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.21-14474(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion 27/2021 concerning Kamran Ghaderi (Islamic Republic of
Iran)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work, 1 on 8 June 2021 the Working Group
transmitted to the Government of the Islamic Republic of Iran a communication concerning
Kamran Ghaderi. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/27
General Assembly
Distr.: General
8 October 2021
Original: English
A/HRC/WGAD/2021/27
2
Submissions
Communication from the source
4.
Kamran Ghaderi is a citizen of Austria and of the Islamic Republic of Iran. He was
born in 1964 in the Islamic Republic of Iran and usually resides in Vienna.
5.
Mr. Ghaderi is one of the owners of an information technology management and
consulting company in Vienna. At this company, he performed the functions of managing
director and a senior information technology consultant. After graduating from the University
of Vienna with a doctorate in Electrical Engineering, Mr. Ghaderi worked with Middle
Eastern and Iranian companies for many years and, prior to his arrest, had been travelling
regularly to the Islamic Republic of Iran.
6.
According to the source, Mr. Ghaderi was a member of the Austrian business
delegation that accompanied the President of Austria, the Foreign Minister and the Minister
of Trade and Commerce during their official visit to the Islamic Republic of Iran on 11
September 2015.
7.
The source reports that on 2 January 2016, when he arrived in Tehran from Vienna on
a regular business trip, Mr. Ghaderi was arrested by unknown authorities at Imam Khomeini
International Airport. The persons who carried out the arrest are believed to have been from
the Ministry of Intelligence. They did not show an arrest warrant nor did they inform Mr.
Ghaderi of the reasons for his detention. Mr. Ghaderi’s laptop and his cell phone were
confiscated and have not been returned to his family to date.
8.
The source recalls that Mr. Ghaderi’s family in Austria was not informed of his arrest.
Mr. Ghaderi’s family began to make enquiries when it became apparent that he had not
arrived at his final destination in Tehran. Eventually, the police at the airport were able to
confirm that Mr. Ghaderi had been detained and was being held by unknown authorities.
9.
The source reports that initially, having deprived Mr. Ghaderi of his liberty, the
authorities informed him that he could be released on bail in the amount of 200 million rials.
However, Mr. Ghaderi was not allowed to contact anyone to arrange this payment. Formally,
therefore, there are documents concerning the possibility of releasing Mr. Ghaderi on bail,
but in practice, Mr. Ghaderi was not afforded that possibility.
10.
The source indicates that during the first three months of his deprivation of liberty,
Mr. Ghaderi was sometimes held in a house at an unknown location and at other times, in a
very small containment space with no windows. He was taken out of the containment area
only to be interrogated. It is reported that the interrogators would not take Mr. Ghaderi out
of the small containment space for periods of over one week, which led him to believe that
he had been forgotten and left to die. According to the source, that was done to break Mr.
Ghaderi psychologically.
11.
The source submits that Mr. Ghaderi was subjected to tough interrogations, which
included psychological torture, so that he would falsely confess to being involved in a plot
against the Iranian regime. The source reports that at that stage, despite the pressure put on
him, Mr. Ghaderi did not submit and did not sign any false confessions.
12.
On 4 February 2016, Mr. Ghaderi was allowed to contact his family in Austria for six
minutes, which was, according to the source, his first contact since his disappearance. On 28
February 2016, the authorities from the Ministry of Intelligence stated that only his family in
Austria, namely his spouse and children, would be able to visit him.
13.
On 1 March 2016, Mr. Ghaderi’s spouse arrived in the Islamic Republic of Iran and
was given an appointment to see her husband at the Ministry of Intelligence on 5 March 2016.
On that day, instead of allowing the visit, the authorities interrogated Mr. Ghaderi’s spouse
for approximately three hours. She flew back to Austria on 8 March 2016 without having
been allowed to see Mr. Ghaderi.
14.
It is alleged that at that point, the authorities intensified the pressure on Mr. Ghaderi
and falsely told him that his family members had also been arrested and subjected to torture.
Mr. Ghaderi was also brought a flight ticket and told that if he signed a confession, his family
would be freed and he would be able to fly back to Austria.
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15.
On 5 April 2016, Mr. Ghaderi was able to contact one of his family members in the
Islamic Republic of Iran. He has been allowed to call that family member every Tuesday
since then.
16.
According to the source, on 7 April 2016, Mr. Ghaderi’s family member was able to
visit him for the first time in Evin prison. During the visit, Mr. Ghaderi stated that he had
signed two confessions incriminating himself of espionage. The source underlines that the
accusations were not based on any evidence other than Mr. Ghaderi’s confessions extracted
through torture.
17.
The source reports that two of Mr. Ghaderi’s family members are allowed to visit him
once a week. Most of these visits take place with Mr. Ghaderi separated from his relatives by
a pane of glass. Once a month, they are able to meet in a room with no separation.
18.
The source states that after the initial three months of Mr. Ghaderi’s deprivation of
liberty, the authorities transferred him to section 350 of Evin prison for a period of about two
months. After that, he was taken to section 209 of Evin prison, which, according to the source,
is managed by the Islamic Revolutionary Guard Corps and is known for housing prisoners of
conscience.
19.
The source reports that on 7 May 2016, Mr. Ghaderi was visited by his lawyer for 20
minutes. Mr. Ghaderi was allowed to consult his lawyer only that once prior to the court
hearing, and that meeting had to be carried out in the presence of guards. Apart from that
visit, Mr. Ghaderi’s lawyer was not allowed access to his client or his case file.
20.
The source reports that in June 2016, Mr. Ghaderi was presented before a judge for
the first time. In July 2016, the Islamic Revolutionary Court convicted Mr. Ghaderi of
espionage and sentenced him to 10 years of imprisonment. The relevant legislation used by
the authorities to convict Mr. Ghaderi is article 508 of the Penal Code of the Islamic Republic
of Iran. This provision states that anyone who cooperates by any means with a foreign State
against the Islamic Republic of Iran, if not considered mohareb, shall be sentenced to 10
years of imprisonment.
21.
The source submits that there was no evidence for that conviction and that it was based
entirely on Mr. Ghaderi’s coerced confessions. The source also submits that during the
hearings, Mr. Ghaderi informed the judge that he had signed the confessions as a result of
being tortured by his interrogators. The judge did not take Mr. Ghaderi’s statement into
account and told him to stop talking. It is further alleged that the verdict was never recorded
in writing, but instead only announced by the judge.
22.
The source reports that upon his conviction, Mr. Ghaderi, in breach of domestic law,
was taken back to section 209 of Evin prison, where the authorities continued to torture him.
23.
The source also reports that in October 2016, the sentence was upheld on appeal. The
court hearing was not open to the public. Mr. Ghaderi was allowed to see his lawyer on two
occasions prior to the appeal hearing.
24.
The source states that Mr. Ghaderi was not allowed to see any Austrian consular
representatives, as the authorities had stated that he had Iranian nationality. No Austrian
consular representatives were present during the court hearings.
25.
According to the source, on 17 April 2017, Mr. Ghaderi was finally transferred to the
general section of Evin prison. Mr. Ghaderi’s mental and physical states have been very
fragile ever since his isolation. After his transfer to the general section of Evin prison, he
suffered from severe hip and back pain. In spring 2017, Mr. Ghaderi’s condition deteriorated
so much that he could not get up from his bed for three months. His requests for vital medical
procedures at that time were rejected by the prosecutor. He had to take up to 30 different
types of medication a day to manage his pain and receive two injections at the hospital. Mr.
Ghaderi was prescribed 10 physiotherapy sessions at the hospital, but was only allowed to
complete 6 of them.
26.
In February 2018, having suffered severe pain for over a year, Mr. Ghaderi was
allowed to undergo two operations on his spine. He was able to stay with his family in the
Islamic Republic of Iran after the surgery and was required to return to prison 62 days after
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the procedures, without receiving the necessary physiotherapy. Moreover, Mr. Ghaderi has a
tumour on his leg that was left untreated.
27.
The source reports that Mr. Ghaderi currently suffers from high blood pressure as a
result of the torture he endured for over three months. He has to take medication daily to
manage his condition. In December 2020, Mr. Ghaderi presented symptoms of coronavirus
disease (COVID-19), similar to those of more than half of the prisoners in his unit. When he
was eventually tested three weeks after the occurrence of his first symptoms, the result was
negative.
28.
The source reports that Mr. Ghaderi has applied for early release. In May 2021, his
application was rejected and he remains in detention.
Response from the Government
29.
On 8 June 2021, the Working Group transmitted the allegations from the source to the
Government under its regular communications procedure. The Working Group requested the
Government of the Islamic Republic of Iran to provide, by 9 August 2021, detailed
information about the current situation of Mr. Ghaderi and to clarify the legal provisions
justifying his detention, as well as its compatibility with the obligations of the Islamic
Republic of Iran under international human rights law, and in particular with regard to the
treaties ratified by the State.
30.
The Working Group regrets that it did not receive a response from the Government to
this communication. The Government did not request an extension of the time limit for its
reply, as 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 law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.2 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
Category I
33.
The source has submitted, and the Government has failed to contest, that Mr. Ghaderi
was arrested by the Iranian authorities, believed to be from the Ministry of Intelligence, on 2
January 2016. No arrest warrant was presented and Mr. Ghaderi was not given any reasons
for this arrest. Thereafter, while the police acknowledged his detention by unknown
authorities to Mr. Ghaderi’s family, he was held at an unknown location and first appeared
before a judge in June 2016, some six months after his arrest.
34.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal
basis, it is not sufficient for there to be a law which may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case through an arrest
warrant.3 Indeed, international law on deprivation of liberty includes the right to be presented
with an arrest warrant, which is procedurally inherent in the right to liberty and security of
person, and the prohibition of arbitrary deprivation, under articles 3 and 9 respectively of the
Universal Declaration of Human Rights and article 9 of the Covenant, as well as under
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.4 Any form of detention or imprisonment should be
2 A/HRC/19/57, para. 68.
3 See, e.g., opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018 and No.
79/2018.
4 Opinions No. 3/2018, para. 43; No. 88/2017, para. 27; and No. 30/2018, para. 39.
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ordered by, or be subjected to, the effective control of a judicial or other authority under the
law, whose status and tenure should afford the strongest possible guarantees of competence,
impartiality and independence, in accordance with principle 4 of that Body of Principles.
35.
Moreover, the Working Group recalls that article 9 (2) of the Covenant requires that
anyone who is arrested is not only promptly informed of the reasons for arrest but also
promptly informed of any charges against him or her. The right to be promptly informed of
charges concerns notice of criminal charges and, as the Human Rights Committee noted in
its general comment No. 35 (2014), “that right applies in connection with ordinary criminal
prosecutions and also in connection with military prosecutions or other special regimes
directed at criminal punishment” (para. 29).
36.
The Working Group notes that Mr. Ghaderi was arrested without a warrant and no
reasons for his detention were given by the detaining authority. The Working Group therefore
concludes that there has been a breach of article 9 (1) and (2) of the Covenant.
37.
Furthermore, Mr. Ghaderi was not brought before a judicial authority for a review of
his detention until some six months after his initial arrest and the Government has provided
no explanation for that delay. According to article 9 (3) of the Covenant, anyone arrested or
detained on a criminal charge shall be brought promptly before a judge to exercise judicial
power. As the Human Rights Committee has noted, 48 hours is ordinarily sufficient to satisfy
the requirement of bringing a detainee “promptly” before a judge or other officer authorized
by law following his or her arrest; any longer delay must remain absolutely exceptional and
be justified under the circumstances.5 The Working Group finds that Mr. Ghaderi was not
brought promptly before a judicial authority, in violation of article 9 (3) of the Covenant. As
a result, the authorities failed to establish the legal basis of his detention in accordance with
the provisions of the Covenant.
38.
Moreover, the Working Group notes the uncontested submissions by the source that
Mr. Ghaderi was held at an unknown location and prevented from any contact with the
outside world at least until 4 February 2016, when he was allowed a short telephone call with
a family member. The Working Group considers that this amounted to enforced
disappearance in breach of article 9 (1) of the Covenant. Enforced disappearances are
prohibited by international law and constitute a particularly aggravated form of arbitrary
detention.6 The Working Group also finds that the failure to allow Mr. Ghaderi to notify his
family of his whereabouts and the authorities’ failure to inform his family about his
whereabouts is a violation of principle 19 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
39.
Furthermore, the Working Group notes the uncontested allegations that Mr. Ghaderi
was first granted bail but then not allowed to fulfil the bail requirements (see para. 9 above).
The Working Group considers that to offer such an unrealistic alternative to detention is to
disregard the requirement to make pretrial detention an exception and is therefore a breach
of article 9 (3) of the Covenant.
40.
Lastly, in order to establish that a detention is indeed legal, anyone detained has the
right to challenge the legality of his or her detention before a court, as provided by article 9
(4) of the Covenant. The Working Group wishes to recall that, according to 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 right to challenge the
lawfulness of detention before a court is a self-standing human right, which is essential to
preserve legality in a democratic society.7 This right, which is in fact a peremptory norm of
international law, applies to all forms of deprivation of liberty 8 and “all situations of
deprivation of liberty, including not only to detention for purposes of criminal proceedings
but also to situations of detention under administrative and other fields of law, including
military detention, security detention, detention under counter-terrorism measures,
5 Human Rights Committee, general comment No. 35 (2014), paras. 32–33.
6 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020 and No. 38/2021. See
also Human Rights Committee, general comment No. 35 (2014), para. 17.
7 A/HRC/30/37, paras. 2–3.
8 Ibid., para. 11.
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involuntary confinement in medical or psychiatric facilities, migration detention, detention
for extradition, arbitrary arrests, house arrest, solitary confinement, detention for vagrancy or
drug addiction, and detention of children for educational purposes”. 9 Moreover, it also
applies “irrespective of the place of detention or the legal terminology used in the legislation.
Any form of deprivation of liberty on any ground must be subject to effective oversight and
control by the judiciary.”10 This was denied to Mr. Ghaderi.
41.
Furthermore, the Working Group notes that in order to ensure an effective exercise of
this right, the detained persons should have access, from the moment of arrest, to legal
assistance of their own choosing, as stipulated 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.11 This was denied to Mr. Ghaderi, which seriously and
adversely affected his ability to effectively exercise his right to challenge the legality of his
detention, denying him his rights under article 9 (4) of the Covenant. The Working Group
recalls that judicial oversight of detention is a fundamental safeguard of personal liberty,12
and is essential in ensuring that detention has a legal basis. Given that Mr. Ghaderi was unable
to contact anyone, especially his lawyer, which is an essential safeguard to ensure the ability
of any detainee to personally challenge his or her detention, his right to an effective remedy
under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant
was also violated.
42.
Noting all of the above, the Working Group concludes that the arrest and detention of
Mr. Ghaderi is arbitrary and falls under category I.
Category III
43.
The Working Group notes the serious allegations concerning the violations of Mr.
Ghaderi’s right to a fair trial, which the Government has failed to address. The source has
submitted that Mr. Ghaderi was prevented from meeting with his lawyer until 7 May 2016,
some five months after his initial arrest. When their meeting was finally possible, the
confidentiality of the meeting was breached and neither Mr. Ghaderi nor his lawyer was
allowed to consult the case file. During the appeals process, Mr. Ghaderi was permitted to
meet with his lawyer only twice.
44.
All persons deprived of their liberty have the right to legal assistance by counsel of
their choice at any time during their detention, including immediately after their
apprehension, and such access must be provided without delay. 13 The Working Group
considers that the failure to provide Mr. Ghaderi with access to his lawyer from the outset,
and the subsequent limitation of his meetings with counsel to mere minutes, violated his right
to adequate time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing under article 14 (3) (b) of the Covenant.
45.
Moreover, the Working Group recalls that legal consultations may be within sight but
not within hearing of the authorities, and all communications with counsel must remain
confidential. 14 This provision was also breached in relation to Mr. Ghaderi in another
violation of article 14 (3) (b) and (d) of the Covenant. Lastly, the denial of full access to the
case file to Mr. Ghaderi and his lawyer was yet a further violation of Mr. Ghaderi’s rights
under article 14 (1) and (3) (b) and (e) of the Covenant.
46.
The source has also alleged and the Government does not contest that Mr. Ghaderi
was coerced into signing false confessions following torture. When this was brought to the
attention of the court, the source alleges and the Government does not contest that no action
was taken by the judge to investigate the allegations.
9 Ibid., annex, guideline 1, para. 47 (a).
10 Ibid., annex, guideline 1, para. 47 (b).
11 Ibid., annex, principle 9, paras. 12–15.
12 Ibid., para. 3.
13 Ibid., annex, principle 9 and guideline 8; Human Rights Committee, general comment No. 35 (2014),
para. 35.
14 The Nelson Mandela Rules, rule 61 (1); Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, principle 18; A/HRC/30/37, annex, guideline 8.
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47.
As the Working Group has stated before, confessions made in the absence of legal
representation are not admissible as evidence in criminal proceedings.15 Furthermore, the
admission into evidence of a statement allegedly obtained through torture or ill-treatment
renders the entire proceedings unfair, regardless of whether other evidence was available to
support the verdict. 16 The burden is on the Government to prove that Mr. Ghaderi’s
statements were given freely,17 but in this case it has not done so. In the present case, the
Working Group finds that Mr. Ghaderi’s right to be presumed innocent under article 14 (2)
of the Covenant and his right not to be compelled to confess guilt under article 14 (3) (g)
were violated.
48.
Moreover, noting the failure of the judge to act when the allegations of forced
statements were brought to court’s attention, the Working Group also finds a breach of article
14 (1) of the Covenant since the failure of the court to halt the proceedings when allegations
of ill-treatment were made means that the court failed to act in a fair and impartial manner.18
The Working Group refers the case to the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment and the Special Rapporteur on the
independence of judges and lawyers for appropriate action.
49.
Furthermore, the source submits, and the Government does not contest, that Mr.
Ghaderi was sentenced to 10 years of imprisonment through a judgment which was never
published, but merely read out by the judge. The appeal hearing was not open to the public.
50.
As the Human Rights Committee stated its general comment No. 32 (2007) (para. 29):
Article 14, paragraph 1, acknowledges that courts have the power to exclude all or
part of the public for reasons of morals, public order (ordre public) or national security
in a democratic society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would be prejudicial to the interests of justice. Apart
from such exceptional circumstances, a hearing must be open to the general public,
including members of the media, and must not, for instance, be limited to a particular
category of persons.
51.
The Working Group notes that the case of Mr. Ghaderi clearly did not fall into any of
the prescribed exceptions to the general obligation of public trials under article 14 (1) of the
Covenant, and most importantly, the Government of the Islamic Republic of Iran has not
invoked any of those exceptions to justify the closed trial. The Working Group thus finds a
violation of article 14 (1) of the Covenant and wishes to emphasize that this violation is
particularly grave as the appeal hearing was also closed to the public.
52.
Moreover, as the Human Rights Committee noted in its general comment No. 32
(2007) (para. 49):
The right to have one’s conviction reviewed can only be exercised effectively if the
convicted person is entitled to have access to a duly reasoned, written judgment of the
trial court, and, at least in the court of first appeal where domestic law provides for
several instances of appeal, also to other documents, such as trial transcripts,
necessary to enjoy the effective exercise of the right to appeal.
53.
In the present case, the Working Group notes the failure to provide a reasoned written
judgment and concludes that a breach of Mr. Ghaderi’s rights under article 14 (5) of the
Covenant took place as he was effectively prevented, as prospective appellant, from enjoying
the effective exercise of the right to appeal.
54.
Lastly, the source has argued, and the Government does not dispute, that Mr. Ghaderi,
a dual national of Austria and of the Islamic Republic of Iran, was denied Austrian consular
assistance by the Iranian authorities. The Working Group recalls that consular assistance or
15 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,
para. 70; and No. 73/2019, para. 91; and E/CN.4/2003/68, para. 26 (e).
16 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019, para.
43; No. 59/2019, para. 70; and No. 73/2019, para. 91.
17 Human Rights Committee, general comment No. 32 (2007), para. 41.
18 Opinion No. 54/2020, para. 98.
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consular protection constitutes an important safeguard for individuals who are arrested and
detained in a foreign State to ensure compliance with international standards. It provides such
detainees and consular officials of the detainee’s nationality with certain consular rights
which include, inter alia, the right to freely communicate with and have access to their
detained nationals and to be informed about the arrest without delay. These rights are
embodied in rule 62 (1) of the United Nations Standard Minimum Rules for the Treatment
of Prisoners (the Nelson Mandela Rules) and principle 16 (2) of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment, and were
violated in the case of Mr. Ghaderi.
55.
Noting all of the above, the Working Group concludes that the detention of Mr.
Ghaderi is arbitrary and falls under category III.
Category V
56.
The Working Group observes that Mr. Ghaderi is a dual Austrian-Iranian national and
notes in this connection the Government’s past practice of arbitrarily depriving of their liberty
persons of dual or foreign nationality or residence on the grounds of State security.19 It has
also received communications and found violations submitted by dual nationals, such as Mr.
Ghaderi, over many years.20 The Working Group specifically notes the joint urgent appeal
sent to the Islamic Republic of Iran on 18 January 2021 concerning four dual nationals,
including Mr. Ghaderi.21
57.
The Special Rapporteur on the situation of human rights in the Islamic Republic of
Iran also recognized this pattern, noting in late 2017 that estimates suggested that at least 30
foreign and dual nationals, as well as Iranians with permanent residence in another country,
had been imprisoned since 2015.22
58.
The Working Group is thus of the view that discrimination by the Government
stemming from a systematic bias may be the only plausible explanation for the arrest,
detention and imprisonment of Mr. Ghaderi. The Working Group therefore concludes that
Mr. Ghaderi has been arbitrarily deprived of his liberty because of his dual nationality, in
violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1)
and 26 of the Covenant, and that his deprivation of liberty falls under category V.
Concluding remarks
59.
The Working Group would like to express its concern about the poor conditions in
which Mr. Ghaderi is held, his treatment, enforced disappearance and the denial of medical
assistance. The uncontested allegations that Mr. Ghaderi was held in a small containment
space without windows and in fact feared that he had been left there to die (see para. 10
above) are particularly disturbing to the Working Group. The Working Group is obliged to
remind the Government that, in accordance with article 10 of the Covenant, all persons
deprived of their liberty must be treated with humanity and with respect for the inherent
dignity of the human person, and that denial of medical assistance constitutes a violation of
the Nelson Mandela Rules, particularly rules 24, 25, 27 and 30.
60.
Furthermore, the Working Group notes the absence of a response from the
Government in relation to allegations made by the source concerning the denial to Mr.
Ghaderi of contact with his family. The Working Group therefore finds a violation of
principle 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
19 See, e.g., opinions No. 28/2013, No. 28/2016, No. 50/2016 and No. 92/2017.
20 See opinions No. 18/2013, No. 44/2015, No. 28/2016, No. 7/2017 and No. 49/2017.
21 IRN 2/2021, available from https://spcommreports.ohchr.org/TmSearch/Results?page=2.
22 A/HRC/37/68, paras. 51–57. The Secretary-General has also expressed concern relating to such
prosecutions in the Islamic Republic of Iran (A/HRC/37/24, paras. 56–57).
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61.
In its 28-year history, the Working Group has adopted numerous opinions in relation
to the Islamic Republic of Iran.23 The Working Group is concerned that this indicates a
systemic problem with arbitrary detention in the country, which amounts to a serious
violation of international law. The duty to comply with international human rights standards
that are peremptory and erga omnes norms, such as the prohibition of arbitrary deprivation
of liberty and life, as well as torture and enforced disappearance, rests with all State organs,
officers and agents, as well as all other natural and legal persons.24
62.
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.25 The Working Group refers the
case to the Special Rapporteur on the situation of human rights in the Islamic Republic of
Iran for further action.
Disposition
63.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Kamran Ghaderi, being in contravention of articles 2, 7,
8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (1) and
(3), 9, 14 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, III and V.
64.
The Working Group requests the Government of the Islamic Republic of Iran to take
the steps necessary to remedy the situation of Mr. Ghaderi 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.
65.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Ghaderi immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global COVID-19 pandemic and the threat that it poses in
places of detention, the Working Group calls upon the Government to take urgent action to
ensure the immediate unconditional release of Mr. Ghaderi.
66.
The Working Group urges the Government to ensure a full and independent
investigation into the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Ghaderi and to take appropriate measures against those responsible for the violation of his
rights.
67.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights in the Islamic
Republic of Iran, the Special Rapporteur on torture and other cruel, inhuman or degrading
23 See decisions No. 1/1992, No. 28/1994, and No. 14/1996; and opinions No. 39/2000, No. 30/2001,
No. 8/2003, No. 14/2006, No. 19/2006, No. 26/2006, No. 4/2008, No. 34/2008, No. 39/2008, No.
6/2009, No. 2/2010, No. 8/2010, No. 20/2011, No. 21/2011, No. 58/2011, No. 30/2012, No. 48/2012,
No. 54/2012, No. 18/2013, No. 28/2013, No. 52/2013, No. 55/2013, No. 16/2015, No. 44/2015, No.
1/2016, No. 2/2016, No. 25/2016, No. 28/2016, No. 50/2016, No. 7/2017, No. 9/2017, No. 48/2017,
No. 49/2017, No. 92/2017, No. 19/2018, No. 52/2018 and No. 83/2018.
24 The domestic political and judicial organs are under a positive obligation to ensure an effective
remedy and reparation for violations of international human rights law by removing the statute of
limitations, sovereign immunity, forum non conveniens doctrine or other procedural obstacles to
redress in such cases through legislative or judicial action. See opinion No. 52/2014, para. 51. See
also CAT/C/CAN/CO/6, para. 15; and CAT/C/CAN/CO/7, paras. 40–41.
25 A/HRC/13/42, para. 30; and opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011, para.
16; No. 39/2011, para. 17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19 and
22; No. 50/2012, para. 27; No. 60/2012, para. 21; No. 9/2013, para. 40; No. 34/2013, paras. 31, 33
and 35; No. 35/2013, paras. 33, 35 and 37; No. 36/2013, paras. 32, 34 and 36; No. 48/2013, para. 14;
No. 22/2014, para. 25; No. 27/2014, para. 32; No. 34/2014, para. 34; No. 35/2014, para. 19; No.
36/2014, para. 21; No. 44/2016, para. 37; No. 60/2016, para. 27; No. 32/2017, para. 40; No. 33/2017,
para. 102; No. 36/2017, para. 110; No. 51/2017, para. 57; and No. 56/2017, para. 72.
A/HRC/WGAD/2021/27
10
treatment or punishment, and the Special Rapporteur on the independence of judges and
lawyers, for appropriate action.
68.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
69.
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. Ghaderi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Ghaderi;
(c)
Whether an investigation has been conducted into the violation of Mr.
Ghaderi’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 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.
70.
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.
71.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
72.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has 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.26
[Adopted on 6 September 2021]
26 Human Rights Council resolution 42/22, paras. 3 and 7.