by: M.B.B. (name withheld)
victim: The author
of communication: 12 December 1997
Committee against Torture, established
under article 17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
on 5 May 1999,
concluded its consideration of communication No. 104/1998,
submitted to the Committee against Torture under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
taken into account all information made available to it by
the author of the communication and the State party,
its Views under article 22, paragraph 7, of the Convention.
author of the communication is M.B.B., an Iranian national born
in 1965, at present seeking asylum in Sweden. He claims that he
risks being tortured and executed if he is forced to return to
Iran. No article of the Convention is specifically invoked in
the communication. The author is not represented by counsel.
as presented by the author
author states that his father is an orthodox Iranian Muslim and
a supporter of the Iranian regime. Through his influence the author
was drafted by the Iranian Revolutionary Guards (Pasdaran) and
fought for three years in the front lines. While working as a
revolutionary guard, the author also had a normal civil job as
a mechanic in Isfahan, in order to conceal his involvement with
the Pasdaran from his family. He was issued with an identity card
as a member of the National Guard.
author states that his situation became very difficult when he
refused to perform certain tasks assigned to him. For that reason
he decided to leave for Sweden, where his mother and stepfather
were living. He left the country on a valid passport, which he
obtained by paying a large amount of money, and a tourist visa
that his stepfather helped him to obtain. He arrived in Sweden
on 26 October 1995 in poor psychological condition. On 10 January
1996 he applied for asylum. His application was dismissed by the
Swedish Board of Immigration on 5 September 1996. The Aliens Appeal
Board turned down his appeal on 21 April 1997.
June 1996, the author converted to Christianity. Members of his
family who are still living in Iran informed him that the Pasdaran
had issued a warrant of arrest and that the Supreme Court of Iran
had issued an order of execution against him.
view of his past involvement with the Pasdaran and his conversion
to Christianity the author fears that he will be subjected to
torture and executed upon his return to Iran.
19 January 1998 the Committee, acting through its Special Rapporteur
for new communications, transmitted the communication to the State
party for comments and requested the State party not to expel
or deport the author to Iran while his communication was under
consideration by the Committee. In a submission on 29 June 1998
the State party informed the Committee that, on 21 January 1998,
the Swedish Immigration Board had decided to stay the enforcement
of the expulsion until further notice, pending the Committee's
final decision on the matter.
respect to the admissibility of the communication the State party
states that it is not aware of the present matter having been
or being the object of any other procedure of international investigation
or settlement. It also states that chapter 2, section 5 (b), of
the Aliens Act provides for a re-examination of the permit issue.
A new request for a residence permit may be lodged with the Aliens
Appeals Board at any time. Such a request must always be considered
by the Board, provided that there are new circumstances that could
call for a different decision. Finally, the State party, with
reference to its submission on the merits, maintains that the
communication should be considered inadmissible as being incompatible
with the provisions of the Convention.
for the merits, the State party provides the following information
author submitted an application for residence and a work permit
to the Swedish Embassy in Tehran on 18 May 1995. On that occasion
he indicated that he was a "retired National Pasdar Guard". He
entered Sweden on 26 October 1995 on a visa valid for 90 days
and travelled with a valid Iranian passport. He did not apply
for asylum until 10 January 1996. His spouse and three children
remain in Iran.
the initial investigation following the author's first request
for asylum he stated that he had worked at a "Sepah-Pasdaran" and his duties were to spy on the anti-revolutionary forces in
Iranian Kurdistan. In the course of his work he was given training
in methods of torture, and he mistreated people. He also took
part in executing people without trial. Since he was not considered
mentally strong enough to carry out torture he was ordered
obtain information about opponents of the regime and to hand
it over to the authorities. He also stated that he had not
to tell his spouse and children about his work and that he
left Iran because he could not bear his work any longer. Since
of the military are not allowed to have passports legally,
he obtained one through bribery. He did not know anything about
exit permit. He converted to Christianity on 23 July 1996.
Finally, he said that if he returned to Iran he would be in danger of execution.
5 September 1996 the National Immigration Board rejected the author's
application for asylum. The Board noted that he had travelled
from Iran on a valid Iranian passport and exit permit, which means
that at the time of his departure he was not of particular interest
to the Iranian authorities. The Board considered that this fact
was further supported by the author's earlier application for
a residence permit, in which he had stated that he no longer worked
for the Pasdaran. The Board found it extremely unlikely that he
would be allowed to leave Iran if, at that point in time, he was
active in the military service in the way he described. The information
on how he bribed a person at the airport at the time of his departure
was deemed not to be credible.
the Board pointed out that the author waited over two months before
applying for asylum, which is an indication that he did not regard
his situation in his home country as particularly serious. Consequently,
the Board did not find his claim that he runs the risk of arousing
the authorities' special interest on his return to Iran to be
credible. The Board concluded that there were no reasons to believe
that by returning to his home country, the author would risk exposure
to the kind of persecution or harassment that would constitute
grounds for asylum. The Board did not find any other reason for
granting a residence permit. It considered that the kind of activities
that the author said he took part in in Iran, inter alia
executing people without trial, are crimes against humanity as
referred to in article 1 F of the 1951 Convention relating to
the Status of Refugees. Regardless of any judgement about his
credibility, such a circumstance is sufficient reason to refuse
asylum, in accordance with the 1951 Convention.
his appeal to the Aliens Appeals Board the author maintained
that he had been a so-called special agent. He submitted copies
two identity cards to the police in Boras in January 1996.
One of the cards, which was issued by a competent authority,
that he had terminated his service as a special agent, although
in fact he had not. The second card shows that he was still
and active as a special agent. This card was exclusively intended
for national use. He further stated that in Iran people who
opposed the regime, been drug traffickers or carried on other
undesired activities may be "got rid of" without a trial and that
he used to receive orders from his superiors that a certain undesired
person should disappear. From 1988 to 1992, he was part of a group
within Sepha which carried out activities in that context in Kurdistan
and Khozestan. During the years 1992-1996 he underwent further
training at a school of torture. However, he did not himself inflict
torture on prisoners but only had to "watch". On some 40 occasions
he executed punishment in the form of whipping. By means of
substantial bribes to a member of Sepha, he was able to leave
Iran with a
valid passport despite the fact that he was not entitled to
leave the country.
author further contended that the assertion in the decision
of the National Immigration Board that he had retired was not
since he was too young to retire. He had waited for two months
before applying for asylum after his arrival in Sweden because
he was very depressed. However, he contacted the police as
as he began to feel better. For many years he had felt a strong
attraction to Christianity. In Sweden he attended tuition at
Andrews Church in Gothenburg and converted to Christianity
on 23 June 1996. If it should come to the knowledge of the
authorities that he had converted to Christianity, it would
mean certain death. He is very concerned about his children
spouse since he does not know what their situation in Iran
is. The family may be punished because of his desertion.
On 21 April 1997 the Aliens Appeals Board turned down his appeal.
The Board stated that it could be seen from the author's passport
that he underwent the usual passport control in Tehran airport,
which meant that he was not of particular interest to the authorities
at the time of his departure from Iran. The Board also noted that
persons who leave from Tehran airport undergo strict controls.
The claim that he was only able to leave Iran with the aid of
bribes was therefore not deemed reasonable. At the same time the
Board did not find the claim that he was active within the armed
forces and therefore under a prohibition to travel at the time
of his departure to be credible.
The Board also pointed out that the author waited for more than
two months after entering Sweden before applying for asylum which
suggests that he did not feel a great need for protection when
he arrived. Regarding his conversion, the Board considered that
a convert does not run any significant risk of harassment by the
authorities as a result.
On 30 October 1997 the Aliens Appeals Board examined a new application
for asylum filed by the author, with which he submitted a document,
dated 11 June 1996, which he claimed had recently been given to
him by an acquaintance and had been obtained through bribes. He
asserted, inter alia, that the document had been drawn
up by a "prosecutor at the revolutionary court centre in Iran" and proved that the author was wanted in Iran. This was a later
development since he was clearly not wanted by the police when
he left Iran.
The author subsequently submitted a copy of a judgement dated
15 July 1996 which he claimed had been drawn up by Iran's supreme
military tribunal. He stated that the crimes he is guilty of are
that he left his position as a security officer in Sepah, joined
groups that oppose Islam, endangered the security of the State
and unlawfully left the country. He stated that he had received
the document in question by post from Iran.
On 10 July 1997, the Board decided to stay the enforcement of
the refusal of entry decision. It then made arrangements for an
investigation of the judgement through the Swedish Embassy in
In a statement dated 4 September 1997, the Embassy concluded that
the judgement and the document from the prosecution authority
were clear forgeries. After having been informed of the Embassy's
communication, the author wrote to the Board insisting that he
had given truthful information that he was not aware that the
documents were not genuine. He also insisted that he risked capital
punishment if he returns to Iran.
In its decision of 30 October 1997 the Board did not find cause
to make any other assessment than the one which was presented
in the Embassy's communication. In an overall assessment of the
material presented together with what had previously emerged in
the case, the Board found that the circumstances did not confirm
that the author was in need of protection under the Aliens Act.
Furthermore, the Board did not find grounds to consider that an
enforcement of the expulsion would be contrary to humanitarian
requirements. It therefore rejected the new application.
The State party argues that in determining whether article
3 of the Convention applies in a particular case the following
are relevant: (a) the general situation of human rights in
the receiving country, although the existence of a consistent
of gross, flagrant or mass violations of human rights is not
in and of itself determinative; (b) the individual concerned
be personally at risk of being subjected to torture in the
country to which he would be returning; and (c) "substantial grounds"
in article 3 (1) means that the risk of the individual being tortured
if returned is a "foreseeable and necessary consequence".
The State party is aware that the Government of the Islamic Republic
of Iran is reported to be a major abuser of human rights. It leaves
it to the Committee to decide whether there exists at present
a consistent pattern of gross, flagrant or mass violations of
human rights in the country.
Regarding the personal risk of being subjected to torture in Iran
the State party contends that several provisions in the Aliens
Act reflect almost exactly the principle laid down in article
3 of the Convention. In applying article 3 therefore the Committee
is carrying out virtually the same test as the Swedish authorities.
In making this test it should be taken into account that a mere
possibility of torture cannot in itself be sufficient to constitute
a violation of article 3 of the Convention. The risk must be substantiated
with regard to the circumstances and the asylum-seeker's personal
conditions insofar as they can be objectively certified.
In the present case the Swedish authorities have clearly found
no substantial grounds for believing that the author would be
at risk of being subjected to torture upon his return to Iran.
The State party shares the assessment made by the Swedish authorities
in this respect and would like to point out certain circumstances
which are considered to be of special importance in this context.
Firstly, the author travelled from Iran on a valid Iranian
passport and with an exit permit. It may be seen from the author's
that he underwent the usual passport control in connection
with his departure from Tehran airport. In the light of the
knowledge of departure controls at Tehran airport, this means
that he was not of particular interest to the authorities at
time of his departure. This conclusion is further supported
by the author's earlier application for a residence permit
he had stated that he no longer worked for the "Pasdaran". It
is extremely unlikely that he would be allowed to leave Iran
if at that point he was active in the military service in the
he described. Special permission issued by the Iranian authority
concerned is required for military personnel to leave Iran.
the claim that he was active within the armed forces and therefore
under a prohibition to travel at the time of his departure
not credible. These circumstances conflict with the assertion
that the author is of particular interest to the Iranian authorities.
Finally, the communication from the Embassy of Sweden in Tehran
clearly shows that the document submitted by the author in the
form of a judgement by Iran's supreme court and a search warrant
from the prosecution authorities were manifest forgeries. This
too gives cause for doubt and undermines the author's general
credibility. Moreover, the author waited over two months before
applying for asylum which indicates that he did not regard his
situation in his home country as particularly serious. Nothing
in this matter supports the author's claim that he would be at
risk of being subjected to torture or other form of ill-treatment
upon his return to Iran.
Finally, the information which the author has provided about what
happened to him in Iran and in other respects does not demonstrate
that the risk of detention or torture is a foreseeable and necessary
consequence of his return to Iran.
The State party thus maintains that in the present case substantial
grounds do not exist for believing that the author would be in
danger of being subjected to torture. An enforcement of the expulsion
order to Iran would therefore, in the present circumstances, not
constitute a violation of article 3 of the Convention.
his comments on the State party's submission the author claims
that he never said that he was a "retired National Pasdar Guard" and that the misunderstanding may be due to a poor translation.
He insists that he is a Pasdar Guard, as the identity card
he gave to the Swedish immigration authorities attests.
the tourist visa was granted his sponsor in Sweden had explained
to the Swedish authorities that the author wanted to leave Iran
because he was a member of the Pasdar Guard and wished to convert
to Christianity. Therefore, the immigration authorities knew that
the author was coming to Sweden for permanent residence. Moreover,
the State party itself has acknowledged that the author had submitted
an application for residence and a work permit to the Swedish
Embassy in Tehran on 18 May 1995. The delay in applying for asylum,
once he was in Sweden, was due to serious illness. The police
officer in Boras who interviewed him noticed that he was seriously
author denies having said to the immigration authorities that
he had whipped, inflicted other kinds of ill-treatment on or participated
in extrajudicial executions of people and states that he left
Iran precisely because he did not want to commit criminal acts.
He claims that the misunderstanding on this issue was also due
to a poor translation.
State party states that the author submitted copies of two identity
cards to the police in Boras. The author contends, however, that
he submitted the originals, not copies, and that these cards were
undeniable evidence that he was a member of the Sepah Pasdar Guard
until he left the country. It is also undeniable that if a member
of the Pasdar Guard flees the country he will be punished with
death, even if he remains outside Iran.
author contests the State party's statement that persons converting
from Islam to Christianity are not at risk in Iran and states
that some converts have even been executed recently. He also complains
about the Swedish authorities having informed the Iranian authorities
about his application for asylum, since that would expose him
to further risk.
respect to the observation by the State party that an Iranian
citizen has to pass strict controls at Tehran airport, the author
argues that this is true only if the person has been reported
as suspicious. A Pasdar Guard may, on the contrary, enjoy certain
privileges at the airport.
respect to the documents found to be forgeries, the author argues
that he himself is not sure that these documents are authentic
but that he cannot be held responsible for authenticity of documents
he has received from Iran. He further complains about the Swedish
authorities having informed the Iranian authorities that the documents
were false and had been obtained through bribes.
a further submission the author informed the Committee that on
16 December 1998 he filed another appeal with the immigration
authorities that was also rejected.
and proceedings before the Committee
considering any claims contained in a communication, the Committee
against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as
it is required to do under article 22, paragraph 5 (a), of the
Convention, that the same matter has not been and is not being
examined under another procedure of international investigation
or settlement. The Committee is further of the opinion that all
domestic remedies have been exhausted and finds that no further
obstacles to the admissibility of the communication exist. Since
both the State party and the author's counsel have provided observations
on the merits of the communication, the Committee proceeds with
the consideration of those merits.
issue before the Committee is whether the forced return of the
author to Iran would violate the obligation of Sweden under article
3 of the Convention not to expel or to return a person to another
State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.
Committee must decide, pursuant to paragraph 1 of article 3,
whether there are substantial grounds for believing that the
be in danger of being subjected to torture upon return to Iran.
In reaching this decision, the Committee must take into account
all relevant considerations, pursuant to paragraph 2 of article
3, including the existence of a consistent pattern of gross,
or mass violations of human rights. The aim of the determination,
however, is to establish whether the individual concerned would
be personally at risk of being subjected to torture in the
to which he or she would return. The existence of a consistent
pattern of gross, flagrant or mass violations of human rights
in a country does not as such constitute a sufficient ground
determining that a particular person would be in danger of being
subjected to torture upon his return to that country; specific
grounds must exist indicating that the individual concerned
be personally at risk. Similarly, the absence of a consistent
pattern of gross violations of human rights does not mean that
a person cannot be considered to be in danger of being subjected
to torture in his or her specific circumstances.
the case under consideration the Committee notes the statement
of the National Immigration Board that the author was not entitled
to asylum in accordance with the Convention relating to the Status
of Refugees in view of the fact that he had admitted having committed
the kind of crimes referred to in article 1 F of the said Convention.
The Committee recalls, however, that unlike the provisions of
the above Convention, article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
applies irrespective of whether the individual concerned has committed
crimes and the seriousness of those crimes. On the other hand,
the legal status of the individual concerned in the country where
he/she is allowed to stay is not relevant for the Committee.
Committee further notes the State party's argument that "substantial
grounds" in article 3, paragraph 1, of the Convention means that
the risk of the individual being tortured if returned is a "foreseeable
and necessary consequence". In this respect the Committee recalls
its previous jurisprudence / Communication No. 101/1997 (CAT/C/21/D/101/1997),
Views adopted on 20 November 1998./ that the requirement of necessity
and predictability should be interpreted in the light of its general
comment on the implementation of article 3 which reads: "Bearing
in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that
the author would be in danger of being subjected to torture were
he/she to be expelled, returned or extradited, the risk of torture
must be assessed on grounds that go beyond mere theory or suspicion.
However, the risk does not have to meet the test of being highly
probable" (A/53/44, annex IX, para. 6).
the present case the Committee notes that the author has provided
it with an account of his activities in Iran which differs
many respects from the one he provided to the Swedish authorities.
In the Committee's view, the important disparities cannot fully
be explained by "poor translations", as suggested by the author,
and raise doubts about his credibility. The author's credibility
is further undermined by the fact that he provided the Swedish
authorities with copies of an arrest warrant issued by a prosecutor
and a judgement drawn up by the supreme military tribunal of
which turned out to be forgeries. In these circumstances the
Committee finds that the author has not substantiated his claims
is at risk of being tortured if he returns to Iran.
Committee further notes that the author has also failed to substantiate
his claim that deserters from the Pasdaran who leave the country,
as well as converts to Christianity, in general face a risk of
being subjected to torture, especially if, in the case of the
latter, they are not prominent members of the Christian community.
Committee notes with concern the numerous reports of human rights
violations, including the use of torture, in Iran, but recalls
that for the purposes of article 3 of the Convention, the individual
concerned must face a foreseeable, real and personal risk of being
tortured in the country to which he is returned. In the light
of the foregoing, the Committee deems that such a risk has not
the basis of the above considerations the Committee considers
that the information before it does not show substantial grounds
for believing that the author runs a personal risk of being tortured
if he is sent back to Iran.
Committee against Torture, acting under article 22, paragraph
7, of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, concludes that the decision
of the State party to return the author to Iran does not constitute
a breach of article 3 of the Convention.
adopted in English (original version) and translated into French,
Russian and Spanish.]