Christine Chanet (France)
Mr. Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden),
Mr. Hipolito Solari Yrigoyen (Argentina)
RAPPORTEUR: Mr. Ivan
Abdelfattah Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr.
Prafullachandra Natwarlal Bhagwati (India), Alfredo Castillero Hoyos
(Panama), Mr. Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin
(Switzerland), Mr. Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah
(Mauritius), Mr. Michael O’Flaherty (Ireland), Mr. Rafael Rivas
Posada (Colombia), Sir Nigel Rodley (United Kingdom), Ms. Ruth
Wedgwood (United States), Mr. Roman Wieruszewski (Poland)
S. B. v.
Netherlands, Comm. 1204/2003, U.N. Doc. A/60/40, Vol. II, at 411 (HRC
v. The Netherlands
the Human Rights Committee, U.N. GAOR, 60th Sess., Supp. No. 40,
U.N. Doc. A/60/40, Annex VI, sect. W, at 411 (Oct. 3, 2005)
Bos-Veterman, Van As & De Vries, lawyers, a Dutch law firm
1.1 The author of the
communication is Mrs. Sima Booteh, an Iranian citizen, born on 12 July 1970,
currently residing in the Netherlands. She claims to be a victim of
violations of articles 7, 9 and 16, of the International Covenant on Civil
and Political Rights, by the Netherlands. She is represented by counsel: Mr
Bogaers of Bos-Veterman, Van As & De Vries, lawyers, a Dutch law firm.
1.2 On 5 January 2004, the Special Rapporteur for New Communications, on
behalf of the Committee, ruled that the admissibility of this case should be
considered separately from the merits.
2.1 The author is from a politically active family. Her father is alleged to
have been a member of the Tudeh-party and was imprisoned for five years
during the Shah's reign, and for two years when Ayatollah Khomeini was in
power. Her brother and sister were also politically active and had to flee
from Iran. They were granted refugee status in the Netherlands.
2.2 In 1989, the author started working for the Kavosh Institute in Teheran.
The cultural board of the Institute was engaged in many political activities
against the regime, such as the publication and distribution of pamphlets,
forbidden books, bulletins, and magazines. The author participated in these
activities by typing pamphlets and texts for magazines in the house of Dr.
Reza Baharani, a member of the Iranian Writer's Council in Teheran. In April
1993, the Institute was raided by the police, but nothing was found. After
this incident, the author decided to go back to her home town of Roudsar.
2.3 In Roudsar, the author and another woman published pamphlets and wrote
letters about the situation of women in Iran, and encouraged other women to
become involved in their activities. On 24 July 1994, the author and some
other women were arrested by the police in the author's house. They were
taken to Sepah prison, where the author was allegedly beaten until she fell
unconscious. She was held in isolation for four weeks, interrogated day and
night, and beaten. She was not given medication she needed to treat her
asthma. She was held in this prison until 14 April 1995, when she was to be
transferred to another prison. During her transfer, she managed to escape,
as her father had bribed the guards; she left Iran on 10 March 1996.
2.4 On 11 March 1996, the author arrived in the Netherlands. On 28 March
1996, she applied for refugee status and a residence permit. On 1 August
1996, her application was denied by the State Secretary of Justice. On 10
September 1997, her objection against this decision was dismissed.
2.5 On 6 October 1997, the author appealed to the District Court of
S'-Gravenhage. On 31 July 2000, the District Court dismissed her appeal,
considering that she had failed to show a fear of persecution within the
meaning of refugee law. The decision was based on the finding that the
author's account was vague, contradictory and/or inconsistent, and was not
supported by the evidence presented by her in court.
2.6 On 30 July 2002, in a further communication to the Committee, the author
argued that the judgment of 31 July 2000 was final and that she could be
expelled at any moment. However, on 11 August 2003, she informed the
Committee through her counsel that, although she had no right to stay in the
Netherlands, no deportation order had, in fact, been issued. Indeed, she
stated that "the Dutch authorities don't follow an active policy of
refoulement. The Netherlands let people bleed to death".
3.1 The author claims to be a victim of a violation of articles 7 and 9 of
the Covenant, since, on account of her previous detention in Iran on the
basis of her political activities, she would be in imminent danger of being
arrested and detained if returned to Iran, where she would be subjected to
torture or cruel, inhuman or degrading treatment or punishment. She alleges
that she is still being sought by the Iranian authorities.
3.2 In respect of the procedure before the Dutch immigration authorities,
the author complains that the interpreter was impolite and deliberately
incorrectly translated a number of her statements. the immigration officer
allegedly could not concentrate properly because of a pain in his knee, and
the first lawyer who represented her did not give her enough time to tell
her full story, while the second one met her too briefly. She claims that no
translator was present during the District Court hearing of 22 July 1999 and
that the contradictions the court found in her story are attributable to
problems of interpretation. She challenges the court's finding that a
certain document by the Iranian authorities was not authentic.
3.3 Lastly, the author claims that her situation in the Netherlands violates
article 16 of the Covenant, given that she is not allowed to stay in the
country nor is she expelled. Thus, she is treated de facto as a non-person
before the law.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND THE AUTHOR'S COMMENTS
4.1 On 4 December 2003, the State party submitted its observations on the
admissibility of the communication. As to the author's claim under article
7, the State party submits that the author makes a number of unspecified
critical comments about the Dutch asylum proceedings. In this context, it
submits that in domestic proceedings, the author failed to submit specific
objections against the nature of the asylum proceedings, thereby denying the
competent authorities the opportunity to respond to those objections. It
argues that the author has not exhausted domestic remedies. Secondly, it
observes that the right to file an individual complaint is not intended to
provide an opportunity for complaints in abstracto concerning national
legislation and practice.
4.2 As to the allegation of a violation of article 9, on the basis that the
author's detention in Iran for nine months was unlawful, the State party
submits that this detention and any alleged violation connected with it, did
not take place within the jurisdiction of the Netherlands and is not
therefore attributable to the State party.
5.1 On 23 December 2003, the author responded to the State party's
observations on admissibility. She challenged its view that the complaint
amounts to an actio popularis and reiterates her claim that her expulsion to
Iran would expose her to a real risk of violation of her rights under the
Covenant, and that in assessing her complaint the Dutch authorities unfairly
concluded that her claims were insufficiently substantiated. In this regard,
she requests the Committee to read the analysis of the asylum procedure and
background to her case.
5.2 On the issue of exhaustion of domestic remedies, the author states that
no further remedies are available. She refers to a statement in a letter to
her lawyer from the Ministry of Justice, which states that "Now the decision
is definite, I don't see any room to reconsider your case".
5.3 Concerning the alleged violation of article 9, the author claims that
the State party has deliberately misinterpreted her claim, that because she
was already a victim of unlawful detention in Iran, she has serious grounds
to fear that such detention "or worse" will fall upon her if forcibly
returned to Iran. In this sense, she claims that the State party would be
responsible for a repetition of such unlawful detention.
5.4 The author provides a copy of a letter, dated 19 January 2004, from
Amnesty International, which states that if the author is removed to Iran,
she would be exposed to a real risk of a violation of her rights under
articles 7 and 9 of the Covenant, and highlights alleged inadequacies in the
asylum procedure in the Netherlands, including alleged inadequacies in how
the author's own case was decided.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
6.2 As to the claim that the State party would violate articles 7 and 9 if
it were to return the author to Iran knowing full well that it is likely
that she would be subjected to arbitrary detention or other unlawful
treatment upon her arrival, the Committee notes that the author does not
expect to be forcibly returned to Iran. It further notes that apart from
asking it to review the Dutch asylum procedure, the author's claims relate
to procedural irregularities (see para. 3.2), which the domestic courts have
not had an opportunity to address. The Committee therefore considers this
claim is inadmissible as unsubstantiated within the meaning of article 2 of
the Optional Protocol.
6.3 As to the alleged violation of article 16, the Committee finds that the
author has not shown how the State party's refusal to grant her a residence
permit while at the same time failing to deport her, amounts to a violation
of article 16. The Committee therefore considers this claim inadmissible
under article 2 of the Optional Protocol.
7. Accordingly, the Committee decides:
(a) that the communication is inadmissible under article 2 of the Optional
(b) that this decision be transmitted to the State party and to the author.
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.