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THIRD
SECTION
CASE OF
R.C. v. SWEDEN
(Application
no. 41827/07)
JUDGMENT
STRASBOURG
9
March 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of R.C. v. Sweden,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 9 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41827/07) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Iranian national, Mr R.C. (“the
applicant”), on 23 September 2007. The President of the
Chamber acceded to the applicant's request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant, who had been granted legal aid, was represented by Mr J.
Wiklund, a lawyer practising in Skellefteå. The Swedish
Government (“the Government”) were represented by their
Agent, Ms A. Erman, of the Ministry for Foreign Affairs.
- The
applicant alleged that, if deported from Sweden to Iran, he would
face a real risk of being arrested and subjected to inhuman treatment
and torture in violation of Article 3 of the Convention.
- On
8 November 2007 the President of the Chamber decided to apply Rule 39
of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings not to deport the applicant until further notice. The
case was granted priority under Rule 41 of the Rules of Court.
- By
a decision of 23 September 2008, the Court declared the application
admissible.
- The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1965 and is currently in
Sweden.
A. Proceedings before the Swedish authorities and
courts
- On
18 October 2003 the applicant arrived in Sweden and three days later
he requested the Migration Board (Migrationsverket) to grant
him asylum and a residence permit in Sweden.
- The
Board held a first interview with the applicant on 27 May 2004 during
which he stated that he was Shia' Muslim and came from a city in the
south of Iran where his wife and two minor sons remained. A smuggler
had arranged for his travel to Sweden and he had travelled all the
way hidden in a lorry. He claimed that he had criticised the Iranian
government on several occasions and, the last time he had
participated in a student demonstration to show his sympathy, he had
been arrested. He had spent seven months in Sepah prison and then
been transferred to a prison in his home town where he had spent
another seventeen months. He had never been formally tried in court
but every third month there had been a sort of religious trial where
he had been put before a priest who had decided on his continued
imprisonment. While imprisoned, he had been subjected to torture and
still suffered from headaches because of it. He knew others who had
participated in the demonstration and who were still imprisoned
without trial.
- A
complete asylum investigation was conducted by the Migration Board on
4 June 2004 where the applicant maintained his initial statements and
essentially added the following. In 1993 he had quit his job and
returned to his village to work as a farmer. He had discussed with
other villagers about the lack of human rights and freedom in Iran.
One night the Basij (a “people's militia”, loyal
to the Supreme Leader) had come and destroyed his fields with a
tractor. When he had tried to report the incident to the police, they
had advised him not to, since it would lead nowhere. He had also
expressed his opinion of the government when he had watched
television in public places. The Basij had later destroyed his car,
thrown stones at his house and sent messages that he should stop his
activities and “information evenings”. He had received
the threats through a relative of his wife who worked for the regime.
The threats had commenced in 1997 but had become more serious after
he had participated in his first demonstration in 2000. It had been a
student demonstration and he had escaped when the police intervened.
On 9 July 2001 he had participated in his second student
demonstration where he had been arrested because police had closed
off all escape routes and had been filming the protesters as
evidence. Many others had also been arrested. During the
demonstration they had shouted slogans against the president and the
government and demanded the release of student prisoners. In Sepah
prison he had been tortured. He had been stabbed twice in the thigh,
boiling water had been poured over his chest and his captors had hit
him with their fists. However, on 11 February 2002, he had been
transferred to the prison in his home town. He had been planning to
escape for almost nine months by being very co-operative with the
prison guards so that he had earned their trust. The “religious
trials” had taken place at a court outside the prison and the
applicant had spoken with three of his friends, who had visited him
in prison to help him. On 19 July 2003 he had been taken to the court
and his friends had been there. He had worn his normal clothes under
his prison outfit and he had not had any handcuffs as the guards
trusted him. He had told the guard that he had to go to the bathroom,
where he had taken off his prison outfit. In the meantime one of his
friends had gone to start the car and another friend had spoken to
the guard to distract his attention from the applicant. The applicant
had then walked straight out of the court, got into the car and they
had driven off. It had been a revolution court and there had been a
lot of people. He had then remained hidden at a friend's home for
about two months while his friend had found a smuggler to help him
out of the country. While he had been in hiding, his wife had been
taken to the police twice for questioning about his whereabouts. His
father had also been questioned. The applicant underlined that he was
not, and never had been, a member of a political party or any
organisation and that he had never been formally convicted of any
crime. He was convinced that he would be executed if returned to Iran
since he had escaped from prison and because he would be accused of
having co-operated with those who are against Islam.
- The
applicant further stated that he continuously suffered from headaches
and sleeplessness and had problems with his legs. He submitted a
medical certificate, dated 4 February 2005 and issued by Dr I.
Markström, a physician at a local health care centre. The
certificate stated that the applicant had scars around both ankles,
scars on the outside of both kneecaps and two lateral scars on his
left thigh. He also had a reddish area stretching from his neck down
to his chest and when he yawned there was a loud clicking sound from
the left side of his jaw. In the physician's opinion, these injuries
could very well originate from the torture to which the applicant
claimed that he had been subjected in Iran, namely, that he had been
chained around his ankles and suspended upside down for several
hours, that boiling water had been thrown at his chest, that he had
received blows to his head, jaw, abdomen and legs, and that he had
been stabbed twice in the left thigh with a bayonet.
- On
27 May 2005 the Migration Board rejected the request. It first noted
that the applicant had not claimed to have been a member either of an
organisation or of a political party or to have had a leading role in
the organisation of demonstrations. Moreover, the proceedings before
the revolutionary courts were in general not open to the public. The
Board found that the applicant had not substantiated his story in any
way and that he had thus failed to show that he had been, or would
be, of interest to the Iranian authorities. It therefore considered
that the applicant would not attract special attention from the
Iranian authorities if he were to be returned to his home country. As
concerned the ill-treatment and torture of which the applicant
claimed to have been the victim, the Board found that the medical
certificate did not prove that he had been tortured even if the
injuries documented could very well originate from the torture
described. In its view, there was no reason to believe that the
applicant would be subjected to ill-treatment or torture upon return
to Iran. Thus, it concluded that the applicant could neither be
granted asylum in Sweden nor a residence permit based on humanitarian
grounds.
- The
applicant appealed to the Aliens Appeals Board (Utlänningsnämnden),
maintaining his claims and adding that about half of the inhabitants
in his home town knew him since he used to be a football player.
Moreover, he had been one of ten to twelve organisers of the
demonstration held in 2001. They had written the banners and decided
which slogans to use. The other organisers, who were students and
previously imprisoned critics of the regime, had also been punished.
Following his escape, his wife had been taken in for questioning
about his whereabouts on seven occasions and had been kept in
detention on three occasions. His father had been questioned on two
occasions and their home had also been searched on two occasions. The
applicant further claimed that he had been kept in an isolation cell
for the first two months of his detention. Furthermore, the public
had access to hearings before the revolutionary courts and it had
been relatively easy for him to escape since his friends had
distracted the guards and he had thus been able to leave the
building. Lastly, submitting four medical certificates, the applicant
invoked his deteriorating health as he suffered, inter alia,
from depression and panic attacks.
- In
March 2006 the applicant was informed that the case would be
transferred to the Migration Court (Migrationsdomstolen) for
further proceedings, following the entry into force of a new Aliens
Act (see below under Relevant Domestic Law).
- On
18 June 2007 the Migration Court held an oral hearing. In response to
his lawyer's questions the applicant stated, inter alia, that
he had participated in demonstrations critical against the regime
since 1988 and that, in 1997 or 1998, he had started to notice that
his criticism was not appreciated. He had participated in yearly
demonstrations, such as on women's day and on labour day. Mostly he
had participated in meetings on various premises. A relative of his
wife had been an official at the intelligence agency and thus he had
been assured that nothing would happen to him. He had been one of
4-5,000 participants in the demonstration in 2001 and he had played
no special role, but it had been monitored by the authorities. He had
been arrested and accused of being against Islam and the regime. In
connection with a visit by his wife to Sepah prison while he was
there, she had been detained for three days and questioned about him.
However, no other relatives had been summoned or questioned by the
authorities. He had escaped when his friends had come to the
revolutionary court for his hearing and had pretended to have a fight
with each other so that he could go to the toilets to change. It had
then taken him fifteen seconds to leave the building since there were
no exit controls. In response to questions by the Migration Board,
the applicant claimed that he had organised demonstrations and that
he had been one of the leaders at the demonstration in 2001. He had
been arrested because he had been in the front row and had shouted
slogans.
- In
a judgment of 9 July 2007, the Migration Court, by three votes to
one, rejected the appeal. It first noted that the applicant appeared
to have expanded his grounds for asylum by claiming that he had not
just participated in demonstrations but had actually been involved in
organising them. However, since he had not been a member of a party
or an organisation which was critical of the regime, the court found
it unlikely that he would be of any interest to the authorities in
his home country if he returned. It further considered that the
applicant's account of how he had escaped from the revolutionary
court was not credible, having regard, inter alia, to
international sources which stated that insights into the functioning
of the revolutionary courts were very limited. The court also noted
that he had remained in Iran for two months following his escape
before leaving the country. Moreover, it found that the applicant had
failed to show that he had been tortured in Iran. Thus, having regard
to all the circumstances of the case, the court concluded that the
applicant could not be considered to be in need of protection in
Sweden and that his health problems were not of such a serious nature
that he could be granted leave to remain on humanitarian grounds.
- One
of the three lay judges dissented as he considered that the applicant
had given a credible account of events and should be granted asylum
as a refugee in Sweden.
- On
17 July 2007 the applicant appealed to the Migration Court of Appeal
(Migrationsöverdomstolen), maintaining his claims and
stating that he was only telling the truth. He was also of the
opinion that the Migration Court had failed to take into account the
medical certificate testifying to his torture injuries. He further
requested some extra time in order to submit certain documents that
his family had sent to him from Iran. The court granted an extension
of the time-limit and, on 7 August 2007, the applicant submitted,
among other things, two summonses, one to his wife and one to his
father, to appear before the revolutionary court in his home town on
6 August 2003 to answer questions concerning the applicant and
his escape from prison.
- On
4 September 2007 the Migration Court of Appeal refused leave to
appeal.
- The
applicant was called to a meeting with the Migration Board on
9 November 2007.
- On
8 November 2007, following a request by the applicant, the President
of the Chamber to which the case had been allocated decided, under
Rule 39 of the Rules of Court, to indicate to the Swedish Government
that it was desirable in the interest of the parties and the proper
conduct of the proceedings before the Court not to deport the
applicant to Iran until further notice.
- Following
the request by the Court, on 9 November 2007 the Migration Board
stayed the enforcement of the deportation order until further notice.
B. Forensic medical report of 14 November 2008
- Upon
request by the Court, the applicant submitted a forensic medical
report dated 14 November 2008 and issued by Dr E. Edston, specialist
in forensic medicine at the Crisis and Trauma Centre at Danderyd
Hospital. The report was drawn up on the basis of the protocols from
the interviews with the applicant before the Migration Board, the
medical certificate by Dr I. Markström, a letter from the
applicant's representative dated 16 October 2008 and the applicant's
own story as told to Dr Edston during his examination on 4 November
2008. The report contained photos of the scars together with a
written protocol of all the scars and the medical record from the
examination as well as Dr Edston's opinion.
- The
report noted that the applicant had claimed that he had been tortured
in prison in 2001 and that the torture had consisted of beating with
fists, kicks, being hit on his kneecaps with rifle butts, having a
bayonet stuck twice in his thigh, as well as being flogged, suspended
upside down for prolonged period of times and having hot water poured
over him. He further stated that, as a result of the torture, he
suffered from chronic headaches, reduced feeling in his right thigh,
reduced mobility of his jaw, reduced eye sight, an ulcer, pain in his
knees when walking and medical problems with his thyroid gland and
diabetes. Dr Edston examined the applicant and found numerous scars
on his body.
- In
Dr Edston's opinion, the injuries invoked by the applicant could very
well have occurred in 2001 as claimed and the scars observed on his
body had the appearance and localisation which corresponded well with
his statements of how they had appeared. For example, the scars on
his kneecaps could well correspond to blows with rifle butts, the
marks on the front of his shins from having been kicked with boots,
the marks on his left ankle could have appeared as a consequence of
having been suspended upside down by his ankles and the pigmentation
on his neck corresponded well with a burn injury. In conclusion, Dr
Edston noted that, in cases like this, alternative causes for the
origins of the scars could not be completely excluded but that
experience showed that self-inflicted injuries and injuries resulting
from accidents normally had a different distribution to those showed
by the applicant. The findings in the present case favoured the
conclusion that the injuries had been inflicted on the applicant
completely or to a large extent by other persons and in the manner
claimed by him. Thus, the findings strongly indicated that the
applicant had been tortured.
II. RELEVANT DOMESTIC LAW
- The
basic provisions mainly applicable in the present case, concerning
the right of aliens to enter and to remain in Sweden, are laid down
in the 2005 Aliens Act (Utlänningslagen, 2005:716 –
hereafter referred to as “the 2005 Act”) which replaced,
on 31 March 2006, the old Aliens Act (Utlänningslagen,
1989:529). Both the old Aliens Act and the 2005 Act define the
conditions under which an alien can be deported or expelled from the
country, as well as the procedures relating to the enforcement of
such decisions.
- Chapter
5, Section 1, of the 2005 Act stipulates that an alien who is
considered to be a refugee or otherwise in need of protection is,
with certain exceptions, entitled to a residence permit in Sweden.
According to Chapter 4, Section 1, of the 2005 Act, the term
“refugee” refers to an alien who is outside the country
of his or her nationality owing to a well-founded fear of being
persecuted on grounds of race, nationality, religious or political
beliefs, or on grounds of gender, sexual orientation or other
membership of a particular social group and who is unable or, owing
to such fear, is unwilling to avail himself or herself of the
protection of that country. This applies irrespective of whether the
persecution is at the hands of the authorities of the country or if
those authorities cannot be expected to offer protection against
persecution by private individuals. By “an alien otherwise in
need of protection” is meant, inter alia, a person who
has left the country of his or her nationality because of a
well-founded fear of being sentenced to death or receiving corporal
punishment, or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 4, Section 2, of the
2005 Act).
- As
regards the enforcement of a deportation or expulsion order, account
has to be taken of the risk of capital punishment or torture and
other inhuman or degrading treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be
sent to a country where there are reasonable grounds for believing
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 (Chapter 12, Section 1, of the 2005
Act). In addition, an alien must not, in principle, be sent to a
country where he or she risks persecution (Chapter 12, Section
2, of the 2005 Act).
- Under
certain conditions, an alien may be granted a residence permit even
if a deportation or expulsion order has gained legal force. This
applies, under Chapter 12, Section 18, of the 2005 Act, where new
circumstances have emerged that mean there are reasonable grounds for
believing, inter alia, that an enforcement would put the alien
in danger of being subjected to capital or corporal punishment,
torture or other inhuman or degrading treatment or punishment or
there are medical or other special reasons why the order should not
be enforced. If a residence permit cannot be granted under this
provision, the Migration Board may instead decide to re-examine the
matter. Such a re-examination shall be carried out where it may be
assumed, on the basis of new circumstances invoked by the alien, that
there are lasting impediments to enforcement of the nature referred
to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these
circumstances could not have been invoked previously or the alien
shows that he or she has a valid excuse for not doing so. Should the
applicable conditions not have been met, the Migration Board shall
decide not to grant a re-examination (Chapter 12, Section 19, of the
2005 Act).
- Under
the 2005 Act, matters concerning the right of aliens to enter and
remain in Sweden are dealt with by three instances; the Migration
Board, the Migration Court and the Migration Court of Appeal (Chapter
14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence,
upon entry into force on 31 March 2006 of the 2005 Act, the Aliens
Appeals Board ceased to exist.
III. INFORMATION ON IRAN
- On
25 June 2009 the Parliamentary Assembly of the Council of Europe
(PACE) adopted a resolution on the situation in Iran in which it
urged the Iranian authorities to refrain from using force and
violence against peaceful demonstrators and to release the more than
400 demonstrators arrested since the elections on 12 June 2009 as
well as the more than 170 politicians, members of their families and
journalists detained. At its subsequent session in Strasbourg, on 1
October 2009, the Political Affairs Committee of the PACE, adopted a
declaration in which it considered the violent reactions of the
Iranian authorities to peaceful protests to be a serious breach of
Iranian citizens' human rights. It also called upon governments of
other countries not to expel Iranian citizens to Iran.
- In
a report (A/64/357) of the United Nation's Secretary-General on The
situation of human rights in the Islamic Republic of Iran, dated
23 September 2009, and presented to the UN General Assembly at
its 64th session, it was noted that 2009 had seen an
increase in human rights violations targeting women, university
students, teachers, workers and other activist groups, particularly
in the aftermath of the elections in June 2009. Hence, during June,
July and August 2009, several independent UN experts as well as the
Secretary-General had voiced grave concerns about the use of
excessive police force, arbitrary arrests, killings, ill-treatment of
detainees and the use of torture to obtain confessions. Moreover, a
variety of cases suggested a widespread lack of due process, access
to lawyers and the failure to respect the rights of detainees,
including allegations that individuals had been placed in detention
without charge and had been kept “incommunicado”. It was
noted that no visits by any special procedure mandate holders had
taken place since 2005.
- In
its World Report 2009, Human Rights Watch noted that respect
for basic human rights in Iran continued to deteriorate and that the
government showed no tolerance for peaceful protests or gatherings,
routinely detaining participants and subjecting them to torture. The
Judiciary and the Ministry of Intelligence continued to be
responsible for many serious human rights violations. Amnesty
International, in its Amnesty International Report 2009, made
the same findings, also noting that demonstrations frequently led to
mass arrests and unfair trials. Some were also detained without trial
for long periods beyond control of the judiciary and were reported to
have been tortured and denied access to lawyers and their families.
Amnesty International has repeatedly observed that trials before the
revolutionary courts are not public. For instance, on 4 August 2009,
in its article “Over 100 Iranians face grossly unfair
trials”, Amnesty International noted that more than 100
persons had gone on trial in Tehran accused of organising widespread
civil protests. The trial was held before the Revolutionary Court in
Tehran and it was closed to the public and even to the defendants'
lawyers.
- According
to Sections 3.28 and 3.31 of the U.K. Home Office's Country of
Origin Information Report on Iran, dated August 2009, the
pressure for democratic reform in Iran changed dramatically after the
student protests at Tehran University in July 1999. Every year on the
anniversary of the 1999 event, students have gathered at Tehran
University and other major campuses throughout the country and the
date has been a flashpoint for violence and tension (Section 3.27).
Thus, in June 2003, thousands of Iranians took to the streets and
about 4,000 people were arrested all over the country before and
after the protests. Although many of them had since been released,
there were still scores of students behind bars. Some of these had
been in prison since they were arrested as a result of similar
disturbances in 1999, 2000 and 2001.
- Section
27.14 of the U.K. Report further noted that in “Evaluation
of the August 2008 Country of Origin Information Report on Iran”
by Dr Reza Molavi and Dr Mohammad M Hedayati-Kakhki of the
Centre for Iranian Studies at Durham University, dated 23 September
2008, it appeared that, if an Iranian arrived in the country without
a passport or any valid travel documents, they would be arrested and
taken to a special court at Mehrabad Airport in Tehran where the
background of the individual, the date of their departure from the
country, the reason for their illegal departure, their connection
with any organisations or groups and any other circumstances would be
assessed. This procedure also applied to people who were deported
back to Iran, not in the possession of a passport containing an exit
visa; in this case the Iranian Embassy would issue them with a
document confirming their nationality. Illegal departure was often
prosecuted in conjunction with other, unrelated offences since the
investigation into the facts surrounding the offence of illegal
departure could result in the discovery of an underlying offence.
- The
Danish Immigration Service's report Human Rights Situation for
Minorities, Women and Converts, and Entry and Exit Procedures, ID
Cards, Summons and Reporting, etc., released in April 2009,
following a fact finding mission to Iran from 24 August to 2
September 2008, stated that some of its sources had claimed that the
granting of travel documents at an Iranian embassy did not
necessarily mean that the person would not face problems with the
Iranian authorities upon return to Iran. The person in charge of
passport border control at the Imam Khomeini International Airport in
Tehran (a newly built airport which had replaced Mehrebad airport)
had explained that an Iranian travelling on a laissez-passer was
likely to be interviewed upon arrival in Iran and questioned about
how he or she had lost the previous passport. However, if a person
arrived in Iran on a travel document issued by an Iranian
representation and the security check had been completed at the
embassy, the airport authorities would not check his or her identity.
The authorities at the airport would, however, ask the person how he
or she had left Iran, since there was no exit stamp in his or her new
travel document. A source in Iran claimed that, if a person had left
Iran illegally, he or she had not been registered in the computer
system as having left Iran and therefore would be questioned upon
return. It was added that a person who had left the country illegally
could also be arrested if he or she had committed an illegal act
before leaving Iran. It was further observed that a person on a
laissez-passer, issued by an Iranian representation abroad, might be
fined for illegal exit or subjected to a few hours' interrogation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant claimed that deportation to Iran would subject him to a
real risk of being arrested, tortured and perhaps even executed, in
violation of his rights under Article 3 of the Convention which
reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The applicant
- The
applicant argued that, if forced to return to Iran, he would face a
real and serious risk of being arrested, tortured and perhaps even
executed because of his earlier activities as a critic of the Iranian
regime, for which he had previously been imprisoned and tortured. He
also alleged that the fact that he had escaped from prison and left
the country illegally would put him at additional risk.
- He
claimed that the forensic medical report by Dr Edston proved that he
had been tortured in prison in Iran. Moreover, he was convinced that
the Iranian authorities still had a special interest in him due to
his activities as an open critic of the regime. He had manifested his
opposition to the regime in his contacts and discussions with other
people and by participating in several demonstrations. He had been
one of the organisers of the demonstration in July 2001, together
with some students and formerly imprisoned critics, in total ten to
twelve persons. They had assembled various groups of demonstrators
from different areas, had written posters and given instructions on
slogans to be used during the demonstration, such as “referendum”
or “stop the harassment”. Together with the other
organisers, he had organised the march and had given instructions on
when to run from the police and throw away the posters. The other
organisers had also been arrested and punished by the authorities.
Thus, by spreading criticism against the Iranian government, he had
committed a criminal act.
- The
applicant further alleged that he was sought by the authorities
because he had escaped from prison. Formally, he was still supposed
to be in prison and consequently the authorities were still looking
for him. This was also supported by the summonses sent to his wife
and father. Furthermore, it was not impossible to escape from the
court, due to the extensive corruption in the country. Also, since he
had remained outside Iran for a number of years, he would also be of
interest to the Iranian government for this reason. As the Iranian
opposition was mainly active outside the country, the applicant would
be considered as being allied with the exiled opposition. In this
context, the applicant added that, in March 2008, his children
had been approached by a former friend of his who was now a general
within the Security Service in Iran and who had told them that their
father would die if he returned.
- Taking
all the circumstances of the case into account, the applicant
considered that he had shown that he was still wanted by the Iranian
authorities and that they had a special interest in him. Therefore,
if he were to be returned to Iran, he would at the very least be
subjected to torture and inhuman or degrading treatment or
punishment, as he had previously been.
2. The Government
- The
Government considered that the application did not disclose any
violation of Article 3 of the Convention.
- They
submitted that, although the situation in Iran was problematic, it
did not in itself suffice to establish that the forced return of the
applicant to Iran would engage the Government's responsibility under
Article 3 of the Convention. For a violation to be found, the
Government maintained that substantial grounds had to be shown to
establish that the applicant would face a real, personal and concrete
risk of being subjected to treatment contrary to Article 3 if return
to Iran.
- In
this respect, the Government emphasised that the applicant's
credibility was of vital importance to the examination of the case
and that much weight had to be given to the national authorities'
opinions since they had met with the applicant in person; the
Migration Board having held two interviews with the applicant and the
Migration Court having held an oral hearing where the applicant was
heard. In the Government's view there were serious reasons to
question the applicant's credibility as he had given contradictory
statements and presented new assertions at a late stage of the
proceedings. For instance, the Government strongly questioned the
applicant's story about how friends had helped him to escape from the
revolutionary court, having regard to international sources that
there was very little public control of these courts, that the
proceedings were only open to the parties and, exceptionally, to some
family members, and that people who entered and exited the court
building were carefully checked. That the escape was the result of
extensive corruption in the country, as the applicant had claimed
before the Court, was unsupported and not in accordance with the
applicant's earlier statements about his escape. The Government
further stressed that the applicant had given contradictory
information about his role in the demonstration in 2001 during the
national proceedings and even during the oral hearing in Migration
Court. They also observed that the applicant had never mentioned that
he had been flogged in prison until the medical examination in
November 2008. The same was true of his statement about having been
hit on his kneecaps with rifle butts. Previously, he had only stated
that he had been kicked on the kneecaps.
- Turning
to the forensic medical report of 14 November 2008, the Government
regretted that the Court would examine it as a first instance and
considered that it was incumbent on the applicant to have initiated
such a medical examination during the national proceedings if he had
deemed it to be important for his case, noting that the Migration
Board had found the initial medical certificate to have provided
insufficient proof of torture injuries. In any event, the Government
contended that the conclusions in the medical report should be
carefully assessed, in particular regarding the issue of the origin
and causes of the injuries referred to and when these injuries had
occurred. The main reasons for this were that the medical examination
had been performed more than seven years after the alleged torture
took place and that the applicant had failed to inform the doctor of
other possible causes for some of the injures. Hence in their
opinion, it could not be ruled out that the findings relating to the
applicant's jaw, teeth, knees and thighs might also have been a
result of the applicant's earlier activity as a football player in
Iran.
- However,
even assuming that the applicant's own story was to some extent
accurate, the Government still maintained that he would not be facing
a real risk of being subjected to treatment contrary to Article 3 of
the Convention. According to them, the applicant's alleged political
activities had been limited, they had occurred several years ago and
the applicant had not even claimed that he had been politically
active since he had left Iran. Moreover, he had not presented any
official documents or other evidence indicating that he currently
would be of interest to the Iranian authorities. As concerned the
summonses, the Government referred to their observations on the
admissibility of the case in which they questioned the authenticity
of the summonses following an inquiry by the Swedish Embassy in
Tehran. This inquiry had failed to show that the summonses were
authentic. Thus, it remained unclear to the Government why and in
what way the Iranian authorities would show a particular interest in
the applicant if he were returned. In addition, they noted that the
Swedish Embassy in Tehran had stated in a recent report that a person
who had left Iran illegally could, upon return, risk punishment by a
fine.
- The
Government therefore concluded that there was nothing to support the
applicant's submissions that he would risk treatment contrary to
Article 3 of the Convention if returned to Iran.
B. The Court's assessment
- The
Court observes that Contracting States have the right as a matter of
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens (Üner v. the Netherlands [GC], no. 46410/99,
§ 54, ECHR 2006 XII). However, expulsion by a Contracting
State may give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned, if
deported, faces a real risk of being subjected to treatment contrary
to Article 3. In such a case, Article 3 implies an obligation not to
deport the person in question to that country (Saadi v. Italy
[GC], no. 37201/06, § 125, ECHR 2008-...).
- Whilst
being aware of the reports of serious human rights violations in
Iran, as set out above, the Court does not find them to be of such a
nature as to show, on their own, that there would be a violation of
the Convention if the applicant were to return to that country. The
Court has to establish whether the applicant's personal situation is
such that his return to Iran would contravene Article 3 of the
Convention.
- The Court acknowledges that, owing to the special
situation in which asylum seekers often find themselves, it is
frequently necessary to give them the benefit of the doubt when it
comes to assessing the credibility of their statements and the
documents submitted in support thereof. However, when information is
presented which gives strong reasons to question the veracity of an
asylum seeker's submissions, the individual must provide a
satisfactory explanation for the alleged discrepancies (see, among
other authorities, Collins and Akasiebie v. Sweden (dec.),
no. 23944/05, 8 March 2007, and Matsiukhina and
Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In
principle, the applicant has to adduce evidence capable of proving
that there are substantial grounds for believing that, if the measure
complained of were to be implemented, he would be exposed to a real
risk of being subjected to treatment contrary to Article 3 (see N.
v. Finland, no. 38885/02, § 167, 26 July 2005 and
NA. v. the United Kingdom, no. 25904/07, § 111, 17 July
2008). Where such evidence is adduced, it is for the Government to
dispel any doubts about it.
- In
order to determine whether there is a risk of ill-treatment, the
Court must examine the foreseeable consequences of sending the
applicant to Iran, bearing in mind the general situation there and
his personal circumstances (see Vilvarajah and Others v. the
United Kingdom, judgment of 30 October 1991, Series A no. 215,
§ 108 in fine).
- The
Court observes, from the outset, that there is a dispute between the
parties as to the facts of this case and that the Government have
questioned the applicant's credibility and pointed to certain
inconsistencies in his story. The Court acknowledges that it is often
difficult to establish, precisely, the pertinent facts in cases such
as the present one. It accepts that, as a general principle, the
national authorities are best placed to assess not just the facts
but, more particularly, the credibility of witnesses since it is they
who have had an opportunity to see, hear and assess the demeanour of
the individual concerned. However, in the circumstances of this case,
the Court does not share the conclusion of the Government that the
information provided by the applicant was such as to undermine his
general credibility and it notes that one of the Migration Court's
lay judges considered that the applicant had given a credible account
of events and that he ought to have been granted asylum. The Court
further observes that the applicant has never claimed that he was a
member of a political party or of any organisation or association. He
has consistently maintained only that he participated in
demonstrations to express his opposition to the current Iranian
regime and that, following a demonstration in July 2001, he was
arrested and tortured by the Iranian authorities. The Court finds
that the applicant's basic story was consistent throughout the
proceedings and that notwithstanding some uncertain aspects, such as
his account as to how he escaped from prison, such uncertainties do
not undermine the overall credibility of his story.
- Firstly,
the Court notes that the applicant initially produced a medical
certificate before the Migration Board as evidence of his having been
tortured (see paragraph 11). Although the certificate was not written
by an expert specialising in the assessment of torture injuries, the
Court considers that it, nevertheless, gave a rather strong
indication to the authorities that the applicant's scars and injuries
may have been caused by ill-treatment or torture. In such
circumstances, it was for the Migration Board to dispel any doubts
that might have persisted as to the cause of such scarring (see the
last sentence of paragraph 50). In the Court's view, the Migration
Board ought to have directed that an expert opinion be obtained as to
the probable cause of the applicant's scars in circumstances where he
had made out a prima facie case as to their origin. It did not
do so and neither did the appellate courts. While the burden of
proof, in principle, rests on the applicant, the Court disagrees with
the Government's view that it was incumbent upon him to produce such
expert opinion. In cases such as the present one, the State has a
duty to ascertain all relevant facts, particularly in circumstances
where there is a strong indication that an applicant's injuries may
have been caused by torture. The Court notes that the forensic
medical report submitted at its request has documented numerous scars
on the applicant's body. Although some of them may have been caused
by means other than by torture, the Court accepts the report's
general conclusion that the injuries, to a large extent, are
consistent with having been inflicted on the applicant by other
persons and in the manner in which he described, thereby strongly
indicating that he has been a victim of torture. The medical evidence
thus corroborates the applicant's story.
- Secondly,
it is evident from the information available on Iran (as set out
above) that the Iranian authorities frequently detain and ill-treat
persons who participate in peaceful demonstrations in the country.
The Court notes that it is not only the leaders of political
organisations or other high profile persons who are detained but that
anyone who demonstrates or in any way opposes the current regime is
at risk of being detained and ill-treated or tortured. The Court
notes that the applicant has maintained, before the domestic
authorities and the Court, that he was arrested with many others when
he participated in a demonstration against the regime in July 2001
and that the torture he endured occurred in the months following his
arrest. His account, therefore, is consistent with the information
available from independent sources concerning Iran.
- In
view of the foregoing, the Court considers that the applicant has
substantiated his claim that he was detained and tortured by the
Iranian authorities following a demonstration in July 2001. Since
protection against the treatment prohibited by Article 3 is absolute,
that provision imposes an obligation not to expel any person who, in
the receiving country, would run the real risk of being subjected to
such treatment (see Saadi, cited above, § 138). The
question, therefore, to be considered is whether the applicant would
run a real risk of being subjected to such treatment in the event of
his return to Iran. Having regard to its finding that the applicant
has discharged the burden of proving that he has already been
tortured, the Court considers that the onus rests with the State to
dispel any doubts about the risk of his being subjected again to
treatment contrary to Article 3 in the event that his expulsion
proceeds.
- In
assessing such a risk, regard must be had, firstly, to the current
situation that prevails in Iran and to the very tense situation in
that country where respect for basic human rights has deteriorated
considerably following the elections of June 2009 (see paragraphs
31-34). In addition, regard must also be had to the specific risk
facing Iranians returning to their home country in circumstances
where they cannot produce evidence of their having left that country
legally. The Court notes that according to information available from
independent international sources (see paragraphs 35 and 36 above)
such Iranians are particularly likely to be scrutinised for
verification as to the legality of their departure from Iran. The
Court observes that the applicant has claimed that he left Iran
illegally and that his claim in this regard has not been rebutted by
the Government. Therefore, in the light of the information available
to the Court, it finds it probable that the applicant, being without
valid exit documentation, would come to the attention of the Iranian
authorities and that his past is likely to be revealed. The
cumulative effect of the above factors adds a further risk to the
applicant (see, mutatis mutandis, NA. v. the United
Kingdom, no. 25904/07, §§ 134-136, 17 July 2008).
- Having
regard to all of the above, the Court concludes that there are
substantial grounds for believing that the applicant would be exposed
to a real risk of being detained and subjected to treatment contrary
to Article 3 of the Convention if deported to Iran in the current
circumstances. Accordingly, the Court finds that the implementation
of the deportation order against the applicant would give rise to a
violation of Article 3 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant made no claim in respect of pecuniary and non-pecuniary
damage and the Government similarly made no observations under this
head.
B. Costs and expenses
- The
applicant claimed a total of SEK 32,112 (approximately EUR 3,177),
inclusive of VAT, in legal costs and expenses incurred before the
Court, less SEK 7,916 (EUR 850) which he had already been granted by
way of legal aid by the Council of Europe. His claim comprised the
cost of his lawyer (SEK 23,750), the cost of an interpreter (SEK
1,544) and the cost of the medical report requested by the Court (SEK
6,818).
- The
Government considered the amount acceptable, but noted that if the
applicant were to receive further legal aid from the Council of
Europe, this should also be deducted from the total costs to be
awarded under Article 41 of the Convention.
- The
Court considers that the amount claimed is reasonable. However, it
notes that the applicant was granted further legal aid in the amount
of EUR 622 by the Council of Europe to cover the cost of the medical
report. The Court therefore awards the applicant EUR 3,177, inclusive
of VAT, less EUR 1,472 already received in legal aid from the
Council of Europe, which leaves EUR 1,705 to be paid by the
Government.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by six votes to one that the applicant's
deportation to Iran would be in violation of Article 3 of the
Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,705 (one
thousand seven hundred and five euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into Swedish kronor at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 9 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Fura is
annexed to this judgment.
J.C.M.
S.H.N.
DISSENTING OPINION OF JUDGE FURA
- I
do not share the majority's view that the applicant's deportation to
Iran would be in violation of Article 3 of the Convention. Here are
my reasons.
-
Like the Government, I find that the applicant failed to substantiate
that he would be exposed to a real risk of being arrested and
subjected to treatment contrary to Article 3 if deported to Iran.
-
The starting point for anyone alleging a breach of the Convention is
to substantiate the allegation. This onus on the applicant can be
difficult to discharge but it must nonetheless be done, even in cases
like the one at hand. In principle, the applicant has to adduce
evidence capable of proving that there are substantial grounds for
believing that, if the measure complained of were to be implemented,
he would be exposed to a real risk of being subjected to treatment
contrary to Article 3 (see N. v. Finland, no. 3885/02, 26
July 2005, § 167, and NA. v. the United Kingdom, no.
25904/07, 17 July 2008, § 111). It is only when and if such
evidence is adduced that it is for the Government to dispel any
doubts, failing which there would be a violation.
- I
am not convinced that the applicant has made out a prima facie
case and that the necessary evidence has been adduced, even with the
additional medical certificate dated November 2008.
- In
examining the case before them the domestic authorities must assess
facts that are presented by the parties. In this exercise the
authorities might come across difficulties when facts are in dispute.
Evidence presented must be evaluated and credibility will be of the
essence. Domestic courts are normally better placed to do this than
an international court, since they have had the opportunity to see
and hear the parties.
- In
the present case, the applicant had his case tried in several
instances domestically. The review was both administrative and
judicial. After arriving in 2004 in Sweden at the age of 38 he asked
for asylum. He was assisted by the same legal counsel from the outset
and all through the proceedings, including before this Court. He
informed the authorities that he had been kept in detention in Iran
and tortured but that he had managed to escape in 2003. He submitted
a medical certificate before the Migration Board.
-
The mentioned certificate issued by a general practitioner gave an
indication that the applicant's injuries might have been caused by
ill-treatment or torture. Since the authorities had doubts, however,
they ought to have, on their own motion according to the majority
(see paragraph 53), directed that an expert opinion be obtained as to
the probable cause of the applicant's scars. I am far less assured
than the majority and would be reluctant to give any specific
instructions to the domestic authorities as to what procedural
measure to take and even less willing to advise on what conclusions
to draw from certain evidence introduced in a case where I have not
had the benefit of seeing the parties and in which the relevant
events took place a long time ago.
- At
a later stage the applicant added that he had been involved in
organising demonstrations, without giving any details as to where
they took place or as to their contents. Also the nature of the
applicant's criticism of the Iranian regime remains unclear to this
day even though the applicant has been asked specifically about this.
- A
forensic medical report issued in November 2008, after the
domestic authorities had finalised their examination, concluded that
the findings strongly indicated that the applicant had been tortured
in 2001.
-
In the majority's view, this forensic medical report is evidence
enough to outweigh the inconsistencies of his story (see paragraphs
52 and 53 of the judgment). I respectfully disagree. To me all the
evidence adduced must be taken together and evaluated as a whole and
I cannot see that the Swedish authorities have failed in carrying out
this task. Even if it is taken into account that they did not have
the benefit of the forensic medical report and even allowing for the
difficult general conditions in Iran, I cannot draw the same
conclusion as the majority in this respect.
-
The applicant has not himself claimed that he runs a risk of being
specially checked at the border. This is a conclusion the majority
draws from the international reports about the general conditions and
practices in Iran and in particular what returning Iranians can
expect if they are not carrying any valid travel documents.
-
The applicant alleges that since he has been active organising
demonstrations, detained and tortured, been abroad for a long time
and received summonses he would be of interest to the Iranian
authorities if he were to be returned to Iran today, 7 years later,
and as a consequence would run a real risk of being subjected to
treatment contrary to Article 3 of the Convention.
-
The fact that the applicant has in all probability been tortured in
Iran is not enough in itself to substantiate that he runs a real risk
of being tortured again if returned. Here my views differ from the
majority (see paragraph 55). The majority's opinion that the onus
rests with the State to dispel any doubts about the risk of the
applicant's being subjected again to treatment contrary to Article 3
in the event that his expulsion proceeds does not follow the
established case-law of the Court (see Saadi, among
other authorities). Furthermore, I have difficulties to see how, in
practice, a State should proceed in order to achieve this aim.
-
For all these reasons I cannot depart from the assessment made by the
Swedish authorities and I fail to see that the applicant has
substantiated his submissions.
