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.23-09172 (E) 300523 300523
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-sixth session, 27 March–5 April 2023
Opinion No. 21/2023 concerning Saba Kord Afshari and Raheleh
Ahmadi (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 51/8.
2.
In accordance with its methods of work,1 on 28 November 2022 the Working Group
transmitted to the Government of the Islamic Republic of Iran a communication concerning
Saba Kord Afshari and Raheleh Ahmadi. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/21
General Assembly
Distr.: General
30 May 2023
Original: English
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Submissions
Communication from the source
4.
Saba Kord Afshari, born in 1998, is a women’s rights defender and critic of
compulsory veiling. She works as an accounting assistant and lives in Tehran. She regularly
participated in the “White Wednesdays” initiative by publishing videos of herself without a
hijab on social media.
5.
Raheleh Ahmadi, born in 1970, the mother of Saba Kord Afshari, also frequently
participated in the “White Wednesdays” initiative with her daughter. She is a hairstylist and
lives in Tehran.
6.
Under domestic law, a woman cannot appear in public without a headscarf and must
keep her arms and legs covered. Article 638 of the Islamic Penal Code provides that women
who appear in public without wearing a hijab shall be sentenced from 10 days to 2 months in
prison or a fine of 50,000 to 500,000 thousand rials.
7.
In recent years, protests against mandatory veiling laws have become more vocal. In
2017, the “White Wednesdays” initiative began encouraging women protesting compulsory
veiling laws to either wear white clothing or to appear in public without a headscarf on
Wednesdays. Since the start of this initiative, the Government has reportedly arrested
numerous women’s rights defenders.
Case of Saba Kord Afshari
8.
The source states that Ms. Kord Afshari was first arrested on 2 August 2018, after
having taken part in protests against the state of the economy and the alleged corruption of
the Government. Prior to her trial, Ms. Kord Afshari was detained in Qarchak prison. On 17
October 2018, she was sentenced, along with other individuals, to one year in prison on the
grounds of disrupting public order. Ms. Kord Afshari was subsequently detained in Evin
prison, where she served part of her sentence. She was released on 14 February 2019, when
several prisoners were pardoned on the fortieth anniversary of the Islamic Revolution.
9.
Following her release, Ms. Kord Afshari published an open letter denouncing
detention conditions.
10.
Following the arrest and enforced disappearance of a prominent women’s rights
defender on 10 April 2019, Ms. Kord Afshari and Ms. Ahmadi published a video of
themselves, dressed in white, in support of the defender. In the video, Ms. Kord Afshari, who
appeared without a hijab, explained that she had been contacted by Iranian intelligence
services and threatened with arrest if she continued her protest.
11.
Following the publication of the video on social media on 1 June 2019, Ms. Kord
Afshari was arrested at her house. Her house was raided and various items were confiscated,
including her cell phone, laptop, laptop bag, books, diaries and a USB memory stick. The
arrest was carried out by the intelligence service of the Iranian Revolutionary Guard Corps;
no warrant was presented. The legal grounds for the arrest were also unknown.
12.
On 2 June 2019, Ms. Kord Afshari was charged with: “assembly and collusion against
national security” (article 610 of the Islamic Penal Code) for supporting political prisoners;
“spreading propaganda against the State” (article 500 of the Islamic Penal Code) for
collaborating with opposition and subversive groups; and “promoting corruption and
prostitution” (article 639 of the Islamic Penal Code) for appearing without a headscarf in
public. Article 638 of the Islamic Penal Code provides that anyone who explicitly violates
any religious taboo in public, in addition to being punished for the act, shall also be
imprisoned for 10 days to 2 months or be flogged. In a note to article 638, appearing without
a proper hijab is listed as a religious taboo.
13.
Following the arrest of Ms. Kord Afshari, her whereabouts were reportedly concealed
from her family for 12 days. It was later revealed that she had been held in solitary
confinement for 11 days either in Vozara detention centre or in Evin prison. Ms. Kord Afshari
was interrogated and asked to record videos condemning the “White Wednesdays” initiative,
which she refused to do. She was also asked to make a confession, under threat that her family
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members would be arrested or killed and that personal pictures obtained from her phone
would be publicly disseminated. In particular, she was threatened with her mother’s arrest,
and was shown a relevant warrant. Ms. Kord Afshari has maintained her refusal to confess.
14.
On 11 June 2019, Ms. Kord Afshari was transferred to Qarchak prison and on 2 July
2019 to ward 2-A of Evin prison. Ms. Kord Afshari had no access to a lawyer, either
following her arrest or during her pretrial detention, and met her lawyer for the first time in
front of the judge. Her lawyer was allowed access to parts of her case file only one hour
before her trial and parts of her file were censored under the pretext of confidentiality. The
source reports that Ms. Kord Afshari was indicted on 7 August 2019 and that her trial took
place on 19 August 2019. She was transferred to the court blindfolded and in handcuffs; the
source reiterated that she did not have access to her lawyer before the start of the trial.
15.
On 27 August 2019, she was sentenced by Branch 26 of the Islamic Revolutionary
Court of Tehran for “promoting corruption and prostitution” (article 639 of the Islamic Penal
Code); for “assembly and collusion against national security” (article 610 of the Islamic Penal
Code); and for “spreading propaganda against the State” (article 500 of the Islamic Penal
Code). The length of her sentence in prison was reportedly increased by one half because of
the numerous charges against her and her previous record. The court has also issued a ban on
all social activities. In application of article 134 of the Islamic Penal Code, Ms. Kord Afshari
was sentenced to 15 years in prison.
16.
On 17 March 2020, Ms. Kord Afshari, while in detention at Evin prison, received
notification from the Office of the Prosecutor, informing her that she had been partially
acquitted of the charges and that her sentence would be reduced to 7 years and 6 months.
However, on 26 May 2020, Ms. Kord Afshari was informed that the Tehran Court of Appeals
had changed its verdict and reverted back to its original 15-year sentence.
17.
On 9 November 2020, Branch 28 of the Supreme Court rejected Ms. Kord Afshari’s
request for a retrial. Instead, she remained at Evin prison for a month before being transferred
to Qarchak prison, on 9 December 2020, without prior notice.
18.
On 9 March 2021, Ms. Kord Afshari was informed that her prison sentence had been
reduced to 7 years and 6 months by Branch 26 of the Tehran Court of Appeals. The ruling
was a correction of what Branch 26 viewed as a judicial violation by the Tehran
Revolutionary Court in its initial sentencing, in which it had given Ms. Kord Afshari a
sentence equal to 150 per cent of her initial sentence.
19.
On 27 April 2022, the Supreme Court acquitted Ms. Kord Afshari of “promoting
corruption and prostitution” by unveiling and appearing without a head scarf. On 29 April
2022, Ms. Kord Afshari was informed that her prison sentence had been reduced to five years,
based on the application of article 134 of the Islamic Penal Code. To date, her sentence
remains the most severe single sentence received by a women’s rights defender.
20.
Ms. Kord Afshari remains detained in Qarchak prison. According to the source, this
prison is primarily used to detain women accused of violent crimes as well as female political
prisoners. Prisoners are not separated by crime and thus political prisoners are intermixed
with ordinary and even dangerous prisoners.
21.
Ms. Kord Afshari suffers from chronic stomach disorders and ulcers, as well as
anxiety attacks, for which she requires immediate treatment. On 29 June 2020, Ms. Kord
Afshari fell ill and was transferred to a hospital but was sent back to prison without receiving
medical treatment.
22.
On 19 September 2020, Ms. Kord Afshari was transferred to Taleghani hospital as her
health had seriously deteriorated. On the advice of a doctor at the hospital, she was supposed
to be given an ultrasound, a colonoscopy and an endoscopy. Although such treatment is
supposed to be paid for by the Tehran Prisons Organization, Ms. Kord Afshari was taken
back to prison after receiving only an ultrasound on the grounds that she could not pay for
the full required treatment. Her family members were deliberately sent to a different hospital
so that they would not be able to meet with her or pay for her treatment.
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23.
On 13 December 2020, Ms. Kord Afshari was reportedly attacked by prison guards
when they raided ward 8 of Qarchak prison to transfer another political prisoner to Evin
prison. The guards attacked all of the inmates in the ward, injuring Ms. Kord Afshari.
24.
On 26 January 2021, Ms. Kord Afshari was again physically assaulted by prison
security officers and forcibly transferred from ward 8 to ward 6 of Qarchak prison, the ward
where prisoners of public-order crimes are held. The guards grabbed Ms. Kord Afshari by
her hair, tied her hands behind her back and dragged her across the floor.
25.
In March 2021, after testing positive for coronavirus disease (COVID-19), Ms. Kord
Afshari fainted on a number of occasions. Allegedly, she contracted COVID-19 as a result
of the prison practice of bringing in new prisoners without testing them, as well as its lack of
social distancing and quarantine guidelines.
26.
On 8 May 2021, Ms. Kord Afshari began a hunger strike to protest the detention of
her mother in Evin prison, despite issues with her health. She ended her hunger strike on 19
May 2021 after her own health had deteriorated and her mother requested that she stop.
27.
On 11 August 2021, after testing positive for COVID-19 again, Ms. Kord Afshari was
placed on a 15-day medical leave from Qarshak prison. It is reported that Ms. Kord Afshari
receives death threats at Qarchak prison and is harassed by dangerous inmates. On 5
September 2021, Ms. Kord Afshari was violently threatened by a dangerous inmate with a
razor blade while standing outside ward 6.
28.
Despite complaints to prison authorities, inmates who harass and threaten Ms. Kord
Afshari have been allowed to return to ward 6, endangering her safety. On 23 October 2021,
she was granted five days of medical leave. She returned to Qarshak prison on 4 November
2021 after the authorities had rejected her request to extend her leave to continue medical
treatment. In her continuing detention, Ms. Kord Afshari remains at risk owing to her
underlying health conditions, psychological stress and physical threats by other prisoners.
Case of Raheleh Ahmadi
29.
Ms. Ahmadi was arrested on 10 July 2019 at her home in Tehran, reportedly in
fulfilment of the threat that Government agents used in an attempt to coerce Ms. Kord Afshari
into making a confession. It is believed that a representative of the Office of the Prosecutor
was present and that a warrant was presented at the time of the arrest.
30.
Ms. Ahmadi was arrested on charges of engaging in “spreading propaganda against
the State” (article 500 of the Islamic Penal Code); “assembly and collusion against national
security” (article 610 of the Islamic Penal Code); and “promoting corruption and prostitution”
(article 639 of the Islamic Penal Code).
31.
Following her arrest, Ms. Ahmadi was taken to the Office of the Prosecutor and
subsequently to Qarchak prison. One hour later, she was taken to ward 2-A of Evin prison
for interrogation. Four days later, on 14 July 2019, Ms. Ahmadi was released on bail of 700
million tomans [1 toman is equivalent to 10 rials].
32.
On 16 December 2019, Branch 26 of the Tehran Islamic Revolutionary Court
convicted Ms. Ahmadi of “assembly and collusion against national security” (article 610 of
the Islamic Penal Code) by cooperating with opposing media; and of “spreading propaganda
against the State” (article 500 of the Islamic Penal Code). She was incarcerated on 20
February 2020. She is presently serving a 31-month sentence in Evin prison, separated from
her daughter.
33.
On 20 November 2021, while in detention, Ms. Ahmadi faced a new charge for
propaganda activities against the State for having allegedly publishing statements on websites
hostile to the Iranian Government. To face this new charge, Ms. Ahmadi, while in detention
in Evin prison, was summoned before the court (Branch 1) on 22 December 2021 and 12
January 2022. On both occasions, Ms. Ahmadi refused to appear before the court in the
absence of her lawyer.
34.
The source notes that following the outbreak of the COVID-19 pandemic, Ms. Kord
Afshari’s family requested that the Assistant Prosecutor’s Office release both Ms. Kord
Afshari and her mother. The family was informed that while Ms. Ahmadi might be released,
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Ms. Kord Afshari would not. As a result, Ms. Ahmadi stated in an open letter that she would
continue to be the voice of her daughter from prison.
35.
Ms. Ahmadi suffered a nervous breakdown on 9 December 2020. As a result, she
suffered a significant loss of mobility in her legs. She was returned to the hospital on 5
January 2021. At that time, doctors believed she might be paralyzed. Ms. Ahmadi suffers
from thyroid malfunctions and the poor detention conditions have made her even more
vulnerable to contracting COVID-19.
36.
On 15 March 2021, Ms. Ahmadi was granted leave in order to receive medical
attention due to nervous stress and a ruptured disc. The doctor at the Evin prison clinic
requested that she be examined by a doctor specializing in neural medicine. Prison authorities
refused to approve her request to extend her medical leave, which was terminated on 10 April
2021.
37.
The health of both Ms. Ahmadi and Ms. Kord Afshari continue to deteriorate as prison
authorities fail to provide them with sufficient medical treatment.
Legal analysis
38.
The source submits that the arrest and detention of Ms. Kord Afshari and Ms. Ahmadi
are arbitrary and fall under categories I, II, III and V of the Working Group.
39.
In the context of category I, the source argues that there is no legal basis on which to
justify Ms. Kord Afshari or Ms. Ahmadi’s deprivation of liberty given: (a) Ms. Kord
Afshari’s incommunicado detention for the period in which she disappeared; and (b) the
vague and overly broad laws used to arrest and imprison them.
40.
The source recalls that, under article 9 (3) of the Covenant, when a person is arrested
or detained on a criminal charge that individual should be brought promptly before a judge
or other officer authorized by law to exercise judicial power and should be entitled to trial
within a reasonable time or to release.
41.
Furthermore, the Human Rights Committee has interpreted the term “promptly” to
mean within approximately 48 hours, except in exceptional circumstances. Article 9 (4) of
the Covenant entitles such persons to a court proceeding, in order that that court may decide
without delay on the lawfulness of their detention and order their release if the detention is
not lawful. These requirements apply even before formal charges have been asserted, so long
as the persons are arrested or detained on suspicion of criminal activity. Additionally, article
48 of the Iranian Code of Criminal Procedure provides individuals the right to a meeting with
a lawyer as soon as they are detained.
42.
It is submitted that the Iranian Government violated the Covenant when it subjected
Ms. Kord Afshari to enforced disappearance for 12 days after her arrest. During her
incommunicado detention, she was held in solitary confinement and interrogated. From 1
June to 13 June 2019, Ms. Kord Afshari had no contact with her family or her lawyer.
Furthermore, Ms. Kord Afshari was not brought promptly before a judge or other judicial
officer. Instead, she was transferred twice following her arrest and pretrial detention before
her indictment on 7 August 2019.
43.
The facts above demonstrate that Ms. Kord Afshari’s detention was in violation of
category I, as the Government effectively enforced her disappearance and failed to promptly
present her to a judge or judicial officer to decide the lawfulness of her detention within a
reasonable time.
44.
Furthermore, by using vague and overbroad laws as the legal basis for Ms. Kord
Afshari’s and Ms. Ahmadi’s imprisonment, the Government has reportedly violated their
right to know the legal basis of their detention.
45.
As the Working Group has previously stated, the principle of legality requires that
laws be formulated with sufficient precision so that individuals can access and understand
the law and regulate their conduct accordingly.2 There must be substantive grounds for arrest
2 See, for example, opinions No. 41/2017, paras. 98–101 and No. 62/2018, paras. 57–59.
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or detention that are prescribed by law and “defined with sufficient precision to avoid overly
broad or arbitrary interpretation or application”. 3 The imprisonment of women’s rights
defenders under vague and over broad laws is a systematic occurrence in the Islamic Republic
of Iran.
46.
The principle of legality requires that laws be formulated with sufficient precision so
that individuals may have access to and understand the law and regulate their conduct
accordingly. It has been further noted that laws that are vaguely and broadly worded may
have a deterrent effect on the exercise of the rights to freedom of thought, conscience and
religion, freedom of opinion and expression, freedom of peaceful assembly and association,
participation in political and public affairs, equality and non-discrimination, and protection
of persons belonging to ethnic, religious or linguistic minorities, as they have the potential
for abuse, including the arbitrary deprivation of liberty.4
47.
In the case of Ms. Kord Afshari and Ms. Ahmadi, the Government has arbitrarily
detained them under the vague and overly broad national security provisions contained in
articles 500, 610 and 639 of the Islamic Penal Code. The Working Group previously found
that offences covered by these articles were “vaguely formulated” and contrary to the
principle of legality.5
48.
Article 19 (2) of the Covenant states that everyone shall have the right of freedom of
expression, including freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of choice. The right to freedom of expression also benefits from protection under
article 19 of the Universal Declaration of Human Rights.
49.
The Human Rights Committee has recognized freedom of expression as essential for
the full development of an individual and, in its general comment No. 34 (2011), described
this right as an indispensable element of democratic society and “the vehicle for the exchange
and development of opinions”. Included in this freedom, according to the Committee, is the
right of individuals to criticize or openly and publicly evaluate their governments without
fear of interference or punishment.
50.
Despite these protections, the authorities have arbitrarily detained, prosecuted and
convicted Ms. Kord Afshari and Ms. Ahmadi for exercising their right to freedom of
expression. The conviction of Ms. Kord Afshari resulted from her participation in peaceful
protests against compulsory veiling, which relates intimately to her political, moral and
religious beliefs. Similarly, Ms. Ahmadi’s conviction resulted from her participation in
peaceful protests against the detention of her daughter. Article 19 of the Covenant gives Ms.
Kord Afshari and Ms. Ahmadi the right to address this issue both in the private and public
arenas. Their arrest and imprisonment directly violate that right. Additionally, the videos Ms.
Kord Afshari posted on the Internet fall within the protection of article 19 of the Covenant.
51.
The Government has no legitimate grounds for restricting Ms. Kord Afshari or Ms.
Ahmadi’s right to freedom of expression because in none of their posts or actions did they
advocate violence or otherwise threaten the rights or reputations of others, national security,
public order, public health or morals. Even if the Government could establish such grounds,
it would need to show that the infringements of the right to freedom of expression were
necessary to protect one of the special interests set forth in article 19 (3) of the Covenant.
According to the case law of the Human Rights Committee, the State party must demonstrate
in a specific fashion the precise nature of the threat to any of the enumerated purposes.6 If the
Government had a legitimate reason for curtailing their right to freedom of expression, it was
obliged to articulate specific reasons why the restrictions were necessary. According to the
source, the authorities have not accomplished this.
52.
Ms. Kord Afshari’s participation in peaceful protests, as well as her social media
posts, in which she appears without a hijab, do not pose any risk to national security or public
order, health or morals, nor do they violate the rights of others. The authorities have convicted
3 Human Rights Committee, general comment No. 36 (2019), para 19.
4 Opinion No. 10/2018, para. 55.
5 A/HRC/WGAD/2021/15, paras. 64 and 65.
6 Human Rights Committee, Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.3.
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and detained Ms. Kord Afshari and her mother merely because they did not approve of their
attempts to connect with others with respect to their views. By doing this, the Government
has deprived Ms. Kord Afshari and Ms. Ahmadi of their fundamental right to freedom of
expression.
53.
In relation to category III, the source recalls violations of: (a) the right to the
presumption of innocence; (b) the right to a public hearing; and (c) and of the right to defence.
It further adds that Ms. Kord Afhari’s pretrial detention and the coercion used in order to
extract forced confession are properly viewed as violations of the prohibition of torture.
54.
In this context, the Government allegedly violated Ms. Kord Afshari’s right to a
presumption of innocence. Article 14 (2) of the Covenant guarantees that everyone charged
with a criminal offence shall have the right to be presumed innocent until proved guilty
according to law. Under article 372 of the Iranian Code of Criminal Procedure, judges are
prohibited from expressing any opinion that implies an accused person’s guilt or innocence
before the end of proceedings and verdict. The Iranian Constitution, in article 156, also notes
this right and reinforces the principles of judicial independence. As noted by the Human
Rights Committee, the requirement of judicial independence refers to the actual
independence of the judiciary from political interference by the executive branch and the
legislature.
55.
Ms. Kord Afshari has been denied her right to a presumption of innocence and her
case lacked impartiality based on the judge’s rulings. The demonstrated bias throughout the
arrest and detention of Ms. Kord Afshari continued on into her sentencing, given that she was
acquitted on all charges but later given an even harsher sentence without just cause.
56.
Moreover, the Government has violated Ms. Kord Afshari’s right to a fair and public
hearing. Article 14 (1) of the Covenant states, as an absolute requirement, that in the
determination of any criminal charge everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal.
57.
Article 10 of the Universal Declaration of Human Rights also guarantees individuals
the right to a fair and public hearing. As the Human Rights Committee stated in its general
comment No. 32 (2007), the publicity of hearings ensures the transparency of proceedings
and thus provides an important safeguard for the interest of the individual and of society at
large. The right to a public hearing must include a hearing open to the general public,
including the media, without restricting entrance to a limited number of individuals.
58.
It is submitted that Ms. Kord Afshari did not receive a fair and public trial. Moreover,
she was not allowed to meet with an attorney throughout her pretrial detention and she did
not have a chance to speak with her attorney in private before her trial began. Instead, she
reportedly only met her attorney in court in front of the judge. By convicting Ms. Kord
Afshari without a fair and public hearing, the Government has violated her right to a fair trial
in contravention of article 14 (1) of the Covenant and article 10 of the Universal Declaration
of Human Rights.
59.
Finally, also in relation to category III, the Government has violated Ms. Kord Afshari
and Ms. Ahmadi’s right to assistance of legal counsel. Article 14 (3) (b) and (d) of the
Covenant guarantee the rights of individuals to defend themselves in person or through legal
assistance of their own choosing and to have adequate time and facilities for the preparation
of their defence and to communicate with counsel of their choosing. To fulfil those
guarantees, the accused must also be granted prompt access to counsel. Furthermore, under
principle 18 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, the right of a detainee to communicate and consult with legal
counsel “may not be suspended or restricted save in exceptional circumstances” and, under
principle 15, “shall not be denied for more than a matter of days”. The inability to fully access
legal counsel effectively interferes with the right to assistance. The right of access to and
assistance of a lawyer is outlined in not only the Body of Principles but also in article 9 (4)
of the Covenant.
60.
Under Iranian criminal law, individuals charged with national security offences or
political crimes cannot freely choose their lawyers but must choose from a list approved by
the head of the judiciary. The source argues that this regulatory limitation to be assisted by
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counsel of one’s own choosing directly infringes on the rights of Ms. Kord Afshari and Ms.
Ahmadi under article 14 of the Covenant.
61.
Throughout their trials, sentencing and detention, Ms. Kord Afshari and Ms. Ahmadi
have had little to no access to their lawyers. Ms. Kord Afshari met with her lawyer for the
first time in front of her trial judge, after having been detained for almost two months, and
critical information about her case remained hidden. In November 2021, Ms. Ahmadi, while
held in detention in Evin prison, was charged and brought before court without proper notice
or access to her lawyer. Having had no time with or access to their attorneys, nor to the full
scope of information about their cases, both Ms. Kord Afshari and Ms. Ahmadi were
effectively denied the right to prepare a defence.
62.
Finally, the source submits that the detention of Ms. Kord Afshari and Ms. Ahmadi is
arbitrary under category V as it is based on their gender. The source states that the arrest or
detention of women on the basis of their sex or gender is prima facie discriminatory and
violates both the Covenant and Universal Declaration of Human Rights.
63.
In many aspects, women are treated differentially under Iranian law and in the judicial
system solely on account of their gender. Those who peacefully advocate for women’s rights
are often detained and imprisoned, where they endure harsh treatment.
64.
The source argues that factual circumstances of Ms. Kord Afshari and Ms Ahmadi’s
arrests, detention and sentencing show that they were targeted because of their gender and as
women’s rights defenders. There is a pattern of persecution of women’s rights defenders who
oppose the compulsory veiling laws of the Islamic Republic of Iran.
Response from the Government
65.
On 28 November 2022, the Working Group transmitted the allegations made by the
source to the Government through its regular communications procedure. The Working
Group requested the Government to provide, by 27 January 2023, detailed information about
the current situation of Ms. Afshari and Ms. Ahmadi and to clarify the legal provisions
justifying their continued detention.
66.
The Working Group regrets that the Government did not submit a response within the
established time frame.7 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. Consequently, the
Working Group cannot accept the reply as if it were presented within the time limit.
Discussion
67.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
68.
In determining whether the detention of Ms. Afshari and Ms. Ahmadi was 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 for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations.8 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
Category I
Arrest and detention
69.
The source argues that there is no legal basis on which to justify the deprivation of
liberty of Ms. Kord Afshari or Ms. Ahmadi. On 1 June 2019, Ms. Kord Afshari was arrested
7 The Government replied to the communication on 14 April 2023, after the adoption of the present
opinion.
8 A/HRC/19/57, para. 68.
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GE.23-09172
9
at her house. No warrant was presented to Ms. Kord Afshari or to her family and the legal
grounds for the arrest were also unknown. Conversely, it is reported that a warrant was
presented to Ms. Ahmadi.
70.
The Working Group recalls that for a deprivation of liberty to have a legal basis, it is
not sufficient for there to be a law that might authorize the arrest. The authorities must invoke
that legal basis and apply it to the circumstances of the case through an arrest warrant.9
International law 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 detention under articles 3 and 9 of the Universal Declaration of Human Rights,
article 9 (1) of the Covenant and principles 2, 4 and 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. The Working
Group therefore finds a violation of the rights of Ms. Kord Afshari under article 9 (1) and (2)
of the Covenant as she was not informed, at the time of arrest, of the reasons for the arrest.
71.
According to the source, Ms. Kord Afshari was not promptly brought before a judge
or other judicial officer. Instead, she was transferred twice following her arrest and pretrial
detention before her indictment on 7 August 2019. As the Working Group has reiterated in
its jurisprudence, and the Human Rights Committee has specified, 48 hours is ordinarily
sufficient to satisfy the requirement of bringing a detainee promptly before a judge; any delay
longer than 48 hours must remain absolutely exceptional and be justified under the
circumstances. 10 The Working Group therefore finds a violation of article 9 (3) of the
Covenant of the right to be brought promptly before a judge.
72.
Article 9 (3) of the Covenant further states that it is not to be the general rule that
persons awaiting trial are to be detained in custody. The Working Group recalls the view of
the Human Rights Committee, as well as its own recurrent findings, that pretrial detention:
must be the exception and not the rule; should be ordered for as short a time as possible;11
and must be based on an individualized determination that it is reasonable and necessary,
taking into account all the circumstances, for such purposes as to prevent flight, interference
with evidence or the recurrence of crime. Courts must examine whether alternatives to
pretrial detention would render detention unnecessary in the case in question.12 Moreover,
pretrial detention should not be mandatory for all defendants charged with a particular crime,
without regard to individual circumstances.13 In the case of Ms. Kord Afshari, the Working
Group concludes that an individualized determination of her circumstances was absent and
that, as a result, her detention lacked a legal basis and was ordered in violation of article 9
(3) of the Covenant. In reaching this conclusion, the Working Group notes that the
Government did not submit any information to suggest that such a determination took place
or to rebut the source’s submissions. Other international standards also require that non-
custodial measures be prioritized for women.14
73.
The Working Group also finds that Ms. Kord Afshari was not afforded the right to
bring proceedings before a court so that the court could decide without delay on the
lawfulness of her detention in accordance with article 9 (4) of the Covenant, articles 3, 8 and
9 of the Universal Declaration on Human Rights and principles 11, 32 and 37 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Judicial oversight of deprivation of liberty is a fundamental safeguard of personal liberty and
9 Opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 35/2018, No. 79/2018, and No.15/2021, para.
50.
10 Opinions No. 60/2020, and No. 66/2020, and Human Rights Committee, general comment No. 35
(2014), para. 33.
11 Opinions No. 57/2014, para. 26; No. 8/2020, para. 54; No. 5/2021, para. 43; and No. 6/2021, para. 50.
See also Human Rights Committee, general comment No. 35 (2014), para. 38; and A/HRC/19/57,
paras. 48–58.
12 A/HRC/19/57, paras. 48–58.
13 Human Rights Committee, general comment No. 35 (2014), para. 38.
14 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules), sect. III. See also A/HRC/48/55, annex, paras. 7–9; and opinions No.
40/2021, para. 82; and No. 54/2022, para. 75.
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is essential in ensuring that there is a legal basis for the detention.15 Her detention also
violated her rights under article 8 of the Universal Declaration on Human Rights and article
2 (3) of the Covenant as she was denied an effective remedy.
74.
The source also submits that, following her arrest, Ms. Kord Afshari’s whereabouts
were reportedly concealed from her family for 12 days, from 1 June 2019 to 13 June 2019,
during which time she had no contact with her family or lawyer. It was later revealed that she
was held in solitary confinement for 11 days either in the Vozara detention centre or in Evin
prison. In the absence of a timely response from the Government, the Working Group finds
to be credible the source’s allegation that Ms. Kord Afshari was deprived of her liberty
against her will, including through the involvement of government agents who did not
disclose her whereabouts. She was therefore subjected to enforced disappearance. 16 The
Working Group recalls that enforced disappearance constitutes an aggravated form of
arbitrary detention that has no legal basis and amounts to a violation of article 9 of the
Universal Declaration of Human Rights. 17
75.
She was also detained incommunicado during this period. The Working Group recalls
that, holding persons incommunicado violates their right to challenge the lawfulness of their
detention before a court under article 9 (3)18 and (4) of the Covenant.19 Incommunicado
detention, especially during the early stage of the investigation, is an environment conducive
to torture that may be used to coerce a detainee to admit guilt. In the case of Ms. Kord Afshari,
the source alleges that she was interrogated and asked to record videos condemning the
“White Wednesdays” initiative. She was also threatened with the arrest or killing of her
family members and with the public dissemination of personal pictures on her phone unless
she confessed. In particular, she was threatened with her mother’s arrest and was shown a
warrant for her mother’s arrest. As reported by the source, her mother was subsequently
arrested and detained.
76.
The Working Group recalls that prompt and regular access to family members, as well
as to independent medical personnel and lawyers, is an essential safeguard for the prevention
of torture as well as for protection against arbitrary detention. 20 It finds that Ms. Kord
Afshari’s right to have contact with the outside world under rules 43 (3) and 58 (1) of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules) and principles 15 and 19 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment have been contravened.
77.
The source argues that the Government arbitrarily detained Ms. Kord Afshari and Ms.
Ahmadi under vague and overly broad national security provisions in articles 500, 610 and
639 of the Islamic Penal Code. As noted by the source, the Working Group previously found
that offences covered by these articles were vaguely formulated and contrary to the principle
of legality.21 The source submits that the imprisonment of women’s rights defenders under
vague and over broad laws is a systematic occurrence in the Islamic Republic of Iran.
78.
The Working Group has raised the issue of prosecution under vague and overly broad
penal laws with the Government on several occasions,22 including charges of threatening
national security23 and spreading propaganda and insulting the sanctity of Islam.24 As the
15 Opinions No. 35/2018, para. 27; No. 83/2018, para. 47; No. 32/2019, para. 30; No. 33/2019, para. 50;
No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51; and No. 65/2019, para. 64.
16 A/HRC/16/48/Add.3, para. 21; opinions No. 41/2020, para. 61; and No. 37/2021, para. 65.
17 Human Rights Committee, general comment No. 35 (2014), para. 17; and opinion No. 37/2021, para.
65.
18 Human Rights Committee, general comment No. 35 (2014), para. 35.
19 Opinions No. 45/2017, No. 46/2017, No. 69/2017, No. 35/2018, No. 9/2019, No. 44/2019, and No.
45/2019.
20 Human Rights Committee, general comment No. 35 (2014), para. 58; opinions No. 34/2021, para. 77;
and No. 5/2022, para. 72.
21 Opinions No. 41/2017, paras. 98–101; No. 62/2018, paras. 57–59; No. 11/2021, para 67; and No.
46/2022, para. 63.
22 Opinions No. 55/2013, para. 14; No. 19/2018, para. 33; No. 52/2018, para. 78; No. 83/2018, para. 58;
and No. 29/2021, para. 52.
23 Opinions No. 9/2017, para. 23; No. 19/2018, para. 33; and No. 83/2018, para. 58.
24 Opinion No. 33/2019, para. 51.
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11
Working Group has previously stated, the principle of legality requires that laws be
formulated with sufficient precision so that the individual can access and understand the law
and regulate his or her conduct accordingly.25 The Working Group emphasizes that these
laws are incompatible with international human rights law. These laws cannot be considered
to fulfil the requirement of being prescribed by law and defined with sufficient precision due
to their vague and overly broad language.26 The detention and prosecution of Ms. Kord
Afshari and Ms. Ahmadi under these vague provisions are incompatible with article 11 (2)
of the Universal Declaration of Human Rights and articles 9 (1) and 15 (1) of the Covenant.
79.
For the above reasons, the Working Group considers that the deprivation of liberty of
Ms. Kord Afshari and Ms. Ahmadi lacks legal basis and is thus arbitrary, falling under
category I.
Category II
80.
The source submits and the Government has not contested that it has violated the right
to freedom of opinion and expression of Ms. Kord Afshari and Ms. Ahmadi as well as their
right to freedom of assembly and association as protected under articles 19, 21 and 22 of the
Covenant and articles 19 and 20 of the Universal Declaration of Human Rights.
81.
The Working Group recalls that freedom of opinion and freedom of expression, as
expressed in article 19 of the Covenant, are indispensable conditions for the full development
of the person; are essential for any society; and constitute the foundation stone for every free
and democratic society.27 The Human Rights Committee has further stated that freedom of
expression includes the right to seek, receive and impart information and ideas of all kinds,
regardless of frontiers. That right includes the expression and receipt of communications of
every form of idea and opinion capable of transmission to others, including political
opinions.28
82.
In the present case, while the Government of the Islamic Republic of Iran has had the
opportunity to explain the detention and subsequent charges against Ms. Kord Afshari and
Ms. Ahmadi, it has not. The source, on the other hand, has explained their arrest and detention
as being based on their activities as a women’s rights activists and on taking an active part in
expressing opinions against the compulsory wearing of the hijab in the Islamic Republic of
Iran. There is no information that their activities have been anything but peaceful nor is there
any indication that they incited others to violence.
83.
The Working Group has found that social media posts criticizing government policy,
such as the compulsory wearing of the hijab, fall within the right to freedom of expression.29
It is therefore clear to the Working Group that the basis for the arrest and subsequent
detention of Ms. Kord Afshari and Ms. Ahmadi was the exercise of their rights to freedom
of opinion and expression and freedom of assembly. While freedom of expression is not an
absolute right, the Human Rights Committee has stated, in its general comment No. 34
(2011), that when a State party imposes restrictions on the exercise of freedom of expression,
they may not put in jeopardy the right itself. Moreover, the Committee stipulated that article
19 (3) may never be invoked as a justification for the suppressing of any advocacy of multi-
party democracy, democratic tenets and human rights. The permitted restrictions on the right
to freedom of expression may relate either to respect of the rights or reputations of others or
to the protection of national security or of public order or of public health or morals. In
general comment No. 34 (2011), the Committee also stipulated that restrictions are not
allowed on grounds not specified in article 19 (3), even if such grounds would justify
restrictions to other rights protected in the Covenant. Restrictions must be applied only for
those purposes for which they were prescribed and must be directly related to the specific
need on which they are predicated. The Government did not present any argument to the
25 Opinions No. 41/2017, paras. 98–101; No. 62/2018, paras. 57–59; and No. 33/2019, para. 51. See
further Human Rights Committee, general comment No. 35 (2014), para. 22.
26 Human Rights Committee, general comment No. 34 (2011), para. 25.
27 Ibid., para. 2.
28 Ibid., para. 11.
29 Opinions No. 83/2018, paras. 33, 45 and 52–55; No. 33/2019, para. 21; No. 15/2021, para. 60; and
No. 54/2022, para. 82.
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12
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Working Group to invoke any of these limitations, nor did it demonstrate why bringing
charges against the women was a legitimate, necessary and proportionate response to their
peaceful online activities According to the Special Rapporteur on the situation of human
rights in the Islamic Republic of Iran, the judiciary imposed heavy prison sentences on
individuals who peacefully exercised their right to freedom of expression.30 The present case
indicates that this situation continues.
84.
The Working Group wishes to express its concern over the types of crimes that Ms.
Kord Afshari and Ms. Ahmadi have been charged with and appear ultimately to have been
sentenced for under vaguely formulated and overly broad national security offences:
gathering and collusion and internal and external security (art. 610); and spreading
propaganda against the State (art. 500). The vague and overly broad laws fall outside the
principles of legality and unduly limit universal freedoms. As discussed under category I, the
Working Group observes that vague and overly broad laws are consistently used in the
Islamic Republic of Iran to criminalize the exercise of the rights to freedom of expression,
association and peaceful assembly.31
85.
The Working Group reiterates that the principle of legality requires that laws be
formulated with sufficient precision so that individuals may have access to and understand
the laws and regulate their conduct accordingly.32 It further notes that laws that are vaguely
and broadly worded may have a deterrent effect on the exercise of the rights to freedom of
thought, conscience and religion, freedom of opinion and expression and freedom of peaceful
assembly and association.33
86.
The Working Group recalls the report of the Special Rapporteur on the situation of
human rights in the Islamic Republic of Iran, in which he highlighted the vague nature of
national security laws and their criminalization of free expression and free association.34
Specifically, the Special Rapporteur has cited articles 500 and 610 of the Penal Code as
vaguely defined and has stated that they contravene international human rights law and
unduly limit freedom of expression, association and assembly. The Special Rapporteur has
concluded that these laws allow for arbitrary application and the abuse of power.35 In the
present case, these articles were used to stifle the freedoms legitimately exercised by Ms.
Kord Afshari and Ms. Ahmadi.
87.
The Working Group consequently finds that the detention of Ms. Kord Afshari and
Ms. Ahmadi resulted from their legitimate exercise of freedom of opinion, expression and
assembly, as protected by articles 19, 21 and 22 of the Covenant and articles 19 and 20 of the
Universal Declaration of Human Rights and was therefore arbitrary, falling under category
II. The Working Group refers the case to the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression and the Special Rapporteur on
the rights to freedom of peaceful assembly and of association.
Category III
88.
Given its finding that the deprivation of liberty of Ms. Kord Afshari and Ms. Ahmadi
is arbitrary under category II, the Working Group wishes to emphasize that no trials should
have taken place. However, Ms. Kord Afshari was tried and sentenced to 15 years in prison
and Ms. Ahmadi is presently serving a 31-month sentence in Evin prison.
89.
The source argues that Ms. Kord Afshari has been denied her right to a presumption
of innocence and that her case lacked impartiality based on the judge’s rulings. The source
submits that the demonstrated bias throughout Ms. Kord Afshari’s proceedings continued on
into her sentencing, as she was acquitted on all charges but later given an even harsher
sentence without just cause or explanation. Specifically, on 17 March 2020, Ms. Kord
Afshari, while in detention at Evin prison, received notification from the Office of the
30 A/70/411, para. 23.
31 Opinions No. 19/2018, para. 33; and No. 85/2021, para. 41.
32 See, for example, opinions Nos. 41/2017, paras. 98–101; and No. 62/2018, paras. 57–59.
33 Opinions No. 10/2018, para. 55; and No. 15/2021, para. 65.
34 A/HRC/19/66, para. 13; and A/HRC/49/75, para. 22.
35 A/70/411, para. 23.
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13
Prosecutor informing her that she had been partially acquitted of the charges against her and
that her sentence would be reduced to 7 years and 6 months. The ruling was a correction of
what Branch 26 viewed as a judicial violation by the Tehran Revolutionary Court in its initial
sentencing. The Revolutionary Court had erred in giving Ms. Kord Afshari a sentence equal
to 150 per cent of her initial total sentence. However, on 26 May 2020, Ms. Kord Afshari
was informed that the Tehran Court of Appeals had changed its verdict and reverted back to
its original 15-year sentence. The Working Group is concerned by the inconsistent sentencing
that Ms. Kord Afshari has been subjected to. As the Working Group has previously stated,
the revolutionary courts do not meet international standards of independence or impartiality.36
The Working Group therefore finds a violation of article 14 (1) of the Covenant, as any person
facing criminal charges has a right to a hearing before a competent, independent and impartial
tribunal established by law.
90.
The presentation of Ms. Kord Afshari in the court while blindfolded and handcuffed
compounds this violation. According to general comment No. 32 (2007) of the Human Rights
Committee on the right to equality before court and tribunals and a fair trial, defendants
should not be presented to the court in a manner indicating that they may be dangerous
criminals as this violates the presumption of innocence.37 The Working Group has previously
found a violation of the right to be presumed innocent on the basis of facts that included
presentation of an applicant in handcuffs.38
91.
According to the source, the Government has violated the rights of Ms. Kord Afshari
and Ms. Ahmadi to assistance of the legal counsel. It is submitted that throughout their trials,
sentencing and detention, Ms. Kord Afshari and Ms. Ahmadi have had little to no access to
their lawyers. Ms. Kord Afshari met with her lawyer for the first time in front of her trial
judge, after having been detained for almost two months, and critical information about her
case remained hidden. In November 2021, Ms. Ahmadi was charged and brought before the
court at Evin prison without proper notice or access to her lawyer. Under Iranian criminal
procedural law, individuals charged with national security offences or political crimes cannot
freely choose their lawyer but must choose from a list approved by the head of the judiciary.
92.
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 the moment of
apprehension, and such access must be provided without delay. 39 The Working Group
considers that the failure to provide Ms. Kord Afshari and Ms. Ahmadi with access to counsel
from the outset seriously affected their ability to prepare their defence. The fact that both
women are facing serious national security charges made these violations of due process all
the more egregious. The Working Group notes that this case is another example of instances
when legal representation was denied or limited for individuals facing serious charges,
suggesting that there is a systemic failure to provide access to counsel during criminal
proceedings in the Islamic Republic of Iran.40
93.
In these circumstances, the Working Group finds that the rights of Ms. Kord Afshari
and Ms. Ahmadi to adequate time and facilities for the preparation of their defence and to
communicate with counsel of their choosing under article 14 (3) (b) of the Covenant and
principles 17 (1) and 18 (2) of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment was violated, as was their right to present an
effective defence through counsel of their choosing under article 14 (3) (d) of Covenant. The
Working Group finds that the means available to Ms. Kord Afshari and Ms. Ahmadi to
prepare their defence were deliberately restricted. Pursuant to article 14 (3) (b) of the
Covenant, any detainee must be given sufficient time and adequate facilities to prepare a
36 E/CN.4/2004/3/Add.2, para. 65 (1), opinions Nos. 19/2018, para. 34; No. 52/2018, para. 79 (f); No.
32/2019, para. 44; No. 33/2019, para. 67; No. 51/2019, para. 65; and No. 85/2021, para. 87. See also
CCPR/C/IRN/CO/3, paras. 21–22.
37 Human Rights Committee, general comment No. 32 (2007), para. 30; and opinion No. 5/2010, para.
30.
38 See opinion No. 5/2010.
39 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35. See also General Assembly resolution 73/181; CCPR/C/IRN/CO/3, para. 21;
and A/HRC/45/16, para. 51.
40 A/HRC/40/24, para. 13.
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defence. This provision is an important element of the guarantee of fair trial. Facilities are
only adequate if they include access to documents and other evidence, which reportedly was
denied in the case of Ms. Kord Afshari.41
94.
The source makes an uncontested submission that Ms. Kord Afshari was kept in
solitary confinement for 11 days during her pretrial detention. The Working Group notes that,
according to rule 45 of the Nelson Mandela Rules, the imposition of solitary confinement
must be accompanied by certain safeguards. Solitary confinement must only be used in
exceptional cases, as a last resort, for as short a time as possible, and must be subject to
independent review and authorized by a competent authority.
95.
The Working Group notes with grave concern the health issues of both individuals,
some of which were exacerbated or caused by the conditions of their detention. As a result,
both require consistent medical attention. In the light of the source’s detailed submissions
concerning the medical problems of both Ms. Kord Afshari and Ms. Ahmadi and the
difficulties they are facing in accessing treatment, the Working Group recalls that the denial
of medical care can constitute a form of torture.42 According to article 10 (1) of the Covenant,
all persons deprived of their liberty must be treated with humanity and dignity, including
appropriate medical care. 43 The Working Group refers the present case to the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
96.
The Working Group also notes with alarm the source’s statement that Ms. Kord
Afshari has been repeatedly attacked by prison guards and inmates and is being held along
with violent offenders. This concern was echoed by Secretary-General in his 2021 report on
the situation of human rights in the Islamic Republic of Iran, in which he expressed his
concern about reports of transfers of human rights defenders and political prisoners to the
wards of violent offenders, including Ms. Kord Afshari. 44
97.
The Working Group considers that these circumstance substantially undermined the
ability of Ms. Kord Afshari and Ms. Ahmadi to defend themselves in judicial proceedings.45
The Working Group finds that such treatment and conditions of detention are in violation of
rules 1, 13, 21, 22 (1) and 23 (1) of the Nelson Mandela Rules, have impacted the ability of
Ms. Kord Afshari and Ms. Ahmadi to prepare a defence, jeopardized the principle of equality
of both parties and violated their right to a fair trial.46
98.
In the light of these numerous violations, the Working Group concludes that the
breaches of the fair trial and due process rights of Ms. Kord Afshari and Ms. Ahmadi’s are
of such gravity as to give their deprivation of liberty an arbitrary character, falling within
category III.
Category V
99.
The present case concerns a mother and daughter who were arrested and detained due
to their engagement in public protest to express their opposition to the compulsory wearing
of the hijab in the Islamic Republic of Iran (“White Wednesdays” initiative). In this context,
the Working Group finds that Ms. Kord Afshari and Ms. Ahmadi were detained because of
their gender. As a women’s rights activists, they engaged in a gender-specific type of protest
by taking off their hijabs online.47
100.
The Working Group has previously considered cases involving women who have
expressed their opposition to the compulsory wearing of the hijab in the Islamic Republic of
41 Human Rights Committee, general comment No. 32 (2007), paras. 32–33.
42 A/HRC/38/36, para. 18; opinions No. 54/2022, para. 91; No. 20/2022, para. 104; and No. 46/2022,
para. 83.
43 Opinion No. 26/2017, para. 66.
44 A/76/268, para. 27.
45 A/HRC/30/37, paras. 12, 15, 67 and 71.
46 Opinions No. 92/2017, para. 56; No. 32/2019, para. 42; No. 47/2017, para. 28; No. 52/2018, para. 79
(j); and No. 53/2018, para. 77 (c). See also E/CN.4/2004/3/Add.3, para. 33.
47 See opinion No. 15/2021.
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15
Iran.48 In his 2021, the Special Rapporteur on the situation of human rights in the Islamic
Republic of Iran reported that the authorities continue to arrest and imprison women’s rights
advocates who have challenged compulsory veiling on national security and morality-based
charges.49 In 2022, the Acting High Commissioner of the Office of the United Nations High
Commissioner for Human Rights called on the Iranian authorities to stop targeting,
harassing and detaining women who do not abide by the rules pertaining to the wearing
of the hijab.50 In this regard, in its resolution S-35/1 on the deteriorating situation of human
rights in the Islamic Republic of Iran, especially with respect to women and children, the
Human Rights Council decided to establish an independent international fact-finding mission
to, inter alia, investigate alleged human rights violations in the Islamic Republic of Iran.
101.
In the light of the above, the Working Group finds that Ms. Kord Afshari and Ms.
Ahmadi were deprived of their liberty on discriminatory grounds, on the basis of their gender,
political or other opinions in opposing the compulsory veiling laws in the Islamic Republic
of Iran. Their deprivation of liberty violates their right to equality before the law and equal
protection of the law under articles 2 and 7 of the Universal Declaration of Human Rights
and articles 2 (1) and 26 of the Covenant and was arbitrary under category V.51 The Working
Group refers the case to the Special Rapporteur on the situation of human rights defenders,
the Special Rapporteur on violence against women and girls, its causes and consequences
and the Working Group on discrimination against women and girls for appropriate action.
Concluding remarks
102.
The Working Group considers that Ms. Kord Afshari and Ms. Ahmadi were deprived
of their liberty in violation of international human rights law and should never have been
subjected to any form of criminal punishment for their peaceful activities. The Working
Group echoes the call of several United Nations experts to Iranian authorities to heed the
legitimate demands of women who have peacefully protested for decades against the
compulsory hijab rules and want their fundamental human rights respected. 52
103.
The present case is one of a number of cases brought before the Working Group in
recent years concerning the arbitrary deprivation of liberty in the Islamic Republic of Iran.53
The Working Group is concerned that this indicates widespread or systemic arbitrary
detention in the country, which amounts to a serious violation of international law. The duty
to comply with international human rights standards rests with all State organs, officers and
agents. 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.54 The Working Group refers the
present case to the Special Rapporteur on the situation of human rights in the Islamic
Republic of Iran for appropriate action.
104.
The Working Group would welcome the opportunity to work constructively with the
Government to address arbitrary deprivation of liberty in the Islamic Republic of Iran. Given
48 See opinion No. 15/2021 and No. 54/2022.
49 A/HRC/46/50, para. 54.
50 https://www.ohchr.org/en/press-releases/2022/09/mahsa-amini-acting-un-human-rights-chief-urges-
impartial-probe-death-iran.
51 Opinions No. 75/2017, No. 79/2017, No. 35/2018, No. 36/2018, No. 45/2018, No. 46/2018, No.
9/2019, No. 44/2019, and No. 45/2019.
52 See https://www.ohchr.org/en/press-releases/2022/09/iran-un-experts-demand-accountability-death-
mahsa-amini-call-end-violence.
53 Opinions 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,
49/2017, No. 92/2017, No. 19/2018, No. 52/2018, No. 83/2018, No. 32/2019 and No. 33/2019.
54 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.
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.
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GE.23-09172
that a significant period of time has passed since its most recent country visit to the Islamic
Republic of Iran in February 2003, the Working Group considers that it is now an appropriate
time to conduct another visit. On 19 July 2019, the Working Group made a request to the
Government to conduct a country visit. The Working Group recalls that the Government
issued a standing invitation on 24 July 2002 to all thematic special procedure mandate holders
and awaits a positive response to its request to visit.
Disposition
105.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Saba Kord Afshari and Raheleh Ahmadi, being in
contravention of articles 2, 3, 7, 8, 9, 11, 19 and 20 of the Universal Declaration of
Human Rights and articles 9, 14, 19, 21, 22 and 26 of the International Covenant on
Civil and Political Right, is arbitrary and falls within categories I, II III and V.
106.
The Working Group requests the Government of the Islamic Republic of Iran to take
the steps necessary to remedy the situation of Ms. Kord Afshari and Ms. Ahmadi without
delay and to bring their situation 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.
107.
The Working Group considers that, taking into account all the circumstances of their
cases, the appropriate remedy would be to release Ms. Kord Afshari and Ms. Ahmadi
immediately and to accord them an enforceable right to compensation and other reparations,
in accordance with international law.
108.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Kord Afshari and Ms. Ahmadi and to take appropriate measures against those responsible for
the violation of their rights.
109.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on violence against women and girls, its causes
and consequences and the Special Rapporteur on the situation of human rights in the Islamic
Republic of Iran for appropriate action.
110.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
111.
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 Ms. Kord Afshari and Ms. Ahmadi have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to Ms. Kord
Afshari and Ms. Ahmadi;
(c)
Whether an investigation has been conducted into the violation of the rights of
Ms. Kord Afshari and Ms. Ahmadi 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.
112.
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.
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GE.23-09172
17
113.
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.
114.
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.55
[Adopted on 30 March 2023]
55 Human Rights Council resolution 51/8, paras. 6 and 9.