AS TO THE ADMISSIBILITY OF
by Ashkan PANJEHEIGHALEHEI
The European Court of Human Rights (Fifth Section), sitting on 13 October 2009 as a Chamber composed of:
Renate Jaeger, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 12 March 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
applicant, Ashkan Panjeheighalehei, is an Iranian national who was
born in 1981 and lives in Kastrup. He is represented by Mr Bjørn
Elmquist, a lawyer practising in Copenhagen. The Danish Government
(“the Government”) were represented by their Agent,
Mr Peter Taksøe-Jensen, of the Ministry of Foreign
Affairs, and their Co-agent, Mrs Nina
Holst-Christensen of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 July 1997 the applicant, who was sixteen years old at the time, and his sister entered Denmark with their mother. The mother had a valid passport and a visa for ninety days to visit the applicant’s sister and brother in-law, who had been granted permanent residence permits in Denmark in 1992 and 1996 respectively.
Shortly thereafter, the applicant’s mother requested asylum. Her request also applied to the applicant and his sister who were minors at the relevant time. According to a registration report of 12 July 1997, the applicant’s mother submitted that she had been an active member of a monarchist organisation called Iran Javid. She had printed leaflets about the king and distributed them in her home town. In so far as her statement involved the applicant it concerned a demonstration in which she and the applicant had participated on 27 March 1995. The applicant, who at the relevant time was fourteen years old, had been arrested, detained and subjected to torture for two days. The applicant’s mother had never been convicted but feared being persecuted by the authorities because of the said activities. Allegedly, she had recently learned that all members of the organisation had been arrested.
The following day, the applicant’s mother explained that she had been a member of Iran Javid since 1992. On 27 March 1995, due to their participation in the demonstration, the applicant was arrested, tortured and detained for two days. The applicant’s mother’s home was seized approximately one month after the demonstration, but thereafter the authorities had not made further contact with the family. When the applicant’s mother left Iran, the organisation had still been active, but subsequent to her entry into Denmark she had learnt that it had been uncovered, that its members had been arrested and that she was wanted by the authorities.
The immigration authorities held further interviews with the applicant’s mother on 6 August 1997 and 3 July 1998, during which she elaborated on her personal situation. As to the applicant, she explained that he had been detained for ten days in connection with the demonstration in March 1995. The applicant’s mother also submitted various documents in support of her request for asylum.
On 9 October 1998 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant, his mother and sister asylum, finding that the applicant’s mother lacked credibility and that the family did not fulfil the requirements for obtaining asylum.
The applicant, his mother and sister appealed against the decision to the Refugee Board (Flygtningenævnet), before which the applicant confirmed that he had been arrested in March 1995 for ten days.
On 11 January 1999 the Refugee Board upheld the refusal to grant the family asylum. It noted that the applicant’s mother had provided various divergent and unreliable versions of events and considered that she had failed to substantiate that the family had fulfilled the criteria to be granted asylum.
On 22 January 1999, a representative for the applicant’s mother requested a re-opening of the proceedings which was refused by the Refugee Board on 29 January 1999.
On 22 April 1999, having reached the age of majority, the applicant requested that the proceedings be re-opened. He alleged that he had been politically active in Iran and recently learnt that he was wanted by the authorities. By decision of 27 April 1999 the Refugee Board refused the applicant’s request finding that he had failed to add significant new information or viewpoints to the case. The applicant was deported the following day.
By letter of 20 May 1999 a representative for the applicant informed the Refugee Board that the applicant had been picked up by two men in civilian clothing in Iran on 1 May 1999 and that nobody had heard from him since. Accordingly, the representative requested a re-opening of the proceedings, which was refused by the Refugee Board on 18 June 1999.
Another request for a re-opening of the proceedings was lodged with the Refugee Board on 9 August 1999 and refused by the latter on 25 February 2000.
A third request for a re-opening of the proceedings was lodged with the Refugee Board on 4 November 2002 and refused by the latter on 18 December 2002.
On 20 March 2003 the applicant re-entered Denmark and applied for asylum. He maintained that, due to his previous political activities and asylum request, upon return to Iran he had been detained and subjected to torture for almost two years. According to medical statements, inter alia by the Rehabilitation and Research Centre for Torture Victims dated 25 June 2003, the applicant suffered from post-traumatic stress disorder (PTSD) and depression which, it was assessed, was consistent with his claim that he had been subjected to torture.
By letters of 12 January and 23 February 2004 the applicant requested that the Refugee Board acknowledge liability in damages for the suffering inflicted on him as a consequence of the Refugee Board’s decision of 11 January 1999. By letter of 5 March 2004 the Refugee Board informed the applicant that it could not acknowledge such liability.
On 2 December 2004, the Refugee Board granted the applicant asylum. It found that, although the applicant could not be considered to have been persecuted when he left Iran together with his mother and sister in July 1997, it could be considered a fact that the applicant had been arrested by the Iranian authorities shortly after his return to Iran at the end of April 1999 and that he had been detained for a long time. In addition, the applicant had left Iran illegally. Accordingly, the Refugee Board found that if returned again to Iran the applicant would have a well-founded fear of persecution because the Iranian authorities would incorrectly consider him to be involved in extensive political activities aimed at the regime.
On 6 April 2005 the applicant brought an action for damages against the Refugee Board before the High Court of Eastern Denmark (Østre Landsret), requesting that the former be ordered to acknowledge that it was liable to pay compensation for pain and suffering in the amount of 450,000 Danish kroner (DKK) equal to approximately 60,800 Euros (EUR) since by decisions of 11 January and 27 April 1999 the Refugee Board had refused to grant the applicant asylum, although allegedly at the relevant time he had amply demonstrated the risk he would face upon return to Iran of being subjected to arrest and torture, which subsequently happened.
Referring to section 56, subsection 8 of the Aliens Act (Udlændingeloven), according to which no appeal lay against decisions taken by the Refugee Board, the Refugee Board pleaded as a preliminary issue that the High Court should dismiss the case.
The High Court decided to determine the preliminary issue separately and decided on 15 December 2005 that, despite the invoked provision of the Aliens Act, it had authority to examine the applicant’s compensation claim on the merits. The reasoning was as follows:
“As established, most recently by the Supreme Court’s decision published in the Weekly Law Review (Ugeskrift for Retsvæsen 2004, p. 727), as a result of section 56, subsection 8 of the Aliens Act, according to which the Refugee Board’s decisions are final, the courts’ review of the Refugee Board’s decisions is limited to a review of legal questions, including shortcomings in the basis for the decision and illegal discretion. Consequently, the courts cannot determine claims for compensation in so far as the claim in reality is based solely on the assumption that the Refugee Board made a mistake in its concrete assessment of the evidence and its discretion.
[The applicant’s] compensation claim concerns the treatment to which he was subjected in Iran upon his return in April 1999, and thus relates to the Refugee Board’s decisions of 11 January and 27 April 1999. [The applicant] has maintained, among other things, that the Refugee Board failed to decide on the [the applicant’s] risk of ill-treatment by the authorities resulting from his being returned [to his country of origin] after such a long period of absence.
Consequently, [the applicant] has invoked arguments which do not relate to the Refugee Board’s concrete assessment of the evidence and discretion.”
The Refugee Board appealed to the Supreme Court (Højesteret), submitting anew that the case should be dismissed.
By judgment of 12 January 2007 the Supreme Court dismissed the applicant’s claim for compensation in its entirety with the following reasoning:
“The circumstances which [the applicant] has submitted in support of his argument that the Refugee Board were liable and therefore must grant him compensation, presuppose a review of the Refugee Board’s decisions of 11 January and 27 April 1999. The Supreme Court agrees that such a review is limited to an assessment of the legality of the administrative decision in question, including shortcomings in the basis for the decision and illegal assessments, also in a case like the present [concerning a compensation claim]. In its decision to refuse to grant the applicant asylum, the Refugee Board took a stand on the main claim [submitted by the applicant, his mother and sister], namely years of alleged membership of an illegal organisation, its being uncovered and the applicant’s participation therein. Although not expressly stated in the decision, the Supreme Court finds no reason to assume that the Refugee Board did not make an assessment of [the applicant’s] personal conditions including his participation in a demonstration in March 1995 and his subsequent short term detention, which was clearly mentioned in the facts part of the decision. It must also be assumed that the Refugee Board did take into account whether [the applicant] and his mother and sister personally were at risk upon entry and stay in Iran due to the long absence from their country since 1997. Against this background, the Supreme Court finds that the applicant’s objections to the Refugee Board’s decisions in reality amount to a disagreement with the Refugee Board’s assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum.”
B. Relevant domestic law and practice
Under section 26 § 1 of the Tort Liability Act (Erstatningsansvarsloven), a person who is responsible for an unlawful infringement of another’s freedom, privacy, honour or person, is liable to pay damages to the injured party. An action for damages in this respect may be instituted before the ordinary courts in accordance with the rules set out in the Administration of Justice Act (Retsplejeloven).
By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is not subject to any instructions from the Danish Government.
Pursuant to section 53 of the Aliens Act, the Refugee Board comprises a chairman, deputy chairmen (the Executive Committee) and other members. The chairman and the deputy chairmen must be judges and the other members must be attorneys or serve with the Ministry for Refugee, Immigration and Integration Affairs. The judges are appointed upon nomination by the Court Administration (Domstolsstyrelsen). The other members of the Refugee Board are appointed by the Executive Committee. The attorneys are appointed upon nomination by the Council of the Danish Bar and Law Society (Advokatrådet) and the other members are appointed upon nomination by the Minister for Refugee, Immigration and Integration Affairs. The members of the Refugee Board are independent and cannot accept or seek directions from the appointing or nominating authority or organization. The term of appointment is for four years. The members are eligible for re-appointment and the member will be re-appointed if he or she requests re-appointment. The office as member ceases when the member resigns by own wish; when the member no longer has the organizational affiliation on which the original appointment was based; or at the end of the month of the member’s 70th birthday. The members of the Refugee Board can only be removed by judgment under the rules applying to the removal of judges. The jurisdiction of the Special Court of Indictment and Revision (Den Særlige Klageret) relating to judges applies equally to members of the Refugee Board. Cases tried by the Refugee Board are heard by the chairman or a deputy chairman, an attorney and a member serving with the Department for the Ministry of Refugee, Immigration and Integration Affairs.
Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board’s decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
Article 63 of the Constitution read as follows:
“1. The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.”
The courts will normally confine the review to the question of deciding on the legality of the administrative decision, including shortcomings of the basis for the decision and illegal assessments, but will generally refrain from adjudging on the administrative discretion exercised.
The question of the scope of the finality rule set out in section 56(8) of the Aliens Act has been brought before the courts several times (see, inter alia, the Supreme Court judgments of 16 June 1997, published in the Weekly Law Review (Ugeskrift for Retsvæsen), (UfR 1997, p. 1157), 29 April 1999 (UfR 1999, p. 1243), 26 January 2001 (UfR 2001. p 861), 28 November 2001 (UfR 2002, p. 406), 29 August 2003 (UfR 2003, p. 2405) and 2 December 2003 (UfR 2004, p. 727). Reference was also made to more recent Supreme Court judgments of 24 March 2006 (UfR 2006, p. 1831), four judgments of 15 February 2007 (UfR 2007, p. 1277; UfR 2007, p. 1286; UfR 2007, p. 1291/1; and UfR 2007, p. 1291/2), a judgment of 28 November 2007 (Supreme Court case No. 349/2005) and five judgments of 30 November 2007 (Supreme Court cases Nos. 576/2006, 5/2007, 6/2007, 7/2007 and 8/2007)). According to those judgments, judicial review of decisions issued by the Refugee Board is limited to a review of issues of law, including an inadequate basis for a decision, procedural errors and unlawful exercise of discretion.
The Government have also referred to a judgment of 31 October 2006 from the Supreme Court, published in the Weekly Law Reports (UfR 2007, p. 262), which in their view illustrated that the Supreme Court does not interpret section 56, subsection 8 of the Aliens Act narrowly. In that case, the Supreme Court held that the Refugee Board was not entitled to make the granting of asylum status conditional upon the plaintiff being able to render probable that he was at a specific risk of having to carry out or assist in actions that might entail exclusion under international rules pursuant to Article 1F of the Geneva Convention relating to the Status of Refugees. The Supreme Court noted that:
“the question of whether it is justified to set up these conditions, which relate to the disputed fact and the burden of proof as well as other issues, is an issue of law subject to judicial review regardless of the finality rule laid down in section 56, subsection 8 of the Aliens Act.”
Thus, the Government pointed out, the national courts cannot substitute their own decision on the merits of a case embraced by section 56, subsection 8 of the Aliens Act for that of the Refugee Board. However, if a decision issued by the Refugee Board is appealed against to a national court, and if that court finds that the Refugee Board’s decision suffers from material defects of law, including an inadequate basis for the decision, procedural errors or unlawful exercise of discretion, the court may remit the case to the Refugee Board for reconsideration. This was done by the Supreme Court in the above-mentioned judgment (UfR 2007, p. 262.).
The applicant maintained that the Refugee Board’s decision to deport him to Iran in 1999 had been in breach of Article 3 of the Convention. Moreover, invoking Articles 6 and 13 of the Convention the applicant complained that with regard to his claim for compensation he did not have access to a court.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court notes that by decision of 11 January 1999 the Refugee Board finally refused to grant the applicant asylum and that the applicant’s complaint to the Court was submitted on 12 March 2007, more than six months after the date on which that decision was taken by the Refugee Board. Thus the question arises whether the application has been introduced within a period of six months from the date on which the final decision was taken, notably whether the action for damages, which ended with the Supreme Court’s decision of 12 January 2007, gave rise to a further “final decision” for the purposes of the complaint under Article 3. However, the Court does not find it necessary to examine these issues, since in any event it finds this part of the application inadmissible for the following reasons.
The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. A deportation or expulsion decision may, however, give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of the State, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she is to be expelled (see for example Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, § 103). The existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion (see Vilvarajah and Others, cited above, § 107) and should not be evaluated with the wisdom of hindsight.
The Court does not exclude that the general situation in Iran in 1999 was such that making an asylum claim abroad may have constituted a risk factor (see, inter alia, Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000 VIII and G.H.H. and Others v. Turkey, no. 43258/98, §§ 37-38, ECHR 2000 VIII). Nevertheless, there is no indication that the situation was so serious that it caused, by itself, a violation of Article 3 of the Convention to return the applicant to Iran (see, for example, NA v. the United Kingdom, no. 25904/07, § 115, 17 July 2008). It therefore needs to be established whether the applicant’s personal situation at the relevant time was such that his return to Iran contravened Article 3 of the Convention.
Being a minor at the relevant time, the applicant’s original request for asylum was linked to that of his mother’s, which was motivated by her alleged role in the organisation called Iran Javid. In so far as her statement to the Aliens Authorities involved the applicant, it concerned their participation in the demonstration on 27 March 1995, when the applicant was fourteen years old. The applicant had been arrested, detained and subjected to torture for two days. Subsequently, the applicant’s mother provided a different version of events, namely that he had been detained for ten days. On 9 October 1998 the Aliens Authorities refused to grant the applicant, his mother and his sister asylum, finding that the applicant’s mother lacked credibility, notably as to her motive for asylum, and that she had failed to make a convincing statement about the alleged threat against the family as a consequence of her activities for Iran Javid. On appeal to the Refugee Board, the applicant was heard. He confirmed that he had participated in the demonstration on 27 March 1995 and subsequently been arrested and subjected to torture for ten days. On 11 January 1999 the Refugee Board upheld the decision to refuse to grant the applicant and his family asylum, endorsing the view that the applicant’s mother had provided various divergent unreliable versions of events and failed to substantiate that the family had fulfilled the criteria to be granted asylum.
On 22 April 1999, having reached the age of majority, the applicant requested that the proceedings be re-opened. He alleged that he had been politically active in Iran and that he had recently learnt that he was wanted by the authorities. By decision of 27 April 1999, finding that the applicant had failed to add significant new information or viewpoints to the case, the Refugee Board refused to re-open the case and the applicant was deported the following day.
The Court observes that the applicant’s motive for asylum was his alleged arrest and the torture to which he was subjected as a consequence of his participation in the demonstration on 27 March 1995. Apart from that he did not specify any other political activities, which he might have engaged in, nor did he submit having encountered any concrete difficulties with the Iranian authorities in the period between his release in March or April 1995 and his entry into Denmark on 2 July 1997. That understanding is consistent with the applicant’s mother’s explanation to the Aliens Authorities on 13 July 1997 that her home was seized approximately one month after the demonstration, but that thereafter the authorities had not made further contact with the family. Moreover, she had been provided with a valid passport and visa for ninety days and had no problems with the authorities when leaving Iran with her two children, including the applicant.
Taking these circumstances into account, the Court finds that the applicant at the relevant time failed to establish that there were substantial and concrete grounds for believing that he would be exposed to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment upon return to Iran. As the Refugee Board found, with the benefit of hindsight, in December 2004, the applicant was in fact subjected to ill-treatment following his return, but in the Court’s view there were no special distinguishing features in the applicant’s case at the relevant time that could or ought to have enabled the Refugee Board to foresee that he would be treated in this way.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government argued that Article 6 § 1 of the Convention was not applicable in the present case because the applicant’s claim for compensation was not “civil” in nature. They contended that the Court’s conclusion in Maaouia v. France [GC], no. 39652/98, ECHR 2000 X should apply also in the present case, because the determination of the action for damages required a re-examination of a decision concerning “the entry, stay and deportation” of the relevant alien. In their view, by initiating his action for compensation, the applicant in reality sought to obtain a full judicial review by the courts of the relevant decisions by the refugee Board, including in particular an examination of the discretion exercised by the Refugee Board as well as its assessment of evidence. Moreover, although the applicant’s claim for damages might be perceived as being of a pecuniary nature, it was in no way founded on an alleged infringement of rights which were likewise pecuniary rights.
The applicant disagreed with these arguments. He pointed out that he had been granted asylum status in 2004, and emphasised that in 2005, when he brought his action for damages before the courts, he was no longer an “alien” and the dispute did not therefore concern “the entry, stay and deportation of aliens”.
The Court has previously concluded that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see, Maaouia v. France [GC] cited above).
The applicant maintained that since he had been granted asylum status in 2004 the subsequent court proceedings did not concern “the entry, stay and deportation of aliens”.
The Court accepts that the applicant at the relevant time was no longer an asylum seeker and that the proceedings as such were not decisive for his entry, stay or deportation. Moreover, his action for compensation was formulated as an ordinary tort action, rather than an appeal in the context of asylum proceedings.
However, in the compensation proceedings, the applicant’s main arguments were that the Refugee Board’s decisions of 11 January 1999 and 27 April 1999 had been inadequate since, allegedly, the applicant’s personal circumstances and the general warnings against the return of refused asylum seekers to Iran had not been accorded sufficient importance, and since the Refugee Board had failed to take into consideration that the applicant was at risk of persecution due to his long absence from Iran from 1997 to 1999.
The Supreme Court addressed those submissions as follows: “In its decision to refuse to grant the applicant asylum, the Refugee Board took a stand on the main claim [submitted by the applicant, his mother and sister], namely years of alleged membership of an illegal organisation, its being uncovered and the applicant’s participation therein. Although not expressly stated in the decision, the Supreme Court finds no reason to assume that the Refugee Board did not make an assessment of [the applicant’s], personal conditions including his participation in a demonstration in March 1995 and his subsequent short-term detention, which was clearly mentioned in the facts part of the decision. It must also be assumed that the Refugee Board did take into account whether [the applicant] and his mother and sister personally were at risk upon entering and staying in Iran due to their long absence from the country since 1997.”
Subsequently, having stated that: “against this background, the Supreme Court finds that the applicant’s objections to the Refugee Board’s decisions in reality amount to a disagreement with the Refugee Board’s assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum”, the Supreme Court declined jurisdiction.
The Court agrees with the Supreme Court’s analysis that, notwithstanding the additional financial element raised in the compensation proceedings, the applicant’s compensation claim amounted, in reality, primarily and substantially, to a challenge to the merits of the decisions of the Refugee Board.
In these circumstances, although the subject matter of the applicant’s action was also pecuniary, the Court considers that the proceedings were so closely connected to the subject matter of the Refugee Board’s decisions in 1999 that they cannot be distinguished from the proceedings determining “decisions regarding the entry, stay and deportation of aliens” (see, Maaouia v. France, quoted above, and mutatis mutandis, Pierre-Bloch v. France, 21 October 1997, § 51, Reports of Judgments and Decisions 1997 VI d).
Consequently, Article 6 § 1 is not applicable in the instant case, and this part of the application must be declared incompatible ratione materiae within the meaning of Article 34 § 3 of the Convention and rejected pursuant to Article 34 § 4.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicant further complained that the facts underlying his complaint under Article 6 § 1 of the Convention also gave rise to a violation of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Having regard to its above conclusion as to the complaint under Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, § 88, Series A no. 52 and Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 43, ECHR 2004-IX). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Renate Jaeger