CASE OF R.C. v. SWEDEN
Violation of Art. 3 (in case of expulsion to Iran)
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
7. The applicant was born in 1965 and is currently in Sweden. 8. On 18 October 2003 the applicant arrived in Sweden and three days later he requested the Migration Board (Migrationsverket) to grant him asylum and a residence permit in Sweden. 9. The Board held a first interview with the applicant on 27 May 2004 during which he stated that he was Shia' Muslim and came from a city in the south of Iran where his wife and two minor sons remained. A smuggler had arranged for his travel to Sweden and he had travelled all the way hidden in a lorry. He claimed that he had criticised the Iranian government on several occasions and, the last time he had participated in a student demonstration to show his sympathy, he had been arrested. He had spent seven months in Sepah prison and then been transferred to a prison in his home town where he had spent another seventeen months. He had never been formally tried in court but every third month there had been a sort of religious trial where he had been put before a priest who had decided on his continued imprisonment. While imprisoned, he had been subjected to torture and still suffered from headaches because of it. He knew others who had participated in the demonstration and who were still imprisoned without trial. 10. A complete asylum investigation was conducted by the Migration Board on 4 June 2004 where the applicant maintained his initial statements and essentially added the following. In 1993 he had quit his job and returned to his village to work as a farmer. He had discussed with other villagers about the lack of human rights and freedom in Iran. One night the Basij (a “people's militia”, loyal to the Supreme Leader) had come and destroyed his fields with a tractor. When he had tried to report the incident to the police, they had advised him not to, since it would lead nowhere. He had also expressed his opinion of the government when he had watched television in public places. The Basij had later destroyed his car, thrown stones at his house and sent messages that he should stop his activities and “information evenings”. He had received the threats through a relative of his wife who worked for the regime. The threats had commenced in 1997 but had become more serious after he had participated in his first demonstration in 2000. It had been a student demonstration and he had escaped when the police intervened. On 9 July 2001 he had participated in his second student demonstration where he had been arrested because police had closed off all escape routes and had been filming the protesters as evidence. Many others had also been arrested. During the demonstration they had shouted slogans against the president and the government and demanded the release of student prisoners. In Sepah prison he had 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. However, on 11 February 2002, he had been transferred to the prison in his home town. He had been planning to escape for almost nine months by being very co-operative with the prison guards so that he had earned their trust. The “religious trials” had taken place at a court outside the prison and the applicant had spoken with three of his friends, who had visited him in prison to help him. On 19 July 2003 he had been taken to the court and his friends had been there. He had worn his normal clothes under his prison outfit and he had not had any handcuffs as the guards trusted him. He had told the guard that he had to go to the bathroom, where he had taken off his prison outfit. In the meantime one of his friends had gone to start the car and another friend had spoken to the guard to distract his attention from the applicant. The applicant had then walked straight out of the court, got into the car and they had driven off. It had been a revolution court and there had been a lot of people. He had then remained hidden at a friend's home for about two months while his friend had found a smuggler to help him out of the country. While he had been in hiding, his wife had been taken to the police twice for questioning about his whereabouts. His father had also been questioned. The applicant underlined that he was not, and never had been, a member of a political party or any organisation and that he had never been formally convicted of any crime. He was convinced that he would be executed if returned to Iran since he had escaped from prison and because he would be accused of having co-operated with those who are against Islam. 11. 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. 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 at 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. 12. 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 courts 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. 13. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that about half of the inhabitants in his home town knew him since he used to be a football player. Moreover, he had been one of ten to twelve 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 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 courts 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 four medical certificates, the applicant invoked his deteriorating health as he suffered, inter alia, from depression and panic attacks. 14. 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). 15. 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 participated in demonstrations critical against the regime since 1988 and that, in 1997 or 1998, he had started to notice that his criticism was not appreciated. He had participated in yearly demonstrations, such as on women's day and on labour day. Mostly he had participated in meetings on various premises. A relative of his wife had been an official at the intelligence agency and thus he had been assured that nothing would happen to him. He had been one of 4-5,000 participants in the demonstration in 2001 and he had played no special role, but it had been monitored by the authorities. He had been arrested and accused of being against Islam and the regime. In connection with a visit by his wife to Sepah prison while he was there, she had been detained for three days and questioned about him. However, no other relatives had been summoned or questioned by the authorities. 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 fifteen 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. 16. In a judgment of 9 July 2007, the Migration Court, by three votes to one, 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 IranSweden and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds. 17. 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. 18. On 17 July 2007 the applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining his claims and stating that he was 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 his home town on 6 August 2003 to answer questions concerning the applicant and his escape from prison. 19. On 4 September 2007 the Migration Court of Appeal refused leave to appeal. 20. The applicant was called to a meeting with the Migration Board on 9 November 2007. 21. 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. 22. Following the request by the Court, on 9 November 2007 the Migration Board stayed the enforcement of the deportation order until further notice. 23. Upon request by the Court, the applicant submitted a forensic medical report dated 14 November 2008 and issued by Dr E. Edston, specialist in forensic medicine at the Crisis and Trauma Centre at Danderyd Hospital. The report was drawn up on the basis of the protocols from the interviews with the applicant before the Migration Board, the medical certificate by Dr I. Markström, a letter from the applicant's representative dated 16 October 2008 and the applicant's own story as told to Dr Edston during his examination on 4 November 2008. The report contained photos of the scars together with a written protocol of all the scars and the medical record from the examination as well as Dr Edston's opinion. 24. The report noted that the applicant had claimed that he had been tortured in prison in 2001 and that the torture had consisted of beating with fists, kicks, being hit on his kneecaps with rifle butts, having a bayonet stuck twice in his thigh, as well as being flogged, suspended upside down for prolonged period of times and having hot water poured over him. He further stated that, as a result of the torture, he suffered from chronic headaches, reduced feeling in his right thigh, reduced mobility of his jaw, reduced eye sight, an ulcer, pain in his knees when walking and medical problems with his thyroid gland and diabetes. Dr Edston examined the applicant and found numerous scars on his body. 25. In Dr Edston's opinion, the injuries invoked by the applicant could very well have occurred in 2001 as claimed and the scars observed on his body had the appearance and localisation which corresponded well with his statements of how they had appeared. For example, the scars on his kneecaps could well correspond to blows with rifle butts, the marks on the front of his shins from having been kicked with boots, the marks on his left ankle could have appeared as a consequence of having been suspended upside down by his ankles and the pigmentation on his neck corresponded well with a burn injury. In conclusion, Dr Edston noted that, in cases like this, alternative causes for the origins of the scars could not be completely excluded but that experience showed that self-inflicted injuries and injuries resulting from accidents normally had a different distribution to those showed by the applicant. The findings in the present case favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him. Thus, the findings strongly indicated that the applicant had been tortured. 26. 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. 27. 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). 28. 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). 29. 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). 30. 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. 31. On 25 June 2009 the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution on the situation in Iran in which it urged the Iranian authorities to refrain from using force and violence against peaceful demonstrators and to release the more than 400 demonstrators arrested since the elections on 12 June 2009 as well as the more than 170 politicians, members of their families and journalists detained. At its subsequent session in Strasbourg, on 1 October 2009, the Political Affairs Committee of the PACE, adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens' human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran. 32. In a report (A/64/357) of the United Nation's Secretary-General on The situation of human rights in the Islamic Republic of Iran, dated 23 September 2009, and presented to the UN General Assembly at its 64th session, it was noted that 2009 had seen an increase in human rights violations targeting women, university students, teachers, workers and other activist groups, particularly in the aftermath of the elections in June 2009. Hence, during June, July and August 2009, several independent UN experts as well as the Secretary-General had voiced grave concerns about the use of excessive police force, arbitrary arrests, killings, ill-treatment of detainees and the use of torture to obtain confessions. Moreover, a variety of cases suggested a widespread lack of due process, access to lawyers and the failure to respect the rights of detainees, including allegations that individuals had been placed in detention without charge and had been kept “incommunicado”. It was noted that no visits by any special procedure mandate holders had taken place since 2005. 33. In its World Report 2009, Human Rights Watch noted 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. The Judiciary and the Ministry of Intelligence continued to be responsible for many serious human rights violations. Amnesty International, in its Amnesty International Report 2009, made the same findings, also noting that demonstrations frequently led to mass arrests and unfair trials. Some were also detained without trial for long periods beyond control of the judiciary and were reported to have been tortured and denied access to lawyers and their families. Amnesty International has repeatedly observed that trials before the revolutionary courts are not public. For instance, on 4 August 2009, in its article “Over 100 Iranians face grossly unfair trials”, Amnesty International noted that more than 100 persons had gone on trial in Tehran accused of organising widespread civil protests. The trial was held before the Revolutionary Court in Tehran and it was closed to the public and even to the defendants' lawyers. 34. According to Sections 3.28 and 3.31 of the U.K. Home Office's Country of Origin Information Report on Iran, dated August 2009, the 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 3.27). Thus, in June 2003, thousands of Iranians took to the streets and about 4,000 people were arrested all over the country before and after the protests. Although many of them 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. 35. Section 27.14 of the U.K. Report further noted that in “Evaluation of the August 2008 Country of Origin Information Report on Iran” by Dr Reza Molavi and Dr Mohammad M Hedayati-Kakhki of the Centre for Iranian Studies at Durham University, dated 23 September 2008, it appeared that, if an Iranian arrived in the country without a passport or any valid travel documents, they would be arrested and taken to a special court at Mehrabad Airport in Tehran where the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups and any other circumstances would be assessed. This procedure also applied to people who were deported back to Iran, not in the possession of a passport containing an exit visa; in this case the Iranian Embassy would issue them with a document confirming their nationality. Illegal departure was often prosecuted in conjunction with other, unrelated offences since the investigation into the facts surrounding the offence of illegal departure could result in the discovery of an underlying offence. 36. The Danish Immigration Service's report Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., released in April 2009, following a fact finding mission to Iran from 24 August to 2 September 2008, stated that some of its sources had claimed that the granting of travel documents at an Iranian embassy did not necessarily mean that the person would not face problems with the Iranian authorities upon return to Iran. The person in charge of passport border control at the Imam Khomeini International Airport in Tehran (a newly built airport which had replaced Mehrebad airport) had explained that an Iranian travelling on a laissez-passer was likely to be interviewed upon arrival in Iran and questioned about how he or she had lost the previous passport. However, if a person arrived in Iran on a travel document issued by an Iranian representation and the security check had been completed at the embassy, the airport authorities would not check his or her identity. The authorities at the airport would, however, ask the person how he or she had left Iran, since there was no exit stamp in his or her new travel document. A source in Iran claimed that, if a person had left Iran illegally, he or she had not been registered in the computer system as having left Iran and therefore would be questioned upon return. It was added that a person who had left the country illegally could also be arrested if he or she had committed an illegal act before leaving Iran. It was further observed that a person on a laissez-passer, issued by an Iranian representation abroad, might be fined for illegal exit or subjected to a few hours' interrogation.