Report by the Special Rapporteur on the right to freedom of opinion and expression, Ambeyi Ligabo (2004)

Summary

The present report has been prepared pursuant to resolution 2002/48 of the Commission on Human Rights. It presents and analyses information on the situation of the right to freedom of opinion and expression received by the Special Rapporteur before and during his visit to the Islamic Republic of Iran from 4 to 10 November 2003, from officials, individuals, non-governmental organizations and reports of the United Nations.

The Special Rapporteur notes the willingness for reform among civil society, members of Parliament and at the highest levels of the Government, and that in most of his discussions, an improved framework for the protection of human rights, and in particular of the right to freedom of opinion and expression, was identified as an essential initial step towards reform. In this respect, he acknowledges that the Government and the Majlis are very active at the legislative level, endeavouring to improve the existing legal framework, in particular in relation to a better protection of human rights and fundamental freedoms.

However, the Special Rapporteur notes that a major impediment to reform consists of various institutional locks on governmental, parliamentary and judicial processes resulting from the control exercised thereon by unelected institutions and bodies that are not accountable to the people. In the view of the Special Rapporteur, these institutions and bodies hamper reforms at the legislative level and in the functioning of the institutions.

As far as the legal framework is concerned, the Special Rapporteur considers that many of the limitations to the exercise of the right to freedom of opinion and expression provided for in the Press Law and the Penal Code do not conform to the permissible restrictions listed in article 19, paragraph 3, of the International Covenant on Civil and Political Rights (ICCPR), firstly because many go beyond the clauses listed in this article and secondly because in most cases the grounds for these limitations lack any objective criteria and clear definition, and are therefore open to subjective and arbitrary interpretation by judges when implementing them.

The Special Rapporteur therefore urges the authorities to review these legal texts in order to bring them into line with international human rights norms and standards relating to freedom of opinion and expression, and recommends that the clauses limiting the exercise of this right be given clear definitions in law, in the framework of article 19, paragraph 3, of ICCPR.

In particular, the Special Rapporteur is of the view that cases of abuse of the right to freedom of opinion and expression, as defined in article 19, paragraphs 1 and 2, of ICCPR, call for civil suits, and he urges the authorities to review the Press Law and the Penal Code in order to repeal all criminal provisions dealing with the peaceful expression of one’s opinion, including in the press. In this respect, he urges the Supreme Council for Development of the Judiciary to consider the possibility of providing for alternative sentences to prison for all press- and opinion-related offences.

The Special Rapporteur also notes that the use of Revolutionary Courts to try opinion-related offences clearly has a negative impact on the exercise of the right to freedom of opinion and expression, owing to their severe stance vis-à-vis press- and opinion-related offences. He recommends that these offences be excluded from the competence of Revolutionary Courts.

The Special Rapporteur is also of the view that the Preventive Restraints Act should not apply in relation to press offences as, in his view, press offences cannot be defined as most serious crimes, to which this Act applies.

The Special Rapporteur is also concerned about the question of the interpretation of Islamic principles, especially when it comes to the definition of opinion-related offences, and he notes that there are varying interpretations thereof, including among clerics. The Special Rapporteur believes that there is an urgent need to define more clearly the contents of Islamic principles in the law, and in particular the criteria applied to determine the point at which it is considered that there is a breach of these principles, in order to avoid arbitrariness in their interpretation and lack of legal security in their implementation.

The Special Rapporteur recommends the adoption of a national Charter of Human Rights, elaborating on international human rights law and on article 20 of the Constitution, which would provide a clear framework within which laws would be drafted and implemented.

With regard to the actual exercise of the right to freedom of opinion and expression, the Special Rapporteur notes the general perception that over the past few years, the situation in this regard has deteriorated, as the number of publications closed down and of people arrested, prosecuted and sentenced for the peaceful expression of their opinion has increased. The Special Rapporteur is not in a position to indicate whether this increase is due to the adoption of a more severe stance by the authorities, and in particular the judiciary, vis-à-vis these offences, or to the fact that since the accession to power of the reformists in the Government and the Majlis, there is less fear among the population of being vocal about reform and critical of the functioning of public institutions.

The Special Rapporteur underlines that the climate of fear induced by the systematic repression of people expressing critical views against the authorized political and religious doctrine and the functioning of the institutions coupled with the severe and disproportionate sentences imposed lead to self-censorship on the part of many journalists, intellectuals, politicians, students and the population at large, thus in effect impeding freedom of expression.

The Special Rapporteur identified a number of patterns relating to the prosecution and sentencing of press- and opinion-related offences. In this respect, he endorses the conclusion of the Working Group on Arbitrary Detention regarding the situation of prisoners of conscience and notes that they are punished twice over: by having their right to freedom of opinion and expression infringed and by not benefiting from the basic guarantees to the right to a fair trial.

In particular, the Special Rapporteur notes with concern the use of prolonged periods of incommunicado detention in press- and opinion-related offences and recalls resolution 2003/32 of the Commission on Human Rights, in which the Commission reminded all States that prolonged incommunicado detention might facilitate the perpetration of torture and could itself constitute a form of cruel, inhuman or degrading treatment or even torture, and urged all States to respect the safeguards concerning the liberty, security and the dignity of the person.

On the basis of the above, the Special Rapporteur calls on the authorities to grant a complete amnesty to all prisoners prosecuted or sentenced for press- and opinion-related offences.

In the context of the standing invitation extended by the Government to all thematic mechanisms of the Commission on Human Rights, the Special Rapporteur, taking into account his findings, believes that a visit by the Special Rapporteur on the question of torture and the Special Rapporteur on the independence of judges and lawyers would be useful.

The Special Rapporteur also believes that, as a first step towards the implementation of his recommendations, the authorities should seek technical cooperation in the area of the administration of justice, in particular with respect to the training of judges and other law enforcement officials. In the view of the Special Rapporteur, such training should particularly focus on the norms and standards governing the right to a fair trial and the effective exercise of the right to freedom of opinion and expression.