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.22-01963(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 85/2021 concerning Anoosheh Ashoori (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 (A/HRC/36/38), on 13 August 2021, the
Working Group transmitted to the Government of the Islamic Republic of Iran a
communication concerning Anoosheh Ashoori. The Government has not replied to the
communication within the established time frame. 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/2021/85
General Assembly
Distr.: General
14 February 2022
Original: English
A/HRC/WGAD/2021/85
2
Submissions
Communication from the source
4.
Anoosheh Ashoori is a 67-year-old British-Iranian dual national, born in the Islamic
Republic of Iran in 1954. His family has been settled in the United Kingdom of Great Britain
and Northern Ireland since 2006.
5.
The source reports that Mr. Ashoori is a retired engineer with an interest in science,
space and civil engineering. In 1993, when he was living in the Islamic Republic of Iran, Mr.
Ashoori was awarded a gold medal by the Minister of Housing and Urban Planning for
innovation in construction engineering for his creation of Roofix metal formwork – a product
that helps in building earthquake-resistant homes. Mr. Ashoori’s company operated in the
Islamic Republic of Iran and the United Kingdom until 2015. He never held any government
posts, was never politically active and never worked for any government or its agents, either
directly or indirectly.
6.
From 2006 until his retirement in 2015, Mr. Ashoori travelled to the Islamic Republic
of Iran for work and personal matters. Since 2015, he has travelled only to see his elderly
relatives. During recent visits, he would stay a few weeks or for a month at a time, depending
on the health of his relatives.
a.
Arrest and detention
7.
On 2 August 2017, Mr. Ashoori travelled to the Islamic Republic of Iran for 20 days
to visit an elderly relative in Tehran. He entered with his Iranian passport, but he also carried
his British passport. He renewed his Iranian passport and received it by post on the morning
of the same day that he was arrested.
8.
On 13 August 2017 in the afternoon, Mr. Ashoori was kidnapped near his relative’s
home. The source reports that four men in plain clothes forced him into a car with tinted
windows. The driver showed a paper to Mr. Ashoori, but he could only read “anti-espionage
department” and was immediately blindfolded. He was not informed of the charges or reasons
for his detention.
9.
The source alleges that Mr. Ashoori was driven to a clandestine interrogation room
containing pictures of the Supreme Leader. The men who kidnapped him were intelligence
agents. Three interrogators told Mr. Ashoori that he was a spy. Several hours later, they took
him to the house of his relative, who was not present at the time, to collect his mobile
telephone, computer, wallet and British passport, before transferring him to Evin prison. Mr.
Ashoori’s interrogator later stated that they had chosen to arrest him on that day because they
knew that his relative would be away from home and there would be no disruption to his
arrest.
10.
The next day, Mr. Ashoori made a telephone call to his relative in the Islamic Republic
of Iran for less than 30 seconds and two weeks later made another brief call. In October 2017,
his relative visited him in Evin prison. The visit took place with a glass screen between them
and with a guard present behind Mr. Ashoori. For over two months until 21 October 2017,
Mr. Ashoori was not allowed to call his family in the United Kingdom. During his first two-
minute call to his family in the United Kingdom, he warned them not to travel to the Islamic
Republic of Iran. According to the source, Mr. Ashoori was punished for this and on 21
November 2017, he was taken to a detention centre, called 1A or 59, under the control of the
Revolutionary Guards outside Tehran for two weeks until early December 2017.
11.
The source further states that on 4 and 7 September 2017, Mr. Ashoori made two
unsuccessful suicide attempts, due to the alleged pressure to admit to actions that he had
never committed, lack of sleep and threats to harm his family. On 8 September 2017, he
started a hunger strike and lost 17 kgs in 17 days.
12.
According to the source, Mr. Ashoori was tortured, interrogated and denied access to
a lawyer. He was filmed for “training” purposes and the guards threatened to kill him
“without a trace”. Furthermore, he was forced to take a polygraph test. His interrogators were
particularly interested in his British citizenship, his sources of income, his spouse’s income
and his connections with foreign companies. The authorities retrieved documents related to
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3
his businesses with a foreign company from his computer and claimed that earnings from an
engineering consultancy were “illicit” and needed to be repaid to the Islamic Republic of
Iran.
13.
On 5 December 2017, Mr. Ashoori was sent to ward 7 of Evin prison, where security
prisoners are kept and where he currently remains. He was able to make regular telephone
calls to his family in the United Kingdom several times a week for 20–30 minutes until
February 2021, when access to his telephone card was revoked by the authorities due to his
denouncing his detention conditions.
14.
The source claims that from August to December 2017, except for brief monitored
calls to his relative in the Islamic Republic of Iran and family in the United Kingdom, Mr.
Ashoori was held incommunicado and in solitary confinement in section 209 of Evin prison,
under the control of the Ministry of Intelligence. During that time, he was only taken out of
his cell blindfolded to be interrogated repeatedly by members of the Revolutionary Guard for
up to 12 hours continuously each time.
15.
The interrogations were allegedly conducted under torture, with Mr. Ashoori
blindfolded or facing a wall in a small room, and without hydration in extreme heat.
According to the source, he was threatened with death, transfer to units with members of
Islamic State in Iraq and the Levant (ISIL) or Somali pirates, and harm to his family. After
some of these day-long interrogations, Mr. Ashoori was not allowed to sleep. His
interrogators gave him 50 blank pages, ordering him to fill them up by the morning with all
the possible scenarios as to why he had been detained and threatened him if he failed to do
so. In the morning, he was taken back for interrogation. He was asked for his family’s British
passports and was told that his spouse needed to come to the Islamic Republic of Iran for
interrogation. The interrogators warned Mr. Ashoori that his family was under surveillance
by Iranian intelligence agents in the United Kingdom and provided specific details showing
that they knew about their movements. Mr. Ashoori was forced to provide all his passwords.
16.
Mr. Ashoori was not provided with any opportunity to appear before an independent
judge or lawyer. The source alleges that he was forced to sign multiple documents, but
refused to sign a confession. One month after Mr. Ashoori’s arrest, one of his elderly relatives
was allegedly harassed at home by intelligence officers who searched for Mr. Ashoori’s
company computers and documents.
b.
Trial and appellate proceedings
17.
On 8 January 2018, after almost five months of detention and multiple interrogations
under torture, Mr. Ashoori was taken to Branch 15 of the Revolution Courts and brought
before a judge for the first time. The source claims that the judge overseeing his case is known
for violations of the human rights of foreigners and dual citizens.
18.
Mr. Ashoori sought the approval of the court for his chosen legal representative. The
source notes that even though Mr. Ashoori’s first choice was a qualified lawyer who taught
law in the Islamic Republic of Iran and had formerly represented an international detainee in
a similar situation, the judge rejected the lawyer as unqualified. The judge read Mr. Ashoori’s
indictment and made him sign it.
19.
During the following six months, Mr. Ashoori tried to obtain access to the files of his
case and to a lawyer of his choosing. According to the source, six lawyers were rejected. It
appears that the judge was interested in the lawyers’ fees because the judiciary receives a
percentage of those fees. The judge appointed a lawyer for Mr. Ashoori. When Mr. Ashoori
refused to accept that lawyer, the judge made him sign a document stating that he refused
legal representation and would represent himself. Mr. Ashoori proposed five other lawyers,
all of whom were rejected by the judge without explanation.
20.
The source submits that Mr. Ashoori faced a grossly unfair trial and was denied a
lawyer of his choosing. The trial consisted of two hearings. On 21 July 2018, the trial
commenced without counsel, access to the files, or any explanation of the charges and legal
procedures. Only the judge and Mr. Ashoori were in the room and the hearing lasted for a
maximum of 20 minutes. The prosecutor was not present. The interrogator presented a report,
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4
statements obtained under torture and the polygraph test result as evidence. Mr. Ashoori was
forced to sign the files.
21.
On 16 September 2018, another court session lasted for a maximum of 30 minutes
and Mr. Ashoori caught glimpses of the contents of the case file, which included his emails
and family pictures. The prosecutor told the judge that Mr. Ashoori was providing
information about Roofix to “the enemy”. Mr. Ashoori was not allowed to call witnesses.
The source observes that interrogators have an interest in obtaining confessions, as they
receive a commission for the trial. No consular or diplomatic presence monitored the trial
and Mr. Ashoori could not prepare his defence.
22.
On 8 October 2018, Mr. Ashoori was sentenced to 10 years’ imprisonment for
“cooperating with a hostile State against the Islamic Republic”, a charge based on article 508
of the Islamic Penal Code, and 2 concurrent years for allegedly obtaining 33,000 euros in
“illicit funds”, which he must pay to the State upon release. The judge reportedly laughed as
he read the verdict and asked Mr. Ashoori for the money. Mr. Ashoori was given 40 days to
appeal.
23.
On 27 October 2018, Mr. Ashoori filed an appeal before Branch 36 of the Court of
Appeal of the Revolution Courts, describing the unfairness of his trial and asserting his
innocence. His lawyer was again denied adequate time and facilities to prepare his defence
and was granted access to the case files only one hour before the second and final hearing.
Mr. Ashoori had two hearings on 25 December 2018 and 20 February 2019, at which he was
again asked to pay money and was interrogated about his family properties and the British
citizenship of his family. A different judge was assigned to his case. The first question that
this judge asked Mr. Ashoori was whether he was a dual national. No new evidence was
allowed, other than the interrogator’s report and polygraph test results, which Mr. Ashoori
never saw. The judge forced him to sign a document expressing remorse and requested
further information about projects that used Roofix.
24.
On 21 July 2019, Branch 36 of the Court of Appeal upheld Mr. Ashoori’s conviction
and sentence. On 27 August 2019, a spokesperson for the Iranian judiciary announced that
Mr. Ashoori was sentenced to 10 years’ imprisonment for “spying” and 2 years for obtaining
“illicit funds”. He stated that Mr. Ashoori had been connected to a foreign intelligence agency
to which he had “relayed a lot of intelligence” about the Islamic Republic of Iran. Under
Iranian sentencing guidelines, Mr. Ashoori must serve the longest sentence imposed for the
most serious charge.
25.
On 9 December 2019, Mr. Ashoori’s lawyer filed a motion for a retrial, which if
successful, would bring the case before the initial judge again. The motion received no
response. In February 2020, Mr. Ashoori filed a request for a judicial review, which is
pending before the Supreme Court. According to the source, any such review would be
conducted in a judicial system that lacks impartiality and independence and which would be
unable to address the human rights violations that Mr. Ashoori suffered as a hostage.
Moreover, according to the source, the judiciary takes part in the hostage-taking scheme.
26.
The source states that on 22 December 2020, Mr. Ashoori filed for conditional release
from jail, having served one third of his sentence. On 24 February 2021, this was granted,
conditional on payment of a bail amount of 1.7 billion tomans (one toman=10 rials) or the
deeds from Mr. Ashoori’s properties in the Islamic Republic of Iran. The deed from his
elderly relative’s home was rejected and the furlough process was extended until 15 March
2021, with inspectors going to the properties, the family paying for an evaluator to confirm
the value and the transfer of the deeds to the Government.
27.
Nevertheless, Mr. Ashoori was not released on furlough until 27 March 2021 and then
only for three days with a two-day extension. He returned to Evin prison on 1 April 2021.
During his release, the British Ambassador visited Mr. Ashoori. While on furlough, Mr.
Ashoori tested negative for coronavirus disease (COVID-19) and showed no antibodies for
the virus, which increases concern as to the likelihood of him contracting the virus in prison.
In several instances, Mr. Ashoori has shown all the main COVID-19 symptoms.
A/HRC/WGAD/2021/85
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c.
Conditions of detention
28.
The source argues that the conditions of Mr. Ashoori’s detention reach the threshold
of torture and have interfered severely with his ability to defend himself from arbitrary
detention. Evin prison is notorious for human rights violations. Mr. Ashoori spent four
months incommunicado in solitary confinement in ward 209 of Evin prison, including two
weeks in a detention centre run by the Revolutionary Guard outside Tehran and six days in
the “quarantine” area, and was then held in wards 7 and 4 of Evin prison.
29.
Prisoners charged with espionage are held in ward 209, which is under the control of
the Iranian Ministry of Intelligence and the Islamic Revolutionary Guard Corps, rather than
the Iranian Prison Authority. Mr. Ashoori spent almost four months in ward 209, with no
bathroom, in solitary confinement, in extreme heat, deprived of sleep, food and potable water,
and witnessing the suffering of other prisoners. He slept on a concrete floor with only three
blankets and had constantly to deal with ants, rats and bugs. He had no social interaction and
was blindfolded when moved to interrogation rooms. He has endured extreme physical and
psychological abuse, including constant artificial light, 12-hour interrogation sessions,
threats against his relatives, beatings and confinement in cells with dangerous prisoners.
30.
Mr. Ashoori is currently held in a 4m x 9m room holding 10 three-story bunk beds
with at least 14 other prisoners. His cell is infested with bed bugs, rats and cockroaches. He
has no access to adequate nutrition or to health care that meets the minimum standards under
international law. He is currently showing signs of COVID-19. There have been several
confirmed cases of COVID-19 in Evin prison, where there are reports of the virus spreading
among detainees and of several deaths. The authorities at the prison have failed to take
appropriate measures to mitigate the spread of COVID-19. They have continued to bring in
new detainees and have failed to provide adequate COVID-19 testing and medical care. There
is worsening and chronic overcrowding in the prison, which makes social distancing
impossible, and sanitary conditions, characterized by water shortages and insufficient
hygiene products and protective equipment, are poor.
31.
In March 2020, the authorities issued a directive releasing thousands of prisoners due
to the COVID-19 pandemic, but excluding dual and foreign nationals convicted of national
security offences with a sentence of over five years, even those who are in high-risk
categories due to their age and health. Mr. Ashoori’s physical and mental health have
deteriorated significantly. He suffers headaches, vomiting, extreme anxiety, tooth infections,
weight loss, knee problems and suicidal thoughts. His detention has severely interrupted his
family life.
32.
The source recalls that international law prohibits hostage-taking and refers to article
1 (1) of the widely-ratified International Convention against the Taking of Hostages, which
defines the offence of hostage-taking. The Convention complements the protection of the
right to life, liberty and security enshrined in the Universal Declaration of Human Rights and
the Covenant. Furthermore, the Convention states that “the taking of hostages is an offence
of grave concern to the international community” and “that it is urgently necessary to develop
international co-operation between States in devising and adopting effective measures for the
prevention, prosecution and punishment of all acts of taking of hostages”.
33.
The Working Group has recognized a practice in the Islamic Republic of Iran of
targeting foreign nationals,1 dual nationals2 and Iranian nationals with permanent residence
in another country 3 for prosecution for crimes that are “vague and overly broad”. 4 Mr.
Ashoori’s case falls within this proven pattern of arrest, followed by confiscation of
computers and passports; lengthy, often incommunicado, detention and solitary confinement;
denial of access to legal counsel; forced confessions; prosecution under vaguely worded
offences; closed trial and appeal processes conducted by courts that lack independence;
disproportionately harsh sentencing; and torture and ill-treatment and denial of medical care.
1 See opinions No. 50/2016 and No. 52/2018.
2 See opinions No. 18/2013, No. 28/2013, No. 44/2015 and No. 49/2017. See also opinions No.
28/2016 and No. 7/2017.
3 See opinions No. 92/2017, No. 32/2019 and No. 51/2019.
4 Opinion No. 52/2018, para. 78.
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6
The Working Group has found that this may constitute crimes against humanity.5 Moreover,
the Secretary-General, the High Commissioner for Human Rights, special procedure mandate
holders and the universal periodic review have all recommended that the Islamic Republic of
Iran unconditionally release dual nationals unjustly detained under vague security charges
and urged at least their immediate temporary release due to COVID-19.6
34.
The source submits that Mr. Ashoori’s detention is arbitrary under categories I, II, III
and V.
i.
Category I
35.
The source recalls that category I is violated when it is clearly impossible to invoke
any legal basis justifying detention in domestic or international law. There is clear evidence
that Mr. Ashoori is a victim of hostage-taking and that he is being used for diplomatic
leverage. His case falls into a pattern of targeting and arbitrary detention of dual nationals
and constitutes an international crime, as described in the International Convention against
the Taking of Hostages. Hostage-taking of dual nationals is a grave threat to peace and
security, an international crime and a violation of article 9 (1) and (2) of the Covenant.
36.
Given that the Islamic Republic of Iran does not recognize Mr. Ashoori’s British
citizenship, he continues to be denied effective diplomatic or consular access or assistance.
The source states that when a hostage situation arises, the Iranian authorities should respect
article 36 of the Vienna Convention on Consular Relations, notify the country of citizenship
of the person under arrest and immediately grant the right to maintain communication with
the sending country and to receive visits in person and independent legal advice. Rule 62 (1)
of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) further enshrines this right.
37.
Mr. Ashoori was kidnapped and detained by intelligence officers in plain clothes who,
according to the Working Group’s findings in similar cases, had no legal authority to arrest
him. He was twice taken blindfolded to undisclosed facilities, once at the time of his arrest,
where he was interrogated before his transfer to Evin prison, and on another occasion in
retaliation for warning his family not to travel to the Islamic Republic of Iran. He was
kidnapped on 13 August 2017 by unidentified agents of the Iranian Revolutionary Guard
Corps without a legitimate warrant. He was not given the reasons for his arrest, in violation
of article 9 (1) and (2) of the Covenant. Both domestic and international law require that
deprivation of liberty should be conducted by authorized State agents identifying themselves,
with an arrest warrant issued by an independent judge and without abuse.7
38.
The Iranian authorities failed to establish a legal basis for Mr. Ashoori’s detention.
The formal charges against him were not clear and his indictment was only read to him,
without access to the written version, almost five months after his arrest. That is not only a
violation of article 9 (2) of the Covenant, but also of Iranian law. Article 32 of the Iranian
Constitution provides that “no one may be arrested other than in accordance with the
procedure laid down by law. In case of arrest, charges with the reasons for the accusation
must, without delay, be communicated to the accused in writing, and a provisional dossier
must be forwarded to the competent judicial authorities within a maximum of 24 hours so
that the preliminaries to the trial can be completed as swiftly as possible”.
39.
Furthermore, Mr. Ashoori’s detention and conviction violate Iranian domestic laws,
because there is no evidence to show that he committed acts to satisfy the elements of the
crime defined by the Islamic Penal Code. Mr. Ashoori was visiting a sick, elderly family
member. He has never worked for a foreign government or its agents directly or indirectly.
40.
The source emphasized that Mr. Ashoori was held incommunicado, tortured and
placed in solitary confinement for more than 14 weeks, which removed him from judicial
protection. Between 25 September and 21 November 2017, he was transferred to different
pods in Evin prison, and on 21 November 2017 to other unknown detention facilities outside
5 See, for example, opinions No. 47/2012, para. 22, No. 52/2018, para. 86, and No. 32/2019, para. 52.
6 See, for example, A/75/287, paras. 11–12.
7 Opinion No. 28/2016, paras. 44 and 46.
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Tehran, without any justification, due process or judicial protection. Article 9 (3) of the
Covenant requires States to immediately bring a person detained in custody before a judge.
Mr. Ashoori was de facto taken away from any judicial protection. His detention was not
subject to effective oversight and control by the judiciary, and he was taken before a judge
(who was not independent) for the first time almost five months after his detention. He was
deprived of his right to challenge the lawfulness of his detention under article 9 (4) of the
Covenant.
41.
Finally, the authorities use vague and overly broad charges as a pretext to detain
foreigners or people with ties to Western countries. As recognized by the Working Group,
the charges are not defined with sufficient precision to avoid arbitrary interpretation or
application. Mr. Ashoori spent more than a year in pretrial detention without procedural
safeguards, without access to a lawyer of his choice and in incommunicado detention, which
has seriously and adversely affected his ability to effectively exercise his right to challenge
the lawfulness of his detention under article 9 (4) of the Covenant.
ii.
Category II
42.
The source recalls that detention is arbitrary when it results from depriving individuals
of exercising their fundamental rights or freedoms under international law, including the right
to circulation and to leave and return to any country, including one’s own, without fear of
being arbitrarily detained, as enshrined in article 13 of the Universal Declaration of Human
Rights. Article 15 (2) of the Declaration establishes that: “No one shall be arbitrarily deprived
of his nationality nor denied the right to change his nationality.”
43.
Dual nationality is common for Iranians living abroad. There is a large Iranian
diaspora in Western countries, preserving their cultural heritage and relationships with family
still in the Islamic Republic of Iran. Article 12 of the Universal Declaration of Human Rights
protects individuals against interference with or attacks upon their family. Article 7 further
ensures that all are equal before the law. Both the preamble and article 26 of the Covenant
echo these provisions.
44.
At the time of his kidnapping, Mr. Ashoori was exercising his right to visit his ageing
relative in the Islamic Republic of Iran and return home to the United Kingdom. Although he
is a British citizen settled in the United Kingdom, Iranian law required him to enter the
country on his Iranian passport. Avoiding travel to the Islamic Republic of Iran is not an
option for many dual nationals.
45.
The authorities failed to notify the United Kingdom of Mr. Ashoori’s arrest and
rejected several requests from the United Kingdom for consular access, in violation of article
36 of the Vienna Convention on Consular Relations and rule 62 of the Nelson Mandela Rules.
Consular protection is invaluable for all foreign nationals, as it not only serves the interests
of the detained foreign individual and of the interested State, but also facilitates international
exchange and reduces friction between States over the treatment of their nationals.
iii.
Category III
46.
The source submits that Mr. Ashoori was not aware of the charges against him. His
violent arrest did not allow for a prompt explanation of the reasons or the reading of charges
against him, nor were those legal reasons completely clear during his trial and appeal. On 8
January 2018, almost five months after his arrest, he was forced to sign his indictment in
court, without a lawyer or access to the files. The entire process was tainted, as Mr. Ashoori
could not comprehend the scope of the charges.
47.
According to the source, the Iranian officials were primarily interested in Mr.
Ashoori’s British passport and the financial commission that they would gain from his case.
Mr. Ashoori was shocked when he was convicted. On 27 August 2019, after his sentence was
upheld, the spokesperson for the Iranian judiciary publicly stated that Mr. Ashoori had been
connected to a foreign intelligence agency and had “relayed a lot of intelligence” about the
Islamic Republic of Iran. According to the source, Mr. Ashoori had never worked for a
foreign country.
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48.
In addition, the Revolution Courts that tried Mr. Ashoori and heard his appeal were
not an independent and impartial tribunal under article 10 of the Universal Declaration of
Human Rights and article 14 (1) of the Covenant. Judges must not be influenced by personal
bias or prejudice, nor harbour preconceptions about a particular case, and tribunals must
appear to a reasonable observer to be impartial. The judge who tried Mr. Ashoori is notorious
for his partiality and for human rights abuses, having sentenced several other individuals who
have been the subject of Working Group opinions. Like those individuals, Mr. Ashoori was
convicted of vague espionage charges and the judge laughed as he read his verdict and
obstructed Mr. Ashoori’s lawyers, asking for money. The source concludes that this judge
cannot be considered impartial to a reasonable observer.
49.
Mr. Ashoori’s trial also violated his right to a hearing before a competent, independent
and impartial tribunal. The Iranian justice system is not independent from the executive. The
Islamic Revolutionary Guard Corps influences or controls the Revolution Courts and
elements of the Iranian intelligence services, as part of a sustained pattern of targeting dual
citizens and foreigners based on vague charges and in the absence of due process.
50.
Mr. Ashoori’s hearing was closed to the public without any legitimate reason, in
violation of his right under article 14 (1) of the Covenant to a public hearing. The trial
consisted of sessions of a maximum of 30 minutes, which began on 21 July 2018 with only
Mr. Ashoori and the judge in the room. Mr. Ashoori was repeatedly denied the right to a
counsel of his choice. The exclusion of the public cannot be justified by the national security
and public order exception, as Mr. Ashoori’s conduct did not implicate the national security
of the Islamic Republic of Iran. Mr. Ashoori was never in possession of any classified
information that would be discussed during the proceedings and is not connected to any
espionage network. The only evidence presented during his trial came from interrogation
reports and documents that he was forced to sign under torture. A trial should only be closed
in exceptional circumstances and “the judgment, including the essential findings, evidence
and legal reasoning must be made public”.8
51.
Mr. Ashoori’s right to present a competent defence at trial under article 14 (3) of the
Covenant was violated. The State must provide access to all materials, including documents
and other evidence, that the prosecution plans to use in court and ensure that lawyers are able
to advise and represent persons charged with a criminal offence, in accordance with generally
recognized professional ethics without restrictions, influence, pressure or undue influence
from any quarter.9
52.
Mr. Ashoori’s trial was secret, he was repeatedly denied the counsel of his choosing
and was not allowed access to evidence. Mr. Ashoori presented six different lawyers to the
court during the process, each of whom was rejected by the judge. At the appeal stage, Mr.
Ashoori’s lawyer was obstructed from accessing case files and taking instructions from and
advising Mr. Ashoori. The trial began without legal representation. Even though the only
evidence against Mr. Ashoori consisted of interrogation reports, a polygraph test and signed
documents obtained through torture, Mr. Ashoori was not given access to that evidence.
53.
Mr. Ashoori did not have access to counsel, was not presumed innocent and was
unable to refute the accusations with exculpatory evidence. That constitutes a further
violation of his right to access all the materials to be presented against him at trial. Similar
violations of his rights took place during the appeal process in October 2018. Mr. Ashoori
drafted his own appeal, describing the deficiencies of his trial and asserting his innocence.
At the appellate stage, Mr. Ashoori’s lawyer was granted access to the case files only one
hour before the second and final appeal hearing. Mr. Ashoori was interrogated about the
property he owned and about his dual citizenship, as well as that of his family. The appeal
was denied. That constitutes a violation of articles 3, 9, 10 and 11 (1) of the Universal
Declaration of Human Rights and articles 9 (1) and 14 (1) and (3) of the Covenant.
8 Human Rights Committee, general comment No. 32 (2007), para. 29. The only exceptions are when
“the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes
or the guardianship of children”.
9 Ibid., para. 34.
A/HRC/WGAD/2021/85
9
54.
In addition, Mr. Ashoori was tortured, held in cruel and inhumane conditions,
incommunicado, without a counsel of his choice, and in solitary confinement for weeks at a
time. He was forced to sign documents and write fictitious scenarios about why he was
arrested after severe stress and sleep deprivation. He was subjected to a polygraph test in the
absence of a lawyer. Mr. Ashoori was not presumed innocent; his pretrial and post-trial
detention was neither revised nor justified. More than 11 months passed between when he
was detained and when his trial began, and he was never allowed representation by a counsel
of his choice at trial.
55.
The source recalls the clear prohibition of forced confessions. The Covenant requires
that domestic law prohibit the use of forced confessions as evidence. The Working Group
considers forced confessions as “a prima facie breach” of article 14 (2) and (3) (g) of the
Covenant, tainting the entire proceedings, regardless of whether other evidence was available
to support the verdict.10 Mr. Ashoori’s treatment constitutes torture, in violation of article 5
of the Universal Declaration of Human Rights and articles 7 and 10 (1) of the Covenant. His
treatment violates the prohibition of torture as a peremptory norm of international law,
principle 6 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and rule 1 of the Nelson Mandela Rules.
56.
The overcrowded, unhygienic and inhumane conditions of Mr. Ashoori’s detention
further hindered his ability to participate in or prepare his defence. 11 That violation is
particularly acute when the detainee is effectively held incommunicado and in prolonged
solitary confinement prior to trial. Extreme limitations on communications with family also
violate principles 15, 16 and 19 of the Body of Principles.12
57.
After his arrest, Mr. Ashoori was held incommunicado and in solitary confinement
for over 14 weeks, and taken out of his cell only to endure torture under the guise of
interrogation, in order to obtain a false confession. Incommunicado detention lacks a legal
basis and is inherently arbitrary, as it places the person outside the protection of the law,
contrary to article 6 of the Universal Declaration of Human Rights and article 16 of the
Covenant. It prevents prompt presentation before a judge under article 9 (3) of the
Covenant.13 The authorities failed to observe the minimum international norms relating to a
fair trial.
iv.
Category V
58.
The source maintains that Mr. Ashoori’s detention was motivated by a discriminatory
factor, namely his status as a dual Iranian-British national. His detention took place in the
context of several Iranians who hold dual nationality being arrested by the Iranian authorities
during a visit to the Islamic Republic of Iran to be used as leverage. Immediately after his
arrest, instead of being presented before a judge, Mr. Ashoori was transferred to his relative’s
house to locate his British passport and other personal possessions.
59.
There is no evidence that Mr. Ashoori was in the Islamic Republic of Iran for any
other reason than exercising his right to visit his elderly and sick relative. He had no criminal
record, nor is there any evidence that he was intending to conduct espionage for any foreign
country. The charges brought against him are usually used for detaining dual nationals, fitting
into the pattern identified by the Working Group.
60.
The source notes that despite knowing that Mr. Ashoori was a dual national with
family members in the United Kingdom, the Iranian authorities denied the consular or
diplomatic assistance that he was entitled to under international law. The authorities used
national security laws permitting extended periods of pretrial detention to force Mr. Ashoori
to select a counsel from a list of lawyers chosen by the head of the Iranian judiciary. Under
ordinary criminal laws, the authorities are required to provide a detainee with written criminal
10 Opinions No. 52/2018, para. 79 (i), and No. 51/2019, para. 66.
11 Opinion No. 92/2017, para. 56.
12 Opinions No. 51/2019, para. 58, and No. 7/2017, para. 42.
13 Opinion No. 60/2016, para. 24; Medjnoune v. Algeria (CCPR/C/87/D/1297/2004), para. 8.7; and
Human Rights Committee, general comment No. 35 (2014), para. 35.
A/HRC/WGAD/2021/85
10
charges within 24 hours of arrest and the ability to select their own counsel. Judges may also
restrict defendants’ access to the evidence supporting their indictment.
61.
Furthermore, the measures designed to mitigate the spread of the COVID-19
pandemic have been used in a discriminatory way against prisoners with dual nationality.
Mr. Ashoori’s sentence of 10 years’ imprisonment, with 2 concurrent years, fits the pattern
of heavy sentences following the conviction of other dual nationals. There is an absolute lack
of evidence of any criminal activity or prior record. Mr. Ashoori was detained on a
discriminatory basis, in violation of articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant, and his detention falls under category V.
Response from the Government
62.
On 13 August 2021, the Working Group transmitted the allegations to the Government
under its regular communication procedure. The Working Group requested the Government
to provide detailed information by 12 October 2021 about the situation of Mr. Ashoori and
to clarify the legal provisions justifying his continued detention.
63.
On 8 October 2021, the Government sought an extension of the deadline to submit its
response. The Working Group granted an extension until 27 October 2021. The Working
Group regrets that the Government did not submit a response within the established
timeframe.14
Discussion
64.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 16 of its methods of
work.
65.
In determining whether the detention of Mr. Ashoori is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has presented a prima facie case of breach of the international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations.15 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
Category I
66.
The source alleges that on 13 August 2017, Mr. Ashoori was kidnapped by
unidentified intelligence agents without a warrant. Four men in plain clothes forced him into
a car with tinted windows. The driver showed a paper to Mr. Ashoori, but he could only read
“anti-espionage department” and was immediately blindfolded. He was not informed of the
charges against him or the reasons for his arrest. The next day, Mr. Ashoori made a telephone
call to his relative in Iran for less than 30 seconds. The Government did not respond to these
allegations.
67.
According to the source, the unidentified agents who kidnapped Mr. Ashoori were
from the Revolutionary Guard Corps. Mr. Ashoori was informed that they had chosen to
arrest him on a particular day because they knew that his relative would be away from home
and there would be no disruption to his arrest, suggesting an intention to conceal the arrest.
Mr. Ashoori was deprived of liberty against his will, with the involvement of government
officials, who appear to have refused to disclose his fate and whereabouts.16 The Working
Group considers that Mr. Ashoori was subjected to enforced disappearance from his
kidnapping on 13 August 2017 until he was able to call his relative the next day. It therefore
refers this case to the Working Group on Enforced or Involuntary Disappearances.
68.
Enforced disappearances violate numerous substantive and procedural provisions of
the Covenant, including articles 9 and 14, and constitute an aggravated form of arbitrary
14 The Government replied to the communication on 11 January 2022, after the adoption of the present
opinion.
15 A/HRC/19/57, para. 68.
16 A/HRC/16/48/Add.3, para. 21, and opinion No. 37/2021, para. 64.
A/HRC/WGAD/2021/85
11
detention.17 The kidnapping of Mr. Ashoori on 13 August 2017 took place outside established
legal processes, in violation of the requirement under article 9 (1) of the Covenant that no
one shall be deprived of liberty except on such grounds and in accordance with such
procedure as are established by law. The source has provided credible information, which
was not rebutted by the Government, that Mr. Ashoori was arrested without an arrest warrant,
in violation of article 9 (1).18 Mr. Ashoori was arrested while visiting an elderly relative in
the Islamic Republic of Iran and there were no circumstances to give reasonable cause for
arrest in flagrante delicto.19 As a result, the authorities did not establish a legal basis for the
arrest of Mr. Ashoori in accordance with the Covenant.
69.
Article 9 (2) of the Covenant provides that anyone who is arrested shall be informed,
at the time of arrest, of the reasons for the arrest and shall be promptly informed of the charges
against them. The reasons for arrest must be provided immediately upon arrest20 and must
include not only the general legal basis of the arrest, but also enough factual specifics to
indicate the substance of the complaint, such as the wrongful act and the identity of an alleged
victim.21 The source claims, and the Government does not dispute, that Mr. Ashoori was
arrested without being informed of the reasons for his arrest. The paper referring to the “anti-
espionage department” did not satisfy the requirement for reasons to be given. An arrest is
arbitrary when it is carried out without informing the arrested person of the reasons for the
arrest.22
70.
Furthermore, the Working Group is satisfied that Mr. Ashoori was not promptly
informed of the charges against him. While Mr. Ashoori’s interrogators reportedly told him
that he was a spy, that does not amount to notification of the charges against him. On 8
January 2018, almost five months after his arrest, Mr. Ashoori was forced to sign the
indictment, which was read to him in court. That appears to be the first time that he was made
aware of the charges, contrary to articles 9 (2) and 14 (3) (a) of the Covenant.
71.
The source further alleges that Mr. Ashoori was taken before a judge for the first time
on 8 January 2018, almost five months after his arrest. According to article 9 (3) of the
Covenant, anyone arrested or detained on a criminal charge shall be brought promptly before
a judge. As the Human Rights Committee has noted, 48 hours is ordinarily sufficient to
satisfy the requirement of bringing a detainee “promptly” before a judge following his or her
arrest; any longer delay must remain absolutely exceptional and be justified under the
circumstances.23 In the absence of any justification from the Government, the Working Group
finds that Mr. Ashoori was not brought promptly before a judge to challenge the legal basis
of his detention, in violation of article 9 (3) of the Covenant.
72.
Similarly, Mr. Ashoori was not afforded the right to take proceedings before a court,
so that it might decide without delay on the lawfulness of his detention under article 9 (4) of
the Covenant. The right to bring proceedings applies in principle from the moment of arrest
and any substantial waiting period before a detainee can bring a first challenge to detention
is impermissible.24 The source claims that Mr. Ashoori was held incommunicado between
August and December 2017, but acknowledged that he made brief, monitored calls to his
family in the Islamic Republic of Iran and the United Kingdom during this period, and that a
relative visited him in Evin prison in October 2017. The Working Group does not consider
17 Human Rights Committee, general comment No. 35 (2014), para. 17, and opinion No. 37/2021, para.
65.
18 It is not sufficient that there exists a law authorizing the arrest. The authorities must invoke that legal
basis and apply it through an arrest warrant. See, for example, opinions No. 44/2019, para. 52, and
No. 45/2019, para. 51.
19 Opinion No. 9/2018, para. 38.
20 Human Rights Committee, general comment No. 35 (2014), para. 27, and opinion No. 30/2017, paras.
58–59.
21 General comment No. 35 (2014), para. 25, and opinion No. 25/2018, para. 36.
22 Opinions No. 59/2019, para. 46, and No. 46/2020, para. 40.
23 General comment No. 35 (2014), para. 33.
24 Ibid, para. 42, and 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, principle 8 and
guideline 7.
A/HRC/WGAD/2021/85
12
that Mr. Ashoori was held incommunicado during this period,25 but recognizes that there was
no meaningful contact between him and his family that would have assisted him to challenge
the legality of his detention.
73.
Moreover, it appears from the source’s submissions, which were not challenged by
the Government, that Mr. Ashoori did not have access to a lawyer prior to his trial. Mr.
Ashoori was deprived of an essential safeguard in taking proceedings before a court under
article 9 (4) of the Covenant.26 Given that he was unable to challenge the legality of his
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.
74.
Finally, the source reports that Mr. Ashoori was convicted of “cooperating with a
hostile State against the Islamic Republic”. According to a spokesperson for the Iranian
judiciary, Mr. Ashoori was convicted of “spying”. In the view of the Working Group, these
crimes are so vague that it is impossible to invoke a legal basis for Mr. Ashoori’s detention.
The Working Group has previously raised with the Government the issue of prosecution
under vague penal laws, noting that the offences of cooperation with a hostile State27 and
espionage28 are vague and overly broad. The principle of legality requires that laws be
formulated with sufficient precision that individuals can access and understand the law and
regulate their conduct accordingly. 29 Mr. Ashoori could not have foreseen that travelling to
visit a sick, elderly relative in the Islamic Republic of Iran would amount to cooperation with
a hostile State or spying. His imprisonment under vague provisions is incompatible with
article 11 (2) of the Universal Declaration of Human Rights and articles 9 (1) and 15 (1) of
the Covenant.
75.
The Working Group concludes that there is no legal basis for Mr. Ashoori’s detention,
which is arbitrary under category I.
Category II
76.
The source argues that, at the time of his kidnapping Mr. Ashoori was exercising his
right to visit his elderly relative in the Islamic Republic of Iran and to return home to the
United Kingdom. According to the source, his detention is arbitrary because it resulted from
the exercise of his right to leave and return to any country that is enshrined in article 13 of
the Universal Declaration of Human Rights.
77.
The Working Group considers that there is insufficient basis to conclude that Mr.
Ashoori’s detention was related to his exercise of the right to freedom of movement under
article 13 of the Universal Declaration of Human Rights and article 12 of the Covenant.
Although he was arrested following his return to the Islamic Republic of Iran, the Working
Group is not convinced that he was detained as a result of exercising his right to freedom of
movement.30 That is, Mr. Ashoori was not prosecuted for any offences relating to entering or
attempting to leave the Islamic Republic of Iran. Rather, his detention was related to his status
as a dual national, discussed under category V.
Category III
78.
On 8 October 2018, Mr. Ashoori was sentenced to 10 years’ imprisonment for
“cooperating with a hostile State against the Islamic Republic”, a charge based on article 508
of the Islamic Penal Code, and 2 concurrent years for allegedly obtaining “illicit funds”. On
21 July 2019, Branch 36 of the Court of Appeal upheld his conviction and sentence. The
information provided by the source discloses violations of Mr. Ashoori’s rights throughout
25 Holding persons incommunicado violates their right to challenge the lawfulness of detention under
article 9 (4). See, for example, opinions No. 16/2020, para. 62, and No. 36/2020, para. 53; and
A/54/426, para. 42.
26 Opinions No. 40/2020, para. 29, and No. 61/2020, para. 70; and general comment No. 35 (2014),
para. 46.
27 Opinion No. 52/2018, para. 78.
28 Opinions No. 7/2017, para. 41 (a), and No. 9/2017, para. 23.
29 Opinions No. 41/2017, paras. 98–101, and No. 62/2018, paras. 57–59; and general comment No. 35
(2014), para. 22.
30 See, for example, opinions No. 36/2007, No. 33/2016, and No. 29/2021, para. 45.
A/HRC/WGAD/2021/85
13
the proceedings. The Government did not respond to any of the allegations made by the
source.
79.
The source alleges that Mr. Ashoori was denied access to a lawyer of his choosing
prior to and during his trial. Mr. Ashoori sought the approval of the court for his chosen legal
representative who, despite being well qualified, was rejected by the judge. Mr. Ashoori
presented six different lawyers, each of whom was rejected by the judge without any reason
being given. The judge appointed a lawyer for Mr. Ashoori. When Mr. Ashoori refused the
appointment, the judge made him sign a document stating that he refused legal representation
and would represent himself. It is clear from these circumstances that Mr. Ashoori was not
able to choose his legal counsel.
80.
All persons deprived of their liberty have the right to legal assistance by a counsel of
their choice at any time during their detention, including immediately after their
apprehension, and such access must be provided without delay.31 The information provided
by the source indicates that Mr. Ashoori did not have legal representation of his choice
following his arrest in August 2017 and prior to his trial. Notably, he did not have a lawyer
during his interrogation. The failure to provide Mr. Ashoori with a lawyer from the outset of
his detention, and regular access to a lawyer thereafter, seriously impaired his ability to
prepare a defence. Mr. Ashoori’s rights to adequate time and facilities for the preparation of
his defence, to communicate with a lawyer of his choice and to defend himself through legal
assistance of his choosing, under article 14 (3) (b) and (d) of the Covenant were violated.
81.
Similarly, the source alleges that the Islamic Republic of Iran does not recognize Mr.
Ashoori’s British citizenship and he has been denied consular assistance. The authorities
failed to notify the United Kingdom of Mr. Ashoori’s arrest and rejected several requests by
representatives of the United Kingdom for consular access. There was no consular or
diplomatic presence during his trial.
82.
Consular assistance constitutes an important safeguard for individuals who are
detained in a foreign State. It provides detainees and consular officials of the detainee’s
nationality with certain rights, including for the latter to communicate freely with and have
access to their detained nationals and to be informed about an arrest without delay. These
rights are embodied in article 36 of the Vienna Convention on Consular Relations, to which
the Islamic Republic of Iran is a party; rule 62 (1) of the Nelson Mandela Rules; and principle
16 (2) of the Body of Principles, all of which were violated in Mr. Ashoori’s case.32
83.
The source further alleges that Mr. Ashoori was denied access to his case file at trial,
including the interrogation reports, polygraph test and other signed documents. Mr. Ashoori
reportedly caught glimpses of the case file during his trial. During his appeal, his lawyer was
granted access to the case file only one hour before the second and final hearing.
84.
Every individual deprived of liberty has the right to access material related to their
detention.33 However, that right is not absolute and the disclosure of information may be
restricted if such a restriction is necessary and proportionate in pursuing a legitimate aim,
such as protecting national security, and if the State has demonstrated that less restrictive
measures would be unable to achieve the same result, such as providing redacted summaries
that clearly point to the factual basis for the detention.34 The Government did not provide any
justification for denying access to the case files at trial or late access during the appeal, in
violation of Mr. Ashoori’s rights under articles 14 (1) and 14 (3) (b) of the Covenant to a fair
hearing and to adequate time and facilities for the preparation of a defence.35 Furthermore,
Mr. Ashoori was not allowed to call witnesses, in violation of article 14 (3) (e) of the
Covenant.
31 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, principle 9 and guideline 8, and
A/HRC/45/16, para. 51.
32 See also General Assembly resolutions 72/179, para. 4 (k), and 73/180, para. 16 (g), and Human
Rights Council resolution 40/20, para. 2 (j).
33 Basic Principles, principle 12 and guidelines 11 and 13.
34 Ibid, guideline 13, paras. 80–81.
35 Opinions No. 18/2018, para. 53, and No. 78/2018, paras. 78–79.
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14
85.
The source argues that Mr. Ashoori’s trial was closed to the public without legitimate
reason. The trial began on 21 July 2018 with only Mr. Ashoori and the judge present. The
Government has not demonstrated that any of the exceptions allowing for a closed trial, such
as public order or national security, were applicable in this case. The Working Group finds
that Mr. Ashoori was denied his right to a public hearing under article 14 (1) of the
Covenant.36
86.
In addition, the source argues that the Revolution Courts that tried Mr. Ashoori and
heard his appeal did not meet the standard of an independent and impartial tribunal. The trial
judge, who is reportedly known for his unfair treatment of foreign and dual nationals, laughed
as he read the verdict and obstructed Mr. Ashoori’s lawyers, asking for money. The trial
judge also rejected six lawyers presented by Mr. Ashoori and allowed his trial to proceed in
the absence of counsel. Moreover, the source claims that the Revolutionary Guard Corps
controls or influences the Revolution Courts.
87.
In the absence of a response from the Government, the Working Group considers that
Mr. Ashoori was not tried by an independent and impartial tribunal, in violation of article 14
(1) of the Covenant. The Revolution Courts do not meet international standards of
independence or impartiality.37 The Working Group therefore refers the case to the Special
Rapporteur on the independence of judges and lawyers.
88.
The source indicates that Mr. Ashoori’s trial consisted of two hearings: the first
hearing on 21 July 2018, which lasted for a maximum of 20 minutes, and the second hearing
on 16 September 2018, which lasted for a maximum of 30 minutes. In total, it appears that
the trial hearings did not even last for one hour, despite the serious charges and the heavy
sentence ultimately imposed. A short trial for a serious criminal offence suggests that the
defendant’s guilt has been determined prior to the proceedings.38 The brief duration of the
trial, together with the lack of access to the evidence and the uncontested allegations relating
to the behaviour of the trial judge in refusing Mr. Ashoori’s choice of legal counsel and
laughing while reading the verdict, resulted in the denial of Mr. Ashoori’s right to the
presumption of innocence under article 14 (2) of the Covenant.
89.
Furthermore, the source alleges that Mr. Ashoori was subjected to torture during his
interrogations, including being blindfolded and held without hydration in extreme heat. He
was threatened with death, transfer to units with members of ISIL or Somali pirates, and harm
to his family. Mr. Ashoori endured extreme physical and psychological abuse, including
solitary confinement, constant artificial light, 12-hour interrogation sessions, sleep
deprivation, beatings and confinement in cells with dangerous prisoners. He was forced to
fill blank pages writing fictitious reasons as to why he was detained.
90.
The source has presented a credible case, not disputed by the Government, that Mr.
Ashoori was subjected to torture and ill-treatment. His alleged treatment appears to violate
the absolute prohibition of torture as a peremptory norm of international law, article 5 of the
Universal Declaration of Human Rights and article 7 of the Covenant. Mr. Ashoori was held
in inhumane conditions, which together with the alleged torture and ill-treatment, hindered
his ability to participate in his own defence.39 The Working Group therefore refers this case
to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment.
91.
Mr. Ashoori was forced to sign multiple documents, but refused to sign a confession.
However, he was subjected to a polygraph test in the absence of legal assistance, with the
results of that test presented as evidence at trial. Self-incriminating statements made in the
absence of legal representation are not admissible as evidence in criminal proceedings.40 The
admission into evidence of a statement obtained through torture or ill-treatment renders the
36 Opinions No. 36/2020, para. 72, and No. 81/2020, para. 85.
37 Opinions No. 19/2018, para. 34, No. 52/2018, para. 79 (f), and No. 51/2019, para. 65;
E/CN.4/2004/3/Add.2, para. 65; and CCPR/C/IRN/CO/3, paras. 21–22.
38 Opinion No. 15/2020, para. 78. See also opinions No. 46/2018, No. 44/2019 and No. 45/2019.
39 Opinion No. 92/2017, para. 56.
40 Opinion No. 41/2020, para. 70; E/CN.4/2003/68, para. 26 (e); and A/HRC/45/16, para. 53.
A/HRC/WGAD/2021/85
15
entire proceedings unfair, regardless of whether other evidence exists to support the verdict.41
The burden is on the Government to prove that the statement was given freely,42 but it has
not done so. The authorities violated Mr. Ashoori’s rights to the presumption of innocence
and to not be compelled to confess guilt under articles 14 (2) and 14 (3) (g) of the Covenant.
92.
The Working Group finds that these fair trial violations are of such gravity as to give
Mr. Ashoori’s detention an arbitrary character under category III.
iv.
Category V
93.
The source claims that Mr. Ashoori’s detention was motivated by his status as a dual
Iranian-British national. His detention took place in the context of several Iranians with dual
nationality being arrested during a visit to the Islamic Republic of Iran. The Government has
not addressed the source’s allegations.
94.
The Working Group considers that Mr. Ashoori’s detention was motivated by his dual
nationality. In reaching this conclusion, the Working Group has noted several factors which,
taken together, demonstrate that Mr. Ashoori’s dual nationality, and particularly his British
citizenship, resulted in his arrest and detention.
95.
First, there is no evidence that Mr. Ashoori was in the Islamic Republic of Iran for
any other reason than visiting his elderly relative. Indeed, he had previously visited the
Islamic Republic of Iran between 2006 and 2015 for work and personal matters without
incident. Second, Mr. Ashoori’s British citizenship was the focus of the investigation.
Immediately after his arrest, he was taken to his relative’s house to locate his British passport.
Mr. Ashoori’s interrogators were interested in his British citizenship and that of his family.
During the appeal proceedings, the first question asked by the judge was whether Mr. Ashoori
was a dual national. Third, Mr. Ashoori’s sentence of 10 years’ imprisonment appears to be
disproportionate,43 as there is no evidence that he had a criminal record, nor that he had
cooperated with any foreign government, engaged in spying, or obtained illicit funds.
96.
The Working Group has identified a practice in the Islamic Republic of Iran of
arbitrarily detaining persons of foreign or dual nationality or residence on the grounds of
State security.44 The present case is part of that pattern. Mr. Ashoori was detained on a
discriminatory basis, namely 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. His
detention falls under category V.
97.
The Working Group refers this case to the Special Rapporteur on the situation of
human rights in the Islamic Republic of Iran.
v.
Concluding remarks
98.
The source reports that from August 2017 to December 2017, Mr. Ashoori was held
in solitary confinement in Evin prison. Prolonged solitary confinement exceeding 15
consecutive days violates rules 43–45 of the Nelson Mandela Rules. According to rule 45,
solitary confinement must only be used as a last resort, for as short a time as possible, subject
to independent review and authorized by a competent authority.45 Solitary confinement may
amount to torture or ill-treatment.46 The Government is obliged to treat all persons deprived
of liberty with respect for their inherent dignity under article 10 (1) of the Covenant. The
Working Group includes the alleged solitary confinement in its referral to the Special
Rapporteur on torture.
41 Opinion No. 41/2020, para. 70.
42 Human Rights Committee, general comment No. 32 (2007), para. 41.
43 Opinion No. 52/2018, para. 81.
44 See, for example, opinions No. 18/2013, No. 28/2013, No. 44/2015, No. 28/2016, No. 50/2016, No.
7/2017, No. 49/2017, No. 92/2017, No. 52/2018, No. 32/2019, No. 51/2019, No. 27/2021 and No.
29/2021; and A/HRC/43/12, paras. 26.151–152; A/HRC/43/20, paras. 14–15; A/HRC/43/61, paras.
27–28; A/HRC/47/22, para. 36; and A/75/287, paras. 11–12.
45 Opinions No. 52/2018, para. 79 (d), and No. 61/2020, para. 85.
46 General Assembly resolution 68/156, para. 28; A/66/268, para. 71; and E/CN.4/2004/3/Add.2, paras.
54–55.
A/HRC/WGAD/2021/85
16
99.
The Working Group has grave concerns for the welfare of Mr. Ashoori. He has
attempted suicide twice and his physical and mental health have reportedly deteriorated
significantly. The Working Group urges the Government to release him immediately and
unconditionally and to ensure that he receives the necessary health care. The Working Group
refers this case to the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
Disposition
100.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Anoosheh Ashoori, being in contravention of articles 2,
7, 8, 9, 10 and 11 (1) and (2) of the Universal Declaration of Human Rights and articles
2 (1) and (3), 9, 14, 15 (1) and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, III and V.
101.
The Working Group requests the Government of the Islamic Republic of Iran to take
the steps necessary to remedy the situation of Mr. Ashoori 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.
102.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Ashoori immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.47 In the current context of the 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 release of Mr. Ashoori.
103.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary detention of Mr. Ashoori and to
take appropriate measures against those responsible for the violation of his rights.
104.
The Working Group requests the Government to bring its laws, particularly article
508 of the Islamic Penal Code, into conformity with the present opinion and with its
obligations under international human rights law.
105.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances, the
Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, the Special
Rapporteur on the situation of human rights in the Islamic Republic of Iran and the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, for appropriate action.
106.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
107.
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. Ashoori has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Ashoori;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Ashoori 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;
47 See deliberation No. 10 (A/HRC/45/16, annex I).
A/HRC/WGAD/2021/85
17
(e)
Whether any other action has been taken to implement the present opinion.
108.
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.
109.
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.
110.
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.48
[Adopted on 19 November 2021]
48 Human Rights Council resolution 42/22, paras. 3 and 7.