Submitted
by: Seid Mortesa Aemei (represented
by counsel)
Alleged
victims: The author and his family
State
party: Switzerland
Date
of communication: 26 October 1995
The
Committee against Torture, established in conformity with
article 17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
Meeting
on 9 May 1997,
Having
completed consideration of communication No. 34/1995 submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Having
taken account of all the information communicated to it
by the author of the communication, his counsel and the State
party,
Adopts
the following:
Views under article 22, paragraph 7, of the Convention
1.
The author of the communication is Seid Mortesa Aemei, an
Iranian citizen, born on 1 February 1957, currently residing
in Switzerland, where he seeks asylum. He claims that his
return to Iran after dismissal of his refugee claim would
constitute a violation of article 3 of the Convention by Switzerland.
He submits the communication also on behalf of his wife. He
is represented by counsel.
The
facts as submitted
2.1
The author became a People's Mojahedin activist in Iran in
1979. On 20 June 1981, after he had participated in a demonstration
by the Mojahedin, he was arrested and kept in detention for
25 days. Thereafter, he had to abandon his university studies.
In 1982, he threw a Molotov cocktail into the house of a senior
officer of the Revolutionary Committee.
2.2
On 4 April 1983, the author was again arrested and his house
was searched. He claims that he was ill-treated during the
interrogations and, in particular, that he was caned after
having his feet and head submerged in ice, that the next day
the police officers extinguished cigarettes on his body while
he was dressed only in underclothes, that he still bears the
scars from those burns, and that his wife was only allowed
to visit him after six months. Subsequently, he was convicted
for his political activities and for stealing the licence
plate of a car and sentenced to two years' imprisonment.
2.3
Seven months after his release, the author's brother-in-law
fled the country, and the author was detained for three
hours
and questioned about the whereabouts of his brother-in-law.
The author then moved to Teheran, but returned to his
home
town after three years. In February or March 1989, he
was recognized by a client of his father's firm as the
person
who had thrown the Molotov cocktail seven years earlier.
In
panic, he fled to Teheran. He claims that his parents
were visited regularly by the police and questioned about
his whereabouts.
After a year, he decided to leave the country, also because
his son, who was born on 23 January 1984, had reached
school
age and he was afraid that his son's enrolment in school
would lead to the police discovering his whereabouts. With a false
passport he fled the country, together with his wife
and their two children, and applied for asylum in Switzerland
on 2 May
1990.
2.4
On 27 August 1992, his application was refused by the Federal
Office for Refugees, which considered his story not credible
and full of inconsistencies. It also considered that the author's
wife was not aware of any political activities on the part
of her husband. The Appeal Commission rejected his appeal
on 26 January 1993, considering that the author's claim and
story were illogical and revealed no practical experience
in illegal political activities and were moreover full of
contradictions.
2.5
On 26 April 1993, the author, represented by the Beratungsstelle
für Asylsuchende der Region Basel, filed a request
for reconsideration,
based on his activities in Switzerland for the Armenian
and Persian Aid Organization (APHO), which, according
to the author,
is considered an illegal organization in Iran. The author
refers in this connection to three attempts to murder
the
leader of the APHO in Zurich and claims that these attempts
prove that APHO members are being persecuted by Iran.
The
author stated that he had distributed leaflets and helped
run various APHO stands, notably at a demonstration
in Bern.
In support of his statements he presented an APHO membership
card and stand permits issued in his name, and photos
showing
his activities. He also said that incidents involving representatives
of the Government of Iran had occurred in May 1991 (when
a friend of the brother of the President of the Iranian
Council
of Ministers threatened APHO members with a pistol) and
in June 1992 (when the Iranian consul visited the APHO
stand
and attempted to identify the participants). The author
stated that he had reported the incident to the police
the same day,
in his capacity as the person in charge of the stand.
In his request for review he alleged that his activity
within
the
APHO would render him liable to treatment contrary to
article 3 of the Convention if he returned to Iran.
2.6
By a decision of 5 May 1993, the Federal Office for Refugees
refused to consider his request for review. The Appeals Commission
also declared his application to be ill-founded by a decision
of 10 August 1994. The author states that he has since been
contacted by the police for the purpose of the preparation
of his departure from Switzerland.
Substance
of the complaint
3.
The author is afraid that he will be questioned about his
political activities when he returns to Iran. He adds that
torture during interrogations is common in Iran. Furthermore,
he is afraid that he will be charged with the Molotov cocktail
attack of 1982 and that he will consequently be sentenced
to a long term of imprisonment or even death. He adds that
the mere act of requesting asylum in another country is considered
an offence in Iran.
Procedural
questions
4.1
On 22 November 1995, the Committee transmitted the communication
to the State party for its observations.
4.2
In its observations of 22 January 1996, the State party
contests the admissibility of the communication, stating
that since
the author had not, in the course of the ordinary asylum
procedure before the national bodies, mentioned his
fear that his political
activities in Switzerland would render him liable to
torture if he returned to Iran, he had not exhausted
domestic
remedies.
The State party explains that this point should have
been made during the procedure to establish the right
of asylum.
Since the point was not mentioned until the request
for review,
the authorities were not able to consider it, as the
author's activities within the APHO did not constitute
a new development
in the light of the criteria established by the jurisprudence of the Federal Court.
4.3
In its observations, the State party nevertheless submits "that is a subjective ground under article 8 (a) of the Asylum
Act, which in this connection provides that 'asylum shall
not be granted to a foreigner when ... only his conduct following
his departure would justify his being considered a refugee
within the meaning of article 3'. According to case law and
doctrine, the concept of 'subjective grounds occurring after
flight from the country' covers situations in which the threat
of persecution could not have been the cause of the departure
of the asylum-seeker but results from his subsequent conduct.
Although such grounds are not relevant to the granting of
asylum under the exclusion clause of the above-mentioned article
8 (a), an applicant who invokes subjective grounds may nevertheless
remain in Switzerland, by virtue of the non-return principle,
if the conditions of article 45 of the Asylum Act are
met. The allegation of 'subjective grounds', like the
grounds
which
prompted the applicant to leave his country, must nevertheless
satisfy the requirements of asylum procedure, among which
are those relating to the obligation to cooperate. In
accordance with article 12 (b) of the Asylum Act, the
applicant is
required
to cooperate in the verification of the facts; to this
end, he has in particular to explain, at his hearing,
his grounds
for asylum and the reasons which prompted him to request
asylum."
4.4
The State party also contests Mrs. Aemei's status as author
of the communication.
4.5
In a letter of 1 March 1996, the author's counsel refutes
the State party's argument contesting Mrs. Aemei's
status as author of the communication on the grounds
that she
has
not claimed any ground for asylum peculiar to herself.
Counsel further states that if Mrs. Aemei were to be
sent back to
Iran, she would be liable to the same risks as her husband,
or even greater risks, and that the State party itself
has
acknowledged that the applicant's subsequent conduct
in Switzerland does not constitute a ground for asylum
under
Swiss legislation.
He also maintains that the applicant had no reason to
mention his political activities in Switzerland during
the asylum
procedures and had always been questioned about his
past and
about facts which could have supported his application for
asylum.
4.6
Counsel points out that in any case the non-return obligation
is an absolute obligation. Although the argument of
the author's
political activities in Switzerland was submitted late
and hence, for procedural reasons, could not be taken
into account
in relation to the asylum decision, counsel is of the
opinion that the rejection of the asylum application
does not
mean
that the person can now be sent back to his country.
He points out that Swiss legislation offers alternatives
such as the
possibility of a residence permit for humanitarian reasons
(Asylum Act, art. 17, para. 2) or temporary admission
(Asylum
Act, art. 18, para. 1). Counsel also draws attention
to
the fact that physical integrity must not be endangered
for procedural
reasons. The risk that an asylum-seeker will misuse the procedure
should not be overestimated, especially as few asylum-seekers
can point to events as serious as those referred to by
the
authors in the case at hand.
4.7
After considering the observations of the parties, the Committee
decided, at its sixteenth session, to suspend consideration
of the communication pending the result of the author's requests
for reconsideration in the light of his political activities
in Switzerland. The Committee also requests information from
the State party on domestic remedies and asked the applicant
to provide additional information concerning his asylum applications
in Switzerland on the basis of his political activities in
Switzerland. The Committee also asked the State party not
to expel the author and his family while their communication
is under consideration.
Further
observations by counsel
5.1
In a letter of 5 August 1996, counsel explains that the
author did not mention his activities within the APHO
in the course
of the ordinary procedure for obtaining refugee status,
which led to the decision of the Swiss Appeal Commission
of 26 January
1993, because he had not been aware that those activities
would be a determining factor. The situation changed
after
the decision, when he learned that he would have to return
to Iran. At that point, he realized that because of
his political
activities in Iran before 1990 and, in particular, because
of his political activities in Switzerland since 1990,
he
and his wife ran a very great risk of being subjected
to acts contrary to article 3 of the Convention if they
returned to
Iran. Counsel repeats that since 1990 the author has been
active in the APHO, which is considered an illegal and
dissident organization in Iran and whose activities in
Switzerland are
monitored by the Iranian secret police. The author distributed
leaflets attacking the regime in Iran, and in May 1991
he
was seen and threatened by the brother of the President
of the Iranian Council of Ministers. In June 1992, the
Iranian
consul visited the APHO stand in Bern and attempted to
identify the people participating in APHO activities.
Counsel concludes
that the author's identity is very probably known to
the Iranian authorities.
5.2
Counsel adds that on 13 May 1996 the author filed an application
for temporary authorization because of his son's medical problems.
State
party's observations on the admissibility and validity of
the
communication
6.1
In its observations of 7 August 1996, the State party informs
the Committee that it no longer contests the admissibility
of the communication.
6.2
The State party summarizes the "facts alleged by the author"
and the domestic procedures under way. As regards the points
raised by the Swiss authorities, it observes that, "under
article 12 (a) of the Asylum Act, an asylum-seeker must prove
- or at least make out a good case - that he is a refugee
within the meaning of article 3 of the Asylum Act, i.e. that
he would be likely to suffer serious harm or that he has good
reason to fear that he would suffer such harm, in particular
because of his political opinions", and concludes that "from
that standpoint, articles 3 and 12 (a) of the Asylum
Act, as interpreted by the Appeal Commission, establish
criteria
similar to those of article 3 of the Convention, namely,
the
existence of serious, concrete and personal danger of
persecution (art. 3, para. 1; cf. B. Mutombo v. Switzerland, ...),
in the determination of which all relevant considerations
must be taken into account (art. 3, para. 2), including,
in
particular, the likelihood that the author's statements
are true (Asylum Act, art. 12 (a)) and, where appropriate,
the
existence of a consistent pattern of gross, flagrant
or mass violations of human rights (art. 3, para. 2)".
6.3
The State party also declares that "in the present case, the
Appeal Commission confirmed the decision to reject asylum
on the basis of the author's statements. It considered
that
the grounds invoked did not make it possible to conclude
that refugee status was highly probable in the author's
case. The
Appeal Commission took the following points into account
in making its decision:
The author's
statements about his political activity were not sufficiently
substantiated, since his knowledge of the political programme
of the organization in which he claims to have been active
was very sketchy in essential respects;
The
circumstances in which the author claims to have resumed
working with the organization are at variance with what
is known about the practice of movements hostile to an
established political regime. The author's explanations
regarding his alleged conviction following his political
activity were also considered to be at variance with the
facts;
Finally,
the author's wife was unable to corroborate
his statements
at the hearing before the Federal Office
for Refugees."
The
State party concludes that Swiss legislation essentially uses
the same conditions for prohibiting return as those laid down
in article 3 of the Convention.
6.4
The State party refers to the text of article 3 of the Convention
and the Committee's practice of considering whether there
are specific grounds for believing that the individual would
be in personal danger of being subjected to acts of
torture in the country to which he would be returned. The
existence of a consistent pattern of gross, flagrant or mass
violations of human rights does not in itself constitute a
sufficient ground for concluding that a person would be in
danger of being subjected to torture on his return to that
country.
6.5
The State party observes that "in the present case, the author's
statements concerning his political activity with the People's
Mojahedin did not appear to be sufficiently substantiated
in the opinion of the competent Swiss authorities". It maintains
that, "in view of the inconsistency of the author's statements,
they were not sufficiently plausible to cause the Swiss authorities
to consider that refugee status was highly probable in the
case of the author of the communication. The allegation of
a risk of inhuman treatment if the author were to return to
Iran, which is based principally, if not exclusively, on the
consequences of his political activity cannot seriously be
taken into account when it has never been established that
he engaged in the political activities in question, or even
that he was a member of a party that opposed the existing
political regime". The State party further submits "that the
author of the present communication has produced no document
with evidentiary value, either in the course of the domestic
proceedings or before the Committee against Torture, relating
to his political activities for the Mojahedin, or any medical
certificate attesting to his having been subjected to treatment
prohibited by the Convention". In the opinion of the State
party, "at this stage already, the author's communication
appears to be manifestly ill-founded as regards the existence
of a personal, serious and concrete danger of treatment contrary
to article 3 of the Convention, to which the author claims
he would be exposed if he were sent back to his country".
6.6
The Swiss authorities further consider that some of the
author's statements do not correspond to the facts
and, because they
show a lack of familiarity with established practice
with regard to illegal political activities, describe
them
as "totally
unrealistic". In particular, the author's statement that he
was sentenced to only two years' imprisonment because
of the judge's respect for his origins contradicts information
gathered
by the Swiss authorities in the course of asylum proceedings
concerning Mojahedin.
6.7
Finally, the State party notes that the author's wife did
not corroborate his statements about his political activities.
The State party therefore concludes that the author's fear
appears to be manifestly ill-founded.
6.8
With regard to the author's activities in Switzerland,
the State party is not able to confirm the author's
allegation that his identity is very probably known to
the Iranian
authorities
because of the events that occurred in May 1991 and June
1992. In particular, the Bern police are not aware
of the participation
of the brother of President Rafsanjani in the May 1991
incident. As regards the Iranian consul's visit to
the APHO stand, the
Swiss Government has stated that, "a member of the city of
Bern police force recalls that there was a skirmish between
Iranians in June 1992, but does not know whether it involved
members of the Iranian consulate and APHO activists, because
the incident was already over by the time the police arrived,
when only APHO members were present. In the light of this
information, the Swiss Government considers it at least doubtful
whether the events in question occurred so they cannot automatically
be considered to constitute a decisive ground in respect of
article 3 of the Convention".
6.9
As to the author's allegation that the filing of an application
for asylum is in itself a relevant ground within the
meaning
of article 3, paragraph 1, of the Convention, the State
party observes that the author adduces no evidence
in support of
this argument. The State party further notes, "such an argument
cannot be sufficient in respect of article 3, paragraph 1,
of the Convention since the prohibition laid down in this
provision is dependent on the proven existence of substantial
grounds for persecution". The State party maintains that it
has no information to substantiate the specific danger
of persecution as a result of filing an application for
asylum
in Switzerland.
6.10
The State party considers that the author's statements
do not enable the conclusion to be drawn that there
are substantial
and proven grounds for believing that he would be in
danger of being tortured if he returned to Iran. Finally,
it
observes
that "the European Commission of Human Rights has deemed that
the general situation in Iran was not characterized by mass
violations of human rights [application No. 21649/93, DR,
75/282]" and that, "the author himself does not claim that
there is a consistent pattern of human rights violations in
Iran".
Counsel's
comments on the State party's observations
7.1
In a letter of 30 October 1996, counsel reiterates the
points made in his initial communication. As regards
the State party's
argument that the author's statements about his political
activity within the People's Mojahedin did not appear
to be
sufficiently substantiated, counsel submits that it is
normal for a sympathizer not to be as well informed
about an organization
as one of its members. He explains that the author was
motivated by hostility towards the regime rather than
the Mojahedin's
political ideas. Counsel notes that the author is not
in a position to produce documents in support of his
allegations
concerning the events that took place in Iran, and
states that after his release the author was no longer
active
within
the Mojahedin.
7.2
Counsel acknowledges that the security measures taken by the
author's group in Iran were not sufficient, but rejects the
conclusion that the author's statements are unrealistic. He
also maintains that merely distributing leaflets can lead
to life imprisonment and explains that the fact that the author
was only sentenced to two years' imprisonment in April 1983
was due, inter alia, to the author's origin as a descendant
of Muhammad. Concerning the alleged contradictions, counsel
affirms that the author's statements are not contradictory
on essential points, and that the discrepancies with the information
provided by his wife are not relevant. Mrs. Aemei has lived
in great fear for years, which would explain the fact that
she wanted to know as little as possible about her husband's
political activities. In any case, she first heard about them
in April 1983.
7.3
Counsel is of the opinion that the author's statements about
his political activities are true, which is also proved by
the fact that the Swiss Government admits in its observations
that there was an APHO stand in June 1992 and that a skirmish
between Iranians did indeed take place. He further submits
that the Swiss authorities' refusal to consider the author's
request for reconsideration, based on his activities in the
APHO, is a serious procedural error and contrary to the author's
right to have his fear of being tortured considered by the
competent authorities.
7.4
Counsel reiterates the fact, already mentioned by the author
in his appeal of 24 September 1992, that the mere act of requesting
asylum can constitute a relevant ground within the meaning
of article 3, paragraph 1, of the Convention against Torture,
and refers in this connection to documentation of the Schweizerisches
Flüchtlingswerk.
Decision
concerning admissibility and examination of the merits:
8.
The Committee notes with appreciation the information given
by the
State
party that the author and his family will not be expelled
while the communication is under consideration by the Committee
(rules of procedure, art. 108, para. 9).
9.1
Before considering any claim 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 international
investigation or settlement procedure. The Committee notes
that the State party has not raised any objection to the admissibility
of the communication (see State party's observations dated
7 August 1996). The Committee therefore finds that no obstacle
to the admissibility of the communication exists and proceeds
with the examination of the merits of the communication.
9.2
The Committee reiterates that it is by no means its responsibility
to determine whether the author's rights as recognized by
the Convention have been violated by Iran, the country
to which he risks being expelled, regardless of whether or
not this State is a party to the Convention. The question
before the Committee is whether expulsion, return or extradition
to the latter country would violate Switzerland's obligation,
under article 3 of the Convention, not to expel or return
an individual to a State where there are substantial grounds
for believing that he would be in danger of being subjected
to torture.
9.3
In accordance with article 3, paragraph 1, of the Convention,
the Committee has to determine whether there are substantial
grounds for believing that Mr. Aemei and the members of his
family would be in danger of being subjected to torture if
they returned to Iran. In order to do this, the Committee
must, in accordance with article 3, paragraph 2, take into
account all relevant considerations, including the existence
of a consistent pattern of gross, flagrant or mass violations
of human rights. In other words, the existence of a consistent
pattern of violations of human rights within the meaning of
article 3, paragraph 2, lends force to the Committee's belief
that substantial grounds exist within the meaning of paragraph
1.
9.4
However, the Committee has to determine whether the person
concerned would be personally at risk of being subjected
to torture in the country to which he would be expelled. Consequently,
the existence of a consistent pattern of gross, flagrant or
mass violations of human rights in a particular country does
not in itself constitute a sufficient ground for concluding
that a particular person would be in danger of being subjected
to torture after returning to his country; additional grounds
must exist in order to conclude that the person concerned
is personally at risk. Similarly, the absence of a consistent
pattern of flagrant violations of human rights does not mean
that a person cannot be considered to be at risk of being
subjected to torture in his specific circumstances.
9.5
In the present case, therefore, the Committee has to determine
whether the expulsion of Mr. Aemei (and his family) to Iran
would have the foreseeable consequence of exposing
him to a real and personal risk of being arrested and
tortured. It observes that the "substantial grounds" for believing
that return or expulsion would expose the applicant to
the risk of being subjected to torture may be based not
only on
acts committed in the country of origin, in other words before
his flight from the country, but also on activities undertaken
by him in the receiving country: in fact, the wording of article
3 does not distinguish between the commission of acts, which
might later expose the applicant to the risk of torture, in
the country of origin or in the receiving country. In
other words, even if the activities of which the author is
accused in Iran were insufficient for article 3 to apply,
his subsequent activities in the receiving country could prove
sufficient for application of that article.
9.6
The Committee certainly does not take lightly concern on the
part of the State party that article 3 of the Convention might
be improperly invoked by asylum seekers. However, the Committee
is of the opinion that, even though there may be some remaining
doubt as to the veracity of the facts adduced by the author
of a communication, it must ensure that his security is not
endangered.(1) In order to do this, it is not necessary
that all the facts invoked by the author should be proved;
it is sufficient that the Committee should consider them
to be sufficiently substantiated and reliable.
9.7
In the case of the author of the present communication,
the Committee considers that his membership of the
People's Mojahedin
organization, his participation in the activities of
that organization and his record of detention in 1981
and
1983
must be taken into consideration in order to determine
whether he would be in danger of being subjected to
torture if he
returned to his country. The State party has pointed
to inconsistencies and contradictions in the author's
statements,
which in its
opinion cast doubt on the veracity of his allegations.
The Committee considers that although there may indeed
be some
doubt about the nature of the author's political activities
in his country of origin, there can be no doubt about
the
nature of the activities he engaged in in Switzerland for
the APHO, which is considered an illegal organization
in Iran. The State party confirms these activities by
the
author and
does not deny that skirmishes occurred between APHO representatives
and other Iranian nationals in Bern in June 1992. The
State party does not say whether it investigated these
skirmishes,
but the material submitted to the Committee gives the
impression that no such investigation took place. In
the circumstances,
the Committee must take seriously the author's statement
that
individuals close to the Iranian authorities threatened
the APHO members and the author himself on two occasions,
in May
1991 and June 1992. The State party simply noted that
Mr. Aemei's activities within the APHO did not constitute a new
development vis-à-vis the criteria established by the
case law of the Federal Tribunal and that consequently
the competent
authorities could not take up the matter of the author's
application
for reconsideration.
9.8
The Committee is not convinced by the State party's explanations
insofar as they refer to Mr. Aemei's activities in Switzerland.
It would recall that the protection accorded by article 3
of the Convention is absolute. Whenever there are substantial
grounds for believing that a particular person would be in
danger of being subjected to torture if he was expelled to
another State, the State party is required not to return that
person to that State. The nature of the activities in which
the person engaged is not a relevant consideration in the
taking of a decision in accordance with article 3 of the Convention.(2)
In the present case, the refusal of the competent Swiss authorities
to take up the author's request for review, based on reasoning
of a procedural nature, does not appear justified in the light
of article 3 of the Convention.
9.9
Lastly, the Committee is aware of the serious human rights
situation in Iran, as reported inter alia to the United
Nations Commission on Human Rights by the Commission's Special
Representative on the situation of human rights in the Islamic
Republic of Iran. The Committee notes, in particular, the
concern expressed by the Commission, especially about the
large number of cases of cruel, inhuman or degrading treatment
or punishment.
9.10
In the light of the content of the preceding paragraphs, the
Committee considers that substantial grounds exist for believing
that the author and his family would be in danger of being
subjected to torture if they were sent back to Iran.
10.
Taking account of the above, the Committee is of the view
that, in the present circumstances, the State party has an
obligation to refrain from forcibly returning the author and
his family to Iran, or to any other country where they would
run a real risk of being expelled or returned to Iran.
11.
The Committee's finding of a violation of article 3 of the
Convention in no way affects the decision(s) of the competent
national authorities concerning the granting or refusal of
asylum. The finding of a violation of article 3 has a declaratory
character. Consequently, the State party is not required
to modify its decision(s) concerning the granting of asylum;
on the other hand, it does have a responsibility to find solutions
that will enable it to take all necessary measures to comply
with the provisions of article 3 of the Convention. These
solutions may be of a legal nature (e.g. decision to admit
the applicant temporarily), but also of a political nature
(e.g. action to find a third State willing to admit the applicant
to its territory and undertaking not to return or expel him
in its turn).
[Text
adopted in French (original version) and translated into English,
Spanish and Russian]
Notes
1.
See views on Communication No. 13/1993 (Mutombo v. Switzerland),
paragraph 9.2, adopted on 27 April 1994.
2. See views in communication No. 39/1996 (Tapia Paez v.
Sweden), paragraph 14.5, adopted on 28 April 1997.