A/HRC/WGAD/2012/48

GE.13-16576

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-fifth session, 14–23 November 2012

No. 48/2012 (Islamic Republic of Iran)

Communication addressed to the Government on 5 July 2012

Concerning Muhammad Kaboudvand

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 that

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/2012/48

General Assembly

Distr.: General

27 August 2013

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 case summarized hereafter has been reported to the Working Group on

Arbitrary Detention as follows.

4.

Mr. Muhammad Kaboudvand, a national of the Islamic Republic of Iran, born in the

city of Sanandaj (Sina), is founder of the group called “Alliance for Democracy in Iran”

and of the Human Rights Organization of Kurdistan. He is also a journalist and acted as

editor-in-chief of the Message of the people (Payam-e Mardom). Mr. Kaboudvand was

awarded the prestigious British Press Award of the international journalist of the year and

Human Rights Watch’s Hellman/Hammett grant. He is also the author of three books, The

Other Half (Nimeh-ye Digar), The Struggle for Democracy (Barzakh-e democracy) and

Social Movements (Jonbesh-e Ejtemaii).

5.

On 1 July 2007, Mr. Kaboudvand was arrested at his office in Vanak Square,

Tehran, by intelligence agents. Reportedly, Mr. Kaboudvand was not presented with an

arrest warrant. He was taken to his house, which was subsequently searched. The agents

seized his personal files, computer hard disk and compact discs.

6.

Mr. Kaboudvand was placed in ward 209 of Evin prison where he was in solitary

confinement for five months. He was charged with “acting against national security by

establishing the Human Rights Organization of Kurdistan”; “widespread propaganda

against the system by disseminating news”; “opposing Islamic penal laws by publicizing

punishment such as stoning and executions”, and “advocating on behalf of political

prisoners”. The source reports that the reasons for his arrest are linked to the fact that he

had reported on the conditions in Iranian prisons, including the use of torture and other ill-

treatment.

7.

Mr. Kaboudvand’s trial began on 25 May 2008 at the 15th Branch of the

Revolutionary Court., the judges reportedly decided to hold a closed trial under article 188

of the Penal Code of the Islamic Republic of Iran. According to that provision, trials may

be closed in order to protect public morals. The source contends that the case against Mr.

Kaboudvand was not related to public morals. It is the source’s submission that his trial was

conducted in violation of article 10 of the Universal Declaration of Human Rights (UDHR)

and article 14 of the International Covenant on Civil and Political Rights (ICCPR).

8.

Mr. Kaboudvand was sentenced to 10 years of imprisonment and an extra year of

imprisonment on charges of “widespread propaganda against the system by disseminating

news”. Subsequently, Branch 56 of the Appeals Court of Tehran reduced Mr.

Kaboudvand’s sentence to 10 years and 6 months in prison. His sentence of 10 years

imprisonment was later upheld by Branch 54 of the Appeals Court of Tehran.

9.

The source contends that Mr. Kaboudvand’s trial was postponed three times due to

failure on the part of the prosecutors and the judge to appear in court. Mr. Kaboudvand was

kept for eight months in detention waiting for his trial due to continuous delays. The source

maintains that this is contrary to article 9, paragraph 3, of the ICCPR.

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10.

Moreover, Mr. Kaboudvand was allegedly denied effective access to his lawyer. His

lawyer was allowed access only twice, before his hearing and once at the trial stage. Mr.

Kaboudvand was not allowed to confer with his lawyer during the hearing. The source

submits that this is contrary to article 14 (b) and (d) of the ICCPR and principle 18,

paragraph 1, of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.

11.

The source maintains that the evidence cited in court was focused on the

establishment of the Human Rights Organization of Kurdistan in 2005, the work of which

focused on reporting human rights violations to the United Nations. Allegedly, other human

rights monitoring and advocacy activities, which are considered crimes in the Islamic

Republic of Iran, were cited as evidence supporting the charges against Mr. Kaboudvand.

The source claims that although the organization was not registered, it did not participate in

any illegal activities.

12.

Finally, the source contends that Mr. Kaboudvand’s detention is directly linked to

his peaceful exercise of the right to freedom of opinion and expression and the right to

freedom of association as guaranteed under articles 19 and 21 of the ICCPR and article 19

and 20 of the UDHR.

13.

Mr. Kaboudvand’s case was, inter alia, reported in a note by the Secretary-General

on the situation of human rights in the Islamic Republic of Iran (A/66/374 of 23 September

2011, para. 35). Mr. Kaboudvand has suffered from a series of chronic and acute medical

problems often not attended to by medical staff, including two strokes in 2010. Although

prison doctors have written to judicial authorities stating that Mr. Kaboudvand is in urgent

need of specialist medical care, no action has allegedly been taken. It was only on 23 July

2010 that Mr. Kaboudvand was allowed to see a neurologist in prison. In January 2012, Mr.

Kaboudvand was transferred to a hospital for tests.

14.

While in detention, Mr. Kaboudvand’s bail was set at 150 million toman (equivalent

to approximately US$ 155,000), a sum beyond what his family could reasonably be

expected to afford. The source maintains that the bail amount was not appropriate for the

charges against Mr. Kaboudvand, as such high bail amounts are reserved for suspects on

murder charges and similar crimes.

Response from the Government

15.

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

Islamic Republic of Iran on 5 July 2012 requesting it to provide, in its reply, detailed

information about the current situation of Mr. Kaboudvand. It is regretted that the Working

Group has not received a response from the Government.

Discussion

16.

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.

17.

The primary question before the Working Group is to ascertain possible reasons and

factors leading to the arrest and detention of Mr. Kaboudvand. In a number of similar cases

from the Islamic Republic of Iran including those leading to opinions 1/1992; 28/1994;

14/1996; 39/2000; 30/2001; 8/2003; 19/2006; 6/2009; 8/2010; 21/2011; 20/2011 and

30/20121 the question before the Working Group was whether the motivating factor for

arrest and detention was the result of the exercise of the rights and freedoms in articles 19

(freedom of opinion and expression), and 20 (freedom of peaceful assembly and

association) of the UDHR and by articles 19 (freedom of opinion and expression) and 21

1 Available at http://www.unwgaddatabase.org/un/.

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(peaceful assembly, freedom of peaceful assembly and association) of the ICCPR by the

detainees. As was the case in previous opinions of this Working Group, the detainee, Mr.

Kaboudvand, is a well-known member of civil society, founder of a human rights

organization and a human rights defender who sought to bring to the attention of the people

of the Islamic Republic of Iran and the international community at large, the human rights

violations of the citizens of their country. Mr. Kaboudvand is thus one of several human

rights activists who have been deprived of their liberty for bringing the plight of political

prisoners and their ill-treatment to the world’s attention.

18.

Charges against Mr. Kaboudvand consist of (a) establishment of the Human Rights

Organization of Kurdistan, an unregistered organization engaged in human rights advocacy;

(b) widespread propaganda against the Iranian system by disseminating news opposing

Islamic penal laws; and (c) advocating on behalf of political prisoners. These “offences” are

outlined in articles 498-500 that form part of the overly general “Security Laws” of the

Islamic Penal Code. The provisions of the Security Laws prohibit various forms of speech,

assembly and expression, allowing the State arbitrarily and subjectively to judge them as

being “against” the nation or its security. Article 498 of the Security Laws criminalizes the

establishment of any groups that aim to “disrupt national security”. Article 500 sets a

sentence of three months to one year of imprisonment for anyone found guilty of “in any

way advertising against the order of the Islamic Republic of Iran or advertising for the

benefit of groups or institutions against the order”. Mr. Kaboudvand’s exercise of his right

to freedom of opinion and expression was thus interpreted as dangerous to national security

invoking a prison sentence of 10 years as well as an additional one year on charges of

propaganda against the system (this sentence was reduced to six months upon appeal).

19.

The Working Group is concerned at the excessive length of these prison sentences

which are in no way proportionate to the so-called “offences” as these are no more than an

exercise of basic fundamental rights of opinion and expression under international human

rights instruments including the UDHR and the ICCPR, to which the Government of the

Islamic Republic of Iran is a party.

20.

Regarding the actual procedures followed after the arrest and detention of Mr.

Kaboudvand, the Working Group expresses its serious concerns at the disregard of

minimum standards at all stages in the handling of this case. The Working Group is

informed (and the Government has not challenged this due to a lack of response) that Mr.

Kaboudvand was arrested without a warrant. His house was searched and his personal

belongings were confiscated without any search warrant. He was kept in solitary

confinement for five months (which goes beyond detention into the realm of ill-treatment,

abuse and even torture) after which his trial began. The Human Rights Committee has

noted that “prolonged solitary confinement may amount to a violation of the prohibition

against torture and ill-treatment in article 7 of the International Covenant on Civil and

Political Rights”. It should be noted that Mr. Kaboudvand was arrested on 1 July 2007 and

his trial began on 25 May 2008. There were repeated delays in hearing the case, therefore

violating article 9, paragraph 3, of the ICCPR.

21.

With regard to the trial, its processes and procedures, information from the source

points to grave violations of the right to a fair trial under national and international law; in

particular a number of provisions of article 14 of the ICCPR. The source reports that the

judges held a closed trial invoking article 188 of the Penal Code of the Islamic Republic of

Iran where this procedure is permissible in the interest of public morals; a situation

unrelated to that of Mr. Kaboudvand. This process of a closed trial violates both article 10

of the UDHR and 14 of the ICCPR.

22.

Access to a defence counsel must be effective, i.e. the detainee must have access

which is frequent, private and without interference from the State authorities. This right of

Mr. Kaboudvand was violated as he was not allowed adequate access to meet and confer

with his lawyer amounting to violations of article 14 (b) and (d) of the ICCPR and principle

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18, paragraph 1, of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment.

23.

The appeal process too failed to meet minimum standards under international human

rights law to which the Islamic Republic of Iran is a party. The only encouraging outcome

of the appeal was that Mr. Kaboudvand’s extra one-year sentence was reduced to six

months (the 10-year sentence remained intact). It has been reported that one of the lawyers

at appeal, Ms. Nasrin Sotoudeh, has herself been imprisoned and was the subject of an

opinion of this Working Group.2

24.

Mr. Kaboudvand is suffering from ill-health including two strokes for which

medical attention is critical. Despite written orders from the judicial authorities to extend

medical care, delayed action was taken only in January 2012 and he was taken to hospital

for tests.

25.

Finally, the Working Group notes that the authorities placed an extremely high sum

as bail money for the release of Mr. Kaboudvand (150 million toman equivalent to US$

150,000). This exorbitant sum usually set for grave offences such as murder is

disproportionate to the charges against Mr. Kaboudvand and tantamount to a denial of

justice.

Disposition

26.

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

following opinion:

The deprivation of liberty of Mr. Kaboudvand 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 within categories I, II and III of the categories applicable to the consideration of

the cases submitted to the Working Group.

27.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the necessary steps to remedy the situation which includes ensuring

that Mr. Kaboudvand receives appropriate medical care.

28.

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

case, the Government of the Islamic Republic of Iran should release Mr. Kaboudvand

forthwith and accord him an enforceable right to compensation pursuant to article 9,

paragraph 5, of the ICCPR.

29.

The Working Group recalls the Human Rights Council’s request that States take into

account the Group’s views and, where necessary, take appropriate steps to remedy the

situation of persons arbitrarily deprived of their liberty. States are also invited to extend

their cooperation to the Group’s requests for information and to give due consideration to

the recommendations it has made.3

[Adopted on 16 November 2012]

2 Opinion 21/2011 (Islamic Republic of Iran) available at http://www.unwgaddatabase.org/un/.

3 Resolution 15/18 on arbitrary detention adopted by the Human Rights Council at its fifteenth session

(A/HRC/RES/15/18), paras. 3, 4(a) and 9.