A/HRC/WGAD/2012/30

GE.12- 18328

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-fourth session, 27–31 August 2012

No. 30/2012 (Islamic Republic of Iran)

Communication addressed to the Government on 30 March 2012

Concerning Hossein Mossavi, Mehdi Karoubi, Zahra Rahnavard

The Government did not reply to the communication.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex, and Corr.1), the Working Group transmitted the above-mentioned communication to

the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

A/HRC/WGAD/2012/30

General Assembly

Distr.: General

26 November 2012

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The cases summarized hereafter have been reported to the Working Group on

Arbitrary Detention as follows.

4.

Mehdi Karoubi, an Iranian national, born in 1937, usually residing in Tehran, the

Islamic Republic of Iran, served as Speaker of Parliament from 1989 to 1992 and from

2000 to 2004. He was a presidential candidate in 2005 and 2009. Mr. Karoubi is also the

head of the opposition reformist Etemad-e Melli (National Trust) Party and owns the

banned reformist newspaper Etemad-e Melli.

5.

Mir Hossein Mossavi, an Iranian national, born in 1941, and usually residing in

Tehran, the Islamic Republic of Iran, served as Prime Minister of the Islamic Republic of

Iran from 1981 to 1989. Mr. Mossavi was also political advisor to President Rafsanjani

from 1989 to 1997 and senior political advisor to President Khatami from 1997 to 2005.

Mr. Mossavi is a member of the Expediency Council and the Supreme Council of the

Cultural Revolution, joining them in 1989 and 1996 respectively. In June 2009, Mr.

Mossavi ran as presidential candidate. Moreover, Mr. Mossavi owned the operating licence

for Kalame newspaper, which was shut down in June 2009. Its website remains in use,

although it is censored.

6.

Zahra Rahnavard, an Iranian national, born in 1945, usually residing in Tehran, the

Islamic Republic of Iran, served as an advisor to President Khatami from 1997 to 2005 and

as president of Al-Zahra, a women’s university in Tehran, from 1998 to 2005. She is

married to Mr. Mossavi and was actively involved in his campaign for the presidential

elections.

7.

On 5 February 2011, Mr. Mossavi and Mr. Karoubi requested a permit from the

Iranian authorities to hold a demonstration on 14 February 2012 in support of the protests

taking place at the time in Egypt and Tunisia. Reportedly, the Ministry of Interior of the

Islamic Republic of Iran denied their request.

8.

Mr. Karoubi was placed under house arrest along with his wife Fatemeh Karoubi on

10 February 2011. Reportedly, the Iranian security forces (Nirou-ye Entezami) were

involved in the arrest. The Iranian authorities reportedly released Ms. Karoubi around 25

April for medical treatment.

9.

Between 9 and 14 February 2011, Mr. Mossavi and Ms. Rahnavard were also placed

under house arrest at their home in Tehran. Reportedly, the Iranian security forces (Nirou-

ye Entezami) were involved in the arrest. According to eyewitnesses’ reports, at various

times the house of Mr. Mossavi and Ms. Rahnavard was surrounded by uniformed security

forces and plain-clothed security forces, believed to be members of the Intelligence

Ministry, Islamic Revolution Guard Corps and Basij militia.

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10.

On 14 February, while demonstrations were taking place in Tehran and other major

cities in the Islamic Republic of Iran, the security forces allegedly blocked the streets

leading to the homes of Mr. Karoubi and Mr. Mossavi.

11.

It is reported that between 16 and 24 February 2011, Mr. Mossavi’s daughters asked

the security forces surrounding their parents’ home if there had been any judicial order that

prohibited them from seeing their parents. The security officers allegedly refused to provide

any answers. It is reported that, some time between 16 and 24 February 2011, Mr. Mossavi

and his wife Ms. Rahnavard were taken to an undisclosed location, allegedly called “safe

houses”.

12.

On 28 February 2011, the Prosecutor General of the Islamic Republic of Iran

Gholam Hossein Mohseni Ejei reportedly denied that Mr. Mossavi and Mr. Karoubi had

been formally arrested or placed in detention, stating that they were in their respective

homes. Mr. Ejei conceded that the authorities had imposed some restrictions on them:

“Judicial action has been taken (against Mossavi and Karoubi); ultimatums have been

issued … In the first step, their communication, including their comings and goings, and

their telephone conversations have been restricted, and if need be, other steps will be

taken.” This was Mr. Ejei’s statement to the semi-official Iranian Students’ News Agency.

13.

On 8 March 2011, Mr. Mossavi and his wife were allegedly returned to their home

where they remain since under the regime of house arrest and under the authority of the

Iranian Revolutionary Guard Corps and the Ministry of Intelligence. Mr. Karoubi also

remains incommunicado at his home.

14.

On 16 November 2011, Mohammad Javad Larijani, Head of the High Council for

Human Rights in the Islamic Republic of Iran, publicly stated that the reasons for the

confinement of the opposition leaders include incitement to violence and other illegal

activities.1

Source’s contention as to the alleged arbitrary character of house arrest

15.

The source refers to the Working Group’s deliberation No. 1 on house arrest, which

provides that “house arrest may be compared to deprivation of liberty provided that it is

carried out in closed premises which the person is not allowed to leave”. According to the

source, Mr. Mossavi, Ms. Rahnavard, and Mr. Karoubi have been kept incommunicado in

their homes since February 2011, fully deprived by the authorities of their ability to leave.

Similarly the source emphasizes that the Iranian law does not contain any provision which

would authorize house arrest.

16.

First, the source holds the view that the petitioners’ detention results directly from

their attempt to peacefully exercise their right to freedom of expression and assembly under

articles 19 and 21 of the International Covenant of Civil and Political Rights and under

article 27 of the Iranian Constitution. It is reported that the Iranian authorities restricted

their communication and movement throughout 2010 and 2011 primarily as a result of their

criticism of the Government, calls for democratic reforms and demand for respect of

constitutional rights in the Islamic Republic of Iran. The source maintains that there is a

genuine link between the request filed by Mr. Mossavi and Mr. Karoubi to hold peaceful

assembly and their ensuing house arrest. Since their arrest, Ms. Rahnavard, Mr. Mossavi

and Mr. Karoubi have not been allowed to leave the premises of their home, even for

medical purposes. They were also barred from joining the demonstrations of 14 February

1 Press conference on human rights and regional development, 16 November 2011. Available from

www.unmultimedia.org/tv/webcast/2011/11/press-conference-human-rights-and-regional-

development.html.

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2011. It is reported that the petitioners have been kept incommunicado and have been

deprived from making any public statements. It is also reported that members of both Mr.

Mossavi’s and Mr. Karoubi’s families have been harassed and intimidated.

17.

Second, the source conveys that the petitioners’ house arrests lack any legal basis.

There is no indication that any authority has issued an order sanctioning their detention.

Instead, the source informs that the authorities have continuously denied any formal arrest

or detention. The source points to a set of procedural violations in the present case,

including article 32 of Iranian Constitution and article 24 of the Code of Criminal

Procedure, which require a judge to authorize any pretrial detention and to provide written

charges within 24 hours of any arrest. Similarly, Ms. Rahnavard, Mr. Mossavi and Mr.

Karoubi have not had access to regular visitations, health care or a lawyer. The petitioners

have not been brought before a judge and have not had the opportunity to contest the

legality of their house arrest.

18.

The General Assembly of the United Nations, in a resolution adopted on 19

December 2011, expressed “deep concern at … the continuing and sustained house arrest of

leading opposition figures from the 2009 presidential elections” (resolution 66/175).

Similarly, the Special Rapporteur on the situation of human rights in the Islamic Republic

of Iran, in a communication sent to the Government, raised concerns about the ongoing

arrest of Mr. Mossavi and Mr. Karoubi.

19.

Finally, in his recent report to the Human Rights Council, the Secretary-General

expressed concerns “that the two main opposition leaders, Mir Hussein Mousavi and Mehdi

Karoubi, remained under house arrest and had limited contacts with the outside world

during the elections. Such restrictions adversely affect free, fair and participatory

elections”.2

Response from the Government

20.

The Working Group transmitted the above allegations to the Government of the

Islamic Republic of Iran requesting that it provide, in its reply, detailed information about

the current situation of Hossein Mossavi, Mehdi Karoubi and Zahra Rahnavard.

21.

The Working Group regrets that it did not receive a response from the Government.

Discussion

22.

In the absence of a response from the Government and based on its methods of

work, the Working Group is able to render an opinion in the light of the information

submitted to it.

23.

The primary question to address here is whether house arrest constitutes deprivation

of liberty amounting to “detention”, and if such detention is without legal basis under

existing definitions of international human rights law. In its deliberation No. 1, the Working

Group compares house arrest to deprivation of liberty “provided that it is carried out in

closed premises which the person is not allowed to leave”. Deliberation No. 1 further

declares that it falls on the Working Group to determine on a case-by-case basis whether a

detention is arbitrary in nature or not. In opinions No. 2/2002, No. 9/2004, No. 2/2007 and

No. 12/2010,3 the Working Group declared house arrest as arbitrary detention, in particular

when it lacked any of the safeguards of arrest and detention under the Universal

2 Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran,

A/HRC/19/82, para. 29.

3 Opinions are available from the Working Group on Arbitrary Detention database:

www.unwgaddatabase.org/un.

A/HRC/WGAD/2012/30

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Declaration of Human Rights and, for State parties, the International Covenant on Civil and

Political Rights. In the case at hand, there is no evidence that the house arrests of Hossein

Mossavi, Mehdi Karoubi and Zahra Rahnavard meet the basic requirements of relevant

national and international law. The Government of the Islamic Republic of Iran has

conceded placing restrictions on the detainees in question (Prosecutor General of the

Islamic Republic of Iran Gholam Hossein Mohseni Ejei’s statement of 18 February 2011 to

the press) mentioning “judicial action” and placing restrictions on Mr. Mossavi and Mr.

Karoubi’s contact with the outside world. The Working Group did not receive information

or further details regarding any trial or judicial proceedings accorded to the above-

mentioned persons.

24.

The second issue under consideration of the Working Group relates to possible

reasons for placing Mr. Mossavi et al under house arrest. As in other similar cases from the

Islamic Republic of Iran including those leading to opinions No. 1/1992, No. 28/1994, No.

14/1996, No. 39/2000, No. 30/2001, No. 8/2003, No. 19/2006, No. 6/2009, No. 8/2010, No.

21/2011 and No. 20/2011, the question before the Working Group was whether the

motivating factor for arrest and detention is the result of the exercise of the rights and

freedoms in articles 19 (freedom of opinion and expression), 20 (freedom of peaceful

assembly and association) and 21 (the right to take part in the government of his country,

directly or through freely chosen representatives) of the Universal Declaration of Human

Rights and by articles 19 (freedom of opinion and expression) and 21 (freedom of peaceful

assembly and association) of the International Covenant on Civil and Political Rights. As

was in previous cases, Mr. Mossavi et al are prominent members of the Iranian opposition,

who under former regimes had held high political offices. Their detention followed seeking

permission to organize a demonstration, which request was denied. Mohammad Javad

Larijani, head of the High Council for Human Rights in the Islamic Republic of Iran cited

the reasons for the confinement of the opposition leaders, which refer to “incitement to

violence and other illegal activities”,4 lending credence to the view that Mr. Mossavi et al

met their present fate due to the exercise of their rights to freedom of expression and

opinion and participation in the political activities of the country.

25.

Finally, there is the question of the right to be charged and brought to trial for any

alleged violation of national laws. In this regard, not only has the Government and its

functionaries violated international human rights laws, but also Iranian laws on the subject.

Article 32 of the Constitution of the Islamic Republic of Iran prohibits arbitrary arrest and

requires that “if someone is detained, the subject matter of the charge, with reasons, must

be immediately communicated and explained in writing to the accused”. The same

provision indicates that “within at most 24 hours the file on the case and preliminary

documentation must be referred to the competent legal authority. Legal procedures must be

initiated as early as possible.” Continued house arrest interspersed with detention in

unknown locations; not being informed of the reasons for detention and failure to be

presented promptly before a judge, to have access to legal counsel and to a public, free, fair

and impartial trial, all constitute the core of rights that have been compromised in the case

at hand.

26.

The Working Group considers that detention in this matter is arbitrary (and thus

prohibited), if it follows from the exercise of the rights and freedoms guaranteed by articles

7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, in so far as

States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the

International Covenant on Civil and Political Rights. The case under consideration

demonstrates that this has indeed been the cause of the detention of Mossavi et al since

4 Press conference on human rights and regional development, 16 November 2011.

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February 2011, in order to prevent them from participating in demonstrations against the

results of the elections in the Islamic Republic of Iran.

27.

The Working Group notes the pattern of human rights violations documented over

the years making the case at hand and others of a similar nature, a matter of grave concern.

As noted in opinion 20/2011 (para. 25), “the Working Group refers to the critical findings

of human rights violations occurring in the Islamic Republic of Iran by United Nations

human rights bodies, including this Working Group (see, for example, report of the

Working Group on its visit to the Islamic Republic of Iran, E/CN.4/2004/3/Add.2 and

Corr.1; see also General Assembly resolution 65/226 “Situation of human rights in the

Islamic Republic of Iran” and Human Rights Council resolution 16/9 “Situation of human

rights in the Islamic Republic of Iran”)”. More recently the Working Group refers to the

report of the Secretary-General on the situation of human rights in the Islamic Republic of

Iran (A/HRC/19/82) and the note by the Secretary-General on the situation of human rights

in the Islamic Republic of Iran (A/66/374).

Disposition

28.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

The deprivation of liberty of Hossein Mossavi, Mehdi Karoubi and Zahra Rahnavard

is arbitrary, being in contravention of articles 9, 10, 11, 18, 19 and 21 of the

Universal Declaration of Human Rights and articles 9, 14 and 19 of the International

Covenant on Civil and Political Rights, and falls under categories I, II and III of the

arbitrary detention categories referred to by the Working Group when considering

cases submitted to it.

29.

Consequent upon the opinion rendered, the Working Group requests the

Government to release Hossein Mossavi, Mehdi Karoubi and Zahra Rahnavard.

30.

The Working Group believes that, taking into account all the circumstances of the

case, the Government of the Islamic Republic of Iran ought to accord Hossein Mossavi,

Mehdi Karoubi and Zahra Rahnavard an enforceable right to compensation pursuant to

article 9, paragraph 5, of the International Covenant on Civil and Political Rights.

[Adopted on 29 August 2012]