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.17-08662(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 7/2017 concerning Kamal Foroughi (Islamic Republic of
Iran)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 20 January 2017 the
Working Group transmitted to the Government of the Islamic Republic of Iran a
communication concerning Kamal Foroughi. The Government has not replied to the
communication. The State is a party to the International Covenant on Civil and Political
Rights.
3.
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 him or her) (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 Covenant (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);
(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 any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2017/7
General Assembly
Distr.: General
30 May 2017
Original: English
A/HRC/WGAD/2017/7
2
Submissions
Communication from the source
4.
Kamal Foroughi is a 77-year-old dual Iranian-British citizen. Mr. Foroughi grew up,
attended university and subsequently worked in Tehran. He moved to London in the late
1970s and became a British citizen in the 1980s. Since the early 1990s, he has been living
both in the Islamic Republic of Iran and in the United Kingdom of Great Britain and
Northern Ireland. Since 2004 and prior to his detention, he had been working as an oil
consultant for PETRONAS, the national oil corporation of Malaysia.
5.
According to the source, on the afternoon of 5 May 2011, Mr. Foroughi was arrested
by five plain-clothes individuals at his home in Tehran. These individuals claimed to be
Entezami (law enforcement) officials. Mr. Foroughi was told that if he had done nothing
wrong, he would soon be released. He was then told by the officials to follow them to a car,
which took them to Evin Prison in Tehran. He was not shown any arrest warrant and was
not given reasons for the arrest or informed of any charge against him.
6.
The source alleges that the authorities did not inform Mr. Foroughi’s family
members of his arrest, and that they only became aware of it two weeks later. No official
information about the arrest was provided to his family. Although members of his
immediate family were granted permission by a judge to visit him once a month, they were
only authorized by the Evin Prison authorities to visit him twice before they left the Islamic
Republic of Iran for the United Kingdom in November 2011. During those visits, Mr.
Foroughi told his family that he was being investigated, but that he had not been charged
with any crime. He did not say what the authorities were investigating. On several other
occasions, his family spent all day in the prison waiting to visit him, only to be told that
they would be unable to do so.
7.
The source also advises that Mr. Foroughi has remained in Evin Prison since his
arrest on 5 May 2011. He spent over 18 months in solitary confinement, from 5 May 2011
until the end of 2012. In May 2012, about a year after his arrest, he was first informed that
he would be charged, but not what the charges were or why he would be charged. It took
until January 2013 for him to be charged and for any processes relating to the trial to
commence.
8.
From 5 May 2011 to the end of 2012, apart from the two visits by his immediate
family in Tehran, the only other person Mr. Foroughi saw was his lawyer. Mr. Foroughi
was allowed to meet with his lawyer once in about April 2012. His lawyer confirmed that
he did not have access to information about the charges or evidence against Mr. Foroughi.
Furthermore, Mr. Foroughi was not allowed to receive or make international calls or to
write or receive correspondence.
9.
During the period from January to March 2013, Mr. Foroughi was taken to be
questioned directly by a judge at closed sessions of the Revolutionary Court, with no public
access and no jury. Mr. Foroughi’s lawyer was only with him during his first appearance in
court, when the lawyer explained the charges — which were espionage and possession of
alcohol. The source alleges that the authorities never provided any evidence or explanation
about the espionage charge. While Mr. Foroughi admitted to having alcohol at his
residence, he denied the espionage charge. During his other appearances before the
Revolutionary Court, Mr. Foroughi was without his lawyer. According to the source, there
was no prosecutor or stenographer present, and there is no paperwork documenting this
trial. Since the conclusion of Mr. Foroughi’s trial in March 2013, his lawyer has only been
allowed to see him sporadically, the most recent visit having taken place on 21 December
2016.
10.
In April 2013, Mr. Foroughi was sentenced to eight years’ imprisonment for
espionage and to three years’ imprisonment for possession of alcohol. Following an appeal
process, the sentence was reduced in August 2013 to seven years and one year,
respectively. The source states that the authorities have never confirmed whether the
sentences are to run consecutively or concurrently, and nor have they confirmed the start
date of the sentence. There is no paperwork relating to the appeal process, apart from a
written confirmation that the sentences were reduced.
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3
11.
The source adds that, according to Mr. Foroughi’s lawyer, under the criminal
procedure laws, the start date for the sentence should be the day on which Mr. Foroughi
was taken into custody, namely 5 May 2011. His lawyer also indicated that Mr. Foroughi
should only serve seven years in prison, as the sentence for possession of alcohol should
run concurrently. A letter sent by fax by the Evin Prison authorities on 11 December 2013
confirmed the above-mentioned two charges and the length of sentence post-appeal, with
the start date being 5 May 2011. However, the details in the fax suggest that the sentence is
eight years in length, ending in May 2019 rather than May 2018.
12.
On 3 October 2014, the Working Group sent an urgent appeal to the Government,
expressing serious concern regarding Mr. Foroughi’s continued detention, and regarding
the allegations that he had been detained for several months without any charge or trial. The
Working Group noted that, even after having been charged, Mr. Foroughi was not able to
grasp the reason for his detention and trial, and no evidence was brought against him. Grave
concern was also expressed regarding Mr. Foroughi’s physical and mental integrity.
13.
On 9 June 2015, the Government replied to the Working Group, stating that Mr.
Foroughi had been arrested and prosecuted on charges of espionage and of “assembling and
complicity against national security”. The Government observed that, after exhausting due
process and hearings, Mr. Foroughi was sentenced to 11 years of imprisonment for his
offences. Mr. Foroughi appealed the verdict. The Tehran Province Appeal Court reviewed
the case and reaffirmed the verdict, except in regard to the charge of “assembling and
complicity against national security”, and as a result the sentence was reduced to eight
years. The Government also noted that Mr. Foroughi had access to adequate medical care
and to all the prison facilities, like other prisoners.
14.
According to the source, during a meeting on 13 November 2015 at the Embassy of
the Islamic Republic of Iran in London, the Iranian authorities indicated to Mr. Foroughi’s
family that he had been charged and then found not guilty in 2012 of “assembling and
complicity against national security”, in a trial separate to his 2013 trial. However, the
source questions whether Mr. Foroughi and his lawyer had access to this trial in 2012 and
whether they are aware of this development.
15.
Since his detention, Mr. Foroughi has complained of memory loss and back pain. He
is also very concerned about the possibility of having developed prostate cancer. Between
December 2014 and October 2015, Mr. Foroughi was taken to an outside hospital for tests.
However, no one was available to perform the tests. The source notes that, given his
advanced age, Mr. Foroughi requires regular preventative medical care to minimize the
increased risk of his health deteriorating.
16.
Mr. Foroughi’s family has repeatedly approached the Iranian authorities through
diplomatic channels to request that medical tests be performed to assess whether Mr.
Foroughi is suffering from prostate cancer or has developed an increased risk of the disease,
since he had been warned about that risk by his doctor prior to his detention. As far as Mr.
Foroughi’s family is aware, those tests have not yet been performed.
17.
According to the source, Mr. Foroughi only had two proper medical examinations in
a civilian hospital during five years of detention, on 17 November 2015 and on 30 May
2016. No paperwork of the results was made available following the first medical
examination, although Mr. Foroughi was told by doctors that he was in good health. In
March 2016, Mr. Foroughi’s doctor in London wrote a letter “to whom it may concern”
expressing concern over the lack of information about the medical examination performed
in November 2015 and its results. Some results were made available after the second
medical examination in May 2016. However the records were incomplete, as a number of
standard and cancer-specific tests were missing. It is not clear whether those tests were
conducted and the results withheld, or the tests were never conducted.
18.
Mr. Foroughi’s family also wrote three letters to the Head of the Human Rights
Council of the Judiciary in the Islamic Republic of Iran, dated 23 March 2016, 2 April 2016
and 21 July 2016, raising their concerns about Mr. Foroughi’s health. The letter dated 2
April 2016 included a copy of the correspondence referred to above from Mr. Foroughi’s
doctor in London. In the letter of July 2016, Mr. Foroughi’s family referred to the second
A/HRC/WGAD/2017/7
4
medical examination but noted that the results were incomplete. Mr. Foroughi’s family did
not receive a reply from the Iranian authorities to any of these three letters.
19.
In early September 2016, Mr. Foroughi was told that he had cataracts in both eyes
which required surgery to prevent blindness. The source notes that cataracts were not
diagnosed during the medical examinations conducted in November 2015 and May 2016.
20.
On 5 December 2016, Mr. Foroughi was taken for further tests. On 6 December
2016, he had a meeting with a doctor at the Legal Medical Organization in Tehran, where
he was told he needed cataract surgery. On 1 January 2017, he was taken to hospital for
several hours and given a range of tests, presumably as part of a general check-up. No
specific tests were carried out on his cataracts, and the need for cataract surgery was not
discussed further.
21.
The source advises that Mr. Foroughi’s lawyer has filed over 50 applications for his
release, without receiving a formal response from the authorities. These applications fall
into three categories: (a) temporary furlough (morakhasi), which is standard practice to
allow prisoners to organize their affairs and get fuller medical treatment; (b) conditional
release (aazaadieh mashroot), which prisoners are eligible for after having served a third of
their sentence, provided that the sentence is less than 10 years’ imprisonment; and (c) full
pardon or clemency (af) granted by the Supreme Leader.
22.
Mr. Foroughi’s family wrote several letters to the President requesting clemency, as
well as to the Supreme Leader and to the Head of the Judiciary. There has been no response
to these letters. In April 2016, Mr. Foroughi’s lawyer was informed that Mr. Foroughi
would be granted clemency as part of Norooz (New Year) celebrations. The authorities also
indicated in late July 2016 that Mr. Foroughi would be released on 2 August 2016.
However, Mr. Foroughi remains in detention at Evin Prison. He has now been in detention
for nearly six years since his arrest on 5 May 2011, despite several indications that his
release was imminent.
23.
The source advises that Mr. Foroughi receives no visitors, as all his close family
members live in the United Kingdom. Mr. Foroughi was not allowed to call his family in
the United Kingdom for three years after his arrest. He was allowed to make the first call in
May 2014. The calls have to be in Farsi, which severely limits his ability to have a
meaningful relationship with his family members in the United Kingdom, who speak
limited Farsi or do not speak it at all.
24.
On 16 September 2016, several special procedure mandate holders1 issued an urgent
appeal restating many of the concerns that had been expressed in regard to Mr. Foroughi’s
case in the previous urgent appeal of 3 October 2014. In particular, the mandate holders
expressed serious concern about the alleged arbitrary arrest and detention of Mr. Foroughi,
about his reported alarmingly poor health condition while in prison, which required urgent
and adequate medical attention, and about his lack of access to a lawyer. The Government
has not replied to that communication.
25.
The source submits that Mr. Foroughi’s deprivation of liberty falls under categories
I, II and III of the categories applied by the Working Group. The source alleges that the
Iranian authorities have subjected Mr. Foroughi to arbitrary deprivation of liberty, and
unfair trial and treatment in violation of articles 7, 9, 10, 14 and 26 of the Covenant as well
as the standards enshrined in the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
26.
In relation to category I, the source submits that:
(a)
Under the Iranian Criminal Code of Procedure for Public and Revolutionary
Courts, competent authorities may issue arrest orders upon receiving sufficient evidence
against a person accused of a crime. International standards similarly require that all forms
1 The Special Rapporteur on the rights to freedom of peaceful assembly and of association, the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health, the Special Rapporteur on the independence of judges and lawyers and the Special
Rapporteur on the situation of human rights in the Islamic Republic of Iran.
A/HRC/WGAD/2017/7
5
of detention or imprisonment must be subject to the effective control of a judicial authority.
The authorities have not complied with these provisions and standards, and there is no
evidence that Mr. Foroughi’s arrest was based on an arrest warrant or judicial order.
(b)
When Mr. Foroughi was arrested on 5 May 2011, the Iranian authorities did
not give any reason or grounds for his arrest and detention. It was in May 2012, a year after
he was arrested, that he was first informed that he would be charged. However, he was not
informed about the nature of the charges or about why he would be charged. It took until
January 2013 for the legal process relating to Mr. Foroughi’s arrest and detention to
commence, and only at that point was his lawyer provided with sufficient information to be
able to explain the charges. There were therefore no grounds for arresting and detaining Mr.
Foroughi for over 18 months from 5 May 2011 to December 2012. Mr. Foroughi’s right to
be informed of the reason for his arrest and of the charges against him, as provided for in
article 9 (2) of the Covenant, was not respected.
(c)
During the initial 18 months of his detention, Mr. Foroughi was held
incommunicado and in solitary confinement. This violated international standards, which
require that detainees must be held only in facilities where official registries, both of the
detainees and of the officials responsible, are accessible to doctors, lawyers, relatives and
friends. Mr. Foroughi’s family was never officially informed of his arrest. It was only in
May 2014, three years after his arrest, that he was allowed to make his first call to his
family in the United Kingdom. Proper procedures were not followed in relation to his arrest
and detention, and his arrest and detention were unlawful according to relevant Iranian
legal provisions and according to article 9 (3) of the Covenant.
(d)
There is no evidence to suggest that the officials arresting Mr. Foroughi
informed him about his right of access to legal counsel, and he was not given access to a
lawyer for a prolonged period of time. Mr. Foroughi was interrogated on an unknown
number of occasions between his arrest on 5 May 2011 and first seeing his lawyer in April
2012. The Iranian authorities failed to provide Mr. Foroughi with access to legal counsel,
contrary to article 128 of the country’s Code of Criminal Procedure and article 35 of the
Constitution, and also contrary to international norms.
(e)
Mr. Foroughi was not brought before a judge until January 2013. Neither he
nor his family had an opportunity to challenge the lawfulness of his arrest and detention.
For one year, from May 2011 to May 2012, neither Mr. Foroughi nor his family was given
any indication as to whether he would be tried for any offence. Given that pretrial detention
must be based on an individualized determination of whether the detention is reasonable
and necessary in all the circumstances to prevent flight, interference with evidence or the
recurrence of a crime, the authorities breached articles 9 (3) and (4) of the Covenant.
27.
In relation to category II, the source notes that deprivation of liberty is considered
arbitrary when it results from the exercise of the rights and freedoms protected by article 26
of the Covenant, which prohibits discrimination on any ground. The source argues that the
fact that no evidence of espionage is known to have been presented during Mr. Foroughi’s
court appearances suggests that he has been targeted for other reasons, such as his dual
Iranian and British nationality. The source concludes that Mr. Foroughi’s continued
detention on the basis of his national or social origin is discriminatory and therefore
arbitrary.
28.
In relation to category III, the source submits that Mr. Foroughi suffered serious
violations of his right under article 14 of the Covenant to a fair trial:
(a)
Mr. Foroughi was not brought before any tribunal or court of law for more
than 18 months after his arrest, and he was kept in a state of uncertainty over a long period.
There is no record of any evidence having been presented, and no paperwork relating to his
proceedings. No evidence or explanation has ever been made available by the Iranian
authorities about the espionage charge;
(b)
The appeal process was conducted without Mr. Foroughi being able to access
his lawyer, whom he saw on limited occasions after March 2013. There is no paperwork,
nor any records, relating to the appeal, apart from the Government’s reference to those
proceedings in its reply to the urgent appeal by the Working Group. There are also
A/HRC/WGAD/2017/7
6
indications that Mr. Foroughi was the subject of other legal proceedings in 2012, of which
neither he nor his lawyer were aware at the time, relating to “assembling and conspiracy
against national security”;
(c)
Notwithstanding the limited access to information about the authorities’
treatment of Mr. Foroughi, sufficient information exists to suggest that they subjected Mr.
Foroughi to ill-treatment. Mr. Foroughi endured over 18 months of solitary confinement,
which actively impeded his right to the highest attainable standard of physical and mental
health. His treatment violated the Iranian Operational Guidelines for Temporary Detention
Centres, of 2006, the United Nations Standard Minimum Rules for the Treatment of
Prisoners, of 2015, and article 7 of the Covenant. Mr. Foroughi also faces ongoing risks of
ill-treatment. While the actual state of Mr. Foroughi’s health is unknown, there are clear
grounds for serious concern, given his age, the risk of prostate cancer that he faced even
before his detention, and recent reports that he is facing blindness if he does not have
cataract surgery.
Response from the Government
29.
On 20 January 2017, the Working Group transmitted the allegations from the source
to the Government under its regular communication procedure. The Working Group
requested the Government to provide detailed information by 20 March 2017 about the
current situation of Mr. Foroughi, as well as any comment that the Government may have
on the source’s allegations. The Working Group also requested the Government to clarify
the factual and legal grounds invoked by the authorities to justify his continued detention,
and to provide details regarding the conformity of his deprivation of liberty and apparent
lack of fair judicial proceedings with domestic legislation and with international human
rights norms, including with the legal obligations of the Government under human rights
treaties that it has ratified.
30.
The Working Group regrets that it did not receive a response from the Government
to the communication that it had sent. The Government did not request an extension to the
time limit for its reply, as is provided for in the Working Group’s methods of work.
Discussion
31.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
32.
The Working Group has in its jurisprudence established the ways in which it deals
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 (see
A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
33.
There is also a substantial body of reliable information which supports the source’s
claims, including the urgent appeals (referred to above) sent to the Government by the
Working Group and by other special procedure mandate holders. In those communications,
concerns relating to Mr. Foroughi’s alleged arbitrary arrest and deprivation of liberty have
been repeatedly raised with the Government. Moreover, Mr. Foroughi’s case was
considered so serious as to warrant a press release endorsed by several special procedure
mandate holders in October 2016 calling on the Government to immediately release dual
nationals, including Mr. Foroughi, and to allow them to be reunited with their families:
Arbitrarily depriving individuals of their liberty and violating their right to fair
proceedings before an independent and impartial tribunal are flagrant violations of
Iran’s obligations under international law ... I am concerned about the ailing health
of … Mr. Foroughi, which has been complicated as a result of (his) age.2
2 The appeal, made by the Special Rapporteur on the situation of human rights in the Islamic Republic
of Iran, was endorsed by the Special Rapporteur on the right of everyone to the enjoyment of the
A/HRC/WGAD/2017/7
7
34.
Similarly, the Special Rapporteur on the situation of human rights in the Islamic
Republic of Iran reported the facts in relation to Mr. Foroughi’s case in his March 2016
report in the context of persons who have been arrested and detained and continue to
experience gross violations of their due process and fair trial rights, especially those who
have been accused of violating the country’s national security.3
35.
In relation to the source’s allegations, the Working Group considers that there have
been several violations of article 9 of the Covenant in the present case. Article 9 (1)
requires States to ensure that procedures for carrying out deprivation of liberty are
established by law and are followed: which includes specifying which officials are
authorized to arrest, when a warrant is required, where individuals may be detained, and
when authorization to continue detention must be obtained from a judge.4 In the present
case, the source alleged that no warrant had been presented at the time of Mr. Foroughi’s
arrest, contrary to the Iranian Criminal Code of Procedure for Public and Revolutionary
Courts. The Government could have, but did not, rebut this allegation by providing a copy
of any arrest warrant or judicial order issued under Iranian law.
36.
Furthermore, Mr. Foroughi was not informed of the reasons for his arrest, nor was
he promptly informed of the charges against him, contrary to article 9 (2) of the Covenant.
Over 18 months elapsed between Mr. Foroughi’s arrest on 5 May 2011 and the beginning
of a trial against him in January 2013, when he finally learned that he was charged with
espionage and possession of alcohol.
37.
The authorities also failed to promptly bring Mr. Foroughi before a judge, as is
required under article 9 (3) of the Covenant, as over 18 months passed before he was
brought to trial, in January 2013. In addition, during that period, neither Mr. Foroughi nor
his family had an opportunity to challenge the lawfulness of his arrest and detention, as is
required under article 9 (4) of the Covenant. Mr. Foroughi was held incommunicado and in
solitary confinement for over 18 months, he had limited communication with his family,
and he had no access to a lawyer until April 2012, and therefore had no accessible and
effective means of bringing proceedings before a court. As the Working Group has recently
restated in its Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37):
National legal systems at the highest possible level, including, where applicable, in
the Constitution, must guarantee the right to take proceedings before a court to
challenge the arbitrariness and lawfulness of detention and to receive without delay
appropriate and accessible remedies. A comprehensive set of applicable procedures
shall be enacted to ensure that the right is accessible and effective, including the
provision of procedural and reasonable accommodation, for all persons in all
situations of deprivation of liberty … (principle 2).
The right to bring proceedings before a court without delay to challenge the
arbitrariness and lawfulness of the deprivation of liberty and to obtain without delay
appropriate and accessible remedies applies from the moment of apprehension ...
(principle 8).
Procedures shall allow anyone to bring proceedings before a court to challenge the
arbitrariness and lawfulness of the deprivation of liberty and to obtain without delay
appropriate and accessible remedies, including the detainee, his or her legal
representative, family members or other interested parties … No restrictions may be
highest attainable standard of physical and mental health, the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on violence against
women, its causes and consequences, the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, and the Chair-Rapporteur of the Working Group. The press release is
dated
7
October
2016
and
is
available
from
www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=20653&LangID=E.
3 Supplementary information on the situation of human rights in the Islamic Republic of Iran, para. 45.
See www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Pages/ListReports.aspx.
4 See Human Rights Committee general comment No. 35 (2014) on liberty and security of person,
para. 23.
A/HRC/WGAD/2017/7
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imposed on the detainee’s ability to contact his or her legal representative, family
members or other interested parties (principle 10).
38.
In the present case, there was no warrant for Mr. Foroughi’s arrest, he was not
promptly informed of the charges against him, he was not promptly brought before a court
to assess the lawfulness, necessity and proportionality of his detention and he could not
initiate such proceedings himself. Thus, the Working Group considers that there was no
legal basis to justify the arrest and detention of Mr. Foroughi, and that his deprivation of
liberty falls within category I of the categories applied by the Working Group.
39.
Furthermore, the Working Group considers that the source has established a prima
facie case that the arrest and detention of Mr. Foroughi was motivated by a discriminatory
factor, namely his status as a dual Iranian-British national. The Working Group has made
findings of arbitrary detention with respect to several cases involving dual nationals (see,
for example, opinions Nos. 28/2016, 44/2015 and 18/2013). In its recent opinion No.
28/2016, which also concerned a dual Iranian-British national, the Working Group stated its
view that there was an emerging pattern involving the arbitrary deprivation of liberty of
dual nationals in the Islamic Republic of Iran.
40.
In the present case, there is no evidence that Mr. Foroughi had a criminal record,
including in relation to national security offences. There is also nothing to indicate that his
movements between the Islamic Republic of Iran and the United Kingdom since the early
1990s were for any purpose other than legitimate business and family reasons. As the
source points out, and the Government has not contested, no evidence of espionage is
known to have been presented during Mr. Foroughi’s court appearances. This suggests that
Mr. Foroughi was targeted for other reasons, including on the basis of his “national or
social origin” as a dual national, similarly to the recent pattern of detaining dual nationals
on national security charges. Moreover, despite knowing that Mr. Foroughi is a dual
national who has a family in the United Kingdom, the Iranian authorities have insisted that
he speak only in Farsi when communicating with his family. This requirement is further
indicative of the discriminatory attitude adopted by the Iranian authorities in relation to dual
nationals. Accordingly, the Working Group considers that there is a sufficient basis to
conclude that Mr. Foroughi has been arbitrarily deprived of his liberty according to
category V because of discrimination against him as a dual national.
41.
The Working Group also considers that the source’s allegations disclose violations
of Mr. Foroughi’s right to a fair trial under articles 9, 10 and 11 of the Universal
Declaration of Human Rights and article 14 of the Covenant. Specifically, Mr. Foroughi
was denied the following rights:
(a)
The right to be informed promptly of the charges against him, under article
14 (3) (a) of the Covenant, and to be tried without undue delay, under article 14 (3) (c) of
the Covenant. There was a delay of over 18 months before Mr. Foroughi learned of the
charges against him when he was finally brought to trial in January 2013. There was never
any explanation of what appears to be a vague and overly broad charge of “espionage”;
(b)
The right to a fair and public hearing by a competent, independent and
impartial tribunal established by law, under article 14 (1) of the Covenant. Mr. Foroughi’s
trial consisted of closed sessions of the Revolutionary Court, with no public access, no
other persons present (such as a prosecutor or stenographer) and no transcript documenting
the trial;
(c)
The right to legal representation, under article 14 (3) (b) and (d) of the
Covenant. As noted above, Mr. Foroughi only met with his lawyer for the first time in April
2012, almost a year after his arrest. His lawyer was only present with him during his first
appearance in court, but not during subsequent appearances. The absence of legal counsel at
the trial in 2013 was serious, given that Mr. Foroughi was facing a charge of espionage and
was sentenced at the trial to eight years’ imprisonment on that charge;
(d)
The right to be tried in his presence, under article 14 (3) (d) of the Covenant.
As the source alleges, and the Government has not denied, Mr. Foroughi was the subject of
other legal proceedings in 2012 relating to a charge of “assembling and complicity against
national security”. Given that the Government indicates in its response to the urgent appeal
A/HRC/WGAD/2017/7
9
of 3 October 2014 that this charge had been reviewed and overturned on appeal, it appears
that Mr. Foroughi was tried and sentenced on this charge without his or his lawyer’s
knowledge;
(e)
The right to have his conviction and sentence reviewed by a higher tribunal,
under article 14 (5) of the Covenant. It is unlikely that the appeal provided to Mr. Foroughi,
if there was one, met the standards set forth in article 14 (5). The appeal process was
conducted without Mr. Foroughi being able to access his lawyer, whom he only saw on
limited occasions after March 2013. There is no paperwork, nor any records, relating to the
appeal. Moreover, as the Human Rights Committee has observed in its general comment
No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, the right
to an appeal can only be exercised effectively if the convicted person has access to a duly
reasoned, written judgment of the trial court and trial transcript (para. 49), which was not
the case here.
42.
The Working Group notes that Mr. Foroughi was effectively held incommunicado
(with only one visit from his lawyer and extremely limited family contact) and in prolonged
solitary confinement for over 18 months prior to his trial. The detention of Mr. Foroughi
under these circumstances violated international standards, including his 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).5 Over the last
six years of his detention, Mr. Foroughi has had very limited communication with his
family, as he was not permitted to communicate with family members in the United
Kingdom for three years after his arrest and is now only allowed to speak with them in
Farsi. These restrictions also violate the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment (principles 15, 16 and 19).
43.
The Working Group therefore concludes that these violations of the right to a fair
trial are of such gravity as to give Mr. Foroughi’s deprivation of liberty an arbitrary
character according to category III of the categories applied by the Working Group.
44.
The Working Group wishes to record its grave concern about Mr. Foroughi’s
deteriorating health since his arrest and detention in May 2011. The Working Group is
particularly concerned that Mr. Foroughi, a 77-year-old man facing significant health risks
of prostate cancer and of blindness due to untreated cataracts, continues to be detained,
having already endured prolonged solitary confinement. The risk of irreparable harm to Mr.
Foroughi’s health, including his death in prison, is heightened as a result of his ongoing
detention. He is entirely dependent on the authorities at Evin Prison for medical tests and
surgery to diagnose and treat these conditions, yet he continues to be denied adequate
medical care. The Working Group considers that this treatment violates his right under
article 10 (1) of the Covenant to be treated with humanity and respect for his inherent
dignity. The Working Group has decided to refer this case to the relevant special
procedures for further investigation (see paragraph 51 below), including whether article 5
of the Universal Declaration of Human Rights and article 7 of the Covenant have also been
violated.
45.
The Working Group considers that there is no legitimate reason to continue to detain
an elderly and unwell man who has already served nearly six years of a sentence imposed
contrary to his human rights, and to deprive him of the opportunity to live the remainder of
his life with his family. The Working Group calls upon the Government to immediately
release Mr. Foroughi and to ensure that he receives the necessary medical attention after his
release.
46.
Finally, the Working Group would welcome the opportunity 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 its serious concerns relating to the
arbitrary deprivation of liberty. The Working Group considers that it is now an appropriate
time to conduct such a visit, as a follow-up to its earlier visit to the Islamic Republic of Iran
5 See General Assembly resolution 70/175.
A/HRC/WGAD/2017/7
10
in 2003. The Working Group notes that the Government issued a standing invitation to all
thematic special procedure mandate holders on 24 July 2002, and looks forward to a
positive response from the Government to a country visit request made in 2016.
Disposition
47.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Kamal Foroughi, being in contravention of articles 9,
10 and 11 of the Universal Declaration of Human Rights and of articles 9, 10 and 14
of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I, III and V.
48.
The Working Group requests the Government to take the steps necessary to remedy
the situation of Mr. Foroughi without delay and bring it into conformity with the relevant
international norms, including those set out in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights.
49.
The Working Group considers that, taking into account all the circumstances of the
case, especially the risk of irreparable harm to Mr. Foroughi’s health and to his physical
and mental integrity, the appropriate remedy would be to release Mr. Foroughi immediately
and accord him an enforceable right to compensation and other reparations, in accordance
with international law.
50.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Foroughi, and to take appropriate measures against those responsible for the violation of his
rights.
51.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the allegations of ill-treatment to the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, for appropriate action. The Working Group
also refers the case to the Independent Expert on the enjoyment of all human rights by older
persons, for appropriate action.
Follow-up procedure
52.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Foroughi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to him;
(c)
Whether an investigation has been conducted into the violation of his 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 Islamic Republic of Iran with its international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
53.
The Government is invited to inform the Working Group of any difficulties it 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.
54.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
A/HRC/WGAD/2017/7
11
55.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them 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.6
[Adopted on 19 April 2017]
6 See Human Rights Council resolution 33/30, paras. 3 and 7.