Opinion; Subjects: IRAN (ISLAMIC REPUBLIC OF), ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-16329(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-sixth session,
22-26 August 2016
Opinion No. 28/2016 concerning Nazanin Zaghari-Ratcliffe
(Islamic Republic of Iran)
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
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the 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 1/102 and extended it for a three-year period in its resolution 15/18 of
30 September 2010. The mandate was extended for a further three years in resolution 24/7
of 26 September 2013.
In accordance with its methods of work (A/HRC/30/69), on 22 June 2016 the
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Working Group transmitted a communication to the Government of the Islamic Republic of
Iran concerning Nazanin Zaghari-Ratcliffe. The Government has not replied to the
communication. The State is a party to the International Covenant on Civil and Political
Rights.
The Working Group regards deprivation of liberty as arbitrary in the following
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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
sentence or despite an amnesty law applicable to him) (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/2016/28
General Assembly
Distr.: General
21 September 2016
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 on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or other status that aims towards or can result in ignoring the equality of human
beings (category V).
Submissions
Communication from the source
Ms. Nazanin Zaghari-Ratcliffe is a 37-year-old dual British and Iranian citizen who
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was born in the Islamic Republic of Iran. In September 2007, Ms. Ratcliffe moved to the
United Kingdom of Great Britain and Northern Ireland to pursue a masters degree in
communications management. In 2009, she married a British citizen and, late in 2011,
became a British citizen. Their two-year-old daughter was born in London and is also a
British citizen, but does not hold any other nationality. Since 2011, Ms. Ratcliffe has been
working as a project manager for a charity based in London, and is still employed in that
role.
On 17 March 2016, Ms. Ratcliffe travelled from London to Tehran with her
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daughter to visit her family in the Islamic Republic of Iran. Until the day of her departure,
Ms. Ratcliffe’s visit in Tehran had passed without incident. She reportedly called her
husband regularly during the visit without indication of any problems.
On 3 April 2016, Ms. Ratcliffe was arrested at Khomeini Airport in Tehran by the
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Iranian Revolutionary Guard just before boarding a flight home to the United Kingdom.
According to the source, the Iranian Revolutionary Guard had been waiting for
Ms. Ratcliffe at the airport. They took her into a small room, having stated that there was an
issue with her passport and some documents. The Revolutionary Guard allowed her to
briefly leave the room to hand her daughter to her family. They then took Ms. Ratcliffe into
the room again and told her family not to wait as she would not be leaving on the flight, but
did not provide any other information. The authorities also confiscated her daughter’s
British passport.
On 4 April 2016, Ms. Ratcliffe’s family returned to the airport to enquire about her
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whereabouts. They spoke to the authorities at the security desk, but were not provided with
any information, including the reasons for her arrest and detention and her location.
Ms. Ratcliffe’s family did not hear anything further until the end of the day on 5 April
2016, when they received a short telephone call from her saying that she was alive. On
6 April 2016, Ms. Ratcliffe made another short telephone call saying that she had been
informed that she was to be released. She also sent her husband a text message saying that
she was to be released on 9 April 2016. However, Ms. Ratcliffe was not released. She did
not say where she was being held.
On 9 April 2016, Ms. Ratcliffe’s family went back to the airport to see if any further
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information was available, but was unable to learn more. According to the source,
Ms. Ratcliffe’s family learned a few days later that she was in Kerman, situated some 1,000
kilometres from Tehran. It appears that Ms. Ratcliffe had been held in Tehran for a week
and was then moved to Kerman. On 12 or 13 April 2016, Ms. Ratcliffe’s family received a
telephone call from an official who said he was the director of a detention centre in
Kerman, where she was being held. The official did not say which detention centre and
gave no further details, except to say that Ms. Ratcliffe was “safe”.
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On 27 April 2016, Ms. Ratcliffe’s family received another telephone call from a
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person who claimed to be from the Intelligence Department of the Revolutionary Guard.
According to the source, the caller stated that Ms. Ratcliffe was being held for “reasons
related to national security”, but gave no further details, except that she would probably be
held for another two or three months until the investigation was complete. The caller asked
the family to prepare some clothes and money for her use while in detention. The caller said
that the family would be informed when a visit could be arranged, and that her daughter
should be brought then to see her mother.
The source claims that, from the date of her transfer to Kerman (on or around
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11 April 2016) until 18 May 2016, Ms. Ratcliffe was held in solitary confinement in an
undisclosed detention centre in Kerman. During the period of solitary confinement,
Ms. Ratcliffe was able to make a total of approximately 10 telephone calls to her family in
Tehran, given as a “reward” at the discretion of her interrogator, who would stand over her
while she made a call. She was not allowed to call her husband. From the few telephone
calls that Ms. Ratcliffe was allowed to make to her family, it is known that she had to sign
some kind of statement. There is no further detail as to what kind of statement it was or
what kind of pressure she was put under to sign it, as she has not been allowed to talk about
this in any more detail.
The source reports that, from conversations with other former Iranian detainees and
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families of detainees, Ms. Ratcliffe’s husband believes that the authorities kept the lights on
in her cell permanently and that she did not have access to medical treatment.
On the advice of the British Foreign and Commonwealth Office, Ms. Ratcliffe’s
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husband did not immediately release the news of his wife’s arrest to the public. However,
after 37 days without progress, he decided to inform the public. On 9 May 2016, he started
a petition on the website change.org, calling on the United Kingdom Prime Minister to use
his influence to bring his wife home. The source reports that the petition was signed by
more than 765,000 people showing their support for Ms. Ratcliffe. Ms. Ratcliffe’s husband
subsequently presented the petition to the Government of the United Kingdom. On 10 May
2016, Ms. Ratcliffe’s husband issued a press release with details of his wife’s arrest,
resulting in a number of newspaper articles being published on or around that date.
On 11 May 2016, Ms. Ratcliffe’s family was allowed to visit her in a hotel room in
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Kerman. Guards were present throughout the visit, and she could not discuss any details
regarding the investigation or the location of her detention. According to the source,
Ms. Ratcliffe was visibly unwell. She was seated when her family arrived and was unable
to stand up. She had lost weight and was very weak. Ms. Ratcliffe was allowed to play with
her daughter. However, her daughter had to be placed on her lap as Ms. Ratcliffe was
unable to lift her up. The meeting lasted a couple of hours and Ms. Ratcliffe was allowed to
have lunch with her family. The source reports that, although she was very happy to see her
daughter, she was also quiet and subdued.
On 18 May 2016, Ms. Ratcliffe was moved from solitary confinement to the general
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women’s wing in Kerman Prison. The source claims that, by that stage, Ms. Ratcliffe had
been in solitary confinement for a total of 45 days. After her solitary confinement, she had
great difficulty walking and suffered frequent blackouts. Her hair started to fall out and she
had lost five kilograms in weight. Prior to her arrest, she was healthy and had no ailments.
Following her transfer to the general women’s wing, Ms. Ratcliffe shared a cell with
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several other detainees. Generally, the conditions were an improvement on those in solitary
confinement, as Ms. Ratcliffe had better access to shower facilities, although the prison did
not always have hot water. However, Ms. Ratcliffe was obliged to sleep on the floor of the
cell, as no bed was available, even though the other detainees had bunks. Furthermore, the
food in the general women’s wing was limited to only one hot meal a day and no regular
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fresh fruit or salad. After Ms. Ratcliffe’s family had provided her with money, she was able
to buy tea and biscuits from the prison shop and occasionally alternative meals and tinned
food. She was allowed to visit the mosque daily.
According to the source, Ms. Ratcliffe was allowed one 15-minute telephone call per
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day to her family, for which she had to queue with others. She was able to call her husband
on only four occasions at the end of May 2016. Ms. Ratcliffe’s husband published the
details of his telephone call with her on 28 May 2016 on his blog on change.org, and after
that the authorities prevented her from calling him again.
On 5 June 2016, Ms. Ratcliffe called her family to say that she was going to be
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released. However, on the same day, an official called a few hours later to say that she was
mistaken. After that, there was no news of Ms. Ratcliffe for more than a week. On 13 June
2016, she called her family to say that she had been moved to Evin Prison in Tehran. Later
that day, Ms. Ratcliffe’s family brought her daughter to visit in the prison.
On 15 June 2016, the Iranian media reported an announcement by the Revolutionary
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Guard that Ms. Ratcliffe had been involved in “subversion”. The report confirmed that she
had been arrested at Khomeini Airport and held in Kerman. The report also accused the
foreign media, especially in the United Kingdom, of “evil”. In a statement released on the
same day, the Iranian Revolutionary Guard reportedly accused Ms. Ratcliffe of leading a
hostile network plotting the “soft overthrow” of the Government of the Islamic Republic of
Iran.
The source alleges that Ms. Ratcliffe has had no access to a lawyer since her arrest.
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Ms. Ratcliffe’s family has employed a lawyer to act on her behalf but, on the basis of
information obtained by her husband, it is believed that the lawyer has not been able to
speak with or meet her. The source also claims that the authorities have not allowed
Ms. Ratcliffe to receive visits from British consular officials, despite the fact that she is a
British citizen. The British Red Cross reportedly tried to deliver a message to her, but was
not allowed to do so.
Ms. Ratcliffe has now been in detention for over four months since 3 April 2016.
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She has been detained without charge in undisclosed detention centres in Kerman and in
Tehran, and in Kerman Prison and Evin Prison in Tehran. Ms. Ratcliffe’s husband has not
seen his daughter since 17 March 2016. She remains in the care of Ms. Ratcliffe’s family in
the Islamic Republic of Iran, and could not leave the country, even if her passport was
returned. The source states that, under Iranian law, a minor cannot travel abroad unless
accompanied by his or her mother or father. The daughter turned two on 11 June 2016,
while her mother was in detention.
Submissions regarding arbitrary detention
The source submits that the deprivation of liberty of Ms. Ratcliffe is arbitrary in
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accordance with categories I, II, III and V of the arbitrary detention categories referred to
by the Working Group when considering cases submitted to it. The source argues that the
detention of Ms. Ratcliffe without charge, the separation from her two-year-old daughter
and her placement in incommunicado detention and solitary confinement violates articles 7,
9, 10, 14 and 26 of the Covenant. The source submits that:
(a)
There is no evidence to suggest that there had been any grounds for arresting
and detaining Ms. Ratcliffe, let alone for reasons of national security;
(b)
The authorities had failed to arrest and detain Ms. Ratcliffe in accordance
with relevant Iranian legal provisions and international standards, rendering her arrest and
detention unlawful;
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(c)
The authorities had failed to provide Ms. Ratcliffe with access to legal
representation, contrary to domestic and international law, thereby rendering her detention
arbitrary;
(d)
The violation of Ms. Ratcliffe’s right to communicate with the outside world
is particularly egregious and damaging, given the separation from her daughter, who was
only a one year old at the time Ms. Ratcliffe was first taken into custody;
(e)
At no point since her arrest on 3 April 2016 has the necessity of
Ms. Ratcliffe’s detention been evaluated by a judicial authority, contrary to article 9 (3) and
(4) of the Covenant;
(f)
The authorities intentionally subjected Ms. Ratcliffe to ill-treatment, if not
torture, in violation of article 7 of the Covenant.
In relation to category I, the source submits that, under the Iranian Criminal Code of
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Procedure for Public and Revolutionary Courts, competent authorities may issue arrest
orders upon receiving “sufficient evidence” against a person accused of a crime. In the
present case, the authorities did not comply with those provisions and standards and there is
no evidence to suggest that the arrest had been based on a judicial order. At the time of
Ms. Ratcliffe’s arrest on 3 April 2016, the authorities failed to provide an arrest warrant and
did not give any reason or grounds for the arrest, and subsequently failed to provide
grounds for her detention.
In addition, the source submits that the circumstances of Ms. Ratcliffe’s arrest —
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including the absence of any arrest order or information concerning the reasons for arrest,
the absence of charges, the placement in incommunicado detention and interrogation in
solitary confinement, and the lack of access to legal counsel — suggest that proper
procedures were not followed in relation to her arrest and detention. Article 15 of the
Iranian Criminal Code of Procedure for Public and Revolutionary Courts provides that only
specific entities are eligible to perform an arrest, and specifically cites appropriate places of
pretrial detention. The list of authorized entities eligible to arrest does not include
intelligence agents. Intelligence agencies are excluded from the list of facilities appropriate
for pretrial detention. The call to Ms. Ratcliffe’s family on 27 April 2016 from the
Intelligence Department of the Revolutionary Guard suggests that, contrary to article 15,
Ms. Ratcliffe was arrested by intelligence agents. Ms. Ratcliffe was subsequently detained
in two undisclosed detention centres (one in Tehran and one in Kerman, in southern Islamic
Republic of Iran) for 45 days, where she was placed in solitary confinement. The source
claims that this is contrary to domestic law and to international standards, according to
which detainees must be held only in facilities officially acknowledged as places of
detention.
The source refers to article 9 (2) of the Covenant, article 32 of the Iranian
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Constitution, and the Iranian Operational Guidelines for Temporary Detention Centres
(2006), which recognize the rights of detainees to be informed, at the time of arrest, of the
reasons for their arrest and to be informed promptly of any charges against them. The
source notes that the only information that Ms. Ratcliffe and her family were given between
3 April 2016 and 15 June 2016 was that Ms. Ratcliffe was being detained for “reasons of
national security”, and the authorities failed to provide any further details.
Furthermore, the statement reportedly released to the media by the Iranian
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Revolutionary Guard on 15 June 2016, more than two months after Ms. Ratcliffe’s arrest,
mentioned neither the legal or factual grounds for her arrest nor any formal legal charges or
evidence against her. In the statement, it was alleged that Ms. Ratcliffe was one of the
leaders of a group of foreigners, including foreign companies, that aimed to overthrow the
Islamic Republic of Iran. It was also alleged that Ms. Ratcliffe had been working under the
guidance and support of foreign intelligence and media services engaging in criminal
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activities over a number of years. As a result, 75 days after her arrest, Ms. Ratcliffe had still
not been informed of the charges (if any) she faces. The source submits that the allegations
made in the statement by the Iranian Revolutionary Guard violated Ms. Ratcliffe’s right to
be presumed innocent.
With respect to the right of anyone to be brought promptly before a judge or other
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competent authority, the source claims that Ms. Ratcliffe still has not been brought before a
judge and neither she nor her family have had an opportunity to challenge the lawfulness of
her arrest and detention, contrary to article 9 (3) and (4) of the Covenant. Ms. Ratcliffe and
her family have been given no indication if or when she is to be tried for any offence.
In relation to categories II and V, the source submits that the arrest of Ms. Ratcliffe
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was discriminatory on the basis of her national or social origin and therefore arbitrary. The
statement released by the Iranian Revolutionary Guard on 15 June 2016, which mentions
Ms. Ratcliffe’s alleged links to foreign companies and Governments, suggests that she may
have been targeted owing to her dual Iranian/British nationality and her perceived foreign
background. The source claims that the arrest of Ms. Ratcliffe comes in the context of a
recent increase in arrests of dual nationals by the Iranian authorities. The source further
claims that the authorities have been increasingly arresting Iranians with foreign passports
on obscure, politically motivated grounds.
In relation to category III, the source refers to the right to have the assistance of legal
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counsel upon arrest or detention, before any questioning, and when an individual is
charged, according to article 35 of the Iranian Constitution, article 128 of the Iranian Code
of Criminal Procedure, and the Operational Guidelines for Temporary Detention Centres
(2006). The source submits that there is no evidence to suggest that the authorities who
arrested Ms. Ratcliffe had informed her about her right of access to legal counsel.
Furthermore, Ms. Ratcliffe has been interrogated on a number of occasions between her
arrest on 3 April 2016 and the date of the present submission. On none of those occasions
was she granted access to legal counsel. Her family in the Islamic Republic of Iran has
hired a lawyer on her behalf, but there is no information to suggest that the lawyer has been
given access to Ms. Ratcliffe.
The source also refers to article 5 of the Iranian Act on Safeguarding Legitimate
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Liberties and Citizens’ Rights in relation to the right of anyone who is arrested, detained or
imprisoned to inform, or have the authorities notify, someone in the outside world that they
have been taken into custody and where they are being held. In the present case,
Ms. Ratcliffe was held incommunicado for more than 48 hours from the moment of her
arrest on 3 April 2016 at around 9 a.m. until the end of the day on 5 April 2016. She was
again held incommunicado from 7 to 12 or 13 April 2016 and from 6 to 13 June 2016.
The source also alleges that, notwithstanding the limited access to information about
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the authorities’ treatment of Ms. Ratcliffe, sufficient information exists to suggest that the
authorities have subjected her to cruel, inhuman and degrading treatment, in violation of
article 7 of the Covenant. Ms. Ratcliffe endured 45 days of solitary confinement before she
was moved to a shared cell, contrary to the Operational Guidelines for Temporary
Detention Centres (2006), which prohibit solitary confinement, torture and other forms of
force. The effects of that detention regime were aggravated by intensive interrogation, by
the fact that the authorities separated Ms. Ratcliffe from her daughter, and by the
uncertainty about her future. That treatment resulted in the deliberate infliction of severe
pain and suffering, evident also in Ms. Ratcliffe’s deterioration in health, including her
weight loss, her difficulty in walking, and lack of physical strength. Furthermore, although
Ms. Ratcliffe has been unable to confirm this, it is believed that her time in solitary
confinement resulted in a forced confession. Finally, the source submits that the Iranian
authorities’ treatment of detainees in the past raises serious concerns about the treatment of
Ms. Ratcliffe while she remains in custody.
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Further update from the source
The source provided the Working Group with an additional update dated 5 August
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2016 on Ms. Ratcliffe’s current situation. On 11 August 2016, the allegations contained in
the update were forwarded to the Government for its comment, but no response was
received.
According to the source, on 25 June 2016, in a press release issued by the Kerman
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Branch of the Revolutionary Guard and publicized by Iranian media, the authorities made
further allegations that Ms. Ratcliffe had been involved in the “green movement”, that is,
the protests surrounding the elections in 2010. The source states that Ms. Ratcliffe’s family
has not been directly informed of these allegations, and learned about them in the media
report. The authorities later indicated to the family that the contents of the press statement
had not been accurate.
On 11 July 2016, during a press conference held in Tehran by the Prosecutor’s
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Office, it was announced that Ms. Ratcliffe and three other foreign/dual nationals were to
be indicted on charges of “sowing unrest”. No further details were provided.
On 1 August 2016, Ms. Ratcliffe was allowed to contact her family and informed
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them that she had been taken to court that morning. The source believes that this was
Ms. Ratcliffe’s only court appearance since her arrest and detention on 3 April 2016.
According to the source, Ms. Ratcliffe told her family that she is being prosecuted.
However, she was not allowed to disclose further details about the process. Ms. Ratcliffe
was informed by the authorities that she would be allowed to have a lawyer and that her
family would be contacted by the Revolutionary Guard about the process.
The source further submits that, on 1 August 2016, the judge in charge of
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Ms. Ratcliffe’s case approved the lawyer who had been proposed by her family in May
2016. The family members and the lawyer were also given papers for Ms. Ratcliffe to sign
granting the lawyer power of attorney to represent her. The papers were taken to Evin
Prison. As at the evening of 3 August 2016, Ms. Ratcliffe had not yet seen the papers.
The source suggests that only after the judge receives the signed power of attorney
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will the lawyer be given any further information, including on the charges against
Ms. Ratcliffe. According to the source, it will be at the judge’s discretion to decide what the
lawyer will be told and allowed to see. The authorities have not yet provided any
information on when the court proceedings will commence, when the lawyer will be able to
see Ms. Ratcliffe and when he will be given information on the nature of charges against
her.
Since the source filed its original communication with the Working Group,
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Ms. Ratcliffe has been allowed to see some family members on four occasions: on 21 June
and on 2, 13 and 27 July 2016. The meetings lasted approximately one hour and took place
in the presence of the authorities.
Ms. Ratcliffe is reportedly receiving better treatment in detention and has been
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provided with better food. However, her hair is still falling out and she is having difficulty
regaining weight. Her family was allowed to give her a novel to read. Since 3 April 2016,
Ms. Ratcliffe has been allowed to speak to her husband on two occasions for no longer than
10 minutes. Each of those telephone calls was monitored and Ms. Ratcliffe was restricted in
what she could speak about during the conversations. The exchange of written
correspondence has proved to be impossible, as a letter that Ms. Ratcliffe wrote to her
husband was confiscated and a letter from her husband was never received.
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The source submits that a request has been made to the Iranian authorities in London
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to obtain a visa for Ms. Ratcliffe’s lawyer in the United Kingdom and members of her
family to attend Ms. Ratcliffe’s trial. As at 5 August 2016, no response to the request for a
visa had been received from the Iranian authorities in Tehran.
Response from the Government
On 22 June 2016, the Working Group transmitted the allegations from the source to
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the Government under its regular communication procedure. The Working Group requested
the Government to provide detailed information by 22 August 2016 about the current
situation of Ms. Ratcliffe, and any comment on the source’s allegations. The Working
Group also requested the Government to clarify the factual and legal grounds justifying
Ms. Ratcliffe’s continued detention and to provide details regarding the conformity of the
legal proceedings against her with international human rights treaties to which the Islamic
Republic of Iran is a party.
The Working Group regrets that it has not received a response from the Government
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to that communication. The Government has not requested an extension of the time limit
for its reply, as provided for in the Working Group’s methods of work.
Discussion
In the absence of a response from the Government, the Working Group has decided
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to render the present opinion, in conformity with paragraph 15 of its methods of work.
The Working Group has in its jurisprudence established the ways in which it deals
43.
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.1 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source.
The Working Group considers that there have been several violations of article 9 of
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the Covenant during the arrest and detention of Ms. Ratcliffe. Article 9 (1) requires States
to ensure that procedures for carrying out deprivation of liberty are established by law and
followed. This includes specifying which officials are authorized to carry out an arrest,
when a warrant is required, where individuals may be detained, and when authorization to
continue detention must be obtained from a judge.2 In the present case, the source alleges
that no warrant was presented at the time of Ms. Ratcliffe’s arrest. The Government could
have, but did not, rebut that allegation by providing a copy of any arrest order issued under
Iranian law. The source has also provided credible information that Ms. Ratcliffe was
arrested by intelligence officers who had no legal authority to arrest her, and that she was
detained in two undisclosed detention centres in Tehran and Kerman, which may not have
been facilities officially acknowledged as places of detention.
In addition, Ms. Ratcliffe was neither informed of the reasons for her arrest nor
45.
promptly informed of the charges against her, contrary to article 9 (2) of the Covenant. It
has been now more than four months since her arrest and she still does not know what legal
charges will be brought against her. The authorities did not promptly bring Ms. Ratcliffe
before a judge, as required by article 9 (3), and did not inform her of her right to challenge
the lawfulness of her detention, under article 9 (4). Even if she had been informed about
1 See, for example, A/HRC/19/57 (para. 68) and opinion No. 52/2014.
2 See Human Rights Committee general comment No. 35 (2014) on liberty and security of person,
para. 23.
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that right, she had no practical means of exercising it as she was held incommunicado at
various points and has had no access to a lawyer for the entire period of her detention.
In the United Nations Basic Principles and Guidelines on Remedies and Procedures on the
Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, the
Working Group has recently restated the following:
Any individual who is deprived of liberty … has the right to take proceedings before
a court in the State’s jurisdiction to challenge the arbitrariness and lawfulness of his
or her deprivation of liberty and to receive without delay appropriate and accessible
remedies (Principle 3).
Persons deprived of their liberty shall be informed about their rights and obligations
under law through appropriate and accessible means. Among other procedural
safeguards, this includes the right to be informed, in a language and a means, mode
or format that the detainee understands, of the reasons justifying the deprivation of
liberty, the possible judicial avenue to challenge the arbitrariness and lawfulness of
the deprivation of liberty and the right to bring proceedings before the court and to
obtain without delay appropriate and accessible remedies (Principle 7).
Persons deprived of their liberty shall have the right to legal assistance by counsel of
their choice, at any time during their detention, including immediately after the
moment of apprehension. Upon apprehension, all persons shall be promptly
informed of this right (Principle 9).
Appropriate and tailored measures shall be taken into account in the provision of
accessibility and reasonable accommodation to ensure the ability of women and girls
to exercise their right to bring proceedings before a court to challenge the
arbitrariness and lawfulness of detention and to receive without delay appropriate
and accessible remedies (Principle 19).
In the present case, there was no warrant for Ms. Ratcliffe’s arrest and other
46.
domestic procedures were not followed in relation to her arrest and detention, there have
been no charges brought against her, and no assessment has been made by a court of the
lawfulness, necessity and proportionality of her detention. Her deprivation of liberty is both
unlawful and arbitrary. Thus, the Working Group considers that there was no legal basis to
justify the arrest and detention of Ms. Ratcliffe and her deprivation of liberty falls within
category I of the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
Furthermore, the Working Group considers that the source has established a prima
47.
facie case that the arrest and detention of Ms. Ratcliffe was motivated by a discriminatory
factor, namely, her status as a dual Iranian-British national. The Working Group has
considered several facts presented by the source that the Government has not disputed.
First, a report was made public by the Iranian media on 15 June 2016 in which foreign
media, particularly the British media, were accused of unspecified “evil”. Second, the
statement released by the Iranian Revolutionary Guard that day referred to Ms. Ratcliffe’s
“English background”, her “membership of foreign companies and institutions” and her
alleged role as “one of the key ringleaders connected to foreigners, who had performed
various missions for furthering the malicious goals of the enemies of the regime”.
The Working Group has made findings of arbitrary detention with respect to several
48.
cases involving dual nationals (see, for example, opinions No. 44/2015 and No. 18/2013).
In addition, the Special Rapporteur on the situation of human rights in the Islamic Republic
of Iran has referred in a recent report to the detention of dual nationals, including a dual
Iranian-British national. The Working Group considers that there is an emerging pattern
involving the arbitrary deprivation of liberty of dual nationals in the Islamic Republic of
Iran.
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Furthermore, there is no evidence that Ms. Ratcliffe had a criminal record, including
49.
in relation to national security offences, and there is nothing to indicate that she had been in
the Islamic Republic of Iran for any other purpose than visiting her family with her child.
The Working Group therefore considers that Ms. Ratcliffe was targeted on the basis of her
“national or social origin” as a dual national. In the present case, there is an insufficient
basis for the Working Group to conclude that Ms. Ratcliffe’s arrest and detention were
linked to the exercise of any specific right and would therefore fall within category II of the
arbitrary detention categories referred to by the Working Group when considering cases
submitted to it. However, there is a sufficient basis to conclude that Ms. Ratcliffe has been
arbitrarily deprived of her liberty according to category V because of the discrimination
against her as a dual national.
The Working Group also considers that the source’s allegations disclose violations
50.
of Ms. Ratcliffe’s right to a fair trial. Specifically, Ms. Ratcliffe has been denied the
presumption of innocence under article 14 (2) of the Covenant. The Human Rights
Committee has stated that it is the duty of all public authorities to refrain from prejudging
the outcome of a trial, including by abstaining from making public statements affirming the
guilt of the accused.3 The statement issued by the Revolutionary Guard on 15 June 2016 has
seriously undermined the presumption of innocence. Ms. Ratcliffe has also been denied her
right to be informed promptly of the charges against her under article 14 (3) (a) of the
Covenant, and her right to legal representation under article 14 (3) (b) and (d) of the
Covenant. While the Working Group takes note of the recent approval of a lawyer for
Ms. Ratcliffe, she has still not been allowed access to that lawyer. The absence of legal
counsel was serious in the present case, given that Ms. Ratcliffe is thought to be facing
charges involving national security.
In addition, the Working Group notes that Ms. Ratcliffe has been held
51.
incommunicado, with limited access to her family and no access to legal or consular
assistance or support from the British Red Cross. Ms. Ratcliffe was also held in prolonged
solitary confinement for 45 days. The detention of Ms. Ratcliffe under these circumstances
violated international standards, including her right to have contact with the outside world
and the prohibition of solitary confinement for longer than 15 consecutive days under rules
43, 44, 58 and 62 of the revised United Nations Standard Minimum Rules for the Treatment
of Prisoners (the “Nelson Mandela Rules”). It is also believed that Ms. Ratcliffe was
required to sign a statement while in solitary confinement. The Working Group considers
that there is not enough information to indicate whether Ms. Ratcliffe was forced to provide
a confession or the content of such a statement. However, the Working Group reminds the
Government that it is unacceptable according to article 14 (3) (g) of the Covenant to torture
or subject a person to other ill-treatment in order to obtain a confession.
The Working Group concludes that the breaches of article 14 of the Covenant are of
52.
such gravity as to give Ms. Ratcliffe’s deprivation of liberty an arbitrary character, falling
within category III of the arbitrary detention categories referred to by the Working Group
when considering cases submitted to it.
The Working Group wishes to record its grave concern about Ms. Ratcliffe’s
53.
deteriorating health since her arrest and detention in April 2016. The Working Group refers
to the allegations that Ms. Ratcliffe was previously in good health but, as a direct result of
prolonged solitary confinement and being away from her child, she has suffered health
problems for which she has not received medical care. The Working Group considers that
this treatment violates Ms. Ratcliffe’s right under article 10 (1) of the Covenant to be
3 See Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts
and tribunals and to a fair trial, para. 30.
A/HRC/WGAD/2016/28
11
treated with humanity and respect for her inherent dignity, and falls significantly short of
the requirements of the Nelson Mandela Rules.4 The Working Group refers this case to the
relevant special procedure mandate holders for further investigation, including into whether
article 7 of the Covenant has been violated.
The present case is one of several that have been brought to the attention of the
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Working Group in the past year concerning the arbitrary deprivation of liberty of persons in
the Islamic Republic of Iran. The Working Group recalls that, under certain circumstances,
widespread or systematic imprisonment or other severe deprivation of liberty in violation of
the rules of international law may constitute crimes against humanity.5 The Working Group
would welcome an invitation to conduct a country visit to the Islamic Republic of Iran so
that it can engage with the Government constructively and offer assistance in addressing
concerns relating to the arbitrary deprivation of liberty.
Finally, the Working Group notes with concern the silence on the part of the
55.
Government in not availing itself of the opportunity to respond to the serious allegations
made in this case, and in other communications to the Working Group (see, for example,
the Working Group’s opinions on the Islamic Republic of Iran Nos. 1/2016, 44/2015,
16/2015, 55/2013, 52/2013, 28/2013, 18/2013, 54/2012, 48/2012, 30/2012, 8/2010, 2/2010,
6/2009, 39/2008, 34/2008, 39/2000, 14/1996, 28/1994 and 1/1992).6 The present case
involves a two-year-old child, who has been deprived of access to both of her parents, as
her mother is in detention and she cannot return to the United Kingdom to be with her
father. These circumstances demanded a compelling justification for Ms. Ratcliffe’s arrest
and detention, which has not been provided by the Government.
Disposition
In the light of the foregoing, the Working Group renders the following opinion:
56.
The deprivation of liberty of Nazanin Zaghari-Ratcliffe was arbitrary, in
contravention of articles 9, 10 and 11 of the Universal Declaration of Human Rights
and articles 9, 10 and 14 of the Covenant, and falls within categories I, III and V of
the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
The Working Group requests the Government to take the necessary steps to remedy
57.
the situation of Ms. Ratcliffe without delay and bring it into conformity with the standards
and principles in the Universal Declaration of Human Rights and Covenant.
Taking into account all the circumstances of the case, especially the risk of harm to
58.
Ms. Ratcliffe’s health and physical integrity and to the well-being of her child, the Working
Group considers that the adequate remedy would be to release Ms. Ratcliffe immediately
and accord her an enforceable right to compensation in accordance with article 9 (5) of the
Covenant.
The Working Group urges the Government to fully investigate the circumstances
59.
surrounding Ms. Ratcliffe’s arbitrary deprivation of liberty and to take appropriate
measures against those responsible for the violation of her rights.
4 See, for example, rules 1-3, 12-13, 15-16, 21-22, 24, 27, 30-31, 33-35, 42-45, 58-59, 61-62, 68,
111-114, 118-120 and 122.
5 See, for example, opinion No. 47/2012, para. 22.
6 In the past, the Islamic Republic of Iran has provided information to the Working Group, see opinions
Nos. 58/2011, 21/2011, 20/2011, 4/2008, 26/2006, 19/2006, 14/2006, 8/2003 and 30/2001, but has not
responded in more recent cases.
A/HRC/WGAD/2016/28
12
In accordance with paragraph 33(a) of its methods of work, the Working Group
60.
refers Ms. Ratcliffe’s case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, for appropriate action.
Follow-up procedure
In accordance with paragraph 20 of its methods of work, the Working Group
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requests the source and the Government to provide it with information on follow-up action
taken on the recommendations made in the present opinion, including:
(a)
Whether Ms. Ratcliffe has been released, and if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Ratcliffe;
(c)
Whether an investigation has been conducted into the violation of Ms.
Ratcliffe’s rights, and if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Government with its international obligations in
line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
The Government is further invited to inform the Working Group of any difficulties it
62.
may have encountered in implementing the recommendations made in the present opinion
and whether further technical assistance is required, for example, through a visit by the
Working Group.
The Working Group requests the source and the Government to provide the above
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information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the possibility of undertaking its own follow-up of
the opinion if new concerns in relation to the case are brought to its attention. This follow-
up procedure will enable the Working Group to keep the Human Rights Council informed
of the progress made in implementing its recommendations, as well as any failure to take
action.
The Working Group recalls that the Human Rights Council has called for all States
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to cooperate with the Working Group, to take account of its views and, where necessary, to
take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty,
and to inform the Working Group of the steps they have taken.7
[Adopted on 23 August 2016]
7 See Human Rights Council resolution 24/7, para. 3.