by: A. S. (name withheld) (represented by counsel]
victim: The author
communication: 6 November 1999
against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
on 24 November 2000,
concluded its consideration of communication No. 149/1999, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
taken into account all information made available to it by the
author of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
author of the communication is A. S., an Iranian citizen currently
residing with her son in Sweden, where she is seeking refugee status.
The author and her son arrived in Sweden on 23 December 1997 and applied
for asylum on 29 December 1997. Ms. S. claims that she would risk
torture and execution upon return to the Islamic Republic of Iran
and that her forced return to that country would therefore constitute
a violation by Sweden of article 3 of the Convention. The author is
represented by counsel.
1.2. In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
communication No. 149/1999 to the State party on 12 November 1999.
Pursuant to rule 108, paragraph 9, of the Committee's rules of procedure,
the State party was requested not to expel the author to Iran pending
the consideration of her case by the Committee. In a submission dated
12 January 2000 the State party informed the Committee that the author
would not be expelled to her country of origin while her communication
was under consideration by the Committee.
facts as presented by the author
author submits that she has never been politically active in Iran.
In 1981, her husband, who was a high-ranking officer in the Iranian
Air Force, was killed during training in circumstances that remain
unclear; it has never been possible to determine whether his death
was an accident. According to the author, she and her husband belonged
to secular-minded families opposed to the regime of the mullahs.
2.2. In 1991,
the Government of the Islamic Republic of Iran declared the author's
late husband a martyr. The author states that martyrdom is an issue
of utmost importance for the Shia Muslims in Iran. All families of
martyrs are supported and supervised by a foundation, the Bonyad-e
Shahid, the Committee of Martyrs, which constitutes a powerful
authority in Iranian society. Thus, while the author and her two sons'
material living conditions and status rose considerably, she had to
submit to the rigid rules of Islamic society even more conscientiously
than before. One of the aims of Bonyad-e Shahid was to convince
the martyrs' widows to remarry, which the author refused to do.
2.3. At the
end of 1996 one of the leaders of the Bonyad-e Shahid, the
high-ranking Ayatollah Rahimian, finally forced the author to marry
him by threatening to harm her and her children, the younger of whom
is handicapped. The Ayatollah was a powerful man with the law on his
side. The author claims that she was forced into a so-called sighe
or mutah marriage, which is a short-term marriage, in the present
case stipulated for a period of one and a half years, and is recognized
legally only by Shia Muslims. The author was not expected to live
with her sighe husband, but to be at his disposal for sexual
services whenever required.
2.4. In 1997,
the author met and fell in love with a Christian man. The two met
in secret, since Muslim women are not allowed to have relationships
with Christians. One night, when the author could not find a taxi,
the man drove her home in his car. At a roadblock they were stopped
by the Pasdaran (Iranian Revolutionary Guards), who searched the car.
When it became clear that the man was Christian and the author a martyr's
widow, both were taken into custody at Ozghol police station in the
Lavison district of Tehran. According to the author, she has not seen
the man since, but claims that since her arrival in Sweden she has
learned that he confessed under torture to adultery and was imprisoned
and sentenced to death by stoning.
author says that she was harshly questioned by the Zeinab sisters,
the female equivalents of the Pasdaran who investigate women suspected
of "un-Islamic behaviour", and was informed that her case had been
transmitted to the Revolutionary Court. When it was discovered that
the author was not only a martyr's widow but also the sighe
wife of a powerful ayatollah, the Pasdaran contacted him. The author
was taken to the ayatollah's home where she was severely beaten by
him for five or six hours. After two days the author was allowed to
leave and the ayatollah used his influence to stop the case being
sent to the Revolutionary Court.
author states that prior to these events she had, after certain difficulties
obtained a visa to visit her sister-in-law in Sweden. The trip was
to take place the day after she left the home of the ayatollah. According
to the information submitted, the author had planned to continue from
Sweden to Canada where she and her lover hoped to be able to emigrate
since he had family there, including a son. She left Iran with her
younger son on a valid passport and the visa previously obtained,
author and her son arrived in Sweden on 23 December 1997 and applied
for asylum on 29 December 1997. The Swedish Immigration Board rejected
the author's asylum claim on 13 July 1998. On 29 October 1999, the
Aliens Appeal Board dismissed her appeal.
author submits that since her departure from Iran she has been sentenced
to death by stoning for adultery. Her sister-in-law in Sweden has
been contacted by the ayatollah who told her that the author had been
convicted. She was also told that the authorities had found films
and photographs of the couple in the Christian man's apartment, which
had been used as evidence.
author draws the attention of the Committee to a report from the Swedish
Embassy in Iran which states that chapter I of the Iranian hudud
law "deals with adultery, including whoring, and incest, satisfactory
evidence of which is a confession repeated four times or testimony
by four righteous men with the alternative of three men and two women,
all of whom must be eyewitnesses. Capital punishment follows in cases
of incest and other specified cases, e.g. when the adulterer is a
non-Muslim and the abused a Muslim woman. Stoning is called for when
the adulterer is married". The report further underlines that even
if these strict rules of evidence are not met, the author can still
be sentenced to death under the criminal law, where the rules of evidence
are more flexible.
author further draws the attention of the Committee to documentation
submitted to the Swedish immigration authorities to support her claim,
including a certificate testifying to her status as the wife of a
martyr. She also includes a medical certificate from Kungälvs Psychiatric
Hospital indicating that she suffers from anxiety, insomnia, suicidal
thoughts and a strong fear for her personal safety if she were returned
to Iran. The certificate states that the author has symptoms of post-traumatic
stress syndrome combined with clinical depression.
author claims that there exist substantial grounds to believe that
she would be subjected to torture if she were returned to Iran. Her
forced return would therefore constitute a violation by Sweden of
article 3 of the Convention. Furthermore, the author submits that
there is a consistent pattern of gross human rights violations in
Iran, circumstances that should be taken into account when deciding
State party's observations on admissibility and merits
4.1. In its
submission of 24 January 2000, the State party submits that it is
not aware of the present matter having been or being the object of
any other procedure of international investigation or settlement.
As to the admissibility of the communication, the State party further
explains that according to the Swedish Aliens Act, the author may
at any time lodge a new application for a residence permit with the
Aliens Appeal Board, based on new factual circumstances which have
not previously been examined. Finally, the State party contends that
the communication is inadmissible as incompatible with the provisions
of the Convention, and lacking the necessary substantiation.
4.2. As to
the merits of the communication, the State party explains that when
determining whether article 3 of the Convention applies, the following
considerations are relevant; (a) the general situation of human rights
in the receiving country, although the existence of a consistent pattern
of gross, flagrant or mass violations of human rights is not in itself
determinative; and (b) the personal risk of the individual concerned
of being subjected to torture in the country to which he/she would
State party is aware of human rights violations taking place in Iran,
including extrajudicial and summary executions, disappearances, as
well as widespread use of torture and other degrading treatment.
4.4. As regards
its assessment of whether or not the author would be personally at
risk of being subjected to torture if returned to Iran, the State
party draws the attention of the Committee to the fact that several
of the provisions of the Swedish Aliens Act reflect the same principle
as the one laid down in article 3, paragraph 1 of the Convention.
The State party recalls the jurisprudence of the Committee according
to which, for the purposes of article 3, the individual concerned
must face a foreseeable, real and personal risk of being tortured
in the country to which he or she is returned. The State party further
refers to the Committee's general comment on the implementation of
article 3 of the Convention which states that the risk of torture
must be assessed on grounds that go beyond mere theory or suspicion,
although the risk does not have to meet the test of being highly probable.
State party recalls that the author of the present communication has
not belonged to any political organization and has not been politically
active in her home country. The author asserts that she has been sentenced
to stoning by a Revolutionary Court in Iran, a judgement which she
maintains would be enforced if she were to be sent back there. The
State party states that it relies on the evaluation of the facts and
evidence and the assessment of the author's credibility made by the
Swedish Immigration Board and the Aliens Appeal Board upon their examination
of the author's claim.
4.6. In its
decision of 13 July 1998, the Swedish Immigration Board noted that
apart from giving the names of her sighe husband and her Christian
friend, the author had in several respects failed to submit verifiable
information such as telephone numbers, addresses and names of her
Christian friend's family members. The Immigration Board found it
unlikely that the author claimed to have no knowledge of her Christian
friend's exact home address and noted in this context that the author
did not even want to submit her own home address in Iran.
Immigration Board further noted that the author during the initial
inquiry had stated that a Pasdaran friend had given her photographs
of people in the Evin prison who had been tortured, which she had
requested "out of curiosity" and which she gave to her Christian friend
although she "didn't know" what he wanted them for. The Immigration
Board judged that the information provided by the author in relation
to this incident lacked credibility and seemed tailored so as not
to reveal verifiable details.
the Immigration Board questioned the credibility of the author's account
of her marriage to the ayatollah, her relationship with the Christian
man and the problems that had emerged as a result of it.
4.9. In its
decision of 29 October 1999, the Aliens Appeal Board agreed with the
assessment of the Immigration Board. The Board further referred to
the travaux préparatoires of the 1989 Aliens Act which state
that the assessment of an asylum-seeker's claim should be based on
the applicant's statements if his/her assertions of persecution seem
plausible and the actual facts cannot be elucidated. The Board noted
that the author had chosen to base her application for asylum on her
own statements only and that she had not submitted any written evidence
in support of her claim, despite the fact that she had been told of
the importance of doing so.
addition to the decisions of the Immigration Board and the Aliens
Appeal Board, the State party refers to the UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status, according to which "the
applicant should: (i) (t)ell the truth and assist the examiner to
the full in establishing the facts of his case, [and] (ii) (m)ake
an effort to support his statements by any available evidence and
give a satisfactory explanation for any lack of evidence. If necessary
he must make an effort to procure additional evidence". According
to the UNHCR Handbook, the applicant should be given the benefit of
the doubt, but only when all available evidence has been obtained
and checked and when the examiner is satisfied as to the applicant's
the present case, the State party first reminds the Committee that
the author has refused to provide verifiable information and that
her reasons for doing so, i.e. that she was forbidden by her friend
to do so and that new tenants are now occupying her apartment in Tehran,
are not plausible.
the State party maintains that it seems unlikely that the author,
solely out of curiosity, would want to have photographs of tortured
people in her possession. It seems even more unlikely that she would
hand over such photographs to someone she had known only for a few
months. Further, the State party notes that although the author claims
that the authorities in Iran are in possession of a film showing her
last meeting with her friend, no additional information has been provided
by the author on this issue.
4.13. A third
reason for doubting the author's credibility is that the author has
not submitted any judgement or other evidence to support her claim
that she has been sentenced for adultery by a Revolutionary Court.
In addition, the author has not given any explanation as to why her
sister-in-law was not able to obtain a copy of the Revolutionary Court's
judgement when she visited Iran. Further, the State party notes that
according to information available to it, the Revolutionary Courts
in Iran have jurisdiction over political and religious crimes, but
not over crimes such as adultery. Hudud crimes, i.e. crimes
against God, including adultery, are dealt with by ordinary courts.
State party further draws to the attention of the Committee that the
author left Tehran without any problems only a few days after the
incident which allegedly led to her detention, which would indicate
that she was of no interest to the Iranian authorities at the moment
of her departure. In addition, the author has claimed that she handed
over her passport to her brother-in-law upon arrival in Sweden. However,
the State party notes that her passport number is indicated on her
asylum application which she submitted six days later. The explanation
for this given by the author's counsel during the national asylum
procedure, i.e. that the number might have been available from an
earlier visit in Sweden by the author in 1996, is unlikely. There
is nothing in the author's file that indicates that documents concerning
her earlier visit to Sweden were available during the asylum application
State party also draws the Committee's attention to the fact that
the author has not cited any medical report in support of her statement
that she was severely beaten by Ayatollah Rahimian only a few days
before her arrival in Sweden. In addition, according to information
received by the State party, the head of the Bonyad-e Shahid
was, until April 1999, Hojatolleslam Mohammad Rahimian, but he does
not hold the title of ayatollah.
the State party adds that when the author's sister-in-law applied
for asylum in Sweden in 1987, she stated that her brother, the author's
late husband, had died in a flying accident in 1981 caused by a technical
fault. Ten years later, the author's brother-in-law and his family
also applied for asylum and claimed that the author's husband had
been killed for being critical of the regime and that he and his family
would therefore be in danger of persecution if returned to Iran. The
brother-in-law and his family were returned to Iran in November 1999
and the State party submits that it has not received any information
indicating that they have been mistreated.
the basis of the above, the State party maintains that the author's
credibility can be questioned, that she has not presented any evidence
in support of her claim and that she should therefore not be given
the benefit of the doubt. In conclusion, the State party considers
that the enforcement of the expulsion order to Iran would, under the
present circumstances, not constitute a violation of article 3 of
5.1. In her
submissions dated 4 February and 6 March 2000, counsel disputes the
arguments of the State party regarding the failure of the author to
submit written evidence. Counsel states that the author has provided
the only written evidence she could possibly obtain, i.e. her identity
papers and documentation showing that she is the widow of a martyr.
Counsel states that the ayatollah conducted the sighe or mutah
wedding himself with no witnesses or written contract. As to her failure
to provide the immigration authorities with a written court verdict,
counsel submits that the author only has second-hand information about
the verdict, as it was passed after her departure from Iran. She cannot,
therefore, submit a written verdict. Counsel further disputes that
the author's sister-in-law should have been able to obtain a copy
of the verdict while visiting Iran. She further states that the author's
sister-in-law long ago ended all contacts with the author because
she strongly resents the fact that the author has had a relationship
with any man after the death of her husband.
acknowledges that crimes such as adultery are handled by ordinary
courts. However, she draws the attention of the Committee to the fact
that the jurisdictional rules are not as strict in Iran as for example
in the State party and that the prosecuting judge can choose the court.
In addition, for a martyr's widow to ride alone with a Christian man
in his car would probably fall under the heading of "un-islamic behaviour"
and as such come under the jurisdiction of the Revolutionary Court.
Even if this were not the case, counsel reminds the Committee that
the author has only been informed that she has been sentenced to death
by stoning by a court. Not being a lawyer, and in view of what she
was told during her interrogation by the Zeinab sisters, the author
assumes that the sentence was handed down by the Revolutionary Court
and this assumption should not be taken as a reason for questioning
the general veracity of her claim.
states that the author has given credible explanations for not being
able or not wishing to provide the Swedish authorities with certain
addresses and telephone numbers. Firstly, she had promised for the
sake of security not to give her lover's telephone number to anyone
and does not wish to break her promise even at the request of the
immigration authorities. The Christian man always contacted the author
on her mobile phone which he had given her for that purpose alone.
The author left the mobile phone in Iran when she departed and as
she never called her number herself or gave it to anyone, she cannot
remember it. Further, counsel states that the address which is indicated
on the author's visa application used to be her home address, but
the author has repeatedly explained that new tenants are now living
there and that she does not want to subject them to any difficulties
caused by inquiries from the Swedish authorities. Finally, counsel
stresses that the author has given detailed information about the
neighbourhood, Aghdasiye, where her lover lived and that she has repeatedly
underlined that she never knew the exact address since she always
went to her secret meetings first by taxi to Meydon-e-Nobonyad where
she was picked up by a car that brought her to the Christian man's
home. Finally, all the author ever knew about the Christian man's
relatives was that he had one sister and one brother living in United
Kingdom and a son from a previous marriage living in Canada. She never
met them and never asked their names.
underlines that the fact that the Swedish authorities do not find
the author's explanations credible is a result of speculation based
on the supposition that all people behave and think according to Swedish
or Western standards. The authorities do not take into account the
prevailing cautiousness in Iran with respect to giving personal information,
particularly to public officials.
reference to the photographs of victims of torture which the author
claims to have handed over to her lover, counsel submits that this
fact in no way diminishes the author's credibility. The couple were
engaged in a serious relationship and intended to marry and there
was no reason for the author not to pass on such photos to a man in
whom she had total confidence. Further, counsel underlines that the
author has never argued that her handling of the photographs in question
supports or has anything to do with her asylum claim.
notes that the State party observes that the author has not cited
any medical certificate attesting to injuries resulting from the beatings
she was subjected to by her sighe husband. Counsel reminds
the Committee that the author left Iran the following day and that
her main preoccupation was to arrive safely in Sweden. Counsel further
states that most Iranian women are used to violence by men and they
do not or cannot expect the legal system to protect them, despite
the positive changes which have recently taken place in Iran in this
respect. As an example, counsel states that an Iranian woman wishing
to report a rape must be examined by the courts' own doctors as certificates
by general doctors are not accepted by courts.
reference to the fact that the author's passport number was given
in her asylum application although she had claimed to have disposed
of her passport upon arrival in Sweden, counsel states that there
is no indication on the asylum application that the author's passport
has been seized by the Immigration Board officer, which is the rule
in order to secure enforcement of possible expulsion; this fact seems
to support the author's version of events. In addition, the author
has maintained that when filing her application she merely had to
state her name, all other necessary details having appeared on a computer
screen. This information has been corroborated by the Immigration
Board registration officer who received the author's asylum application
and who told counsel that, in recent years, a person granted a tourist
visa is registered in a computer database, containing all available
information, including passport numbers. The author had been granted
a tourist visa for Sweden twice in recent years, so her account was
notes that the State party has confirmed that the author's sighe
husband was the head of the Bonyad-e Shahid, which should support
the author's claim; he was generally referred to as "Ayatollah", even
though his title was Hojatolleslam. Counsel reminds the Committee
that there are only some 10 real ayatollahs in Iran. The great majority
of mullahs are of the rank of hojatolleslam. However, mullahs who
have gained power, particularly political power, are often referred
to as Ayatollah out of courtesy, an illustrative example being Ayatollah
Khamenei whose office demanded the rank of an ayatollah but who was
in fact only hojatolleslam when he was appointed.
5.9. With reference to the State party's argument that the author
left Iran without difficulty, counsel points out that this is consistent
with the author's version of the events leading to her flight. She
has maintained that at the time of her departure she was not yet of
interest to the Iranian authorities since her sighe husband
had suppressed the Pasdaran report to the Revolutionary Court.
5.10. Finally, counsel states that what the author's dead husband's
relatives have stated about the circumstances surrounding his death
has no impact on the author's case or her credibility. It should be
noted that the author herself has never stated that her husband was
assassinated by the regime, but only that she had doubts about the
circumstances pertaining to his death.
support of counsel's arguments she submits a medical certificate dated
22 November 1999 from a senior psychiatrist at Sahlgrenska Hospital,
where the author was taken after an attempted suicide. The attempt
was made after the Swedish police had taken her and her son from a
reception centre for asylum-seekers to a detention centre to ensure
the execution of her expulsion. The diagnosis made was deep depression
combined with contemplation of suicide.
further encloses a letter dated 27 December 1999 from the leading
Swedish expert on Islam, Professor Jan Hjärpe, who confirms the author's
account concerning the institution of sighe or mutah
marriages and the legal sanctions provided for in cases of adultery.
draws the attention of the Committee to the fact that the immigration
authorities in examining the author's case have not considered the
situation of women in Iran, existing legislation and its application,
or the values of the Iranian society. Counsel states that the argumentation
of the authorities, based almost exclusively on the author's failure
to submit certain verifiable information, seems to be a pretext for
refusing the author's application. In conclusion, counsel submits
that according to the information provided by the author, there exist
substantial grounds to believe that the author would be subjected
to torture if returned to Iran and that the author has provided reasonable
explanations for why she has not been able to or not wished to furnish
comments submitted by the State party
6.1. In its
submission dated 2 May 2000, the State party contends that the Swedish
Immigration Board and the Aliens Appeal Board have ensured a thorough
investigation of the author's case. It reminds the Committee that
during the asylum procedure, the author has been repeatedly reminded
of the importance of submitting verifiable information, but that she
has chosen not to do so. The State party does not find the explanations
given hereto convincing, reiterates that the burden of proof in principle
rests with the author and maintains that the author's credibility
can be questioned.
the State party draws the attention of the Committee to the fact that
the author first alleged that she had been sentenced to death for
adultery during an initial interview held with her in May 1998. The
State party submits that the author thus has had ample time to present
a written judgement or other evidence to support that claim.
information from the State party and counsel, requested by the Committee
taken note of the submissions made by both the author and the State
party regarding the merits of the case, the Committee, on 19 and 20
June 2000, requested further information from the two parties.
7.2. In her
submission of 1 September 2000, counsel confirms previous information
given regarding: (a) the nature of sighe or mutah marriages
and the fact that witnesses are not necessary, nor registration before
a judge if the partners themselves are capable of conducting the ceremony
correctly; (b) the activities of Bonyad-e Shahid, affirming
that martyrs' widows are presented, in listings and photo albums,
for temporary marriages to its employees and directors. Counsel supports
the information given with letters from, inter alia, the Association
of Iranian Political Prisoners in Exile (AIPP), the Support Committee
for Women in Iran and Professor Said Mahmoodi, Professor of International
Law at the University of Stockholm.
regard to the alleged death sentence against the author, counsel submits
that despite attempts by AIPP, it has not been possible to find any
evidence that the author's Christian lover had been imprisoned and
that they both have been sentenced to death by stoning for adultery.
AIPP, as well as other sources, maintain that such information is
not possible to get if the prison, the court or the case numbers is
submits letters and information given by experts in Islamic law confirming
that a sighe wife is bound by the rules regarding adultery
and that she is prohibited from having a sexual relationship with
any man other than her sighe husband. Adultery with a Christian
man bears the sanction of stoning to death. Counsel further submits
that the law in theory requires either four righteous witnesses or
a confession to the sexual act for stoning to be ordered, but that
the author's sighe husband, being a powerful man in society,
would not have difficulties finding persons willing to testify. According
to international human rights organizations, the eyewitness condition
is rarely respected and stoning for adultery is still frequently practised
in Iran, despite recent reforms in the country.
and further clarifications were made with regard to telephone calls
received by the author's sister-in-law (see para. 2.8). The author's
previous lawyer had told Swedish authorities that the sister-in-law
in Sweden had been contacted by Hojatolleslam Rahimian who told her
that the author had been found guilty. Counsel has since been in contact
with the sister-in-law directly and states that the correct version
of events was that the sister-in-law, shortly after the author's arrival
in Sweden, was contacted by a man in rage who did not give his name
but wanted to know the author's whereabouts in Sweden. The man was
aggressive and knew all the details of the author's past and said
that she had no right to leave Iran. The sister-in-law further states
that she never attempted to verify the existence of a court judgement
when she visited Iran.
reference to the Committee's request for additional information, counsel
states that the author's older son, born in 1980, tried to seek asylum
in Sweden from Denmark in March 2000. In accordance with the Dublin
Convention, after a short interview, he was sent back to Denmark where
he is still waiting to be interrogated by Danish immigration authorities.
Since his case had not yet been examined by the Danish authorities,
counsel requested Amnesty International to interview him.
records of the interview confirm statements made by the author regarding
her sighe marriage and of her being called to the Bonyad-e
Shahid office several times a week. The son also states that when
his mother left she had told him that he had to leave school and hide
with close relatives of hers in Baghistan. He received private teaching
to become a veterinary surgeon and subsequently enrolled in University.
On 25 January 2000 he was summoned to the university information office
by the intelligence service, Harasar, from where two men took him
to the Bonyad-e Shahid office in Tehran where he was detained,
interrogated, threatened and beaten. He claims that the interrogators
wanted to know his mother's whereabouts and that they threatened to
keep him and beat him until his mother came "crawling on all fours"
and then they would "carry out her sentence". The author's son claims
that it was during the interrogation that he fully realized his mother's
situation, although he had not spoken to her since she left the country.
7.8. In conclusion,
counsel maintains that although it has not been possible to obtain
direct written evidence, for the reasons given above, the chain of
circumstantial evidence is of such a nature that there can be no reason
to doubt the author's credibility. Reference is further made to a
recent judgement of the European Court of Human Rights dated 11 July
2000, regarding an Iranian woman asylum-seeker who allegedly had committed
adultery and who feared death by stoning, whipping or flogging if
returned. As in the case of the author no written evidence existed
in the form of a court judgement, but the Court stated that it "is
not persuaded that the situation in the applicant's country of origin
has evolved to the extent that adulterous behaviour is no longer considered
a reprehensible affront to Islamic law. It has taken judicial notice
of recent surveys of the current situation in Iran and notes that
punishment of adultery by stoning still remains on the statute book
and may be resorted to by authorities. (1) The Court ruled
that to expel the applicant would be a violation of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
by the State party
State party made additional submissions on 19 September and 19 October
2000. With reference to the Committee's request for additional information,
the State party reiterates its view that the burden is on the author
to present an arguable case. It maintains that the author has not
given any evidence in support of her claim and therefore there are
serious reasons to doubt the veracity of those claims.
regard to the author's alleged sighe marriage, the State party
confirms that the law in Iran allows for such temporary forms of marriage.
It further argues that although sighe marriages are not recorded
on identification documents, such contracts should, according to reliable
sources, contain a precise statement of the time-period involved and
be registered by a competent authority. In practice, a religious authority
may approve the marriage and issue a certificate. Given that the author
claims that her sighe or mutah marriage was conducted
by Hojatolleslam Rahimian himself and that no contract was signed,
the State party has doubts as to whether the author entered into a
legally valid marriage.
State party points out that counsel in her last submissions to the
Committee has included certificates and other information which have
not previously been presented to the Swedish immigration authorities.
As the new information seems to be invoked in order to prove the existence
of sighe marriages in Iran, the State party emphasizes that
it does not question this fact, nor the existence of the Bonyad-e
Shahid, but, inter alia, the author's credibility in respect
of her personal claims of having entered in such a marriage. The author's
credibility is further diminished by the inconsistent information
given relating to phone calls received by the author's sister-in-law.
addition, even if the Committee does accept that the author has entered
into such a marriage, the State party asserts that this in itself
would not constitute substantial grounds for believing that the author
would be in danger of being tortured or killed if returned to Iran.
is further submitted that according to the Swedish Embassy in Tehran,
it is not possible for the Embassy to inquire whether a competent
family court, rather than the Revolutionary Court, has issued a judgement
regarding the author. However, the author should, according to the
Embassy, by proxy be able to obtain a copy of the judgement if it
exists, or at least obtain the name of the court and the case number.
The State party further submits that only a married person can be
convicted of adultery; it therefore seems unlikely that the author's
lover would have been sentenced to death as claimed.
addition, the State party claims that neither reports from the United
States Department of State nor from Amnesty International confirm
the assertion by counsel that stoning is frequently practised in Iran.
regard to the judgement by the European Court referred to by counsel,
the State party points out that in that case the applicant had been
granted refugee status by UNHCR and the European Court had relied
on UNHCR's conclusions as to the credibility of the applicant and
the veracity of her account. In the present case, two competent national
authorities have scrutinized the author's case and found it not to
with regard to the information given by the author's son, currently
residing in Denmark where he is seeking asylum, the State party underlines
that this information is new and has not been presented to the national
authorities. According to the State party, information submitted at
a very late stage of the proceedings should be treated with the greatest
caution. It further emphasizes a number of contradictory points in
the newly submitted evidence: (a) during the son's interrogation by
the Swedish Board of Immigration no mention was made of any court
judgement or death sentence, information which, in the State party's
view, would have been relevant in the circumstances; (b) the son gave
contradictory answers to the question of whether he possessed a passport.
The State party also finds it unlikely that the author was not aware
of, and has never invoked, the harassment to which her son was allegedly
subjected after her departure from Iran.
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 available domestic remedies
have been exhausted. The Committee finds that no further obstacles
to the admissibility of the communication exist. Since both the State
party and the author have provided observations on the merits of the
communication, the Committee proceeds immediately with the considerations
of those merits.
issue before the Committee is whether the forced return of the author
to the Islamic Republic of 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 or she would be in danger of being subjected to torture.
Committee must decide, pursuant to article 3, paragraph 1, of the
Convention, whether there are substantial grounds for believing that
the author would 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 article 3, paragraph 2, of
the Convention, including the existence of a consistent pattern of
gross, flagrant or mass violations of human rights. The aim of the
determination, however, is to establish whether the individual concerned
would be personally at risk of being subjected to torture in the country
to which she would return. It follows that the existence of a consistent
pattern of gross, flagrant or mass violations of human rights in a
country does not as such constitute a sufficient ground for determining
that a particular person would be in danger of being subjected to
torture upon his return to that country; additional grounds must exist
to show that the individual concerned would be personally at risk.
Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to
be in danger of being subjected to torture in his or her specific
the information submitted by the author, the Committee notes that
she is the widow of a martyr and as such supported and supervised
by the Bonyad-e Shahid Committee of Martyrs. It is also noted
that the author claims that she was forced into a sighe or
mutah marriage and to have committed and been sentenced to
stoning for adultery. Although treating the recent testimony of the
author's son, seeking asylum in Denmark, with utmost caution, the
Committee is nevertheless of the view that the information given further
corroborates the account given by the author.
Committee notes that the State party questions the author's credibility
primarily because of her failure to submit verifiable information
and refers in this context to international standards, i.e. the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status,
according to which an asylum-seeker has an obligation to make an effort
to support his/her statements by any available evidence and to give
a satisfactory explanation for any lack of evidence.
Committee draws the attention of the parties to its general comment
on the implementation of article 3 of the Convention in the context
of article 22, adopted on 21 November 1997, according to which the
burden to present an arguable case is on the author of a communication.
The Committee notes the State party's position that the author has
not fulfilled her obligation to submit the verifiable information
that would enable her to enjoy the benefit of the doubt. However,
the Committee is of the view that the author has submitted sufficient
details regarding her sighe or mutah marriage and alleged
arrest, such as names of persons, their positions, dates, addresses,
name of police station, etc., that could have, and to a certain extent
have been, verified by the Swedish immigration authorities, to shift
the burden of proof. In this context the Committee is of the
view that the State party has not made sufficient efforts to determine
whether there are substantial grounds for believing that the author
would be in danger of being subjected to torture.
State party does not dispute that gross, flagrant or mass violations
of human rights have been committed in Iran. The Committee
notes, inter alia, the report of the Special Representative
of the Commission on Human Rights on the situation of human rights
in Iran (E/CN.4/2000/35) of 18 January 2000, which indicates that
although significant progress is being made in Iran with regard to
the status of women in sectors like education and training, "little
progress is being made with regard to remaining systematic barriers
to equality" and for "the removal of patriarchal attitudes in society".
It is further noted that the report, and numerous reports of non-governmental
organizations, confirm that married women have recently been sentenced
to death by stoning for adultery.
that the author's account of events is consistent with the Committee's
knowledge about the present human rights situation in Iran, and that
the author has given plausible explanations for her failure or inability
to provide certain details which might have been of relevance to the
case, the Committee is of the view that, in the prevailing circumstances,
the State party has an obligation, in accordance with article 3 of
the Convention, to refrain from forcibly returning the author to Iran
or to any other country where she runs a risk of being expelled or
returned to Iran.
to rule 111, paragraph 5, of its rules of procedure, the Committee
would wish to receive, within 90 days, information on any relevant
measures taken by the State party in accordance with the Committee's