MAWAJEDI SHIKPOHKT AND MAHKAMAT SHOLE v. THE NETHERLANDS
Inadmissible
David Thór Björgvinsson
The applicants, Mr Mohamed Hashem Mawajedi Shikpokht and Mrs Atefeh Mahkamat Sholeh, are Iranian nationals who were born in 1971 and 1980 respectively and currently live in Culemborg (Netherlands). They are husband and wife. They were represented before the Court by Mr P.P.M. Mol, a lawyer practising in Amersfoort. The respondent Government were represented by Mr R.A.A. Böcker and Ms J. Schukking, both of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The facts regarding Ms Mahkamat Sholeh are stated by the applicants as follows: Ms Mahkamat Sholeh was born into a family that opposed the Islamic revolution in Iran from the outset. Her father was put to death when she was about one year old. Her mother then married an activist of the Marxist political organisation Rah-e-Kargar (“Path of the Worker”), a Mr Asghar Firouzi (or Firoozi), referred to hereinafter as Ms Mahkamat Sholeh's stepfather. In the early 1980s Ms Mahkamat Sholeh's stepfather received a twenty-year prison sentence. Her mother too was imprisoned; she and her mother were forced to spend a year in prison. Ms Mahkamat Sholeh's stepfather was granted conditional release in 1989. He resumed his covert political activities. In 1999 Ms Mahkamat Sholeh's stepfather went into hiding after learning that his name appeared on a hit list. She then took over his political activities. These included distributing written materials (books and pamphlets) and organising political meetings. She also wrote such materials herself. At this time Ms Mahkamat Sholeh was living in her parents' house, her husband Mr Mawajedi Shikpokht having been conscripted for military service. A few months before she eventually left Iran she was beaten unconscious by a group of students. Ms Mahkamat Sholeh started receiving threats by telephone. On 19 November 1999 she received an anonymous threat, written on a yellow sticky note left on the front door, warning her to cease her activities. She went into hiding. On 22 November 1999 Ms Mahkamat Sholeh's parents' house was searched. Ms Mahkamat Sholeh, who had been out of the house at the time, was informed of this by her mother who by then had also gone into hiding and who had been informed by a neighbour. A few weeks later Ms Mahkamat Sholeh left Iran with a “travel agent”. Ms Mahkamat Sholeh entered the Netherlands on 18 January 2000. On 23 January 2000 she lodged a request for asylum. On 17 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request. On 24 August 2000 Ms Mahkamat Sholeh lodged an objection (bezwaarschrift) against this decision to the Deputy Minister. A hearing before a board of officials took place on 6 May 2002. On 18 June 2002 the Deputy Minister dismissed the objection. It is stated in the decision that Ms Mahkamat Sholeh had not been able to provide consistent information on the written threat which she had received or the raid on her parents' house. It was also considered inconsistent that students had themselves set a date for an illegal meeting and asked Ms Mahkamat Sholeh whether it was convenient for them to visit her; that she was unable to provide details on most of the books and other written materials which she had kept hidden; and that she was trusted to undertake covert activities for Rah-e-Kargar despite not actually being a member of that movement; and the fact, as stated, that she had had access to the hit list with her stepfather's name on it. The facts regarding Mr Mawajedi Shikpokht are stated by the applicants as follows: During his military service Mr Mawajedi Shikpokht worked as a prison officer. One of the prisoners, one G., was an important member of the Azadibakhshe Baluchistan party, a movement seeking territorial independence for the Iranian province of Baluchistan. G. persuaded Mr Mawajedi Shikpokht to smuggle letters out of prison for him. This Mr Mawajedi Shikpokht did until 19 November 1999, when he learned from another prisoner that G. had been placed in solitary confinement. On 21 November 1999 Mr Mawajedi Shikpokht learned that G. had revealed certain names under torture. Mr Mawajedi Shikpokht then deserted. Mr Mawajedi Shikpokht entered the Netherlands on 18 January 2000. On 23 January 2000 he lodged a request for asylum. On 17 July 2000 the Deputy Minister of Justice rejected this request. On 24 August 2000 Mr Mawajedi Shikpokht lodged an objection against this decision to the Deputy Minister. A hearing before a board of officials took place on 6 May 2002. On 18 June 2002 the Deputy Minister dismissed the objection. It is stated in the decision that Mr Mawajedi Shikpokht's story was not worthy of credence, the less so since he apparently knew very little of G. or his activities for the Azadibakhshe Baluchistan party, could not even be certain that G. had divulged his name to the authorities and knew very little of his wife's covert activities. Moreover, he had apparently left Iran by air from Teheran airport, where checks on departing passengers were particularly stringent. The applicants both lodged appeals with the Regional Court of The Hague on 15 July 2002, at the same time lodging an application for a provisional order restraining the respondent State from deporting them to Iran. A hearing was held on 26 June 2003. On 11 September 2003 the Provisional Measures Judge (Voorzieningenrechter) of the Regional Court of The Hague, sitting in Maastricht, dismissed both the application for a provisional measure and the appeals in a single decision. Its reasoning echoed that of the Deputy Minister in each of the two cases, which was found not to be arbitrary or unreasonable. In the domestic proceedings Ms Mahkamat Sholeh submitted the following documents, copies of which are contained in the Court's file: “List of the 182 people who became the subject of 'investigation'” (stated to be a hit list). The name of Ms Mahkamat Sholeh's stepfather appears on this list as number 174. “Statement concerning Atefeh Mahkamat Sholeh” by Zoorchang Pirooz, dated 3 June 2003. This document describes Ms Mahkamat Sholeh's stepfather as a Rah-e-Kargar activist and Ms Mahkamat Sholeh herself as a sympathiser. It asks the Netherlands authorities to take her asylum request seriously. “Letter of Zoorchang Pirooz” dated 6 June 2003. This is a very short letter in French, on commercial notepaper bearing an address in Brussels, stating that the signatory knew Ms Mahkamat Sholeh's stepfather and was aware of his political activities. “About Atefeh Firoozi” by Dariush Arjmandi and Anoushirvan Sarhaddi, dated 15 June 2003. The signatories of this document state that they are members resident in Sweden of Rah-e-Kargar and Iranian Peoples's Fedai Guerillas (Minority), respectively. They express support for Ms Mahkamat Sholeh's asylum request based on her relationship with her stepfather and her own, unspecified, political activities “both at home and abroad”. “Statement concerning Atefeh Mahkamat Shole (sic)” by Mr M. Hosseini Abdolabadi, dated 10 June 2003. Mr Hosseini is a Netherlands national of Iranian origin and himself a former member of the Iranian left-wing opposition who knew Ms Mahkamat Sholeh and her family in prison in the 1980s. The statement, in Dutch, expresses fears for Ms Mahkamat Sholeh's life based on her belonging to that particular family. Letter “regarding the asylum case of Atefeh Firouzi” from Ms Nastaran Negari, representative of Workers Left Unity – Iran, dated 16 June 2003. The letter was sent by fax apparently from the mechanical engineering department of Glasgow University (the sender's imprint reads “Mech Eng Glasgow Uni”). The letterhead of the organisation gives an an address in “Gutenberg” (presumably Gothenburg), Sweden. It is stated that the applicant's stepfather was a Rah-e-Kargar activist and was imprisoned both by the former regime and by the Islamic regime. Ms Mahkamat Sholeh herself spent her early childhood in prison with her mother in the mid-1980s. She is stated to have been active against the Islamic regime, distributing leaflets and pamphlets, and to have been under surveillance and forced to flee Iran on account of her family connections. The letter expresses concern about Ms Mahkamat Sholeh's possible fate if she returns to Iran and supports her asylum request. Copies of correspondence between Ms Mahkamat Sholeh and her stepfather exchanged when the latter was still in prison. A letter from University Assistance Fund (UAF) – a private organisation that funds political refugees who wish to pursue higher education – agreeing to give Ms Mahkamat Sholeh financial support for study purposes.