FOURTH SECTION
DECISION
Application no. 5176/13
A.R.M
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 17 December 2013 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović,
Robert Spano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 January 2013,
Having regard to the interim measure indicated to the respondent Government under Rule 39 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 regard to the third-party comments submitted by the European Centre for Law and Justice,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr A.R.M, of unknown nationality, was born in 1970 and is currently detained in Sarajevo Immigration Centre.
2. The Acting President of the Fourth Section decided to grant the applicant anonymity of his own motion (Rule 47 § 3 of the Rules of Court) and to grant the application priority (Rule 41 of the Rules of Court).
3. The applicant was represented by Vaša Prava, a local non-governmental organisation. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unknown date in 2012 the applicant arrived in Bosnia and Herzegovina.
5. On 10 September 2012 he was taken to the Aliens Service field office in Mostar for the purposes of establishing his identity and his status in Bosnia and Herzegovina: he had been found without any identity papers during a random police check at the local bus station. In interview, the applicant stated that he was an Iranian citizen and that he had come to Bosnia and Herzegovina, through Serbia, with the aim of reaching a European State where he could claim asylum.
6. The same day the Aliens Service field office in Mostar ordered the applicant’s detention in the immigration centre.
7. On 17 September 2012 the Aliens Service established that he had illegally entered Bosnia and Herzegovina and ordered him to leave the territory within eight days of the date that decision became final. The applicant did not appeal against that decision and it became final. On the same day he was detained in the immigration centre.
8. On an unknown later date the applicant claimed asylum. On 17 October 2012 the Asylum Service interviewed the applicant in the presence of his lawyer. It also had regard to reports of the US Department of State and the United Nations High Commissioner for Refugees. In interview, the applicant submitted that he had left Iran in May 2012 after his father had reported him to the police for reading certain books on the practice of Jehovah’s Witnesses, which were banned in Iran. The applicant’s brother had later informed him that the police had searched their home and had seized his books. He had left Iran illegally as he did not have a passport because he had not completed mandatory military service. The applicant further submitted that he had already been arrested and detained in 1996, while crossing a border between Iran and Turkey, for being in possession of the Bible. He had been blindfolded and taken to the Iranian city of Maku, where he had been interrogated and physically abused (kicked in the face and stomach). After seven days of interrogation and detention, he had been taken to appear before the prosecutor and then released. The official conducting the interview asked the applicant directly whether he had converted to Christianity. He denied this to be the case but said that he liked to read books which made him question his religion.
9. On 24 October 2012 the Asylum Service refused the applicant’s application and ordered him to leave the territory of Bosnia and Herzegovina within fifteen days of the date that decision became final. It held that his statements were credible but that the security situation of the Christian minority in Iran was not such as to justify the applicant’s fear of ill-treatment. Following his arrest and detention in 1996 the applicant had no other problems with the authorities although by his own admission he continued to read “forbidden” literature and had expressed his wish to convert to Christianity publicly to his friends. It concluded that there was no real risk that the applicant would be ill-treated if returned to Iran.
10. On 3 January 2013 the State Court upheld that decision and it became final. The court held that the applicant had never been prosecuted for the possession of banned literature. The incident to which he referred occurred seventeen years ago and there was no evidence that the applicant had been persecuted afterwards. It further held that although members of certain religious minorities in Iran were persecuted (such as Jewish and Baha’is), which was evident from the relevant international reports, the applicant had not proved that his personal circumstances gave fear to a real risk of treatment contrary to Article 3 of the Convention. The fact that he possessed certain forbidden books was not, in itself, sufficient to show that, if deported, he would be exposed to a real risk of treatment contrary to Article 3 of the Convention. His asylum application appeared to be motivated rather by his desire to reach western Europe.
11. On 6 March 2013 the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). Those proceedings are still pending.
12. On 6 June 2013 the Embassy of the Islamic Republic of Iran in Sarajevo informed the Aliens Service that the applicant’s name and nationality could not be verified.
B. Relevant domestic law
1. Aliens Acts 2008
(a) Eligibility for international protection (refugee status and subsidiary protection) and for leave to remain on humanitarian grounds
13. The Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu, Official Gazette of Bosnia and Herzegovina no. 36/08) entered into force on 14 May 2008. Section 105 thereof provides that a refugee is an alien who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside the country of former habitual residence, is unable or, owing to such fear, unwilling to return to it. The same provision defines a person eligible for subsidiary protection as an alien who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of the death penalty or execution, torture or inhuman or degrading treatment or punishment in the country of origin or in the country of habitual residence, or that there is a serious, individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict, and who is unable, or, owing to fear, unwilling to avail himself or herself of the protection of that country.
The principle of non-refoulement is incorporated in section 91 of the Act, which reads as follows:
“An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not the person concerned has been granted international protection. The prohibition of return or expulsion (non-refoulement) shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory either.”
Pursuant to section 118, an alien whose claim for international protection has been refused will nevertheless be granted leave to remain on humanitarian grounds, if his or her removal would breach the principle of non-refoulement.
(b) Deportation order and removal directions
14. A deportation order does not specify the destination country. An appeal against a deportation order suspends deportation (section 87), as do a claim for international protection and an application for judicial review against a refusal of such a claim (sections 92, 109(9) and 117).
Pursuant to section 93, once an alien has become expellable, removal directions are issued within seven days. A destination country is specified in the removal directions (section 93(4)). An appeal against removal directions does not suspend deportation.
Pursuant to section 95, a destination country could be a country of origin, a country of habitual residence, a country from which an alien came to Bosnia and Herzegovina or any receiving third country.
COMPLAINT
15. The applicant complained that he would face a real risk of ill-treatment if deported to Iran. He relied on Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
THE LAW
A. The parties’ submissions
16. The Government submitted that the applicant had failed to use all available domestic remedies because he had not appealed against the deportation order of 17 September 2012 (see paragraph 7 above). They further maintained that the application was premature as the case was still pending before the Constitutional Court. The Government also argued that the applicant’s complaint was manifestly ill-founded: on 6 June 2013 the Government was informed by the Embassy of the Islamic Republic of Iran in Sarajevo that the applicant’s name and nationality could not be verified. His country of origin was therefore unknown and his allegations regarding the ill-treatment he would potentially face in Iran were manifestly-ill founded.
In any event, the applicant’s statements regarding his religious beliefs, on which he had based his asylum application, were contradictory and unsubstantiated. He had intentionally given contradictory statements in an attempt to mislead the competent authorities and to abuse the asylum system of the respondent State. It appears that his primary intention was to stay in Bosnia and Herzegovina so that he could afterwards get to one of the countries of the European Union.
17. The applicant argued that he could not have appealed the deportation order of 17 September 2012 because he had no legal assistance at that time and the decision had been written in one of the official languages of Bosnia and Herzegovina. Furthermore, his mental state at the time had not been such as to allow him to understand its content. For these reasons, the domestic remedy in question was neither effective nor accessible. He also argued that an appeal to the Constitutional Court could not be considered an effective domestic remedy as it does not have automatic suspensive effect and a decision on a request for interim measures would be unduly delayed.
The applicant maintained his claims that he would be subjected to ill-treatment if deported to Iran because of his apostasy or the attribution of such beliefs to him. The competent domestic authorities had wrongly identified the group to which he belonged. They assessed his asylum application in the light of the situation of the Christian community in general in Iran, instead of the community of those who had committed apostasy. The applicant further argued that in the domestic proceedings he had admitted to publicly expressing his wish to convert to Christianity and that, if his statements were considered contradictory, the competent authorities had a procedural duty to ask him to clarify them. Given the nature of the political regime in Iran and the persecution to which converts to Christianity are exposed, it was to be expected that he would not have been outspoken about his religious beliefs to the Iranian authorities.
18. The European Centre for Law and Justice submitted that converted Christians were harassed and persecuted by domestic authorities. Although apostasy was not codified in the Iranian Penal Code, Article 167 of the Constitution instructs the judicial authorities to make their judgment based on “authoritative Islamic sources and authentic fatwa”. According to prevailing fatwas, apostasy is punishable by death. They further maintained that several converted Christians in Iran had been arrested and subjected to ill-treatment. Some of those individuals were imprisoned and some Christians had had to flee from Iran and seek asylum in other countries.
B. The Court’s assessment
19. The Court reiterates 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. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215).
20. However, it is well established in the Court’s case-law that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see Chahal v. the United Kingdom, 15 November 1996, §§ 73-74, Reports of Judgments and Decisions 1996‑V; Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008; and NA. v. the United Kingdom, no. 25904/07, § 109, 17 July 2008).
21. The Court does not find it necessary to examine the Government’s objections concerning the issue of exhaustion of domestic remedies, as the application should in any event be declared inadmissible for the reasons set out below.
22. The applicant complained that he would face a real risk of ill-treatment if deported to Iran on account of his alleged apostasy. However, from the information received from the Embassy of the Islamic Republic of Iran in Sarajevo (see paragraph 12 above), it appears that his Iranian nationality could not be verified. Consequently, he cannot be deported there. The applicant did not challenge this information. In these circumstances, the Court considers that the applicant’s allegations regarding the ill-treatment he would potentially face in Iran are ill-founded within the meaning of Article 35 § 3 of the Convention.
23. Accordingly, the application is manifestly ill-founded and must be rejected as inadmissible, pursuant to Article 35 § 4.
24. It is appropriate to discontinue the application of Rule 39 of the Rules of Court. Moreover, if the applicant becomes expellable to Iran and would still face a risk of ill-treatment, he will have the opportunity to lodge new application with the Court including the possibility of requesting the application of new interim measures.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy