VI. LEGAL BACKGROUND

International Law
Under international human rights law, the Iranian government is obliged to uphold basic freedoms of expression and association, and to protect against arbitrary detention and unfair trials. Since 1975, Iran has been a party to the International Covenant on Civil and Political Rights (ICCPR), which codifies these fundamental rights. In its efforts to stifle dissent, Iranian authorities have violated international human rights law through its enforcement of abusive laws, the use of courts that do not meet international standards, and various other practices.

International human rights law safeguards the right to freedom of expression.

Article 19 of the ICCPR, ratified by Iran in 1975, reads in part:

1) Everyone shall have the right to hold opinions without interference.

2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The ICCPR requires that restrictions on expression "will only be such as are provided by law and are necessary: a) For respect of the rights or reputations of others; b) For the protection of national security or of public order (ordre public), or of public health or morals (article 19 (3))." The prosecutions of attendees at an international conference in Berlin, for example, constitute a violation of Article 19 (2) of the ICCPR, which protects the right to "seek, receive and impart information of all kinds, regardless of frontiers."

The U.N. Human Rights Committee, which oversees the compliance of ratifying states to the ICCPR, has noted that the manner in which a state defines and restricts expression determines the extent to which individuals enjoy that right: "It is the interplay between the principle of freedom of expression and such limitations and restrictions which determine the actual scope of the individual's right... [W]hen a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."¹⁶ Several of the restrictions on freedom of expression in Iranian law and practice create unacceptable infringements of the right to freedom of expression.

Many independent activists have been subjected to arbitrary arrest or detention in violation of Article 9 of the ICCPR. Detainees have been held indefinitely in incommunicado detention, and their right to habeas corpus denied, in clear violation of Article 9 (4) of the Covenant, that states:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Legal actions against activists, journalists, and others who have been detained or imprisoned also violate international standards. Article 14(1) of the ICCPR provides that "in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

The denial of access to legal counsel during the pre-trial detention period is a violation of Article 14 (3) of the Covenant, which states:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality:

(. . .)
(b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.

Article 22 of the ICCPR protects the right to freedom of association. Restrictions imposed on the Freedom Movement and on other independent political groupings exceed those permitted under Article 22 (2) of the Covenant. This states (in relevant part):

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Domestic Law
Basic civil liberties and political rights, including freedom of expression and freedom of association, are not adequately protected in Iranian law. For instance, Article 24 of the constitution, establishing the right to freedom of expression, qualifies that right by wide-ranging restrictions on its exercise:

Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law.

The 1985 press law, which details the legal procedures for dealing with offenses by the press, narrowly defines the role of the media in violation of the right to freedom of expression. Article 6 of the law establishes the purpose of the press:

a) To enlighten public opinion and raise public knowledge and understanding....;
b) To advance the objectives set forth in the Constitution of the Islamic Republic of Iran;
c) To strive to eliminate false and divisive social boundaries and to avoid setting different social groups and classes against each other by classifying them on the basis of ethnicity, language, mores, and local customs;
d) To struggle against the manifestations of the colonialist culture (such as profligacy, love of luxury, rejection of religiosity, propagation of prostitution);
e) To maintain and strengthen the policy of "neither east nor west."¹⁷

In addition, the law prohibits the press from engaging in discourse "harmful to the principles of Islam" (mabani va ahkam-e Islami) or to the "public interest" (houghugh omumi). Article 6 of the Press Law is extremely imprecise. Phrases such as "harmful to the principles of Islam" give little meaningful guidance to journalists and editors, but provide officials with ample opportunity to censor, restrict, and initiate legal proceedings.

The 1985 press law stipulates that in exceptional circumstances the Supervisory Press Board within the Ministry of Information is empowered to close newspapers or magazines by administrative order. The two instances specified in the law are insulting the Leader of the Islamic Republic or the "recognized sources of emulation" (marja-e taghlid), and repeatedly insulting public morals. The powers of the Supervisory Press Board are not clearly defined in the press law. Its administrative powers to close newspapers and detain journalists and editors have been used extensively against the independent media.

The Supervisory Press Board, dominated by members of the executive branch of government is neither independent nor impartial. Its quasi-judicial powers to determine violations of the Press Law run counter to Article 14 (1) of the ICCPR, which provides that in a suit at law, "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

The Press Law ostensibly forbids censorship while broadly establishing a basis for the harsh punishment of content deemed inappropriate. Article 4 declares that "no official or unofficial authority has the right to exert pressure on the press for the publication of any material or article, or to attempt to censor or control the press." But Article 6 forbids, among other things, publishing material which "creates divisions among the different strata of society," or "harms the bases of the Islamic Republic." Such sweeping language is open to abuse. As described above, Article 6 of the law sets broadly defined restraints for the press, using sweeping language, that has been manipulated to target criticism of government policies, and diverse views on social and religious subjects. Such limitation of speech is in contravention of international law.

The authorities have on occasion employed other courts, such as Revolutionary Courts, to prosecute publishers, editors and journalists for their press activities. The Revolutionary Courts, established ostensibly as a temporary measure in 1979, remain a fixture of the Islamic Republic's justice system. They are empowered to try "any offense against internal or external security." Procedures in such courts fall far short of international standards: defendants may be held indefinitely in incommunicado pre-trial detention, proceedings are held in secret, and the defendant has no right of access to legal counsel. This is also in apparent contravention of the constitution's article 168, which states that "political and press offenses will be tried openly and in the presence of a jury, in courts of justice."¹⁸ A second exceptional court, the Special Court for the Clergy, has also been used in some freedom of expression and press-related cases where the defendants have been Muslim clerics. This court also offers few safeguards to the defendant and its proceedings are usually held in secret.

In recent newspaper closure cases the Press Court has justified its actions as being in accordance with Article 156 (5) of the constitution (which empowers the Press Court to take "appropriate measures in order to prevent crime") and by reference to Articles 12 and 13 of the Precautionary Measures Law of the Iranian penal law (which empowers courts to order the seizure of "instruments used for committing crimes"). The use of these provisions farther undermines the protection for press freedom provided for in Iranian law. On March 18, 2001 the Ministry of Culture and Islamic Guidance issued a statement regretting the use of these provisions by the Judiciary in its actions against the press.¹⁹

The right to freedom of association is also strictly qualified under the constitution. Article 26 of the constitution authorizes the "formation of parties, societies, political or professional associations, as well as religious societies, whether Islamic or pertaining to one of the recognized religious minorities," but with the proviso that "they do not violate to principles of independence, freedom, national unity, the criteria of Islam, or the basis of the Islamic Republic." This falls short of the right to freedom of association set forth in Article 22 of the ICCPR.

¹⁶ United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.2, March 29, 1996, p. 11.

¹⁷ Press Law, article 6.

¹⁸ Article 168 then states that "the manner of the selection of the jury, its powers, and the definition of political offenses, will be determined by law in accordance with Islamic criteria.

¹⁹ Islamic Republic News Agency, Mar. 18, 2001, www.irna.com.