opencaselaw.ch

A/HRC/WGAD/2016/28

Opinion no. 28/2016 concerning Nazanin Zaghari-Ratcliffe (Islamic Republic of Iran)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2016-08-26 · en UN

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

1.

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

2.

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

3.

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

A/HRC/WGAD/2016/28

2

(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

4.

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

5.

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

6.

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

7.

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

8.

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”.

A/HRC/WGAD/2016/28

3

On 27 April 2016, Ms. Ratcliffe’s family received another telephone call from a

9.

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

10.

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

11.

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

12.

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

13.

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

14.

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

15.

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

A/HRC/WGAD/2016/28

4

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

16.

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

17.

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

18.

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.

19.

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.

20.

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

21.

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;

A/HRC/WGAD/2016/28

5

(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

22.

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 —

23.

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

24.

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

25.

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

A/HRC/WGAD/2016/28

6

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

26.

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

27.

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

28.

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

29.

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

30.

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.

A/HRC/WGAD/2016/28

7

Further update from the source

The source provided the Working Group with an additional update dated 5 August

31.

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

32.

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

33.

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

34.

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

35.

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

36.

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,

37.

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

38.

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.

A/HRC/WGAD/2016/28

8

The source submits that a request has been made to the Iranian authorities in London

39.

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

40.

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

41.

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

42.

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

44.

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.

A/HRC/WGAD/2016/28

9

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.

A/HRC/WGAD/2016/28

10

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

54.

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

61.

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

63.

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

64.

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.