Dehwari v. The Netherlands
|Publisher||Council of Europe: European Commission on Human Rights|
|Publication Date||29 October 1998|
|Citation / Document Symbol||37014/97|
|Cite as||Dehwari v. The Netherlands, 37014/97 , Council of Europe: European Commission on Human Rights, 29 October 1998, available at: http://www.refworld.org/cases,COECOMMHR,3ae6b6efc.html [accessed 25 September 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 37014/97
Mahammad Rahim Aspichi Dehwari
REPORT OF THE COMMISSION
(adopted on 29 October 1998)
1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A. The application
2. The applicant is an Iranian citizen, born in 1959 and currently residing in Leusden, the Netherlands. He was represented before the Commission by Ms. M. Jansen-Takes, a lawyer practising in Utrecht, the Netherlands.
3. The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs.
4. The case concerns the applicant's complaints that his expulsion to Iran would expose him to a serious risk of being arrested, tortured and/or killed either without a trial or following an unfair trial. The applicant invokes Articles 2, 3 and 6 of the Convention and Article 1 of Protocol No. 6.
B. The proceedings
5. The application was introduced on 18 June 1997 and registered on 23 July 1997.
6. On 23 July 1997 the President decided that, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, notice of the application should be given to the respondent Government and the parties be invited to submit written observations on its admissibility and merits. The parties were informed that these observations should deal in particular with the question whether the applicant would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if he was expelled to Iran.
7. Also on 23 July 1997 the President decided, in accordance with Rule 36 of the Commission's Rules of Procedure, to indicate to the Government of the Netherlands that it was desirable in the interest of the parties and the proper conduct of the proceedings not to expel the applicant to Iran until the Commission had an opportunity to examine the application in the light of the parties' submissions. The Commission subsequently prolonged the application of Rule 36 on 30 October 1997, 22 January, 12 March, 23 April, 28 May, and 9 July 1998.
8. The Government's observations were submitted on 27 October 1997, after an extension of the time-limit fixed for this purpose. The applicant replied on 8 January 1998. On 12 December 1997 the Commission granted the applicant legal aid for the representation of his case.
9. On 12 March 1998 the Commission declared the application admissible.
10. The text of the Commission's decision on admissibility was sent to the parties on 19 March 1998 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 15 May 1998 after an extension of the time-limit fixed for this purpose. The applicant did not avail himself of the opportunity to submit further observations.
11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:F
Mms. Trechsel, President, M.p. Pellonpää, E. Busuttil, G. Jörundsson, A.S. Gözübüyük, A. Weitzel, J.-C. Soyer, H. Danelius, Mrs G.H. Thune, MMF. Martinez, C.L. Rozakis, Mrs J. Liddy, MML. Loucaides, M.A. Nowicki, I. Cabral Barreto, B. Conforti, I. Békés, D. váby, G. Ress, A. Perenič, C. Bîrsan, E. Bieliūnas, E.A. Alkema, M. Vila Amigó, Mrs M. Hion, MMR. Nicolini, A. Arabadjiev
13. The text of this Report was adopted on 29 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
15. The Commission's decision on the admissibility of the application is annexed hereto.
16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The following account of events in Iran has been summarised from the accounts presented by the applicant in his application to the Commission and in the asylum proceedings in the Netherlands.
18. The applicant has been active as a political opponent of the Iranian regime since 1977. Initially, while studying at the university of Zahedan, he had been involved with organisations (which in some cases he had helped found) fighting for the rights of the Baluchi minority. In 1980 he had also become involved with the illegal, communist Sazmaneh Cherkhaye Feda'iye Khalq-e-Iran (the Iranian People's Fedayan Organisation, hereinafter: Fedayan). His activities at that time included the organisation of large scale manifestations, the showing of films and the selling of communist, marxist literature.
19. In April 1980 the university building was attacked by Government forces during which the applicant was wounded and, together with some thousand other students, detained in a building in Zahedan. He was ill-treated, threatened with death and subjected to a simulated execution. The students were released after one month following protest actions at national level. However, the applicant was not allowed to return to the university.
20. After his release the applicant continued his activities for the Fedayan. Also in 1980, this organisation split into two factions: the "Majority" (Aksariyyat) and the "Minority" (Aghaliyyat), the latter, which the applicant joined, being the more radical in its rejection of the current regime. The applicant was the head of an area committee and as such in charge of three sub-committees. In August 1981 the applicant was betrayed by a member of the Fedayan (Majority), arrested on suspicion of communist activities and kept in detention on remand pending the judicial investigation. The first month of his detention he was kept in Zahedan, then he was flown to the Evin prison in Teheran. Despite the ill-treatment meted out to him (inter alia, beatings, falakka, being suspended from the arms) the applicant denied the accusations against him and refused to name his comrades. After two years he was released as there was no evidence against him. As a condition of his release he had to sign a declaration to the effect that he would refrain from future political activities and he had to post bail with the title deeds to his house. He was also disqualified from military service and was given a "red card" (Kart-e-Mahrumiat az Khedmat). Pursuant to guidelines issued by the Cultural Revolutionary Council this card was given to persons who had been detained for two years or longer in connection with their political activities. As a result he was unable to find employment as a civil servant since he could not obtain a declaration of good behaviour or of having performed or of having been exempted from military service.
21. In 1986 the applicant was given the choice by the Fedayan (Minority) to join the armed resistance or to move to another town in order to continue his political activities there. The applicant moved to Teheran. After having found a job as a welder in a factory he once again took up his political activities. These consisted of the organising of labourers to campaign against working conditions and to make them politically aware, the recruitment of new members, and the organisation of meetings. At the factory he was the leader of a cell which consisted of him and three other people. The cell would have weekly meetings at a member's house to discuss, inter alia, when and where to distribute pamphlets. They collected addresses of colleagues who had had conflicts with the Islamic security forces or the management of the factory as they considered that these people might be suitable for the Fedayan organisation. The applicant would pass these addresses on to his contact person within the Fedayan. When engaged in their illegal activities, the cell members used pseudonyms since according to the safety regulations of the organisation they were not supposed to know each other's real names.
22. The employees at the factory elected the applicant as a member of a strike committee. He submits that he could not have refused to accept this election since that might have made his colleagues suspect him of supporting the regime. In September 1991 a strike broke out and the factory premises were occupied in protest against low wages and the lack of job security and health insurance. Preparations for this strike had taken place in secret; the strike committee came forward at the beginning of the negotiations with the factory management. Most of the strikers' demands were fulfilled and after three days the strike and occupation came to an end. However, a few days later the applicant was summoned to the director's office where he was arrested by two members of the security services as he was suspected of having instigated the workers' revolt. He was blindfolded and transported to a building where he was detained for one month. During this time he was beaten and forced to stand upright for long periods of time.
23. The employees at the factory again threatened to go on strike if the director would not bring about the applicant's release. The director then drew up a declaration to the effect that the applicant was indispensable at the factory; he also told the security services that an eye would be kept on the applicant at the factory. Prior to his subsequent release, the applicant was made to sign a statement that he would no longer be active in the labour movement. Upon his return to the factory he was not allowed to continue his work as a welder but he was appointed as a driver instead.
24. On 23 November 1994 two of the applicant's cell members were arrested while distributing pamphlets. This was observed by the third cell member who informed the applicant. The applicant told the third member to take care as the other two were likely to 'betray' the two of them under torture. He advised him to arrange leave from work and to find a different address. The applicant then had a meeting with his Fedayan (Minority) contact person who said that the applicant, in view of his past, constituted a danger for all concerned and should therefore go to a safe country. The contact person was going to find a "travel agent" and raise money. Meanwhile, the applicant went into hiding. His family also contributed financially to his journey out of Iran.
25. On 1 December 1994 the applicant left Teheran by car in the company of a "travel agent". They crossed the border with Turkey on foot. A second "travel agent" took him to Ankara, where he arrived on 5 December 1994. On 17 December 1994 a third "travel agent" took him to İstanbul and on 19 January 1995 he flew to the Netherlands using a false passport. That same day he requested asylum in the Netherlands or, alternatively, a residence permit for reasons of a humanitarian nature.
26. The applicant submits that he has been informed that the Iranian authorities have been looking for him and the third member of the cell both at the factory and at their home address. His house has been searched three times. Moreover, his family have been taken in for questioning about the applicant's whereabouts three times. His wife and three children left Teheran and moved to Baluchistan but, finding that the authorities did not leave them alone there either, have since fled to Pakistan.
27. In the interview which the applicant had with a liaison officer (contact-ambtenaar) of the Netherlands Ministry of Justice on 3 February 1995 he said, inter alia, that despite the fact that he had worked in the same factory as the other members of his cell for eight years he did not know their real names. He said that they would meet once a week at each other's houses pretending to attend a party. He added that he had not left his country earlier even though he had been living close to the border at that time because he had wanted to be of use to his country.
28. The applicant's requests for asylum and a residence permit were rejected by the State Secretary for Justice on 20 September 1995 as manifestly unfounded. The State Secretary held that, in view of the minor importance of the activities carried out by the applicant, he had not manifested himself as an important political opponent. She further considered that the arrests and periods of detention had not previously given the applicant cause to leave his country and that he had not substantiated why such a need had arisen in 1994.
29. The applicant filed an objection (bezwaarschrift) against this decision which did not, however, have the effect of suspending his expulsion. For this reason the applicant applied for an interim measure (voorlopige voorziening) to the President of the Aliens Division (Vreemdelingenkamer) of the Regional Court (Arrondissementsrechtbank) of The Hague sitting at Amsterdam. Following a hearing on 26 January 1996, the President granted the requested interim measure on 9 February 1996. The President considered that the applicant's account could not immediately be dismissed as implausible and found that it fitted to a sufficient extent into what was known about the situation in Iran.
30. The applicant was heard by the Advisory Committee on Aliens Affairs (Adviescommissie voor Vreemdelingenzaken) on 1 July 1996. In accordance with this Committee's advice, the State Secretary rejected the applicant's objection on 11 September 1996. Although she accepted that the applicant had carried out activities for the Fedayan, the State Secretary considered it unlikely that these activities were of a more significant nature than the distribution of pamphlets and the attending of meetings, and that he was being sought by the Iranian authorities as a result of these activities. She further did not find it plausible that the applicant had gone to work in a factory in Teheran at the instructions of the Fedayan. In this respect the State Secretary considered it unlikely that the applicant would not have known the real names of his colleagues who made up the cell of which he was in charge. She found it similarly unlikely that the applicant would have organised a strike if he wanted to keep a low profile in connection with his activities for the Fedayan.
31. The applicant filed an appeal against the decision of 1 July 1996 with the Aliens Division of the Regional Court of The Hague sitting at Amsterdam. In these proceedings he submitted a number of declarations from sister organisations operating in Europe which confirmed that he had been politically active for the Fedayan (Minority) in Iran and would be exposed to torture, detention and possibly execution upon return to that country. He also stated that he did know the real names of the people in his cell since they were colleagues of his, but that he was not supposed to know their names.
32. Moreover, the applicant referred to an internal guideline of 10 May 1996 in force at the Ministry of Justice according to which refugee status may be granted to an Iranian asylum-seeker who has made a reasonable case for his assertion that he has carried out activities in the past as a result of which he has experienced problems (such as detention or convictions) and that he has continued his activities after his release.
33. In her reply to the applicant's appeal memorial, the State Secretary expressed surprise at the fact that the applicant had suddenly denied that he did not know the names of the other members of his cell. She assumed that the applicant had changed his account since the arrested cell members could not have betrayed him if they had not been aware of his identity. At the hearing before the Regional Court on 5 February 1997 the applicant submitted in this respect that it was clear from the record of his interview with the liaison officer that he had in any event said on that occasion that the cell members knew each other's addresses and that would have been sufficient for the Iranian authorities to find him.
34. Following a hearing on 5 February 1997 the Regional Court rejected the appeal on 20 February 1997. The Regional Court considered that the decisive issue to be determined was the question whether the applicant, following the arrest of his two fellow cell members on 23 November 1994, had sufficient reason to fear for his own arrest and consequently, in view of his resistance activities in the past, for his safety. In this respect the Regional Court noted that at the interview with the liaison officer on 3 February 1995, the applicant had said that he did not know the real names of these two men and that he had repeated this when he was heard by the Advisory Committee on Aliens Affairs. However, in his appeal memorial the applicant gave a different version of his account which, in the opinion of the Regional Court, did not make his assertion that he feared persecution plausible. In view of the foregoing the Regional Court also did not find that there were any circumstances indicating that the applicant, if expelled, would be exposed to a real risk of being subjected to treatment covered by Article 3 of the Convention.
B. The Iranian background to the present case
35. In their submissions the parties have provided the Commission with some information regarding the Iranian background to the present case. The Commission has further taken note of publications of the United States Department of State, Amnesty International and the United Nations High Commissioner for Refugees (UNHCR), as well as of information obtained through the latter organisation.
36. The Commission had regard to the following:
i. Report on the general situation in Iran issued on 13 June 1997 by the Netherlands Ministry of Foreign Affairs
37. According to this report, the general situation in Iran has stabilised since the early years of the Islamic revolution. The regime has consolidated its position and repression, generally speaking, has decreased. The report goes on to say, however, that there are still categories of cases and certain circumstances in which Iranian citizens might reasonably fear persecution or inhuman treatment. Thus, an undiminished policy of repression is still in force against, inter alia, persons regarded as counter-revolutionaries.
ii. Report on the general situation in Iran issued on 5 March 1998 by the Netherlands Ministry of Foreign Affairs
38. According to this report, the human rights situation in Iran continues to give cause for concern. The emphasis placed by President Khatami on compliance with the rule of law and a society based on the constitution is hopeful and the developments in that direction are encouraging. However, it remains to be seen whether or not this trend will develop further. For the time being the influence wielded by the conservative-religious power base is considerable. Notably those groups or persons which are seen as potential threats to a society based on Islamic standards and principles still remain at risk of becoming victims of human rights violations.
39. No organised opposition against the political establishment as such exists in Iran. As a result of the harsh repression in the early years of the Islamic revolution the secular opposition in particular has been silenced. Activities by opposition groups such as the Fedayan are no longer observed. It appears from information obtained from former prisoners that members of those movements are serving long prison sentences. There are no known recent cases of convictions of members (or supporters) of illegal political opposition groups.
40. Persons who in the past have been detained for protracted periods of time in connection with political activities run the risk of a more severe penalty when they engage anew in such activities. The dissemination of prohibited material leads at most to the imposition of a fine. A footnote to the report states that there are no known reports of persons having been detained for a long period in the eighties and who, after a number of years of freedom, again engage in activities in the shape of the distribution of pamphlets.
41. Sources which have been consulted within the Iranian legal establishment confirm that the quality of the judicial proceedings has improved in comparison with the early years of the revolution. In general, and also before revolutionary courts, suspects now enjoy more legal safeguards. Obviously this involves only a relative improvement which benefits mainly those persons who are not considered as potential opponents by the authorities.
iii. "Country Reports on Human Rights Practices for 1997", United States Department of State, March 1998
42. The chapter on Iran reports that security forces continue to torture detainees and prisoners. Exiles and human rights monitors allege that many of those executed for criminal offences, primarily on narcotics charges, are actually political dissidents (p. 1441). No estimates are available of the number of political prisoners. However, the Government often arrest persons on questionable criminal charges, such as drugs trafficking, when their actual "offences" are political (p. 1443).
43. The court system is not independent and is subject to Government and religious influence. Iran has two court systems: the traditional courts, which adjudicate civil and criminal offences; and the Islamic revolutionary courts, established in 1979 to try political offences, narcotics crimes and "crimes against God". The revolutionary courts may consider cases normally in the jurisdiction of the civil and criminal courts, and also may overturn their decisions. Trials in the revolutionary courts are not fair. A law authorises judges to act as prosecutor and judge in the same case, and judges are appointed for their ideological beliefs. Often, pre-trial detention is prolonged and defendants lack access to counsel. When legal help is available, counsel is rarely given time to prepare an effective defence. Indictments are often for undefined offences such as "antirevolutionary behaviour", "moral corruption", and "siding with global arrogance". Defendants do not have the right to confront their accusers or to appeal. Secret or summary trials of five minutes are not uncommon (p. 1442).
iv. "Country Reports on Human Rights Practices for 1996", United States Department of State, February 1997
44. The chapter on Iran reports that on 22 June 1996, Ahmed Bakhtiari, a member of the Fedayan (Minority), was executed on charges of participation in a terrorist group and terrorist operations, as well as other criminal charges (p. 1257).
v. Amnesty International Report 1998, which covers the period January - December 1997
45. The chapter on Iran reports that political prisoners serving long prison terms after unfair trials included members of factions of the Fedayan organisation and supporters of groups representing ethnic minorities such as Baluchis (p. 201).
46. The death penalty continued to be used extensively. As in previous years, it was imposed for a wide range of often vaguely worded offences - including political offences and those relating to freedom of belief - sometimes after unfair trials (p. 202).
vi. Background Paper on Refugees and Exiles from Iran, UNHCR, Centre for Documentation and Research, Geneva, May 1997
47. The Iranian communist opposition groups still in existence reportedly have offices in Europe and North America and are seen as having little significance as an alternative or a threat to the Islamic regime (Hooglund, Eric, Editor of Middle East Journal, Washington D.C., telephone interview, 30 March 1993).
vii. Information obtained from UNHCR Ankara on 16 September 1998, cleared by the Head of UNHCR's Legal Unit
48. Even though there is no evidence of any current military activity inside Iran, the Fedayan organisation still employs members and claims to have organised several strikes in major industrial compounds such as oil industries in recent years.
* * *
49. The applicant has, moreover, submitted that a former political prisoner and activist for the Fedayan (Minority) was killed in Islamabad, Pakistan, in November 1996, and that two activists for that organisation were executed in prison in Teheran in February/March 1997. At that same time two activists for the organisation disappeared without trace from a prison in Tabriz. The Commission notes that the applicant has not indicated the source of this information; these events have not been reported in the publications by the State Department and Amnesty International mentioned above.
C. Relevant domestic law
50. Pursuant to Section 15 of the Aliens Act (Vreemdelingenwet), aliens originating from a country where they have a well-founded reason to fear persecution on account of their religious or political conviction or of belonging to a particular race or particular social group may be admitted by the Ministry of Justice as refugees.
51. The expression "refugee" in this provision has been interpreted by the judiciary as referring to the same category of persons as the definition contained in Article 1 of the Geneva Convention on the Status of Refugees (cf. Judicial Division of the Council of State, decision of 16 October 1980, Rechtspraak Vreemdelingenrecht 1981, 1).
52. In view of the population size and employment situation pertaining in the Netherlands Government policy is aimed at restricting the number of aliens admitted to the country. In general, aliens are only granted admission for residence purposes if:
- the Netherlands is obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the above-mentioned Geneva Convention; or
- this serves "essential national interests", e.g. economic or cultural interests; or
- "compelling reasons of a humanitarian nature" (klemmende redenen van humanitaire aard) exist.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
53. The Commission has declared admissible the applicant's complaints:
- that his expulsion to Iran would expose him to a real risk of being killed;
- that his expulsion to Iran would expose him to a real risk of being subjected to torture, inhuman or degrading treatment; and
- that his expulsion to Iran would expose him to a real risk of suffering a flagrant denial of a fair trial.
B. Points at issue
54. The points at issue in the present case are as follows:
- whether the expulsion of the applicant to Iran would be in violation of Article 2 of the Convention or Article 1 of Protocol No. 6;
- whether the expulsion of the applicant to Iran would be in violation of Article 3 of the Convention; and
- whether the expulsion of the applicant to Iran would be in violation of Article 6 of the Convention.
C. As regards Article 2 of the Convention and Article 1 of Protocol No. 6
55. Article 2 of the Convention and Article 1 of Protocol No. 6 provide:
Article 2 of the Convention
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection."
Article 1 of Protocol No. 6
"The death penalty shall be abolished. No one shall be condemned to such penalty or executed."
56. The applicant submits that if he is expelled to Iran he is in danger of being killed on account of his political activities. He fears that he would either be executed extra-judicially or following an unfair trial on trumped up charges leading to a death sentence.
57. The Government have not specifically addressed this issue.
58. The Commission recalls the case-law of the Convention organs according to which the right of an alien to reside in a particular country is not as such guaranteed by the Convention. However, the decision of a Contracting State to expel or extradite a person may give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he is to be returned (Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).
59. The Commission has previously examined the question whether analogous considerations apply to Article 2, in particular whether this provision can also engage the responsibility of a Contracting State where, upon expulsion or other removal, the person's life is in danger. To this end the Commission reiterated that Article 2 contains two separate though interrelated basic elements. The first sentence of paragraph 1 sets forth the general obligation that the right to life shall be protected by law. The second sentence of this paragraph contains a prohibition of intentional deprivation of life, delimited by the exceptions mentioned in the second sentence itself and in paragraph 2 (Bahaddar v. the Netherlands, Comm. Report 13.9.96, para. 76, Eur. Court HR, judgment of 19 February 1998, to be published in Reports 1998).
60. The Commission finds nothing to indicate that the expulsion of the applicant would amount to a violation of the general obligation contained in the first sentence of paragraph 1 of Article 2 of the Convention.
61. As to the prohibition of intentional deprivation of life, including the execution of a death penalty, the Commission does not exclude that an issue might arise under Article 2 of the Convention or Article 1 of Protocol No. 6 in circumstances in which the expelling State knowingly puts the person concerned at such high risk of losing his life as for the outcome to be a near-certainty. The Commission considers, however, that a "real risk" - within the meaning of the case-law concerning Article 3 (see para. 58 above) - of loss of life would not as such necessarily render an expulsion contrary to Article 2 of the Convention or Article 1 of Protocol No. 6, although it would amount to inhuman treatment within the meaning of Article 3 of the Convention (cf. Bahaddar v. the Netherlands, op. cit., para. 78).
62. The Commission has examined the applicant's allegations but finds it insufficiently substantiated that his expulsion would disclose such a high risk of loss of life as to trigger the applicability of Article 2 of the Convention or Article 1 of Protocol No. 6.
63. The Commission concludes, unanimously, that in the present case the expulsion of the applicant to Iran would not be in violation of Article 2 of the Convention or Article 1 of Protocol No. 6.
D. As regards Article 3 of the Convention
64. Article 3 of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
65. The applicant maintains that he has been an activist for the Fedayan (Minority), a subversive, illegal political party which aims at the overthrow of the regime, and that as a result of the arrest of the two cell members while distributing pamphlets the Iranian authorities will not only have been informed of his involvement with illegal activities but will also have had their long-lasting suspicions in that respect confirmed. He had said that he only knew the two cell members by their pseudonyms because officially he was not supposed to know their real names. As they had been his colleagues and he had visited their homes, of course he had been aware of their real names. In the asylum proceedings he had in any event made it clear from the start that the arrested men knew his address. In fact, the Iranian authorities have been to his house in search of him.
66. He submits that it cannot be deduced from the fact that he was not arrested between 1983 and 1991 that his activities were insignificant. It only indicates that the authorities did not find out about his activities, and not that he would not have faced severe problems if they had. The applicant also disputes the Government's assertion that he was released without further problems after his arrests in 1980 and 1981. He recalls that he was unable to continue his studies, that he was disqualified from military service and employment in the civil service, that he had to sign a statement that he would refrain from future political activities and had to post bail with the title deeds to his house.
67. According to the applicant, he should be considered as belonging to the category of counter-revolutionaries in respect of whom ill-treatment and torture still occur in Iran, as has been confirmed by the report of the Netherlands Ministry of Foreign Affairs of 13 June 1997 (para. 37). Moreover, the applicant points, inter alia, to the killing or execution of three Fedayan (Minority) activists in November 1996 and February/March 1997 (para. 49) to indicate that in spite of the decrease of repression suggested by the Government, political opponents continue to be detained and executed.
68. The Government submit that, insofar as it can be assumed that the applicant was politically active, it cannot be said that in the light of his personal circumstances he would run a genuine risk of being exposed to inhuman treatment on his return to Iran. This applies to the assessment of his situation both in the light of the information available at the time of the contested decision, and in the light of current information. In the latter respect the Government refer to the report of the Netherlands Minister of Foreign Affairs of 5 March 1998 according to which the secular opposition in Iran has virtually been silenced.
69. Since the Iranian authorities might have been expected to keep a close eye on the applicant, as a potential counter-revolutionary, especially in the 1980's, the Government submit that it is implausible that the applicant was able to continue with activities of significance without attracting the attention of the Iranian authorities on a single occasion in the period from his release in 1983 until October 1991. Even if it is to be assumed that the applicant was involved in certain activities, such as the distribution of pamphlets, the Government consider that these were not of crucial significance and that they will lead at most to the imposition of a fine.
70. Moreover, the uncorroborated information to the effect that two members of his cell were arrested after distributing pamphlets does not constitute sufficient grounds to conclude that the applicant himself runs the risk of being exposed to inhuman treatment. In respect of the question whether or not the arrested cell-members knew his name, the Government submit that the applicant has given varying versions of his account at different stages of the domestic proceedings. In the Government's view, this does not enhance the applicant's credibility.
71. The Commission refers to para. 58 above, where it has reiterated to which extent an expulsion may give rise to an issue under Article 3 of the Convention.
72. In its assessment of the risk of ill-treatment the Commission has considered the following principles to be relevant:
i. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Commission will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (cf. Eur. Court HR, Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 75).
ii. The assessment of the existence of the risk must be made on the basis of information currently available (cf. Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996, p. 1856, para. 86).
iii. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case (cf. Vilvarajah and Others v. the United Kingdom judgment, loc. cit., p. 36, para. 107).
73. In order to determine whether the applicant has shown that there are substantial grounds for believing that he faces a real risk of being subjected to treatment contrary to Article 3 of the Convention upon his return to Iran, the Commission has examined the applicant's submissions and the other material before it.
74. The Commission notes that according to the applicant he has been politically active since 1977. In 1980 he joined the Fedayan (Minority). Following an arrest in 1981 he was detained for two years and then released on the condition that he would refrain from further political activities. In 1986 he moved to Teheran and continued his political activities for the Fedayan (Minority) as the leader of a cell. In 1991 he was arrested and detained for one month on suspicion of having organised a strike in the factory where he worked. When two of the members of his cell were arrested while distributing pamphlets in November 1994, it was decided that the applicant should leave the country for it was feared that the arrested members would 'betray' the applicant. As, following his departure, the applicant has been informed that the Iranian authorities have been looking for him, he alleges that they have found out that contrary to the undertaking signed by him upon his release in 1983 he has continued his political activities.
75. The Commission considers the applicant's account on the whole to be precise and consistent. Although it is true that the applicant initially told the Netherlands authorities that he did not know the real names of the arrested members of his cell and later stated that he did know them, the Commission is not convinced that this is a genuine contradiction which renders the whole of the applicant's account unreliable. It notes the applicant's explanation to the effect that when they were involved in activities for the Fedayan (Minority) the cell members used pseudonyms. Moreover, the applicant has maintained throughout that the two arrested persons would be able to 'betray' him. In this respect the Commission observes that the applicant told the Netherlands authorities from the start of the asylum proceedings that the members of the cell would meet at the house of one of them (para. 27). It is thus not implausible that the arrested members could identify the applicant, either by giving the Iranian authorities his name or his address.
76. As noted above, it is the applicant's contention that he was indeed 'betrayed' and that it was for that reason that the Iranian authorities came looking for him at the factory and at his house, that his house was searched and his family questioned. It is in dispute between the parties to what, if any, kind of treatment the applicant, if returned to Iran, would be exposed as a result of the Iranian authorities' finding out about his activities for the Fedayan (Minority). While the applicant argues that in view of his history of political activities and detention he will now be regarded as a counter-revolutionary, the Government submit that the applicant has failed to substantiate that he was indeed politically active for all those years and that in any event those activities were of such an insignificant nature that they would at most lead to the imposition of a fine.
77. The Commission observes that at no stage in either the domestic proceedings or the proceedings before the Commission has the applicant's history of political affiliation and detention been disputed. Having found the applicant's account precise and consistent, the Commission accepts that the applicant was detained for two years and upon his release in 1983 was made to sign a statement to the effect that he would no longer engage in political activities. Regardless of the question, therefore, as to whether or not the applicant continued his activities throughout the 1983-1994 period, the Iranian authorities, upon learning of the applicant's role as leader of a Fedayan (Minority) cell following the arrest of two of the members of that cell, may be expected to draw the conclusion that the applicant has failed to comply with the undertaking he signed in 1983.
78. It is true that when the applicant was arrested in 1991 the Iranian authorities do not appear to have confronted him with the fact that contrary to his undertaking he had again engaged in political activities. The question may thus arise why they should do so this time. However, the Commission takes into account that the reason for the applicant's arrest in 1991 was the fact that he was suspected of having organised a strike in a factory which, contrary to the activities he employed for the Fedayan (Minority), was not aimed at the overthrow of the Iranian regime. Upon his release he had to agree in writing not again to be active in the labour movement, which would suggest that the Iranian authorities adopt an approach to that kind of activity which is different from that adopted in regard to activities aimed at the overthrow of the regime. The Commission does thus not consider that it may be automatically concluded from the applicant's release in 1991 that he will not now be exposed to the treatment which he fears.
79. The Commission observes that the information available to it concerning the current situation in Iran is, at best, ambiguous. Whereas the report of 5 March 1998 of the Netherlands Ministry of Foreign Affairs states that the secular opposition has been silenced as a result of the harsh repression in the early years of the Islamic revolution and that there are no reports of activities being deployed by organisations like the Fedayan (para. 39), there are nevertheless some indications that the Fedayan (Minority) are still active (para. 48). Moreover, according to the same Ministry of Foreign Affairs report the human rights situation in Iran continues to give cause for concern (para. 38). The Commission further notes that members of Fedayan factions are reportedly serving long prison sentences and that a Fedayan (Minority) member was executed in 1996 (paras. 39, 45, 44). In these circumstances the Commission is not convinced that the discovery by the Iranian authorities of Fedayan (Minority) activity, or a recurrence of such activity, even of the kind carried out by the applicant, would not be met with a severe reaction.
80. In this respect the Commission further observes that, again according to the most recent report of the Netherlands Ministry of Foreign Affairs, persons who in the past have been detained for protracted periods of time in connection with political activities run the risk of a more severe penalty when they engage anew in such activities (para. 40). Even assuming that the dissemination of prohibited material would lead at most to the imposition of a fine, the Commission observes that it is not known how the Iranian authorities react to a person who has previously been detained in connection with his political activities and who is now found guilty of distributing pamphlets for an illegal organisation (loc. cit.). Moreover, the Commission would remark that the activities carried out by the applicant - who, it is recalled, was detained for two years in the early eighties in connection with political activities - for the Fedayan (Minority) did not solely consist of the distribution of pamphlets. He was leader of a cell and also tried to recruit other people for the organisation. In these circumstances, the Commission considers that the applicant's fears are well-founded.
81. Having regard to all the circumstances of the case, the Commission finds that substantial grounds have been established for believing that the applicant, if expelled to Iran, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention.
82. The Commission concludes, unanimously, that in the present case the expulsion of the applicant to Iran would be in violation of Article 3 of the Convention.
E. As regards Article 6 of the Convention
83. Article 6 of the Convention, insofar as relevant, provides:
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
84. The applicant submits that he cannot expect a fair trial in Iran.
85. The Government have not specifically addressed this issue.
86. The Commission recalls that in its Soering v. the United Kingdom judgment, the Court did not exclude that an issue might exceptionally be raised under this provision by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country (judgment of 7 July 1989, Series A no. 161, p. 45, para. 113; see also the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 34, para. 110).
87. However, in view of its finding under Article 3 of the Convention, the Commission does not consider it necessary to examine this issue separately.
88. The Commission concludes, unanimously, that it is not necessary to examine separately the complaint made under Article 6 of the Convention.
89. The Commission concludes, unanimously, that in the present case the expulsion of the applicant to Iran would not be in violation of Article 2 of the Convention or Article 1 of Protocol No. 6 (para. 63).
90. The Commission concludes, unanimously, that in the present case the expulsion of the applicant to Iran would be in violation of Article 3 of the Convention (para. 82).
91. The Commission concludes, unanimously, that it is not necessary to examine separately the complaint made under Article 6 of the Convention (para. 88).
M. de SALVIA, Secretary to the Commission
S. TRECHSEL, President of the Commission