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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 24 November 2000,
Having concluded its consideration of communication No. 149/1999, 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.
1.1. The author of the communication is A. S., an Iranian citizen currently
residing with her son in Sweden, where she is seeking refugee status. The
author and her son arrived in Sweden on 23 December 1997 and applied for
asylum on 29 December 1997. Ms. S. claims that she would risk torture and
execution upon return to the Islamic Republic of Iran and that her forced
return to that country would therefore constitute a violation by Sweden of
article 3 of the Convention. The author is represented by counsel.
1.2. In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted communication No. 149/1999 to the State party on 12
November 1999. Pursuant to rule 108, paragraph 9, of the Committee's rules
of procedure, the State party was requested not to expel the author to Iran
pending the consideration of her case by the Committee. In a submission
dated 12 January 2000 the State party informed the Committee that the author
would not be expelled to her country of origin while her communication was
under consideration by the Committee.
The Facts as Presented by the Author
2.1. The author submits that she has never been politically active in Iran.
In 1981, her husband, who was a high-ranking officer in the Iranian Air
Force, was killed during training in circumstances that remain unclear; it
has never been possible to determine whether his death was an accident.
According to the author, she and her husband belonged to secular-minded
families opposed to the regime of the mullahs.
2.2. In 1991, the Government of the Islamic Republic of Iran declared the
author's late husband a martyr. The author states that martyrdom is an issue
of utmost importance for the Shia Muslims in Iran. All families of martyrs
are supported and supervised by a foundation, the Bonyad-e Shahid, the
Committee of Martyrs, which constitutes a powerful authority in Iranian
society. Thus, while the author and her two sons' material living conditions
and status rose considerably, she had to submit to the rigid rules of
Islamic society even more conscientiously than before. One of the aims of
Bonyad-e Shahid was to convince the martyrs' widows to remarry, which the
author refused to do.
2.3. At the end of 1996 one of the leaders of the Bonyad-e Shahid, the
high-ranking Ayatollah Rahimian, finally forced the author to marry him by
threatening to harm her and her children, the younger of whom is
handicapped. The Ayatollah was a powerful man with the law on his side. The
author claims that she was forced into a so-called sighe or mutah marriage,
which is a short-term marriage, in the present case stipulated for a period
of one and a half years, and is recognized legally only by Shia Muslims. The
author was not expected to live with her sighe husband, but to be at his
disposal for sexual services whenever required.
2.4. In 1997, the author met and fell in love with a Christian man. The two
met in secret, since Muslim women are not allowed to have relationships with
Christians. One night, when the author could not find a taxi, the man drove
her home in his car. At a roadblock they were stopped by the Pasdaran
(Iranian Revolutionary Guards), who searched the car. When it became clear
that the man was Christian and the author a martyr's widow, both were taken
into custody at Ozghol police station in the Lavison district of Tehran.
According to the author, she has not seen the man since, but claims that
since her arrival in Sweden she has learned that he confessed under torture
to adultery and was imprisoned and sentenced to death by stoning.
2.5. The author says that she was harshly questioned by the Zeinab sisters,
the female equivalents of the Pasdaran who investigate women suspected of
"un-Islamic behaviour", and was informed that her case had been transmitted
to the Revolutionary Court. When it was discovered that the author was not
only a martyr's widow but also the sighe wife of a powerful ayatollah, the
Pasdaran contacted him. The author was taken to the ayatollah's home where
she was severely beaten by him for five or six hours. After two days the
author was allowed to leave and the ayatollah used his influence to stop the
case being sent to the Revolutionary Court.
2.6. The author states that prior to these events she had, after certain
difficulties obtained a visa to visit her sister-in-law in Sweden. The trip
was to take place the day after she left the home of the ayatollah.
According to the information submitted, the author had planned to continue
from Sweden to Canada where she and her lover hoped to be able to emigrate
since he had family there, including a son. She left Iran with her younger
son on a valid passport and the visa previously obtained, without
difficulty.
2.7. The author and her son arrived in Sweden on 23 December 1997 and
applied for asylum on 29 December 1997. The Swedish Immigration Board
rejected the author's asylum claim on 13 July 1998. On 29 October 1999, the
Aliens Appeal Board dismissed her appeal.
2.8. The author submits that since her departure from Iran she has been
sentenced to death by stoning for adultery. Her sister-in-law in Sweden has
been contacted by the ayatollah who told her that the author had been
convicted. She was also told that the authorities had found films and
photographs of the couple in the Christian man's apartment, which had been
used as evidence.
2.9. The author draws the attention of the Committee to a report from the
Swedish Embassy in Iran which states that chapter I of the Iranian hudud law
"deals with adultery, including whoring, and incest, satisfactory evidence
of which is a confession repeated four times or testimony by four righteous
men with the alternative of three men and two women, all of whom must be
eyewitnesses. Capital punishment follows in cases of incest and other
specified cases, e.g. when the adulterer is a non-Muslim and the abused a
Muslim woman. Stoning is called for when the adulterer is married". The
report further underlines that even if these strict rules of evidence are
not met, the author can still be sentenced to death under the criminal law,
where the rules of evidence are more flexible.
2.10. The author further draws the attention of the Committee to
documentation submitted to the Swedish immigration authorities to support
her claim, including a certificate testifying to her status as the wife of a
martyr. She also includes a medical certificate from Kung�lvs Psychiatric
Hospital indicating that she suffers from anxiety, insomnia, suicidal
thoughts and a strong fear for her personal safety if she were returned to
Iran. The certificate states that the author has symptoms of post-traumatic
stress syndrome combined with clinical depression.
The Complaint
3.1. The author claims that there exist substantial grounds to believe that
she would be subjected to torture if she were returned to Iran. Her forced
return would therefore constitute a violation by Sweden of article 3 of the
Convention. Furthermore, the author submits that there is a consistent
pattern of gross human rights violations in Iran, circumstances that should
be taken into account when deciding on expulsion.
The State Party's Observations on Admissibility and Merits
4.1. In its submission of 24 January 2000, the State party submits that it
is not aware of the present matter having been or being the object of any
other procedure of international investigation or settlement. As to the
admissibility of the communication, the State party further explains that
according to the Swedish Aliens Act, the author may at any time lodge a new
application for a residence permit with the Aliens Appeal Board, based on
new factual circumstances which have not previously been examined. Finally,
the State party contends that the communication is inadmissible as
incompatible with the provisions of the Convention, and lacking the
necessary substantiation.
4.2. As to the merits of the communication, the State party explains 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; and (b) the personal risk of the individual concerned of
being subjected to torture in the country to which he/she would be returned.
4.3. The State party is aware of human rights violations taking place in
Iran, including extrajudicial and summary executions, disappearances, as
well as widespread use of torture and other degrading treatment.
4.4. As regards its assessment of whether or not the author would be
personally at risk of being subjected to torture if returned to Iran, the
State party draws the attention of the Committee to the fact that several of
the provisions of the Swedish Aliens Act reflect the same principle as the
one laid down in article 3, paragraph 1 of the Convention. The State party
recalls the jurisprudence of the Committee according to which, for the
purposes of article 3, the individual concerned must face a foreseeable,
real and personal risk of being tortured in the country to which he or she
is returned. The State party further refers to the Committee's general
comment on the implementation of article 3 of the Convention which states
that the risk of torture must be assessed on grounds that go beyond mere
theory or suspicion, although the risk does not have to meet the test of
being highly probable.
4.5. The State party recalls that the author of the present communication
has not belonged to any political organization and has not been politically
active in her home country. The author asserts that she has been sentenced
to stoning by a Revolutionary Court in Iran, a judgement which she maintains
would be enforced if she were to be sent back there. The State party states
that it relies on the evaluation of the facts and evidence and the
assessment of the author's credibility made by the Swedish Immigration Board
and the Aliens Appeal Board upon their examination of the author's claim.
4.6. In its decision of 13 July 1998, the Swedish Immigration Board noted
that apart from giving the names of her sighe husband and her Christian
friend, the author had in several respects failed to submit verifiable
information such as telephone numbers, addresses and names of her Christian
friend's family members. The Immigration Board found it unlikely that the
author claimed to have no knowledge of her Christian friend's exact home
address and noted in this context that the author did not even want to
submit her own home address in Iran.
4.7. The Immigration Board further noted that the author during the initial
inquiry had stated that a Pasdaran friend had given her photographs of
people in the Evin prison who had been tortured, which she had requested
"out of curiosity" and which she gave to her Christian friend although she
"didn't know" what he wanted them for. The Immigration Board judged that the
information provided by the author in relation to this incident lacked
credibility and seemed tailored so as not to reveal verifiable details.
4.8. Finally, the Immigration Board questioned the credibility of the
author's account of her marriage to the ayatollah, her relationship with the
Christian man and the problems that had emerged as a result of it.
4.9. In its decision of 29 October 1999, the Aliens Appeal Board agreed with
the assessment of the Immigration Board. The Board further referred to the
travaux pr�paratoires of the 1989 Aliens Act which state that the assessment
of an asylum-seeker's claim should be based on the applicant's statements if
his/her assertions of persecution seem plausible and the actual facts cannot
be elucidated. The Board noted that the author had chosen to base her
application for asylum on her own statements only and that she had not
submitted any written evidence in support of her claim, despite the fact
that she had been told of the importance of doing so.
4.10. In addition to the decisions of the Immigration Board and the Aliens
Appeal Board, the State party refers to the UNHCR Handbook on Procedures and
Criteria for Determining Refugee Status, according to which "the applicant
should: (i) (t)ell the truth and assist the examiner to the full in
establishing the facts of his case, [and] (ii) (m)ake an effort to support
his statements by any available evidence and give a satisfactory explanation
for any lack of evidence. If necessary he must make an effort to procure
additional evidence". According to the UNHCR Handbook, the applicant should
be given the benefit of the doubt, but only when all available evidence has
been obtained and checked and when the examiner is satisfied as to the
applicant's general credibility.
4.11. In the present case, the State party first reminds the Committee that
the author has refused to provide verifiable information and that her
reasons for doing so, i.e. that she was forbidden by her friend to do so and
that new tenants are now occupying her apartment in Tehran, are not
plausible.
4.12. Second, the State party maintains that it seems unlikely that the
author, solely out of curiosity, would want to have photographs of tortured
people in her possession. It seems even more unlikely that she would hand
over such photographs to someone she had known only for a few months.
Further, the State party notes that although the author claims that the
authorities in Iran are in possession of a film showing her last meeting
with her friend, no additional information has been provided by the author
on this issue.
4.13. A third reason for doubting the author's credibility is that the
author has not submitted any judgement or other evidence to support her
claim that she has been sentenced for adultery by a Revolutionary Court. In
addition, the author has not given any explanation as to why her
sister-in-law was not able to obtain a copy of the Revolutionary Court's
judgement when she visited Iran. Further, the State party notes that
according to information available to it, the Revolutionary Courts in Iran
have jurisdiction over political and religious crimes, but not over crimes
such as adultery. Hudud crimes, i.e. crimes against God, including adultery,
are dealt with by ordinary courts.
4.14. The State party further draws to the attention of the Committee that
the author left Tehran without any problems only a few days after the
incident which allegedly led to her detention, which would indicate that she
was of no interest to the Iranian authorities at the moment of her
departure. In addition, the author has claimed that she handed over her
passport to her brother-in-law upon arrival in Sweden. However, the State
party notes that her passport number is indicated on her asylum application
which she submitted six days later. The explanation for this given by the
author's counsel during the national asylum procedure, i.e. that the number
might have been available from an earlier visit in Sweden by the author in
1996, is unlikely. There is nothing in the author's file that indicates that
documents concerning her earlier visit to Sweden were available during the
asylum application procedure.
4.15. The State party also draws the Committee's attention to the fact that
the author has not cited any medical report in support of her statement that
she was severely beaten by Ayatollah Rahimian only a few days before her
arrival in Sweden. In addition, according to information received by the
State party, the head of the Bonyad-e Shahid was, until April 1999,
Hojatolleslam Mohammad Rahimian, but he does not hold the title of
ayatollah.
4.16. Finally, the State party adds that when the author's sister-in-law
applied for asylum in Sweden in 1987, she stated that her brother, the
author's late husband, had died in a flying accident in 1981 caused by a
technical fault. Ten years later, the author's brother-in-law and his family
also applied for asylum and claimed that the author's husband had been
killed for being critical of the regime and that he and his family would
therefore be in danger of persecution if returned to Iran. The
brother-in-law and his family were returned to Iran in November 1999 and the
State party submits that it has not received any information indicating that
they have been mistreated.
4.17. On the basis of the above, the State party maintains that the author's
credibility can be questioned, that she has not presented any evidence in
support of her claim and that she should therefore not be given the benefit
of the doubt. In conclusion, the State party considers that the enforcement
of the expulsion order to Iran would, under the present circumstances, not
constitute a violation of article 3 of the Convention.
Counsel's Comments
5.1. In her submissions dated 4 February and 6 March 2000, counsel disputes
the arguments of the State party regarding the failure of the author to
submit written evidence. Counsel states that the author has provided the
only written evidence she could possibly obtain, i.e. her identity papers
and documentation showing that she is the widow of a martyr. Counsel states
that the ayatollah conducted the sighe or mutah wedding himself with no
witnesses or written contract. As to her failure to provide the immigration
authorities with a written court verdict, counsel submits that the author
only has second-hand information about the verdict, as it was passed after
her departure from Iran. She cannot, therefore, submit a written verdict.
Counsel further disputes that the author's sister-in-law should have been
able to obtain a copy of the verdict while visiting Iran. She further states
that the author's sister-in-law long ago ended all contacts with the author
because she strongly resents the fact that the author has had a relationship
with any man after the death of her husband.
5.2. Counsel acknowledges that crimes such as adultery are handled by
ordinary courts. However, she draws the attention of the Committee to the
fact that the jurisdictional rules are not as strict in Iran as for example
in the State party and that the prosecuting judge can choose the court. In
addition, for a martyr's widow to ride alone with a Christian man in his car
would probably fall under the heading of "un-islamic behaviour" and as such
come under the jurisdiction of the Revolutionary Court. Even if this were
not the case, counsel reminds the Committee that the author has only been
informed that she has been sentenced to death by stoning by a court. Not
being a lawyer, and in view of what she was told during her interrogation by
the Zeinab sisters, the author assumes that the sentence was handed down by
the Revolutionary Court and this assumption should not be taken as a reason
for questioning the general veracity of her claim.
5.3. Counsel states that the author has given credible explanations for not
being able or not wishing to provide the Swedish authorities with certain
addresses and telephone numbers. Firstly, she had promised for the sake of
security not to give her lover's telephone number to anyone and does not
wish to break her promise even at the request of the immigration
authorities. The Christian man always contacted the author on her mobile
phone which he had given her for that purpose alone. The author left the
mobile phone in Iran when she departed and as she never called her number
herself or gave it to anyone, she cannot remember it. Further, counsel
states that the address which is indicated on the author's visa application
used to be her home address, but the author has repeatedly explained that
new tenants are now living there and that she does not want to subject them
to any difficulties caused by inquiries from the Swedish authorities.
Finally, counsel stresses that the author has given detailed information
about the neighbourhood, Aghdasiye, where her lover lived and that she has
repeatedly underlined that she never knew the exact address since she always
went to her secret meetings first by taxi to Meydon-e-Nobonyad where she was
picked up by a car that brought her to the Christian man's home. Finally,
all the author ever knew about the Christian man's relatives was that he had
one sister and one brother living in United Kingdom and a son from a
previous marriage living in Canada. She never met them and never asked their
names.
5.4. Counsel underlines that the fact that the Swedish authorities do not
find the author's explanations credible is a result of speculation based on
the supposition that all people behave and think according to Swedish or
Western standards. The authorities do not take into account the prevailing
cautiousness in Iran with respect to giving personal information,
particularly to public officials.
5.5. With reference to the photographs of victims of torture which the
author claims to have handed over to her lover, counsel submits that this
fact in no way diminishes the author's credibility. The couple were engaged
in a serious relationship and intended to marry and there was no reason for
the author not to pass on such photos to a man in whom she had total
confidence. Further, counsel underlines that the author has never argued
that her handling of the photographs in question supports or has anything to
do with her asylum claim.
5.6. Counsel notes that the State party observes that the author has not
cited any medical certificate attesting to injuries resulting from the
beatings she was subjected to by her sighe husband. Counsel reminds the
Committee that the author left Iran the following day and that her main
preoccupation was to arrive safely in Sweden. Counsel further states that
most Iranian women are used to violence by men and they do not or cannot
expect the legal system to protect them, despite the positive changes which
have recently taken place in Iran in this respect. As an example, counsel
states that an Iranian woman wishing to report a rape must be examined by
the courts' own doctors as certificates by general doctors are not accepted
by courts.
5.7. With reference to the fact that the author's passport number was given
in her asylum application although she had claimed to have disposed of her
passport upon arrival in Sweden, counsel states that there is no indication
on the asylum application that the author's passport has been seized by the
Immigration Board officer, which is the rule in order to secure enforcement
of possible expulsion; this fact seems to support the author's version of
events. In addition, the author has maintained that when filing her
application she merely had to state her name, all other necessary details
having appeared on a computer screen. This information has been corroborated
by the Immigration Board registration officer who received the author's
asylum application and who told counsel that, in recent years, a person
granted a tourist visa is registered in a computer database, containing all
available information, including passport numbers. The author had been
granted a tourist visa for Sweden twice in recent years, so her account was
absolutely correct.
5.8. Counsel notes that the State party has confirmed that the author's
sighe husband was the head of the Bonyad-e Shahid, which should support the
author's claim; he was generally referred to as "Ayatollah", even though his
title was Hojatolleslam. Counsel reminds the Committee that there are only
some 10 real ayatollahs in Iran. The great majority of mullahs are of the
rank of hojatolleslam. However, mullahs who have gained power, particularly
political power, are often referred to as Ayatollah out of courtesy, an
illustrative example being Ayatollah Khamenei whose office demanded the rank
of an ayatollah but who was in fact only hojatolleslam when he was
appointed.
5.9. With reference to the State party's argument that the author left Iran
without difficulty, counsel points out that this is consistent with the
author's version of the events leading to her flight. She has maintained
that at the time of her departure she was not yet of interest to the Iranian
authorities since her sighe husband had suppressed the Pasdaran report to
the Revolutionary Court.
5.10. Finally, counsel states that what the author's dead husband's
relatives have stated about the circumstances surrounding his death has no
impact on the author's case or her credibility. It should be noted that the
author herself has never stated that her husband was assassinated by the
regime, but only that she had doubts about the circumstances pertaining to
his death.
5.11. In support of counsel's arguments she submits a medical certificate
dated 22 November 1999 from a senior psychiatrist at Sahlgrenska Hospital,
where the author was taken after an attempted suicide. The attempt was made
after the Swedish police had taken her and her son from a reception centre
for asylum-seekers to a detention centre to ensure the execution of her
expulsion. The diagnosis made was deep depression combined with
contemplation of suicide.
5.12. Counsel further encloses a letter dated 27 December 1999 from the
leading Swedish expert on Islam, Professor Jan Hj�rpe, who confirms the
author's account concerning the institution of sighe or mutah marriages and
the legal sanctions provided for in cases of adultery.
5.13. Counsel draws the attention of the Committee to the fact that the
immigration authorities in examining the author's case have not considered
the situation of women in Iran, existing legislation and its application, or
the values of the Iranian society. Counsel states that the argumentation of
the authorities, based almost exclusively on the author's failure to submit
certain verifiable information, seems to be a pretext for refusing the
author's application. In conclusion, counsel submits that according to the
information provided by the author, there exist substantial grounds to
believe that the author would be subjected to torture if returned to Iran
and that the author has provided reasonable explanations for why she has not
been able to or not wished to furnish certain details.
Additional Comments Submitted by the State Party
6.1. In its submission dated 2 May 2000, the State party contends that the
Swedish Immigration Board and the Aliens Appeal Board have ensured a
thorough investigation of the author's case. It reminds the Committee that
during the asylum procedure, the author has been repeatedly reminded of the
importance of submitting verifiable information, but that she has chosen not
to do so. The State party does not find the explanations given hereto
convincing, reiterates that the burden of proof in principle rests with the
author and maintains that the author's credibility can be questioned.
6.2. Finally, the State party draws the attention of the Committee to the
fact that the author first alleged that she had been sentenced to death for
adultery during an initial interview held with her in May 1998. The State
party submits that the author thus has had ample time to present a written
judgement or other evidence to support that claim.
Additional Information from the State Party and Counsel, Requested by the
Committee
7.1. Having taken note of the submissions made by both the author and the
State party regarding the merits of the case, the Committee, on 19 and 20
June 2000, requested further information from the two parties.
Submissions by Counsel
7.2. In her submission of 1 September 2000, counsel confirms previous
information given regarding: (a) the nature of sighe or mutah marriages and
the fact that witnesses are not necessary, nor registration before a judge
if the partners themselves are capable of conducting the ceremony correctly;
(b) the activities of Bonyad-e Shahid, affirming that martyrs' widows are
presented, in listings and photo albums, for temporary marriages to its
employees and directors. Counsel supports the information given with letters
from, inter alia, the Association of Iranian Political Prisoners in Exile
(AIPP), the Support Committee for Women in Iran and Professor Said Mahmoodi,
Professor of International Law at the University of Stockholm.
7.3. With regard to the alleged death sentence against the author, counsel
submits that despite attempts by AIPP, it has not been possible to find any
evidence that the author's Christian lover had been imprisoned and that they
both have been sentenced to death by stoning for adultery. AIPP, as well as
other sources, maintain that such information is not possible to get if the
prison, the court or the case numbers is not known.
7.4. Counsel submits letters and information given by experts in Islamic law
confirming that a sighe wife is bound by the rules regarding adultery and
that she is prohibited from having a sexual relationship with any man other
than her sighe husband. Adultery with a Christian man bears the sanction of
stoning to death. Counsel further submits that the law in theory requires
either four righteous witnesses or a confession to the sexual act for
stoning to be ordered, but that the author's sighe husband, being a powerful
man in society, would not have difficulties finding persons willing to
testify. According to international human rights organizations, the
eyewitness condition is rarely respected and stoning for adultery is still
frequently practised in Iran, despite recent reforms in the country.
7.5. Reference and further clarifications were made with regard to telephone
calls received by the author's sister-in-law (see para. 2.8). The author's
previous lawyer had told Swedish authorities that the sister-in-law in
Sweden had been contacted by Hojatolleslam Rahimian who told her that the
author had been found guilty. Counsel has since been in contact with the
sister-in-law directly and states that the correct version of events was
that the sister-in-law, shortly after the author's arrival in Sweden, was
contacted by a man in rage who did not give his name but wanted to know the
author's whereabouts in Sweden. The man was aggressive and knew all the
details of the author's past and said that she had no right to leave Iran.
The sister-in-law further states that she never attempted to verify the
existence of a court judgement when she visited Iran.
7.6. With reference to the Committee's request for additional information,
counsel states that the author's older son, born in 1980, tried to seek
asylum in Sweden from Denmark in March 2000. In accordance with the Dublin
Convention, after a short interview, he was sent back to Denmark where he is
still waiting to be interrogated by Danish immigration authorities. Since
his case had not yet been examined by the Danish authorities, counsel
requested Amnesty International to interview him.
7.7. The records of the interview confirm statements made by the author
regarding her sighe marriage and of her being called to the Bonyad-e Shahid
office several times a week. The son also states that when his mother left
she had told him that he had to leave school and hide with close relatives
of hers in Baghistan. He received private teaching to become a veterinary
surgeon and subsequently enrolled in University. On 25 January 2000 he was
summoned to the university information office by the intelligence service,
Harasar, from where two men took him to the Bonyad-e Shahid office in Tehran
where he was detained, interrogated, threatened and beaten. He claims that
the interrogators wanted to know his mother's whereabouts and that they
threatened to keep him and beat him until his mother came "crawling on all
fours" and then they would "carry out her sentence". The author's son claims
that it was during the interrogation that he fully realized his mother's
situation, although he had not spoken to her since she left the country.
7.8. In conclusion, counsel maintains that although it has not been possible
to obtain direct written evidence, for the reasons given above, the chain of
circumstantial evidence is of such a nature that there can be no reason to
doubt the author's credibility. Reference is further made to a recent
judgement of the European Court of Human Rights dated 11 July 2000,
regarding an Iranian woman asylum-seeker who allegedly had committed
adultery and who feared death by stoning, whipping or flogging if returned.
As in the case of the author no written evidence existed in the form of a
court judgement, but the Court stated that it "is not persuaded that the
situation in the applicant's country of origin has evolved to the extent
that adulterous behaviour is no longer considered a reprehensible affront to
Islamic law. It has taken judicial notice of recent surveys of the current
situation in Iran and notes that punishment of adultery by stoning still
remains on the statute book and may be resorted to by authorities. [FN1] The
Court ruled that to expel the applicant would be a violation of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
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[FN1] Jabari v. Turkey (para. 40), European Court of Human Rights, 11 July
2000.
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Submissions by the State Party
7.9. The State party made additional submissions on 19 September and 19
October 2000. With reference to the Committee's request for additional
information, the State party reiterates its view that the burden is on the
author to present an arguable case. It maintains that the author has not
given any evidence in support of her claim and therefore there are serious
reasons to doubt the veracity of those claims.
7.10. With regard to the author's alleged sighe marriage, the State party
confirms that the law in Iran allows for such temporary forms of marriage.
It further argues that although sighe marriages are not recorded on
identification documents, such contracts should, according to reliable
sources, contain a precise statement of the time-period involved and be
registered by a competent authority. In practice, a religious authority may
approve the marriage and issue a certificate. Given that the author claims
that her sighe or mutah marriage was conducted by Hojatolleslam Rahimian
himself and that no contract was signed, the State party has doubts as to
whether the author entered into a legally valid marriage.
7.11. The State party points out that counsel in her last submissions to the
Committee has included certificates and other information which have not
previously been presented to the Swedish immigration authorities. As the new
information seems to be invoked in order to prove the existence of sighe
marriages in Iran, the State party emphasizes that it does not question this
fact, nor the existence of the Bonyad-e Shahid, but, inter alia, the
author's credibility in respect of her personal claims of having entered in
such a marriage. The author's credibility is further diminished by the
inconsistent information given relating to phone calls received by the
author's sister-in-law.
7.12. In addition, even if the Committee does accept that the author has
entered into such a marriage, the State party asserts that this in itself
would not constitute substantial grounds for believing that the author would
be in danger of being tortured or killed if returned to Iran.
7.13. It is further submitted that according to the Swedish Embassy in
Tehran, it is not possible for the Embassy to inquire whether a competent
family court, rather than the Revolutionary Court, has issued a judgement
regarding the author. However, the author should, according to the Embassy,
by proxy be able to obtain a copy of the judgement if it exists, or at least
obtain the name of the court and the case number. The State party further
submits that only a married person can be convicted of adultery; it
therefore seems unlikely that the author's lover would have been sentenced
to death as claimed.
7.14. In addition, the State party claims that neither reports from the
United States Department of State nor from Amnesty International confirm the
assertion by counsel that stoning is frequently practised in Iran.
7.15. With regard to the judgement by the European Court referred to by
counsel, the State party points out that in that case the applicant had been
granted refugee status by UNHCR and the European Court had relied on UNHCR's
conclusions as to the credibility of the applicant and the veracity of her
account. In the present case, two competent national authorities have
scrutinized the author's case and found it not to be credible.
7.16. Finally, with regard to the information given by the author's son,
currently residing in Denmark where he is seeking asylum, the State party
underlines that this information is new and has not been presented to the
national authorities. According to the State party, information submitted at
a very late stage of the proceedings should be treated with the greatest
caution. It further emphasizes a number of contradictory points in the newly
submitted evidence: (a) during the son's interrogation by the Swedish Board
of Immigration no mention was made of any court judgement or death sentence,
information which, in the State party's view, would have been relevant in
the circumstances; (b) the son gave contradictory answers to the question of
whether he possessed a passport. The State party also finds it unlikely that
the author was not aware of, and has never invoked, the harassment to which
her son was allegedly subjected after her departure from Iran.
Issues and Proceedings Before the Committee
8.1. 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 is
further of the opinion that all available domestic remedies have been
exhausted. The Committee finds that no further obstacles to the
admissibility of the communication exist. Since both the State party and the
author have provided observations on the merits of the communication, the
Committee proceeds immediately with the considerations of those merits.
8.2. The issue before the Committee is whether the forced return of the
author to the Islamic Republic of 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
or she would be in danger of being subjected to torture.
8.3. The Committee must decide, pursuant to article 3, paragraph 1, of the
Convention, whether there are substantial grounds for believing that the
author 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, of the Convention,
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 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.
8.4. From the information submitted by the author, the Committee notes that
she is the widow of a martyr and as such supported and supervised by the
Bonyad-e Shahid Committee of Martyrs. It is also noted that the author
claims that she was forced into a sighe or mutah marriage and to have
committed and been sentenced to stoning for adultery. Although treating the
recent testimony of the author's son, seeking asylum in Denmark, with utmost
caution, the Committee is nevertheless of the view that the information
given further corroborates the account given by the author.
8.5. The Committee notes that the State party questions the author's
credibility primarily because of her failure to submit verifiable
information and refers in this context to international standards, i.e. the
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status,
according to which an asylum-seeker has an obligation to make an effort to
support his/her statements by any available evidence and to give a
satisfactory explanation for any lack of evidence.
8.6. The Committee draws the attention of the parties to its general comment
on the implementation of article 3 of the Convention in the context of
article 22, adopted on 21 November 1997, according to which the burden to
present an arguable case is on the author of a communication. The Committee
notes the State party's position that the author has not fulfilled her
obligation to submit the verifiable information that would enable her to
enjoy the benefit of the doubt. However, the Committee is of the view that
the author has submitted sufficient details regarding her sighe or mutah
marriage and alleged arrest, such as names of persons, their positions,
dates, addresses, name of police station, etc., that could have, and to a
certain extent have been, verified by the Swedish immigration authorities,
to shift the burden of proof. In this context the Committee is of the view
that the State party has not made sufficient efforts to determine whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture.
8.7. The State party does not dispute that gross, flagrant or mass
violations of human rights have been committed in Iran. The Committee notes,
inter alia, the report of the Special Representative of the Commission on
Human Rights on the situation of human rights in Iran (E/CN.4/2000/35) of 18
January 2000, which indicates that although significant progress is being
made in Iran with regard to the status of women in sectors like education
and training, "little progress is being made with regard to remaining
systematic barriers to equality" and for "the removal of patriarchal
attitudes in society". It is further noted that the report, and numerous
reports of non-governmental organizations, confirm that married women have
recently been sentenced to death by stoning for adultery.
9. Considering that the author's account of events is consistent with the
Committee's knowledge about the present human rights situation in Iran, and
that the author has given plausible explanations for her failure or
inability to provide certain details which might have been of relevance to
the case, the Committee is of the view that, in the prevailing
circumstances, the State party has an obligation, in accordance with article
3 of the Convention, to refrain from forcibly returning the author to Iran
or to any other country where she runs a risk of being expelled or returned
to Iran.
10. Pursuant to rule 111, paragraph 5, of its rules of procedure, the
Committee would wish to receive, within 90 days, information on any relevant
measures taken by the State party in accordance with the Committee's present
views.
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