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Hope Shams

With the rise of popular protests in recent years and the subsequent widespread arrests, suspicious deaths, and numerous reports of repeated torture in Iranian prisons, it seems necessary to examine the government’s legal obligations towards prisoners. In this short note, I will address the issue of torture prohibition, inhumane and degrading treatment, and the government’s responsibilities within the framework of international human rights laws. Iran’s membership in the International Covenant on Civil and Political Rights (1) imposes specific responsibilities on this government within the international human rights system. Regarding the prohibition of torture, there are fundamental similarities between all international and regional legal theories (Jurisprudence), to the extent that one can speak of a shared approach. My main goal in examining the jurisprudence of international human rights courts, especially the European Court of Human Rights, is to compare the main duties of the government in prohibiting torture and inhumane treatment in a democratic system and under international laws with the current situation in Iran. Therefore, the reader

Human rights; the right to be or to have rights.

The concept of “right” in the Persian language is used in two senses. One is in the moral sense of “being right,” meaning being truthful or on the side of truth; and the other is in the political sense of “being deserving,” meaning being entitled or worthy of something or doing something. Human rights are defined based on this political meaning. Human rights are rights that an individual is “deserving and entitled” to, simply because they are one of the seven and a half billion members of the human society. In other words, a human can be “not right,” but still be a “holder of rights.” A human can not only “not be right,” but also spend their entire life working towards the destruction of rights and truth, yet according to the standards of human rights, they are still a “holder of rights.” But how can this be fair? For example, how can both a torturer and their victim be considered holders of rights? The answer lies in the

2- Protecting Human Rights against Whom?

The fundamental goal of human rights laws is first and foremost to guarantee the rights of individuals against the government as the most powerful entity. By accepting an international human rights treaty, the government takes on the legal responsibility to be the guarantor and protector of individuals’ rights within its jurisdiction. In other words, human rights treaties and laws require the government – as the most potential violator of human rights – to recognize the rights of individuals and refrain from arbitrary interference and violation of their rights. Secondly, the government has a duty to protect individuals against violations of their rights. The first type of duties are categorized as negative obligations of the government, which consist of actions that the government must refrain from in order to ensure the full enjoyment and exercise of an individual’s rights. The second type of duties are referred to as positive obligations of the government, which require direct intervention and specific actions to protect an individual’s rights against others or to guarantee their enjoyment of a right.

In this sense, self-government is the first force that needs to be restrained in order to guarantee human rights. It is obvious that restraining a government in the face of violating the rights of individuals only makes sense when there is the possibility of individuals filing a lawsuit against the government or organizations and individuals under its command, and the process of fair litigation can hold the government accountable, prosecute and punish the perpetrators, and allow for compensation for damages.

The question at hand is to what extent the Iranian laws, under the title of national rights, have recognized the possibility of fair litigation against the violation of these rights by the government? And more importantly, it must be asked, to what extent is such litigation possible in the Iranian judicial system and to what extent will it lead to the mentioned results?

3- Types of rights in the international human rights system.

In the structure of human rights, there are three types of rights: conditional rights, limited rights, and absolute rights.

Alif: Conditional rights.

Conditional rights are those that can only be restricted under specific and defined circumstances; meaning that conditional rights are balanced with other rights and can only be limited in very special conditions and with the consideration of specific criteria, as exceptions. Examples of these conditional rights include the right to privacy, the right to personal property, the right to freedom of expression, and the right to freedom of assembly and association. In the case of restricting or suspending these rights, the government must prove that the limitation was firstly based on an explicit legal provision (legality), secondly absolutely necessary in a democratic society (necessity), and thirdly the type and extent of limitation was proportional to the purpose and necessity of the limitation (proportionality). In a general comparison with the state of conditional rights in Iran, it is clear that not only security institutions, but also other government institutions and even powerful non-governmental institutions impose countless restrictions on freedom of expression, freedom of the press, and freedom of assembly without being obliged

B: Limited rights.

“Rights are those that the government can restrict for certain reasons, but this restriction must be fair and based on convincing reasons. The scope of restriction and reasons for limiting these rights are much greater than conditional rights. These rights include individual freedom and security, the right to a fair trial, the right to marriage, and the right to education. For example, Article 6 of the European Convention on Human Rights states that court decisions must be made public, but the media or the general public can be prohibited from attending certain parts of trials or the entire trial process; however, this can only be done for specific reasons that must be proven necessary, such as protecting minors or preserving the honor or security of one of the parties or their relatives, or for specific reasons related to national security. The difference between “reasons of national security” in a democratic system and a dictatorial legal system like Iran is that the government must provide strong reasons to prove that, for example, the public nature of the court

A: Absolute rights.

These are rights that under no circumstances can they be suspended, annulled, or limited. These rights are not subject to any temporary derogation. These rights do not include the principle of balancing rights (balancing individual rights against the rights of others, or one right against another right, as described in conditional and limited rights). These rights are the foundation of all other rights and have priority over all other rights in terms of importance. These absolute rights include the prohibition of torture, degrading and inhuman treatment, slavery and servitude, and the prohibition of retroactive punishment.

Contrary to popular belief, these rights have no connection to a person’s crime or accusation. They are not rights that can be taken away from someone, even for committing the most heinous crimes, or justifying the deprivation of these rights for someone who has been convicted of genocide. One of the most recent examples of such a ridiculous belief is the recent statement by Sadeq Zibakalam regarding the torture of Ismail Bakhshi, a labor activist, in prison.

Ziba Kalam writes on her personal Twitter account: “If even half of the allegations against Ismail Bakhshi are true, the question arises: why was he tortured in such a way? He was not accused of espionage, having connections with foreigners, involvement in terrorist activities, being a member of a subversive group, or any other action that would justify the authorities torturing him for a confession or information.” The most absurd claim in this statement is exempting these crimes from the absolute prohibition of torture; while the essential characteristic of the right to be free from torture is its absolute nature, regardless of the guilt of individuals. Another shameful aspect of these statements is exempting the prohibition of torture for obtaining confessions and information; while even this is in direct contradiction with Article 38 of the Constitution of the Islamic Republic of Iran. Article 38 explicitly states: “Any form of torture to obtain confessions or information is prohibited.”

But beyond all of this, turning a blind eye to the fact that the Islamic Republic, like many other dictatorships throughout history, uses torture as a means of intimidation and punishment for its victims, as well as for the terrifying effect it has on other opponents or, as it is commonly referred to, its “chilling effect”. It is highly unlikely that Mr. Zibakalam, as an academic figure, is unaware of these points. Such statements only rely on the ignorance of the audience.

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Dimensions of the right to prohibition of torture.

The right to prohibition of torture is included in human rights treaties, which also includes at least two other forms of cruelty. Article 3 of the European Convention refers to “prohibition of torture, inhuman and degrading treatment.” (2) Article 7 of the International Covenant on Civil and Political Rights – of which Iran is also a member – refers to the prohibition of “torture or other cruel, inhuman or degrading treatment or punishment.” (3) The purpose of including these phrases alongside the general concept of torture is to address the various dimensions and levels of such behaviors. In other words, torture is not limited to the most severe forms of physical pain and suffering inflicted on the victim, but also includes breaking their personality, dignity, spirit, mental and physical health, and most importantly, taking away their autonomy and right to resist, alongside methods of inflicting physical pain and suffering, and is considered a violation of this fundamental right.

Durkin explains about torture: “The prohibition of torture is not only to prevent suffering and pain. Torture is designed to destroy the individual’s decision-making power about what their loyalty and belief allow them to do… Torture is designed to eliminate this power and reduce the victim to an animal screaming, where no other decision is possible – this is the highest form of insult to humanity.” (4) With this interpretation, torture is not a unique concept, but always accompanied by the two concepts of “inhumane and degrading behavior.” Therefore, it is not only limited to behaviors such as hanging, burning, electric shocks, pulling nails, and beating, but any behavior that takes away an individual’s decision-making power and puts them in inhumane and ruthless conditions is a violation of this right.

In the general interpretation of Article 20 of the United Nations Human Rights Committee, it is stated: “The prohibition mentioned in Article 7 of the Covenant is not limited to acts that cause physical pain, but also includes acts that cause mental and psychological suffering to the victim. Furthermore, in the view of the Committee, the prohibition should also include physical punishment, including excessive penalties imposed as punishment for certain crimes.” (5) With this interpretation, all forms of torture and flogging, which are not only common practices in interrogating suspects in Iran, but also considered legal punishments in the Islamic Republic, are considered a violation of Article 7 of the Civil and Political Covenant. This list should also include deliberate obstruction of access to medical and pharmaceutical treatments, as well as forced injections and consumption of drugs with harmful effects.

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Humiliating behavior and power dynamics.

In the case of Bouyed v. Belgium (6), a police officer strikes a teenager under his detention with only a baton. The Grand Chamber of the European Court of Human Rights, in a very important ruling, overturned the previous ruling of the same court and deemed this baton strike a violation of the right to prohibition of torture and a clear example of inhuman and degrading treatment, as it was applied without any resistance from the detainee and without any necessity. The court ruling stated: “A baton strike by a law enforcement officer to a person under his control goes beyond and further establishes a relationship between the officer and the detainee… Any attack on human dignity is a blow to the fundamental essence of this convention.”

The importance of this ruling lies in the standard for determining the type of relationship between a government force and a prisoner. This ruling shows that the government force, by having control over the prisoner, is not authorized to impose a superior-inferior relationship and therefore does not degrade the prisoner. The most important point is the strong language used by the Supreme Court in condemning degrading behavior as a “blow to the fundamental principles of the European Convention on Human Rights.” In other words, the court considers the impact of misconduct on the human dignity of the prisoner, not just the severity of physical or even psychological pain or injuries. This is one of the most important points that is overlooked in examining cases of torture and mistreatment in Iran. The most destructive effect of torture, inhumane and degrading behavior, is to target the human dignity of the prisoner. This is while in Iranian prisons and interrogation processes, degrading the prisoner’s character is one of the most common and systematic methods of dealing with

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Torture and government responsibilities.

In the face of torture, there are three responsibilities that fall upon the government. The responsibility of prohibition, the responsibility of obligation, and the responsibility of procedure.

A: Disclaimer:

The government should not torture or subject any individual to inhumane and degrading treatment.

B: Legal Liability:

The government must prevent its employees from engaging in such behaviors by implementing “effective” punitive measures. It should also intervene effectively in cases of reported torture. Finally, it should not hand over any individual to a country, government, or organization where there is a possibility of torture being carried out.

Answer: C: Procedural Responsibility.

The government is obligated to conduct effective investigations if reports of such behaviors occur.

7- Effective research conditions.

Answer: Research should be conducted by an independent institution. This means an institution that has no interest in the subject of the case.

B: The sacrifice or close relatives should be aware of and participate in the research process. The extent and level of this participation depends on the laws.

Research should take place within a logical timeframe and prolonging the stages of research with the aim of discouraging the public from the results of the research is considered a violation of the independence and effectiveness of research.

Effective means that research leads to the discovery of the identity of criminals and perpetrators, their trial and punishment, implementation of measures to prevent future crimes, and reporting the progress of investigations to the public.

Recent research on torture and its legality.

Given the history of the judicial system and parliament in Iran in tampering with reports, lack of transparency in the process, failure to identify, prosecute, and punish perpetrators, and failure to take action to prevent future crimes, any investigations in this matter are not qualified or legitimate. We must also add to this list the punishment of lawyers for victims of such behavior, such as Mohammad Najafi – the lawyer of Vahid Heidari, who died in Iranian police custody – which is indicative of the Iranian government’s treatment of complainants in such cases. In recent investigations regarding the torture of Esmail Bakhshi, the appointment of a team from the Ministry of Intelligence to investigate its own employees is a violation of the principle of independence in investigations into torture. Furthermore, the parliament’s investigations, which only involved meetings with Ministry of Intelligence officials and did not include a hearing of Esmail Bakhshi’s testimony or the invitation of other witnesses, violate the principle of impartiality in investigations

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The possibility of filing a complaint to international institutions.

In the text of the International Covenant on Civil and Political Rights, the competence of the Human Rights Committee to address complaints between governments regarding human rights violations has been considered. However, the competence of this committee to address complaints from individuals against governments has been delegated to the Optional Protocol, which was adopted on December 16, 1966, through Resolution 2200 and became effective in 1976. Although the Pahlavi government joined the Covenant, it did not sign the Optional Protocol. It is obvious that the Islamic Republic, which reluctantly remains a member of the Covenant due to its commitment to international treaties and fear of global pressures, has also not joined this protocol. Since the Islamic Republic has not joined the “First Optional Protocol to the International Covenant on Civil and Political Rights”, it has not accepted the competence of the Human Rights Committee to receive and address complaints from individuals against the Islamic Republic. However, international pressure from independent human rights organizations and dual nationals of Iran will pave the way for international

10- The importance of testimonies in regards to torture.

Registering and disseminating testimonies about torture in Iranian prisons is not only crucial in preventing the repetition of these crimes and their negative impact on the government’s domestic and international reputation, but also in proving the systematic nature and widespread use of such behaviors in Iranian prisons. These testimonies allow human rights organizations to provide evidence to the international community about the reality of torture in the Islamic Republic, showing that it is not just an occasional deviation caused by the misconduct of a few guilty officers, but a premeditated and organized program used as a normal method of dealing with suspects and prisoners. The Iranian government, fully aware of these inhumane behaviors, not only takes no action to stop them, but also justifies them using various ideological, religious, and even legal tools. Proving these facts, made possible by the courageous testimonies of torture victims, is the first step towards holding these crimes accountable as “crimes against humanity.”

Notes:

1. Iran’s membership in this international covenant was accepted during the Pahlavi government, but the Islamic Republic considers itself bound by it. Although it has verbally asserted its right to preserve certain provisions for itself and has threatened not to implement the covenant, it has never taken any official action to withdraw from it. As a result, Iran is officially committed to implementing the provisions of this international covenant.

2. For more information, refer to:

   European Convention on Human Rights

3. For more information, refer to: .

   International Covenant on Civil and Political Rights.

4. The book “Is Democracy Possible Here” by Ronald Dworkin was published by Princeton University Press in 2006, and on page 39.

5. For more information, refer to: .

   General Interpretation No. 20 of the United Nations Human Rights Committee.

6. In this case, the Grand Chamber of the European Court of Human Rights decisively overturned the decision of the unanimous Chamber in the case of Smet, Stijn, and Bouyid v. Belgium. This decision was reported by Strasbourg Observers on October 1, 2015.

7. For more information, refer to: .

   Charter of the International Criminal Court.