The views and opinions stated in this report do not necessarily reflect the views of the organizers
of the workshop. This paper is not, and does not purport to be, fully exhaustive with regard to
conditions in the country surveyed, or conclusive as to the merits of any particular claim to refugee
status or asylum.
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57
Iran
Country Report
Table of Contents
I. Background
I.1. Political background
Introductory remarks
Conservative backlash
Establishment of the Assembly of Experts
Legislative elections
Economic situation
2001 presidential elections
I.2. Political power structure
Leader of the Revolution (Rahbar)
Expediency Council (Majma-e Tashkhis-e Maslehat-e Nezam)
Council of Guardians (Shora-e Negahban)
Committee for the Supervision of the Implementation of the Constitution
Assembly of Experts (Majles-e Khebregan)
I.3. Security forces
I.4. The Judiciary
Independence of the Judiciary
Judges
Impartiality: the separation of powers
Constitutional requirement to give a ruling and personal liability
The impact on the administration of justice
Lawyers
Limits placed on the training and licensing of lawyers
Limits placed on the Bar Associations
Membership of the Bar
Election to the Executive Committee of the Bar
Duties and Functions of the Bar
Administration of justice
Right to Fair Trial and Appeal
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I.5. Human Rights
Overview
Freedom of Expression
Developments in 2000
Laws pertaining to freedom of expression
Forming or joining an association and ”acts against state security”
”Insult” to Religion
Special restrictions for theologians
Criticism, insult, satirization and defamation
Admission Criteria
Other Issues of Concern
Death Penalty
Stoning
Torture and ill-treatment / CID treatment
Current human rights issues in Iran
New laws
Prison conditions
Political violence
Impunity
Social Unrest
Positive Signs
II. Groups at risk
II.1. Political opposition
Opposition parties
Mudjahedin-e Khalq Organization (MKO)
KDPI, CPI-Komaleh, Rahe Kargar
Nationalist/Monarchist Groups
Freedom Movement of Iran (FMI)
Clerics
Opposition in exile
Journalists/Editors
Reformist intellectuals
Berlin Conference
Student demonstrations
Rejected Asylum Seekers
II.2. Religious minorities
Jews
The "espionage" trial
Baha’is
Conversion/Apostasy
Proselytizing
II.3. Ethnic minorities
Kurds
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Baluchs
Azeris
Arabs
Afghans
II.4. Gender
Women
Adultery
Divorce
Domestic violence
Custody of children
Homosexuals/Transsexuals
II.5. Military Service/desertion
Draft evasion
II.6. Drug offences / double conviction
II.7. Exit formalities
III. Conclusion
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Iran
Country Report
Presentation by Drewery Dyke,
additional remarks by Bernard Quah
11 June 2001
1
I. Background
I.1. Political background
Introductory remarks
There is no doubt that the 1997 Presidential elections in Iran were perceived as a major
development in Iran. The unpredicted election of Mohammed Khatami as President by
nearly 70% of voters has produced a tremendous feeling of expectation in the
population. Khatami speaks about civic freedoms and emphasizes the importance of
civil society. Khatami stresses his commitment to dialogue between civilizations and
openly declares his wish to improve relations of Iran with the rest of the world including
the USA. In addition, Khatami frequently talks about the rule of law and the importance
of the Iranian Constitution. On the first anniversary of his election he declared
”the
foundation of our law and system is the Constitution, which has recognized the people’s
right to be in charge of their own destiny and has also recognized our society’s right to
fundamental freedom”.
It is clear that in the Constitution there are certain areas that will
need amendments in order to implement and facilitate the envisaged reforms. These
areas regard mainly the role and responsibilities of the religious institutions in the power
structure, in particular the position of the Supreme Leader, the Guardian Council and
the Assembly of Experts.
At the time of Khatami's election it was predicted that he would have a very difficult time
ahead but that, if only he would manage to obtain a majority in the Majles, in the
municipalities and to replace the conservative Head of the Judiciary Ayatollah Yazdi, he
would have a good chance of succeeding.
In fact, despite having obtained significant majorities both in the Majles and during the
municipal elections, he has not yet succeeded in significantly consolidating power to be
able to effectively push forward a number of reforms that were expected.
While on the one hand there have been important developments with respect to
freedom of the press, the situation of women and human rights in general, it has also
become clear that the conservative, revolutionary establishment has the means to block
significant efforts to produce reforms and will use all its power to do so. The
1
Amnesty International's access to Iran has been limited since the Islamic Revolution in 1979. So far
whenever Amnesty International
approached the Iranian authorities to get permission to undertake
research in Iran, the standard answer has been that this was not the right time. Therefore, Amnesty
International
does not have direct access to information from the provinces. However, Amnesty
International
maintains contacts with some of the many Iranians abroad, who serve as links to people
who are at risk of human rights violations in Iran.
Please note that Amnesty International is currently preparing a new country report on Iran which
will be accessible at <www.amnesty.org> in a short while.
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conservative camp can count on the Judiciary, the Revolutionary Guards, private
foundations, the families of martyrs, the Basiji or voluntary para-military forces, the
Supreme Leader, part of the Bazar and part of the clerical establishment.
Conservative backlash
In June and July 1998 there was an evidently mounting pressure on supporters of the
reform-oriented policies of President Khatami. Increasing attacks led to the
impeachment of Abdullah Noori, Minister of the Interior, one of the closest allies of the
President and one of the most powerful Ministers. Moreover, an intense campaign was
mounted against the liberal mayor of Tehran, Gholamhossein Karbaschi, again one of
the President’s staunchest allies, who was originally sentenced to five years in prison
and 60 lashes on charges of misuse of public property and bribing. The sentence was
reduced to two years prison and a fine by an appeals court in December 1999 and
commuted altogether in January 2000 through a pardon requested by former president
Akbar Hashemi Rafsanjani from Leader Ayatollah Ali Khamenei, in a move
"seen by
some analysts as part of a campaign by conservative clerics, who are led by Ayatollah
Khamenei, to project a more moderate image ahead of parliamentary elections on 18
February. [...] A 10-year ban on Mr Karbaschi taking part in any political activity,
imposed with his original prison sentence, has not been lifted."
2
Establishment of the Assembly of Experts
A significant event of the recent past that has been of fundamental importance is the
election of the Assembly of Experts on 23 October 1998. The Assembly of Experts is a
body of 83 Clerics that supervises the leadership of the country. It is a powerful organ
as it has the right to dismiss the Supreme Leader or call on the creation of a Leadership
Council taking on his responsibilities. The Leadership Council can be established as an
interim body before the election of a new leader. The Leadership Council consists of the
President, the Chief of the Judiciary and a scholar from the Council of Guardians who is
selected by the Expediency Council. There are universal direct elections to the
Assembly every eight years. The current Assembly is still dominated by conservatives.
Legislative elections
Local council elections took place 26 February 1999. These elections promised to offer
the possibility of more decentralization, one of the cornerstones of Khatami’s policy. But
in reality decentralization does not exist. From UNHCR’s experience with Afghan
refugees in Iran, there is no devolution of power to the provincial authorities as such and
most decisions are deferred to the central authority. Furthermore, although the
municipal elections have confirmed Khatami's popularity and have proved to be a major
defeat for the conservative revolutionary candidates, this has shown no effect in
practice. Most reforms that have been initiated have been blocked by the conservatives.
Parliamentary elections took place on 18 February and 5 May
(run-off)
2000. These
elections were also very important as at the time of Khatami's election the Majles was
still dominated by conservatives. So far the Government, however, has not benefitted
from the pro-reform majority in the Majles.
2
BBC: Tehran mayor pardoned, 25 January 2000
<http://news.bbc.co.uk/hi/english/world/middle_east/newsid_618000/618351.stm>
BBC: Tehran mayor sentence reduced, 24 December 1999
<http://news.bbc.co.uk/hi/english/world/middle_east/newsid_241000/241804.stm>
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Economic situation
The economic situation is very dramatic. One of the greatest failures of President
Khatami in his first tenure was his inability to deal with the economic situation. The
unemployment among the 25- to 35-year-olds reaches 25 percent and the per capita
income is below USD 4,000, which is quite low given rising levels of education among
the Iranian youth. A French journalist commented on 7 June 2001:
”The despairing
youth of Iran are going to vote with their feet on Khatami’s reforms.”
He quotes the
construction worker Mohammad with saying:
”Freedom is not about relationships
between boys and girls. Anyway, I’m too busy worrying about putting bread on the table.”
Another man, Ali, observed:
”Whatever the result of tomorrow’s poll, many of Iran’s
young dream of voting with their feet. 90 percent of my friends, even those who
graduated, are unemployed. Who can blame them for wanting to leave the country...”
2001 Presidential elections
On 8 June 2001 Khatami won with a massive landslide, gaining 78% of votes. There is
no reason to believe, however, that Iran is now a democracy and that Khatami's victory
will bring an immediate end to human rights violations. The President is the Head of the
Executive and is responsible for implementing the laws passed by the Legislature, or
Majles, which is also pro-reform. Laws passed by the Majles, however, have to be
approved by the conservative Council of Guardians. Furthermore, the Head of the
Judiciary is appointed by the Supreme Leader who is in turn appointed by the Council of
Experts, a body of 83 religious-political leaders created after the 1979 revolution, which
is in fact directly elected. The Supreme Leader appoints – according to a formula - the
members of the National Security Council, the head of the armed forces and of the
Expediency Council. Despite Khatami’s victory and the considerable gains of pro-
reform candidates in the parliamentary elections the number of pro-reform laws passed
that have actually been implemented has been comparatively small, as many of them
have been challenged in court. Reform is not so much in the hands of the President or
of the Parliament but rather depends on the goodwill of another body, the Council of
Guardians, whose members are appointed to equal parts by the Leader and the
Parliament.
In this context it is also worth mentioning that many commentators, including UNHCR
and the UK Home Office report that the Government clamps down or limits freedom of
expression. However, it is rather the judiciary, notably the Revolutionary Courts, that are
responsible for the clampdown. The Government does not do anything like that; it does
not have the power to do that.
Iran is a country where torture takes place, apparently with impunity; where political
prisoners - who are invariably prisoners of conscience - are detained, often arbitrarily
and where the judicial system is structurally prejudicial against fair trial procedures that
fulfill minimum international standards. In addition, the country retains the death penalty,
carrying out one of the world’s highest levels of executions while cruel, inhuman and
degrading punishments are regularly imposed for crimes such as repeat theft, alcohol
consumption and illicit sex. Moreover, unconfirmed reports indicate that conditions in
official prisons are very poor, overcrowding being a particular issue of concern.
Amnesty International has no reports from the ”unofficial” prisons that are widely
recognised to exist.
At the same time, Iran is one of the most dynamic and energetic societies in the Middle
East region and some commentators have stated that it is possibly one of the most
democratic in the region, where a range of political opinions can be expressed without
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fear of persecution and where those most at risk of human rights violations may also be
those least likely to seek asylum.
If this is indeed the case, who then is at risk in Iran and why? Why are so many Iranians
seeking asylum in other, notably western, countries? To answer this question it is
crucial to achieve an understanding of the political, judicial and legal structures in Iran
but also to bear in mind the numerous human rights violations that have been
committed in the past years.
I.2. Political power structure
Leader of the Revolution (Rahbar)
Under Art. 110 of the Constitution, the Leader has the following functions:
1. Designate the general policies of the system of the Islamic Republic of Iran after
consultation with the Expediency Council.
2. Ensure the good execution of the general policies of the system.
3. Issue decrees for referenda.
4. As the Supreme Commander of the Armed Forces, Chief of Joint Staff, Chief
Commander of the Islamic Revolutionary Guards Corps, High Commander of the
Disciplinary Forces, declare war or peace and mobilize the military.
5. Appoint, dismiss and accept resignation of Jury members of the Guardian Council.
6. The Leader is the highest authority in the Judiciary and the head of IRIB radio and
TV organization.
7. Arbitrate and settle disputes and regulate relations among the three state powers.
8. Settle problems of the system through the Expediency Council that cannot be
solved through normal channels.
9. Sign the order of appointment of the President after election by the people. The
competence of Presidential candidates must be verified by the Guardian Council
prior to the election and in the first term by the Leader as to whether or not they
meet the qualifications set forth in this Law.
10. Dismiss the President, by taking the interests of the country into consideration after
the Supreme Court has given a verdict on the violation by the President of his
Legal functions or the disapproval of the President by the Islamic Consultative
Assembly on grounds of insufficiency according to Art. 89.
11. Pardon and/or mitigate the sentences of condemned persons within the scope of
Islamic precepts, upon the recommendation of the Head of the Judiciary.
The leader may delegate some of his functions and powers to another person.
Expediency Council (Majma-e Tashkhis-e Maslehat-e Nezam)
According to Art. 112 of the Constitution the Expediency Council
is established upon
instruction of the Leader to look into the following:
1. If the Council of Guardians decides that a bill is contrary to Islamic law or to the
Constitution and if the Majles does not act accordingly the Expediency Council can
be asked to settle the matter.
2. It provides advice in matters referred to the Council by the Leader.
3. It consults with the Leader on policy matters.
Council of Guardians (Shora-e Negahban)
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The 12-member Council of Guardians is established under Art. 91 of the Constitution:
1. It consists of 6 religious scholars appointed by the Leader and 6 Muslim jurists
presented by the Judiciary to the Majles and appointed by vote through the Majles.
Members serve a 6-year term.
2. All bills of the Majles need to be forwarded to the Council to decide on conformity of
the bill with the Constitution and Islamic principles.
3. It supervises the election of the Assembly of Experts, Presidential and Majles
elections and referenda.
4. It interprets the Constitution.
Committee for the Supervision of the implementation of the Constitution
This Committee was established by President Khatami to
ensure that the Constitution
is properly implemented, i.e. to prevent conservative forces from abusing the
Constitution.
Assembly of Experts (Majles-e Khebregan)
The Assembly is elected by the people every eight years and meets once a year. It has
the right to discharge the Leader and to appoint a new Leader. It consists of 83 persons
and all candidates are cleared by the Council of Guardians. Another one of its tasks is
to supervise the work of the Leader.
I.3. Security forces
The Iranian army comprises mostly conscripts serving a two-year term and has an
estimated 540,000 men in active service. The army is known to undertake military
operations, conducted in the provinces of Kurdistan (Kordestan) and Western
Azerbaijan (Azarbayjan-e Gharbi), against the local Kurdish insurgency.
A second group are the Revolutionary Guards, or Sepah-e Pasdaran-e Enghelab-e
Islami, which are very much feared by a lot of people. In the period immediately after the
revolution of 1979 they were responsible for arresting supporters of the old regime and
opponents of the new regime, while today they seem to be disappearing from urban
centres. They were organized in the early days of the revolution to back and defend the
revolution and to serve as a counter-influence to the regular armed forces. They have
120,000 men in service and consist of young recruits dedicated to the Islamic
revolution. The Pasdaran have in the past repeatedly been deployed in crushing civilian
unrest, but are now mainly engaged in fighting insurgency and what they term
”counter-
revolutionary military activities”
.
Another unit are the Disciplinary Forces, also called Law Enforcement Forces (LEF), or
Niruha-ye Entezami
, which were created in 1990 because of the increasing reluctance
of the armed forces to be used against the protesting civilian populations. They were
constituted by a merger of the police (
Shahrbani
), the Gendarmerie forces, the Islamic
Revolutionary Comittees (
Komiteh Enghelab-e Islami
, the religious police) and the units
of the Revolutionary Guards that were responsible for security in the cities. They are
now in charge of controlling demonstrations and riots in the cities. Those units serving
as a moral police (
Komiteh
,
Monkarrat/Monsherrad
, ‘Forces for Adjoining Good and
Forbidding Evil‘) are today part of the LEF Unified Command, with most of their previous
functions now carried out by the Basiji. But they also have the function, to a certain
degree, and are given a free hand to monitor religious issues or what appear to be
religious issues. The names Monkarrat/Monsherrad and Komiteh are no longer in use
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and there no longer seem to exist separate units responsible for monitoring moral
conduct, but if there were units which could be called ‘religious police’ it would be the
units succeeding the Komiteh.
3
Concerning the power to arrest civilians, it has to be said that for standard crimes this is
usually the responsibility of the combined Law Enforcement Forces (LEF). In addition,
the judicial forces do have arresting officers associated with each court. It is unclear,
however, if soldiers are legitimized to arrest civilians and if these kinds of arrests do
actually occur.
The Mobilization of the Dispossessed, or
Sepah-e Basiji
, a paramilitary force who are
some 300,000 strong. The Basiji were created to help the military campaign against Iraq
in the years 1980-1988. Members are reportedly recruited from farms, factories,
schools and government offices, i.e. from all parts of the population. Their tasks include
monitoring the daily lives of the citizens, combatting social corruption including ensuring
that the clothing and behaviour of women conforms to strict Islamic rules. Structurally,
the Basiji are part of the Army, and comprise those conscripts with a more zealous
religious agenda. It is not clear, however, if they are separated into special units or
bataillons solely on this basis. Concerning connections with the Pasdaran, it is quite
plausible that a Pasdaran approached a Basij and gave him orders. Still, this would
rather have to be seen along the lines of this person being a senior military officer,
someone who is notionally superior to a conscript or low-ranking officer.
Another group are the
Shura
Brigades, who reportedly comprise 17,000 Islamic militia
men and women. They were created in 1993 after anti-government riots erupted in
various Iranian cities. They are drawn from the Revolutionary Guards, some of them
come from the Pasdaran and the Basij volunteer militia. They are particularly active in
Kurdistan Province.
The Party of God, or
Ansar-e Hezbollah
, is an amorphous group composed of fanatic
Islamist militants, whose members present themselves as the genuine followers of the
path of the late Ayatollah Khomeini and guarantors of pure Islamic values. Although they
are not officially recognized, they have occasionally supported certain conservative
positions of the governments in power. Hezbollah has also been utilized by the most
fanatic Islamic factions to suppress any manifestations of freedom of expression
exhibited by those whom they portray as decadent, Westernized and liberal elements.
I.4. The Judiciary
The right to a fair and public hearing by a competent, independent and impartial tribunal
established by law is essential for the preservation of human rights standards. It is a
right recognised by the Universal Declaration of Human Rights, while the International
Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights
both guarantee the exercise of this right.
3
In telephone interviews on 3 and 8 March 2000 outside Iran, the Coordinator of the Student Movement
Coordination Committee for Democracy in Iran (SMMCDI)
"stated that the Komiteh had been "officially
dissolved" but that, in Iran, "labels change very easily." In other words, these security units are no longer
officially identified as the "Komiteh" but a similar structure continues to exist under a different name. He
said that they are involved in a range of activities that include enforcing public morals, conducting
investigations, and detaining people. The coordinator likened them to Islamic neighbourhood defence
committees that possess broad powers. He claimed that the members are frequently armed and that
many of the units have their own jails."
source: Immigration and Refugee Board (IRB), Ottawa,
Documentation and Research Branch: REFINFO IRN34005.E, 8 March 2000
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The UN’s Principles on the Independence of the Judiciary were
”formulated to assist
Member States in their task of securing and promoting the independence of the
judiciary”
and they
”should be taken into account and respected by Governments within
the framework of their national legislation and practice...”
. They state, inter alia, that: the
independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country; that the judiciary shall decide matters before them
impartially, on the basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats or interferences,
direct or indirect, from any quarter or for any reason; that there shall not be any
inappropriate or unwarranted interference with the judicial process; that everyone shall
have the right to be tried by ordinary courts or tribunals using established legal
procedures and that the principle of the independence of the judiciary entitles and
requires the judiciary to ensure that judicial proceedings are conducted fairly and that
the rights of the parties are respected.
Amnesty International fully supports these standards and believes that members of the
judiciary play a vital role in the forefront of human rights protection. While the
Constitution guarantees the independence of the judiciary, Amnesty International is
concerned that this sacred principle is undermined through law and practice in Iran.
Amnesty International believes that this lack of judicial independence and the vaguely
worded laws have led to an alarming erosion in the delivery of justice, where the
position of judges and lawyers has been weakened and the Bar Association depends on
the judiciary for its continued existence. This has resulted in a catalogue of unfair trials,
where standards have frequently fallen far short of international standards for fair trial.
This includes trials in the Public and Press Courts, alongside ‘special’ courts, such as
Revolutionary Courts or the Special Court for the Clergy, which also hear cases where,
for example, freedom of expression is examined.
The UN Special Rapporteur on the Independence of Judges and Lawyers has reported
on the limited progress made in the reform of the judicial system in Iran and the
following is intended to contribute to the discussion underway in Iran.
Independence of the judiciary
Art. 156 of the Constitution states that the judiciary is
”an independent power which shall
protect individual as well as social rights and shall be responsible for the administration
of justice”
. However, the way in which judicial appointments are made has resulted in
the creation of a dependent judiciary, where the requirement to pass judgement on
vague laws, as discussed below, may have contributed to the weakening of the position
of judges.
The Head of the Judiciary, for example, owes his position to the Leader to such an
extent that, for example, Hadi Marvi, First Deputy to the Head of the Judiciary, reportedly
stated in 2000 that
”judges must obey the Supreme Leader and have no independence
in judgement”
. The Special Representative of the UN Commission on Human Rights on
the situation of human rights in the Islamic Republic of Iran and the UN Special
Rapporteur on the Independence of Judges and Lawyers have both voiced concern
over this statement.
The Head of the Judiciary is appointed to a five-year term by the Supreme Leader, as
indeed, according to Art. 162 of the constitution, are the Chief of the Supreme Court and
the Prosecutor General. The Leader, according to the ”Core document forming part of
the reports of States Parties: Iran”,
”is the highest authority in the country”
and
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according to Art. 110 of the Constitution, he
”has the responsibility and authority to
determine general policies of the country...”
. That means that someone who fills a
political position appoints the Head of the Judiciary.
The Constitution states that the role of the Head of the Judiciary is to carry out
”the
responsibilities of the judiciary in all judicial, administrative and executive matters”
.
According to Art. 158 of the Constitution, the Head of the Judiciary is responsible for the
”employment of just and worthy judges, their dismissal, appointment, transfer,
assignment to particular duties, promotions, and carrying out similar administrative
duties, in accordance with the law.”
Given that the heads of the provincial offices of the judiciary, who are appointed by the
Head of the Judiciary, appoint judges in lower-ranking positions in their respective
jurisdiction, in essence, all heads of the provincial judiciary indirectly owe their position
to the Head of Judiciary, who is in turn appointed by the Supreme Leader. As a
consequence, the judiciary is biased from the outset. What compounds this problem is
the appearance of impartiality.
While Art. 158 of the Constitution provides sweeping
powers of appointment and removal of judges accorded to the Head of the Judiciary,
Art. 164 states that
”[a] judge cannot be removed, whether temporarily or permanently,
from the post he occupies except by trial and proof of his guilt, or in consequence of a
violation entailing his dismissal”
. It is notable that those who will decide on the fate of a
judge also appear to be appointed and dependent on the Head of the Judiciary and his
appointments. Amnesty International is seeking clarification on these points.
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Judges
Impartiality: the separation of powers
In 1994, the functions of investigative judge and prosecutor in Revolutionary and Public
Courts were vested in the presiding judge of the case under investigation, although this
amendment was not extended to the Special Court for the Clergy. Art. 27 of the Criminal
Procedure Code expressly requires
that ”the head or the judge of every bench shall be
duty bound to carry out investigations in person”
while Art. 30 states that
”the judge of
the court may personally attend preliminary investigation sessions in order to supervise
the manner of the investigation.”
In other words, the functions of judge and prosecutor in Revolutionary and Public Courts
were unified, i.e. a defendant’s judge is also his prosecutor. One incident that highlights
this problem involved the Iranian journalist Akhbar Ganji, who was forced to wear prison
garb like a common criminal in advance of a court hearing. When he initially refused,
prison officials made him wear this garb by eventually beating him. He launched a
complaint against the head of the Tehran judiciary, Ali Razini, who would then have had
to decide whether to prosecute himself or not. Not surprisingly, Ali Razini found Akhbar
Ganjis allegations of being tortured in prison insufficient and would not prosecute
himself.
As Judges are also prosecutors, they can file charges. Amnesty International believes
that this structure creates a confusion of roles in which judges are likely to find it difficult
to maintain the impartiality required under international standards.
This structure, which contravenes Guideline 10 of the UN Guidelines on the Role of
Prosecutors, namely
that ”The office of prosecutors shall be strictly separated from
judicial functions.”
, indicates that the structure of the Public and Revolutionary Courts
does not guarantee an impartial court as required under international standards for fair
trial, including the provisions set out in Art. 14 (1) of the ICCPR.
Amnesty International notes with interest recent reports which indicate that a bill to re-
establish the role of prosecutors has been passed by the Islamic Consultative
Assembly (ICA). The draft reportedly provides for the separate hearing of civil and penal
cases by suitably trained judges and provides for increased specialization in the
investigation of crimes. Amnesty International has requested further information on the
status of this bill.
Constitutional requirement to give a ruling and personal liability
Amnesty International has also requested clarification regarding the constitutional
obligation for judges to pronounce a verdict, even where there are no clear provisions in
national legislation concerning the issues in question, and the judges’ personal
responsibility for that decision.
Current arrangements appear to permit delivery by judges of a faulty or erroneous
judgement due to the absence of relevant law. Such errors are also possible where
relevant laws exist, but this does not excuse the imposition of a surety or penalty on
judges: current arrangements appear to contravene Principle 16 of the UN Basic
Principles on the Independence of the Judiciary which states that
”judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or
omissions in the exercise of their judicial functions.”
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More specifically, Art. 167 of the Constitution states
that ”The judge is bound to
endeavour to judge each case on the basis of the codified law”
, but it adds that
”In case
of the absence of any such law, he has to deliver his judgement on the basis of
authoritative Islamic sources and authentic fatwas. He, on the pretext of the silence of
or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain
from admitting and examining cases and delivering his judgement.”
This means, that if
there exist no relevant legal provisions the judge still has to deliver a verdict. This is very
problematic given that there are many overworked judges, who are also prosecutors,
and who are constitutionally required to deliver a verdict.
At the same time, judges must bear in mind that they might be held responsible for
‘losses’ incurred as a result of the decision: Art. 171 of the Constitution states that
”Whenever an individual suffers moral or material loss as the result of a default or error
of the judge with respect to the subject matter of a case or the verdict delivered, or the
application of a rule in a particular case, the defaulting judge must stand surety for the
reparation of that loss in accordance with the Islamic criteria, if it be a case of default.”
The impact on the administration of justice
Amnesty International is concerned that the impact on the administration of justice of a
system where the judiciary does not appear to be totally independent, where there is no
effective separation of powers, where a judgment is required, yet where judges are
personally liable is extremely grave.
The Head of the Judiciary is appointed by a political figure. A politically appointed figure
makes appointments to all lower judicial posts, who owe their allegiance to the Head of
the Judiciary. He in turn appoints circuit court judges or lower court judges. Those
judges have to make prosecutions and deliver a judgment, no matter if it concerns
divorce suits, disputes between neighbours, etc. From that point on, however, a person
could be at risk of unfair trial and human rights violations. The task faced by lower and
appeal court judges seems almost impossible. They must investigate and prosecute
allegations, some of which may be brought by their superior, the region’s ‘chief
prosecutor’. The head of the court to whom the charges were allocated by the same
superior is likely to view such charges, which may have been laid in reference to
extremely vague laws, favourably, precisely because they originate from his superior.
However, the lower court judge also understands that he must give a ruling, even in the
absence of codified law.
Lawyers
Limits placed on the training and licensing of lawyers
It is a matter of concern that recent legislation requires the judiciary and security
officials to control who can train, qualify and continue working as a lawyer. This
legislation also provides for sweeping exclusions of individuals for reasons of
association and belief that could lead to the exclusion of a lawyer from training or
qualification on the basis of ethnic origin, religion, political or other opinion.
Art. 187 of the May 2000 Law on the Third Economic, Social and Cultural Development
Plan, states that the judiciary
”shall be authorized to confirm the competence of the
graduates of law who shall be granted licenses for the establishment of legal advisory
institutes.”
This provision would prevent the Bar Association from fulfilling Art. 6 of
1956's Bill on the Independence of the Bar Association authorizing the Bar to, inter alia,
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issue licenses to qualified lawyers, which is an internationally recognized duty of the
Bar.
Amnesty International has expressed its concern that Note 1 of Art. 2 of 1997's Law
Concerning Quality of Obtaining License for Justice Attorneyship, dealing with those
seeking apprenticeship places with Bar Associations, states that
”Bar Associations
shall inquire from the competent authorities”
whether individual applicants fulfill seven
criteria, some of which question the expression, opinion and association of the
applicant. The same Art. provides for sweeping exclusions regarding who can become
a lawyer: it specifically excludes, amongst others, those who have
”a record of
membership or activity in atheist groups, misleading denominations and groups
opposed to Islam as well as groups whose manifesto is based on negating divine
religions.”
The judiciary and Ministry of Intelligence therefore control who may be eligible for
apprenticeship places with a Bar Assocation, and later entry into the legal profession.
These provisions weaken the independence of the Bar Association and limit the
personal freedom and professional security of the applicant, thus limiting lawyers from
providing effective defence of their clients and undermining the professional security
and independence required by lawyers.
Such provisions contravene Art. 23 of the Constitution, which states that
”The
investigation of people’s beliefs is forbidden and no one may be molested [sic] or taken
to task for simply holding a belief”
, Iran’s international commitments to freedom of
expression and association under Art. 19 of the ICCPR, to which Iran is a state party,
and Principle 10 of the UN Basic Principles on the Role of Lawyers. The latter calls for
governments and professional associations to ensure that there is no discrimination
against a person with respect to entry to and continued practice within the legal
profession on grounds of a variety of criteria including political or other opinion.
Limits placed on the Bar Associations
Amnesty International notes the re-establishment of the Bar Association, with an
executive board elected under supervision by the judiciary, in 1999. However, it remains
concerned that lawyers are not guaranteed the rights - such as the right to
independence - accorded to the profession under international standards which enable
them to carry out their professional duties without fear or hindrance: as with the
qualification as a lawyer, the judiciary retains control over who can join a Bar and stand
for its leadership. In addition, duties normally carried out by the Bar have been reduced
or subject to erosion by the judiciary.
Membership of the Bar
At every stage there are limits placed on the independence of lawyers and their
representatives in the bar association. Under a law passed last year under the Khatami
government relating to the Third Five-Year Plan special dispensation was given to the
judiciary to approve the licensing of lawyers and the establishment of practices of new
lawyers. It also reserves the right to the judiciary to vet and reject any of those lawyers
trying to become members of the bar association.
Those who have been 'approved' by the judiciary and security officials and successfully
qualified as lawyers face further examination when they apply to join a Bar: Art. 5 of the
Law on the Manner of Reform of the Bar Associations, which facilitated the re-
establishment of the Bar after over a decade of its abeyance, imposes sweeping
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conditions concerning membership of the Bar, in contravention to Iran’s commitments
to freedom of expression and association.
It forbids membership to, for example, pre-1979 government officials and other
individuals associated with bodies that existed prior to the change of government in
1979; those convicted of having taken part in actions against the Islamic Republic of
Iran; for membership in ‘spy’ organisations; of having ‘corrupt morals’; those who ‘drink
alcohol’ and many others.
While Amnesty International acknowledges the right of states to impose limits on joining
associations on those who were involved in human rights violations or criminal
offences, the organization notes that such restrictions can only be imposed on
individual cases but should not be applied generally to a group or class of people. It is
important for the law in this instance to be clear about who determines such limitations.
Under President Khatami’s
administration a remarkable law, masked as an economic
law was integrated into the current Five-Year Plan. Art. 187 of the May 2001
Law on the
Third Economic, Social and Cultural Development Plan provides that the judiciary will
be accorded the ability to sanction, to vet, and to license lawyers. Furthermore, those
who have recently graduated from law school or have a basis of legal training can set
up shops and practices without any restrictions. The Bar Association protested and
criticized that this would lower the level of legal expertise that could be accorded to the
people who needed legal advice and representation.
Election to the Executive Committee of the Bar
Principle 24 of the UN Basic Principles on the Role of Lawyers state that lawyers shall
be entitled to join self-governing professional associations to represent their interests
and that the executive body of such associations
”shall be elected by its members and
shall exercise its functions without external interference”
in accordance with
international standards for freedom of expression and association.
The judiciary, however, along with the Ministry of Intelligence or the Revolutionary
Guards controls who can stand for election to its executive committee: Art. 4 of 1997's
Law Concerning Quality of Obtaining License for Justice Attorneyship states that the
High Disciplinary Court of Judges
”shall investigate the eligibility of candidates to the
executive committee”
, and the
”said court shall be required to inquire...about the record
of candidates”
. This provision ensures that lawyers cannot freely elect representatives
of their choice.
Accordingly, applicants to the supervised election of the 21st Executive Committee of
the Bar Association were subject to approval - or rejection - by the Supreme
Disciplinary Court of Judges. The head of that court reportedly stated that the court had
no role in the investigation into the competence of those standing, since the court
reportedly sent the list to the Ministry of Intelligence and merely reflected the latter’s
decisions regarding who could stand for election to the Executive Committee of the Bar.
The Executive Committee nonetheless protested to the Supreme Disciplinary Court of
Judges against these limitations on its members, which exceed those set out in the law
detailing the election of the Executive Committee of the Bar and allocation of training
places in the 1956 Procedure Code for the Legal Bill on the Independence of the
Judiciary.
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Amnesty International is concerned that there is no clear, consistent or transparent
criteria regarding eligibility for membership of the Bar’s Executive Committee and seeks
assurances that the limitations currently in force do not violate Iran’s international
obligations to freedom of expression or association under the ICCPR or the UN Basic
Principles on the Role of Lawyers, notably Principle 24, and the right to freedom of
association set out in Art. 22 (2) of the ICCPR.
Duties and Functions of the Bar
Since its re-establishment in 1999, duties and functions of the Iranian Bar Association,
as they are typically carried out by bar associations internationally, have been reduced
in scope from provisions that existed under the 1956 (Legal) Bill on the Independence of
the Bar Association. These reductions reinforce the limitations on lawyers, the Bar and
the right to effective defence.
While it is the international norm that the Bar Association grants licenses to newly
qualified lawyers, this duty has been removed under Iranian law.
Those prevented membership in the Bar are able to appeal, but this appeal does not
appear to be heard by members of the legal profession, but rather by the Supreme
Disciplinary Court of Judges, which can suspend or ban lawyers. The 1956 Law on the
Bar Association provides for such hearings before the Lawyers’ Disciplinary Courts but
according to Amnesty International’s information, the full scope of functions of this body
has diminished: it can only consider cases referred to it, and few cases have been,
save for those brought by lawyers themselves, rather than the judiciary. Amnesty
International is seeking clarification regarding the status of this court.
Amnesty International is further concerned that the Bar is no longer able to discipline its
members, despite legal provisions and international principles supporting this function.
Under the 1956 (Legal) Bill on the Independence of the Bar Association, investigations
into the malpractice of lawyers are undertaken by the Bar’s Lawyers’ Disciplinary
Prosecutor and the Lawyers’ Disciplinary Courts. Art. 17 of this law states that no
lawyer can be suspended or banned from the practice of law except by a final decision
by the Disciplinary Court.
The Revolutionary Court, however, has appeared to disregard this law and has
detained, tried, convicted and suspended lawyers such as Nasser Zarafshan, Mohsen
Rahami and Shirin Ebadi for actions that amounted to no more than carrying out their
duties as lawyers.
4
In addition to being an encroachment on the mandate of the Lawyers’ Disciplinary
Court, the trial of these cases in the Revolutionary Court raises serious concern about
4
"
Following a closed trial that ended in September, Shirin Ebadi and Mohsen Rahami, human rights
defenders and lawyers, received suspended sentences and five years' suspension from practising law in
connection with the production and distribution of the videotaped ''confessions'' of Amir Farshad
Ebrahimi. His videotaped testimony included statements concerning his former group, Ansar-e
Hezbollah (Partisans of the Party ofGod), and how the group was instructed to break up public meetings
and beat up reformist activists. [...]
In December, the trial began of 18 individuals, including former senior Ministry of Intelligence officials,
charged in connection with their alleged involvement with the murder of two politicians and two writers in
1998. [...] Shirin Ebadi (see above), a lawyer representing one of th e victims' families, had earlier stated
that the judiciary had not given her access to the case files and in December, a lawyer for the families of
the two writers, Nasser Zarafshan, was detained for suggesting that other unsolved murders formed part
of the case and should be investigated and tried simultaneously."
source: Amnesty International: Annual
Report 2001, Iran
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guarantees of due process and fair trials. The UN Special Representative on Iran has
also expressed his concern about this, especially in connection with the lack of open
trials, access to lawyers and families in this court.
Such actions are also contrary to Principle 28 of the UN Basic Principles on the role of
Lawyers, which states that
”disciplinary proceedings against lawyers will be brought
before an impartial disciplinary committee established by the legal profession”
or before
an independent statutory authority or court and shall be subject to independent judicial
review.
It is important that such disciplinary proceedings against lawyers are not contrary to
Principle 16 of the UN Basic Principles on the role of lawyers, which requires
governments to ensure that lawyers
”are able to perform all their professional functions
without intimidation, harassment or improper interference.”
In essence, then, you have to be vetted by the Ministry of Intelligence, no matter if you
intend to become a lawyer, a member of the Bar Association or a member of the
Executive Committee. Amnesty International is concerned that lawyers in Iran do not
enjoy the right to professional security as the Bar appears to be dependent on the
goodwill of the judiciary. In a speech of February 2001, the Head of the Bar Association,
Zaid Mohammed Shahari, referred to the limited personal security of Bar members and
assaults by groups who do not accept the independence of the Bar.
Administration of justice
Art. 14 of the ICCPR sets out the minimum requirements for fair trial. In addition to a
competent, independent and impartial court, these include prompt information of the
individual about the charges against him; provision of adequate time for the preparation
of his defence and communication with counsel of his own choosing, trial in a public
hearing without undue delay, in the presence of the defendant and with assigned legal
assistance in any case where the interests of justice so require. In addition, Art. 14 (5)
of the ICCPR states that everyone convicted of a crime shall have the right that his
conviction and sentence be reviewed by a higher tribunal according to law.
In practice, however, these minimum international legal obligations are often violated by
procedural irregularities in the Press and ‘special’ courts, such as Islamic Revolutionary
Courts and the Special Court for the Clergy.
Those who exercise freedom of expression and association are reportedly often
arrested without being informed of the reasons for their arrest and, contrary to Art. 9 (3)
and (4) of the ICCPR, they may be subject to prolonged pre-trial detention without
access to family or legal counsel, and witout adequate opportunity to challenge the
lawfulness of the detention order before a judicial authoritiy.
Although many of the detained lawyers face serious charges, contrary to Principle 1 of
the Basic Principles on the role of lawyers, they are not regularly given adequate
opportunity to consult with legal counsel, and lawyers are frequently denied prompt
access to their clients and sometimes have no access at all. They further have been
obstructed in their preparation of the defence by not having access to the full case
dossier.
Such practice appears common in cases relating to freedom of expression, irrespective
of the nature of the court trying the case, or the specific charges concerned. Thus, not
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only are the laws under which they are charged unfair, but defendants then face
procedures that violate international standards for fair trial.
For example, in December 2000, Ali Afshari and Ezzatollah Sahabi were arrested
following speeches they gave at Amir Kabir University. Ali Afshari’s speech reportedly
called for a referendum on the
velayat-e faqih
, or rule of the jurisprudent, by which the
Leader of Iran is chosen. However, he reportedly stated in court that he had been
denied the opportunity of consulting his lawyer and the court reportedly refused to pass
on to Ali Afshari’s lawyer the file of the case. The two men were reportedly held in
incommunicado detention, possibly for up to five months, and their families had not
been informed of their whereabouts. In late May 2001, both men made 'confessions' in
unclear circumstances while still in incommunicado detention.
Additionally, in March 2001, scores of individuals reportedly associated with the
Milli
Mazhabi
, or Religious Nationalist movement, were arrested. At least one, Mohammad
Bastehnegar, was reportedly charged with
”acting against Islam”
, which is punishable
by death and held in incommunicado detention, without access to a lawyer, until he was
permitted to meet with his wife on 13 May.
Right to Fair Trial and Appeal
Art. 14 (5) of the ICCPR states that everyone convicted of a crime has the right to
appeal the conviction and the sentence. Art. 44 of the Theologians’ Law, however,
states that
”Verdicts of courts for theologians’ affairs shall be final...”
and there is also
only a limited scope for appeal in Islamic Revolutionary Courts which are based on the
defendant’s challenge of the competency of the judge or if the verdict deals with
execution or corporal punishment. Such limitations do not conform to the internationally
recognized right for a person convicted to challenge his or her conviction and sentence
in a higher court.
In particular, the SCC is not subject to the jurisdiction of the judiciary. As it is an
extraordinary court it violates international human rights standards which provide the
right for people to be tried by ordinary courts using established judicial procedures.
A flawed judicial system where the judiciary possesses overwhelming powers is not
independent, due to ineffective defense by lawyers, to limits imposed by the judiciary,
coupled with vague criminal laws.
I.5. Human rights
Overview
Right after Khatami’s election in August 1997, there was a short period of grace.
Nonetheless, in the latter half of 1998, human rights issues in Iran were marked by an
increase in human rights violations (HRVs) centering on disappearences and
subsequent extrajudicial executions of journalists and intellectuals that came to be
known as the ‘serial murders’. In the latter part of the same year, signs of a growing
clampdown on freedom of expression and association appeared which was coupled
with increasing domestic debate and dissent over regulations concerning other social
issues and freedoms, such as the dress code and moral attitudes.
These issues continued to dominate the human rights agenda in 1999 and 2000,
marked by a growing polarisation in domestic politics between the ”reformist” and
”conservative” groups, culminating in student demonstrations in July 1999 over the
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closure of a popular newspaper called ‘Salam’ (Peace). The numerous arrests - often
arbitrary – in the aftermath of the widespread student demonstration, were marked by
incidences of torture and resulted in the death sentence for 4 student leaders in
September 1999 which was reduced to life-term prison sentences on 30 April 2000.
It was followed by three distinct periods during which journalists and intellectuals have
been targeted, detained, tried and imprisoned and newspapers closed.
The first, in November 1999 coincided with the start of the electoral campaign for the
parliamentary, or
Majles
(Islamic Consultative Assembly), elections to be held in
February 2000. The second clampdown occurred in April 2000, prior to the second
round of the Majles elections and following a controversial academic conference in
Berlin.
5
The third wave of repression of intellectuals and journalists marked the start of
the sixth Majles session in July 2000. In May 2000, the outgoing Majles ratified a Press
Law which significantly curtailed freedom of expression and which directly resulted in
the imprisonment of prisoners of conscience. Incoming Majles members sought to
amend the law, but were subject to unprecedented intervention by the Supreme Leader,
Ayatollah Khamenei, who called on parliamentarians to suspend their deliberations.
In 2000, there were continued reports that scores, possibly hundreds, of political
prisoners, including prisoners of conscience sentenced after unfair trials in previous
years, continued to be held. Scores of the students detained following demonstrations
in July 1999, including those associated with banned or tolerated secular political
parties, continued to be held throughout the country that year.
Up to June 2001, Iran has witnessed the arbitrary arrest and incommunicado detention
of scores of intellectuals, amongst them religious nationalists known as ”Milli Mazhabi”
(Iran Freedom Movement). For instance, in March 2001, 23 people were arrested in a
single raid when they were meeting at a private residence.
The judicial system and lack of effective safeguards of the rights of the accused, Iran’s
national and international committments notwithstanding, are important obstacles in the
path to greater freedom of expression and association. Despite calls for its reform,
made even by the Head of the Judiciary, Ayatollah Hashemi Shahroudi, the judicial
system is, in the view of a range of commentators, the largest obstacle to an
improvement in the human rights situation in Iran.
After a year in office, the Parliament gradually displays some encouraging signs, in
particular concerning the Article 90 Commission, which reviews indiscretions and
complaints by private citizens. The Commission does not have the judicial functions to
implement these decisions but it wields considerable social power.
Freedom of Expression
The limitations on the administration of justice are compounded by vague laws that
restrict freedom of expression:
Indeed, Amnesty International is specifically concerned that the right to freedom of
expression and association as recognized by Iran’s Constitution and international
human rights treaties to which Iran is a state party, remains subject to restrictions in
national law that go beyond those permitted under the Constitution and international law.
5
HRW: Stifling Dissent: The Human Rights Consequences of Inter-Factional Struggle in Iran, May
2001. <http://www.hrw.org/reports/2001/iran>
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Some laws impose explicit restrictions on the right to freedom of expression with
penalties including imprisonment, flogging and fines. Such restrictions under national
law are exacerbated by irregular trial procedures or interference in the judicial process.
Other laws are vaguely worded and open to abuse. This situation has over the years
produced a catalogue of victims of arbitrary detention, imprisonment after unfair trials
and other punishment for no reason other than the expression of their conscientiously
held beliefs. Such practices are not only contrary to international human rights
standards, but they are also contrary to Iran’s own Constitution.
The Islamic Human Rights Committee has stated that
”...when a State party imposes
certain restrictions on the exercise of freedom of expression, these may not put in
jeopardy the right itself”.
In the January 2000 report to the UN Commission on Human
Rights the Special Rapporteur on the Promotion and Protection of the Right to Freedom
of Opinion and Expression urged
”all Governments to ensure that press offences are no
longer punishable by terms of imprisonment, except in cases involving racist or
discriminatory comments or calls to violence. In the case of offences such as ”libeling”,
”insulting” or ”defaming” the head of State and publishing or broadcasting ”false” or
”alarmist” information, prison terms are both reprehensible and out of proportion to the
harm suffered by the victim. In all such cases, imprisonment as punishment for the
peaceful expression of an opinion constitutes a serious violation of human rights.”
(E/CN.4/2000/63, para 205)
Developments in 2000
Writers who addressed political and social reform or who were critical of the actions of
political leaders were detained, charged and imprisoned, frequently under vaguely
worded charges. In 2000, at least 30 publications, the majority supportive of reformist
views were suspended by judiciary order. At least 12 journalists, writers and
intellectuals were arrested and tried, usually after unfair trials. More specifically, a
massive clampdown on freedom of expression occurred in the period before the
second round of parliamentary elections in April 2000, before the passing of a very
restrictive Press Code on 18 April 2000 by the outgoing Majles. The new law includes
provisions such as forbidding publication of newspapers that have been suspended
under another name, requiring newspaper licenses to be approved by the Ministry of
Intelligence and the State Security Court‘s power to close down any newspaper
immediately for a two-month period.
Those imprisoned include Mohammed Rheza Khatami, the President’s brother, who
won the highest number of votes in the Tehran constituency in the parliamentary
elections; Fereydun Verdinejad, head of the official news agency IRNA; two presidential
advisers; Faezeh Hashemi, director of the daily Zan magazine; Saeed Hajarian, who
was seriously wounded in an assassination attempt; Mohammed Hassan Ziaifar, the
head of the Islamic Human Rights Commission, who was doing his utmost to establish
an independent and effective human rights body.
Dariush Foruhar from the banned Iran Nation Party, frequent critic of the government, in
particular concerning human rights, and his wife Parvaneh Eskandari were stabbed to
death in their home on 22 November 1998. Majid Sharif, the journalist of Iran-e Farda,
went missing on 20 November 1998 in northeastern Iran. On 26 November, his brother
was summoned to a mortuary in Tehran to identify the body.
Pirouz Davani, a journalist, disappeared and his whereabouts remain unknown.
Mohammed Mokhari, poet and literary critic, disappeared on 3 December 1999. The
body was identified by the family in the Tehran mortuary on 9 December, bearing marks
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of torture. Another writer, Mohammed Jafar Puyandeh, who, together with other writers,
including Mohammed Mokhari, had participated in an active campaign to establish the
Independent Writers‘ Association, disappeared on 9 December 1999, his body was
found one day later.
Freedom of Expression and Association has certainly been the defining human rights
issue since the latter part of 1998, through to 2001. The closure of the newspaper
Salam (Peace/Hello) in July 1999 resulted in mass demonstrations and numerous
arrests, many of which were arbitrary and resulted in unfair trials. Mashallah
Shamsolvaezin (of Salam and its successor newspapers) and Hojjatoleslam val
Moslemin Abdollah Nouri (of Khordad) were put on trial in November 1999. This was
followed by the wholesale closure of over 20 newspapers in April 2000, with subsequent
closures and frequent arbitrary detentions throughout the year. At the end of 2000, at
least 34 journalists, writers and human rights defenders had been questioned, detained
and tried, some of them tortured. All of them have been adopted as POCs by Amnesty
International.
Laws pertaining to freedom of expression
Legal safeguards of freedom of expression and association are found in Iranian law. In
addition, Art. 19 of the ICCPR states:
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.
Iran’s Constitution provides the basis for individual freedom of expression: Art. 23 states
that
”The investigation of individuals' beliefs is forbidden” and ”no one may be molested
or taken to task simply for holding a certain belief”.
Art. 24 provides for freedom of
expression in press and publications, stating that
”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”.
Amnesty International is, however, concerned that restrictive, contradictory and vaguely
worded provisions contained in the Penal Code, the Theologians’ Law and the Public
Courts and Revolutionary Tribunals Procedural Law undermine the full exercise of the
right to freedom of opinion and expression. Such limitations in national law would go
beyond those permitted under Iran’s constitution and Art. 19 (3) of the ICCPR. The
following sections examine these laws and the various aspects of how they
impermissably restrict the exercise of the right to freedom of expression.
Forming or joining an association and ”acts against state security”
The Penal Code contains a number of vaguely worded articles relating to association
and ”national security” which prohibit a range of activities, such as those connected with
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journalism or public discourse, which do not amount to recognizable criminal offences.
These include Art. 498 and 499 which state that whoever forms or joins a group or
association either inside or outside the country which seeks to
”disturb the security of
the country”
will be sentenced to between two and 10 years’ imprisonment. There is no
definition of 'disturb' or 'security of the country' in the Code. Such restrictions need to be
clearly set in national law and should be consistent with international standards.
Art. 500 and 610, addressing national security, are similarly vaguely worded. Art. 500
states that
”...anyone who undertakes any form of propaganda (
har nahv-e tablighati
)
against the state...will be sentenced to between three months and one year in prison.”
Art. 610 states that where two or more persons gather and collude to be the
perpetrators of a crime against internal or external security of the nation, or to facilitate
it, where or not they are considered ‘
mohareb
’
6
, will be imprisoned for between two and
five years. ‘Security’ and ‘propaganda’ are not defined in the Penal Code, and in practice
these articles have been used to detain, try and convict journalists, intellectuals and
social commentators, whether in connection with their writing or statements made in
public, amounting to no more than the expression of their beliefs or opinions.
For example, 29 individuals who participated in or supported a conference entitled
Iran
After the Elections
held at the Heinrich Böll Institute in Berlin in April 2000 were tried in
November and December 2000 by the Islamic Revolutionary Court on charges including
”acts against state security” (
aqdam ‘aleye amniyat-e melli
), ”collaboration with counter-
revolutionary groups”, ”forming or membership of a group or association that seeks to
disturb state security”, ”propaganda against the state” (
tabligh-e ‘almi ‘aleye nizam
) and
”insulting Islam” in connection with speeches the participants gave at the conference.
The charges were based on various articles of the Penal Code, including Art. 498 and
500, cited above. At least nine of the defendants have been convicted and sentenced to
prison terms, yet no evidence was produced to suggest that the defendants were
involved in any violent activities connected to their participation at the conference. The
sole evidence seems to have been limited to the defendants’ presence at and their
presentations to the conference. These presentations were, in fact, reproduced and
published in 2000, in a book entitled ”
Konferans-e Berlin; Khedamat ya Khiyanat
”, (The
Berlin Conference: Service or Treason). The book was fully authorized by the Ministry of
Culture and Islamic Guidance and was, therefore, legally published.
Amnesty International believes that those convicted and sentenced to prison terms are -
where they are still detained - prisoners of conscience, punished for the non-violent
expression of their conscientiously held beliefs. The organization considers the
conviction of participants at the Berlin conference, and their later imprisonment, under,
inter alia, Art. 498, 499, 500 and 610 of the Penal Code, which address 'joining or
forming an association' and 'acts against state security', to be contrary to Art. 19 of the
ICCPR and Art. 23 and 24 of the Constitution. These vaguely worded articles have been
used, in this case, to punish individuals for exercising their right to freedom of
expression.
”Insult” to Religion
6
Art. 183 defines as
mohareb
: "Anybody who takes up arms to create fear and to deprive the people of
freedom and security..."
Art. 186 extends this definition: "Any organized group or association that has an armed uprising against
the Islamic government, as long as the central leadership of that group is in existence, all its members
and followers who know the stands of that group or association or organization and conduct in some
way effective activity and efforts to advance its goals, are mohareb, even though they may not be involved
in the armed wing..."
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Laws relating to religion have been used repeatedly to limit freedom of expression.
These include, in particular, Art. 513 of the Penal Code and Art. 6 and 26 of the Press
Code.
Under Art. 513, offences considered to amount to ”insult” to religion can be punished by
death or imprisonment of [between] one to five years. Similarly, Art. 6 and 26 of the
Press Code
proscribe ”writings containing apostasy and matters against Islamic
standards
(mavazin-e eslami
)”
and ”
the true religion of Islam...”
, but state that such
cases will be heard in a criminal court. Art. 6 of the Press Code specifically states that
those convicted will be
”assigned punishments according to Art. 698 of the Penal
Code.”
This article concerns the intentional creation of
”anxiety and unease in the
public’s mind”
,
”false rumours”
or writing
about ”acts which are not true”
, even if it is a
quotation, and provides for between two months and two years’ imprisonment or up to
74 lashes.
Both the Penal Code and Press Code do not specifically define what activities
constitute insult to religion and have, indeed, been used to punish people for the
expression of their opinion. For example, journalists connected with the newspaper
Neshat
(Happiness), including the publisher, Latif Safari, editor Mashallah
Shamsolvaezin and another journalist, Emadeddin Baqi, were detained, tried, convicted
and sentenced, each to prison terms in excess of two years, for the publication of two
articles which discussed the place of the death penalty in society. The court considered
the two articles to amount to
”insults of religion.”
Special restrictions for theologians
Vaguely worded articles in the Theologians’ Law have resulted in the prosecution,
conviction and imprisonment of theologians for the mere expression of their views,
whether in print or public discourse. According to Art. 18 of this law,
”acts which
customarily cause insult to the dignity of Islamic theology (clergy) and the Islamic
Revolution are construed as an offence for theologians.”
Such unspecified ‘acts’ have
resulted in unfair trials, notably of alleged press violations being tried in the Special
Court for the Clergy (SCC) and the imprisonment of prisoners of conscience.
For example, Hojjatoleslam Hasan Yousefi Eshkevari, director of Ali Shariati Research
Centre and contributing editor of Iran-e Farda, which was closed in April 2000, was
charged under this law in connection with his presentation at the Berlin conference. He
was arrested upon return from Germany in August 2000 and in October 2000
sentenced after an unfair trial before the Special Court for the Clergy (SCC) to a prison
term, the length of which has not been made public. The trial reportedly was a
consequence of his discussion of changes in Islamic laws concerning dress code and
judicial punishments and organized religion’s connection to state power. The charges
brought against him are all punishable by death and included defamation, heresy, being
at war with God and corrupt on earth as well as charges related to national security.
The decision was not made known. However, in May 2001 it was made public that the
death sentence had been overturned by an Appellate Court.
Another prominent case involves reformist cleric Hojjatoleslam val Moslemin Mohsen
Kadivar, who was arrested on 27 February 1999, and sentenced to 18 months’
imprisonment by the SCC on 21 April 1999. The charges brought against him reportedly
included "propaganda against the sacred system of the Islamic Republic"
,
"publishing
lies"
and
"confusing public opinion"
. These charges are believed to relate to an article
published in the newspaper Khordad on 14 February 1999 in which he appeared to
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question the role of the clergy in the government of Iran and expressed concerns over
controls on freedom of expression.
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Criticism, insult, satirization and defamation
There are at least nine laws, many of which are vague and overlap, that deal with insult
and defamation, notably of state representatives. The punishments set out in the Press
and Penal Codes provide for flogging, along with imprisonment. A number of individuals
have been detained or imprisoned under these laws for activities which amount to no
more than the expression of their conscientiously held beliefs. Amnesty International
has adopted a number of these individuals, such as Emadeddin Baqi, Mashallah
Shamsolvaezin and Hojjatoleslam val Moslemin Abdollah Nouri, as prisoners of
conscience, as they were imprisoned for the non-violent expression of their
conscientiously held beliefs.
Art. 23, 27 and 30 of the Press Code deal with criticism, insult and defamation. Art. 27
provides for the ”invalidation” of a publisher’s permit to publish and referral to the courts
without the usual requirement of a formal complaint being lodged at the Press Court
where insult of ”the Leader or the Leadership Council of the Islamic Republic of Iran and
the indisputable Sources of Imitation” has occurred. Art. 30 prohibits publication of
articles containing personal insults, defamation, swear words and obscenity, though it
provides no definition regarding what constitutes these acts.
Articles of the Penal Code relating to this area of crime and punishment include the
vaguely worded Art. 514, 608, 609, 697 and 698. Art. 608 provides for flogging and a fine
as punishment for
”insulting others, such as using foul language or indecent words...”
.
Art. 514 specifically identifies insults made against the late Ayatollah Ruhollah Khomeini,
the first Leader of the Islamic Republic of Iran, while Art. 609 states that criticism of a
wide range of state officials in connection with carrying out their work (
dar hal-e anjom-e
vazife ya be sabab-e an
) can be punished by a fine, 74 lashes or between three and six
months’ imprisonment for insult (
toheen
). More specifically, Art. 609 prohibits criticism
of state officials considered to be the heads of any of the three bodies: the Supreme
Leader, the President, the Speaker of the Majles, assistants of the President, Ministers,
deputies in Parliament, members of the Council of Guardians, Assembly of Experts, the
judiciary and others.
Art. 697 states that if an individual makes allegations of an act
that ”can be considered a
crime according to law”
, but who cannot prove that it is true, will be sentenced to
between one month and one year’s imprisonment or 74 lashes or a sentence
combining the two. A note to the article states that where the statements have been
proven, but where it constitutes
”propagation of obscenities”
(
fohesha
), the person will
also be sentenced. Art. 698 concerns the dissemination of false information. This is
punishable by flogging, a fine or imprisonment.
For example, in December 2000, Ali Afshari, a student representative of the
Daftar-e
Tahkim-e Vahdat
(Office for Strengthening Unity), was arrested following a speech he
gave at Amir Kabir University in which he reportedly called for a referendum on the
election of the Supreme Leader, thus criticizing the
velayat-e faqih
, or rule of the
jurisprudent, by which the leader of Iran is chosen. This opinion was reportedly
considered to have been slanderous to the state’s leadership and has resulted in his
arrest, although Amnesty International does not know the specific articles under which
he was detained. He was held in incommunicado detention and his lawyer has stated
repeatedly that he has not had access to Ali Afhsari at all. He has been in detention
since then. In June 2001 he appeared on television apologizing for his actions.
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A current case that was reported to Amnesty International concerned Mahmud Salehi,
from the city of Saqqez (Saghez), who was the President of the local Bakers‘ Union. He
was detained in connection with trade union activities in August 2000 and released in
April 2001.
Admission criteria
Discussing freedom of expression it is important to mention a rather inconspicuous law
that was passed in response to the creation of the Supreme Council of the Islamic
Revolution in 1989. Its regulations determine who will be admitted to university, who can
and cannot receive state assistance in terms of financial grants for education or training
and who would be employed in a state body, be it the ministry or a parastatal
organization, as well as who would be able to work as a teacher or doctor. There are six
essential criteria which an applicant needs to fulfill, which, in essence, provide for
sweeping exclusions that serve to restrict freedom of expression. They require the
following:
1. Belief in Islam or an approved religion of the state;
2. Adherence to Islamic precepts (in case of non-Muslims, no violation of these);
3. Acceptance of the Islamic Republic of Iran (IRI);
4. Not having a connection with group against the IRI or with the Shah;
5. Not of unsound moral character;
6. Not having acted against or not in keeping with one’s profession.
After 1989, however, Amnesty International does not have consistent evidence as to
what a degree the regulations are implemented. There were cases in the past, when
the Komite did still exist, and when it was a more difficult to get access to relevant
information. The law could be enforced perfunctorily, or simply through a checklist, or
invoked if somebody has got a bad relationship with someone applying for university or
a state job. The criteria are still in the statue books and although the regulations may not
be enforced, they can be enforced.
According to the stories of asylum seekers interviewed by Amnesty International, this
law could indeed be one of the reasons why many people are seeking asylum abroad
although very few actually refer to it in their claims of persecution. Furthermore,
according to Iranian law a person is not guaranteed a job consistent with her/his
training, but s/he is simply guaranteed a job. There are a lot of people who were trained
in a variety of fields and may have worked for a ministry under the Shah, e.g. as a car
driver. The consequence is, if they worked for the Shah, they may not get a work permit
under the current regime.
Other Issues of Concern
Death Penalty
7
According to Amnesty International in 1999 there were 165 executions, many related to
drug trafficking. The UN Special Representative on Iran estimated that 130 executions
occurred from January 2000 to end July 2000. In 1998 a serial killer in Tehran was
executed by hanging. The media emotionally followed the case and the execution was a
very public affair. In August 1998 one of the Baha’is in detention, Ruhollah Rowhani,
was executed after the death sentence was confirmed by the Supreme Court. This was
7
Amnesty International: Iran: Halt the surge of executions, 17 August 2001
<http://web.amnesty.org/ai.nsf/Index/MDE130312001?OpenDocument&of=COUNTRIES\IRAN>
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initially denied by the Iranian Government, which later had to admit that Mr. Rowhani had
indeed been executed.
By Law the death penalty can be carried out for offenses such as espionage, murder,
armed robbery, abduction, rape, adultery or incest, sexual intercourse between a non-
Muslim man and a Muslim woman, homosexual intercourse, drug smuggling, the use of
arms to spread fear or alarm among the people or deprive them of their freedom or
security, or the spreading of corruption on earth (mofsed).
A famous case was that of the German businessman
Helmut Hofer, who was
sentenced to death in January 1998 for having had sexual relations with a Muslim
woman, and who was later released. (see UNHCR Background Paper) The issue was
of particular interest as it came after the Mykonos trial in which a German Court
accused Iran’s highest officials of responsibility in the killing of four Iranian opposition
figures in Germany. Hofer was eventually released. The release is said to have
coincided with the release of an Iranian accused of spying in Germany. As already
mentioned, the cleric Eshkevari was recently sentenced to death after his arrest upon
return from participation in the Berlin Conference, a sentence which was later
overturned.
In 2000, at least 75 executions were reported and 16 death sentences imposed, often in
connection with murder charges. However, the true number may have been
considerably higher. The Head of the Judiciary announced in January 2001 that 800
people were on death row following their convictions for drug trafficking. Death
sentences passed after the unfair trials of Akbar Mohammadi, Ahmad Batebi, Mehrdad
Sohrabi and Abbas Deldar, who had been detained following the student
demonstrations in July 1999, were commuted on 30 April. (AIR)
On 21 May 2001, in what seemed a purely political case, a former member of the
Iranian airforce, was imprisoned, convicted and executed for espionage.
The number of executions recorded by Amnesty International in Iran until June 2001 has
reached 44, although the true figure may be much higher.
The use of the death sentence is, however, not undisputed and there are indications of
dissent: Following the end of their trial in January 2001, 15 secret service agents were
convicted of murdering four political activists and writers in 1998. The verdicts passed
by a military court included three death sentences and five life imprisonment terms;
seven defendants were sentenced to between two and 10 years in prison; three others
were acquitted. All fifteen appealed to the Supreme Court against their convictions.
Relatives of several of the victims rejected the death sentences saying that they were
seeking truth rather than vengeance, and complained that the full truth about the
murders had still not been revealed. Although the Ministry of Intelligence admitted that a
network of ”rogue” agents was responsible for the murders, it denied that they were
carried out with the knowledge of senior officials. The closed-door hearings and the
failure of the prosecutors to indict, or at least summon as witnesses, any high-ranking
officials has angered reformist groups, who suspect a cover-up.
As a reaction to the public debate, there have also been attempts to silence voices of
criticism. Three journalists, Mashallah Shamsolvaezin (Asr-e Azadegan, Neshat - 30
months), Latif Safari (Neshat - 30 months) and Emadeddin Baghi (Fat'h, Neshat - 3
years), who discussed the death penalty in the press, have been imprisoned for
insulting Islam.
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Stoning
Art. 104 of the Penal Code states that
"...the stones should not be too large so that the
person dies on being hit by one or two of them, nor so small so that they cannot be
called stones."
Execution by stoning causes grievous pain before death and is a cruel,
inhuman and degrading punishment.
A man who sentenced to death by stoning managed to escape in November 1998.
8
Another man was stoned to death in April 1999 in Babol in northern Iran for the murder
of his three sons. Ahmad Asqarpour was reported to have killed his sons, aged between
seven and 12, because he thought they would stand in the way of his plans to divorce
his wife and marry another woman. He received 60 lashes before his execution.
On 21 May 2001, a 35-year-old woman was reportedly been stoned to death in Evin
prison where she had served eight years on charges of being "corrupt on earth", for
appearing in a pornographic film. This was the first stoning of a woman recorded since
1997. The woman had reportedly denied any involvement, but her death sentence was
upheld by the Supreme Court, apparently on the basis of witness testimony that she
was the woman in the film. The report did not say when the execution was carried out.
Maryam Ayoubi (f) aged 31, (no word on Hossein Esna 'Ashari, aged 24) who murdered
her husband, was reported to be facing death by stoning, as the sentence was
reportedly upheld in November 2000. The sentence was carried out on 11 July 2001.
9
Torture and ill-treatment / CID treatment
In 2000, AI recorded 49 floggings - many for ''depraved dancing'' - and 10 amputations,
but again the true number may have been higher. In July 2001, BBC reported that
"in the
past few weeks about 100 young men have been flogged in several incidents in Iranian
towns."
10
Students Akbar Mohammadi and Ahmad Batebi were tortured in the Towhid detention
centre in South Central Tehran, which had already been in use under the Shah and has
in the meantime been closed by the authorities. Towhid, administered by the Ministry of
Intelligence, was closed in August 2000 by order of the judiciary. Akbar Mohammadi
stated that his feet were whipped with metal cables and that he was suspended by his
limbs. In addition, he was repeatedly kicked and beaten, and when he could no longer
move he was told by his torturers that all he needed to do was to admit that he had
thrown a molotov cocktail during the student demonstrations. If he had agreed to that
they would have stopped the beating. Ahmad Batebi stated that he had been beaten
while blindfolded and bound, and ordered to sign a confession. He reportedly wrote that
his head was plunged into a drain full of excrement and held under, forcing him to inhale
excrement through his nose and into his mouth. Their death sentence was overturned
in April 2000 and the two men were sentenced to 15 and 10 years' imprisonment
respectively (see ai Annual Report 2000).
8
BBC: Lucky escape from execution, 22 November 1998
<http://news6.thdo.bbc.co.uk/hi/english/world/middle%5Feast/newsid%5F219000/219713.stm>
9
Amnesty International: Iran: stonings should stop, 11 July 2001
<http://web.amnesty.org/ai.nsf/Index/MDE130242001?OpenDocument&of=COUNTRIES\IRAN>
BBC: Iranian adulteress stoned to death, 12 July 2001
<http://news6.thdo.bbc.co.uk/hi/english/world/middle%5Feast/newsid%5F1435000/1435760.stm>
10
BBC: New floggings in Iran, 29 July 2001
<http://news6.thdo.bbc.co.uk/hi/english/world/middle%5Feast/newsid%5F1463000/1463656.stm
>
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In early 2001 three men were reported to have had four fingers of their right hands
amputated after being convicted of repeated theft; three young men from the same
family received 180 lashes each for drinking alcohol and having illicit sexual relations;
four men received 99 lashes each before being hanged for murder, adultery and rape.
Current human rights issues in Iran
New legislation
The presidential campaign went quietly. Parliament passed two new laws that have not
been ratified by the Council of Guardians, but if ratified could have brought a significant
improvement of the human rights situation in Iran.
One deals with the definition of political crimes for the first time in 20 years, and would
have made arbitrary arrest more difficult and perhaps helped reformist politicians
already jailed to get retrials. It sets out what constitutes a political crime and states that
someone accused of a political crime must be tried in an ordinary court and must have
access to a lawyer, and that he will not be advised to wear prison garb. However,
shortly after Khatami's re-election the Guardian Council has rejected the law.
The second law concerns the reform of the Public and Revolutionary Courts, in
particular regulations concerning the unification of prosecution and judgment. If ratified it
would separate the role of prosecution and that of judgment. In addition, the law obliges
the judiciary to guarantee the rights of the defence on every stage of the interrogation
and investigation, stipulating that the judge has no right to hold a court meeting in the
absence of the defence lawyer. A judge disregarding the rights of the defence present
should face disciplinary actions by an administrative court.
11
Prison conditions
As prison conditions discussed widely in the Iranian press, the issue has received a lot
of attention and has been discussed by members of Parliament themselves. A
parliamentary delegation has recently visited Iranian prisons and reported that they are
extremely overcrowded.
Amnesty International has heard that it is possible to bribe one's way out of prison. That
may not be so much the case in Tehran, but certainly in the provinces, where in
individual cases prisoners might be able to leave even through the front door. For
instance, if the prison authorities in a small town received a fax ordering them to release
a prisoner, they would reportedly obey the order. These reports are not confirmed,
however.
Most major cities and some minor cities have a so-called Office of the Republic. The
Internet and electronic tools have been used to set up databases that help to locate
people and to check who is released legally from prison. Therefore, according to
unconfirmed reports, moving around to avoid places where you could be at risk of
criminal persecution, may not always be possible. However, there are anecdotal cases
where a powerful religious figure, usually associated with Qom, has the connections to
prevent someone from going to prison or if they go there that nothing will happen to
them.
11
ACCORD does not have information on the current state of the draft law.
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The recent amnesties marking the birth of the Prophet, which included some 6000
inmates, are very common in the Muslim world. It is very well possible that they may
also be linked to prison conditions as they present a convenient measure against
overcrowding. Prisoners wanting to be released under the amnesty have to pay fees,
and the opportunity is used to set those free who have been imprisoned e.g. in
connection with the Hajarian assassination (security officers) or in connection with
freedom of expression (journalists). Amnesties are certainly used very selectively.
Political violence
One of the most prominent cases was the assassination attempt on Saeed Hajjarian,
one of the leaders of the largest reformist faction, the Islamic Iran Participation Front
(IIPF). He was shot at in central Tehran on 12 March by two men on a 1000 ccm
motorcycle. He was rushed to hospital in a coma but is now able to speak and walk
again and to continue to work as city councillor. In Iran there is a general ban on
motorcycles over 200 ccm. Large motorcycles are known to be reserved for members
of the Ministry of Intelligence and the armed forces. Eight people were tried, and after
three hearings one received a 15-year sentence, four were sentenced to between 3 and
10 years for their role in the attack, three of the accused were acquitted. The trial was
rushed, with the intention – according to some newspapers – to allow those who
masterminded the operation to escape.
There were student demonstrations throughout the year 2000, in particular in
Khorramabad in northwestern Iran, at the end of August 2000. Violent clashes between
pro-reform supporters of President Khatami and those opposed to any change. Two
clerics who wanted to address the meeting, Abdoulkarim Soroush and Mohsen Kadivar,
a former prisoner of conscience, were blocked by protesters from entering the
university premises. In the disturbances that followed, many protesters, including
several policemen, were injured, and 20 people were arrested. Ultimately, at least six
different investigations into the disturbances were carried out.
Other cases include that of Amir Farshad Ebrahimi (see under 'Impunity') and "Kou-ye-
Daneshgah" (Tehran University dormitory) as well as the beating up of Hojjatoleslam
Abdollah Nouri and Mashallah Shamsolvaezin
.
Impunity
Although in the trial of those who carried out the serial murders in 1998 15 secret
service agents were convicted the masterminds of the operation went unpunished.
When the Head of the Ministry of Intelligence was summoned by the prosecution, the
judiciary rejected the motion, arguing that they had already taken his statement and
since the Minister was a cleric he spoke the truth and did not need to come to court.
In a case involving the Law Enforcement Forces (LEF) dating back to May 1999, an
eight-months jail sentence against Brigadier General Gholamreza Naqdi, former head of
intelligence and security, was upheld by an Iranian appeals court in February 2000. He
was brought to trial following allegations by over 30 district mayors in March 1998 that
they were tortured by the security police to extract confessions during their detention on
charges of corruption.
Brigadier General Farhad Nazari and 18 officials of the Law Enforcement Forces were
acquitted by a military court of disobeying Ministry of the Interior orders in connection
with a raid on student dormitories during the 8 July 1999 student demonstrations.
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Students injured in the raid, represented by Mohsen Rahami (see above), were,
however, compensated by the same court. (AIR)
Amir Farshad Ebrahimi appeared in a video in 2000 where he reportedly speaks of his
activities in the vigilante group,
Ansar-e Hezbollah
. He allegedly implicates senior
establishment figures in allegations about the activities of the group, including a failed
attempt to murder Hojjatoleslam Abdollah Nouri, former Vice President and Interior
Minister. He was imprisoned after an unfair trial by a Special Court for the Clergy.
Social Unrest
In response to the persistent economic problems in Iran, numerous protests have taken
place in the year 2000 throughout the country. In one incident, three people were
reportedly killed on 5 July 2000 in the southern city of Abadan following the violent
confrontation between security forces and angry demonstrators protesting over the
chronic shortage of drinking water.
Positive Signs
Besides the passing of laws on the definition of political crimes and the reform of the
Public and Revolutionary Courts by the Majles, the work and impact of the Article 90
Commission of the Majles, which investigates human rights abuses and gets
increasingly good media coverage, is very encouraging. The Commission seeks to
implement the provisions of Article 90 of the Constitution which charges
Majles
deputies with the duty of receiving and remedying the people’s complaints against the
judiciary, the executive and the legislature. The article specifically states that says that
any citizen can lodge a complaint with parliamentarians to investigate actions by the
executive, judiciary and government officials.
The Article 90
Majles
Commission welcomed a decision in December 2000 by the head
of the Tehran Justice Department to allow prisoners to have meetings with MPs, thus
overturning an earlier ruling by Judge Mortazavi forbidding such contacts.
Furthermore, the Islamic Human Rights Committee, headed by Mohammed Hassan
Ziaifar, has been extremely effective in supporting lawyers and in ensuring that fair trial
procedures have taken place.
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Presentation by Bernard Quah,
additional remarks by Drewery Dyke
11 June 2001
12
II. Groups at risk
II.1. Political opposition
Opposition parties
Especially in the early years after the revolution most existing opposition groups in Iran
were brutally and systematically crushed. Members of groups such as the Mudjahedin-e
Khalq Organization (MKO), the Organization of Fedayan (majority and minority), the
Tudeh Party as well as the Communist Party of Iran, who had actively participated in
toppling the Shah were one by one rounded up, prosecuted, executed and made to
inform on other groups or on their own members. Although this slow elimination
process happened in the 1980s this does not mean that individuals who had affiliations
with one of the above groups do not face any risk of persecution today.
As a consequence of the systematic repression after the Revolution, at present there is
hardly any organized traditional opposition to the present Islamic Government. Although
abroad there are many opposition groups, ranging from leftist parties, to nationalist,
monarchist, ethnic or clerical Islamic groups, none of these groups has any power
basis inside Iran.
Mudjahedin-e Khalq Organization (MKO)
However, although the MKO operates from abroad the Government of Iran feels the
MKO to be a threat and is worried about possible infiltration through Afghanistan or Iraq
and terrorist attacks against state institutions or individuals. In the past two years these
attacks have clearly intensified and for the first time there are repeated references to
activities by the MKO (officially called
Monafeghin
or hypocrites). There have indeed
been a number of bomb blasts and killings of military or individuals who had a position
of responsibility at the time of the Revolution (2/6/98 bomb explosion in a revolutionary
court killed three persons and injured six; 2/6/98 bomb explosion at Revolutionary
Guards HQs in Tehran with no casualties; 1994 bomb explosion at the shrine of Imam
Reza in Mashhad killed 26 people) carried out by the MKO. The MKO has also claimed
responsibility for the murder (August 1998) of Assadullah Lajevardi and his brother in
the centre of the Tehran Bazaar. Lajevardi was a former revolutionary prosecutor,
former Head of Evin prison and former Head of Iran’s Prison Organization.
The MKO have a military capacity in Iraq and have been reported to have made
arrangements with the Taleban in Afghanistan to use their territory bordering Iran. The
MKO currently operate a satellite TV broadcast and frequently have cross-border
commando-type operations. Only recently, there was an exchange of fire (May 2001)
between Iranian authorities and MKO fighters. The MKO’s bases inside Iraq are located
in firing range of small missiles to the Iranian border. Although there have been reports
that civilians were killed on the Iraqi side of the border, who happened to be associated
with the Mudjahedin, it is worth noting that the Mudjahedin are an armed group and that
it would be extremely unusual to have members of their group unarmed on that side of
12
For further information on human rights issues and groups at risk Iran please see also
UNHCR: Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran,
January 2001 <www.unhcr.ch>
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89
the border. There are cross-border incursions by the MKO as far north as North
Kordestan. The border to Iraq is quite porous and not controlled in most places except
the south. In addition, there have been unconfirmed reports relating to the trafficking of
children to European countries, notably to Germany and the Netherlands.
The MKO has no powerbase in Iran. They are feared and hated by a whole generation
of Iranians who have lived through the Iran-Iraq war and who consider the MKO as
traitors because they sided with the enemy. However, a situation may be developing
that might provide a fertile ground for recruitment by the MKO amongst mainly young
Iranians, who are disappointed with the present situation and who have never
experienced war. The Iranian Government is aware of the presence of the MKO on the
country’s borders and of the MKO’s excellent PR efforts abroad to present themselves
as the main Iranian opposition group. Thus the MKO may be revived by instigating the
younger generation to take on their cause.
Members of the MKO are proven to be at risk. Those who are seen to have or to have
had links with this organization are prosecuted severely. Of course, as the MKO is not
unwilling to commit human rights violations, the possibility of exclusion will need to be
considered.
KDPI, CPI-Komaleh, Rahe Kargar
Occasionally, there are reports of skirmishes in the areas bordering Iraq between the
Iranian army and the Kurdish Democratic Party of Iran (KDPI), which operates from
Iraqi territory. However, the KDPI as well as the Komaleh, the Kurdish branch of the
Communist Party of Iran, have seriously curtailed their activities. The murder of the
former Leader of the KDPI, Abdolrahman Ghassemlou, in 1989 in Vienna and the later
murder of his successor Sadegh Sharifkandi in Berlin (Mykonos restaurant) in 1992 as
well as the murder of other important members of the KDPI in Northern Iraq have dealt
a very serious blow to KDPI activities and to the morale of its members. As a
consequence of the harsh actions initiated by the Iranian government against these
groups they do have no power base inside Iran. Some very committed KDPI members
stated that they abandoned their party as they no longer had faith in its capacity and
political agenda. In addition, as is the case for most Communist parties, events in
Eastern Europe and the changes in the major Communist parties have also had a
devastating effect on Komaleh activities.
Although KDPI and CPI-Komaleh have no power basis in Iran and mainly share some
facilities in Iraq, their members are at risk as they face incursions from the Iranian
authorities. In addition, there is the Rahe Kargar, the Organization of Revolutionary
Workers of Iran, which is as close to being a ‘categorical at-risk-group’ as is possible.
The UK recently admitted one Rahe Kargar activist.
Nationalist/Monarchist Groups
Liberal Nationalist groups such as the National Movement of Iranian Resistance (NMIR,
Nezhat-e Moghavamat-e-Milli) who were very active in the early eighties and supported
by many former Iranian military officers in and outside of Iran, have also been losing
ground and no longer play an active role in opposition activities inside Iran. The murder
of its leader Shahpour Bakhtyar in Paris in 1991 had a crushing effect on the group’s
activities.
Although often Iranian asylum seekers claim to have carried out activities for either
nationalist or monarchist groups inside Iran (distributing pamphlets, putting up posters,
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organizing resistance etc...) there is no evidence of any such activities inside Iran.
Occasionally urban professionals such as lawyers or doctors who have a fax machine
receive unwelcome and unsolicited fax messages from abroad with monarchist or
secular nationalist messages.
There are, however, numerous monarchist splinter groups in many of the European
countries, that have lost all sense of reality with respect to Iran. Some are not more than
coffee gatherings, others try to pursue some structured activities with members,
admission fees, occasional publications, contact with the exile community and with
recent arrivals from Iran, some are slightly more active such as the Derafsh-e Kaviani
led by former Minister Manouchehr Ganji, but in fact none of these organizations are
known in Iran or have activities inside the country.
Freedom Movement of Iran (FMI)
The only existing opposition party currently in Iran is the Freedom Movement of Iran
(FMI, Nehzat-e Azadi). This party, founded in 1961 by former Prime Minister Mehdi
Bazargan, had been tolerated in Iran but never formally accepted. The party had been
openly criticizing Iranian domestic and foreign policies. After Bazargan’s death in 1995
the party was not permitted to carry out its activities any longer. In February 1998 the
then Minister of the Interior Abdullah Nouri, announced that the party was illegal while at
the same time hinting that the application would be considered if the party were to
register under another name. The Minister of the Interior also announced that Ansar-e
Hezbollah, a radical group known for its incitement of violence against other political
groups was equally illegal unless it registered formally. The application for registration of
one political party, the Kargozaran-e-Sazandegi (Executives of Construction), has been
approved as is the case with a number of other political parties.
The members of the Freedom Movement were the latest victims of the clampdown on
freedom of expression and association. Currently, twenty-six members of the Iran
Freedom Movement face charges of "acts against national security" and planning to
"overthrow the system." The trial is to be held in Tehran's Revolutionary Court.
13
Clerics
Given that the traditional opposition to the current Islamic regime is practically non-
existent in Iran, the true opposition nowadays comes from within the system. There are
reports that the majority of those who are currently detained and considered political
prisoners are clerics.
A case in point is a comprehensive June 1997 report by Amnesty International on the
persecution against clerics called ”Iran: Human Rights Violations against Shi’a Religious
Leaders and their followers”. It indicates serious and widespread human rights
violations against Shi’a religious leaders opposed to fundamental tenets of the Iranian
political system such as the concept of
velayat-e-faghih.
The AI report notes
”that since
1995 dozens if not hundreds of followers of religious leaders have reportedly been
arrested often in an attempt to pressurize the leaders to change their views or stop their
opposition. At least three senior religious leaders have also reportedly been placed
under house arrest. Some of those detained are said to have been subjected to
numerous methods of torture or ill-treatment including beatings, severe burns, electric
shocks, sleep deprivation, confinement in very small spaces, threatened executions
13
Human Rights Watch: Iran: Release Detainees from Iran Freedom Movement, 10 November 2001
<http://www.hrw.org/press/2001/11/iran1110.htm>
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and threats to relatives. A few have been sentenced to prison terms, sometimes
accompanied by flogging, after apparently unfair trials and the fate of some is unknown.”
Last year, the daughter of Ayatollah Hossein Ali Montazeri, who has been under house
arrest for seven years and been been released yet, wrote a public letter stating that she
had been visiting prisons since childhood for one or another member of her family but
that the treatment she had recently experienced was far worse than that she
remembered when visiting prisons in the time of the Shah. Her husband (Montazeri’s
son-in-law) Hadi Hashemi
,
was arrested in June as part of a crackdown on supporters
of Ayatollah Montazeri in the Central province of Isfahan. At least 15 people were
reportedly arrested after Supreme Leader Ali Khamenei issued a harsh warning to
Montazeri supporters in May 1998, accusing them of plotting against the regime. Clerics
are prosecuted by the Special Court for the Clergy, that was originally established in
order to ensure that the clergy could not be considered to be above the law and that it
could also be prosecuted if some of its members acted contrary to the Law.
Unfortunately, the Special Court for the Clergy (SCC) has become one of the most
repressive and conservative organs within the Iranian establishment. Recently
Hojatoleslam Eshkevari, a highly respected liberal-minded mullah, was arrested and
sentenced to death by the SCC upon his return from the Berlin Conference of April
2000. The death sentence was overturned by an Appelate Court in May 2001 and
Eshkevari is waiting for his case to be heard again by a Special Court for the Clergy.
14
Generally, the extent to which persecution of clerical opposition takes place to the
regime is little known outside of Iran. It is important to be alert to the possibility that
supporters of particular opposition clerics might face persecution themselves. For
instance, currently there is an asylum applicant in the UK, claiming persecution
because of his affiliation with Montazeri. In addition, Montazeri’s website, before it was
shut down for a copyright violation (it was based on a server in Australia), featured a
long list with the names of members of his family who were murdered.
With regard to the persecution of those who carry out opposition activities inside Iran,
those who have proved that they belong to groups that are actively carrying out political
activities against the Iranian regime in Iran or abroad can face severe persecution. With
regard to those who are abroad it will depend on the profile of the person and the degree
to which the Iranian security is aware of the activities. It all depends on what kind of
documentation exists on a person. If there is evidence that a person is involved in
opposition political acivities this might be detrimental to the person’s security.
Opposition in exile
Political assassinations of opponents abroad have been a regular feature since the time
of the Revolution, starting from the murder on Tabatabaei, spokesman of the Shah in
the USA, to the reported killings of members of the KDPI in Northern Iraq or of
Abdurrahman Ghasemlou, Sadeq Sharefkandi, Shahpour Bakhtyar and many others.
There is a particular danger for Iranians known to have links with the MKO, KDPI,
Fedayan, high profile members of the NMIR or of some of the more known
nationalist/monarchist parties abroad.
14
"
Ruhollah Yusefi -Eshkevari said in this regard: "The Special Clergy Court has given my father
informal news." He said that an appeals court had overruled the initial court judgement against his father.
He said: "A retrial may be held before the end of the year [to March 2002]." He added that his father had
not met his family recently but continued to speak to them every evening on the phone."
reported by
Hayat-e Now: "Alireza Rajayi: Those arrested on the 21st Esfand have not yet received a summons", 10
October 2001 (WNC Document FBIS-NES-2001-1119)
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On the other hand, there are cases where members of the Fedayin majority faction who
had fallen foul with the Iranian regime in 1979 and even 1985/86 have gone back to Iran
and opened businesses. In individual cases, involving problems with the authorities in
the past, and more recently if the problems are rather low-key, there might not be any
risk of persecution upon return. Elections in the US for the Iranian parliament required
valid Iranian ID cards and reportedly the showing was quite good, due to the
participation of many Iranians including those who may previously have had problems
with the authorities.
There are no reports on persecution of people who had studied in former Socialist
countries.
Journalists/Editors
15
The most noticeable effect of President Khatami’s commitment to reforms was the
absolute revolution that had occurred in the written press. There was an enormous
amount of new publications, newspapers, magazines and for the first time since the
establishment of the Islamic Government there was, within certain limits, an
unprecedented freedom of expression, criticism of the Government, analysis of political
events, exposure of corruption, etc. However, even at that time, freedom of expression
was not tolerated if it conflicted with Islamic principles or was considered disloyal to the
principles of the Islamic Revolution. However, in the past two years, the conservative
dominated judiciary has banned most reformist publications which had been backing
moderate President Khatami and imprisoned many editors, journalists and publishers.
The Leader Khamenei has repeatedly attacked the reformist press as bases of the
enemy and intervened to stop the Majles from amending a very repressive press law
that had been passed by the outgoing former Majles. The Guardian Council ruled that
any change to the existing press law would be against Islam's basic principles and
against the Leader's wish. There are still examples of arrests of editors, journalists and
writers in 2001 (arrest of Mohsen Saidzadeh,
a cleric who had written an article
criticizing the strict norms regulating the role of women; death sentence for spying for
Morteza Firoozi, former editor of Iran News; three-month detention of Akbar Ganji, editor
of the weekly Rah-e-Nau, accused of blasphemy against Ruhollah Khomeiny); closure
of newspapers (Jameh).
In the current circumstances it will be necessary to very carefully assess cases of
individuals claiming fear of persecution based on their writings. It is evident that in
particular writers, journalists, editors and other intellectuals who have challenged the
system and those who have openly criticized or questioned the Islamic foundations of
the Iranian regime, the Islamic Revolution or have openly attacked the radical
conservative establishment are facing very serious problems such as arrest and
detention or face harassment by non-State agents.
Reformist intellectuals
In the past years, there have been a series of arrest initiated by the conservative
judiciary that have targeted reformist journalists, editors, writers, lawyers, publishers,
student leaders, officials close to the President, dissenting clerics partial to the Khatami
Government. This is a new development that has introduced a new group of potential
asylum seekers with a different profile than in the past years. Recently, President
15
For more detailed information on freedom of expression please see Part I., Chapter on Human Rights
(p. 18ff.)
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Khatami has accused the conservative judiciary of misusing its powers to repress any
reforms in Iran, typically in form of arbitrary arrests and torture of detainees.
It is clear that when presented with cases of vocal pro-Government intellectuals or with
intellectuals criticizing the institution of the Islamic State, the case will need to be
examined on an individual basis while keeping in mind the pattern of current arrests and
harassment of vocal reformist intellectuals. However, it would be wrong to assume that
all intellectuals are being persecuted. Each case will need a careful review.
Berlin Conference
16
A Revolutionary Court in Tehran on 13 January 2001 announced tough jail sentences for
7 intellectuals for their involvement in a conference in Berlin (April 2000) that was seen
by hard-liners as a threat to the Islamic system. The verdicts, much harsher than
expected, exacerbated Iran's internal struggle. In all, 17 intellectuals were arrested and
put on trial. Hojjatoleslam Hasan Yousefi Eshkevari, a well-known dissident cleric, was
sentenced to death by the Special Court for the Clergy which was later overturned. In
addition to the charge of undermining state interests, the 51-year-old cleric was
accused of apostasy. In January 2001, Tehran's Revolutionary Court issued its verdict
for the remaining 16 of whom 6 were acquitted, two were fined and one received a
suspended jail sentence. The remaining 7 were given jail sentences ranging from 4 to
10 years. All are expected to appeal. Two women, Mehrangiz Kar, Iran's most
prominent women's rights lawyer and Shahla Lahiji, a publisher, were both sentenced to
four years in prison. Ms. Kar is seriously ill with breast cancer developed while in
detention. The court has denied treatment abroad. Ms. Kar is also facing a separate trial
on charges of not observing Iran's strict Islamic dress code. Analysts in Tehran saw the
Court's verdict as aimed against the President's political reforms and said it would
intensify the power struggle with his conservative opponents just 6 months prior to the
scheduled Presidential elections.
Student demonstrations
17
With regard to claims of students who have participated in student demonstrations, it
should be kept in mind that of the thousands who participated in student rallies all over
the country several hundred were arrested. Thus not only the student leaders were
arrested and later imprisoned but also a number of mere participants were convicted
with some of them still being in detention. Amnesty International knows of a number of
cases in the UK relating to the July 1999 incidents and of one case in Norway regarding
Khorramabad in northern Iran. In this regard, it is important to keep an eye out for
particular riots as only a small number of protests and demonstrations actually involve
students and intellectuals.
Rejected Asylum Seekers
There are two dimensions to this issue. On the basis of the information Amnesty
International receives, usually a person who gets back will be asked why s/he was
abroad. If the answer is along the lines of ”I just tried to find a job”, they will most likely
be allowed to go home to their families. Generally speaking, it does depend on what kind
of documentation exists on the returnee and what the actual practice of the country is in
16
HRW: Stifling Dissent: The Human Rights Consequences of Inter-Factional Struggle in Iran, May
2001. <http://www.hrw.org/reports/2001/iran>
17
Differences in the assessment by the country resource persons of the risk of persecution of
participants in student demonstrations were clarified in the afternoon session.
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which the concerned individual applied for asylum. In some cases rejected asylum
seekers are issued one-time laissez-passers or similar travel documents.
DD. If you have so many cases invoving one of the three categories it raises the
question of credibility. Armenians are a small group who are not in the first instance
subject to human rights violations.
II.2. Religious minorities
Iran is an Islamic State with an Islamic Government governed by Islamic Law. It is
unavoidable that discrimination of non-Muslims occurs. The Constitution of Iran officially
recognizes as religious minorities in Iran Christians, Jews and Zoroastrians, as they are
‘religions of the book’. Within the limits of the Law these minorities are free to perform
their religious rites and ceremonies and to act according to their own rules in matters of
personal affairs and religious education. The Constitution further declares that these
religious minorities should be respected as long as they refrain from engaging in
conspiracy or activities against Islam and the Islamic Republic of Iran (Art. 14).
In addition, members of the recognized religious minorities have representatives in the
Majles. At present there seems to be an outflow of Christians (Armenians and
Assyrians) from Iran. Meetings with representatives of the communities as well as
many of its members give the impression that one of the main reasons for the outflow is
the possibility of immigration to the USA and the facility with which it is possible to obtain
a visa for certain European countries from where they are then processed for further
migration. The situation appears not to have changed over the last two years.
Armenians are a small group who are not in the first instance subject to human rights
violations. Persecution of Armenian Christians would be something quite unusual,
something one usually does not hear of. Stories of Armenian-Orthodox asylum seekers
who were not living in the Northwest, where Christians normally live, and claim
persecution could indicate a new trend. In any case, if an Armenian is an Evangelical
Christian who proselytizes, s/he would be at risk.
Thus, in principle there is no persecution per se with regard to the recognized religious
minorities. However, there are elements of discrimination that can vary from person to
person, from place to place and depending on the mood of the moment. UNHCR
suggests that on a case by case basis, claims from persons belonging to religious
minorities be considered in light of the possible elements of discrimination. If these
elements are many and if the subjective element of fear is there, one could argue that
on cumulative grounds the discrimination experienced could amount to persecution.
(e.g. Baha’is) In addition, Christians who proselytize among Muslims have been at risk.
Concerning Muslims, there are no sanctions imposed on those who do not follow
Shiism. There is no regulation that requires a person to go to the mosque or men to
wear beards. On the other hand, there can be occasions, in certain areas, at certain
times (e.g. religious holidays), when religious tensions do arise and there may be the
risk of human rights violations in some parts of the country as a result of not adhering to
or appearing not to adhere to the religious precepts.
It is also crucial to understand that in Iran it is unthinkable that somebody does not
belong to any religious group. The religious affiliation of every Iranian citizen is
registered in her/his national ID card.
Jews
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About 27.000 Jews are thought to live in Iran making it the largest Jewish community in
the Middle East outside Israel. The community is based in Tehran, the central Fars
province and in particular Shiraz and Isfahan. Around 10,000 are estimated to live in
Tehran. Prior to the Revolution the community was estimated to be 70,000. Since the
Revolution there have been large departures of members of the Jewish community.
Together with the Christian and Zoroastrian faiths the Jewish religion is one of the three
religious minorities officially recognized by the Iranian Constitution. The Iranian Jewish
community has the right to one seat in the Majles and its members have the right to
profess their faith. Undoubtedly there is a certain degree of discrimination. This is
evident from the Iranian laws that clearly make a distinction in treatment between
Muslims and non-Muslims.
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The ”espionage” trial
In March 1999, 13 Jews were arrested in Shiraz and Isfahan and charged with spying
against the Islamic Republic of Iran on behalf of Israel and the US. The group consisted
of Rabbis, religious teachers and community workers and all belonged to the more
orthodox section of the Jewish community in Fars province. Shortly after the arrest,
while international pressure was increasing, it was announced that in addition to the 13
Jews, 8 Iranian Muslims had also been arrested for the same offence. Ultimately, only 4
Muslims remained of the original group of 8. The verdict, issued on 1 July 2000, found
12 suspects guilty (10 Iranian Jews and 2 Muslims) and acquitted 5 suspects (3 Iranian
Jews and 2 Muslims). Those convicted were given prison sentences of between 2 to 13
years, although an appeals court in September 2000 reduced the sentences by up to 6
years, leaving the convicted men with sentences of 2 to 9 years.
According to most analysts at the time, the arrests were seen in the context of attempts
by hard-line conservatives in the judiciary to discredit the reform-minded Government by
tainting its successes in the field of diplomacy and foreign policy. According to Morris
Motamed, a newly elected Jewish representative in the Majles, Jewish emigration had
accelerated in 1999 as a result of apprehension due to the spy case. However, from his
point of view, there are no religious reasons to leave Iran.
Asked if following this trial, the situation had deteriorated for the Jewish community, the
UN Special Rapporteur on Iran, Maurice Copithorne, stated that the situation had not
deteriorated over the last 5 years. However, with regard to the overall situation, Mr
Copithorne noted that a latent anti-semitic dimension existed in Iran.
According to Amnesty International, the situation of Jews is quite complex. The Shiraz
trial certainly had a negative knock-on effect concerning anti-Jewish sentiments. In this
context, it is also worth noting that the entry and exit of some minorities, and Jews in
particular, is closely regulated and that the Iranian authorities meet annually with leading
Iranian Jews in Geneva to review who will be allowed to leave and enter the country.
UNHCR would not declare a situation of general persecution of Jews in Iran. Claims
should, however, be considered on a case by case basis, taking into consideration the
subjective elements of the individual case that might have been exacerbated by the
Court case and the verdict. Also elements of discrimination should be considered that
could lead to the assessment that on cumulative grounds one could speak of
discrimination amounting to persecution.
Baha’is
There are still an estimated 300,000 Baha'is living in Iran. Undoubtedly the situation has
changed since the early years after the Revolution and improved, but it is far from
acceptable. On the positive side, some Baha’is are receiving passports, Baha’is are
permitted to receive education, and there does not seem to be any systematic
persecution of Baha’is compared to the level of the initial years of the revolution.
However, the situation is still one of very serious concern and far from acceptable in
terms of human rights compliance. There is still a great level of discrimination. Baha’is
are not allowed to further their education above third grade of High School; have no
access to special schools; are not permitted to have free entry and exit from Iran but
are only given a one-time exit; the 21 Baha’is in prison accused of apostasy or
espionage are still detained (11 since 1997); in August 1998 Ruhullah Rowhani, a Baha’i
who was amongst the group of Baha’is in prison, was executed on the charge of having
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tried to convert a Muslim to the Bah’ai faith in prison. The Government of Iran denied
that any execution had taken place but later informally confirmed to some Western
Governments through their diplomatic representations abroad that the execution had
taken place after confirmation of the death sentence by the Supreme Court.
Discrimination is still occurring with regard to inheritance rights, blood money,
compensation and other rights accorded to Muslims; prohibition of employment in
Government service; no restoration of pension and social security rights to those who
were dismissed; public accusation of espionage by the former Chief of the Judiciary,
Ayatollah Yazdi; prohibition to profess their faith; prohibition of official gatherings and of
the functioning of a Bah’ai National Assembly; no restoration of confiscated property.
According to the Baha'i Universal House of Justice, on January 2000 there were still 11
Baha'is in prison because of their religious beliefs. Two have been sentenced to death
and a third death sentence was expected to be issued.
Concerning members of other communities who have close relations with Baha’is the
picture is less clear. For instance, a person marrying a Baha’i will certainly have to go
through an official bureaucratic process, thus the fact of the marriage will at least to a
certain degree be public. The risk of persecution, however, depends on many other
factors, e.g. how well-known the marriage is in the community.
It should also be noted that it is very difficult and risky to obtain information on the
situation of Baha’is in Iran. The Baha’i community is living under a lot of pressure and is
not keen to take any risks that might increase their current problems and jeopardize the
slight improvements that have occurred in the past few years. In eligibility interviews
with Baha’is there often is a basic inconsistency on the one hand between the bland,
unemotional, uneventful narration and on the other hand totally contrasting reports by
human rights groups and others who had visited Iran. Why then had some of the
asylum seekers approaching UNHCR felt the need to do so as they did not describe any
specific persecution and sometimes did not appear to be even aware of the
discrimination their community was faced with?
One should keep in mind when assessing Bah’ai cases that the Bah’ai community has
no interest in publicizing the real state of affairs as that could compromise slight
improvements and possibly the situation of those Baha’is currently detained as well as
those sentenced to death, for whom appeals for amnesty have been made. The
statements by the UN Special Rapporteur on Iran, Galindo Pohl, in his report of 1991
are still applicable to the situation of Baha’is in general in Iran today
”[...] a great
discriminatory attitude towards the Baha’i community persisted [...]. It was also asserted
that in many cases administrative and judicial decisions concerning Baha’is were
characterized by arbitrariness and that the degree of discrimination or tolerance towards
members of the community depended to a large extent on the attitude taken by
particular authorities or individual civil servants. Baha’is were generally considered as
unprotected infidels outside of the protective precept of the Law and in cases brought
before a court their rights depended on the individual judge’s good will.”
There may have been some slight improvements in the situation of the Baha’is, but it is
still essential to be very liberal when deciding on Baha’i claims, as the situation in Iran
definitely would justify that. Although in principle one should consider claims case by
case, there is a wealth of information that should bring us to accept the near totality of
Baha’i asylum claims.
When assessing a Baha’i claim it is also recommended to ascertain the true
membership of the applicant to the Baha’i community through presentation of a
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certificate from the relevant local Spiritual Assembly or the Baha’i Universal House of
Justice. However, the fact that a Baha’i certificate is not available or that the Spiritual
Assembly does not ”certify” a particular case does not necessarily mean that the
applicant is not a Baha’i, nor that the individual would have no reasons to fear
persecution in Iran on grounds of adherence to the Baha’i faith. What could be the case
is that the Spiritual Assembly temporarily wishes to punish the Baha’i asylum seeker for
particular activities that go against the faith. This was the case in the late 1980s when
the Baha’i Assembly refused to certify all those Baha’is who had left Iran legally with a
passport. The justification offered was that in order to obtain a passport the applicant
must have omitted to mention the Baha’i faith in the application for the passport, thus in
the eyes of the Assembly denying the Baha’i faith. This denial of faith was considered
more important than the fact that the person by applying for a passport and omitting to
mention the word Baha’i might have managed to avoid persecution from a regime that
did persecute Baha’is.
18
Conversion/Apostasy
An Iranian Muslim who converts to another religion is considered guilty of apostasy. The
crime of apostasy is, in accordance with Islamic Law as applied in Iran, punishable by
death or lifetime imprisonment, depending on the particular circumstances of the case.
With regard to the punishment, a distinction is made. For those born from Muslim
parents (even if only one of them is a Muslim) anyone found converting shall be
executed. Those born from non-Muslim parents who had converted to Islam and then
converted again to another religion, shall be invited to repent. In the event they refuse
they shall be executed. With regard to women detention and flogging shall be applied
instead of the death sentence. There have been executions, particularly in the early
years of the revolution. It would appear that at present the Government is not pursuing
an active and systematic policy of investigation and prosecution of cases of apostasy.
However, it should be noted that some of the Baha’is sentenced to death have been
charged with apostasy.
Interestingly, there are also reports of Armenian-Orthodox - not even Evangelical -
Christians, who converted to Islam, and were ostracised by their communities. These
reports are very hard to confirm, however.
When confronted with cases claiming persecution because of their conversion, it would
be advisable to make a distinction between those individuals who have genuinely
converted in Iran prior to departure or flight and are known to the religious institutions
with whom they have converted and those who decided to convert after arrival in a
potential host country. Depending on the credibility of the case, those who converted in
Iran should definitely be recognized, as the risk they have taken is very great and would
show the level of personal commitment. Recognition of their refugee status would be
based on the genuine fear of persecution if detected and if prosecuted.
Concerning proofs or certification that show that somebody has converted prior to
her/his departure and is recognized by her/his own religious institution, in individual
cases such papers may have been issued. Nonetheless, as these kinds of documents
18
Taqiah is a specific facet of Shiism, which provided early-century Shias to dissimulate by denying their
religious affiliation. As Shias are safe or even in positions of power in most Middle Eastern countries,
leading clerics and Ayatollahs would most likely not decide that Taqiah should currently be practised.
Concerning Baha’is, there is no clarity whether they have been instructed to use Taqiah in order to avoid
persecution. However, the attitude displayed by the
Baha’i Assembly in the 1980s would rather speak
against it.
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will put a person at risk when trying to leave Iran, it is more likely that they are not issued
and that a refugee would not carry them with her/him.
It is important to add that conversion abroad could also be perfectly genuine. Iran is a
place where people are fine as long as they do what they do behind closed doors and
within their own four walls. People may drink, practice homosexuality and their religious
faith after conversion. Yet, if a person who converted abroad walked down central
Tehran wearing a cross, s/he would certainly have to face difficulties. S/he may not be
at risk if s/he keeps a low profile. In general, however, it is very difficult to assess what
is going to happen to a person who converted to another faith upon return. In such
cases, a case by case assessment would need to be made taking into account the
ultimate reasons for conversion and the degree of publicity surrounding the case. In
addition, although Iranian embassies may well monitor activities of Iranian exile
communities it would be highly unusual if they kept track of Iranian baptisms abroad.
Proselytizing
Possibly with the exception of the Church of the ”Assemblies of God”, all other
churches are extremely cautious with respect to proselytizing. In 1994 three Evangelical
Christian leaders were killed. They were accused of having sought converts amongst
Muslims. Mehdi Dibaj, Assemblies of God Leader in Iran, was sentenced to death for
apostasy after nine years of imprisonment. The other two were the Head of the
Evangelical Council of Pastors in Iran, Bishop Kaik Hovsepian Mehr, who had
campaigned relentlessly for the release of Dibaj, and a prominent Presbyterian minister,
Reverend Tatavous Mikaelian, who succeeded Bishop Hovsepian as Head of the
Evangelical Council.
One might say, if those people had kept a low profile they would have been safe.
However,
given that the very nature of their religion is universal and evangelical,
proselytizing is one fundamental aspect of practising their faith. More complex cases
might involve individuals who contend to have proselytized at home, which is very
difficult to prove. At a certain point then one will just have to make a decision to believe
or not believe the person if it is not possible to retrieve any additional conclusive
information. Yet if, e.g. a Jehovah’s Witness wanted to proselytize amongst Armenians
and Assyrians, this would most likely not have any negative repercussions for the
person who is proselytizing.
II.3. Ethnic minorities
There are many ethnic minorities in Iran such as Arabs, Bakhtiaris, Armenians,
Baluchis, Azeris, Kurds, Lor, Qashghais, Torkomans and others. Art. 15 of the
Constitution of Iran mentions Farsi as the official language of Iran, but adds that
the ”use
of local and ethnic languages in the press and for the mass media and the teaching of
their literature shall be allowed besides the Farsi language”
. Art. 19 of the Constitution
mentions that the people of Iran belonging to whatever ethnic or tribal group shall enjoy
equal rights.
Kurds
"Kurds are believed to number about 6 million, mainly living in the Northwest of the
country, principally in the province of Kurdistan, along the border with Iraq and Turkey.
Ethnic Kurds can be found in all walks of life in Iran, both in the private and public
economy sectors as well as in Iran’s military and civilian establishment. The Islamic
regime views harshly those rebellious Kurdish leaders seeking autonomy, notably
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those of the Kurdish Democratic Party of Iran (KDPI) as well as the Marxist Komaleh
and their militant supporters. However, few Kurds seek independence, the slogan of the
KDPI is ”Autonomy for the Kurds and Democracy for Iran”. Yet, the government
remains convinced that any form of autonomy will lead to the progressive break-up of
Iran. Iranian troops are permanently stationed in Kurdish areas and also monitored
activities of members of the Iraqi Kurdish Democratic Party in the areas."
19
On 28 November 2000 reformist Kurdish MP Jalal Jalalizadeh denounced before
Parliament what he said was a campaign of repression and serial killings against the
some 6-million-strong Kurdish minority in Iran. This included prohibition of religious
freedom for the Sunni Muslim Kurds in a country that has a Shiite Muslim majority.
However, despite his vocal criticism he was able to maintain his position.
Baluchs
Iranian Baluch are not targeted as a group and not persecuted unless they are involved
in some general opposition-related activities. They are mainly concentrated in
Baluchistan province at the border with Pakistan and Afghanistan. Their claims should
be examined on an individual basis and recognition should be decided on the merits of
the case. It should also be noted that drug smuggling is an acute security problem in
Sistan Baluchistan province, where there is a high number of security forces and a high
degree of continuous tension because of the proximity of the Afghan and Pakistan
borders and the war against drug trafficking. There are large areas in these provinces
that are not under the control of the Iranian authorities. In addition, the jails are
overcrowded with Afghans and Baluchis who have been lured into the lucrative drug
trade.
Azeris
Iranian Azeris are not targeted as a group and not persecuted unless they are involved
in some general opposition-related activities. Their claims should be examined on an
individual basis and recognition should be decided on the merits of the case. On the
one hand, the majority of the shopkeepers in Tehran are Azeris and speak Turkish. On
the other hand, there is the case of Dr. Mahmud Ali Chehregani, a prominent member of
the Azeri community. He had demanded recognition of the national rights of the Azeri
community as guaranteed under Art. 15 of the Constitution, which permits the use of
regional languages in the media and in schools in addition to Persian. Dr. Chehregani
has been imprisoned since 1999 and is considered by Amnesty International as a
prisoner of conscience.
As mentioned above, opposition activities, such as nationalism expressed by
Azerbaijanis, are subject to arbitrary detention and unfair trials. MP Chehregani was
taken into detention on the way to his office in the Parliament, and later tried before a
Revolutionary Court. Trials before the Revolutionary Court typically deal with national
crimes, e.g. currency and drug offences. Dr. Chehregani was accused of importing
shampoo and perfumes. On the basis of depriving the Iranian treasury of taxes, he was
tried in a closed trial. He was given the right to have a lawyer, but only an hour and a half
before the trial. Therefore, he defended himself. In the course of the trial, a judge from
Tehran was brought in, in addition to the Tabrisi judge, an Azerbaijani judge. Dr.
Chehregani, through his own guile and cleverness managed to get a telephone
connection to the man who was to serve as a main witness against him. The man had
19
UNHCR: Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran,
January 2001, p. 31 <www.unhcr.ch>
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also been detained and had stated
”yes, I saw you taking perfume across the border”
.
At the end of his testimony, Dr. Chehregani asked the man:
”Were you forced to give
this testimony?”
The witness remained silent. At the end of the trial Chehregani said:
”Look, you bring this man in from Tehran, who cannot answer this question. Is this a fair
trial?”
He was sentenced to jail.
Arabs
"At least one million Arabs, mainly Shi’a Muslims, live in Iran, primarily in Khuzestan
and in the south. The Sunni Arabs tend to live on the Gulf coastline. Attempts by the
Arabs of Khuzestan to gain autonomy in 1979 gave way to support for Iran during the
Iran-Iraq war of 1980-1988. Many are employed in the agriculture and oil industries."
20
An approved presidential candidate in this election, Defence Minister Ali Shamkhani,
who is from Ahwaz and speaks Arabic, is a symbol for the community. Like every other
group, however, Arabs do not openly express their ethnic identity. In terms of levels of
discrimination, there is some evidence of riots in Abadan that have been connected to
the fact that Khuzestan as a province has been neglected by the central government.
On a more general level, the question of regional and ethnic identity will come to the fore
in the second part of Khatami’s term. There have been death sentences, mainly against
people with ethnic background, although those convicted had been involved in violent
acts such as the bombing of offices and liaisons, etc.
Afghans
21
In 2001, a change occurred in the position of the Iranian government towards Afghan
refugees. In the follow-up to the implementation of Art. 40 which is meant to address all
foreigners living in Iran, everyone who is in Iran without a valid visa or residence permit
regardless of his/her national origin, is subject to deportation. At the same time, UNHCR
has been approached to begin with status determination of 2 million Afghan refugees
currently estimated to reside in Iran, which is an impossible task. Otherwise they are all
subject to deportation. This is still being negotiated.
II.4. Gender
Women
Iranian women were very much involved in the 1979 Revolution. Women were told to
take to the streets and participate in the overthrow of the Shah and in the establishment
of an Islamic State. While initially women in the Revolution were heralded as heroic
militants, gradually the clerical elite has come to describe the ideal woman as an
obedient wife and mother.
Compared to several other countries in the region (Afghanistan, Saudi Arabia, parts of
Pakistan) women in Iran have a more prominent role in society and have more freedom
to work, study, travel, drive, etc. It should be noted that following the Revolution the
percentage of women attending schools has dramatically increased compared to the
times of the Shah. For instance, there are more women at Iranian universities than
20
UNHCR: Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran,
January 2001, p. 32 <www.unhcr.ch>
21
T
he
major changes in the political and security situation in Afghanistan since September 2001 have
had a significant impact on the situation of Afghan refugees coming to and living in Iran. For details
please refer to UNHCR's website <www.unhcr.ch>.
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men. Moreover, there are women serving terms in Parliament and working as teachers,
lawyers, judges and in positions of responsibility in public administration.
There are a number of women’s organizations (semi-official as well as non-
governmental) that have been created since the Revolution and in particular in the last
few years such as the Cultural and Social Council for Women, the Women’s Affairs
Commission, Women’s Affairs Bureau, Women’s Sports Department, International
Office for Women, Bureau for Promotion of Rural Women’s activities, Rural Women’s
Cooperative, Women’s Solidarity Societies, etc.
22
From a legal point of view there is definitely a marked difference between men and
women. There are many regulations in which treatment of men and women is not the
same. Examples are in the field of blood money or compensation for death of a family
member, whereby the life of a woman in financial terms is valued less that that of a
man, and the witness system, whereby one man equals two women. In addition,
women cannot work or obtain a passport without the husband’s permission, cannot
marry without the father’s written consent, automatically lose custody of their children at
the time of divorce or death of the husband.
With regard to passports, the requirements are usually checked when a person wanting
to leave applies for a passport. If the criteria, one of them being the husband’s
permission, are not fulfilled the passport will not be issued. Once you are at the airport
you should not have a problem. There does not seem to exist a special written
permission by the husband for a woman to leave the country.
Adultery
The Penal Code accords the death penalty, stoning or flogging to the adulterer and sets
out a number of different scenarios to determine which punishment shall apply in each
case, for example, if a non-Muslim man commits adultery with a Muslim women he is
subject to the death penalty (see the Hofer case); if a man or woman who is married
permanently commits adultery, the penalty is stoning; if the alleged adulterer or
adulteress is unmarried, the punishment is 100 lashes. Art. 82, which lists the cases in
which adultery carries the death penalty, stipulates that a rapist should receive the
death penalty. In an interview with the UN Special Representative, Iran’s Minister of
Justice, Hojatoleslam Ismaeil Shushtari (1992), reportedly stated that certain penalties
such as the stoning of adulterers could not be abrogated by the Government since they
had originally been established under Islamic Law. In case false testimony has led to
accusation of adultery and the adultery is not proved, the false claimant can be
prosecuted and accorded 80 lashes. Cases of adultery are dealt with by the regular
courts and not by the Revolutionary Courts.
There have been reported instances of stoning in the past few years. However, the last
report of the UN Special Representative for Iran (dated 8 September 2000) indicates
that stoning appears finally to be declining in Iran. In March 2000, the press quoted the
Ministry of Justice spokesperson as stating that stoning may not be in the country's
interest, and that the Head of the Judiciary believes that it should avoid acts which could
insult and taint the country's image. (for recent cases of stoning please see p. 24-25 of
this report)
Divorce
23
22
A new book ”Women in Iran - the inside story”, by Elaine Sciolino and Robin Wright, is to be published
soon.
23
see Ziba Mir Husseini: ”Divorce Iranian style”.
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Despite the provisions in the Civil Code, whereby a man can divorce his wife whenever
he wishes, in practice a man cannot divorce his wife without referring to the Special
Family Court in order to register the divorce with divorce registry offices that would
require the certificate of irreconcilable differences, issued by the Court or a Court order,
denoting that the registry is allowed to carry out the registration (immoral conduct, etc.).
It would appear that the divorce rate has increased in the last few years and that the
Family Courts are confronted with an increasing number of women seeking divorces.
Probably the most publicized and known aspect of women’s life in Iran is the imposition
of hejab or Islamic dress code. In Iran all women (Iranian, foreign, Muslim or non-
Muslim) have to comply with the rules of hejab in all public places. The women’s hair
must be fully covered and their faces free of make-up. In addition to a scarf women
must wear a roupoush or manto which is a large, formless overcoat. Contraventions of
the dress code are punishable by either a verbal reprimand (in hotels, restaurants, at
the airport) or by a fine, or 74 strokes of the lash, or a prison term of 10 days to two
months. There are periods of apparent relaxation of the dress code by the authorities.
However, at intervals and irregularly there are raids in public places or road blocks by
police units monitoring moral conduct, Revolutionary Guards and Basiji intent on
arresting and taking in for questioning women who are considered not to be properly
covered. It has to be added that in parts of big cities, such as Tehran and Isfahan, the
dress code is slightly relaxed compared to the rest of Iran. In some tribal areas the
dress code is not as strictly enforced and traditional dresses can be seen instead of the
overcoat and scarf. In some Christian villages women do not cover their hair.
Interestingly, two years ago, there was a German decision to forcibly veil women for
photographs for documents that were to be sent back to the authorities in Iran.
It should be noted that there is still a large group of women who consider the imposition
of hejab as humiliating, discriminatory and repressive. While assessing refugee claims
of women who declare that they cannot tolerate the hejab, one should try to assess the
level of tolerance of the individual case and take into account the subjective element.
For one woman compliance with hejab might not be more than a nuisance but
acceptable under the circumstances while for other women it might be experienced as
an intolerable, humiliating, degrading and unacceptable imposition. This could be
accompanied by examples of specific harassment in the individual case. If a case is
recognized, the grounds for recognition would be on the basis of fear of persecution
owing to membership of a particular social group.
Domestic violence
We are confronted with a number of claims of women stating to have been the victims
of domestic violence and that there would be no recourse or protection. In principle, a
woman victim of domestic violence can avail herself of the protection provided by legal
provisions. However, such victims are sometimes so terrorized that they prefer to
remain silent and take no action against their husbands. Sometimes they also refrain
from taking measures against the husband because initiating such actions could only
provide them with effective protection if they opt to obtain a divorce. They may be
reluctant to get a divorce or they may fear losing their children, since the father or
paternal grandfather has the right of guardianship of children in case of a divorce.
In conformity with Art. 1115 of the Civil Code, if living in the same house with the
husband involves the risk of bodily injury or financial damage, or jeopardizes the dignity
of the wife, she can choose a separate dwelling and if the alleged risk is proven the
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Court will not order her to return to the house of the husband. When a wife is a victim of
domestic violence, she can file a complaint against the husband for battery, and based
on the afore-mentioned provisions, she can leave the house. A wife can also apply for a
divorce on the grounds of domestic violence based on para 4 of Art. 8 of the Law on
Family Protection and the Court will issue a certificate of irreconcilable differences
(based on which the divorce will be registered by a notary) if it is proven that
continuation of conjugal life is unbearable for the wife. In order to prove domestic
violence a women can refer to a state hospital and obtain a report that should be
submitted to a family court.
Custody of children
UNHCR is faced with many cases that invoke the loss of custody to the family of the
husband or to the husband following death of the husband or divorce. Normally upon
divorce or death of the father custody goes to the mother. Art. 1169 of the Civil Code
specifies that
"the mother shall have a preferential right to the custody of her child in the
first two years of the child’s life, after which the father shall have the custody unless the
child is a girl in which case she will remain under the mother’s custody until she reaches
the age of 7."
A landmark case in 1998 was the case of Aryan Golshani, an 8-year-old boy who died
due to severe beatings and malnutrition at the hands of his stepmother. Following
divorce, despite the fact that the mother had been given custody of the then 6-year-old
child she did not succeed in getting the child as the father opposed the mother’s claim
to custody. Following the very publicized death of the child, an emotional public debate
enfolded with regard to custody laws in the country.
In 1998, the Majles has agreed to add five paragraphs to this article in which exceptions
to the automatic custody right of the father are enumerated such as addiction, sickness
and violence. However, a leading women’s rights lawyer described this as propaganda
and said that in her opinion a woman still had a very small chance of obtaining custody
of minor children as the main article granting preferential custody to the father was still
valid.
Under normal circumstances one should note that a distinction is made between
custody and guardianship. For example, while custody of very young children is with the
mother, guardianship remains with the father and therefore mothers cannot travel
outside of Iran without the permission of the father of the child even if the child is
technically in custody of the mother.
There are no specific provisions relating to the departure of a mother with minor
children from the country without the consent of the father. Based on the Law on
Passports, authorization in writing of the Guardian (according to the Civil Code the
father or paternal grandfather), is necessary for issuance of a passport for a minor or
inclusion of a minor’s name in a relative’s passport. Therefore if a woman has managed
to obtain travel documents for her minor children, she has probably resorted to an illegal
act based on which she can be sentenced upon return. For example she may have
forged her husband’s authorization and submitted it to the Passport Bureau and could
therefore be sentenced to imprisonment from two months to up to two years.
Homosexuals/Transsexuals
Although homosexuality is never spoken about and thus a hidden issue, in practice it is
not difficult to encounter homosexuals in Iran. There are special parks in Tehran, known
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as homosexual meeting places. There are also a large number of transvestites walking
around in North Tehran. Furthermore, sex changes are permitted in Iran and operations
are frequently and openly carried out. A different sexual orientation may, however,
create problems. Still, homosexuality is practised every day, and as long as this
happens behind closed doors within your own four walls, and as long as people do not
intend to proselytize 'transvestitism' or homosexuality, they will most likely remain
unharmed.
Again the issue of expression versus persecution has to be raised. Amnesty
International Japan deals with the case of a young man who claims that because he is
homosexual he should not be sent back to Iran. He was not subject to human rights
violations prior to his departure from Iran but according to Amnesty International would
be if he were to express his gayness openly after returning to Iran. The Japanese
authorities have disagreed with this assessment. Most likely, however, if the concerned
individual tried to conceal his sexual orientation in public, he would not be at risk.
From a legal point of view it is important to take a look at Iranian law (the Islamic
Punishment Act), which carries the following provisions for homosexual acts:
Art. 110: The prescribed punishment for homosexual relations in case of intercourse is
execution and the mode of the execution is at the discretion of the religious judge.
Art. 111: Homosexual intercourse leads to execution provided that both the active and
the passive party are of age, sane and consenting.
Art. 112: Where a person of age commits homosexual intercourse with an adolescent,
the active party shall be executed and the passive party, if he has not been reluctant,
shall receive a flogging of up to 74 lashes.
Art. 113: Where an adolescent commits homosexual intercourse with another
adolescent, they shall receive a flogging of up to 74 strokes of the whip unless one of
them has been reluctant.
Art. 114 to 126 establish how to prove homosexual intercourse.
Art. 127 to 134 relate to lesbian sexual relations. Punishment for sexual intercourse
among lesbians is 100 lashes and in case of recidivity (3 times) execution.
So far, UNHCR has not been able to trace any cases of execution only on the grounds
of homosexual relations. In fact, the burden of proof is quite high and it would be difficult
to prove homosexual liaisons or intercourse. According to some reports in local papers
there have been instances of execution of homosexuals. It is not confirmed whether the
homosexual act alone led to execution or whether the person was accused on other
charges too.
However, jurisprudence, burden of proof notwithstanding, certainly has used
accusations of homosexuality. Furthermore, it does happen that homosexuality is
mentioned as one of the accusations amongst other offences held against the
defendant. For instance, accusations of homosexuality have been used in unfair trials,
such as the case of a Sunni leader in Shiraz in 1996/97, who was clearly prosecuted for
politically reasons. There have also been other political cases, although not in the recent
past.
In addition, there was the case of a woman who appeared in a pornographic film with
her face blackened out. Yet, it is hard to see how the witnesses can tell if it is the same
woman if the face is blackened out, as is usually the case in Iranian pornographic
publications. Nevertheless, she was prosecuted. Moreover, it raises the question of
denunciation and a number of issues concerning fair trial. If there were indeed four
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witnesses, who had seen the film by actually having been there, it begs the question
what they were doing there and why they were not charged.
With regard to eligibility and claims based on persecution on grounds of homosexuality
the following elements need to be taken into account:
The fact that, irrespective of the standard/burden of proof, the sentence for
homosexuality is death is a very important element in any assessment. It would be
inappropriate to water down the existence of the death sentence with arguments of a
high burden of proof, relative tolerance or the fact that there is no systematic effort to
prosecute homosexuals.
The subjective element is essential. One should consider on a case by case basis how
intolerable it is for the asylum seeker not to be able to openly express his/her sexual
orientation, not only because of the social context but also because it is considered to
be against the law and punishable by death.
One should make a distinction between those who claim to have been active
homosexuals in Iran or have stated being active after their arrival in a host country. The
principle of refugee sur place should still apply, if the person determining eligibility does
not have a problem with the credibility of the asylum seeker.
If one were to recognize refugee claims of asylum seekers claiming persecution on
grounds of their sexual orientation, this would be for fear of persecution owing to
membership in a particular social group.
II.5. Military Service/desertion
The Iranian army, which is believed to have a few hundred thousand men in active
service, comprises mostly conscripts serving a two-year term.
Although there is no alternative service, it is possible to buy out military service for those
who were abroad since 1987. The price to be paid varies according to the level of
education with a higher price for PhD students and a lower one for those who only
completed High School. Last year there was a bill submitted to the Majles and
supported by the Army, suggesting that every year it would be possible to exempt
100,000 potential draftees provided that a sum of 10 million Rials (USD 5,700)
24
was
paid. The bill was passed by the Majles and approved by the Council of Guardians but
vetoed by the Leader. At present there are new regulations with respect to temporarily
postponing military service for those who wish to further their education abroad. A sum
of 30 million Rials (USD 17,100) needs to be deposited by the applicant to the Military
Service Department. If the applicant does not return the sum will be forfeited. In case of
return the sum will be reimbursed but military service will still need to be completed.
Draft evasion
Art. 58 of the Law pertaining to military service states:
a) Draft evaders in times of peace who present themselves in times of peace after a
decision is made as to their service or upon completion of their service shall be
24
Official floating rate, source: CIA World Factbook 2001.
"
note
: Iran has three officially recognized
exchange rates; the averages for 1999 are as follows: the official floating rate of 1,750 rials per US dollar,
the "export" rate of 3,000 rials per US dollar, and the variable Tehran Stock Exchange rate, which
averages 7,863 rials per US dollar; the market rate averages 8,615 rials per US dollar."
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deprived of receiving their exemption certificate or their service certificate for 6 months
up to one year and draft evaders in times of peace who are arrested will not receive
their exemption or service certificate for 1 to 2 years.
b) Draft evaders in times of peace who present themselves in times of war, shall
receive their service card upon termination of their service or exemption card right away
and those who are arrested will be deprived of receiving their certificate for 2 to 4 years.
c) Draft evaders in times of war who present themselves in times of war, shall be
deprived of receiving their certificate for 1 to 2 years, and those who are arrested will be
deprived of receiving their certificate for 3 to 5 years.
d) Draft evaders in times of war who present themselves in times of peace shall be
deprived of receiving their certificate for 5 to 7 years and those who are arrested will be
deprived of receiving their certificate for 7 to 10 years.
The importance of receiving a military service completion card is that without it the
person deprived of the certificate cannot work in a public function, cannot marry, travel
abroad, obtain a passport etc. Moreover, the judge can sentence the draft evader to
other punishment (Ta’zir) as he deems fit.
II. 6. Drug offences / double conviction
Iran has a very strict policy with regard to drug offences. Drug-related crimes are
examined and investigated by the Revolutionary Courts. The Iranian authorities have
regularly declared that Iranians who were convicted outside of Iran for crimes
punishable under Islamic Law, could still be prosecuted upon return. However, UNHCR
has not been able to find any jurisprudence confirming sentences for persons convicted
of drug-related crimes abroad. UNHCR also does not possess any information on the
degree of double conviction upon return for persons convicted of drug-related crimes
outside of Iran.
Amnesty International has had one case of double conviction for drug offences. If a
person carries more than 30 grams of heroine or 5 kg of opium s/he is subject to the
death penalty. In Spain, an Iranian national was caught smuggling drugs. AI International
Secretariate in London responded to a query from Amnesty International Spain that he
would in principle be at risk of double prosecution. It, however, depended on the
documentation that existed on the individual’s case. The person could perhaps return
without problems by stating that he had just tried to immigrate to Spain.
II.7. Exit and return
Exit formalities have considerably relaxed since the initial years after the revolution.
While previously it was very difficult to obtain a passport, in recent years it has become
much easier. However, departure procedures are still such that it would be highly
improbable that anyone with a forged passport in which name and number do not tally
would be able to leave the country. Security officials at the airport possess lists of
suspected or wanted persons and it is not unusual that passengers wishing to leave are
prevented from leaving and told to refer to the security department. In general, the
security checks at Tehran airport are still very strict and it is doubtful that anyone with a
security record and convictions in Iran for political offences would be able to leave the
country legally by air. Yet, although the degree is hard to assess, corruption certainly
exists and in individual cases people may be able to bribe their way out of the airport.
However, leaving the country across the border to Pakistan, but also to Turkey and
Azerbaijan, is fairly easy and happens all the time.
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Upon return, in recent years the practice has become more liberal with regard to
possession and confiscation of items purchased abroad, such as CDs from Dubai and
other Western products. It mostly depends on what the authorities are looking for. If they
assume that a person has returned from a country like the USA this person certainly will
be questioned and undergo stringent checks, but will normally not be detained for a
longer period of time.
There is one case of an Iranian who has been facilitated to return to Iran voluntarily by
UNHCR offices. Here the bureaucracy does sometimes not work very well. In principle,
an Iranian travel document must be issued by an Iranian embassy in a foreign country.
Upon arrival at the airport in Iran, the travel documents of this particular returnee were
not accepted by the airport authorities. The problem arose because the Ministry of the
Interior as well as the Ministry of Foreign Affairs are competent to issue travel
documents, but both ministries have different interests and internal regulations and
procedures. The resolution of the case took much coordination until the returnee was
allowed into the country. Ultimately, there is no information on what happens after
people have passed the checks, unless the authorities provide the information
themselves.
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III. Conclusion
When visiting Iran, there is the feeling that common person they fear inviting visitors to
their homes because they tend to be watched. If they seem to be talking to foreigners
about issues that are considered to be sensitive they could be brought up by the
Pasdaran to be questioned by intelligence or police. Yet, it has to be said that while the
above impression is very strong in a city like Mashhad, Tehran may be much more
open.
For instance, representatives from a decision-making body who had travelled to Iran in
2000 and 2001 and have met many Iranians, especially young people, who were very
interested in meeting and establishing contacts with European people. Young men and
women alike did not hesitate to speak openly to one another and to go a teashop with
the visitors although they were not married.
Nonetheless, it is rather not a question of young people in general feeling safe to do as
they like. People may behave differently, depending on who is around. Certainly, South
Tehran has a different composition than North Tehran. ???, a predominantly Sunni and
Kurdish area, has a different composition than Mashhad, which is religiously mainly
Shia. People in the North of Tehran, in the urban centres, are open, they may go out and
enjoy themselves, which will not be the case in many places in South Tehran.
Ultimately, it does depend on class, place and time.
On a more general level, it seems that the process of reforms is irreversible. The youth
will be in power in five to ten years and there will be no going back. However, there is a
great danger that the situation will get out of hand. If the conservatives continue to block
all efforts to introduce reform, the fault line that is at present one of revolutionary
conservatives on the one hand and post-revolutionary reformists on the other will
change to one of Islamists versus secularists. That situation could prove disastrous.
In terms of eligibility, compared to two years ago there are new categories of persons
that are and will continue to request asylum. The new category consists of intellectuals
who either have stated their opposition to the Islamic State structure and to the
institution of Vali-ye-Faqih, or are perceived as pushing for reforms to the present
structure.
All in all, the situation in the Islamic Republic of Iran is a very complex and complicated
one. It is extremely difficult to apply very strict and clear guidelines when assessing the
claim of an Iranian asylum seeker. Apart from the clear cases in which based on
objective facts and events there is an evident problem of credibility, in other cases in
which credibility is not the issue but the issue is interpretation of the level of persecution
with regard to the individual case, one should always take into account the level of
arbitrariness and inconsistency in application of the legal system that is part of every
day life in Iran. This is indeed one of the commitments that President Khatami has
promised to address while stressing the importance of the Rule of Law. However, it is
clear that the situation is still far from being one in which the interpretation of rules and
the application of the Law is clear-cut and consistent. One should therefore liberally use
the principle of the benefit of the doubt when credibility is not the issue with respect to
Iranian asylum claims.
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