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The Committee
against Torture, established in conformity with article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Meeting on 9 May 1997,
Having completed consideration of communication No. 34/1995 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 account of all the information communicated 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 Seid Mortesa Aemei, an Iranian
citizen, born on 1 February 1957, currently residing in Switzerland, where
he seeks asylum. He claims that his return to Iran after dismissal of his
refugee claim would constitute a violation of article 3 of the Convention by
Switzerland. He submits the communication also on behalf of his wife. He is
represented by counsel.
The Facts as Submitted
2.1 The author became a People's Mojahedin activist in Iran in 1979. On 20
June 1981, after he had participated in a demonstration by the Mojahedin, he
was arrested and kept in detention for 25 days. Thereafter, he had to
abandon his university studies. In 1982, he threw a Molotov cocktail into
the house of a senior officer of the Revolutionary Committee.
2.2 On 4 April 1983, the author was again arrested and his house was
searched. He claims that he was ill-treated during the interrogations and,
in particular, that he was caned after having his feet and head submerged in
ice, that the next day the police officers extinguished cigarettes on his
body while he was dressed only in underclothes, that he still bears the
scars from those burns, and that his wife was only allowed to visit him
after six months. Subsequently, he was convicted for his political
activities and for stealing the licence plate of a car and sentenced to two
years' imprisonment.
2.3 Seven months after his release, the author's brother-in-law fled the
country, and the author was detained for three hours and questioned about
the whereabouts of his brother-in-law. The author then moved to Teheran, but
returned to his home town after three years. In February or March 1989, he
was recognized by a client of his father's firm as the person who had thrown
the Molotov cocktail seven years earlier. In panic, he fled to Teheran. He
claims that his parents were visited regularly by the police and questioned
about his whereabouts. After a year, he decided to leave the country, also
because his son, who was born on 23 January 1984, had reached school age and
he was afraid that his son's enrolment in school would lead to the police
discovering his whereabouts. With a false passport he fled the country,
together with his wife and their two children, and applied for asylum in
Switzerland on 2 May 1990.
2.4 On 27 August 1992, his application was refused by the Federal Office for
Refugees, which considered his story not credible and full of
inconsistencies. It also considered that the author's wife was not aware of
any political activities on the part of her husband. The Appeal Commission
rejected his appeal on 26 January 1993, considering that the author's claim
and story were illogical and revealed no practical experience in illegal
political activities and were moreover full of contradictions.
2.5 On 26 April 1993, the author, represented by the Beratungsstelle für
Asylsuchende der Region Basel, filed a request for reconsideration, based on
his activities in Switzerland for the Armenian and Persian Aid Organization
(APHO), which, according to the author, is considered an illegal
organization in Iran. The author refers in this connection to three attempts
to murder the leader of the APHO in Zurich and claims that these attempts
prove that APHO members are being persecuted by Iran. The author stated that
he had distributed leaflets and helped run various APHO stands, notably at a
demonstration in Bern. In support of his statements he presented an APHO
membership card and stand permits issued in his name, and photos showing his
activities. He also said that incidents involving representatives of the
Government of Iran had occurred in May 1991 (when a friend of the brother of
the President of the Iranian Council of Ministers threatened APHO members
with a pistol) and in June 1992 (when the Iranian consul visited the APHO
stand and attempted to identify the participants). The author stated that he
had reported the incident to the police the same day, in his capacity as the
person in charge of the stand. In his request for review he alleged that his
activity within the APHO would render him liable to treatment contrary to
article 3 of the Convention if he returned to Iran.
2.6 By a decision of 5 May 1993, the Federal Office for Refugees refused to
consider his request for review. The Appeals Commission also declared his
application to be ill-founded by a decision of 10 August 1994. The author
states that he has since been contacted by the police for the purpose of the
preparation of his departure from Switzerland.
Substance of the Complaint
3. The author is afraid that he will be questioned about his political
activities when he returns to Iran. He adds that torture during
interrogations is common in Iran. Furthermore, he is afraid that he will be
charged with the Molotov cocktail attack of 1982 and that he will
consequently be sentenced to a long term of imprisonment or even death. He
adds that the mere act of requesting asylum in another country is considered
an offence in Iran.
Procedural Questions
4.1 On 22 November 1995, the Committee transmitted the communication to the
State party for its observations.
4.2 In its observations of 22 January 1996, the State party contests the
admissibility of the communication, stating that since the author had not,
in the course of the ordinary asylum procedure before the national bodies,
mentioned his fear that his political activities in Switzerland would render
him liable to torture if he returned to Iran, he had not exhausted domestic
remedies. The State party explains that this point should have been made
during the procedure to establish the right of asylum. Since the point was
not mentioned until the request for review, the authorities were not able to
consider it, as the author's activities within the APHO did not constitute a
new development in the light of the criteria established by the
jurisprudence of the Federal Court.
4.3 In its observations, the State party nevertheless submits "that is a
subjective ground under article 8 (a) of the Asylum Act, which in this
connection provides that 'asylum shall not be granted to a foreigner when
... only his conduct following his departure would justify his being
considered a refugee within the meaning of article 3'. According to case law
and doctrine, the concept of 'subjective grounds occurring after flight from
the country' covers situations in which the threat of persecution could not
have been the cause of the departure of the asylum-seeker but results from
his subsequent conduct. Although such grounds are not relevant to the
granting of asylum under the exclusion clause of the above-mentioned article
8 (a), an applicant who invokes subjective grounds may nevertheless remain
in Switzerland, by virtue of the non-return principle, if the conditions of
article 45 of the Asylum Act are met. The allegation of 'subjective
grounds', like the grounds which prompted the applicant to leave his
country, must nevertheless satisfy the requirements of asylum procedure,
among which are those relating to the obligation to cooperate. In accordance
with article 12 (b) of the Asylum Act, the applicant is required to
cooperate in the verification of the facts; to this end, he has in
particular to explain, at his hearing, his grounds for asylum and the
reasons which prompted him to request asylum."
4.4 The State party also contests Mrs. Aemei's status as author of the
communication.
4.5 In a letter of 1 March 1996, the author's counsel refutes the State
party's argument contesting Mrs. Aemei's status as author of the
communication on the grounds that she has not claimed any ground for asylum
peculiar to herself. Counsel further states that if Mrs. Aemei were to be
sent back to Iran, she would be liable to the same risks as her husband, or
even greater risks, and that the State party itself has acknowledged that
the applicant's subsequent conduct in Switzerland does not constitute a
ground for asylum under Swiss legislation. He also maintains that the
applicant had no reason to mention his political activities in Switzerland
during the asylum procedures and had always been questioned about his past
and about facts which could have supported his application for asylum.
4.6 Counsel points out that in any case the non-return obligation is an
absolute obligation. Although the argument of the author's political
activities in Switzerland was submitted late and hence, for procedural
reasons, could not be taken into account in relation to the asylum decision,
counsel is of the opinion that the rejection of the asylum application does
not mean that the person can now be sent back to his country. He points out
that Swiss legislation offers alternatives such as the possibility of a
residence permit for humanitarian reasons (Asylum Act, art. 17, para. 2) or
temporary admission (Asylum Act, art. 18, para. 1). Counsel also draws
attention to the fact that physical integrity must not be endangered for
procedural reasons. The risk that an asylum-seeker will misuse the procedure
should not be overestimated, especially as few asylum-seekers can point to
events as serious as those referred to by the authors in the case at hand.
4.7 After considering the observations of the parties, the Committee
decided, at its sixteenth session, to suspend consideration of the
communication pending the result of the author's requests for
reconsideration in the light of his political activities in Switzerland. The
Committee also requests information from the State party on domestic
remedies and asked the applicant to provide additional information
concerning his asylum applications in Switzerland on the basis of his
political activities in Switzerland. The Committee also asked the State
party not to expel the author and his family while their communication is
under consideration.
Further Observations by Counsel
5.1 In a letter of 5 August 1996, counsel explains that the author did not
mention his activities within the APHO in the course of the ordinary
procedure for obtaining refugee status, which led to the decision of the
Swiss Appeal Commission of 26 January 1993, because he had not been aware
that those activities would be a determining factor. The situation changed
after the decision, when he learned that he would have to return to Iran. At
that point, he realized that because of his political activities in Iran
before 1990 and, in particular, because of his political activities in
Switzerland since 1990, he and his wife ran a very great risk of being
subjected to acts contrary to article 3 of the Convention if they returned
to Iran. Counsel repeats that since 1990 the author has been active in the
APHO, which is considered an illegal and dissident organization in Iran and
whose activities in Switzerland are monitored by the Iranian secret police.
The author distributed leaflets attacking the regime in Iran, and in May
1991 he was seen and threatened by the brother of the President of the
Iranian Council of Ministers. In June 1992, the Iranian consul visited the
APHO stand in Bern and attempted to identify the people participating in
APHO activities. Counsel concludes that the author's identity is very
probably known to the Iranian authorities.
5.2 Counsel adds that on 13 May 1996 the author filed an application for
temporary authorization because of his son's medical problems.
State Party's Observations on the Admissibility and Validity of the
Communication
6.1 In its observations of 7 August 1996, the State party informs the
Committee that it no longer contests the admissibility of the communication.
6.2 The State party summarizes the "facts alleged by the author" and the
domestic procedures under way. As regards the points raised by the Swiss
authorities, it observes that, "under article 12 (a) of the Asylum Act, an
asylum-seeker must prove - or at least make out a good case - that he is a
refugee within the meaning of article 3 of the Asylum Act, i.e. that he
would be likely to suffer serious harm or that he has good reason to fear
that he would suffer such harm, in particular because of his political
opinions", and concludes that "from that standpoint, articles 3 and 12 (a)
of the Asylum Act, as interpreted by the Appeal Commission, establish
criteria similar to those of article 3 of the Convention, namely, the
existence of serious, concrete and personal danger of persecution (art. 3,
para. 1; cf. B. Mutombo v. Switzerland, ...), in the determination of which
all relevant considerations must be taken into account (art. 3, para. 2),
including, in particular, the likelihood that the author's statements are
true (Asylum Act, art. 12 (a)) and, where appropriate, the existence of a
consistent pattern of gross, flagrant or mass violations of human rights
(art. 3, para. 2)".
6.3 The State party also declares that "in the present case, the Appeal
Commission confirmed the decision to reject asylum on the basis of the
author's statements. It considered that the grounds invoked did not make it
possible to conclude that refugee status was highly probable in the author's
case. The Appeal Commission took the following points into account in making
its decision:
The author's statements about his political activity were not sufficiently
substantiated, since his knowledge of the political programme of the
organization in which he claims to have been active was very sketchy in
essential respects;
The circumstances in which the author claims to have resumed working with
the organization are at variance with what is known about the practice of
movements hostile to an established political regime. The author's
explanations regarding his alleged conviction following his political
activity were also considered to be at variance with the facts;
Finally, the author's wife was unable to corroborate his statements at the
hearing before the Federal Office for Refugees."
The State party concludes that Swiss legislation essentially uses the same
conditions for prohibiting return as those laid down in article 3 of the
Convention.
6.4 The State party refers to the text of article 3 of the Convention and
the Committee's practice of considering whether there are specific grounds
for believing that the individual would be in personal danger of being
subjected to acts of torture in the country to which he would be returned.
The existence of a consistent pattern of gross, flagrant or mass violations
of human rights does not in itself constitute a sufficient ground for
concluding that a person would be in danger of being subjected to torture on
his return to that country.
6.5 The State party observes that "in the present case, the author's
statements concerning his political activity with the People's Mojahedin did
not appear to be sufficiently substantiated in the opinion of the competent
Swiss authorities". It maintains that, "in view of the inconsistency of the
author's statements, they were not sufficiently plausible to cause the Swiss
authorities to consider that refugee status was highly probable in the case
of the author of the communication. The allegation of a risk of inhuman
treatment if the author were to return to Iran, which is based principally,
if not exclusively, on the consequences of his political activity cannot
seriously be taken into account when it has never been established that he
engaged in the political activities in question, or even that he was a
member of a party that opposed the existing political regime". The State
party further submits "that the author of the present communication has
produced no document with evidentiary value, either in the course of the
domestic proceedings or before the Committee against Torture, relating to
his political activities for the Mojahedin, or any medical certificate
attesting to his having been subjected to treatment prohibited by the
Convention". In the opinion of the State party, "at this stage already, the
author's communication appears to be manifestly ill-founded as regards the
existence of a personal, serious and concrete danger of treatment contrary
to article 3 of the Convention, to which the author claims he would be
exposed if he were sent back to his country".
6.6 The Swiss authorities further consider that some of the author's
statements do not correspond to the facts and, because they show a lack of
familiarity with established practice with regard to illegal political
activities, describe them as "totally unrealistic". In particular, the
author's statement that he was sentenced to only two years' imprisonment
because of the judge's respect for his origins contradicts information
gathered by the Swiss authorities in the course of asylum proceedings
concerning Mojahedin.
6.7 Finally, the State party notes that the author's wife did not
corroborate his statements about his political activities. The State party
therefore concludes that the author's fear appears to be manifestly
ill-founded.
6.8 With regard to the author's activities in Switzerland, the State party
is not able to confirm the author's allegation that his identity is very
probably known to the Iranian authorities because of the events that
occurred in May 1991 and June 1992. In particular, the Bern police are not
aware of the participation of the brother of President Rafsanjani in the May
1991 incident. As regards the Iranian consul's visit to the APHO stand, the
Swiss Government has stated that, "a member of the city of Bern police force
recalls that there was a skirmish between Iranians in June 1992, but does
not know whether it involved members of the Iranian consulate and APHO
activists, because the incident was already over by the time the police
arrived, when only APHO members were present. In the light of this
information, the Swiss Government considers it at least doubtful whether the
events in question occurred so they cannot automatically be considered to
constitute a decisive ground in respect of article 3 of the Convention".
6.9 As to the author's allegation that the filing of an application for
asylum is in itself a relevant ground within the meaning of article 3,
paragraph 1, of the Convention, the State party observes that the author
adduces no evidence in support of this argument. The State party further
notes, "such an argument cannot be sufficient in respect of article 3,
paragraph 1, of the Convention since the prohibition laid down in this
provision is dependent on the proven existence of substantial grounds for
persecution". The State party maintains that it has no information to
substantiate the specific danger of persecution as a result of filing an
application for asylum in Switzerland.
6.10 The State party considers that the author's statements do not enable
the conclusion to be drawn that there are substantial and proven grounds for
believing that he would be in danger of being tortured if he returned to
Iran. Finally, it observes that "the European Commission of Human Rights has
deemed that the general situation in Iran was not characterized by mass
violations of human rights [application No. 21649/93, DR, 75/282]" and that,
"the author himself does not claim that there is a consistent pattern of
human rights violations in Iran".
Counsel's Comments on the State Party's Observations
7.1 In a letter of 30 October 1996, counsel reiterates the points made in
his initial communication. As regards the State party's argument that the
author's statements about his political activity within the People's
Mojahedin did not appear to be sufficiently substantiated, counsel submits
that it is normal for a sympathizer not to be as well informed about an
organization as one of its members. He explains that the author was
motivated by hostility towards the regime rather than the Mojahedin's
political ideas. Counsel notes that the author is not in a position to
produce documents in support of his allegations concerning the events that
took place in Iran, and states that after his release the author was no
longer active within the Mojahedin.
7.2 Counsel acknowledges that the security measures taken by the author's
group in Iran were not sufficient, but rejects the conclusion that the
author's statements are unrealistic. He also maintains that merely
distributing leaflets can lead to life imprisonment and explains that the
fact that the author was only sentenced to two years' imprisonment in April
1983 was due, inter alia, to the author's origin as a descendant of
Muhammad. Concerning the alleged contradictions, counsel affirms that the
author's statements are not contradictory on essential points, and that the
discrepancies with the information provided by his wife are not relevant.
Mrs. Aemei has lived in great fear for years, which would explain the fact
that she wanted to know as little as possible about her husband's political
activities. In any case, she first heard about them in April 1983.
7.3 Counsel is of the opinion that the author's statements about his
political activities are true, which is also proved by the fact that the
Swiss Government admits in its observations that there was an APHO stand in
June 1992 and that a skirmish between Iranians did indeed take place. He
further submits that the Swiss authorities' refusal to consider the author's
request for reconsideration, based on his activities in the APHO, is a
serious procedural error and contrary to the author's right to have his fear
of being tortured considered by the competent authorities.
7.4 Counsel reiterates the fact, already mentioned by the author in his
appeal of 24 September 1992, that the mere act of requesting asylum can
constitute a relevant ground within the meaning of article 3, paragraph 1,
of the Convention against Torture, and refers in this connection to
documentation of the Schweizerisches Flüchtlingswerk.
Decision Concerning Admissibility and Examination of the Merits:
8. The Committee notes with appreciation the information given by the
State party that the author and his family will not be expelled while the
communication is under consideration by the Committee (rules of procedure,
art. 108, para. 9).
9.1 Before considering any claim 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 international
investigation or settlement procedure. The Committee notes that the State
party has not raised any objection to the admissibility of the communication
(see State party's observations dated 7 August 1996). The Committee
therefore finds that no obstacle to the admissibility of the communication
exists and proceeds with the examination of the merits of the communication.
9.2 The Committee reiterates that it is by no means its responsibility to
determine whether the author's rights as recognized by the Convention have
been violated by Iran, the country to which he risks being expelled,
regardless of whether or not this State is a party to the Convention. The
question before the Committee is whether expulsion, return or extradition to
the latter country would violate Switzerland's obligation, under article 3
of the Convention, not to expel or return an individual to a State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.
9.3 In accordance with article 3, paragraph 1, of the Convention, the
Committee has to determine whether there are substantial grounds for
believing that Mr. Aemei and the members of his family would be in danger of
being subjected to torture if they returned to Iran. In order to do this,
the Committee must, in accordance with article 3, paragraph 2, take into
account all relevant considerations, including the existence of a consistent
pattern of gross, flagrant or mass violations of human rights. In other
words, the existence of a consistent pattern of violations of human rights
within the meaning of article 3, paragraph 2, lends force to the Committee's
belief that substantial grounds exist within the meaning of paragraph 1.
9.4 However, the Committee has to determine whether the person concerned
would be personally at risk of being subjected to torture in the country to
which he would be expelled. Consequently, the existence of a consistent
pattern of gross, flagrant or mass violations of human rights in a
particular country does not in itself constitute a sufficient ground for
concluding that a particular person would be in danger of being subjected to
torture after returning to his country; additional grounds must exist in
order to conclude that the person concerned is personally at risk.
Similarly, the absence of a consistent pattern of flagrant violations of
human rights does not mean that a person cannot be considered to be at risk
of being subjected to torture in his specific circumstances.
9.5 In the present case, therefore, the Committee has to determine whether
the expulsion of Mr. Aemei (and his family) to Iran would have the
foreseeable consequence of exposing him to a real and personal risk of being
arrested and tortured. It observes that the "substantial grounds" for
believing that return or expulsion would expose the applicant to the risk of
being subjected to torture may be based not only on acts committed in the
country of origin, in other words before his flight from the country, but
also on activities undertaken by him in the receiving country: in fact, the
wording of article 3 does not distinguish between the commission of acts,
which might later expose the applicant to the risk of torture, in the
country of origin or in the receiving country. In other words, even if the
activities of which the author is accused in Iran were insufficient for
article 3 to apply, his subsequent activities in the receiving country could
prove sufficient for application of that article.
9.6 The Committee certainly does not take lightly concern on the part of the
State party that article 3 of the Convention might be improperly invoked by
asylum seekers. However, the Committee is of the opinion that, even though
there may be some remaining doubt as to the veracity of the facts adduced by
the author of a communication, it must ensure that his security is not
endangered. [FN1] In order to do this, it is not necessary that all the
facts invoked by the author should be proved; it is sufficient that the
Committee should consider them to be sufficiently substantiated and
reliable.
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[FN1] See views on Communication No. 13/1993 (Mutombo v. Switzerland),
paragraph 9.2, adopted on 27 April 1994.
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9.7 In the case of the author of the present communication, the Committee
considers that his membership of the People's Mojahedin organization, his
participation in the activities of that organization and his record of
detention in 1981 and 1983 must be taken into consideration in order to
determine whether he would be in danger of being subjected to torture if he
returned to his country. The State party has pointed to inconsistencies and
contradictions in the author's statements, which in its opinion cast doubt
on the veracity of his allegations. The Committee considers that although
there may indeed be some doubt about the nature of the author's political
activities in his country of origin, there can be no doubt about the nature
of the activities he engaged in in Switzerland for the APHO, which is
considered an illegal organization in Iran. The State party confirms these
activities by the author and does not deny that skirmishes occurred between
APHO representatives and other Iranian nationals in Bern in June 1992. The
State party does not say whether it investigated these skirmishes, but the
material submitted to the Committee gives the impression that no such
investigation took place. In the circumstances, the Committee must take
seriously the author's statement that individuals close to the Iranian
authorities threatened the APHO members and the author himself on two
occasions, in May 1991 and June 1992. The State party simply noted that Mr.
Aemei's activities within the APHO did not constitute a new development
vis-à-vis the criteria established by the case law of the Federal Tribunal
and that consequently the competent authorities could not take up the matter
of the author's application for reconsideration.
9.8 The Committee is not convinced by the State party's explanations insofar
as they refer to Mr. Aemei's activities in Switzerland. It would recall that
the protection accorded by article 3 of the Convention is absolute. Whenever
there are substantial grounds for believing that a particular person would
be in danger of being subjected to torture if he was expelled to another
State, the State party is required not to return that person to that State.
The nature of the activities in which the person engaged is not a relevant
consideration in the taking of a decision in accordance with article 3 of
the Convention. [FN2] In the present case, the refusal of the competent
Swiss authorities to take up the author's request for review, based on
reasoning of a procedural nature, does not appear justified in the light of
article 3 of the Convention.
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[FN2] See views in communication No. 39/1996 (Tapia Paez v. Sweden),
paragraph 14.5, adopted on 28 April 1997.
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9.9 Lastly, the Committee is aware of the serious human rights situation in
Iran, as reported inter alia to the United Nations Commission on Human
Rights by the Commission's Special Representative on the situation of human
rights in the Islamic Republic of Iran. The Committee notes, in particular,
the concern expressed by the Commission, especially about the large number
of cases of cruel, inhuman or degrading treatment or punishment.
9.10 In the light of the content of the preceding paragraphs, the Committee
considers that substantial grounds exist for believing that the author and
his family would be in danger of being subjected to torture if they were
sent back to Iran.
10. Taking account of the above, the Committee is of the view that, in the
present circumstances, the State party has an obligation to refrain from
forcibly returning the author and his family to Iran, or to any other
country where they would run a real risk of being expelled or returned to
Iran.
11. The Committee's finding of a violation of article 3 of the Convention in
no way affects the decision(s) of the competent national authorities
concerning the granting or refusal of asylum. The finding of a violation of
article 3 has a declaratory character. Consequently, the State party is not
required to modify its decision(s) concerning the granting of asylum; on the
other hand, it does have a responsibility to find solutions that will enable
it to take all necessary measures to comply with the provisions of article 3
of the Convention. These solutions may be of a legal nature (e.g. decision
to admit the applicant temporarily), but also of a political nature (e.g.
action to find a third State willing to admit the applicant to its territory
and undertaking not to return or expel him in its turn).
[Text adopted in French (original version) and translated into English,
Spanish and Russian]
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