Information Note on the Court’s case-law 22
September 2000
Kalantari v. Germany (dec.) - 51342/99
Decision 28.9.2000 [Section IV]
Article 3
Expulsion
Expulsion to Iran: admissible
The applicant, an Iranian national, fled Iran and entered Germany where he applied for the status of political refugee. The Federal Office for Refugees rejected his application. That rejection was upheld by the Administrative Court and then by the Administrative Court of Appeal. A new application made by the applicant was rejected by the Federal Office for Refugees and, on the ground that the applicant had failed to show that he would be at risk of political persecution if he returned to his country, the Administrative Court dismissed his application to have the expulsion order stayed. The Federal Constitutional Court did not allow the appeal. The trial on the merits is still pending in the Administrative Court, but since it has no suspensive effect, the applicant could be expelled to Iran at any moment. He fled to France, where he is probably still in hiding. In January 2000 the Fourth Section decided to apply Rule 39 of the Rules of Court and asked the parties for more information relating in particular to the persecution suffered by the applicant’s family. The Government informed the Court that they were not in a position to furnish the information requested. The applicant’s sister, however, provided further information and produced documents relating to the persecution suffered by her family. The Special Rapporteur on Torture at the Human Rights Commission of the United Nations sent the Court an extract from a public report which mentioned an appeal by the Special Rapporteur against the applicant’s expulsion in August 1999 owing to the risk of the applicant being tortured in Iran.
Admissible under Article 3: in order to determine whether the exhaustion rule had been complied with, it was necessary to take into account the circumstances of the case. In the case before the Court, when dismissing the application for refugee status the German authorities had not mentioned the fate of the members of the applicant’s family in Iran or the dangers he would run if he was sent back there, despite the fact that the applicant had from the very first hearing before the Federal Office of Refugees emphasised the persecution to which his sisters in Iran had been subjected and had had in particular lodged a certificate by an Islamic revolutionary court indicating that one of his sisters had been arrested and imprisoned. In addition, the German authorities had received evidence during the proceedings of the persecution suffered by his sisters and must have been aware of the appeals against the applicant’s expulsion made by certain international organisations and associations, such as the United Nations Human Rights Commissioner. The evidence regarding the situation of the applicant’s family in Iran coupled with his political activities during his exile should have enabled the authorities to assess the risks of torture which the applicant would run if he was expelled to Iran. It was for the authorities to seek further information if they considered it necessary. Furthermore, the applicant had already made a further application for political asylum – which was still pending on the merits – and a number of unsuccessful applications for a stay of execution of the expulsion order. Lastly, under the domestic legislation in force on aliens, a fresh application for political asylum had to be made in principle within three months of the applicant becoming aware of the existence of new evidence. In the case before the Court, that period had long since expired. In conclusion, the applicant could not be required to bring new proceedings concerning his application for asylum. Thus, the Government’s objection that domestic remedies had not been exhausted was unfounded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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