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Report submitted by the Special Rapporteur on the right to freedom of opinion and expression, Ambeyi Ligabo

E/CN.4/2004/62/Add.2

          
          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.
        
          
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          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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          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.
        
          
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          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
        
          
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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
        
          
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          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.
        
          
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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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          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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          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 . . .
        
          
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          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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          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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          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
        
          
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          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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          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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          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
        
          
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          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
        
          
          E/CN .4/2004/62/Add. 2
          page 25
          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.
        
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