazemi as a result of beatings while in detention is not progressing.

Two intelligence officers were arrested in August 2003 and charged but the Kazemi trial is making no progress. The next hearing is supposed to be held on 17 July 2003. This will be one year after the death of Mrs Kazemi. In addition, no charges were brought against the Public Prosecutor of Tehran, who is still in place despite the fact that his responsibility in the arrest of Zahra Kazemi has been clearly established.

In his report of January 2004, the UN Special Rapporteur on freedom of opinion and expression denounced the lack of transparency after the investigation. He indeed notes that he “fears that... 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 ... 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” (paras 78 and 79).

In addition, up to now, no demarches were made by the Iranian authorities to ensure that the body of Mrs Kazemi be sent back to Canada, as requested by her family.

d) The death penalty and other inhuman punishments

It seems that the death penalty as well as other forms of cruel, inhuman and degrading punishments continued in the same proportions as in the previous year.

Executions
In 2002 At least 113
In 2003 At least 108
Death by stoning
In 2002 At least 2
In 2003 At least 4
Flogging
In 2002 At least 84 (flogged)
In 2003 At least 197 (flogged or sentenced to be flogged)
Amputations
In 2002 No indication
In 2003 At least 11

Source : Amnesty International Annual reports 2003 and 2004.

With regard to the death by stoning, a decree was reportedly adopted by the Judiciary in 2003 establishing a moratorium on the death by stoning. However, that decision has not been respected (Amnesty reports that four men were condemned to the death by stoning in November 2003). In addition, it can be reversed at any moment : it should be enshrined in a law adopted by the Parliament.

One specific death penalty case has attracted much international attention. Hashem Aghajari, a well-known intellectual and professor, saw his death sentence for blasphemy confirmed by a regional court in May 2004. He had criticised the clerical rule in Iran in 2002. In November 2002, he had been condemned to the death penalty. In January 2003, the Supreme court ordered a re-trial. This re-trial resulted in the confirmation of the death sentence. However, Judiciary spokesman Gholam Hossein Elham said on 1st June 2004 that the Supreme Court had scrapped the sentence because it was not satisfied with the review of the case. Elham said Aghajari’s case would now be sent to another court in the capital Tehran for a complete review.

Mr Aghajari is currently being held in the Evin prison in Tehran.

e) discriminations against women in the administration of justice

It should be noted that in December 2003, the legislation passed by the outgoing parliament ratifying the CEDAW was rejected by the Council of Guardians.

The responsibility under criminal law for the girls is 9 years old, while it is 15 years for the boys. They could even be condemned to the death penalty. On the contrary, they are responsible under civil law when they reach 18 years old, except if a court states that the child is mentally mature.
According to article 300 of the Islamic Penal Code, the blood money for a female is half as much as that of a male. If a woman kills someone (a man or a woman), she may be condemned to the death penalty. However, according to Art. 209 of the Islamic Penal Code, if a woman is murdered by a man, the family of the victim must pay (half of the blood price of the murderer) to the family of the murderer in order to allow that the murderer be judged by a court and condemned to the death penalty.
The legal value of a woman’s sworn testimony has half the value of a man’s testimony (art. 237 of the Islamic penal law).
Currently, the state takes half a couple estate if a husband dies in the absence of other heirs than his wife. The wife inherits only half of the estate. When wives die in the same circumstances, husbands are entitled to the entire estate. The outgoing parliament adopted a bill to address that discrimination in May 2004, but there is little chance that the Council of Guardians approve the reform.

f) discriminations against minorities in the administration of justice

According to art. 207 of the Islamic Penal Code, “whenever a Muslim is killed, the murderer shall be subjected to qesas” (crime of retaliation). This means that whenever a non-Muslim is killed, the murderer will not be subjected to qesas; in that case, blood money must be paid to the family of the victim.

According to art. 210, “Whenever a non-Moslem living under the protection of the Islamic government on a non-temporary basis murders another non-Moslem living under the protection of the Islamic government on a non-temporary basis, s/he shall be subject to qesas even if the two are believers of different religions".

Consequently, people belonging to non-recognised religious minorities, as the Baha’is, are not protected by the law. It is only if the court considers that not punishing the murderer creates general disorder in the society or encourages the murderer to commit further crimes, that the murderer can be sentenced to three to ten years of imprisonment (art. 208 of the Islamic Penal Law).

3. Cooperation with UN human rights mechanisms

Iran’s cooperation with UN human rights mechanisms has improved during the past year. Three UN mechanisms visited Iran recently : the Working Group on Arbitrary Detention (February 2003), the Special Rapporteur on Freedom of Expression (November 2003) and the Special Rapporteur on Migrants (February 2004). Discussions are under way regarding visits by the Working Group on enforced disappearances as well as by the Special Rapporteur on women rights.

The respect by Iran of its obligations under the Convention on the Rights of the Child will be examined in September 2004 by the UN Committee on the Rights of the Child. However, Iran has not reported to the ICESCR and ICCPR for almost 10 years.

In addition, the lack of implementation of the recommendations issued by UN special mechanisms and treaty bodies is worrying.

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