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III. The Legal Environment

Iranian Legal Instruments and International Law

Prohibitions on Freedom of Speech, Assembly, and Association

A set of laws within Iran’s Islamic Penal Code, entitled “Offenses against the National and International Security of the Country” (“Security Laws”), constitute the government’s primary legal tool for stifling dissent.¹ These Security Laws are so broadly articulated that the government is able to punish a range of peaceful activities and free expression with the legal cover that it is protecting national security. The provisions governing security offenses have been in place since 1996, and the government has frequently relied on them to arrest perceived critics. In 1999, for example, following student demonstrations that the government forcefully suppressed, the Judiciary used these laws to charge Manouchehr Mohamedi, Gholam Reza Mohajeri-Nejad, Rahim Reza'i, and Malous Radnia with “incitement” and “receiving funds from the United States.”²

The provisions of the Security Laws prohibit various forms of speech, assembly, and expression, allowing the state arbitrarily and subjectively to judge them as being “against” the nation or its security. Article 498 of the Security Laws criminalizes the establishment of any groups that aim to “disrupt national security.”³ Article 500 sets a sentence of three months to one year of imprisonment for anyone found guilty of “in any way advertising against the order of the Islamic Republic of Iran or advertising for the benefit of groups or institutions against the order.” Article 610 designates “gathering or colluding against the domestic or international security of the nation or commissioning such acts” as a crime punishable by two to five years of imprisonment.⁴ Article 618 criminalizes “disrupting the order and comfort and calm of the general public or preventing people from work.”⁵ In the words of an activist and law student in Iran who spoke to Human Rights Watch, “The articles on security are so general that you can detain anyone for anything and give him a prison sentence.”⁶

The government relies on other provisions in the Islamic Penal Code such as Articles 513 and 514, to silence perceived critics. Article 513 of the Islamic Penal Code criminalizes any “insults” to any of the “Islamic sanctities” or holy figures in Islam, while Article 514 criminalizes any “insults” directed at the first leader of the Islamic Republic of Iran, Ayatollah Khomeini, or at the current Leader. Neither article defines what constitutes “insults.”⁷

Iran’s Constitution provides little effective protection from such ambiguous and overbroad criminal laws. While the Constitution sets out basic rights to expression, assembly and association, these are invariably weakened by broadly defined exceptions. Article 24 of the constitution grants freedom of the press and publication “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.”⁸ Article 26 states that freedom of association is granted except in cases that “violate the principles of independence, freedom, national unity, the criteria of Islam, or the basis of the Islamic Republic.”⁹ Article 27 guarantees the right to peaceful assembly again with exception of cases deemed to be “detrimental to the fundamental principles of Islam.”¹⁰

The rights to freedom of expression, assembly and association provided under international human rights law may be limited within narrowly defined boundaries. However, the overly broad exceptions contained in the Iranian constitution, security laws, and the Islamic Penal Code more generally allow the government to suppress these rights beyond the limits set by international law.

A party to the ICCPR since 1975, Iran is obligated to abide by this framework. Article 21 of the ICCPR guarantees the right to peaceful assembly.¹¹ The article specifies that “no restrictions may be placed on the exercise of this right other than those imposed in conformity with the 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.”

The right to freedom of association is also well established in international law. The right to freedom of association may be restricted, but only on certain prescribed grounds and only when particular circumstances apply. According to Article 22 of the ICCPR:

(1) Everyone shall have the right to freedom of association with others, including to form and join trade unions for the protection of his interest;

(2) 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.¹²

According to Prof. Manfred Nowak in his authoritative analysis of the ICCPR, the restrictions specified in Article 22(2) should be interpreted narrowly. For example, terms such as “national security” and “public safety” refer to situations involving an immediate and violent threat to the nation. “Necessary” restrictions must be proportionate: that is, carefully balanced against the specific reason for the restriction being put in place.¹³

The UN Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has repeatedly highlighted the importance of such proportionality. In international law, “necessary” restrictions on freedom of assembly and association must be proportionate: that is, carefully balanced against the specific reason for the restriction being put in place.¹⁴

As the cases documented in this report reveal, the government’s criteria for denying the right to free assembly and association are neither proportionate nor narrow; rather, the government appears to consider any gathering that is critical of its policies as a threat to national and public security.

Similarly, the Iranian government uses its security laws and other sections in the Islamic Penal Code criminalizing speech that “insults” the “Islamic sanctities” or the Supreme Leader to restrict free speech beyond the exceptions allowed in international Law. Article 19 of the ICCPR, stipulates the right to hold and express opinions and to have access to information, and the conditions under which these rights may be restricted:

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.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall 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.

Similar to the restrictions it places on freedom of assembly, the government’s designation of speech that endangers national security amounts to expressions of criticism about current Iranian policies.¹⁵

Forbidding “insults” to the Supreme Leader and setting heavy punishments for so doing effectively prohibits any critical assessment of the Supreme Leader, the single most important and powerful position in the Iranian government.¹⁶ In the absence of a definition of what constitutes “insults,” both this article and the article criminalizing “insults” to the “Islamic sanctities” can be broadly applied to expressions of criticism about current Iranian policies.¹⁷

Restrictions on Detainee Rights

The government also relies on a number of security amendments for denying the rights of detainees during arrest, interrogation, and detention outlined in the constitution and Code of Criminal Procedure. The Iranian constitution and Codes of Criminal Procedure for the Courts of General Jurisdiction and Revolutionary Courts outline the rights of detainees and set clear limits for what is permissible during arrest, interrogation, and detention. (The Revolutionary Courts were established in 1979 with the jurisdiction to try offenses such as crimes against national security, slandering the founder of the Islamic Republic and the Supreme Leader, and smuggling narcotics.)¹⁸

Detention without charge

Article 32 of Iran’s constitution requires that “charges with the reasons for accusation must, without delay, be communicated and explained to the accused in writing, and a provisional dossier must be forwarded to the competent judicial authorities within a maximum of 24 hours.”¹⁹ Article 24 of the Code of Criminal Procedure also sets 24 hours as the limit within which authorities must provide a detainee with a written reason “in cases where the detainee must be kept in detention in order for authorities to continue their investigations.²⁰” Ordinarily, Iranian law requires a judge to authorize any pretrial detention and provide written charges within 24 hours of any arrest.²¹ Article 32 of the Code of Criminal Procedure states that a judge may issue temporary detention orders for cases involving offenses under the Security Laws, allowing authorities to hold detainees without charge beyond the 24-hour period.²² Article 33 of the code gives the accused the right to appeal his or her detention order within 10 days.²³ While Article 33 also states that the detainee’s case must be resolved in the course of one month, it also allows the judge to renew the temporary detention order.²⁴ The codes set no limits on how many times this order may be renewed. ²⁵

International human rights law does not specify a maximum allowable period of detention before trial. The ICCPR requires that “anyone arrested or detained on a criminal charge…shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subjected to guarantees to appear for trial.²⁶ For many of the cases covered in this report, detainees have been held in largely incommunicado detention during the pretrial investigation period. The government denied access to lawyers during this period in all of the cases covered in this report, and in some cases detainees, refused to allow little to any communication with family members or other detainees.

Police and judiciary security forces often hold people under investigation for suspected violation of the Security Laws, in pretrial investigative detention, for weeks and months without any criminal charge being brought against them and without the opportunity to appear before a judge to challenge their detention. Detainees who are released without having been charged often fear being re-arrested as a form of harassment. Several of the former detainees Human Rights Watch interviewed for this report claimed that this process is a tactic the government uses to create an atmosphere wherein activists fear that they may be re-arrested at any time. According to these activists, the government deliberately maintains open cases to intimidate its critics.

International human rights law prohibits arbitrary arrest.²⁷ An arrest or detention is arbitrary when not carried out in accordance with the law, or if the law allows for the arrest and detention of people for peacefully exercising their basic rights such as to freedom of expression, association, and assembly.²⁸

Article 9 of the ICCPR states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”²⁹ Thus, the security exceptions in Article 32 of the Code of Criminal Procedures and the ensuing articles allowing for the continued renewal of the order of temporary detention violate the ICCPR’s due process guarantees.

Absence of access to counsel

The right to counsel is protected under international law. The UN Working Group on Arbitrary Detention expressed concern in its June 2003 report about lack of access to counsel in Iran.³⁰ Article 35 of Iran’s Constitution guarantees the right to counsel.³¹ However, the Code of Criminal Procedure effectively undermines this right. Article 128 of the Code of Criminal Procedure states that during the investigative phase of a case, which may last up to a month (though a judge may renew this detention phase indefinitely), counsel may be denied “in cases where the issue has a secretive aspect or the judge believes that the presence of anyone other than the accused may lead to corruption.”³² The article also states that for crimes involving national security, “the presence of the lawyer during the investigative stage takes place with the permission of the court.”³³ According to Iranian legal expert Mehrangiz Kar, Article 128 effectively allows the judge absolute power to deny counsel during investigations and interrogations.³⁴

The Iranian government has also taken legislative measures to reaffirm the denial of the right to counsel at a judge’s discretion. Article 133 of the Parliament’s Fourth Five-Year Economic, Social and Cultural Development Plan confirms the right to counsel in all stages of the trial process but repeats almost verbatim the caveat in Article 128 that grants exception to “cases where the issue has a secretive aspect or when the judge deems that the presence of anyone other than the court would lead to corruption.”³⁵

The judiciary and police security forces routinely rely on these exceptions to deny counsel to political detainees held for suspected breach of the Security Laws. As a result, and as documented below, not only does the government subject these detainees to interrogation and detention for months on end, without charge, but they frequently do so without granting them the support, oversight, or assistance of counsel. Without the presence of counsel and the important measure of accountability such a third party’s presence provides, the investigations frequently involve physical and psychological abuse of detainees.

International law provides that access to counsel must be available soon after detention.³⁶ The Human Rights Committee has noted 48 hours as the limit during which a detainee may be held without access to a lawyer.³⁷ Exceptions in Iranian law that allow for the denial of counsel are in contravention of International standards. Article 14 of the ICCPR guarantees the right of the accused to prepare a defense.³⁸ Human Rights Committee General Comment 13 states that under the ICCPR,

The accused must have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing...[T]his subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures, or undue interference from any quarter.³⁹

The UN Basic Principles on the Role of Lawyers states, “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within hearing, of law enforcement officials.”⁴⁰ In laws that allow the government to deny certain detainees the right to counsel, and in practice regularly prohibiting security detainees the right to counsel, the Iranian government breaches its obligations under international law.

Incommunicado Detention

Detainees are commonly held for long periods either incommunicado or largely incommunicado. Incommunicado detention violates important rights of detainees, including access to family and legal counsel, to be promptly brought before a judge, and to be treated with humanity and dignity.⁴¹ Incommunicado detention also heightens concerns about torture and enforced disappearance. The UN Standard Minimum Rules for the Treatment of Prisoners provides that: “An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.”⁴²

The UN Human Rights Committee, in its General Comment on the prohibition against torture, urged states to take action against incommunicado detention.⁴³ The UN Commission on Human Rights repeatedly reaffirmed this position, stating in 2005 that “prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment.”⁴⁴

Safeguards against torture and ill-treatment not upheld

Iranian law prohibits torture and other mistreatment of all detainees during interrogation or in custody, and makes no exception for Security Law detainees or otherwise. Article 38 of Iran’s constitution states that “all forms of torture for the purpose of extracting confession or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is not permissible; and any testimony, confession, or oath obtained under duress is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law.”⁴⁵

In 2004, the head of Iran’s Judiciary, Ayatollah Shahrudi, enacted the Citizens Rights Law, which outlined detainee rights, reiterating some of these existing prohibitions.⁴⁶ The law also forbade certain additional specific practices, such as blindfolding during interrogation, humiliating detainees, and interrogating detainees while sitting behind the prisoner and/or otherwise obscuring the interrogator’s face from view. The Citizens Rights Laws helped reinforce the obligation of authorities to respect the basic rights of detainees in all circumstances, regardless of the grounds for their arrest.

Prohibitions on the abuse and mistreatment of detainees, for the purpose of obtaining confessions or for no purpose at all, are also firmly enshrined in international law.

The prohibition on the torture and other mistreatment of all persons in detention is enshrined in international treaty law and is considered a fundamental principle (peremptory norm) of customary law. Article 7 of the ICCPR states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 10 states that “all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.”⁴⁷ Article 14 protects the right of every person “[n]ot to be compelled to testify against himself or to confess guilt.⁴⁸”

Prohibitions on torture and other ill-treatment are also found in other international documents, such as the Universal Declaration of Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the UN Standard Minimum Rules for the Treatment of Prisoners.

Human Rights Watch has documented persistent violations of Iranian and international legal prohibitions against the mistreatment of detainees during interrogation and detention, including in Section 209 of Tehran’s Evin prison, which features in this report. According to what detainees have revealed in public documents and in statements made to Human Rights Watch, officials working with the Ministry of Information ignore, openly defy, or mock the prohibitions in Iran’s constitution, Code of Criminal Procedures, and Citizens Rights Law as well as Iran’s obligations under international law. Ministry of Information agents routinely blindfold detainees during interrogations that they carry out at all hours of the day and often for lengthy hours at a time. This report also documents allegations that Ministry of Information interrogators and guards have beaten and verbally humiliated detainees in order to obtain forced confessions.

The government has also defied Iran’s own laws and international law by frequently holding Security detainees in solitary confinement for extended periods of time. In the last two years, the government has detained Iranian students, women’s right’s activists, journalists, and independent scholars in solitary confinement, at times for periods exceeding 200 days. This inhumane practice gravely subjects detainees to lasting psychological damage

The laws governing the Prison Authority allow for disciplinary punishment of a maximum of 20 days in solitary confinement.⁴⁹ International penal standards dictate that solitary confinement should be imposed only for short periods, in an individualized fashion, under strict supervision (including by a physician) and only for legitimate penal reasons of discipline or preventive security. The UN Committee on Human Rights in a general comment stated that “prolonged solitary confinement of the detained or imprisoned person may amount to acts” of torture or cruel, inhuman or degrading treatment.⁵⁰

The UN Working Group on Arbitrary Detention noted in its 2004 report on Iran that:

[F]or the first time since its establishment, [the Working Group] has been confronted with a strategy of widespread use of solitary confinement for its own sake and not for traditional disciplinary purposes, as the Group noted during its truncated visit to sector 209 of Evin prison. This is not a matter of a few punishment cells, as exist in all prisons, but what is a “prison within a prison” fitted out for the systematic, large-scale abuse of solitary confinement, frequently for very long periods.

It appears to be an established fact that the use of this kind of detention has allowed the extraction of “confessions” followed by “public repentance” (on television); besides their degrading nature, such statements are manifestly inadmissible as evidence.⁵¹

The Working Group noted that “such absolute solitary confinement, when it is of a long duration, can be likened to inhuman treatment within the meaning of the Convention Against Torture.”⁵²

Administration of Detention Facilities

Iran’s National Prison Bylaws mandate the State Prisons and Security and Corrective Measures Organization (the “Prison Authority”) to oversee all of Iran’s prisons and correctional facilities. That organization itself falls under the direct supervision of the Judiciary.⁵³

The Iranian Judiciary is a complex institution that often reflects the highly factionalized power struggles within the Iranian government. Many of the activists and former detainees interviewed for this report told Human Rights Watch of their varied experiences with the judicial system. They described a Judiciary that is not monolithic, with branches and authorities that may act in contradiction with one another.

Human Rights Watch has in the past documented human rights violations originating with the Judiciary. While the current head of Iran’s Judiciary, Ayatollah Shahrudi, has in the last several years introduced some reforms, his initiatives have not fulfilled their potentials primarily because officials who defy Shahrudi’s orders and Iran’s laws are rarely held accountable. For instance, despite his 2002 order banning stoning as a form of punishment, court officials from the province of Qazvin stoned to death a man convicted of adultery, Jafar Kiani, in July 2007.⁵⁴ The same defiance and lack of accountability is evident with respect to Iran’s Citizens Rights Law, which Shahrudi enacted in 2004.⁵⁵ This report documents numerous instances where Ministry of Information agents have openly defied these laws without being held accountable by trial judges or other officials in the Judiciary. (The Citizens Rights Laws are covered in detail in Chapter III.)

Article 24 of the Prison Bylaws states that “judicial, executive, intelligence, police, or military organs are prohibited from having their own prisons and detention houses,” and that the Prison Authority must oversee all detention and correctional facilities. Despite these legal requirements, the government operates an undetermined number of detention facilities that fall outside the auspices of the Prisons and Security and Corrective Measures Organization.⁵⁶ These facilities are beyond any explicit legislative authorization or oversight.

Of the unauthorized detention centers that are known or suspected to exist in Iran, Section 209 of Evin penitentiary is the best known. The Evin prison complex itself, located in northern Tehran, is made up of several different detention units. In addition to the holding units, workshops, and recreational areas designed for use by the general prison populations, it contains buildings that are completely out of the control of the Prison Authority.⁵⁷ Instead, overlapping authorities from the Judiciary, the Iranian Revolutionary Guards Corps and the Ministry of Information variously use Section 209 to detain “security prisoners.” Section 209 is not the only unit in Evin Prison that fits this description. Evin Sections 240 and 325 Aleph are also known to function as detention and interrogation units for security detainees outside the purview of the Prison Authority. ⁵⁸ A former detainee described Section 240 as a four-story building with approximately 700 to 800 solitary cells.⁵⁹ The well-known journalist and political activist Akbar Ganji, who was detained in Section 240, has claimed that the Judiciary’s Security Services (Hefazat-e Etelaat-e Ghovey-e Ghazai-e), a force affiliated with intelligence units of the Judiciary, controls the first floor of the building, while the Police Security Forces occasionally use another section to detain and interrogate “security detainees.”⁶⁰

By operating outside the supervision of the Prison Authority, the Ministry of Information and police security forces are able to have control over all aspects of detention, such as interrogation times, methods, and detainees’ access to counsel, phone calls, and visits. It also allows them to keep the status of detainees secret in certain cases, such as during the investigative pretrial detention period when no official charges have been brought.

Under the administration of President Mohammad Khatami, Ahmadinajad’s immediate predecessor, Human Rights Watch documented how the Ministry of Information deployed security forces and interrogators under their control to intimidate critics with vague charges such as “disseminating lies,” “insulting the leader,” or “disturbing the public mind.” Authorities also occasionally brought security charges as punishment for peaceful expressions of dissent, most notably against students during protests in 1999 and 2003.⁶¹ Yet the period of the Khatami administration was one of considerable reform. In 2001 various officials, such as members of the Iranian parliament, attempted to investigate claims about the existence of illegal detention centers, and the parliamentarians asked Ministry of Information officials to allow them to inspect illegal detention units within Evin complex. The Ministry gave them only partial access to the prison, and did not allow them to view Section 209 or to meet with prisoners in that unit. ⁶²

Nevertheless, after their inspection, the MPs demanded that the government close down the unauthorized facilities inside Evin complex and elsewhere in the City of Tehran.⁶³ Other than reports of the closure of Towhid Prison, a detention center where the government had held and tortured a number of activists in connection with student protests in July 1999, the government did not heed the MPs’ calls.⁶⁴ But these calls for transparency and accountability were important steps towards officially recognizing the violations of human rights inside Iran’s illegal detention centers.

The Ahmadinejad administration seems to have negated these small gains. The rise in the number and rate of detentions in unauthorized detention centers indicate that far from abandoning these practices, the government is increasingly relying on arbitrary detention and abusive interrogation methods as part of a broad crackdown on activities and forms of expression that they deem to be critical of the ruling system. Moreover, Ali Akbar Mousavi Khoini, the MP who led the demands for visiting and closing the unauthorized detention centers, himself later spent more than 130 days in Section 209 after being arrested in June 2006 for attending a peaceful protest for women’s rights (see below). Much of that time was spent in solitary confinement.⁶⁵

Judging from the statements of former detainees who spoke to Human Rights Watch, the Ministry of Information, which runs Evin 209 and is responsible for all those detained and interrogated there, appears unmoved by appeals to Iran’s laws and international obligations. The actions and statements of the Ministry’s personnel (some of latter are reproduced in Chapter V, below) indicate that they consider themselves above the law, where they are accountable neither to the country’s legal codes nor to its citizens.