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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11
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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13
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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15
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.