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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 8 May 1998,
Having concluded its consideration of communication No. 89/1997, 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 its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is Mr. A. F., an Iranian citizen born on
16 December 1969, currently residing in Sweden, where he is seeking asylum.
He claims that his forced return to the Islamic Republic of Iran would
constitute a violation by Sweden of article 3 of the Convention against
Torture. Mr. A. F. is represented by counsel.
Facts as Presented by the Author
2.1 The author states that he belongs to a politically active family and
that his father became a local communist leader for the Tudeh Party already
in 1963. After having been subject to imprisonment and persecution as a
result of his political activities, the father went into hiding in 1989,
entrusting the author with the hiding of certain documents. Following his
father's disappearance, the family's house was raided on numerous occasions
by Pasdaran, the Revolutionary Guards, and as a result the author's mother
fled to Sweden to join her youngest daughter. She was subsequently granted a
residence permit on grounds of family reunion.
2.2 In 1989, the author became a member of Nehzat Azadi (Freedom Movement),
a liberal nationalist movement aiming at a modernistic interpretation of
Islam. The author explains that this movement was previously officially
tolerated by the regime but nevertheless its members were subjected to
various forms of harassment. In 1990-1991, the movement eventually was
declared illegal by the Government. The author soon was entrusted the
leadership of a group of 30 members divided into subgroups responsible for
the production and distributions of flyers and leaflets. In addition, as the
leader of the group, it was the author's responsibility to recruit new
members to the organization. The author explains that this was dangerous
work and that once the Pasdaran caught one of the subgroups when it was
distributing flyers. One of the members was immediately shot dead and the
others managed to escape.
2.3 In 1991, the author was suspended from university for not following
Islamic rules. The author states that he thinks that the university had
found out about him trying to recruit new members at university and that he
had been arrested several times by Pasdaran for having participated in
meetings arranged by the party. The leadership of the Freedom Movement
sometimes arranged meetings with 25 to 30 participants, discussing policy,
ideology and field work. These meetings were often raided by the Pasdaran
and according to the author he was arrested and detained approximately 30
times during such raids, but he was always let go due to lack of evidence.
2.4 After a while, the author became dissatisfied with the party's cautious
attitude and together with his closest superior and his group he started to
work in the direction of a more radical policy. During a meeting on 23
October 1993, where a new and radical text for a flyer was discussed, the
Pasdaran entered and they were all arrested. The author and his colleagues
were brought to the Evin prison for interrogation. During the questioning,
the author was told that his closest superior had been found with the text
of the flyer in his possession and had been executed. The author was
questioned about his own role in the Freedom Movement and about his father's
whereabouts. The author was allegedly tortured during interrogation. He
states that he was severely beaten and first kept in a one square metre cell
before he was brought to a cell which he shared with five other prisoners.
His ribs were broken, his back was hurt and one of his fingernails was
pulled out. The author was furthermore subjected to a fake execution.
Together with two of his cell mates he was brought before an execution
squad. The two other prisoners were executed, while only fake bullets were
used on the author. After a month the author was released without trial, but
with the warning that he would be executed if ever involving himself in
political activities again. The author states that he believes that his
release was due to the fact that he had not made any confessions and that
the authorities would instead watch him in the hope that he would eventually
lead them to his father and other members of the group.
2.5 In the time immediately following his release the author refrained from
any political activities, but eventually started writing flyers about the
conditions in the Evin prison. When he learned that the police had found out
about his activities and that members of his group had been arrested he
decided to leave the country. The author still had a passport and managed to
prolong it by using bribes. An exit permit was obtained with the help of a
contact in the Justice Department.
2.6 The author arrived in Sweden on 6 February 1995 and joined his family.
He requested asylum on 23 February 1995. On 21 April 1995, the Swedish Board
of Immigration rejected the author's application for asylum. His appeal was
subsequently rejected by the Aliens Appeals Board on 7 February 1996. A new
application was rejected by the Aliens Appeals Board on 27 March 1996, and a
further new application, based on the author's political activities in
Sweden, was rejected on 24 February 1997. The author submitted a fourth
application, based on medical evidence from the Centre for Torture and
Trauma Survivors in Stockholm, an application which was rejected on 27 July
1997.
2.7 Upon arrival in Sweden, the author contacted Iranian exile organizations
and joined the Iranian Social Democratic Movement. In Sweden, the author has
participated in meetings and demonstrations and publicly expressed critical
opinions about the Iranian government. He is further responsible for the
publication of the organization's newspaper. The author also states that he
continued his work by sending political materials to Iran through what he
considered being a safe communication channel, involving his sister and a
friend. According to the author, both the friend and the sister were
arrested by the Pasdaran. At the time of the submission of the communication
the sister was still held in prison.
The Complaint
3.1 The author's counsel argues that, given the absolute prohibition to
expel a person to a country where he risks to be subjected to torture, and
given that, if the author's story is true, there is reasonable ground to
believe that he would be in danger of being subjected to such treatment upon
return, he should only be returned to the Islamic Republic of Iran if it is
beyond reasonable doubt that the author's claim is false. Otherwise,
according to counsel, the asylum seeker should be given the benefit of the
doubt, not least since there exists a consistent pattern of gross and
massive violations of human rights in Iran.
3.2 The author claims that a real risk exists that he would be subjected to
torture or that his security would be endangered if he were to be returned
to his country. He further recalls that he comes from a politically active
family and has been detained and tortured because of his active work for the
Freedom Movement, a liberal nationalist party declared illegal and in
violation of the Constitution by the Government in 1990-1991. It is
well-known that members of political opposition aiming at overthrowing the
Government are severely persecuted. In this context, the author refers to,
among others, reports by the Special Representative of the Commission on
Human Rights on the situation of human rights in the Islamic Republic of
Iran, which attest to a continuing violation of all basic rights.
3.3 Counsel recalls that the presented forensic medical report prepared by
the Centre for Torture and Trauma Survivors in Stockholm shows that the
findings are in complete consistency with the author's claims of torture and
ill-treatment. Furthermore, according to the medical report, the author is
suffering from a
post-traumatic stress disorder.
State Party's Observations
4.1 By submission of 28 November 1997, 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
while his communication is under consideration by the Committee.
4.2 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, as amended on 1 January 1997. For
the determination of refugee status there are normally two instances, the
Swedish Board of Immigration and the Aliens Appeals Board. In exceptional
cases, an application is referred to the Government by either of the two
boards. In this context, the State party explains that the Government has no
jurisdiction of its own in cases not referred to it by either of the boards.
Decisions to refer a given case to the Government are taken by the boards
independently. The State party clarifies that the Swedish Constitution
prohibits any interference by the Government, the Parliament or any other
public authority in the decision making of an administrative authority in a
particular case. According to the State party, the Swedish Board of
Immigration and the Aliens Appeals Board enjoy the same independence as a
court of law in this respect.
4.3 As of January 1997, the Aliens Act has been amended. According to the
amended Act (chap. 3, sect. 4, in conjunction with sect. 3), an alien is
entitled to a residence permit if he or she experiences a well-founded fear
of being subjected to the death penalty or to corporal punishment or to
torture or other inhuman or degrading treatment or punishment. Under chapter
2, section 5 (b), of the Act, an alien who is refused entry can reapply 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 if it will otherwise be in conflict with humanitarian
requirements to enforce the decision on refusal of entry or expulsion. New
circumstances cannot be assessed by the administrative authorities ex
officio, but only upon application.
4.4 Chapter 8, section 1, of the Act, which corresponds to article 3 of the
Convention against Torture, has been amended and now provides that an alien
who has been refused entry or who shall be expelled, may never be sent to a
country where there are reasonable grounds (previously firm reasons) to
believe that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or degrading
treatment or punishment (text in italics added), nor to a country where he
is not protected from being sent on to a country where he would be in such
danger.
4.5 As to the admissibility of the communication, the State party submits
that it is not aware of the same matter having been presented to another
international instance of international investigation or settlement. The
State party explains that the author can at any time lodge a new application
for re-examination of his case to the Aliens Appeals Board, based on new
factual circumstances. Finally, the State party contends that the
communication is inadmissible as being incompatible with the provisions of
the Convention.
4.6 As to merits of the communication, the State party refers to the
Committee's jurisprudence in the cases of Mutombo v. Switzerland [FNa] and
Ernesto Gorki Tapia Paez v. Sweden, [FNb] 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.
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[FNa] Communication No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27
April 1994.
[FNb] Communication No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May
1997.
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4.7 The State party reiterates that when determining whether article 3 of
the Convention applies, the following considerations are relevant: (a) the
general situation of human rights in the receiving country, although the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights is not in itself determinative; (b) the personal risk of the
individual concerned of being subjected to torture in the country to which
he would be returned; and (c) the risk of the individual of being subject to
torture if returned must be a foreseeable and necessary consequence. The
State party recalls that the mere possibility that a person be subjected to
torture in his or her country of origin does not suffice to prohibit his or
her return for being incompatible with article 3 of the Convention.
4.8 The State party states that it 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 to the Committee to determine whether the
situation in Iran amounts to a consistent pattern of gross, flagrant or mass
violations of human rights.
4.9 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 the
Swedish Board of Immigration and the Aliens Appeals Board. In its decision
of 21 April 1995, the Swedish Board of Immigration found that the elements
provided by the author gave occasion to doubt the credibility of the author.
The Aliens Appeals Board, in its decision of 7 February 1996, also found
that the circumstances invoked by the author during the appeal were not
trustworthy.
4.10 On 27 March 1996, the Aliens Appeals Board rejected a new application
for a residence permit by the author, based on the fact that he has been
politically active since his arrival in Sweden and further invoking
humanitarian reasons concerning his mother's state of health. The
application was turned down by the Aliens Appeals Board, since the
circumstances invoked by the author had already been reviewed in the
previous decision. A second new application was rejected by the Aliens
Appeals Board on 24 February 1997, in which the author stated that he had
distributed political material into Iran after his arrival in Sweden. The
correspondence which had gone via his sister and another contact, had
allegedly been traced back to him by the Iranian authorities and his sister
had subsequently been interrogated and imprisoned. The application was
turned down by the Board, noting that in the light of the Board's knowledge
of anti-governmental activities in Iran and distribution of politically
sensitive material in Iran, it was not deemed credible that the author would
expose himself and his sister of such a risk by using a personal
communication route for distribution of the mentioned materials into the
Islamic Republic of Iran.
4.11 Finally, on 25 July 1997, the Aliens Appeals Board examined a third new
application lodged by the author, where he invoked an examination report by
the Centre for Torture and Trauma Survivors according to which the author
without any doubt had been subjected to torture and according to which there
was good concordance between the forensic medical investigation; the
patient's allegations and the very clinical picture of post-traumatic stress
disorder found at the investigation. The application was turned down by the
Board, since the matter of the author's imprisonment and his alleged torture
in that connection had previously been reviewed by the Board. Already in its
initial decision of 7 February 1996 the Aliens Appeals Board stated that
"(i)n view of the author's lack of credibility in the above-mentioned
respect, the Board does not consider that it has cause to give credence to
his statement that his injuries occurred as a result of physical abuse or
torture".
4.12 The State party draws the attention of the Committee to the main
elements in the author's story which give raise to doubts as to the
credibility of the author. Firstly, the author travelled to Sweden from Iran
with a genuine and valid passport. Taking into account that, after his
arrest by the Iranian authorities, the author was released after a month
without facing trial, and that his father's political activities were
already known by the authorities at the time of the author's arrest, the
Swedish Board of Immigration and the Aliens Appeals Board questioned the
author's credibility as to the statement that bribes were used to enable him
to leave Iran. Subsequently, there is no reason to believe that the author
is of particular interest to the Iranian authorities. Secondly, in his
appeal to the Aliens Appeals Board, the author invoked, among others,
internal correspondence between Iranian authorities regarding a warrant of
his arrest. The State party submits that the author has not been able to
give any reasonable explanation as to how he was able to acquire original
documents which were clearly intended for internal purposes. Further, there
is nothing to support the author's claim that he has distributed politically
sensitive material to Iran. Finally, it should be noted that the author did
not request asylum until almost two weeks after his arrival in Sweden, thus
indicating that he is not in any immediate need of protection.
4.13 The State party concludes that, in the circumstances of the present
case, the author's return to the Islamic Republic of 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.
Counsel's Comments
5.1 In her comments on the State party's submission, counsel for the author
draws the attention to the Committee to the fact that the author has already
lodged three so-called new applications with the Aliens Appeals Board. There
are no longer any new circumstances to be presented, which is a
pre-requisite for the Aliens Appeals Board to examine a new application. All
domestic remedies have thus been exhausted.
5.2 In the instant case, counsel recalls, the Swedish immigration
authorities have not directly questioned the fact that the author has been
politically involved with the Freedom Movement in the Islamic Republic of
Iran and that he was imprisoned for one month without trial, nor do they
seem to question his father's political background. The Swedish authorities
build their decisions entirely on the basis of an arbitrary assessment of
the author's general trustworthiness. According to counsel, the arguments
used by the authorities to turn down the author's claim for asylum are
stereotyped and found in almost every rejection decision. Any
inconsistencies or contradictions found in the author's story are thereafter
used to support the authorities a priori judgement that the author is not
credible, although complete accuracy is seldom to be expected by victims of
torture.
5.3 Counsel points out that the main argument of the immigration authorities
is that the author is not trustworthy because he has (a) left the Islamic
Republic of Iran with a valid passport; (b) obtained a legal exit visa; and
(c) legally extended the validity of his passport. She also points out that
the author has given a credible and consistent explanation of how he used
bribes and the influence of a personal contact in the security force in
order to be able to leave with a valid passport. The explanation was
rejected by the immigration authorities as not credible, although a report
from a visit to Iran made in 1993 by representatives from the Aliens Appeals
Board [FNc] shows that, according to the Iranian lawyer normally engaged by
the Swedish Embassy in Tehran, it is difficult but nevertheless possible to
bribe yourself out of Iran, in the way suggested by the author.
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[FNc] The delegation preparing the report included the Director General of
the Aliens Appeals Board at the time, as well as counsel in the present case
who was at the time working for the immigration authorities.
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5.4 Counsel further contends that the author has presented reasonable
explanations as to how he was able to acquire original documents (a copy of
a detention order) intended for internal communication between the Iranian
authorities. According to the author, he contacted friends in the Islamic
Republic of Iran who managed to get the document in question by bribes, and
the information thus provided by the author corresponds with information
previously given by the Iranian lawyer entrusted by the Swedish Embassy in
Tehran. The author has further also given a detailed account of the
communication route used in order to distribute politically sensitive
material to the Islamic Republic of Iran.
5.5 Counsel concludes that the author has presented sufficient evidence that
he was politically active in Nehzat Azadi (the Freedom Movement) in the
Islamic Republic of Iran and is well known to the Iranian authorities; that
he has been detained, tortured and ill-treated as a result of his political
activities; that he has also been politically active against the Iranian
regime after his arrival in Sweden and finally that the human rights
situation in the Islamic Republic of Iran is deplorable and that political
activists are in great danger of persecution. She therefore claims that the
author's return to the Islamic Republic of 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
6.1 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 also
notes that all domestic remedies have been exhausted and finds that no
further obstacles to the admissibility of the communication exist. Since
both the State party and the author's counsel have provided observations on
the merits of the communication, the Committee proceeds immediately with the
consideration of the merits of the communication.
6.2 The issue before the Committee is whether the forced return of the
author to Iran would violate the obligation of Sweden under article 3 of the
Convention not to expel or to return a person to another State where there
are substantial grounds for believing that he would be in danger of being
subjected to torture.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subject 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; specific grounds must exist that indicate 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.
6.4 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 a person can be deported. The Committee, however,
notes that the text of the decisions taken by the Swedish Board of
Immigration (21 April 1995) and the Aliens Appeals Board (7 February and 27
March 1996, 24 February and 27 July 1997) does not show that the test as
required by article 3 of the Convention (and as reflected in chap. 8, sect.
1, of the 1989 Aliens Act as amended) was in fact applied in the author's
case.
6.5 In the author's case, the Committee considers that the author's family
background, his political affiliation with the Freedom Movement 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 circumstances in the
author's story which raise doubt about the credibility of the author, but
the Committee considers that the presentation of the facts by the author do
not raise significant doubts as to the trustworthiness of the general
veracity of his claims. In this context the Committee especially refers to
the existence of medical evidence demonstrating that the author suffers from
post-traumatic stress disorder and supporting the author's claim that he has
previously been tortured while in detention.
6.6 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 the Islamic
Republic of 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.
6.7 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.
7. 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. A. F. to the Islamic Republic of 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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