European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1355.html
Cite as: [2011] ECHR 1355
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FOURTH SECTION
DECISION
Application no.
48933/09
by M.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Vincent
A. De Gaetano,
judges,
Fatoş Aracı, Deputy Section Registrar.
Having regard to the above application lodged on 11 September 2009,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
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
The applicant, Mr M., is an Iranian national who was born in 1975 and lives in Helsinki. The President of the Chamber acceded to the applicant’s request for confidentiality of documents and decided, ex officio, that his name should not be disclosed (Rules 33 § 1 and 47 § 3 of the Rules of Court).
The applicant was represented before the Court by Mr Leo R. Hertzberg, a lawyer practising in Helsinki and by Mrs Tuula Gottleben, a lawyer practising in Espoo. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Account of the events provided by the applicant in his application
The applicant was a student in his home country, Iran. He was arrested and convicted twice on false grounds. On the first occasion he had refused to pray and became involved in a fight with the Basij troops. The authorities tried to force him to sign a confession stating that he had opposed the Government, the Revolution and the country’s spiritual leaders. When the applicant refused, a colonel signed the confession in his name. The applicant served three years in prison. He was tortured during his imprisonment, but no physical marks remained.
After his release, the applicant finished high school, did his military service and was selected by the Iranian international judo team. He was not, however, allowed to represent his country abroad. When he confronted the leader of the athletic federation about that issue, the latter became angry and falsely accused him of having physically assaulted him. The applicant was charged with abusing the Guardians of the Islamic Faith and slandering Islam and the country’s spiritual leaders. His second prison term lasted a year. On that occasion, he was not abused physically, but he was subjected to mental pressure.
After his second release from prison the applicant decided to engage in anti-Government activities. He became acquainted with the People’s Mojahedin Organisation of Iran (“PMOI”) through the internet and his uncle, who had been a member of that organisation. His uncle had fled Iran in 1980 and had been granted asylum in Sweden. The applicant supported the PMOI and, along with two friends, disseminated information about the organisation on the university campus. At some point the authorities became aware of their activities. One evening the applicant’s mother called him and told him that there were some people searching his apartment. They had taken all his personal possessions. After that incident, on 7 October 2005, the applicant fled the country. He later learned, through unofficial sources, that his two above-mentioned friends had been arrested and sentenced to death.
Since the applicant left Iran, the authorities have interrogated his wife on several occasions and she has been ordered to report to the police on a regular basis. The applicant’s parents have also been questioned by the authorities.
2. Asylum proceedings
The applicant arrived in Finland on 20 December 2005. He sought asylum on the same date. He based his asylum request on the allegation that the Iranian authorities were looking for him because of his involvement in the PMOI.
On 16 May 2007 the Directorate of Immigration (Ulkomaalaisvirasto, Utlänningsverket) rejected the applicant’s claim and ordered his removal to Iran. The directorate relied on information from the UK Home Office Report of 2006 in stating that a number of Iranian nationals had returned to Iran from PMOI camps in Iraq and they had not been persecuted by the Iranian authorities. It noted that the applicant had not submitted any proof about his alleged prison sentences. It did not find it credible that a person convicted of opposing Islam and the Iranian regime could have finished his schooling, served in the army and represented his country in athletics at international level. It concluded that the applicant’s involvement with the PMOI had not exceeded the level of a rank-and-file member of that organisation and he could thus not be regarded as a politically profiled person. It therefore held that the applicant would not be of special interest to the authorities, if returned to his home country.
The applicant appealed against the decision to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) asking the court to remit the case to the Directorate of Immigration. In the alternative, he requested the court to hold an oral hearing in order to receive testimony from himself and witnesses, to be named at a later stage.
On 15 May 2008 the Administrative Court dismissed the applicant’s appeal. It noted that he had never been a member of the PMOI as such, and he had not held a high or prominent position in that organisation. The reported cases of ill-treatment by the Iranian authorities had concerned persons with high profile political or social activities. The court referred to a report by a Danish fact-finding mission of 2005 in stating that the UNHCR had not received any reports of persecution of returned rank-and-file PMOI members. As the applicant had been able to finish high school and had been selected for the Iranian judo team after serving his first prison term, the court did not consider it likely that he would be targeted by the Iranian authorities for his political activities.
The applicant sought leave to appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). He submitted as fresh evidence a copy of a judgment delivered on 26 May 1994 by the Islamic Revolutionary Court in Tehran indicating that he had been sentenced to three years’ imprisonment for having acted against national security and having connections with traitors (the PMOI). He also submitted medical certificates indicating that between 25 August and 24 September 2008 he had been in psychiatric care due to severe depression and suicidal thoughts. After leaving the hospital he had had regular consultations with a psychiatrist.
On 12 March 2009 the Supreme Administrative Court refused leave to appeal.
On 10 September 2010 the applicant lodged a request with the Immigration Service (Maahanmuuttovirasto, Migrationsverket; the former Directorate of Immigration) for a residence permit on the basis of family ties.
COMPLAINTS
The applicant complained that he would be subjected to treatment contrary to Article 3 of the Convention if removed to his country of origin due to his previous involvement in the PMOI.
The applicant also complained under Article 6 of the Convention that he was denied a fair trial in the asylum proceedings as he was not granted an oral hearing before the Administrative Court. Moreover, as the Supreme Administrative Court did not obtain a statement from the Directorate of Immigration, it was obvious that it did not take into account the fresh evidence submitted by the applicant, that was, the Islamic Revolutionary Court’s judgment.
THE LAW
A. Complaint under Article 3 of the Convention
The applicant complained under Article 3 of the Convention that his removal to Iran would subject him to a risk of inhuman and degrading treatment due to his previous involvement in the PMOI.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
On 6 May 2011 the Government informed the Court that, on 4 May 2011, the Finnish Immigration Service had granted the applicant a continuous residence permit on the basis of family ties for a period of one year. The residence permit was renewable if the grounds for granting it still existed. Consequently, the Government maintained that the circumstances allowed the Court to reach the conclusion that the matter had been resolved, so justifying the discontinuation of the examination of the application. The Government invited the Court to strike the application out of its list of cases and to lift the interim measure indicated on 25 September 2009.
On 1 June 2011 the applicant considered that even though he had been granted a continuous residence permit on the basis of family ties, this was not the same thing as having been granted asylum. Refugee status would ensure a much stronger and more permanent status, better rights and greater security against deportation from Finland. The matter would only be resolved if he were granted asylum in Finland.
Article 37 § 1 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court notes that the applicant has now been granted a continuous residence permit and that he is no longer subject to an expulsion order. In these circumstances, and having regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that the matter giving rise to the complaints can now be considered to be “resolved” (see Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 97 and 103, ECHR 2007 II). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the case out of the list.
B. Other alleged violations of the Convention
The applicant also complained under Article 6 of the Convention that he was denied a fair trial in the asylum proceedings as he was not granted an oral hearing before the Administrative Court. Moreover, as the Supreme Administrative Court did not obtain a statement from the Directorate of Immigration, it is obvious that it did not take into account the fresh evidence submitted by the applicant, that is, the Islamic Revolutionary Court’s judgment.
The Court reiterates that proceedings 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, within the meaning of this provision (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X), and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 82, ECHR 2005-I). Consequently, Article 6 § 1 of the Convention is not applicable in the instant case (incompatibility ratione materiae). This complaint must thus be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases, in so far as it relates to the complaint under Article 3 of the Convention;
Declares the remainder of the application inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President