AS TO THE ADMISSIBILITY OF
Application No. 37014/97
by Mahammad Rahim ASPICHI DEHWARI
against the Netherlands
The European Commission of Human Rights sitting in private on
12 March 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 June 1997 by
Mahammad Rahim ASPICHI DEHWARI against the Netherlands and registered
on 23 July 1997 under file No. 37014/97; Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
27 October 1997 and the observations in reply submitted by the
applicant on 8 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Iranian citizen, born in 1959, and currently
residing in the Netherlands. Before the Commission he is represented
by Mrs M. Jansen-Takes, a lawyer practising in Utrecht.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant has been active as a political opponent of the
Iranian regime since 1977. Initially, while studying at the university
of Zahedan, he had been involved with organisations (which in some
cases he had helped found) fighting for the rights of the Baluchi
minority. In 1980 he had also become involved with the illegal,
communist Sazmaneh Cherkhaye Feda'iye Khalq-e-Iran (the Iranian
People's Fedayan Organisation, hereinafter: Fedayan). His activities
at that time included the organisation of large scale manifestations,
the showing of films and the selling of communist, marxist literature.
In April 1980 the university building was attacked by Government
forces during which the applicant was wounded and, together with some
thousand other students, detained in a building in Zahedan. He was
ill-treated, threatened with death and subjected to a simulated
execution. The students were released after one month following protest
actions at national level. However, the applicant was not allowed to
return to university.
After his release the applicant continued his activities for the
Fedayan. Also in 1980, this organisation split into two factions: the
"Majority" (Aksariyyat) and the "Minority" (Aghaliyyat), the latter,
which the applicant joined, being the more radical in its rejection of
the current regime. The applicant was the head of an area committee and
as such in charge of three sub-committees. In August 1981 the applicant
was betrayed by a member of the Fedayan (Majority), arrested on
suspicion of communist activities and kept in detention on remand
pending the judicial investigation. The first month of his detention
he was kept in Zahedan, then he was flown to the Evin prison in
Teheran. Despite the ill-treatment meted out to him (inter alia,
beatings, falakka, being suspended from the arms) the applicant denied
the accusations against him and refused to name his comrades. After two
years he was released as there was no evidence against him. As a
condition of his release he had to sign a declaration to the effect
that he would refrain from future political activities and he had to
post bail with the title-deeds to his house. He was also disqualified
from military service and was given a "red card" (Kart-e-Mahrumiat az
Khedmat). Pursuant to guidelines issued by the Cultural Revolutionary
Council this card was given to persons who had been detained for two
years or longer in connection with their political activities. As a
result he was unable to find employment as a civil servant since he
could not obtain a declaration of good behaviour or of having performed
or of having been exempted from military service.
In 1986 the applicant was given the choice by the Fedayan
(Minority) to join the armed resistance or to move to another town in
order to continue his political activities there. The applicant moved
to Teheran. After having found a job as a welder in a factory he once
again took up his political activities. These consisted of the
organising of labourers to campaign against working conditions and to
make them politically aware, the recruitment of new members, and the
organisation of meetings. At the factory he was the leader of a cell
which consisted of three other people. The cell would have weekly
meetings at a member's house to discuss, inter alia, when and where to
distribute pamphlets. They collected addresses of colleagues who had
had conflicts with the Islamic security forces or the management of the
factory as they considered that these people might be suitable for the
Fedayan organisation. The applicant would pass these addresses on to
his contact person within the Fedayan. When engaged in their illegal
activities, the cell members used pseudonyms since according to the
safety regulations of the organisation they were not supposed to know
each other's real names.
The employees at the factory elected the applicant as a member
of a strike committee. He submits that he could not have refused to
accept this election since that might have made his colleagues suspect
him of supporting the regime. In September 1991 a strike broke out and
the factory premises were occupied in protest against low wages and the
lack of job security and health insurance. Preparations for this strike
had taken place in secret; the strike committee came forward at the
beginning of the negotiations with the factory management. Most of the
strikers' demands were fulfilled and after three days the strike and
occupation came to an end. However, a few days later the applicant was
summoned to the director's office where he was arrested by two members
of the security services as he was suspected of having instigated the
workers' revolt. He was blindfolded and transported to a building where
he was detained for one month. During this time he was beaten and
forced to stand upright for long periods of time.
The employees at the factory again threatened to go on strike if
the director would not bring about the applicant's release. The
director then drew up a declaration to the effect that the applicant
was indispensable at the factory; he also told the security services
that an eye would be kept on the applicant at the factory. Prior to his
subsequent release, the applicant was made to sign a statement that he
would no longer be active in the labour movement. Upon his return to
the factory he was not allowed to continue his work as a welder but he
was made a driver instead.
On 23 November 1994 two of the applicant's cell members were
arrested while distributing pamphlets. This was observed by the third
cell member who informed the applicant. The applicant told the third
member to take care as the other two were likely to 'betray' the two
of them under torture. He advised him to arrange leave from work and
to find a different address. The applicant then had a meeting with his
contact person who said that the applicant, in view of his past,
constituted a danger for all concerned and should therefore go to a
safe country. The contact person was going to find a "travel agent" and
raise money. Meanwhile, the applicant went into hiding. His family also
contributed financially to his journey out of Iran.
On 1 December 1994 the applicant left Teheran by car in the
company of a "travel agent". They crossed the border with Turkey on
foot. A second "travel agent" took him to Ankara, where he arrived on
5 December 1994. On 17 December 1994 a third "travel agent" took him
to istanbul and on 19 January 1995 he flew to the Netherlands using a
false passport. That same day he requested asylum in the Netherlands
or, alternatively, a residence permit for reasons of a humanitarian
nature.
The applicant submits that he has been informed that the Iranian
authorities have been looking for him and the third member of the cell
both at the factory and at their home address. His house has been
searched three times. Moreover, his family have been taken in for
questioning about the applicant's whereabouts three times. His wife and
three children left Teheran and moved to Baluchistan but, finding that
the authorities did not leave them alone there either, have since fled
to Pakistan.
In the interview which the applicant had with a liaison officer
(contact-ambtenaar) of the Netherlands Ministry of Justice on
3 February 1995 he said, inter alia, that despite the fact that he had
worked in the same factory as the other members of his cell for eight
years he did not know their real names. He added that he had not left
his country in 1982 even though he was living close to the border at
that time because he had wanted to be of use to his country.
The applicant's requests for asylum and a residence permit were
rejected by the State Secretary for Justice on 20 September 1995 as
manifestly unfounded. The State Secretary held that, in view of the
minor importance of the activities carried out by the applicant, he had
not manifested himself as an important political opponent. She further
considered that the arrests and periods of detention had not previously
given the applicant cause to leave his country and that he had not
substantiated why such a need had arisen in 1994.
The applicant filed an objection (bezwaarschrift) against this
decision which did not, however, have the effect of suspending his
expulsion. For this reason the applicant applied for an interim measure
(voorlopige voorziening) to the President of the Aliens Division
(Vreemdelingenkamer) of the Regional Court (Arrondissementsrechtbank)
of The Hague sitting at Amsterdam. Following a hearing on
26 January 1996, the President granted the requested interim measure
on 9 February 1996. The President considered that the applicant's
account could not immediately be dismissed as implausible and found
that it fitted to a sufficient extent into what was known about the
situation in Iran.
The applicant was heard by the Advisory Committee on Aliens
Affairs (Adviescommissie voor Vreemdelingenzaken) on 1 July 1996. In
accordance with this Committee's advice, the State Secretary rejected
the applicant's objection on 11 September 1996. Although she accepted
that the applicant had carried out activities for the Fedayan, the
State Secretary considered it unlikely that these activities were of
a more significant nature than the distribution of pamphlets and the
attending of meetings, and that he was being sought by the Iranian
authorities as a result of these activities. She further did not find
it plausible that the applicant had gone to work in a factory in
Teheran at the instructions of the Fedayan. In this respect the State
Secretary considered it unlikely that the applicant would not have
known the real names of his colleagues who made up the cell of which
he was in charge. She found it similarly unlikely that the applicant
would have organised a strike if he wanted to keep a low profile in
connection with his activities for the Fedayan.
The applicant filed an appeal against the decision of 1 July 1996
with the Aliens Division of the Regional Court of The Hague sitting at
Amsterdam. In these proceedings he submitted a number of declarations
from sister organisations operating in Europe which confirmed that he
had been politically active for the Fedayan (Minority) in Iran and
would be exposed to torture, detention and possibly execution upon
return to that country. He also stated that he did know the real names
of the people in his cell since they were colleagues of his, but that
he was not supposed to know their names.
Moreover, the applicant referred to an internal guideline of
10 May 1996 in force at the Ministry of Justice according to which
refugee status may be granted to an Iranian asylum-seeker who has made
a reasonable case for his assertion that he has carried out activities
in the past as a result of which he has experienced problems (such as
detention or convictions) and that he has continued his activities
after his release.
In her reply to the applicant's appeal memorial, the State
Secretary expressed surprise at the fact that the applicant had
suddenly denied that he did not know the names of the other members of
his cell. She assumed that the applicant had changed his account since
the arrested cell members could not have betrayed him if they had not
been aware of his identity. At the hearing before the Regional Court
on 5 February 1997 the applicant submitted in this respect that it was
clear from the record of his interview with the liaison officer that
he had in any event said on that occasion that the cell members knew
each other's addresses and that would have been sufficient for the
Iranian authorities to find him.
Following a hearing on 5 February 1997 the Regional Court
rejected the appeal on 20 February 1997. The Regional Court considered
that the decisive issue to be determined was the question whether the
applicant, following the arrest of his two fellow cell members on
23 November 1994, had sufficient reason to fear for his own arrest and
consequently, in view of his resistance activities in the past, for his
safety. In this respect the Regional Court noted that at the interview
with the liaison officer on 3 February 1995, the applicant had said
that he did not know the real names of these two men and that he had
repeated this when he was heard by the Advisory Committee on Aliens
Affairs. However, in his appeal memorial the applicant gave a different
version of his account which, in the opinion of the Regional Court, did
not make his assertion that he feared persecution plausible. In view
of the foregoing the Regional Court also did not find that there were
any circumstances indicating that the applicant, if expelled, would be
exposed to a real risk of being subjected to treatment covered by
Article 3 of the Convention.
COMPLAINTS
The applicant complains that by expelling him to Iran the
Netherlands authorities expose him to the risk of being killed since
he might be put to death either without a trial or following an unfair
trial on made-up charges, or of being subjected to ill-treatment in
view of the fact that he is known to the Iranian authorities as a
political opponent and a former political prisoner. Moreover, he
submits that he cannot expect a fair trial in Iran. In addition, the
fact that he left Iran illegally, which in itself constitutes an
offence, will lead the authorities to investigate his past thoroughly.
He invokes Article 2 of the Convention in conjunction with Article 1
of Protocol No. 6, and Articles 3 and 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 June 1997 and registered on
23 July 1997.
On 23 July 1997 the President decided to apply Rule 36 of the
Commission's Rules of Procedure until 31 October 1997 and to
communicate the application to the respondent Government. The
Government were asked whether the applicant, if expelled, would face
a real risk of being subjected to treatment in breach of Article 3 of
the Convention.
The Commission subsequently prolonged the application of Rule 36
on 30 October 1997 and 22 January 1998.
The Government's written observations were submitted on
27 October 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 8 January 1998.
On 12 December 1997 the Commission granted the applicant legal
aid.
THE LAW
The applicant complains that his expulsion to Iran would amount
to inhuman or degrading treatment contrary to Article 3 (Art. 3) of the
Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
He also invokes Article 2 (Art. 2) of the Convention in
conjunction with Article 1 of Protocol No. 6 (P6-1), and Article 6
(Art. 6) of the Convention. These provisions, insofar as relevant, read
as follows:
Article 2 (Art. 2) of the Convention
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
... "
Article 1 of Protocol No. 6 (P6-1)
"The death penalty shall be abolished. No one shall be condemned
to such penalty or executed."
Article 6 (Art. 6) of the Convention
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law..."
The Government submit that, insofar as it can be assumed that the
applicant was politically active, it cannot be said that in the light
of his personal circumstances he would run a genuine risk of being
exposed to inhuman treatment on his return to Iran. This applies to the
assessment of his situation both in the light of the information
available at the time of the contested decision, and in the light of
current information. In this respect the Government refer to a report
of the Netherlands Minister of Foreign Affairs of 13 June 1997
according to which the general situation in Iran has stabilised since
the early years of the Islamic revolution. The regime has consolidated
its position and repression, generally speaking, has decreased. The
report goes on to say, however, that there are still categories of
cases and certain circumstances in which Iranian citizens might
reasonably fear persecution or inhuman treatment. Thus, an undiminished
policy of repression is still in force against, inter alia, persons
regarded as counter-revolutionaries.
In reaching their conclusion, the Government have taken account
of the following points. It has neither been claimed nor established
that the applicant is at present wanted by the Iranian authorities. It
has not been convincingly demonstrated that the applicant was an
important political opponent or was known as such to the authorities.
Moreover, according to the Government, the fact that two members of his
cell were arrested after distributing pamphlets does not constitute
sufficient grounds to conclude that the applicant himself runs the risk
of being exposed to inhuman treatment. In respect of the question
whether or not the arrested cell-members knew his name, the Government
submit that the applicant has given different versions of his story at
different stages of the domestic proceedings. In the Government's view,
this does not enhance the credibility of his story.
The Government further contend that the applicant was released
without further problems after he was arrested in 1980 and 1981. The
applicant has, furthermore, made no statement to the effect that he was
wanted by the Iranian authorities during the period between 1983 and
1991 and it has therefore not been established that these authorities
paid any particular attention to him during that time. The Government
have further taken into consideration the fact that the applicant did
not leave Iran until 1994 and that his arrests and periods of detention
were thus not sufficient reason for him to leave the country.
Finally, the Government do not find that the applicant carried
out any significant activities in the period from 1983 to 1994 beyond
distributing pamphlets and attending meetings. According to information
from the Netherlands Ministry of Foreign Affairs the distribution of
illegal pamphlets carries only a light penalty and participating in
unlawful gatherings does not appear to provoke repression.
The applicant maintains that he has been an activist for the
Fedayan (Minority), a subversive political party which aims at the
overthrow of the regime, and that as a result of the arrest of the two
cell members while distributing pamphlets the Iranian authorities will
not only have been informed of this but will also have had their long-
lasting suspicions in that respect confirmed. He had said that he only
knew the two cell members by their pseudonyms because officially he was
not supposed to know their real names. As they had been his colleagues
and he had visited their homes, of course he had been aware of their
real names. In the asylum proceedings he had in any event made it clear
from the start that the arrested men knew his address. In fact, the
Iranian authorities have been to his house in search of him.
He submits that it cannot be deduced from the fact that he was
not arrested between 1983 and 1991 that his activities were
insignificant. It only indicates that the authorities did not find out
about his activities, and not that he would not have faced severe
problems if they had. The applicant also disputes the Government's
assertion that he was released without further problems after his
arrests in 1980 and 1981. He recalls that he was unable to continue his
studies, that he was disqualified from military service and employment
in the civil service, that he had to sign a statement that he would
refrain from future political activities and had to post bail with the
title deeds to his house.
According to the applicant, he should be considered as belonging
to the category of counter-revolutionaries in respect of whom
ill-treatment and torture still occur in Iran, as has been confirmed
by the report of the Netherlands Ministry of Foreign Affairs referred
to by the Government. Moreover, the applicant points, inter alia, to
the execution of four Fedayan (Minority) activists in November 1996 and
February/March 1997 to indicate that in spite of the decrease of
repression suggested by the Government, political opponents continue
to be detained and executed.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The Commission
concludes, therefore, that the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy