against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 15 May 2003,
Having concluded its consideration of complaint No. 190/2001, submitted to
the Committee against Torture by Mr. K.S.Y. under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
Having taken into account all information made available to it by the author
of the complaint, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is Mr. Khaliollah Soorani Yancheshmeh, a citizen of
Iran, born on 23 August 1950, whose application for refugee status was
rejected in the Netherlands. He claims that his deportation to Iran would
constitute a violation by the Netherlands of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (hereafter, the Convention). He is represented by counsel.
1.2 In accordance with article 22, paragraph 3 of the Convention, the
Committee transmitted the communication to the State party on 16 October
2001. Pursuant to rule 108 of the Committee's rules of procedure, the State
party was requested not to deport the complainant to Iran pending the
consideration of his case by the Committee.
The Facts as Presented by the Complainant
2.1 The complainant states that he has encountered problems in Iran on
account of his homosexuality and because of the political activities of his
2.2 The complainant had difficulties with Iranian authorities since his
brother was recognized as a refugee in the Netherlands in the early
eighties. He was interrogated by the Monkerat Committee four or five times
and, after each interrogation, had to sign the next convocation.
2.3 In March 1992, the complainant travelled to the Netherlands for the
wedding of his brother. When he returned to Iran, he was interrogated by the
authorities about the reasons of his trip and the activities of his brother
in the Netherlands. The Iranian authorities confiscated his passport, issued
an order prohibiting him to travel abroad. He was ordered to report daily to
the passports' office of the criminal investigation department.
2.4 In Iran, the complainant had a homosexual relationship with one K.H.,
whose homosexuality allegedly was easy to recognize due to his "female"
behaviour. Because of his homosexuality, he separated from his wife, with
whom he had three kids.
2.5 On 10 August 1992, the complainant was arrested in Shiraz by the
Monkerat (Special Unit of the Revolutionary Committee) on account of
complaints by neighbours about his homosexual activities. His partner was
not arrested as he went into hiding. The complainant was taken to a prison
in the Lout desert and interrogated about his homosexuality and his
brother's activities. During his detention, he allegedly was tortured,
beaten with cables on the sole of his feet, on his legs and in the face, and
hanged to the ceiling by one arm during half a day over three weeks. The
complainant was later sentenced to death [FN1] but never received a written
verdict of the sentence. After five months of detention, he succeeded to
escape with the help of prison cleaning services who hid him in the garbage
truck. The escape was facilitated by the absence of guards in the evening,
the prisoners being all confined in their cell.
[FN1] The complainant explains that he has never received a copy of the
judgement and that he was only informed of his death sentence through a
document that was pushed under his cell door and then immediately pulled
back. He is therefore not in a position to give the date of the judgement.
2.6 The complainant first went to Mashad and then to Ispahan, where some
relatives resided. From there he organized his travel to Europe. In August
1993, the complainant and his partner travelled separately to the
Netherlands. The complainant used an Iranian passport provided by the "passeur"
with his own photograph. When he arrived in the Netherlands, he destroyed
the passport as he had been told to do so.
2.7 On 16 March 1994, the complainant applied for both refugee status and
residence permit on humanitarian grounds. Both applications were rejected on
26 August 1994. On 29 August 1994, the complainant applied for a review of
this decision. On 22 December 1994, the Advice Committee on Alien Affairs
advised the State Secretary of the Department of Justice to deny asylum to
the complainant but to grant him a residence permit because of his physical
and psychological condition.
2.8 Since his arrival in the Netherlands, the complainant shared
accommodation with his partner, K.H., until the latter started relationships
with other men. After a fight about this situation, the complainant killed
his partner. On 22 June 1995, the complainant was convicted of murder by the
District Court Leeuwarden and sentenced to six years' imprisonment. He was
imprisoned between 21 January 1995 and 21 January 1999. The body of K.H. was
repatriated to Iran, after intervention of the Iranian Embassy in the
2.9 In the meantime, on 12 September 1996, the application for review of the
initial decision denying asylum and residence permit to the complainant was
rejected. The complainant appealed this decision on 13 September 1996 before
the District Court of The Hague.
2.10 Moreover, further to the crime committed by the complainant, the State
Secretary of the Department of Justice declared the complainant to be an
"undesirable person" on 10 September 1996. A request to review this decision
was rejected on 6 December 1996. The complainant made a further appeal
against this decision on 24 December 1996 before the District Court of The
2.11 On 22 December 1999, the District Court of The Hague dismissed both
appeals of 13 September 1996 and 24 December 1996.
2.12 In the meantime, on 1 October 1999, the complainant introduced a new
application for asylum which was rejected on 5 October 1999. His appeal
against this decision was finally rejected on 11 May 2001.
3.1 The complainant claims that if he is returned to Iran, he is at risk of
being subjected to torture, and that his forcible removal to Iran would
entail a violation of article 3 of the Convention by the State party.
3.2 In support of his claim, the complainant argues that he was tortured
when he was detained in Iran in 1992. The consequences of these abuses are
confirmed by a number of medical reports submitted to the Committee.
According to the medical reports, the complainant suffers from severe post
traumatic stress disorder, including a suicidal tendency, and his right
shoulder is seriously restricted in its movements because he had been hanged
by one arm for prolonged periods.
3. 3 The complainant considers that the main element supporting the risk of
torture are his homosexuality and the events that occurred in the
Netherlands after his arrival. He argues that his homosexuality was
confirmed by his partner, K.H., during hearings related to his own asylum
application and by the judgement of 22 June 1995, in which the complainant
was convicted of murder.
3.4 The complainant explains that after the death of K.H., his body was
repatriated to Iran and that the Iranian authorities have undoubtedly tried
to obtain explanations about the reasons for K.H.'s death. If he were
removed now to Iran, he would certainly face problems related to the murder
he committed and, particularly, his homosexuality. This would put him at
risk of again being detained and subjected to torture and other forms of
3.5 The complainant, referring to a report of Amnesty International of 30
July 1997, notes that homosexual activities are a criminal offence under the
Iranian Penal Code. He points out that the mere declaration of four
witnesses may lead to punishment as well as the opinion of a judge based on
his own knowledge. The report further says that a person suspected of
"committing" homosexual activities risks arrest, torture (lashes) or
3.6 As to sources that confirm the existence of acts of torture in Iran, the
complainant refers to the report of the United Nations Special
Representative of the Commission on Human Rights on Iran of 21 September
1999, according to which "[p]ress accounts suggest that corporal punishment
is prevalent. In January 1999, an Iranian newspaper reported that two
15-year-old boys had been sentenced to a flogging for 'offending public
democracy' by dressing up as girls and wearing make-up. They explained to
the Court that they did this to 'extract money from rich young men'. In June
an Iranian newspaper reported that a young man in Mashad had been given 20
lashes for 'wounding public moral sentiments' by plucking his eyebrows and
wearing eyeshadow. In March an Iranian newspaper reported that six persons
had been sentenced in Mashad to 18 months in jail and 228 lashes for goading
passers-by to dance in the street".
3.7 The complainant underlines that the decisions of the State party to deny
him refugee status were based on alleged discrepancies and, in particular,
on the fact that K.H. did not mention during his own asylum hearings that
the complainant had been detained in Iran. The complainant argues that K.H.
only mentioned his homosexual relationship with him and explained that his
partner also had problems but did not give any more details. The complainant
also refers to the jurisprudence of the Committee according to which
complete accuracy can seldom be expected from victims of torture.
3.8 Finally, the complainant draws attention to the fact that the
complainant was not admitted in the State party because he was convicted of
a serious crime. The complainant that is not compatible with the absolute
character of article 3 of the Convention. Furthermore, the complainant
argues that he is not a threat to the Dutch society because his crime was
committed out of passion, as confirmed in the judgement of 22 June 1995.
State Party's Observations on the Admissibility and Merits
4.1 In a submission dated 21 November 2000, the State party made its
observations on the merits of the case as it did not propose any grounds for
4.2 Referring to the jurisprudence of the Committee, the State party recalls
that in order to be personally at risk of being subjected to torture in the
sense of article 3 of the Convention, there must not only be a consistent
pattern of gross violations of human rights in the country where the
complainant is expelled but also specific grounds indicating that the
complainant is personally at risk of being subjected to torture. It also
reminds that the terms "substantial grounds" imply that torture is highly
likely and that the individual must face a foreseeable, real and personal
risk of being tortured, as interpreted in the light of the Committee's
general comment No. 1 on the implementation of article 3.
4.3 Concerning the situation in Iran, the State party, referring to some
Views of the Committee, argues that although the situation is disquieting it
is not to a point that any person removed to Iran would be in danger of
being subjected to torture. Moreover, the complainant's homosexuality does
not in itself constitute a risk incompatible with article 3 of the
Convention. Referring to a number of country reports carried out by its own
services, the State party is of the view that although homosexual acts are
prohibited in Iran and may incur the death penalty, there is no active
policy of prosecution. Even if a charge of homosexuality is in some cases
added to a range of other criminal charges, there are no known cases of
convictions, including at the court's own discretion, solely for homosexual
acts. It is further noted that the United Nations High Commissioner for
Refugees has not "been able to trace any cases of execution of persons found
guilty of homosexual relations".
4.4 Concerning the political activities of his brother, A.A., the State
party considers that the complainant has not substantiated that they would
imply a personal, real and foreseeable risk of torture for him because his
statements in that regard have been inconsistent, vague and contained little
detail. According to different interviews, the complainant has been arrested
once, 5 or 6 times, or more than 40 times in connection with his brother's
political activities. Moreover, while the complainant had stated that his
brother had been the leader of a Mujaheddin group, his brother himself told
the State party's authorities that he was only a sympathiser of the
Mujaheddin and distributed pamphlets, but undertook no further activity
against the Iranian Government.
4.5 The State party considers that it is implausible that, while the
complainant had encountered no problems in this respect until he travelled
to the Netherlands in March 1992 with the permission of the authorities, he
was arrested upon his return to Iran, that his passport was confiscated and
that he was interrogated in relation with his brother's activities. The
State party refers to ministerial reports according to which it is
impossible for persons researched by the authorities to travel abroad and
notes that thousands of Iranians travel annually abroad without encountering
problems at their return in the country.
4.6 Moreover, the State party argues that, even assuming that the
complainant was indeed arrested after his return to Iran in April 1992, the
fact that he was released shortly afterwards without having been molested
and that the political activities of his brother took place 17 years ago
could not constitute evidence that the complainant would run the risk of
being tortured for that reason.
4.7 Concerning his sexual preference, the State party notes the
complainant's declarations that until August 1992 and prior his departure
from Iran, in August 1993, he did not have any problems with the Iranian
authorities in this respect. The State party further considers that his
arrest in August 1992 because of his homosexuality lacks credibility because
the complainant was not open about his sexual preference. It is similarly
implausible that his partner, K.H., whose appearance was patently
homosexual, was not arrested. The fact that K.H. did not mention the
complainant's arrest in his asylum hearings because of their relationship
also permits the doubts about the veracity of this claim given the
importance of such a detail.
4.8 Concerning the death penalty to which he was sentenced because of his
homosexuality, the complainant stated in his first interview that he did not
receive any document recording his sentence. In April 1994, he stated that
his sentence had been slipped under his cell door, attached to a piece of
string. He later stated that he was told that he had to die because he was
homosexual. Finally, in December 1994, he stated that his death sentence had
been read out to him at the Monkerat office.
4.9 The State party observes that the complainant's account of his detention
and escape, in that there was no guard in the evening and that he was able
to escape into a garbage truck without encountering any problems, are
inconsistent with the detention of a person under sentence of death.
4.10 The State party considers that the jurisprudence of the Committee
related to the issue of inconsistencies and contradictions made by victims
of torture in their account of past abuses is not applicable to the present
case because the complainant's alleged contradictions relate to essential
parts of his persecutions.
4.11 Concerning the medical reports submitted by the complainant, the State
party argues that they conflict with the complainant's lack of credibility
regarding his reasons for seeking asylum. The State party therefore
considers that it is not necessary to examine whether the alleged physical
symptoms are indicative of torture and thus relevant for the assessment of
the complainant's claim and that it is incumbent to the complainant to
demonstrate their relevance by presenting a credible claim. Moreover,
physicians make their medical findings solely within the limited context of
the statements made to them so that the causes of the complainant's medical
situation cannot be ascertained objectively.
4.12 Finally, the State party considers that the complainant has not
demonstrated that, since his arrival in the Netherlands, his sexual
preference has come to the attention of the Iranian authorities, and
referring again to the reports made by its Ministry of Foreign Affairs
according to which homosexuality remains a social taboo in Iran, that it is
implausible that K.H.'s family would have reported to the authorities about
the reasons for his death. The complainant has not further demonstrated that
he is likely to be imprisoned in Iran, let alone tortured, because of the
murder of K.H. committed in another country.
5.1 In a submission dated 30 May 2002, the complainant transmitted his
comments on the observations of the State party.
5.2 Regarding the absence of known cases of recent prosecutions solely on a
charge of homosexuality, the complainant emphasizes that this does not mean
that there are not any and that it is known that Iranian authorities are
reluctant to give information about criminal prosecutions. Moreover,
according to an Amnesty International report transmitted to the State party
on 7 November 2001, 100 people were tortured in Iran only in July 2001, at
least 10 people were hanged and 100 death sentences were upheld by the
Supreme Court. As the background of these incidents is most of the time
difficult to ascertain, homosexuality may in some cases have been at issue.
5.3 The complainant underlines the State party's observation that homosexual
acts are often prosecuted together with other criminal charges. He states
that this is exactly what he expects to happen in his case since the body of
his partner was repatriated to Iran. This will give the Iranian authorities
a reason to add a criminal charge of murder to that of homosexuality. The
complainant considers that the murder he committed constitutes in itself a
risk of being tortured if returned to Iran and that the fact that he has
already been punished in the Netherlands is irrelevant.
5.4 Regarding the alleged contradictions and inconsistencies of his account
of the facts, the complainant considers that the State party misinterpreted
his words, particularly on the question of his detention on account of his
brother's political activities. During the first interview with the Dutch
authorities, the complainant mentioned that he was arrested once because of
his homosexuality and several times in connection with his brother's
political activities. His following declarations about his separate and
different arrests were either related to arrests by the Sepah or by the
Committee. The complainant finally notes that he is not in a position to
compare his interviews with those of his brother as he was transmitted the
file by the State party.
5.5 Regarding the alleged implausibility that he was arrested in August 1992
for his homosexuality because he was not open about his sexual preference,
the complainant reiterates that he was arrested further to complaints made
by neighbours who saw him with K.H., who was openly homosexual. Moreover,
the complainant considers that it is perfectly conceivable that K.H. went
5.6 Regarding the fact that K.H. did not mention the detention of the
complainant during his own asylum hearing, it is noted that K.H. was not
specifically interrogated on this issue and that interviews were short.
5.7 The complainant confirms that he never received any document recording
his death sentence, and that he was only informed of it when the sentence
was pushed under his cell door and then pulled back.
5.8 The complainant finally submits an additional report made by "Stichting
Centrum '45", an organization dealing with traumatized war victims and
asylum-seekers, according to which his situation is worsening and that
serious risk of "balance suicide" exists. Contrary to the State party, the
complainant considers that medical reports constitute evidence in support of
his claim. Moreover, he notes that he has already demonstrated the relevance
of the medical reports.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a communication, the
Committee 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.
6.2 Moreover, the Committee notes that the State party has not submitted any
objections on the admissibility of the communication, including with regard
to the exhaustion of domestic remedies. The Committee therefore declares the
communication admissible and proceeds without further delay to its
consideration of the merits.
7.1 The Committee must decide whether the forced return of the complainant
to Iran would violate the State party's obligation, under article 3,
paragraph 1 of the Convention, not to expel or return (refouler) an
individual to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture. In order
to reach its conclusion, the Committee must take into account all relevant
considerations, including the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.
The aim, however, is to determine whether the individual concerned would
personally risk 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
sufficient grounds for determining whether the particular person would be in
danger of being subjected to torture upon his return to that country;
additional grounds must be adduced to show that the individual concerned
would be personally at risk. Conversely, the absence of a consistent pattern
of gross violations of human rights does not imply that a person cannot be
considered to be in danger of being subjected to torture in his or her
7.2 In the present case, the Committee notes that the political activities
of the complainant's brother took place more than 17 years ago and that they
may not in themselves constitute a risk for the complainant himself to be
subjected to torture, if he were returned to Iran.
7.3 Concerning the alleged difficulties faced by the complainant because of
his sexual orientation, the Committee notes a number of contradictions and
inconsistencies in his account of past abuses at the hand of the Iranian
authorities, as well as the fact that part of his account has not been
adequately substantiated or lacks credibility.
7.4 The Committee also notes from different and reliable sources that there
currently is no active policy of prosecution of charges of homosexuality in
7.5 In the light of the arguments presented by the complainant and the State
party, the Committee finds that it has not been given enough evidence by the
complainant to conclude that the latter would run a personal, present and
foreseeable risk of being tortured if returned to his country of origin.
8. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, considers that the complainant has not
substantiated his claim that he would be subjected to torture upon return to
Iran and therefore concludes that the complainant's removal to that country
would not constitute a breach by the State party of article 3 of the
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]