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Cite as: [2008] ECHR 1097

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41827/07
by R. C.
against Sweden

The European Court of Human Rights (Third Section), sitting on 23 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 23 September 2007,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant is an Iranian national who was born in 1965 and is currently in Sweden. He is represented before the Court by Mr J. Wiklund, a lawyer practising in Skellefteå. The respondent Government (“the Government”) are represented by their Agent, Ms A. Erman, of the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

2. On 18 October 2003 the applicant arrived in Sweden and three days later, on 21 October 2003, he requested the Migration Board (Migrationsverket) to grant him asylum and a residence permit in Sweden. The Board held a first interview with the applicant on 27 May 2004 and a complete asylum investigation took place on 4 June 2004. During these meetings he stated, essentially, the following. He came from the city of Bander Abbas in Iran where his family remained. On several occasions, inter alia at student demonstrations, he had criticised the regime although he was not, and never had been, a member of a political party or any organisation. In 1997 he had been warned that he should stop his activities and in 2000 following a demonstration, he had started receiving threats. A relative of his wife, who was a representative for various pro-government organisations, had warned him. The applicant claimed that, due to these threats, he had left his home town. Nevertheless, he alleged that on 9 July 2001 he had been arrested by the Secret Service in connection with a demonstration in Bander Abbas. He had been kept for seven months in Sepah prison, following which he had been transferred to the prison in Bander Abbas. During the first two months nothing had happened but thereafter he had been interrogated once every third month. He had also been tortured. He had been stabbed twice in the thigh, boiling water had been poured over his chest and his captors had hit him with their fists. He had been planning to escape for almost nine months and, on 19 July 2003, he had managed to escape with the help of friends when he was taken to the Revolutionary Court. He had been arbitrarily detained for the whole period. The applicant was convinced that he would be arrested, tortured and killed if he were returned to Iran because he had escaped from prison and was accused of having co-operated with anti-Islamic forces. Moreover, having escaped from prison, he was considered to have committed a very serious crime for which he would be sentenced to death.

3. The applicant further stated that he continuously suffered from headaches and sleeplessness and had problems with his legs. He submitted a medical certificate, dated 4 February 2005 and issued by Dr I. Markström, a physician at a local health care centre. The certificate stated that the applicant had scars around both ankles, scars on the outside of both kneecaps and two lateral scars on his left thigh. He also had a reddish area stretching from his neck down to his chest and when he yawned there was a loud clicking sound from the left side of his jaw. Moreover, his abdomen was tense. In the physician's opinion, these injuries could very well originate from the torture to which the applicant claimed that he had been subjected in Iran, namely, that he had been chained around his ankles and suspended upside down for several hours, that boiling water had been thrown on his chest, that he had received blows to his head, jaw, abdomen and legs, and that he had been stabbed twice in the left thigh with a bayonet.

4. On 27 May 2005 the Migration Board rejected the request. It first noted that the applicant had not claimed to have been a member either of an organisation or of a political party or to have had a leading role in the organisation of demonstrations. Moreover, the proceedings before the Revolutionary Court were in general not open to the public. The Board found that the applicant had not substantiated his story in any way and that he had thus failed to show that he had been, or would be, of interest to the Iranian authorities. It therefore considered that the applicant would not attract special attention from the Iranian authorities if he were to be returned to his home country. As concerned the ill-treatment and torture of which the applicant claimed to have been the victim, the Board found that the medical certificate did not prove that he had been tortured even if the injuries documented could very well originate from the torture described. In its view, there was no reason to believe that the applicant would be subjected to ill-treatment or torture upon return to Iran. Thus, it concluded that the applicant could neither be granted asylum in Sweden nor a residence permit based on humanitarian grounds.

5. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that about half of the inhabitants in Bander Abbas knew him since he used to be a football player. Moreover, he had been one of 10 to 12 organisers of the demonstration held in 2001. They had written the banners and decided which slogans to use. The other organisers, who were students and previously imprisoned critics of the regime, had also been punished. Following his escape, his wife had been taken in for questioning about his whereabouts on seven occasions and had been kept in detention on three occasions. His father had been questioned on two occasions and his son had been offered a bicycle in exchange for information about him. Their home had also been searched on two occasions. The applicant further claimed that he had been kept in an isolation cell for the first two months of his detention. Furthermore, the public had access to hearings before the Revolutionary Court and it had been relatively easy for him to escape since his friends had distracted the guards and he had thus been able to leave the building. Lastly, submitting several medical certificates, the applicant invoked his deteriorating health as he had developed diabetes, hyperthyroidism and tinnitus and also suffered from depression and panic attacks.

6. In March 2006 the applicant was informed that the case would be transferred to the Migration Court (Migrationsdomstolen) for further proceedings, following the entry into force of a new Aliens Act (see below under Relevant domestic law).

7. On 18 June 2007 the Migration Court held an oral hearing. In response to his lawyer's questions the applicant stated, inter alia, that he had been one of four to five thousand participants in the demonstration in 2001 and that he had played no special role in it but that it had been monitored by the authorities. He had been arrested and accused of being against Islam and the Regime. He had escaped when his friends had come to the Revolutionary Court for his hearing and had pretended to have a fight with each other so that he could go to the toilets to change. It had then taken him 15 seconds to leave the building since there were no exit controls. In response to questions by the Migration Board, the applicant claimed that he had organised demonstrations and that he had been one of the leaders at the demonstration in 2001. He had been arrested because he had been in the front row and had shouted slogans.

8. In a judgment of 9 July 2007, the Migration Court rejected the appeal. It first noted that the applicant appeared to have expanded his grounds for asylum by claiming that he had not just participated in demonstrations but had actually been involved in organising them. However, since he had not been a member of a party or an organisation which was critical of the regime, the court found it unlikely that he would be of any interest to the authorities in his home country if he returned. It further considered that the applicant's account of how he had escaped from the Revolutionary Court was not credible, having regard, inter alia, to international sources which stated that insights into the functioning of the Revolutionary Courts were very limited. The court also noted that he had remained in Iran for two months following his escape before leaving the country. Moreover, it found that the applicant had failed to show that he had been tortured in Iran. Thus, having regard to all the circumstances of the case, the court concluded that the applicant could not be considered to be in need of protection in Sweden and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds.

9. One of the three lay judges dissented as he considered that the applicant had given a credible account of events and should be granted asylum as a refugee in Sweden.

10. On 17 July 2007 the applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining his claims and stating that he was credible and only telling the truth. He was also of the opinion that the Migration Court had failed to take into account the medical certificate testifying to his torture injuries. He further requested some extra time in order to submit certain documents that his family had sent to him from Iran. The court granted an extension of the time-limit and, on 7 August 2007, the applicant submitted, among other things, two summonses, one to his wife and one to his father, to appear before the Revolutionary Court in Bander Abbas on 6 August 2003 to answer questions concerning the applicant and his escape from prison.

11. On 4 September 2007 the Migration Court of Appeal refused leave to appeal.

12. The applicant was called to a meeting with the Migration Board on 26 October 2007 but this meeting was postponed until 9 November 2007 because of problems finding an interpreter.

13. On 8 November 2007, following a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to deport the applicant to Iran until further notice.

14. Following the request by Court, on 9 November 2007 the Migration Board stayed the enforcement of the deportation order until further notice.

B. Relevant domestic law

15. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.

16. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).

17. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).

18. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).

19. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.

C. Relevant international background material on Iran

20. According to the U.S. Department of State's Country Report on Human Rights Practices 2007 in Iran, dated 11 March 2008, the Iranian government's poor human rights record worsened, and it continued to commit numerous, serious abuses. Security forces committed acts of politically motivated abduction and of torture and severe officially sanctioned punishments, including death by stoning, amputation and flogging. They also arbitrarily arrested and detained individuals and used excessive force against, and imprisonment of, demonstrators. The government severely restricted civil liberties and it continued to prohibit and forcibly disperse peaceful demonstrations during the year.

21. There was a lack of judicial independence and although trials were supposed to be open to the public, they were frequently closed and defendants were often not given access to a lawyer. Numerous human rights groups condemned trials in the revolutionary courts for their disregard for international standards of fairness. Defendants lacked access to attorneys and secret or summary trials of only five minutes' duration occurred frequently. There were allegations of corruption.

22. Citizens could travel within the country and change their place of residence without obtaining official permission. However, citizens returning from abroad were occasionally subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad.

23. The Report further observes that UN representatives, the UN Working Group on Arbitrary Detention and independent human rights organisations noted the absence of procedural safeguards in criminal trials.

24. In its report Mänskliga rättigheter i Iran 2007 [Human Rights in Iran 2007], the Swedish Ministry for Foreign Affairs found that the human rights situation in Iran continued to be very poor and that no progress had been made during 2007 despite efforts by the international community and the EU. Instead, there had been a continuous deterioration of the situation, in particular concerning increased persecution of intellectuals, students and dissidents and torture in prisons. Iran was not a State governed by law and individuals had little possibility to defend themselves against abuse. Besides criminals, it was primarily persons who were considered as a political threat to the regime who were the victims of abuse of different kinds. The judiciary was characterised by unpredictability and corruption which had become common with trials held in camera. The death penalty was used for a number of crimes, including crimes against the security of the State.

25. According to the UK Home Office's Country of Origin Information Report on Iran, dated January 2008, in the case of returned asylum seekers, it had been reported by observers that they had seen no evidence that failed claimants, persons who had left Iran illegally, or deportees faced any significant problem upon return to Iran, although individuals in cases that gained a high profile could face difficulties (Section 28.13 of the Report).

26. The Report further observes that the current pressure for democratic reform in Iran changed dramatically after the student protests at Tehran University in July 1999. Every year on the anniversary of the 1999 event, students have gathered at Tehran University and other major campuses throughout the country and the date has been a flashpoint for violence and tension (Section 3.22). Thus, in June 2003, thousands of Iranians took to the streets and about four thousand people were arrested all over the country before and after the protests. Although many of those had since been released, there were still scores of students behind bars. Some of these had been in prison since they were arrested as a result of similar disturbances in 1999, 2000 and 2001 (Sections 3.23 and 3.26).

27. In its World Report 2008, Human Rights Watch notes that respect for basic human rights in Iran continued to deteriorate and that the government showed no tolerance for peaceful protests or gatherings, routinely detaining participants and subjecting them to torture. Amnesty International, in its Amnesty International Report 2008, made the same findings, also noting that demonstrations frequently led to mass arrests and unfair trials.

COMPLAINT

28. The applicant complained under Article 3 of the Convention that, if deported from Sweden to Iran, he would face a real risk of being arrested, tortured and perhaps even executed because of his earlier activities as a critic of the Iranian regime, for which he had previously been imprisoned and tortured. He also alleged that the fact that he had escaped from prison and left the country illegally would put him at additional risk.

THE LAW

29. The applicant claimed that his deportation from Sweden to Iran would expose him to a real risk of being tortured or killed. He invoked Article 3 of the Convention which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

30. The Government submitted that the application should be declared manifestly ill-founded.

31. They did not wish to underestimate the concerns which could legitimately be expressed with respect to the current human rights situation in Iran but stressed that it had to be shown that the applicant would be personally at risk of being subjected to treatment contrary to Article 3 of the Convention if returned.

32. The Government considered that great weight had to be attached to the opinions of the Swedish migration authorities since they had met the applicant in person. The Government therefore relied on the decisions of the Migration Board, which had interviewed the applicant twice, and the Migration Court, which had held an oral hearing where the applicant had been heard in person. In addition, they submitted that, upon their request, the Swedish Embassy in Tehran had conducted an inquiry into the authenticity of the documents submitted by the applicant as well as regarding some of the issues raised in the case. In two reports from the Embassy, dated 2 and 13 January 2008, the results of the inquiry were presented and revealed, inter alia, the following. As concerned the two summonses, the Embassy concluded that the quality of the stationery and the printing indicated that they were authentic although the authenticity of the stamp remained open to question, since it was possible to obtain stamps from the different ministries and to reproduce such stamps. Moreover, it was unclear from the summonses what the charges were against the applicant. As corruption was frequent within all sectors of Iranian society, “authentic false” documents were sometimes produced or issued and sold by private individuals who had contacts with the authorities. Furthermore, since the Iranian authorities did not provide such information, it had been impossible to verify whether the applicant had been imprisoned or had escaped from a hearing before the Revolutionary Court or whether he was wanted in Iran or suspected of, or had been convicted of, any crime there. As to the proceedings in the revolutionary courts, the Embassy stated that these were only open to the parties and their lawyers, except in certain cases, and that people who entered and left the court building were carefully checked.

33. In the light of the above, the Government contended that there were reasons to question the authenticity of the two summonses and that it remained an open question whether these documents corresponded to the factual circumstances. Hence, in the Government's view, no great importance should be attached to the documents' value as proof.

34. Turning to the medical certificate, dated 4 February 2005, the Government noted that the examination had been a general medical examination carried out by a general practitioner and not by a person with special knowledge and experience of torture injuries. The certificate was also lacking in detail on some important points, for instance, the medical observations were described in a general manner and there was nothing to indicate that an assessment had been made of when the injuries had occurred. Consequently, the Government argued that it could not be excluded that the injuries described were a result of incidents other than torture.

35. The Government further called into question the applicant's credibility, observing that he had provided contradictory statements about his participation and role in different demonstrations. The same held true for the applicant's explanation of how he had fled from the Revolutionary Court, which the Government strongly questioned, referring to the Embassy's finding about the revolutionary courts. Thus, the Government contended that the applicant's story had escalated during the course of the asylum investigation in a way that contributed to undermining his general credibility. Moreover, as concerned the summonses, the Government considered that the applicant had failed to provide any explanation for his delay in submitting the documents.

36. However, even assuming that the applicant's story was somewhat correct and the summonses were authentic, the Government insisted that he had not shown that he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention since his activities had been fairly limited, he had never belonged to any political party or organisation and he had failed to explain more precisely in what way he had been critical of the Iranian regime. Nor had he shown that he would be of interest to the Iranian authorities upon return having regard, inter alia, to the long period that had elapsed since the alleged incidents occurred. Moreover, they stressed that he had not invoked any official document of a more recent date to show that he was currently wanted by the Iranian authorities. Thus they concluded that there was nothing to support his submissions that he would risk treatment contrary to Article 3 of the Convention if returned to his home country.

37. The applicant maintained that he faced a real risk of being arrested, tortured and possibly killed if he were forced to return to Iran. He insisted that the summonses were authentic and referred to the Swedish Embassy's report which, in his view, proved their authenticity and that he was wanted in Iran. He had not been aware of the existence of the summonses until the summer of 2007 when they had been sent to him. Since torture was frequent in Iranian prisons there was an obvious risk that he would be subjected to such ill-treatment if returned and imprisoned.

38. As concerned the medical certificate, the applicant contended that the physician was extremely experienced and well-suited to assess torture injuries and that there was no reason to question it.

39. The applicant also disputed the Government's allegation that he was not credible. He had simply answered questions differently depending on how the questions had been phrased and there had clearly been a misunderstanding in the interpretation during the hearing in the Migration Court. He emphasised that he had been one of the organisers of the demonstration in 2001 and that, among other things, he had written posters. In any event, it was sufficient to stand on the street and demonstrate to attract the authorities' attention. With regard to his escape from the Revolutionary Court, he maintained his claim and added that it was not impossible to escape from the court due to the extensive corruption in the country. He had been in hiding following the escape and two months was not an excessively long period to arrange to leave the country. He possessed no further documents. Since the Iranian authorities had questioned his wife on seven occasions, they had probably come to the conclusion that it was futile to send any more summonses. However, if he were to return, they would immediately resume the harassment. Thus, in conclusion, he submitted that he had shown that he would face a real risk of being arrested and subjected to treatment contrary to Article 3 of the Convention if he returned to Iran.

40. The Court considers, in light of the parties' submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

Santiago Quesada Josep Casadevall
Registrar President