AS TO THE ADMISSIBILITY OF
Application No. 28038/95
by M.A.R.
against the United Kingdom
The European Commission of Human Rights sitting in private on
16 January 1996, the following members being present:
Mr. S. TRECHSEL, President
MM. E. BUSUTTIL
J.-C. SOYER
H. DANELIUS
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. M. de SALVIA, Deputy 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 15 June 1995 by
M.A.R. against the United Kingdom and registered on 27 July 1995 under
file No. 28038/95;
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
15 January 1996 and the observations in reply submitted by the
applicant on 25 March 1996 and on 7 and 8 January 1997;
- the parties' oral submissions at the hearing on 16 January 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Iranian citizen born in 1954 and is currently
detained in Oxfordshire pending expulsion to Iran. He is represented
before the Commission by Jawaid Luqmani, a solicitor practising in
London. The facts as submitted by the parties may be summarised as
follows.
On 27 September 1976 the applicant arrived in the United Kingdom
as a visitor, he remained as a student and returned to Iran in
September 1978. The present Iranian government came into power in 1979.
In December 1981 the applicant left Iran illegally (it being unlawful
at the time to leave Iran without permission). He reached Pakistan
where he procured a forged passport and plane tickets to London.
The applicant arrived in London on 5 January 1982 and claimed
political asylum. The Government claim that the applicant was
interviewed three times in relation to his application, that he claimed
asylum during the first interview on the grounds of a lack of social
freedom in Iran but during the second interview on the grounds that he
was a member of the Mujahadeen and that on the basis of those two
interviews the applicant was refused asylum.
The applicant then furnished an affidavit dated 12 March 1982 to
the Home Office in which he claimed, inter alia, that he had been an
active member of the Mujahadeen; that he had been forced to go into
hiding as he had been sought by the revolutionary guards; that a long-
standing friend of his had been arrested by the revolutionary guards
for possession of Mujahadeen newspapers; that he fled Iran in December
1981 with the help of a friend; that his father had informed the
applicant that that friend had been imprisoned; that his father had
been questioned about the applicant and that it was clear to the
applicant that the revolutionary guards had his name and would be
looking for him. The UNHCR also intervened and requested the Home
Office to grant the applicant asylum. The Government submit that they
gave the applicant the benefit of the doubt and accepted that his
initial failure to mention his political involvement could be explained
on the basis of a fear of being immediately returned to Iran.
On 15 March 1982 the applicant was accorded refugee status by the
United Kingdom under the 1951 Geneva Convention. The applicant was
given leave to stay initially until 7 May 1983.
Subsequently, the applicant was convicted of a number of drugs
related offences. On 20 December 1983 and 21 February 1985 the
applicant was convicted of possession of heroin for which offences he
was fined and sentenced to three months imprisonment, respectively. On
27 February 1985 he was again convicted of possession of drugs. The
court imposed an eighteen month prison sentence and recommended the
applicant for deportation.
The Home Secretary consulted the UNHCR which indicated that the
applicant's refugee status should not be affected by his offences.
However, the UNHCR added that should he re-offend they would not
support any application for a renewal of leave to remain. In a letter
dated 10 July 1985 the Home Office confirmed to the applicant's then
solicitors that no deportation action would be taken against the
applicant and that the applicant had been given leave to stay for a
further 12 months. That letter also indicated that the Home Office
understood that the UNHCR had been in touch with the applicant's
solicitors and that they hoped that the contents of the UNHCR's letter
to the applicant's solicitors (which appears to have contained the
warning that the applicant may lose protection against deportation
should he re-offend) would be brought to the applicant's attention. The
applicant claims he was never informed of this decision of the Home
Office nor of the warning given by the UNHCR.
An application for an extension of leave to remain as a refugee
was made on 26 January 1987. However, prior to a decision on this
application, the applicant was convicted on 9 June 1988 of being
involved in supplying heroin. He was sentenced to 10 years
imprisonment, subjected to a forfeiture order and recommended for
deportation on completion of sentence.
On 20 February 1989 the UNHCR confirmed that the applicant's
circumstances were sufficiently grave to warrant the application of
Article 33(2) of the 1951 Geneva Convention on the Status of Refugees
(in which case the applicant would not lose his refugee status but
rather the protection against deportation because of his being
convicted of a serious crime and consequently constituting a danger to
the community of the host country).
By letter dated 17 April 1989 the Home Secretary refused the
application for leave to remain and indicated that the applicant, being
a danger to the community, had brought himself within the terms of
Article 33(2) of the 1951 Geneva Convention and should not therefore
benefit from any further protection by the United Kingdom. The Home
Secretary put off a decision as to the implementation of the
deportation recommendation until nearer the date of the applicant's
release from prison.
On 31 March 1993 the applicant was granted parole but he was
detained as a result of the outstanding matter of his expulsion.
Subsequently, the Home Secretary decided that the question of
deportation should be decided in accordance with section 3(5)(b) of the
Immigration Act 1971 rather than by implementing the court's
recommendation for deportation.
On 10 April 1993 the applicant wrote to the Home Office
explaining that he had left Iran because, inter alia, of his political
activity and that if he was sent back to Iran he would be going to his
death. On 11 June 1993 the applicant was interviewed by an Immigration
Officer. On 25 August 1993 the Home Secretary issued a deportation
order pursuant to section 3(5)(b) of the Immigration Act 1971.
The applicant appealed to a Special Adjudicator. The Home
Secretary, in a statement before the Special Adjudicator, indicated
that the Home Office was "informed that there was no evidence that
Iranians who had served sentences for criminal offences abroad would
be liable to further prosecution or face retribution on return to
Iran". On 10 June 1994 the applicant's father wrote to him indicating
that the person who had helped the applicant to leave Iran was in
detention as were others who had previously left Iran with that
person's assistance.
By letter dated 22 November 1993 Amnesty International informed
the applicant's legal representatives of the current position in Iran.
The letter referred to the continuance of systematic human rights
abuses which had commenced since 1979, to the arbitrary nature of
justice in Iran, to long-term imprisonment of members or supporters of
opposition groups and to the widespread use of torture and of the death
penalty. That letter went on to note that mere suspicion of political
opposition has been, in certain cases, shown to be sufficient to
warrant such treatment and that many of those charged and tried are
denied access to legal representation and to a trial in public - the
trials often being held in prison, summarily and in secret. The
prosecution, arrest and detention of long-term absentees from Iran on
their return was described as clearly a risk. That letter also
referenced the vigorous pursuit of the nationwide anti-drugs campaign
introduced in 1989 and the execution of several thousands of persons
for drugs related offences. The letter concluded that "given the
arbitrary nature of justice in Iran and the ongoing anti-drug campaign,
it is our view that the possibility of those returning to Iran
following conviction abroad for drug-related offences being subjected
to double jeopardy cannot be ruled out".
On the 13 June 1994 the Special Adjudicator, while recognising
that it was a "difficult and troubling case", rejected the applicant's
appeal.
The following appeal before the Immigration Appeal Tribunal was
concerned with two questions: did the applicant fall within the
provisions of Article 33(2) of the 1951 Geneva Convention and, if so,
was the decision to make the deportation order justified? The
Immigration Appeal Tribunal answered both questions in the affirmative
and rejected the applicant's appeal on 25 August 1994. The Tribunal
made reference to documents which had been placed before the Special
Adjudicator referring to human rights abuses of many and serious kinds
in Iran (including executions of drugs offenders and the arrest and
interrogation of persons returning from abroad) and to the heightened
risk in this respect for a person returning after years abroad as a
refugee. The tribunal acknowledged that the risk to the applicant on
his return to Iran would be a relevant factor in considering his
expulsion but concluded that the risk to the applicant if he returned
to Iran was outweighed by the risk to the community if he remained in
the United Kingdom.
The Court of Appeal rejected the applicant's appeal on
2 May 1995. That court agreed that, even in a situation where the
United Kingdom is released from its obligation to guard the refugee as
a result of the provisions of Article 33 (2) of the 1951 Geneva
Convention because of the threat posed by the refugee to national
security, there is still a balancing exercise to be carried out
(between the risk to the applicant if expelled and the security risk
in the United Kingdom if he is not). However, the Court of Appeal
concluded that the Tribunal had adequately carried out that balancing
exercise.
On 12 June 1995 the applicant's parents wrote to the Home Office
wondering why the applicant was still in detention. The letter pointed
out that the applicant had served his sentence and wanted to go backto
Iran but that the Home Office was unnecessarily detaining him. By
facsimile dated 25 July 1995 the applicant was given his removal
directions to be effected on 27 July 1995.
By facsimile dated 26 July 1995 Amnesty International confirmed
that the position, outlined in its letter dated November 1993, still
pertained.
On 17 March 1996 the applicant's counsel confirmed in a written
opinion that there was not the slightest prospect in this case that the
Court of Appeal or the House of Lords would grant leave to appeal from
the Court of Appeal decision of 2 May 1995 (which should be on a point
of law only) due essentially to the factual nature of the Court of
Appeal's finding against the applicant.
On 7 January 1997 Amnesty International gave an update of the
position in Iran to the applicant's representative as regards Iranian
nationals returning from abroad after prolonged periods of absence and,
in particular, following conviction abroad for drug-related offences.
The letter confirmed that it was Amnesty's view that there was no
reason to believe that the position had changed since 1993. The letter
went on to note that as of January 1997 the long-standing pattern of
human rights abuses in Iran continues with widespread political
imprisonment - either without charge or after an unfair trial - of both
known and suspected members and supporters of various opposition groups
and with the widespread use of torture and the death penalty. The
letter also referred to new legislation which came into effect in
May 1995 and which has, in Amnesty's view, further compromised the
independence of the judiciary.
COMPLAINTS
The applicant complains that his expulsion to Iran would amount
to a violation of Articles 2, 3, 5 and 6 of the Convention because he
runs a real risk of treatment contrary to those Articles if he is so
expelled in view of his political activities against the regime while
in Iran, his refugee status in the United Kingdom and in light of his
drugs convictions.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 June 1995. On 26 July 1995,
pursuant to an application for a ruling by the Commission under Rule
36 of the Commission's Rules of Procedure, the Government of the United
Kingdom undertook not to expel the applicant pending the Commission's
fuller consideration of the case.
The application was registered on 27 July 1995.
On 14 September 1995 the Commission decided to communicate the
application to the respondent Government and to request the Government
to submit observations on the admissibility and merits of the
applicant's complaints under Articles 2, 3, 5 and 6 of the Convention
as regards his proposed expulsion.
The Government's observations were received on 15 January 1996
after two extensions of the time limit fixed for that purpose. The
observations of the applicant were received on 25 March 1996 after one
extension of the relevant time limit.
On 23 May 1995 the Commission decided to invite the parties to
an oral hearing. Further observations were submitted on behalf of the
applicant on 7 and 8 January 1997. At the hearing, which took place on
16 January 1997, the Government were represented by Ms. Susan McCrory,
Agent, Foreign and Commonwealth Office, Mr. Iain Burnett, Counsel, and
Messrs Clive Osborne and Steven Crunkhorn as advisers. The applicant
was represented by Mr. Rick Scannell, Counsel, Mr. Jawaid Luqmani,
Solicitor, and Ms. Nuala Mole, adviser.
THE LAW
The applicant complains that his expulsion to Iran would
constitute a violation of Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of
the Convention.
1. Article 26 (Art. 26) of the Convention
The Government argue that the applicant has not exhausted
domestic remedies in that he did not make an application for leave to
appeal from the decision of the Court of Appeal of 2 May 1995.
The applicant submits that an application for appeal had no
chance of success. He refers to his counsel's opinion dated
17 March 1996 which states that it was not "remotely likely" that any
application for leave to appeal would be accepted by the Court of
Appeal or the House of Lords. This was because, inter alia, the legal
point pursued by the applicant before the Court of Appeal (to the
effect that, even when the applicant has lost the protection of the
1951 Geneva Convention, the question of his expulsion should still
involve some consideration of the risks faced by the applicant on
expulsion and the balancing of such issues against the relevant public
security interests involved) was accepted by that court. The finding
of the court which went against the applicant was of a factual nature,
the Court of Appeal finding that the Immigration Appeal Tribunal had
correctly carried out the relevant balancing exercise.
The Commission recalls that according to the constant case-law
of the Convention organs the obligation contained in Article 26
(Art. 26) of the Convention to exhaust domestic remedies requires only
that an applicant make normal use of remedies which are effective,
sufficient and accessible and that the burden of proving the existence
of such remedies lies upon the State invoking non-exhaustion of
domestic remedies (see, for example, No. 12742/87, Dec. 3.5.89, D.R.
61 p. 206 and 17579/90, Dec. 13.1.93, D.R. 74 p. 139).
In the present case, the Commission notes the acceptance by the
Court of Appeal of the applicant's legal ground of appeal, the factual
nature of the matters upon which the Court of Appeal found against the
applicant and the necessity for an appeal to the House of Lords to be
based on a point of law. It is also noted that the Government have not,
apart from making the non-exhaustion submission, indicated on what
basis any such application for leave to appeal could have been
formulated or referred to any similar application for leave to appeal
having been successful.
Accordingly, the Commission concludes that the application cannot
be declared inadmissible on grounds of non-exhaustion of domestic
remedies.
2. Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of the Convention
In the first place, the applicant complains that if he is
expelled to Iran he runs a real risk of treatment contrary to Articles
2 and 3 (Art. 2, 3) of the Convention.
The Government submit that the applicant's expulsion to Iran
would not give rise to a violation of Articles 2 and 3 (Art. 2, 3) of
the Convention. The Government argue that the applicant, on whom they
contend the burden of proof lies, has not demonstrated a real risk of
treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention.
In this respect, the Government submit, inter alia, that other
countries have sent back serious offenders to Iran who have not
thereafter been subjected to the treatment the applicant suggests
awaits him and that certain persons granted refugee status by the
United Kingdom have voluntarily returned to Iran with no reported
adverse consequences. The Government do not accept that the Amnesty
reports referred to by the applicant indicate a real risk for the
applicant of "double jeopardy" or that the grant of refugee status or
the applicant's long absence from Iran with that status would result
in particular interest being shown by the Iranian authorities in the
applicant on his return. The Government argue that the relevant risk
to the applicant is to be assessed in light of the circumstances
prevailing when the Commission considers the application and that the
situation since the applicant was granted asylum has considerably
improved.
The applicant submits that he has demonstrated that he suffers
a real risk of treatment contrary to Articles 2 and 3 (Art. 2, 3) of
the Convention. He refers to the political situation in Iran and
alleges deficiencies in the judicial system, a long record of human
rights abuses in Iran, a vigorous implementation of the anti-drugs
campaign initiated in 1989, widespread persecution of political
dissidents and of those using or profiting from drugs, together with
an increasing number of executions of drugs offenders and political
dissidents. He refers in these respects to, inter alia, various Amnesty
reports relating to the situation in Iran.
He also refers, inter alia, to his previous political activities
against the current regime in Iran, to his consequent long absence from
Iran as a political refugee and to the intervention of the UNHCR in his
favour when he applied for refugee status. Moreover, his drugs
convictions expose him to the possibility of being charged, tried and
sentenced to death by the Islamic Revolutionary Court in an entirely
arbitrary manner. The applicant considers that he has established a
"real risk" of treatment contrary to Articles 2 and 3 (Art. 2, 3) of
the Convention on the basis of each of the above factors or on the
basis of the cumulative effect of all such elements.
Specifically in relation to Article 2 (Art. 2) of the Convention,
the applicant notes that Article 2 (Art. 2) in its terms accepts the
execution of a death sentence of a court following conviction of a
crime for which that penalty is provided by law. However, he argues
that there is a real risk of his extra-judicial execution. In addition,
even if he were to be tried in Iran, he argues that the judicial
institutions and procedures by which he would be tried are so deficient
that his execution following such procedures would engage the United
Kingdom's responsibility under Article 2 (Art. 2) of the Convention.
The applicant also emphasises the absolute and non-derogable nature of
Articles 2 and 3 (Art. 2, 3) of the Convention, arguing that once
reasonable risk is established, his expulsion would amount to a
violation of those Articles. In this respect, the applicant relies on
the judgment in the Ahmed case (Eur. Court HR, Ahmed v. Austria
judgment of 17 December 1996, to be published in the Reports of
Judgments and Decisions for 1996) and on the Chahal judgment (Eur.
Court HR, Chahal v. the United Kingdom judgment of 15 November 1996,
to be published in the Reports of Judgments and Decisions for 1996).
The applicant further complains that his expulsion would
constitute a violation of Articles 5 and 6 (Art. 5, 6) of the
Convention in that he would run a real risk of detention and trial in
Iran in flagrant breach of the rights guaranteed by those Articles.
The Government do not accept that the State's responsibility is
engaged as regards the applicant's submissions of a risk of a failure
by Iran to meet the requirements of Article 6 (Art. 6) of the
Convention.
The Government rely, inter alia, on the fact that Article 6
(Art. 6) of the Convention does not have the same non-derogable nature
as Articles 2 and 3 (Art. 2, 3) of the Convention. As to the Court's
judgments in the Soering case and the Drozd and Janousek case (Eur.
Court HR, Soering v. the United Kingdom judgment of 7 July 1989, Series
A no. 161, p. 45, para. 113 and Drozd and Janousek v. France and Spain
judgment of 26 June 1992, Series A no. 240, p. 34, para. 110), the
Government note that those cases admit of the possibility of such state
responsibility only where a "flagrant denial" of the rights under
Article 6 (Art. 6) of the Convention has occurred or is likely to
occur.
However, the Government submit that those cases are confined to
situations concerning co-operation between the relevant respondent
Government and the third country in light of specific criminal
proceedings either past or envisaged. The former application concerned
extradition to the United States with a view to that applicant's trial
and the latter concerned detention in France of prisoners who had
already been tried in Andorra. In the present case, the Government
argue that there is no element of cooperation between the United
Kingdom and the Iranian authorities. In addition, there is no evidence
that any trial in Iran is envisaged or of any real risk that such a
trial would take place in Iran on the applicant's return. Accordingly,
the expulsion of the applicant does not engage the Government's
responsibility under Article 6 (Art. 6) of the Convention. The
Government rely on the above submissions in arguing that no state
responsibility is engaged under Article 5 (Art. 5) of the Convention
and that, in addition, there is no evidence that the applicant would
be detained by the Iranian authorities in the manner which he
describes.
The applicant accepts that, as a general rule, Contracting
parties do not have to ensure that the guarantees contained in Articles
5 and 6 (Art. 5, 6) of the Convention will be respected in the
receiving State. However, he refers to his above submissions as to the
position in Iran and he makes particular reference to recent
legislation which has changed the judicial system and which has, in his
view, rendered his position even more critical. He argues that he runs
a real risk of being detained in a system which does not "even
contemplate" the legal safeguards of Article 5 (Art. 5) of the
Convention and of being tried in circumstances that fundamentally
breach Article 6 (Art. 6) of the Convention. This would amount to a
"flagrant denial" of the rights guaranteed by Articles 5 and 6
(Art. 5, 6) of the Convention and, applying the above-mentioned Drozd
and Janousek and Soering judgments, would engage the responsibility of
the United Kingdom and constitute a violation of those Articles.
The Commission considers that the complaints of the applicant
under Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of the Convention raise
issues of fact and law which are of such complexity that their
determination should depend on an examination of the merits. These
complaints cannot therefore be regarded as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other grounds for declaring them 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
Deputy Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy