|
|
The Committee
Against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 12 May 2006
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is Mr. Mehdi Zare, an Iranian national, currently
awaiting deportation from Sweden. He claims that his removal to Iran would
constitute a violation by Sweden of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
1.2 On 23 September 2004, the Committee forwarded the complaint to the State
party for comments and requested, under Rule 108, paragraph 1 of the
Committee's rules of procedure, not to return the complainant to Iran while
his complaint was under consideration by the Committee. On 21 January 2005,
the State party acceded to the complainant's request.
The Facts as Submitted by the Complainant
2.1 The author was born in Abadan (Southern Iran). He moved to Shiraz
because of the Iran-Iraq war. In 1996, he married the daughter of the
chairman of the Imamjome executive body i.e. Omana, of the city of Faza. An
Imamjome is an Islamic priest with special powers.
2.2 According to the complainant, since 1999, he has been an active member
of the Socialist party of Iran (known as the PSI) and was its representative
in Faza. He took part in different political actions: distributing leaflets
and other political material; gathering information; preparing meetings; and
renting appropriate meeting places. His brother-in-law was an active
politician with a leading position in the SPI in Mashad city. The
complainant rented an apartment in Shiraz for his sister and brother-in-law,
who were in hiding. During their stay, the complainant frequently visited
them. He also distributed videotapes and leaflets on student demonstrations
for them in Teheran. His brother-in-law and sister were eventually obliged
to flee to Switzerland, where they were granted political asylum.
2.3 The complainant argues that his frequent visits and absences raised the
suspicion of his wife's family, who thought that he was having an affair. He
was unable to reveal the truth and unable to give a plausible explanation.
His wife requested a divorce and obtained it on 28 August 2001. The
complainant's ex-wife's family reported him to the authorities on the basis
that he frequented a suspicious address in Shiraz, had a parabolic antenna,
and frequently drank alcohol. On 1 September 2001, a policeman conducted a
search of the complainant's home and confiscated the parabolic antenna and
some alcohol. The complainant was arrested and brought to the "General
court" in Faza, where he was detained. He was interrogated for 24 hours and
severely beaten. He experienced a severe pain in his kidneys as a result. In
the night of 2 September 2001, a medical doctor ordered him to be sent to a
hospital, where he was diagnosed as suffering from "inflammation of the
kidneys". He was then transferred to a detention centre adjacent to the
General Court.
2.4 On 3 September 2001, he was charged with the crime of possessing a
parabolic antenna and possessing and drinking alcohol. He explains that the
real reason for his arrest was to keep him detained, pending the
investigation of his visits to the apartment in Shiraz. On 12 September
2001, the General Court found him guilty as charged and sentenced him to 140
whiplashes (75 for the antenna, and 65 for the possession of alcohol). On 14
September 2001, he appealed to the court with a request to have his
punishment transformed into a fine, but his request was denied on 18
September 2001. The verdict was to be enforced on 21 September 2001. On 18
September 2001, the complainant was released on bail. He learned from a
friend that his political activities were discovered by the authorities, in
the course of the investigation on him. On 18 September 2001, he left Faza
and travelled to Shiraz, after having been informed by his lawyer that the
authorities were searching for him for "serious crimes".
2.5 On 19 September 2001, the complainant called his neighbours in Faza and
learned that the authorities had searched his home and closed his repair
shop. He realized that his life was in danger and decided to flee from Iran.
He went to Bandar Abbas and stayed there for 25 days, before leaving to
Tabriz. A smuggler brought him to the border, and from there he went to
Sweden by train and car. On 22 January 2002, he arrived in Sweden. On the
same day, he requested political asylum and had a preliminary interview. On
18 December 2002, a complete interview took place. The complainant was
represented by a lawyer. On 23 May 2003, he had a complementary interview,
and his lawyer represented him by phone. During this third interview, upon
being asked questions that he had already answered, the complainant had the
impression that the translation during the earlier interviews was inadequate
and complained to the authorities. On 4 June 2003, the authorities proceeded
to the audition of the tape recordings and concluded that the interview was
defective, as the interpreter had left out and added information.
2.6 On 17 June 2004, the Migration Board rejected the complainant's asylum
request, on the grounds that his statements were not credible. It considered
that he had altered his statements, from a fear of punishment for possessing
a parabolic antenna and drinking and possessing alcohol, to a fear of
punishment for aiding a person with an illicit political view. The Board
considered that the complainant hadn't made out that the Iranian authorities
were aware that he was helping his sister and brother-in-law; it found it
unlikely that the complainant had been sentenced to 140 whiplashes, as the
penalty in Iran for the charges against him was a monetary fine. As to the
effectiveness of translation, the Board pointed out that the complainant had
had the possibility of making corrections through counsel. The Board
concluded that the complainant had failed to prove that he risked
persecution if returned in Iran.
2.7 The complainant appealed to the Aliens Appeal Board with a request to
have his counsel replaced and to have an oral hearing. On 6 October 2003,
the Board denied both of his requests. He then hired a private lawyer, who
submitted supplementary information on the complainant's political
activities in Iran. The complainant himself also submitted supplementary
documents, including a letter from SPI, in which it was stated that he had
been a political activist, as well as a medical certificate that he had
suffered from a heart attack, which could have emanated from the stress to
which he was exposed. On 8 June 2004, the Board rejected the appeal on the
ground that the complainant was not credible. The Board stated, inter alia,
that he had had the opportunity to correct the translations from the second
interview, that he couldn't prove that he had been sentenced to 140
whiplashes and his claim that he was politically active had not been
mentioned earlier in the proceedings.
2.8 On 21 June 2004, the complainant lodged a new application with the
Aliens Appeal Board. He presented what he purported to be original
documents, allegedly proving that his request to change the verdict to a
monetary fine was denied by the Iranian authorities. These consisted of a
decision, of 18 September 2001, rejecting his application for conversion and
a note of criminal record about him. The Board did not consider the
documents trustworthy and rejected the application on 15 July 2004.
2.9 On 19 July 2004, the complainant lodged a second new application with
the Board, with a clarification on his political activities for the previous
five years. The Board found that there was no proof that he had been
involved politically in Iran and rejected his application on 1 September
2004. On 9 September 2004, in his final application, the complainant
presented what he purported to be original summonses from the Iranian
authorities inviting him to attend the general court in Shiraz. He requested
the Board to postpone its decision pending the issuing of a medical
certificate. On 13 September 2004, the Board denied the complainant's
request and, on 17 September 2004, rejected his application.
The Complaint
3.1 The complainant claims that the State party would violate article 3 of
the Convention if he is returned to Iran, as he has a real and personal fear
of being tortured and ill-treated upon return, on account of his previous
political activities. The sentence of 140 whiplashes will be imposed upon
him. He submits that the real reason behind this verdict was the
authorities' desire to persecute him for his political activities.
3.2 In the complainant's view, the domestic authorities failed to examine
his case and his statements objectively and impartially. He claims that the
documents provided by him to prove his sentence were authentic and that
those demonstrating his involvement in the SPI were not accepted. As to the
judgement of his sentence to 140 whiplashes, he claims that during the
interviews he stated that he had never received a written verdict and that
the verdict was only orally communicated to him after the court proceedings
in Faza. He claims that the State party failed in its obligation, under
domestic law, to ensure that the interviews were conducted properly. He
could not correct his statements properly, because the information he
received from the interviews was incomplete. The Board refused to allow him
an oral hearing, thus preventing him from correcting the information
provided during interviews.
State Party's Submission on Admissibility and the Merits
4.1 By submission of 21 January 2005, the State party submits that the
complaint is inadmissible as manifestly ill-founded. On the facts, the State
party confirms that the interpretation during the second interview was
defective and for this reason the complainant was allowed to make a number
of corrections to the information he had presented during the second
interview. In made such amendments in submissions on 3 February and 19 June
2003 and these corrections and clarifications were taken into account by the
Migration Board.
4.2 The State party submits that the Aliens Appeal Board found no reason to
refer the case back to the Migration Board or to conduct an oral hearing.
The complainant had participated in three interviews. After it was
discovered that there were deficiencies in the second interview, a third
interview was held which involved detailed questions. In addition to the
records from the three interviews, the material before the Migration Board
included submissions from the complainant. Moreover, the complainant had
submitted extensive written material to the Aliens Appeal Board.
4.3 On the merits, the State party notes that, the government of the Islamic
Republic of Iran is reported to violate human rights. However, this does not
suffice to establish that the complainant's forced return would violate
article 3. For such a violation, he must demonstrate that he faces a
foreseeable, real and personal risk of being tortured, present an arguable
case that goes beyond mere theory and suspicion, and that it rests primarily
with the complainant to collect and present evidence in support of his/her
account. The State party sets out the relevant provisions of the Aliens Act
and points out that several provisions reflect the same principle as that
laid down in article 3, paragraph 1 of the Convention. It also submits that
the national authority conducting the asylum interview is naturally in a
very good position to assess the credibility of the asylum seeker's claims.
Thus, great weight must be attached to the opinions of the Swedish
immigration authorities which considered this case.
4.4 According to the State party, there is no reliable evidence that the
complainant was detained, charged or convicted for the possession of a
parabolic antenna and alcohol consumption. He failed to demonstrate that
there is a risk of being subjected to corporal punishment if expelled to
Iran. With the new application submitted to the Aliens Appeals Board on 21
June 2004, he submitted two documents, which were purported to be originals
of the decision to reject his application for conversion of the flogging
sentence to a fine, and of the note of criminal record. It was submitted
that the complainant had authorised his brother to obtain these documents
for him. The Aliens Appeal Board considered that the documents were not
originals and there were a large number of fabricated documents in
circulation. In the Board's view, they lacked probative value.
4.5 On 1 September 2004, the Aliens Appeal Board rejected the complainant's
second new application, in which he submitted a certificate, dated 30 June
2004, and purportedly issued by the Secretary General of the SPI. The Board
stated that a similar certificate had been submitted and that the new
certificate did not contain information that gave the Board reason to depart
from its previous assessment. On 17 September 2004, the Board also rejected
the complainant's third application. He had appended two summonses to his
application, which purported to summon him before an Iranian court, as two
named persons had reported to the authorities that he had worked actively
against the regime. The Board found that crimes of a political nature are
generally dealt with by the Revolutionary Court and, according to
information available to the Board, this court does not issue summonses. In
addition, the documents at issue carried the emblem of the ordinary courts
and not of the Revolutionary Court.
4.6 In November 2004, the Government requested the Swedish Embassy in Tehran
to provide certain information regarding, inter alia, the documents
submitted by the complainant. The Embassy consulted an Iranian legal expert
to obtain an opinion on the authenticity of the alleged application to an
Iranian court for a conversion of the flogging sentence to a fine, the
alleged decision of 18 September 2001 of the Court, rejecting the
application, and the alleged note of the criminal record, concerning the
alleged flogging sentence. The Embassy found that a criminal record does not
normally contain the kind of information represented therein. It observed
that the note had been issued only thirteen days after the alleged judgement
was delivered, at a point in time in which the time-limit for filing an
appeal against the alleged judgement had not yet expired. It is unlikely
that it would have been issued so quickly and it generally takes longer than
thirteen days before a judgement is registered in the criminal record.
4.7 As to the alleged application for a conversion of the flogging sentence,
the Embassy noted that the form used for the application is intended for use
in civil proceedings. This is not the correct form for the present case. In
addition, the Embassy noted that such an application should be directed to
the authority responsible for the enforcement of the sentence and not, as in
this case, to the court/administration against "social decay". In addition,
the text of the alleged application states that the complainant "according
to the assessment of the then judge and prison physician, he has problems
with his kidneys and is not fit to take corporal punishment". The State
party questions why the first instance judge would issue a sentence of
corporal punishment if he held this view. Concerning the alleged decision of
the Court to reject the application, the Embassy stated that the decision
only deals with issues of guilt and not with that of conversion of the
sentence. Furthermore, all three documents appear to have been sent by fax,
one after another, on 27 February 1999 , prior to the alleged events
described by the complainant. [FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] For instance, he stated that the judgement on which the note of
criminal record was based and that his above-mentioned application
concerned, was delivered by the court on 12 September 2001.
---------------------------------------------------------------------------------------------------------------------
4.8 The State party highlights the complainant's failure to furnish the
alleged judgement, sentencing him to corporal punishment and submits that,
in the course of the proceedings, he provided different reasons why he could
not do so. In the current complaint, the complainant states that the
judgement was only given orally by the Iranian court and thus he had never
received a written version of it at all. According to the Iranian expert, a
person who had been sentenced by a public court in Iran, as in this case,
would be able to procure the judgement. This would not be the case if it had
been the Revolutionary Court that had tried him. The complainant did not
mention during the domestic proceedings the misunderstanding that he now
invokes, and there is no indication that the interpretation during the third
interview was flawed.
4.9 As to the sentence itself, the State party refers to the findings of the
Migration Board that the possession of a parabolic antenna does not render
punishment as harsh as flogging in Iran and that consumption of alcohol was
primarily punished under the set of rules in Iranian Penal Law called houdud.
The relevant punishment was 80 whiplashes, but such a sentence required that
the accused had confessed on two occasions that he had consumed alcohol, and
two men should have witnessed this act. The sentence would only be enforced
in cases where the accused could not rationally explain his alcohol
consumption. There is also the possibility for the accused to be pardoned,
or under certain circumstances, to have the sentence set aside, providing
that he regretted his actions. The consumption of alcohol could also be
punished under the tazirat rules of the Iranian Penal Code, under which he
may be sentenced to three to six months' imprisonment and/or 74 whiplashes.
In view of the high standard of proof required under the Houdud rules, and
the fact that under Tazirat rules alcohol consumption was primarily punished
by imprisonment, together with the lack of credible documentation on this
point, the Board found unlikely that the complainant had been sentenced to,
or was at risk of being subjected to, flogging for alcohol consumption or
possession of a parabolic aerial.
4.10 As to the claim that he is at risk of being tortured on account of his
political activities with the SPI, the State party submits that, the
complainant elaborated on this claim in successive stages, which gives
reason to serious questions about its reliability. At the first interview by
the Migration Board, he stated that he had not been politically active in
Iran. Later he submitted that he had assisted his politically active
brother-in-law, and in a submission to the Migration Board, in February
2003, he claimed that he should be granted political asylum on these
grounds. It was not until his appeal to the Aliens Appeal Board in August
2003, that he invoked his own political involvement as the reason for
asylum.
4.11 In support of his claim, the complainant submits two summonses inviting
him to attend the public Court of Shiraz, on 31 July 2004 and 25 August
2004, which he claims were handed to his mother. The same Iranian legal
expert was consulted on the authenticity of these documents: He concluded
that, although the summonses themselves indicate that they were issued by
the Public Court in Shiraz, the stamps on the documents originate from the
division of the Public Prosecutor's Office, and prosecutors in Iran do not
issue summonses. In addition, the purpose of the hearing normally included
on summons is to explain certain circumstances rather than to explain
"statements made against you by two named persons", as in this case. In
addition, it is noted that these two summonses were invoked in support of
his claim that the two named persons had reported to the Iranian authorities
that he had worked actively against the regime. As this would appear to
suggest that he was wanted by the authorities for some kind of political
crime, which are dealt with by the Revolutionary Court and which does not
issue summonses, the authenticity of these documents was doubtful.
4.12 In addition, despite efforts made to find information on the SPI, the
State party claims that is has found nothing, either in human rights
reports, on the internet, or through the Iranian legal expert in Teheran.
Thus, even if it is accepted that this party exists, it has not attracted
any attention among those likely to have heard about it if its members had
been subjected to persecution by the Iranian authorities, as claimed. As to
the claim that he is wanted by the Iranian authorities, the State party
points out that this claim, like the claim on his political activities, was
not brought up at the beginning of the asylum proceedings. At the beginning
of the proceedings, he pointed to the risk of ill-treatment allegedly
emanating from his former father-in-law and the private individuals taking
orders from him. For the State party, it is not clear whether the
complainant continues to invoke this ground as a basis for this
communication. If so, the State party submits that this claim falls outside
the scope of article 3, as it relates to fear of torture or ill-treatment by
a non-governmental entity without the acquiescence of the Government.
4.13 To explain the inconsistencies in his story, the complainant appears to
submit that the whole of the national asylum proceedings has been defective.
The State party recalls that only the interpretation during the Migration
Board's second interview with the complainant has been established as
flawed, and the complainant has had an opportunity to rectify any faults
that could be found in this recording. The claims that there have been
further deficiencies in the handling of the case have not been
substantiated.
Complainant's Comments
5.1 On 15 May 2005, the complainant commented on the State party's
submission. He states that throughout asylum process, he described his
personal background, his previous political activities, and how he helped
his sister and brother-in-law to escape from Iran. He submitted that the
real reason the authorities detained him was to keep him imprisoned pending
the results of the investigation into why he had visited the apartment in
Shiraz. Further on in his submission, he states that the reasons he did not
mention his political involvement, was due to several factors: he had just
escaped from Iran; he was in a foreign country, the interpreter was Persian
and he didn't know whether he could be trusted; the interpreter took several
telephone calls during the interview and was uninterested in what the
complainant had to say; and he was told by the SPI that he should not
comment on his political involvement without permission.
5.2 As to the State party's point that the interpretation during the first
interview was adequate, the complainant submits that the interpretation
during this interview was not reviewed, so it is not clear whether it was in
fact adequate. As to the flaws in the interpretation during the second
interview, the complainant argues that the fact that the authorities did not
receive a correct understanding of the reason for his asylum request and
other circumstances of the case, referred to in his asylum application,
affected the final outcome of the asylum process. Once it became obvious
that the interpretation was inadequate, his request that the case be
returned to the Migration Board should have been accepted. The argument that
the complainant had the opportunity to correct errors from the second
interview during the third interview is incorrect, as the faults only became
obvious after the third interview itself. The questions posed during the
third interview were apparently based on the incorrect opinion that the
Migration Board had received during the second interview.
5.3 The complainant admits that he was given an opportunity to comment on
the minutes of the second and third interview, but that upon pointing out
his objections to his lawyer he was told that such corrections were not
necessary, as he would be granted asylum regardless of what was noted in the
minutes. In addition, he was told during the final interview that she had
understood everything that he had stated. In any event, all his efforts to
correct the errors and misunderstandings would have been pointless.
5.4 The complainant submits that use of Embassy reports precludes any asylum
applicant from opposing the information upon which an asylum application may
be rejected. The practice could jeopardize the security of the asylum seeker
if he/she is returned to his country of origin, or his/her relatives that
remain in the country of origin. As the information is often supplied by a
person living in the country of origin, an informant could feel compelled to
give false information to avoid reprisals from the authorities. The
complainant submits that it is difficult for him, as he is not a legal
expert, either to comment on the arguments made relating to the application
for conversion of the flogging sentence or to make any comments on the
advice received by the State party from the alleged legal expert. It is also
difficult to comment on their qualifications as they remain anonymous. He
submits that what is likely to happen as expressed by the legal expert and
what actually happened in this case should not be confused. The complainant
confirms that the documents submitted were copies of the originals, but
continues to claim that they are authentic.
5.5 The author confirms that the judge that returned the verdict of guilty
knew of his kidney problem, but would also have known that the sentence
would not have been carried out until several days later, when presumably,
his state of health would have improved. It is clear from the decision that
the reason the court did not approve the complainant's application was due
to the fact that no evidence was presented that could strengthen his request
for a conversion. The Court denied his application, in accordance with the
religious and legal grounds state in the decision.
5.6 As to the fax marks on the documents, the complainant states that they
were faxed from Iran to the Migration Boards' Office fax machine in Kiruna.
The incorrect date stamp is a result of the Migration Board's failure to
update the time function on the fax machine. As to the State party's remark
that it could find no information on the SPI, the complainant submits that
the address of its official website (www.jonbesh-iran.com) is written on all
the official party papers provided to the State party, and a simple internet
search, produces 365 results. [FN2]
---------------------------------------------------------------------------------------------------------------------
[FN2] The complainant provides some of this information.
---------------------------------------------------------------------------------------------------------------------
Supplementary Submissions from the State Party and the Complainant's
Comments
6.1 On 16 November 2005, the State party submitted that since a new remedy
to obtain a residence permit had come into force under temporary
legislation, the complaint should be declared inadmissible for
non-exhaustion of domestic remedies, or at least be adjourned awaiting the
outcome of the application of this new procedure. On 9 November 2005,
temporary amendments were enacted to the 1989 Aliens Act. On 15 November
2005, these amendments entered into force and were to remain in force until
a new Aliens Act entered into force on 31 March 2006. These temporary
amendments introduced additional legal grounds for granting a residence
permit with respect to aliens against whom a final refusal-of-entry or
expulsion order has been issued. According to the new Chapter 2, section 5 b
of the Aliens Act, if new circumstances come to light concerning enforcement
of a refusal-of-entry or expulsion order that has entered into force, the
Swedish Migration Board, acting upon an application from an alien or of its
own initiative, may grant a residence permit, inter alia, if there is reason
to assume that the intended country of return will not be willing to accept
the alien or if there are medical obstacles to enforcing the order.
6.2 Furthermore, a residence permit may be granted if it is of urgent
humanitarian interest for some other reason. When assessing the humanitarian
aspects, particular account shall be taken of whether the alien has been in
Sweden for a long time and if, on account of the situation in the receiving
country, the use of coercive measures would not be considered possible when
enforcing the refusal-of-entry or expulsion order. Further special
considerations shall be given to a child's social situation, his or her
period of residence in and ties to the State party, and the risk of causing
harm to the child's health and development. It shall further be taken into
account whether the alien has committed crimes and a residence permit may be
refused for security reasons.
6.3 No refusal-of-entry or expulsion order will be enforced while the case
is under consideration of the Migration Board. Decisions made by the
Migration Board under Chapter 2, Section 5 b, as amended, are not subject to
appeal. Applications lodged with the Migration Board under the new
legislation, which are still pending by 30 March 2006, will continue to be
handled according to the temporary amendments of the 1989 Aliens Act. The
same applies to cases that the Board has decided to review on its own
initiative.
7.1 On 19 April 2006, the complainant responded that on 15 November 2005 the
Swedish Migration Board, ex officio, registered the complainant's case for
examination under the temporary legislation. The complainant has not been
provided with a date for consideration of this matter. In any event, he
argues that as his case was registered with the Committee prior to the
enactment of the new temporary legislation, the Committee need not wait for
the Board's decision before considering the merits of this case.
7.2 The complainant applies the new legal grounds to his case, and argues
that: there is no reason to believe that Iran will not accept him, (both the
Migration Board and Aliens Appeal Board had previously taken this into
account and no new circumstances have arisen since); there are no relevant
medical obstacles to enforcing the order; the complainant does not have any
children residing in Sweden (of crucial importance when considering
humanitarian grounds for a permit); and there is no reason to believe that
it would not be possible to enforce the expulsion order by coercive means,
because of conditions in the country of return. The complainant submits
that, considering the current amendment does not aim to encompass people in
a similar situation to him, there is no reason to assume that he will be
granted a residence permit under this procedure. Thus, according to the
complainant, there is no reason to adjourn the case awaiting the outcome of
its examination under the temporary legislation.
7.3 On 28 April 2006, the complainant informed the Committee that by
decision of the same day the Migration Board had refused to grant him a
residence permit under the temporary legislation. Thus, in his view domestic
remedies had been exhausted.
Issues and Proceedings Before the Committee:
Consideration of Admissibility
8. 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. Following information received
from the complainant on 28 April 2006, in which he informed the Committee
that he had been refused a residence permit under temporary legislation, the
Committee is 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. It considers the complaint
admissible and thus proceeds immediately to the consideration of the merits.
Consideration of the Merits
9.1 The issue before the Committee is whether the removal of the complainant
to Iran would violate the State party's obligation 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.
9.2 In assessing the risk of torture, the Committee takes into account all
relevant considerations, including the existence in the relevant State of a
consistent pattern of gross, flagrant or mass violations of human rights.
However, the aim of such determination is to establish whether the
individual concerned would be personally at risk in the country to which he
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 or her 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.
9.3 The Committee recalls its General Comment No.1 on article 3, which
states that the Committee is obliged to assess whether there are substantial
grounds for believing that the complainant would be in danger of being
subjected to torture were he/she to be expelled, returned or extradited, the
risk of torture must be assessed on grounds that go beyond mere theory or
suspicion. However, the risk does not have to meet the test of being highly
probable. The risk need not be highly probable, but it must be personal and
present. In this regard, in previous decisions, the Committee has determined
that the risk of torture must be foreseeable, real and personal.
9.4 In assessing the risk of torture in the present case, the Committee has
noted the complainant's contention that there is a foreseeable risk that he
would be tortured if returned to Iran, on the basis of his alleged previous
political involvement, and that the alleged sentence against him of 140
whiplashes would be carried out. The Committee noted his claim that the
asylum procedure in Sweden was flawed, in particular, due to inadequate
interpretation during the second interview. The Committee considers that the
State party took appropriate remedial action by allowing him the opportunity
to correct errors in the minutes of the interview. The complainant does not
deny that he had such an opportunity.
9.5 The Committee notes that the complainant has adduced three documents,
which he purports to validate the existence of the sentence against him. He
has adduced what he alleges are two summonses to attend the Public Court of
Shiraz, on 31 July 2004 and 25 August 2004. He had originally alleged that
these documents were originals but, in his comments on the State party's
submission, confirmed that they were copies. The Committee notes that the
State party has provided extensive reasons, based on expert evidence
obtained by its consular services in Tehran, why it questioned the
authenticity of each of the documents. In reply the complainant argues that,
apparently, the criminal procedure was not applied in this case. The
Committee considers that the complainant has failed to disprove the State
party's findings in this regard, and to validate the authenticity of any of
the documents in question. It recalls its jurisprudence that it is for the
complainant to collect and present evidence in support of his or her account
of events. [FN3]
---------------------------------------------------------------------------------------------------------------------
[FN3] S.L. v. Sweden, No. 150/1999, Decision adopted on 11 May 2001.
---------------------------------------------------------------------------------------------------------------------
9.6 As to his alleged previous political involvement, the Committee notes
the complainant's affirmation that he did not base his initial asylum
request on such involvement. It concludes that he has failed to adduce
evidence about the conduct of any political activity of such significance
that, would attract the interest of the authorities, and, in the language of
the Committee's General Comment No. 1 on article 3, would make him
"particularly vulnerable" to the risk of being placed in danger of torture.
10. For the abovementioned reasons, the Committee concludes that the
complainant has failed to substantiate his claim that he would face a
foreseeable, real and personal risk of being subjected to torture upon his
return to Iran.
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the removal of the complainant to
Iran would not constitute a breach of article 3 of the Convention.
[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.]
|
|
