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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 15 November 1996,
Having concluded its consideration of communication No. 43/1996, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is Mr. Kaveh Yaragh Tala, an Iranian
citizen born on 18 August 1969, currently residing in Sweden. He claims that
his return to Iran would constitute a violation of article 3 of the
Convention against Torture by Sweden. He is represented by counsel.
Facts as Presented by the Author
2.1 The author states that he became politically aware in the summer of
1985, and through a friend of the family started to become involved with the
People's Mujahedin Organization of Iran (PMOI). He took part in activities
such as painting slogans and distributing leaflets late at night. From
September 1986 on, he also acted as a contact between the friend and two
army officers. At the end of 1986, he began listening to PMOI broadcasts in
order to write down messages to certain codes and to hand them to a contact
person.
2.2 In February 1987, the author was forced to do his military service. He
was assigned to the maintenance section of the Revolutionary Guards
headquarters. After some time he began to deliver information, such as
transport routes for ammunition and armaments and location of ammunition and
underground storage, to the PMOI. The author also stole and delivered to the
PMOI some 20 blank passes with which vehicles could move around freely
without being checked at checkpoints.
2.3 In March 1989, the author was stopped when leaving the quarters and
found with two blank passes on him. He was arrested, beaten and kicked and
was brought to the underground prison No. 59 of the security service of the
Revolutionary Guards. There he stayed for three and a half months, during
which period he was interrogated about 25 times. During each interrogation
he was maltreated and tortured. During the last interrogation, he was told
to lie down on his stomach and then felt a hot metal object against his
thighs before he passed out. When his wounds became infected, he was brought
to Khatam-al-anbia hospital, where he stayed under guard for four weeks.
2.4 After being released from hospital, he was moved to prison No. 66 of the
Revolutionary Guards. There he managed to get a message out to his parents,
and on 11 August 1989 he was released awaiting trial. Apparently, his father
had bribed the man in charge into accepting the registration papers of the
family house as bail; the author adds that normally political prisoners are
not released on bail. The author had to report at the prison every third
day.
2.5 After about a week, he received a message from his contact in the PMOI
which he interpreted as a warning. He went into hiding in Shiraz and later
in Boosher. After about six months, he contacted his brother-in-law through
a friend and learned that he was wanted by the Revolutionary Guards and that
they had searched the family house and arrested his parents for questioning.
Apparently, the Revolutionary Guards also found some secret material that
the author had hidden and arrested his contact man. The author then decided
to leave the country, contacted a smuggler, and, at the end of June 1990,
left from Bandar Abbas by boat to Dubai and from there by plane to
Stockholm, via Amsterdam and Copenhagen.
3.1 The author arrived in Sweden on 7 July 1990 and requested asylum. He was
briefly interrogated by the police. On 3 September 1990, the author was
again interrogated by the police, at which occasion he told them about his
activities for the PMOI, but not about the torture and maltreatment and the
circumstances of his release. On 26 November 1990, the Immigration Board
decided to refuse the author's application for asylum and ordered his
expulsion from Sweden because of the contradictions in his statements.
3.2 During the appeal, the author applied to the Government for a change of
counsel because of unsatisfactory cooperation. This was granted on 19 March
1991. According to the author, the new counsel was the first one who really
listened to him. In his plea, he gives the true story of the author,
including the torture, and he presented a doctor's certificate.
Nevertheless, the Aliens Appeal Board rejected the author's appeal on 3 July
1992. The Board acknowledged that the author had now given a full and
consistent description of his political activities, detention and torture,
but it considered that he lacked credibility, since he changed his story
regarding his route to Sweden, the passport used and his arrest and military
service.
3.3 The author's new application to the Immigration Board, explaining how
the contradictions had resulted from misunderstandings with his first
counsel and submitting a new medical certificate, was rejected on 1 October
1992, since the Board considered that he had not invoked any new
circumstances.
3.4 On 10 August 1995, the author submitted a new application to the Aliens
Appeal Board. New evidence was presented, such as a certificate from
Mujahedin Sweden that the author had been a Mujahedin activist and medical
evidence from the Centre for Torture and Trauma Survivors in Stockholm
testifying that the scars and marks on the author's body are in conformity
with his allegations of torture and that the author suffers from
post-traumatic stress disorder. The Aliens Appeal Board rejected the
application on 25 August 1995, reasoning that the author had to a large
extent invoked circumstances that had already been considered. The Board
pointed out inconsistencies in the author's explanations as to how the
injuries from torture had been caused. According to the Board, the author's
scars and marks did not show that the author had been tortured in prison.
With this decision, counsel argues, all domestic remedies have been
exhausted.
The Complaint
4.1 The author's counsel argues that, given the absolute prohibition to
expel a person to a country where he risks being subjected to torture and
given that, if the author's story is true, he will without doubt be
subjected to torture upon his return, he should only be returned to Iran if
it is beyond reasonable doubt that the author's claim is false. In this
context, counsel explains that the Swedish authorities expect an applicant
to give the full story of his claim the day he arrives in Sweden. Counsel
states that this demand is not justified for persons who flee persecution,
who for years have been living in a climate of distrust. Asylum seekers,
counsel states, behave initially in an irrational and inadequate way, do not
trust anybody and are only ready to tell their true and complete story after
having been in the country for some time. Counsel therefore considers absurd
the Government's opinion that since the person has had his chance at the
beginning, whatever he invokes later on is not trustworthy, and argues that
in some cases new statements have to be accepted as trustworthy in spite of
the fact that the story was incoherent, inconsistent and contradictory in
the beginning.
4.2 In the instant case, counsel acknowledges that inconsistencies in the
author's story exist. Nevertheless, she points out that in his very first
interview with the police he already gave the core of his story, namely,
that he was afraid of being arrested by the Revolutionary Guards because he
had cooperated with persons suspected to be opponents. Since his first
counsel did not gain the author's confidence, the inconsistencies continued.
Only later did the author understand that he should tell the complete story,
and he was able to do so once he found counsel in whom he could trust.
4.3 Counsel recalls that the medical findings confirm the author's story
that he had been tortured, but that the Appeal Board, although not denying
the existence of the scars, concluded that they were not caused by torture
in prison. Counsel points out that the author's injuries are not of the kind
that one could receive in an accident, and is at a loss to understand how
the Appeal Board thinks they have been inflicted. Counsel acknowledges that,
without a credible eyewitness or a video recording of the torture, it is
impossible to establish with full certainty that scars and marks on a
person's body are indeed a result of torture, but argues that the judgement
thereof should be entrusted to medical experts, not to persons who have no
qualifications to judge medical findings.
4.4 The author claims that there is a real risk that he would be subjected
to torture or that his security would be endangered if he were to be
returned to his country. He recalls that he had been working for the
Mujahedin, the opposition group most hated and feared in Iran. According to
reports the mere possession of a Mujahedin leaflet is sufficient reason for
arrest and persecution. From 1987 to 1989 he had been leaking classified
information to the Mujahedin. Although the authorities suspected this, they
did not have enough proof at the time they detained him. However, by the
time he left the country, the Revolutionary Guards had searched his home and
found all the proof they wanted. If the author is forcibly returned to Iran
without passport, he will be arrested to establish his identity and to check
his record. Then his political background will be revealed and his life will
be in danger.
4.5 In this context, the author claims that a consistent pattern of gross
and massive violations of human rights exists in Iran, which according to
article 3, paragraph 2, of the Convention should be taken into account by a
State party when deciding on expulsion. The author refers to reports by the
Special Representative of the Commission on Human Rights, which attest to a
continuing violation of all basic human rights.
State Party's Submission and Counsel's Comments
5.1 By submission of 30 May 1996, the State party informs the Committee
that, following its request under rule 108, paragraph 9, the Swedish
Immigration Board has decided to stay the expulsion order against the
author.
5.2 As regards the domestic procedure, the State party explains that the
basic provisions concerning the right of aliens to enter and to remain in
Sweden are found in the 1989 Aliens Act. For the determination of refugee
status there are normally two instances, the Swedish Immigration Board and
the Aliens Appeal Board. In exceptional cases, an application is referred to
the Government by either of the two boards. Chapter 8, section 1, of the Act
corresponds with article 3 of the Convention against Torture and states that
an alien who has been refused entry or who is to be expelled may never be
sent to a country where there is firm reason to believe that he or she would
be in danger of suffering capital or corporal punishment or of being
subjected to torture, nor to a country where he is not protected from being
sent on to a country where he would be in such danger. Further, under
chapter 2, section 5, subsection 3, of the Act, an alien who is to be
refused entry or expelled, can apply for a residence permit if the
application is based on circumstances which have not previously been
examined in the case and if either the alien is entitled to asylum in Sweden
or it will otherwise be in conflict with humanitarian requirements to
enforce the decision on refusal of entry or expulsion.
5.3 As to the facts of the instant case, the State party explains that the
author arrived in Sweden on 7 July 1990 and applied for asylum when
interrogated by the police. He had no passport and his identity was unclear.
He stated that he had not been politically active but that he had carried
out propaganda for the royalists when fulfilling his military service. He
also said that he had travelled from Iran through Turkey to Sweden. The day
after his arrival, a letter was found at the airport addressed to the author
at a Swiss address, containing a false Spanish passport with the author's
photograph in it. When questioned, the author stated that it could have been
the passport used for him by the person who helped him to get to Stockholm.
The person and he were allegedly separated at the airport in Copenhagen. No
further explanations were given by the author about the Swiss address.
5.4 Since then, the State party submits, the grounds invoked by the author
for political asylum have changed considerably. The State party submits that
his statements at different points in time have been inconsistent and
contradictory. Furthermore, it was not until his appeal that he made any
statements regarding having been tortured. The State party emphasizes that
all interrogations took place with an interpreter in the author's mother
tongue.
6. The State party argues that the communication is inadmissible for being
incompatible with the provisions of the Convention. It also contends that an
argument can be made that domestic remedies have only been exhausted once
the expulsion order has been carried out.
7.1 As to the merits of the communication, the State party refers to the
Committee's jurisprudence in the case of Mutombo v. Switzerland1 and the
criteria established by the Committee, first, that a person must personally
be at risk of being subjected to torture, and, second, that such torture
must be a necessary and foreseeable consequence of the return of the person
to his or her country.
7.2 The State party refers to its own legislation which reflects the same
principle as that of article 3 of the Convention. The State party's
authorities thus apply the same test as the Committee in deciding on the
return of a person to his or her country. The State party recalls that the
mere possibility that a person would be subjected to torture in his or her
country of origin does not suffice to prohibit his or her return as being
incompatible with article 3 of the Convention.
7.3 The State party is aware that Iran is reported to be a major violator of
human rights and that there is no indication of improvement. It leaves it
for the Committee to determine whether the situation in Iran amounts to a
consistent pattern of gross, flagrant or mass violations of human rights.
7.4 As regards its assessment of whether or not the author would be
personally at risk of being subjected to torture when returned to Iran, the
State party relies on the evaluation of the facts and evidence made by its
Immigration Board and the Appeal Board. The Swedish Immigration Board, in
its decision of 26 November 1990, found that the elements provided by the
author were inconsistent and therefore not trustworthy. The Aliens Appeal
Board, on 3 July 1992, also found that the circumstances invoked by the
author at the appeal were not trustworthy. It noted that the author had
changed his story several times and that he now for the first time alleged
that he had been tortured.
7.5 On 11 August 1995, the author filed an additional new application with
the Aliens Appeal Board. In support he invoked a certificate from the
Mujahedin's Sympathizers Association, a copy of an alleged notice obliging
him to report and an examination report by the Centre for Torture and Trauma
Survivors. At the hearing, the author stated that he ceased to cooperate
with the Mujahedin's Sympathizers Association because it had collaborators
in its organization. The Appeal Board, after having made an overall
assessment of the author's statements, found that he was not trustworthy in
his claim for a right to asylum.
7.6 As regards the medical evidence, the Board noted that the author had
given contradictory statements as to how the injuries were caused, whether
by a hot metal object or by a gas burner, whether by a key or a knife. The
Board concluded that "against the background that Yaragh Tala on several
occasions has given very detailed and exhaustive statements regarding the
torture he claims to have been exposed to, the contradictory statements may,
in the Board's opinion, indicate that the injuries have been caused in
another way than he has stated. Although the injuries per se are documented,
they do not in the Board's opinion, show that Yaragh Tala has been tortured
when in detention".
7.7 The State party submits that on the basis of the above-mentioned
decisions, it has concluded that the author is of no interest to the
military or police authorities in Iran and that the facts he has invoked do
not substantiate his assertion that he has been exposed to torture and that
he risks torture upon his return to Iran.
7.8 The State party concludes that, in the circumstances of the present
case, the author's return to Iran would not have the foreseeable and
necessary consequence of exposing him to a real risk of torture. An
enforcement of the expulsion order against the author would therefore not
constitute a violation of article 3 of the Convention.
8.1 In her comments on the State party's submission, counsel for the author
takes issue with the State party's suggestion that domestic remedies are not
exhausted until the author has actually been deported. She states that it
would then be too late to seek any effective remedy. She further argues that
the elements provided by the author make his communication compatible with
the provisions of the Convention.
8.2 Counsel points out that the Aliens Appeal Board apparently had some
hesitations as to the author's political background and requested the
Swedish embassy in Teheran to verify the facts as presented by the author,
including the sketches he had made of the Revolutionary Guards'
headquarters. In its reply, the embassy refused to judge the personal
trustworthiness of the author but confirmed that it might well be possible
to bribe oneself out of prison even in political cases. Counsel argues that
where the Appeal Board had real doubts about the author's expulsion, he
should have benefited from those doubts, especially since at the appeal he
had presented a credible, consistent, detailed and thorough description of
his asylum claim. It is argued that the authorities have used the untrue
statements given by the author in the beginning to completely disqualify him
for asylum in Sweden regardless of what he later presented and contrary to
UNHCR's Handbook, article 199, which states that untrue statements by
themselves are not a reason for refusal of refugee status and that it is the
examiner's responsibility to evaluate such statements in the light of all
the circumstances of the case.2
8.3 Counsel further refers to article 198 of the Handbook, which indicates
that persons who have been persecuted may be afraid to give a full account
to the authorities. Counsel acknowledges that the author's case depends
completely on his credibility. He gave untrue statements and his statements
were also contradictory and inconsistent. She states that only the human and
psychological factor might explain his conduct. "A man fleeing from a cruel
and relentless regime against which he has been fighting and which had
subjected him to cruel torture cannot be expected to behave in a rational
way once he has managed to escape from his tormentors. It will take time for
him to collect himself enough to understand that he is spoiling his right
for protection and that he must come up with his complete and true story."
8.4 Counsel contends that in spite of the initial doubts regarding the
author's trustworthiness, he thereafter provided a credible, consistent,
thorough and detailed description. Considering his history of torture and
persecution, counsel argues that his initial failure is explainable and
excusable.
8.5 Counsel concludes that the return of the author to Iran would have the
foreseeable and necessary consequence of exposing him to a real risk of
being detained and tortured.
Issues and Proceedings Before the Committee
9. Before considering any claims contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), of the Convention, that the same matter
has not been and is not being examined under another procedure of
international investigation or settlement. The Committee is further of the
opinion that all domestic remedies available to the author have been
exhausted. The Committee finds that no further obstacles to the
admissibility of the communication exist and proceeds with the consideration
of the merits of the communication.
10.1 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that Mr. Tala would be in danger
of being subjected to torture upon return to Iran. In reaching this
decision, the Committee must take into account all relevant considerations,
pursuant to article 3, paragraph 2, including the existence of a consistent
pattern of gross, flagrant or mass violations of human rights. The aim of
the determination, however, is to establish whether the individual concerned
would be personally at risk of being subjected to torture in the country to
which he or she would return. It follows that the existence of a consistent
pattern of gross, flagrant or mass violations of human rights in a country
does not as such constitute a sufficient ground for determining that a
particular person would be in danger of being subjected to torture upon his
return to that country; additional grounds must exist to show that the
individual concerned would be personally at risk. Similarly, the absence of
a consistent pattern of gross violations of human rights does not mean that
a person cannot be considered to be in danger of being subjected to torture
in his or her specific circumstances.
10.2 The Committee has noted the State party's assertion that its
authorities apply practically the same test as prescribed by article 3 of
the Convention when determining whether or not a person can be deported. The
Committee, however, notes that the text of the decisions taken by the
Immigration Board (26 November 1990) and the Aliens Appeal Board (3 July
1992 and 25 August 1995) in the author's case does not show that the test as
required by article 3 of the Convention (and as reflected in chapter 8,
section 1, of the 1989 Aliens Act) was in fact applied to the author's case.
10.3 In the present case, the Committee considers that the author's
political affiliation with the People's Mujahedin Organization and
activities, his history of detention and torture should be taken into
account when determining whether he would be in danger of being subjected to
torture upon his return. The State party has pointed to contradictions and
inconsistencies in the author's story, but the Committee considers that
complete accuracy is seldom to be expected by victims of torture and that
the inconsistencies that exist in the author's presentation of the facts do
not raise doubts about the general veracity of his claims, especially since
it has been demonstrated that the author suffers from post-traumatic stress
disorder. Further, the Committee has noted from the medical evidence that
the scars on the author's thighs could only have been caused by a burn and
that this burn could only have been inflicted intentionally by a person
other than the author himself.
10.4 The Committee is aware of the serious human rights situation in Iran,
as reported, inter alia, to the Commission on Human Rights by the
Commission's Special Representative on the situation of human rights in
Iran. The Committee notes the concern expressed by the Commission, in
particular in respect of the high number of executions, instances of torture
and cruel, inhuman or degrading treatment or punishment.
10.5 In the circumstances, the Committee considers that substantial grounds
exist for believing that the author would be in danger of being subjected to
torture if returned to Iran.
11. In the light of the above, the Committee is of the view that, in the
prevailing circumstances, the State party has an obligation to refrain from
forcibly returning Mr. Kaveh Yaragh Tala to Iran or to any other country
where he runs a real risk of being expelled or returned to Iran.
[Adopted in English, French, Russian and Spanish, the English text being the
original version.]
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