Communication No. 89/1997
Submitted by:
A.F. (represented by counsel)
Alleged victim:
The author
Date of communication:
3 September 1997
The Committee against
Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having concluded
its consideration of communication No. 89/1997, submitted to the
Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into
account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts its Views
under article 22, paragraph 7, of the Convention.
1. The author of the
communication is Mr. A. F., an Iranian citizen born on 16 December
1969, currently residing in Sweden, where he is seeking asylum.
He claims that his forced return to the Islamic Republic of Iran
would constitute a violation by Sweden of article 3 of the Convention
against Torture. Mr. A. F. is represented by counsel.
Facts as
presented by the author
2.1 The author states
that he belongs to a politically active family and that his father
became a local communist leader for the Tudeh Party already in
1963. After having been subject to imprisonment and persecution
as a result of his political activities, the father went into
hiding in 1989, entrusting the author with the hiding of certain
documents. Following his father's disappearance, the family's
house was raided on numerous occasions by Pasdaran, the Revolutionary
Guards, and as a result the author's mother fled to Sweden to
join her youngest daughter. She was subsequently granted a residence
permit on grounds of family reunion.
2.2 In 1989, the author
became a member of Nehzat Azadi (Freedom Movement), a liberal
nationalist movement aiming at a modernistic interpretation of
Islam. The author explains that this movement was previously officially
tolerated by the regime but nevertheless its members were subjected
to various forms of harassment. In 1990–1991, the movement
eventually was declared illegal by the Government. The author
soon was entrusted the leadership of a group of 30 members divided
into subgroups responsible for the production and distributions
of flyers and leaflets. In addition, as the leader of the group,
it was the author's responsibility to recruit new members to the
organization. The author explains that this was dangerous work
and that once the Pasdaran caught one of the subgroups when it
was distributing flyers. One of the members was immediately shot
dead and the others managed to escape.
2.3 In 1991, the author
was suspended from university for not following Islamic rules.
The author states that he thinks that the university had found
out about him trying to recruit new members at university and
that he had been arrested several times by Pasdaran for having
participated in meetings arranged by the party. The leadership
of the Freedom Movement sometimes arranged meetings with 25 to
30 participants, discussing policy, ideology and field work. These
meetings were often raided by the Pasdaran and according to the
author he was arrested and detained approximately 30 times during
such raids, but he was always let go due to lack of evidence.
2.4 After a while,
the author became dissatisfied with the party's cautious attitude
and together with his closest superior and his group he started
to work in the direction of a more radical policy. During a meeting
on 23 October 1993, where a new and radical text for a flyer was
discussed, the Pasdaran entered and they were all arrested. The
author and his colleagues were brought to the Evin prison for
interrogation. During the questioning, the author was told that
his closest superior had been found with the text of the flyer
in his possession and had been executed. The author was questioned
about his own role in the Freedom Movement and about his father's
whereabouts. The author was allegedly tortured during interrogation.
He states that he was severely beaten and first kept in a one
square metre cell before he was brought to a cell which he shared
with five other prisoners. His ribs were broken, his back was
hurt and one of his fingernails was pulled out. The author was
furthermore subjected to a fake execution. Together with two of
his cell mates he was brought before an execution squad. The two
other prisoners were executed, while only fake bullets were used
on the author. After a month the author was released without trial,
but with the warning that he would be executed if ever involving
himself in political activities again. The author states that
he believes that his release was due to the fact that he had not
made any confessions and that the authorities would instead watch
him in the hope that he would eventually lead them to his father
and other members of the group.
2.5 In the time immediately
following his release the author refrained from any political
activities, but eventually started writing flyers about the conditions
in the Evin prison. When he learned that the police had found
out about his activities and that members of his group had been
arrested he decided to leave the country. The author still had
a passport and managed to prolong it by using bribes. An exit
permit was obtained with the help of a contact in the Justice
Department.
2.6 The author arrived
in Sweden on 6 February 1995 and joined his family. He requested
asylum on 23 February 1995. On 21 April 1995, the Swedish Board
of Immigration rejected the author's application for asylum. His
appeal was subsequently rejected by the Aliens Appeals Board on
7 February 1996. A new application was rejected by the Aliens
Appeals Board on 27 March 1996, and a further new application,
based on the author's political activities in Sweden, was rejected
on 24 February 1997. The author submitted a fourth application,
based on medical evidence from the Centre for Torture and Trauma
Survivors in Stockholm, an application which was rejected on 27
July 1997.
2.7 Upon arrival in
Sweden, the author contacted Iranian exile organizations and joined
the Iranian Social Democratic Movement. In Sweden, the author
has participated in meetings and demonstrations and publicly expressed
critical opinions about the Iranian government. He is further
responsible for the publication of the organization's newspaper.
The author also states that he continued his work by sending political
materials to Iran through what he considered being a safe communication
channel, involving his sister and a friend. According to the author,
both the friend and the sister were arrested by the Pasdaran.
At the time of the submission of the communication the sister
was still held in prison.
The complaint
3.1 The author's counsel
argues that, given the absolute prohibition to expel a person
to a country where he risks to be subjected to torture, and given
that, if the author's story is true, there is reasonable ground
to believe that he would be in danger of being subjected to such
treatment upon return, he should only be returned to the Islamic
Republic of Iran if it is beyond reasonable doubt that the author's
claim is false. Otherwise, according to counsel, the asylum seeker
should be given the benefit of the doubt, not least since there
exists a consistent pattern of gross and massive violations of
human rights in Iran.
3.2 The author claims
that a real risk exists that he would be subjected to torture
or that his security would be endangered if he were to be returned
to his country. He further recalls that he comes from a politically
active family and has been detained and tortured because of his
active work for the Freedom Movement, a liberal nationalist party
declared illegal and in violation of the Constitution by the Government
in 1990–1991. It is well-known that members of political
opposition aiming at overthrowing the Government are severely
persecuted. In this context, the author refers to, among others,
reports by the Special Representative of the Commission on Human
Rights on the situation of human rights in the Islamic Republic
of Iran, which attest to a continuing violation of all basic rights.
3.3 Counsel recalls
that the presented forensic medical report prepared by the Centre
for Torture and Trauma Survivors in Stockholm shows that the findings
are in complete consistency with the author's claims of torture
and ill-treatment. Furthermore, according to the medical report,
the author is suffering from a post-traumatic stress disorder.
State party's
observations
4.1 By submission
of 28 November 1997, the State party informs the Committee that,
following its request under rule 108, paragraph 9, the Swedish
Immigration Board has decided to stay the expulsion order against
the author while his communication is under consideration by the
Committee.
4.2 As regards the
domestic procedure, the State party explains that the basic provisions
concerning the right of aliens to enter and to remain in Sweden
are found in the 1989 Aliens Act, as amended on 1 January 1997.
For the determination of refugee status there are normally two
instances, the Swedish Board of Immigration and the Aliens Appeals
Board. In exceptional cases, an application is referred to the
Government by either of the two boards. In this context, the State
party explains that the Government has no jurisdiction of its
own in cases not referred to it by either of the boards. Decisions
to refer a given case to the Government are taken by the boards
independently. The State party clarifies that the Swedish Constitution
prohibits any interference by the Government, the Parliament or
any other public authority in the decision making of an administrative
authority in a particular case. According to the State party,
the Swedish Board of Immigration and the Aliens Appeals Board
enjoy the same independence as a court of law in this respect.
4.3 As of January
1997, the Aliens Act has been amended. According to the amended
Act (chap. 3, sect. 4, in conjunction with sect. 3), an alien
is entitled to a residence permit if he or she experiences a well-founded
fear of being subjected to the death penalty or to corporal punishment
or to torture or other inhuman or degrading treatment or punishment.
Under chapter 2, section 5 (b), of the Act, an alien who is refused
entry can reapply for a residence permit if the application is
based on circumstances which have not previously been examined
in the case and if either the alien is entitled to asylum in Sweden
or if it will otherwise be in conflict with humanitarian requirements
to enforce the decision on refusal of entry or expulsion. New
circumstances cannot be assessed by the administrative authorities
ex officio, but only upon application.
4.4 Chapter 8, section
1, of the Act, which corresponds to article 3 of the Convention
against Torture, has been amended and now provides that an alien
who has been refused entry or who shall be expelled, may never
be sent to a country where there are reasonable grounds
(previously firm reasons) to believe that he or she would be in
danger of suffering capital or corporal punishment or of being
subjected to torture or other inhuman or degrading treatment
or punishment (text in italics added), nor to a country where
he is not protected from being sent on to a country where he would
be in such danger.
4.5 As to the admissibility
of the communication, the State party submits that it is not aware
of the same matter having been presented to another international
instance of international investigation or settlement. The State
party explains that the author can at any time lodge a new application
for re-examination of his case to the Aliens Appeals Board, based
on new factual circumstances. Finally, the State party contends
that the communication is inadmissible as being incompatible with
the provisions of the Convention.
4.6 As to merits of
the communication, the State party refers to the Committee's jurisprudence
in the cases of Mutombo v. Switzerland Communication
No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27 April 1994.
and Ernesto Gorki Tapia Paez v. Sweden, Communication
No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May 1997. and
the criteria established by the Committee, first, that a person
must personally be at risk of being subjected to torture, and,
second, that such torture must be a necessary and foreseeable
consequence of the return of the person to his or her country.
4.7 The State party
reiterates that when determining whether article 3 of the Convention
applies, the following considerations are relevant: (a) the general
situation of human rights in the receiving country, although the
existence of a consistent pattern of gross, flagrant or mass violations
of human rights is not in itself determinative; (b) the personal
risk of the individual concerned of being subjected to torture
in the country to which he would be returned; and (c) the risk
of the individual of being subject to torture if returned must
be a foreseeable and necessary consequence. The State party
recalls that the mere possibility that a person be subjected to
torture in his or her country of origin does not suffice to prohibit
his or her return for being incompatible with article 3 of the
Convention.
4.8 The State party
states that it is aware that Iran is reported to be a major violator
of human rights and that there is no indication of improvement.
It leaves it to the Committee to determine whether the situation
in Iran amounts to a consistent pattern of gross, flagrant or
mass violations of human rights.
4.9 As regards its
assessment of whether or not the author would be personally at
risk of being subjected to torture when returned to Iran, the
State party relies on the evaluation of the facts and evidence
made by the Swedish Board of Immigration and the Aliens Appeals
Board. In its decision of 21 April 1995, the Swedish Board of
Immigration found that the elements provided by the author gave
occasion to doubt the credibility of the author. The Aliens Appeals
Board, in its decision of 7 February 1996, also found that the
circumstances invoked by the author during the appeal were not
trustworthy.
4.10 On 27 March 1996,
the Aliens Appeals Board rejected a new application for a residence
permit by the author, based on the fact that he has been politically
active since his arrival in Sweden and further invoking humanitarian
reasons concerning his mother's state of health. The application
was turned down by the Aliens Appeals Board, since the circumstances
invoked by the author had already been reviewed in the previous
decision. A second new application was rejected by the Aliens
Appeals Board on 24 February 1997, in which the author stated
that he had distributed political material into Iran after his
arrival in Sweden. The correspondence which had gone via his sister
and another contact, had allegedly been traced back to him by
the Iranian authorities and his sister had subsequently been interrogated
and imprisoned. The application was turned down by the Board,
noting that in the light of the Board's knowledge of anti-governmental
activities in Iran and distribution of politically sensitive material
in Iran, it was not deemed credible that the author would expose
himself and his sister of such a risk by using a personal communication
route for distribution of the mentioned materials into the Islamic
Republic of Iran.
4.11 Finally, on 25
July 1997, the Aliens Appeals Board examined a third new application
lodged by the author, where he invoked an examination report by
the Centre for Torture and Trauma Survivors according to which
the author without any doubt had been subjected to torture and
according to which there was good concordance between the forensic
medical investigation; the patient's allegations and the very
clinical picture of post-traumatic stress disorder found at the
investigation. The application was turned down by the Board, since
the matter of the author's imprisonment and his alleged torture
in that connection had previously been reviewed by the Board.
Already in its initial decision of 7 February 1996 the Aliens
Appeals Board stated that "(i)n view of the author's lack of credibility
in the above-mentioned respect, the Board does not consider that
it has cause to give credence to his statement that his injuries
occurred as a result of physical abuse or torture".
4.12 The State party
draws the attention of the Committee to the main elements in the
author's story which give raise to doubts as to the credibility
of the author. Firstly, the author travelled to Sweden from Iran
with a genuine and valid passport. Taking into account that, after
his arrest by the Iranian authorities, the author was released
after a month without facing trial, and that his father's political
activities were already known by the authorities at the time of
the author's arrest, the Swedish Board of Immigration and the
Aliens Appeals Board questioned the author's credibility as to
the statement that bribes were used to enable him to leave Iran.
Subsequently, there is no reason to believe that the author is
of particular interest to the Iranian authorities. Secondly, in
his appeal to the Aliens Appeals Board, the author invoked, among
others, internal correspondence between Iranian authorities regarding
a warrant of his arrest. The State party submits that the author
has not been able to give any reasonable explanation as to how
he was able to acquire original documents which were clearly intended
for internal purposes. Further, there is nothing to support the
author's claim that he has distributed politically sensitive material
to Iran. Finally, it should be noted that the author did not request
asylum until almost two weeks after his arrival in Sweden, thus
indicating that he is not in any immediate need of protection.
4.13 The State party
concludes that, in the circumstances of the present case, the
author's return to the Islamic Republic of Iran would not have
the foreseeable and necessary consequence of exposing him to a
real risk of torture. An enforcement of the expulsion order against
the author would therefore not constitute a violation of article
3 of the Convention.
Counsel's
comments
5.1 In her comments
on the State party's submission, counsel for the author draws
the attention to the Committee to the fact that the author has
already lodged three so-called new applications with the Aliens
Appeals Board. There are no longer any new circumstances to be
presented, which is a pre-requisite for the Aliens Appeals Board
to examine a new application. All domestic remedies have thus
been exhausted.
5.2 In the instant
case, counsel recalls, the Swedish immigration authorities have
not directly questioned the fact that the author has been politically
involved with the Freedom Movement in the Islamic Republic of
Iran and that he was imprisoned for one month without trial, nor
do they seem to question his father's political background. The
Swedish authorities build their decisions entirely on the basis
of an arbitrary assessment of the author's general trustworthiness.
According to counsel, the arguments used by the authorities to
turn down the author's claim for asylum are stereotyped and found
in almost every rejection decision. Any inconsistencies or contradictions
found in the author's story are thereafter used to support the
authorities a priori judgement that the author is not credible,
although complete accuracy is seldom to be expected by victims
of torture.
5.3 Counsel points
out that the main argument of the immigration authorities is that
the author is not trustworthy because he has (a) left the Islamic
Republic of Iran with a valid passport; (b) obtained a legal exit
visa; and (c) legally extended the validity of his passport. She
also points out that the author has given a credible and consistent
explanation of how he used bribes and the influence of a personal
contact in the security force in order to be able to leave with
a valid passport. The explanation was rejected by the immigration
authorities as not credible, although a report from a visit to
Iran made in 1993 by representatives from the Aliens Appeals Board
The delegation preparing the report included the Director
General of the Aliens Appeals Board at the time, as well as counsel
in the present case who was at the time working for the immigration
authorities. shows that, according to the Iranian lawyer normally
engaged by the Swedish Embassy in Tehran, it is difficult but
nevertheless possible to bribe yourself out of Iran, in the way
suggested by the author.
5.4 Counsel further
contends that the author has presented reasonable explanations
as to how he was able to acquire original documents (a copy of
a detention order) intended for internal communication between
the Iranian authorities. According to the author, he contacted
friends in the Islamic Republic of Iran who managed to get the
document in question by bribes, and the information thus provided
by the author corresponds with information previously given by
the Iranian lawyer entrusted by the Swedish Embassy in Tehran.
The author has further also given a detailed account of the communication
route used in order to distribute politically sensitive material
to the Islamic Republic of Iran.
5.5 Counsel concludes
that the author has presented sufficient evidence that he was
politically active in Nehzat Azadi (the Freedom Movement) in the
Islamic Republic of Iran and is well known to the Iranian authorities;
that he has been detained, tortured and ill-treated as a result
of his political activities; that he has also been politically
active against the Iranian regime after his arrival in Sweden
and finally that the human rights situation in the Islamic Republic
of Iran is deplorable and that political activists are in great
danger of persecution. She therefore claims that the author's
return to the Islamic Republic of Iran would have the foreseeable
and necessary consequence of exposing him to a real risk of being
detained and tortured.
Issues and
proceedings before the Committee
6.1 Before considering
any claims contained in a communication, the Committee against
Torture must decide whether or not it is admissible under article
22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 5 (a), of the Convention,
that the same matter has not been and is not being examined under
another procedure of international investigation or settlement.
The Committee also notes that all domestic remedies have been
exhausted and finds that no further obstacles to the admissibility
of the communication exist. Since both the State party and the
author's counsel have provided observations on the merits of the
communication, the Committee proceeds immediately with the consideration
of the merits of the communication.
6.2 The issue before
the Committee is whether the forced return of the author to Iran
would violate the obligation of Sweden under article 3 of the
Convention not to expel or to return a person to another State
where there are substantial grounds for believing that he would
be in danger of being subjected to torture.
6.3 The Committee
must decide, pursuant to article 3, paragraph 1, whether there
are substantial grounds for believing that the author would be
in danger of being subject to torture upon return to Iran. In
reaching this decision, the Committee must take into account all
relevant considerations, pursuant to article 3, paragraph 2, including
the existence of a consistent pattern of gross, flagrant or mass
violations of human rights. The aim of the determination, however,
is to establish whether the individual concerned would be personally
at risk of being subjected to torture in the country to which
he or she would return. It follows that the existence of a consistent
pattern of gross, flagrant or mass violations of human rights
in a country does not as such constitute a sufficient ground for
determining that a particular person would be in danger of being
subjected to torture upon his return to that country; specific
grounds must exist that indicate that the individual concerned
would be personally at risk. Similarly, the absence of a consistent
pattern of gross violations of human rights does not mean that
a person cannot be considered to be in danger of being subjected
to torture in his or her specific circumstances.
6.4 The Committee
has noted the State party's assertion that its authorities apply
practically the same test as prescribed by article 3 of the Convention
when determining whether a person can be deported. The Committee,
however, notes that the text of the decisions taken by the Swedish
Board of Immigration (21 April 1995) and the Aliens Appeals Board
(7 February and 27 March 1996, 24 February and 27 July 1997) does
not show that the test as required by article 3 of the Convention
(and as reflected in chap. 8, sect. 1, of the 1989 Aliens Act
as amended) was in fact applied in the author's case.
6.5 In the author's
case, the Committee considers that the author's family background,
his political affiliation with the Freedom Movement and activities,
his history of detention and torture, should be taken into account
when determining whether he would be in danger of being subjected
to torture upon his return. The State party has pointed to circumstances
in the author's story which raise doubt about the credibility
of the author, but the Committee considers that the presentation
of the facts by the author do not raise significant doubts as
to the trustworthiness of the general veracity of his claims.
In this context the Committee especially refers to the existence
of medical evidence demonstrating that the author suffers from
post-traumatic stress disorder and supporting the author's claim
that he has previously been tortured while in detention.
6.6 The Committee
is aware of the serious human rights situation in Iran, as reported
inter alia to the Commission on Human Rights by the Commission's
Special Representative on the situation of human rights in the
Islamic Republic of Iran. The Committee notes the concern expressed
by the Commission, in particular in respect of the high number
of executions, instances of torture and cruel, inhuman or degrading
treatment or punishment.
