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A/HRC/WGAD/2024/53

Opinion No. 53/2024 concerning Toomaj Salehi (Islamic Republic of Iran)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-11-15 · en UN

Opinion; Subjects: IRAN (ISLAMIC REPUBLIC OF), ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.25-01605 (E) 190225 190225

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 101st session, 11–15 November 2024

Opinion No. 53/2024 concerning Toomaj Salehi

(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 30 July 2024 the Working Group

transmitted to the Government of the Islamic Republic of Iran a communication concerning

Toomaj Salehi. The Government submitted a late response on 2 October 2024. 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).

* Mumba Malila did not participate in the discussion of the case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/53

General Assembly

Distr.: General

19 February 2025

Original: English

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1.

Submissions

(a)

Communication from the source

(i)

Context

4.

Toomaj Salehi was born on 3 December 1990 and is a national of the Islamic Republic

of Iran. He is a hip-hop artist, a human rights activist and a voice critical of the Government

of the Islamic Republic of Iran, with 2.6 million followers on Instagram and

750,000 followers on X (formerly known as Twitter). He was arrested in 2019 and 2021 for

his music videos, in which he called for human rights to be upheld and criticized officials.

He has won numerous awards, including the Index on Censorship Freedom of Expression

Award and the Václav Havel Prize for Creative Dissent.

5.

In September 2022, Mr. Salehi released multiple songs about women’s rights,

including the song “Divination”, which became popular among protesters. He also called for

justice following the death in custody of Jina Mahsa Amini. On his social media accounts,

Mr. Salehi encouraged others to join the nationwide protests.

(ii)

Arrest and detention

6.

On 30 October 2022, days after he gave an interview to a foreign news channel and

shortly after the song “Divination” was released, 12 agents of the Ministry of Intelligence

reportedly violently arrested Mr. Salehi in the Province of Chaharmahal va Bakhtiari,

blindfolded him and took him to Isfahan Central Prison. Moreover, 50 agents raided his

home. State media released a photograph of Mr. Salehi in a blindfold, which appeared to be

stained with blood.

7.

Mr. Salehi was reportedly not presented with an arrest warrant, informed of the

reasons for his arrest, informed of his right to a lawyer or brought before a court. He was held

in solitary confinement.

8.

Mr. Salehi was reportedly tortured: his arm and leg were broken, his ribs were

fractured, he was left unconscious for three days and he could not open his eyes for two

weeks, and he was given adrenalin to keep him awake during further acts of torture. He was

also shot in the foot and sustained serious injuries to his eyes and face.

9.

On 27 November 2022, the Chief Justice of Isfahan Province informed the local news

outlet Mizan that Mr. Salehi had been charged with the following offences: (a) “corruption

on Earth”, which carries the death penalty (article 286 of the Islamic Penal Code);

(b) “spreading propaganda against the State” (article 500 of the Code); (c) “collaboration

with a hostile Government”, for the interview with the foreign news channel (article 508);

(d) “inciting people to commit murder and rioting”;2 (e) “disseminating false information”;3

(f) “establishing an illegal group with the intent to disrupt national security” (article 498);

(g) “insulting the leadership”; and (h) “enmity against God” (article 279).4

10.

Mr. Salehi was not allowed to contact his family until 38 days after his arrest and was

only allowed sporadic, unplanned contact during his detention. He was not allowed to choose

or contact a lawyer until 29 December 2022, 60 days after his arrest.

11.

From 18 June to 3 July 2023, Mr. Salehi was tried in closed court before Branch 1 of

the Revolutionary Court of Isfahan. Mr. Salehi’s lawyer was reportedly given only

30 minutes to explain the case to him before the trial began and was given only partial access

to Mr. Salehi’s case files. The judge who presided over Mr. Salehi’s case has reportedly been

sanctioned by the European Union and by Canada and the United Kingdom of Great Britain

and Northern Ireland for alleged human rights violations, including violations of the right to

freedom of expression, the right not to be subjected to cruel, inhuman or degrading treatment

or punishment, and the right to a fair trial.

2 Sometimes referred to as “inciting/inviting chaos/disorder”.

3 Sometimes referred to as “spreading lies through cyberspace”.

4 The offences referred to in subparas. (g) and (h) have not been widely reported, but it is known that,

on 21 January 2024, Mr. Salehi was facing 10 charges in total.

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12.

On 10 July 2023, Branch 1 of the Revolutionary Court of Isfahan convicted Mr. Salehi

as charged and sentenced him to six years and three months in prison. He also had his passport

cancelled, received a two-year travel ban and was prohibited from making art and music.

Mr. Salehi’s lawyer appealed the decision.

13.

On 18 November 2023, Branch 39 of the Supreme Court overturned the decision of

Branch 1 of the Isfahan Revolutionary Court and remanded the case to the lower court, citing

procedural errors and flaws in the original sentence. The Supreme Court also stated that the

maximum number of charges to be applied to a single case was three. Mr. Salehi was released

on bail that same day, after having been detained for 384 days, 252 of which had been spent

in solitary confinement.

14.

On 27 November 2023, Mr. Salehi posted a YouTube video detailing the torture to

which he had been subjected and how he had been forced to confess to his alleged crimes.

He rejected the video of his confession, describing it as doctored.

15.

On 30 November 2023, in Babol, armed plain-clothed agents stopped a car in which

Mr. Salehi was travelling and arrested him. The agents allegedly beat Mr. Salehi, causing

severe injuries to his eyes and face. He was taken to an undisclosed location, where he was

held incommunicado in solitary confinement. On 2 December 2023, Mr. Salehi was

transferred to Isfahan Central Prison.

16.

At the time of his arrest, Mr. Salehi was neither presented with an arrest warrant nor

informed of the reasons for his arrest. On 4 December 2023, he was finally allowed to contact

his family and his lawyer. His lawyer was given access to more of Mr. Salehi’s case files but

still did not have three of the four volumes on his client’s case. He was primarily

communicating with Mr. Salehi through prison officials.

17.

On 1 January 2024, Branch 1 of the Revolutionary Court of Isfahan reconvicted

Mr. Salehi of “spreading propaganda against the State”, “disseminating false information”

and “inciting people to commit acts of violence” and sentenced him to one year in prison,

cancellation of his passport for two years and mandatory participation in a behaviour

management course. These charges were in connection with the song “Divination” and the

protests and were the three charges that the Supreme Court had remanded to the lower court.

This was the first time that Mr. Salehi and his lawyer had been informed of the charges. They

were not adequately informed of the time of the trial and were therefore not present at the

hearing. Mr. Salehi’s lawyer wrote an open letter to the head of the judiciary questioning

whether the proceedings had been in conformity with criminal procedure laws.

18.

On 21 January 2024, at a hearing at Branch 1 of the Revolutionary Court of Isfahan,

Mr. Salehi was charged with the following two additional charges: (a) “armed and group

rebellion against the system”; and (b) “conspiracy to commit security-related offences”, for

the video he had posted in November 2023. After this hearing, Mr. Salehi was facing a total

of 10 ongoing charges.

19.

On 14 February 2024, the Court of Appeal dismissed Mr. Salehi’s appeal of the

one-year prison sentence imposed on 1 January 2024. On 18 March 2024, Mr. Salehi was

acquitted by Branch 1 of the Criminal Court of Isfahan Province of charges related to

“disseminating false information” and “inciting people to commit acts of violence”, in

connection with the video he published in November 2023.

20.

On 18 April 2024, Branch 1 of the Revolutionary Court of Isfahan reasserted its

jurisdiction, as is permitted by the parallel judicial system of the Islamic Republic of Iran.

On 23 April 2024, it sentenced Mr. Salehi to death on the charges of “participating in

rebellion against the State”, “assembly and collusion against national security”, and

“spreading propaganda against the State and incitement of the public to commit murder and

acts of violence”, all of which amounted to “corruption on Earth”. According to Branch 1 of

the Revolutionary Court of Isfahan, the decision of the Supreme Court had merely been

advisory. After the sentence was handed down, officials immediately confiscated

Mr. Salehi’s mobile phone and revoked his family visits.

21.

On 22 June 2024, the Supreme Court overturned Mr. Salehi’s death sentence, stating

that the sentence was excessive and in violation of law, and remanded the matter to the

Revolutionary Court of Isfahan for redetermination. On 8 July 2024, it was confirmed to

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Mr. Salehi’s family and his lawyer that the file had been received by Branch 5 of the

Revolutionary Court of Isfahan and that the matter was under consideration by a judge, who

would need to study the file and deliver a verdict.

22.

While awaiting the judge’s verdict, on 10 July 2024, Mr. Salehi was interrogated for

two hours. He was then informed that two new separate cases had been filed against him,

each containing two charges. The first, “spreading propaganda against the State and

incitement of the public to commit murder and acts of violence”, has been referred to the

Revolutionary Court; the second, “insulting sacred values and spreading falsehoods”, has

been referred to Criminal Court No. II.

23.

The above-mentioned fresh charges are related to the song “Typhus” and to content

published on Mr. Salehi’s personal web page, even though “Typhus” was released while he

was in detention.

24.

In mid-July 2024, the Revolutionary Court of Isfahan ordered Mr. Salehi’s release on

bail following the decision of the Supreme Court. However, as fresh charges had been filed

against him in the intervening period, he remains in custody on remand.

(iii)

Legal analysis

25.

The source submits that the deprivation of liberty of Mr. Salehi is arbitrary and falls

under categories I, II, III and V of the Working Group.

26.

In relation to category I, the source recalls that Mr. Salehi was apprehended in a

violent manner, without an arrest warrant, and held in detention without charge. It further

recalls that in order for an arrest and deprivation of liberty to have a legal basis, it is not

sufficient that there is a law that may authorize the arrest. The authorities must invoke that

legal basis and, if national law requires it, apply it to the circumstances of the case through

an arrest warrant.5 Article 9 (2) of the Covenant and principle 10 of the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment provide that

an arrested person must be informed, at the time of arrest, of the reason for the arrest and

must be promptly informed of any charges. Under article 9 (1) of the Covenant and principle

2 of the Body of Principles, any form of detention must be carried out in accordance with

such procedure as is established by law, while principle 4 provides that any detention must

be ordered by, or be subject to the effective control of, a judicial or other authority. Moreover,

detainees are not considered to have been “promptly” informed of the charges if there is a

delay of 36 hours after arrest before doing so.6

27.

After his arrest on 30 October 2022, Mr. Salehi was not informed of the charges

against him until 27 November 2022, almost a month later. On 30 November 2023,

Mr. Salehi was reportedly arrested by armed plain-clothed agents. He was informed of the

charges against him on 1 January 2024, when he was sentenced to one year in prison.

28.

On 10 July 2024, Mr. Salehi was informed that he faces four more charges. These

charges relate to the song “Typhus”, which was edited and published by other persons in

March 2024, during Mr. Salehi’s current period of detention. It is argued that these additional

charges are groundless and are being used to keep Mr. Salehi in custody.

29.

By arresting Mr. Salehi twice without presenting an arrest warrant or identifying some

other lawful basis for arrest, without informing him of the reasons for his arrest and without

promptly informing him of the charges against him after his arrest on 30 October 2022 and

on 30 November 2023, the authorities have violated articles 3 and 9 of the Universal

Declaration of Human Rights, article 9 (2) 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.

30.

Furthermore, the source recalls that Mr. Salehi was held incommunicado and is being

regularly denied contact with his lawyers and with his family. It recalls that incommunicado

detention lacks any valid legal basis and is inherently arbitrary, as it places the victim outside

5 Opinion No. 46/2018, para. 48.

6 Opinion No. 30/2017, para. 58.

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the protection of the law and deprives them of any legal safeguards. 7 Article 6 of the

Universal Declaration of Human Rights and article 16 of the Covenant guarantee that

everyone has the right to recognition everywhere as a person before the law. Under principle

16 (1) of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, a detainee’s right to notify or to have the authorities promptly

notify their family members is protected. Principle 15 provides that the denial of a detainee’s

communication with the outside world must be limited to “a matter of days”. Furthermore,

principle 19 requires that the detainee be allowed “adequate opportunity to communicate with

the outside world, subject to reasonable conditions and restrictions as specified by law or

lawful regulations”.

31.

The source therefore argues that the authorities have placed Mr. Salehi outside the

protection of the law, thus violating article 6 of the Universal Declaration of Human Rights,

article 16 of the Covenant and principles 15, 16 (1) and 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

32.

Moreover, the source submits that the authorities have denied Mr. Salehi his right to

habeas corpus. It recalls that article 9 (3) of the Covenant states that anyone arrested or

detained on a criminal charge must be brought promptly before a judge or other officer

authorized by law to exercise judicial power, while article 9 (4) guarantees to a detained

person the right to take proceedings before a court to challenge the lawfulness of the

detention. These rights are reinforced in principles 11 (1), 32 (1) and 37 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Moreover, article 8 of the Universal Declaration of Human Rights and article 2 (3) of the

Covenant guarantee the right to an effective remedy. According to the Human Rights

Committee, “any delay longer than 48 hours must remain absolutely exceptional and be

justified under the circumstances”.8 The Working Group has previously held that a delay of

eight days violated article 9 (3) and (4) of the Covenant.9

33.

The source notes that Mr. Salehi was first arrested on 30 October 2022, but that he did

not appear in court until 18 June 2023 – almost eight months later. After his rearrest on

30 November 2023, he appeared before the court for the first time at his trial on

1 January 2024 – more than a month after his arrest. During both periods of detention,

Mr. Salehi was not allowed to appear before a court to challenge his detention.

34.

Regarding the most recent new charges, it is submitted that Mr. Salehi has again been

denied his right to appear promptly before a judicial authority and his right to challenge his

detention. He was informed of the charges against him on 10 July 2024 and, to date, has had

no opportunity to challenge the lawfulness of his detention before a court. The situation is

particularly pressing as the new charges are now the sole reason for his current detention, as

his release on bail has been ordered in the primary proceedings.

35.

The source therefore concludes that, by depriving Mr. Salehi of his right to a prompt

appearance before a judicial authority and his right to challenge his detention, the authorities

have violated article 8 of the Universal Declaration of Human Rights, articles 2 (3) and 9 (3)

and (4) of the Covenant and principles 11 (1), 32 (1) and 37 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

36.

Furthermore, the source asserts a breach of the principle of legality, enshrined in

article 11 (2) of the Universal Declaration of Human Rights and article 15 (1) of the

Covenant, which requires that laws be formulated with sufficient precision so that individuals

can gain access to and understand the law and regulate their conduct accordingly.10

37.

The application of vague and overly broad provisions in Mr. Salehi’s case does not

provide any legal basis to justify his deprivation of liberty. Firstly, the source recalls that,

according to article 286 of the Islamic Penal Code of the Islamic Republic of Iran, the offence

of “corruption on Earth” refers to crimes against the physical integrity of the person, crimes

against national security, arson or destruction, or promoting corruption or prostitution. Under

7 Opinions No. 33/2020, para. 58; and No. 86/2020, para. 63.

8 Human Rights Committee, general comment No. 35 (2014), para. 33.

9 Opinion No. 52/2015, para. 46.

10 Opinions No. 37/2020, para 60; and No. 41/2017, paras. 98–101.

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that article, it must be established that there was an intention to severely disrupt the public

order of the country, cause extensive damage to the physical integrity of individuals or private

or public property, or promote corruption or prostitution on a large scale. None of the crimes

referred to under article 286 clarify what specific actions would result in the overall charge

of “corruption on Earth”. The variety of actions by dissidents who have been charged with

this crime shows that it is used to simply silence them.

38.

Furthermore, under article 500 of the Islamic Penal Code, on “spreading propaganda

against the State”, it is stated that anyone who engages in any type of propaganda against the

Islamic Republic of Iran or in support of opposition groups and associations will be sentenced

to between three months and one year in prison. It is submitted that this provision is similarly

vague, as it does not include a definition of opposition groups or associations and it is unclear

what the word “propaganda” covers. The Working Group has previously held that the vague

and overly broad provisions relating to “corruption on Earth” and “spreading propaganda

against the State” violate the principle of legality.11

39.

The new charges include two offences of “spreading propaganda against the State and

incitement of the public to commit murder and acts of violence”, which have been referred

to the Revolutionary Court, and two offences of “insulting sacred values and spreading

falsehoods”, which have been referred to Criminal Court No. II. These terms are also vague;

a person cannot determine whether his or her conduct falls within the scope of the offences.

40.

The source also recalls that Mr. Salehi was charged in November 2022 with a series

of offences, including “corruption on Earth”, “spreading propaganda against the State”,

“inciting people to commit murder and rioting” and “disseminating false information”. The

most recent new charges filed against him, in July 2024, are similarly vague, including

“spreading propaganda against the State and incitement of the public to commit murder and

acts of violence” and “insulting sacred values and spreading falsehoods”.

41.

By prosecuting Mr. Salehi for matters for which he has already been prosecuted,

without any clear explanation of the new evidential basis for these fresh charges, the

authorities have violated the principle enshrined in article 14 (7) of the Covenant, rendering

Mr. Salehi’s continued detention on these new charges arbitrary under category I.

42.

In relation to category II, the source argues that Mr. Salehi’s detentions resulted from

his legitimate exercise of the right to freedom of expression. Firstly, he released a song in

support of protestors, following the death of Ms. Amini. Second, Mr. Salehi encouraged

people to join the protests and advocated democracy and human rights. Third, he was

interviewed by a foreign media outlet.

43.

The source submits that these three actions resulted in Mr. Salehi’s first period of

detention, beginning in November 2022, which was clearly linked to his freedom of

expression, namely his music and lyrics, spoken words, advocacy and a media interview.

Even the act of being interviewed by a media outlet based outside the Islamic Republic of

Iran was described in the charges as “collaboration with a hostile Government”.

44.

After he was released on bail in November 2023, Mr. Salehi posted a video detailing

the torture he had endured, which resulted in his second detention. The charge of “armed and

group rebellion against the system” for the video is a particularly egregious one, as Mr. Salehi

had no co-defendant for a group rebellion and he did not use any violence. Ultimately, the

songs, social media posts and video were forms of Mr. Salehi’s exercise of his freedom of

expression.

45.

The new charges laid in July 2024 also relate in part to a song, “Typhus”, and in part

to Mr. Salehi’s posts on social media.

46.

None of the grounds enumerated in article 29 (2) of the Universal Declaration of

Human Rights or article 19 (3) of the Covenant justify restrictions on freedom of political

opinion. Mr. Salehi’s deprivation of liberty is not proportionate, reasonable or necessary. His

deprivation of liberty adds to the chilling effect on dissidents, civil society and artists, posing

a severe threat to the peaceful exercise of the right to freedom of expression.

11 Opinion No. 32/2019, para. 31.

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47.

The Working Group has stated that it will conduct a “particularly intense review”

when known human rights defenders are detained.12 This approach is particularly important,

as Governments may seek to prosecute human rights defenders on the basis of spurious

charges in an effort to silence and punish them for exercising their right to freedom of

expression.

48.

The source reiterates that Mr. Salehi is an artist and a human rights activist. Even

before the nationwide protests in 2022, Mr. Salehi had called for democracy, resulting in his

arrest and detention in 2019 and 2021. As he is a known human rights activist, a particularly

intense review should be undertaken.

49.

The source concludes that Mr. Salehi’s deprivation of liberty resulted from the

exercise of his right to freedom of expression, in violation of article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant.

50.

In relation to category III, the source recalls that, on all three occasions when

Mr. Salehi was arrested, he was not presented with a warrant and was not informed at the

time of his arrest of the reasons for his arrest. Moreover, the two arrests that were conducted

when he was at liberty, namely those of 30 October 2022 and 30 November 2023, were

violent and therefore not in accordance with the law. After the first arrest, on

30 October 2022, Mr. Salehi was not informed of the charges against him until

27 November 2022. After the second arrest, on 30 November 2023, Mr. Salehi was not

informed of the charges against him until 1 January 2024.

51.

Furthermore, the source reiterates that during all arrests and periods of detention,

Mr. Salehi was unable to communicate with his family or his lawyer for a prolonged period.

During his detention beginning on 30 October 2022, Mr. Salehi was unable to communicate

with his family for 38 days and unable to contact a lawyer for 60 days; during the second

detention, beginning on 30 November 2023, Mr. Salehi was unable to contact his family or

his lawyer until 4 December 2023.

52.

The source concludes that the authorities violated article 5 of the Universal

Declaration of Human Rights and principles 15, 16 (1) and 19 of the Body of Principles for

the Protection of All Persons under Any Form of Detention or Imprisonment. Mr. Salehi’s

right to a fair trial was therefore violated.

53.

The source recalls that Mr. Salehi has been denied the right to habeas corpus, in

violation of article 8 of the Universal Declaration of Human Rights, articles 2 (3) and 9 (3)

and (4) of the Covenant and principles 11 (1), 32 (1) and 37 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment. The generally

accepted deadline for prompt appearance before a judge is 48 hours.13

54.

Mr. Salehi was arrested on 30 October 2022 but did not appear before a court until his

trial before the Revolutionary Court of Isfahan, on 18 June 2023. Similarly, Mr. Salehi was

rearrested on 30 November 2023 and did not appear before a court until 1 January 2024. On

each of these occasions, when Mr. Salehi was detained, he was denied access to his lawyer

and, consequently, any opportunity to challenge his detention.

55.

According to the source, the third occasion on which he was charged, in July 2024,

follows this familiar pattern. Although he was informed of the charges against him on

10 July 2024, at the time of the communication he had reportedly not yet appeared before a

judicial authority and had been denied his right to challenge his detention.

56.

Mr. Salehi has been denied the right to legal assistance and adequate time and facilities

for the preparation of his defence, in violation of article 11 (1) of the Universal Declaration

of Human Rights and article 14 (3) (b) of the Covenant, as well as principles 15 and 17 of

the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment and principle 7 of the Basic Principles on the Role of Lawyers.

57.

After his arrest on 30 October 2022, Mr. Salehi was not informed of his right to a

lawyer and was denied access to a lawyer, which allegedly enabled his torture while detained.

12 Opinion No. 62/2012, para. 39.

13 Basic Principles on the Role of Lawyers, principle 7.

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Mr. Salehi was given access to his lawyer on 18 June 2023, 30 minutes before his trial before

Branch 1 of the Revolutionary Court of Isfahan, leaving no time to prepare for his defence

or for his lawyer to explain the charges against him.

58.

After his arrest on 30 November 2023, Mr. Salehi was again denied access to his

lawyer. While his lawyer has had more access to Mr. Salehi’s case files during this second

period of detention, his communication with Mr. Salehi is still sporadic. Mr. Salehi and his

lawyer were not adequately informed of the trial of 1 January 2024 before Branch 1 of the

Revolutionary Court of Isfahan and could not attend the hearing. Mr. Salehi’s lawyer still has

access to only one of the four volumes of his client’s case file. These failures reportedly

deprived Mr. Salehi of adequate time and facilities to prepare for his defence.

59.

As for the charges laid against Mr. Salehi in July 2024, Mr. Salehi has again been

denied effective access to his lawyers. Throughout his time in detention, Mr. Salehi has been

unable to communicate directly with his lawyers. He has been able to communicate with

them only through telephone calls with his family. Mr. Salehi’s communications with his

family are subject to regular disruptions, including earlier in July 2024, when he was refused

any calls, which has also had an impact on his ability to communicate with his lawyers.

60.

The source further notes that Mr. Salehi has been subjected to torture and other cruel,

inhuman or degrading treatment, prolonged solitary confinement and inhuman interrogation

methods, in violation of article 5 of the Universal Declaration of Human Rights, article 7 of

the Covenant, principles 1 and 6 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment and rules 43 and 44 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

61.

According to the source, Mr. Salehi was held incommunicado for 38 days during his

first period of detention. In addition, during his second period of detention Mr. Salehi was

held incommunicado for three days, from 30 November to 2 December 2023, when he was

transferred to Isfahan Central Prison. During the first period of detention, Mr. Salehi’s limbs

were broken and he was given adrenalin to keep him awake to sustain more torture.

62.

After Mr. Salehi was arrested on 30 October 2022, he was reportedly held

incommunicado without the opportunity to communicate with his family for 38 days or his

lawyer for 60 days. He was held in solitary confinement for 252 days, greatly exceeding the

15-day limit established by rules 43 and 44 of the Nelson Mandela Rules. During that time,

he was subjected to torture designed to elicit a false confession. In a YouTube video he posted

online after his release on 18 November 2023, Mr. Salehi described his prolonged torture and

how his interrogators had broken his arm and leg. The officials released a video of

Mr. Salehi’s confession, which arguably had been doctored. Mr. Salehi was also subjected to

torture: reports indicate that he was shot in the foot and that his face and eyes were severely

damaged.

63.

Furthermore, in the context of category III, the source submits that Mr. Salehi has

been denied his right to a fair and public trial before an independent court.

64.

In relation to his first arrest, Mr. Salehi’s trial before Branch 1 of the Revolutionary

Court of Isfahan, held from 18 June to 3 July 2023, was conducted behind closed doors.

Regarding the second arrest, Mr. Salehi’s trial, held on 1 January 2024, was carried out

without notifying him or his lawyer.

65.

According to the source, the judge who presided over Mr. Salehi’s case in Branch 1

of the Revolutionary Court of Isfahan is not impartial. He has reportedly been sanctioned by

the European Union and by Canada and the United Kingdom for alleged human rights

violations. It is further reported that the judge has been at Branch 1 of the Revolutionary

Court of Isfahan since 2011, and that he has previously sentenced to death protestors who

participated in the 2022 nationwide protests on charges of “enmity against God”. Moreover,

in November 2022, United Nations experts stated that the Islamic Revolutionary Courts

“have been used for years to sentence political activists, journalists, lawyers and human rights

defenders through grossly unfair summary trials”.14 The experts also stated that the judicial

14 Office of the United Nations High Commissioner for Human Rights, “Iran: stop sentencing peaceful

protesters to death, say UN experts”, press release, 11 November 2022.

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9

system “relies heavily on forced confessions extracted through torture and other forms of

coercion and duress to prove guilt”.15

66.

The source submits that by trying Mr. Salehi before courts that are not independent

and impartial, the authorities have violated article 10 of the Universal Declaration of Human

Rights, article 14 (1) of the Covenant and principle 36 (1) of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

67.

In relation to category III, the source maintains that there has been a denial of the right

to trial within a reasonable time frame and without undue delay. According to the source,

while Mr. Salehi should not have been arrested or charged in the first place, he was detained

without trial for 231 days before his first trial began: he was arrested on 30 October 2022 and

did not appear before a court until 18 June 2023.

68.

By not promptly trying Mr. Salehi after all of his arrests, the authorities have

reportedly violated articles 9 (3) and 14 (3) (c) of the Covenant and principle 38 of the Body

of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Mr. Salehi is now purportedly being detained on the basis of two new sets of charges. The

new charges were contrived following a partially favourable Supreme Court decision and the

possibility of Mr. Salehi’s release on bail. If the new charges relate to a song that was released

in March 2024, it is unclear to the source why officials waited to act until July 2024, days

before the reconsideration of his case by the Revolutionary Court following the Supreme

Court decision.

69.

Lastly, in relation to category V, the source maintains that Mr. Salehi has been

discriminated against because of the political opinions he has expressed through his

profession as a rapper. His songs are critical of the authorities and reportedly call for human

rights and democracy. In 2021, Mr. Salehi was detained for another song, “Mouse Hole”.

During the protests of 2022, he was again detained and since then has allegedly been

subjected to judicial harassment. He was targeted because of his political opinions and

because he had called for people to join him in the protests. The source submits that the

authorities consistently target outspoken human rights defenders and dissidents. This has

been noted in previous jurisprudence of the Working Group, wherein the Working Group

stated that it had noticed the pattern that had emerged in the treatment by Iranian officials of

the subject of the opinion on account of her work as a human rights defender.16

70.

The source maintains that the reasons for Mr. Salehi’s deprivation of liberty, his

treatment and the nature of the courts that convicted him indicate that he was targeted and

discriminated against because of his human rights activism. It states that by discriminating

against Mr. Salehi, the authorities have violated articles 2 and 7 of the Universal Declaration

of Human Rights, articles 2 (1) and 26 of the Covenant and principle 5 (1) of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

(b)

Response from the Government

71.

On 30 July 2024, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group requested

the Government to provide, by 30 September 2024, detailed information about the current

situation of Mr. Salehi. The Working Group also requested the Government to clarify the

legal provisions justifying his detention, as well as their compatibility with the obligations of

the Government of the Islamic Republic of Iran under international human rights law and, in

particular, with regard to the treaties ratified by the State. Moreover, the Working Group

called upon the Government to ensure Mr. Salehi’s physical and mental integrity.

72.

The Government submitted its response on 2 October 2024, which was after the

deadline. The Government did not request an extension of the time limit for its reply, as is

provided for in the Working Group’s methods of work. Consequently, the Working Group

cannot accept the reply as if it had been presented within the time limit.

15 Ibid.

16 Opinion No. 48/2017, para. 49.

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2.

Discussion

73.

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.

74.

In determining whether Mr. Salehi’s detention is arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international law constituting arbitrary

detention, the burden of proof should be understood to rest upon the Government if it wishes

to refute the allegations.17 In the present case, the Government has chosen not to challenge in

a timely fashion the prima facie credible allegations made by the source.

75.

The source has argued that Mr. Salehi’s detention is arbitrary and falls under

categories I, II, III and V of the Working Group. The Working Group will proceed to examine

the submissions under each of the categories in turn.

(a)

Category I

76.

According to the information provided by the source, during his arrests on

30 October 2022 and 30 November 2023, Mr. Salehi was not informed of the reasons for his

arrest, nor did the authorities present an arrest or search warrant.

77.

The Working Group recalls that article 9 (2) of the Covenant provides that anyone

who is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to

be promptly informed of any charges against them. The Working Group has previously stated

that in order for a deprivation of liberty to have a legal basis, it is not sufficient that there is

a law that may authorize the arrest. The authorities must invoke that legal basis and apply it

to the circumstances of the case.18 This is typically done through an arrest warrant or arrest

order (or equivalent document).19 The reasons for arrest must be provided immediately upon

arrest 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.20

78.

In the absence of any information to the contrary, the Working Group finds that

Mr. Salehi was arrested without a warrant and that no reasons for his detention were given

by the detaining authority. The Working Group therefore concludes that there has been a

breach of article 9 (1) and (2) of the Covenant.

79.

The Working Group further notes the uncontested submissions by the source that

Mr. Salehi was held at an unknown location and prevented from any contact with the outside

world during at least his first 38 days in detention. He was further held incommunicado for

three days after his second arrest. This amounted to enforced disappearance in breach of

article 9 (1) of the Covenant. Enforced disappearances are prohibited by international law

and constitute a particularly aggravated form of arbitrary detention.21 Preventing Mr. Salehi

from notifying his family of his whereabouts and the authorities’ failure to inform his family

of his whereabouts is a violation of principle 19 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment.

80.

The Working Group further notes that Mr. Salehi was not brought promptly before a

judge, within 48 hours of his arrest, in accordance with the international standard, as required

17 A/HRC/19/57, para. 68.

18 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.

19 Human Rights Committee, general comment No. 35 (2014), para. 23; and opinions No. 88/2017,

para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. See also art. 14 (1) of the Arab Charter on

Human Rights. In cases of arrests made in flagrante delicto, the opportunity to obtain a warrant will

typically not be available.

20 Human Rights Committee, general comment No. 35 (2014), para. 25; opinion No. 30/2017, paras. 58

and 59; and opinion No. 85/2021, para. 69.

21 Human Rights Committee, general comment No. 35 (2014), para. 17. See also opinions No. 5/2020,

No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 25/2021, No. 38/2021, No. 20/2023 and

No. 36/2023.

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by article 9 (3) of the Covenant.22 This was not denied by the Government in its late reply.

The Working Group thus finds that this provision was violated in the present case.23

81.

Furthermore, the Working Group considers that Mr. Salehi had the right to appear in

person at hearings held to review the legality of his detention. As the Human Rights

Committee has stated, the physical presence of detainees at hearings might serve the inquiry

into the lawfulness of detention and serves as a safeguard for the right to security of person.24

This right, as submitted by the source and not refuted by the Government, was denied to

Mr. Salehi, in breach of article 9 (4) of the Covenant.

82.

Accordingly, the Working Group considers that the arrests and detention of Mr. Salehi

were arbitrary under category I.

(b)

Category II

83.

The source argues that Mr. Salehi’s deprivation of liberty qualifies as arbitrary under

category II because it stems from his legitimate exercise of freedom of expression.

Mr. Salehi’s activities – releasing music in support of protestors, advocating democracy and

human rights on social media, and sharing his experiences of torture after detention – are

protected forms of expression. His detentions, according to the source, were in direct

response to these acts, through which he criticized government actions and called for reform.

84.

In examining the present case, the Working Group has had regard to other reliable

information which supports the source’s claims. In particular, the Working Group refers to

its previous opinions concerning individual communications received from various sources

on arbitrary arrests and detention in the Islamic Republic of Iran.25 In these cases, findings

have been made about the arbitrary deprivation of liberty of journalists and bloggers who

peacefully exercised their rights under the Universal Declaration of Human Rights and the

Covenant, demonstrating that this is a systemic problem in the administration of criminal

justice in the Islamic Republic of Iran. Furthermore, in his report of February 2024, the

Special Rapporteur on the situation of human rights in the Islamic Republic of Iran noted that

increasing limitations had been placed upon the rights to freedom of opinion and expression,

affecting various groups, including journalists, artists and human rights defenders.26

85.

The Working Group recalls that, under article 19 (3) of the Covenant, any restriction

imposed on the right to freedom of expression must satisfy three requirements, namely the

restriction must be provided by law, be designed to achieve a legitimate aim (i.e. the

protection of national security, public order, public health or morals) and be imposed in

accordance with the requirements of necessity and proportionality.27

86.

The Working Group considers that Mr. Salehi’s prosecution and conviction fail to

satisfy the above-mentioned requirements. In order for a legislative provision to be

characterized as a “law” within the meaning of article 19 (3) of the Covenant, it must be

formulated with sufficient precision to enable an individual to regulate his or her conduct

accordingly.28 It appears that the charges of “propaganda against the State”, “insulting sacred

values and spreading falsehoods” or “corruption on Earth” are impermissibly vague and

22 See, for example, opinions No. 57/2016, paras. 110 and 111; No. 1/2018, para. 60; No. 2/2018,

para. 49; No. 20/2018, paras. 64 and 69; No. 83/2018, para. 47; No. 11/2019, para. 66; No. 26/2019,

para. 89; No. 30/2019, para. 30; No. 36/2019, para. 36; No. 42/2019, para. 49; No. 51/2019, para 59;

No. 56/2019, para. 80; No. 76/2019, para. 38; and No. 82/2019, para. 76. See also Human Rights

Committee, general comment No. 35 (2014), para. 33.

23 Opinions No. 14/2015, para. 28; No. 5/2020, para. 72; No. 41/2020, para. 60; and No. 52/2023,

para. 60; and A/HRC/45/16/Add.1, para. 35.

24 Human Rights Committee, general comment No. 35 (2014), paras. 34 and 42. See also principles

32 (2) and 37 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.

25 See, for example, opinions No. 20/2022, No. 46/2022, No. 54/2022, No. 82/2022 and No. 21/2023.

26 A/HRC/55/62, para. 28.

27 Human Rights Committee, general comment No. 34 (2011), paras. 21–36.

28 Ibid., para. 25.

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overly broad and thus incompatible with article 19 (3) of the Covenant, as was also noted by

the Special Rapporteur.29

87.

In its late reply, the Government has provided no specific information as to how

Mr. Salehi presented a threat to any of the legitimate interests enumerated in article 19 (3) of

the Covenant. Concerning the proportionality of interference, the Working Group refers to

the findings of the Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression in his research report on artistic freedom of expression, in which

he recalled that article 19 (2) of the Covenant expressly provides that the right includes

expression “in the form of art”, and that, as such, artistic work product should be considered

to constitute protected opinion not subject to interference. 30 Mr. Salehi was persecuted

primarily for his music, songs and social media posts, as they represent his exercise of free

expression in support of human rights, democracy and social justice, and in particular for his

song “Divination”, released following Jina Mahsa Amini’s death, his song “Typhus” and

further social media posts, in which he challenged systemic issues in the Islamic Republic of

Iran. As stipulated by the Human Rights Council in its resolution 12/16, the following types

of expression should never be subject to restrictions: (a) discussion of government policies

and political debate; (b) reporting on human rights, government activities and corruption in

government; (c) engaging in election campaigns, peaceful demonstrations or political

activities, including for peace or democracy; and (d) expression of opinion and dissent.31

88.

The Working Group considers that article 19 of the Covenant encompasses artistic

freedom, allowing individuals to engage in the public sharing of cultural, political and social

information and ideas of all types. This means that artists – by creating, performing,

distributing or displaying their works – play a vital role in the exchange of ideas and

viewpoints that underpins a democratic society. Therefore, any restriction on an artist’s, or

anyone’s, right to employ this expressive form must be reviewed with particular scrutiny.

89.

In the present case, as the source submits, the use of the above-mentioned charges in

response to Mr. Salehi’s artistic expressions of dissent underscores the excessive and punitive

nature of the Government’s actions. Mr. Salehi’s repeated detentions and prosecutions are

disproportionate measures and cannot be justified as the least intrusive means of achieving

any legitimate protective purpose. Furthermore, article 19 (3) of the Covenant should not

serve as a tool for Governments to silence advocates of democracy and human rights. The

Working Group reiterates its stance, as held in numerous similar cases,32 that any form of

retaliation against individuals, including arbitrary detention, for exercising their freedom of

opinion or expression is fundamentally incompatible with article 19 of the Covenant.

90.

The Working Group concludes that Mr. Salehi’s detention resulted from the peaceful

exercise of his right to freedom of opinion and expression and was contrary to article 19 of

the Universal Declaration of Human Rights and article 19 of the Covenant. For these reasons,

the Working Group finds that it is arbitrary under category II.

(c)

Category III

91.

The source has alleged that several violations of Mr. Salehi’s right to due process

amount to an arbitrary deprivation of liberty that qualifies it as falling under category III.

Given its finding that the deprivation of liberty of Mr. Salehi is arbitrary under category II,

the Working Group wishes to emphasize that no trial should have been held. Nevertheless,

given that a trial was held and that proceedings are still pending, the Working Group will

proceed with an examination of the source’s submissions concerning the denial of fair trial

rights.

92.

Firstly, the source alleges that Mr. Salehi’s right to have access to counsel was

violated, as he did not have access to his lawyer for the first 60 days of his detention and his

further communications with his lawyer were sporadic and not in person but through

telephone conversations. According to principle 2 of the Basic Principles on the Role of

29 A/HRC/55/62, para. 10.

30 A/HRC/44/49/Add.2, paras. 4 and 12.

31 See also A/HRC/14/23, para. 81 (i).

32 See, among many others, recent opinions No. 78/2022 and No. 22/2023.

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Lawyers, a detainee should have effective access to counsel at the earliest appropriate time.

The Working Group considers that this principle is fundamentally related to the principle of

equality of arms, as enshrined in article 2 of the Universal Declaration of Human Rights.

Moreover, non-impeded legal assistance was crucial for Mr. Salehi, who was facing the

irreversible sentence of death, in order to ensure that all his rights were respected, every

argument was heard and every avenue of fairness was explored in the pursuit of justice. As

recalled by the Human Rights Committee in its general comment No. 36 (2019), and in

accordance with principle 3 of the United Nations Principles and Guidelines on Access to

Legal Aid in Criminal Justice Systems, States should ensure that anyone who is detained,

arrested, suspected of or charged with a criminal offence punishable by a term of

imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice

process. This principle was not respected in the present case.

93.

In addition, the Working Group recalls that article 14 (3) (b) of the Covenant

guarantees the right of all persons charged with a criminal offence to have adequate time and

facilities for the preparation of their defence and to communicate with counsel of their own

choosing. In the present case, the Working Group finds that Mr. Salehi’s right to legal counsel

at a critical stage of the criminal proceedings was violated. It also finds that the absence of a

lawyer at a critical stage of the criminal proceedings exposed Mr. Salehi to a risk of coercion.

94.

The Working Group is further concerned that Mr. Salehi, when granted access to his

lawyer, communicated with him via telephone, which did not guarantee confidentiality. It

reiterates that respect for lawyer-client confidentiality is an important part of the defence

rights. The right of a defendant to have private discussions with their legal counsel, without

surveillance, constitutes one of the fundamental aspects of a fair trial. If a lawyer is incapable

of conferring with his or her client and obtaining confidential instructions, the legal assistance

significantly loses its purpose. In this respect, the Human Rights Committee has stressed that

counsel should be able to meet their clients in private and to communicate with the accused

in conditions that fully respect the confidentiality of their communications, and furthermore,

lawyers should be able to advise persons charged with a criminal offence, without

restrictions, influence, pressure or undue interference from any quarter. 33 The Working

Group therefore concludes that Mr. Salehi’s right guaranteed by article 14 (3) (b) of the

Covenant was violated.

95.

The Working Group expresses its gravest concern about the unrebutted allegations of

the torture of Mr. Salehi, which appear to constitute violations of articles 5 and 25 (1) of the

Universal Declaration of Human Rights and article 7 and 10 (1) of the Covenant. According

to the information from the source, Mr. Salehi was subjected to torture during his arrest and

the period of his enforced disappearance. In the Working Group’s view, not only is torture a

grave violation of human rights per se, but it also undermines the ability of persons to defend

themselves and hinders their exercise of the right to a fair trial, especially in the light of the

right to be presumed innocent under article 14 (2) of the Covenant. The Working Group

further notes that the use of confessions extracted through ill-treatment that is tantamount if

not equivalent to torture is a breach of article 14 (3) (g) of the Covenant and may also

constitute a violation of the State’s obligations under article 15 of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.34 Furthermore,

the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment specifically prohibits taking undue advantage of the situation of detention to

compel confession or incriminating statements.

96.

The source submits that the presiding judge in the case against Mr. Salehi had been

sanctioned by the European Union and by Canada and the United Kingdom for alleged human

rights violations. The Working Group has already found in a different case that this fact in

itself creates a strong presumption that an individual has not been tried by an independent

and impartial tribunal.35 In this respect, it notes that Mr. Salehi was tried by a Revolutionary

Court, the continuing operation of which was criticized by the Special Rapporteur on the

situation of human rights in the Islamic Republic of Iran, who noted that such courts have

33 Human Rights Committee, general comment No. 32 (2007), para. 34.

34 Ibid., para. 49.

35 Opinion No. 3/2024, para. 98.

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consistently violated fundamental human rights, including due process rights and the right to

a fair trial, and are responsible for issuing the vast majority of death penalty sentences,

including thousands of summary and arbitrary executions. 36 Further noting the Special

Rapporteur’s finding about “the absence of an independent judiciary, its consistent

politicization, particularly through the use of the revolutionary courts”, 37 given the

submissions of the source, and in the absence of any submission by the Government to the

contrary, the Working Group concludes that Mr. Salehi was not tried by an independent and

impartial tribunal, contrary to article 10 of the Universal Declaration of Human Rights and

article 14 (1) of the Covenant.

97.

Finally, article 14 (1) of the Covenant provides that, in the determination of any

criminal charge, “everyone shall be entitled to a fair and public hearing”. Article 10 of the

Universal Declaration of Human Rights similarly guarantees the right to a public hearing. As

the Human Rights Committee explained 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.”38 Although the right to a

public hearing is not absolute, it may be restricted only “for reasons of morals, public order

(ordre public) or national security in a democratic society, or when the interest of the private

lives of the parties so requires, or to the extent strictly necessary in the opinion of the court

in special circumstances where publicity would be prejudicial to the interests of justice”, and,

in the absence of such exceptional circumstances, “a hearing must be open to the general

public, including members of the media”, without entrance being limited to a select group of

people.39

98.

It is alleged by the source that the authorities closed Mr. Salehi’s trial to the public

and the media in violation of the above-mentioned provisions. Given that no explanation for

these restrictions was provided by the Government in its late response, the Working Group

finds that the hearing of Mr. Salehi’s case behind closed doors violated his rights under

article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant.

Accordingly, the Working Group finds that the violations of Mr. Salehi’s right to due process

were of such gravity as to give his detention an arbitrary character under category III.

(d)

Category V

99.

The source submits that the present case joins a series of cases concerning outspoken

human rights defenders and dissidents in the Islamic Republic of Iran and that Mr. Salehi has

been discriminated against because of the political opinions that he expressed through his

occupation as a rapper, in violation of articles 2 and 7 of the Universal Declaration of Human

Rights and articles 2 (1) and 26 of the Covenant.

100.

In its findings under category II, the Working Group has concluded that Mr. Salehi’s

detention resulted from his legitimate exercise of freedom of expression. When a detention

results from the active exercise of civil and political rights, there is a strong presumption that

the detention also constitutes a violation of international law on the grounds of discrimination

on the basis of political or other views. Accordingly, the Working Group will examine the

allegations under category V.

101.

The Working Group recalls several non-cumulative indicators that serve to establish

the discriminatory nature of detention on the basis of actual or perceived political opinion.

These include the following: (a) the deprivation of liberty was part of a pattern of persecution

against the detained person, including, for example, through previous detention; (b) other

persons with similarly distinguishing characteristics have also been persecuted; or (c) the

context suggests that the authorities have detained a person on discriminatory grounds or to

prevent them from exercising their human rights.40

36 A/HRC/55/62, para. 69.

37 Ibid., para. 88.

38 Human Rights Committee, general comment No. 32 (2007), para. 28.

39 Ibid., para 29.

40 A/HRC/36/37, para. 48.

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102.

With regard to the above-mentioned non-cumulative indicators, the Working Group

relies on the submissions of the source that the detention of those who criticize the

Government constitutes State retaliation against them for their opinions and constitutes

politically motivated persecution. In his 2019 report on the situation of human rights in the

Islamic Republic of Iran, the Secretary-General urged the Government to ensure that human

rights defenders and lawyers, journalists, writers, labour rights activists and

environmentalists could perform their roles safely and freely, without fear of harassment,

arrest, detention and prosecution; and to release all those detained for legitimately and

peacefully exercising their freedoms of opinion and expression.41 Furthermore, in the 2024

report of the Special Rapporteur on the situation of human rights in the Islamic Republic of

Iran, the Special Rapporteur observed that the arrest and detention of human rights defenders

was extremely distressing, that the Iranian authorities continued to repress and target human

rights defenders and that increasing limitations had been placed upon the rights to freedom

of opinion and expression, affecting various groups, including journalists, artists and human

rights defenders.42

103.

The Working Group thus observes a clear, discriminatory pattern of attitude displayed

by the Iranian authorities towards Mr. Salehi on the basis of his political opinion and of him

acting as an artist expressing opposing views. Noting all of the above and especially its

findings under category II, the Working Group finds that the arrest and detention of

Mr. Salehi was based on discrimination resulting from his political opinion and his status as

a dissenting artist, in violation of article 26 of the Covenant. His detention is therefore

arbitrary under category V.

(e)

Concluding remarks

104.

The present case is one of a number of cases brought before the Working Group in

recent years concerning arbitrary deprivation of liberty in the Islamic Republic of Iran.43 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. 44 It refers the present case to the Special

Rapporteur on the situation of human rights in the Islamic Republic of Iran, for appropriate

action.

105.

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

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. The Working Group made a request to the

Government on 19 July 2019 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.

41 A/74/273, paras. 27, 28 and 79.

42 A/HRC/55/62, paras. 2, 28 and 47.

43 See, for example, 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, No. 49/2017, No. 92/2017, No. 19/2018, No. 52/2018, No. 83/2018,

No. 32/2019, No. 33/2019, No. 20/2022, No. 46/2022, No. 54/2022, No. 82/2022, No. 21/2023 and

No. 37/2023.

44 A/HRC/13/42, para. 30. See also opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011,

para. 16; No. 39/2011, para. 17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19

and 22; No. 50/2012, para. 27; No. 60/2012, para. 21; No. 9/2013, para. 40; No. 34/2013, paras. 31,

33 and 35; No. 35/2013, paras. 33, 35 and 37; No. 36/2013, paras. 32, 34 and 36; No. 48/2013,

para. 14; No. 22/2014, para. 25; No. 27/2014, para. 32; No. 34/2014, para. 34; No. 35/2014, para. 19;

No. 36/2014, para. 21; No. 44/2016, para. 37; No. 60/2016, para. 27; No. 32/2017, para. 40;

No. 33/2017, para. 102; No. 36/2017, para. 110; No. 51/2017, para. 57; and No. 56/2017, para. 72.

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GE.25-01605

3.

Disposition

106.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Toomaj Salehi, being in contravention of articles

2, 3, 7, 9, 10 and 19 of the Universal Declaration of Human Rights and articles 7, 9,

14, 19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary

and falls within categories I, II, III and V.

107.

The Working Group requests the Government of the Islamic Republic of Iran to take

the steps necessary to remedy the situation of Mr. Salehi 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.

108.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Salehi immediately and accord him an

enforceable right to compensation and other reparations, in accordance with international

law.

109.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Salehi and to take appropriate measures against those responsible for the violation of his

rights.

110.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the situation of human rights in the

Islamic Republic of Iran, for appropriate action.

111.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

4.

Follow-up procedure

112.

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. Salehi has been released unconditionally and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Salehi;

(c)

Whether an investigation has been conducted into the violation of Mr. Salehi’s

rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Islamic Republic of Iran with its international

obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

113.

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.

114.

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 of any failure to take action.

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17

115.

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.45

[Adopted on 11 November 2024]

45 Human Rights Council resolution 51/8, paras. 6 and 9.