by : S.M.R. and M.M.R. (Names withheld) [represented by counsel]
victim: The authors
communication: 5 November 1997
against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
on 5 May 1999,
concluded its consideration of communication No. 103/1998, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
taken into account all information made available to it by the
authors of the communication, their counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The authors
of the communication are S.M.R., her husband M.M.R. and their two
children. The authors are Iranian citizens currently residing in Sweden,
where they are seeking refugee status. S.M.R. and M.M.R. claim that
they would risk imprisonment and torture upon return to the Islamic
Republic of Iran and that their forced return to that country would
therefore constitute a violation by Sweden of the Convention. They
are represented by counsel.
facts as presented by the authors
authors state that S.M.R. has been an active member of the illegal
organization the Mujahedin. Because of her political activities she
has been imprisoned twice by the Iranian authorities. She was first
arrested in 1982 and spent four years in the Evin-Ghezelhesar prison.
She was released in May 1986 when the authorities revised old sentences.
About the time of her release the Mujahedin launched a military offensive,
and she was arrested again in August 1986 together with other activists
who were seen as threats by the Iranian authorities. She was released
in May 1990 due to lack of evidence, but she had to report regularly
to the authorities for the following six months.
was ill-treated and tortured in prison, especially during her first
imprisonment. She states that she was beaten on the soles of her feet
and that she was flogged on two occasions. As a result of the flogging
she was unconscious and suffered renal haemorrhage. She was treated
in a hospital for two days before she was sent back to prison. She
also states that she was subjected to a fake execution.
2.3 In 1991
S.M.R. resumed her work for the Mujahedin. She was a member of a group
of four politically active women who produced leaflets for the Mujahedin
in her home, where they met three times a week. The reason why the
women always met in S.M.R.'s home was that her husband, because of
his profession, had a typewriter which the women used to produce the
leaflets. The authors state, however, that M.M.R. was unaware of the
political activities of his wife.
and her children arrived in Sweden on 21 July 1995 on a valid passport,
to attend the marriage of a relative. She states that at that time
she intended to return to Iran. While in Sweden she learned that her
husband, who was not politically active, had been arrested by the
Iranian security police in August 1995 and interrogated about the
political activities of his wife. The police had informed him that
the other women belonging to the political group in which S.M.R. was
active had been arrested and that one of the women had revealed his
wife's identity. The police had also searched the family's house and
confiscated the typewriter which had been used to produce the leaflets.
S.M.R. decided not to return to Iran, where she claims she risks being
imprisoned and tortured again.
and her two children applied for asylum on 30 November 1995. Her application
was rejected by the National Immigration Board on 30 January 1996.
On 25 November 1996, the Aliens Appeal Board turned down her appeal.
Following an application by S.M.R., the Aliens Appeal Board decided,
on 5 March 1997, not to expel her pending its decision regarding the
asylum claim of her husband.
leaving Iran illegally with the help of smugglers, M.M.R. arrived
in Sweden on 6 November 1996 and immediately applied for asylum. He
was later told by his mother in Iran that the Swedish police had informed
the Iranian authorities about his illegal departure from the country.
He would now risk imprisonment upon his return to Iran.
2.7 The National
Immigration Board rejected M.M.R.'s asylum claim on 23 April 1997.
On 27 October 1997, the Aliens Appeal Board dismissed his appeal.
Following the rejection of M.M.R.'s asylum claim, the Aliens Appeal
Board cancelled the stay of the deportation order against S.M.R. and
3.1 In view
of the fact that S.M.R. has previously been imprisoned and tortured,
and that her recent political activities have become known to the
Iranian Government, the authors claim that there exist substantial
grounds for believing that she, her husband and their children would
be subjected to torture if they were returned to Iran. Their forced
return would therefore constitute a violation by Sweden of the Convention.
3.2 The authors
draw the attention of the Committee to the fact that neither the National
Immigration Board nor the Aliens Appeal Board has questioned that
S.M.R. had been active in the Mujahedin organization and that she
had previously been imprisoned and tortured.
by the State party
4.1 By its
submission of 21 April 1998, the State party informed the Committee
that, following the Committee's request under rule 108, paragraph
9, of its rules of procedure, the National Immigration Board had decided
to stay the expulsion order against the authors while their communication
is under consideration by the Committee.
4.2 The State
party explained the domestic procedure applicable to the determination
of refugee status. It stressed that, in accordance with the Aliens
Act, an alien may never be sent to a country where there are reasonable
grounds for believing that he or she would be in danger of suffering
capital or corporal punishment or of being subjected to torture or
other inhuman or degrading treatment or punishment, nor to a country
where he/she is not protected from being sent on to a country where
he/she would be in such danger. An alien who is refused entry can
reapply for a residence permit if the application is based on circumstances
which have not previously been examined in the case and if either
the alien is entitled to asylum in Sweden or if it will otherwise
be in conflict with humanitarian requirements to enforce the decision
on refusal of entry or expulsion.
the admissibility of the communication, the State party submits that
it is not aware of the same matter having been presented to another
international instance of investigation or settlement. The State party
explains that the authors can at any time file a new application for
re-examination of their case with the Aliens Appeal Board, based on
new factual circumstances. Finally, the State party contends that,
with reference to what it says concerning the merits of the case,
the communication should be considered inadmissible as incompatible
with the provisions of the Convention.
4.6 As to
the merits of the communication, the State party refers to the Committee's
jurisprudence in the cases of Mutombo v. Switzerland and Tapia
Paez v. Sweden ., and the criteria established by the
Committee with respect to article 3 of the Convention, first, that
a person must personally be at risk of being subjected to torture
and, second, that such torture must be a necessary and foreseeable
consequence of the return of the person to his or her country.
4.7 The State
party reiterates that when determining whether article 3 of the Convention
applies, the following considerations are relevant: (a) the general
situation of human rights in the receiving country, although the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights is not in itself determinative; (b) the personal risk of the
individual concerned of being subjected to torture in the country
to which he would be returned; and (c) the risk of the individual
being subjected to torture as a foreseeable and necessary consequence
of return. The State party recalls that the mere possibility that
a person will be subjected to torture in his or her country of origin
is not sufficient grounds for his or her return to be incompatible
with article 3 of the Convention.
4.8 The State
party is aware of human rights violations taking place in the Islamic
Republic of Iran, including extrajudicial and summary executions and
disappearances, as well as widespread use of torture and other degrading
4.9 As regards
its assessment of whether or not the author would be personally at
risk of being subjected to torture if returned to Iran, the State
party relies on the evaluation of the facts and evidence made by the
National Immigration Board and the Aliens Appeal Board. Neither found
any reason to question that S.M.R. had been politically active for
the Mujahedin and that she had been imprisoned in the 1980s. However,
the Swedish authorities have found that some elements provided by
the authors regarding S.M.R.'s recent political activities and the
circumstances relating to her departure from Iran raise doubts as
to their credibility.
4.10 In its
decision of 30 January 1996, the National Immigration Board noted
that S.M.R. had been released from prison in 1990 for lack of evidence.
As to her political activities after her release, the Board found
it unlikely that the political group she claimed she was a member
of held meetings and produced leaflets three times a week in her house
without her husband's knowledge. The Board also found it improbable
that she was wanted by the Iranian authorities because a typewriter
had been found in her home. As to the circumstances of her departure
from Iran, the Board noted that S.M.R. had been able to obtain a national
passport in 1993 and that she had left Iran legally. This is an additional
indication that she was not of interest to the Iranian authorities.
In addition, the Board pointed out that she had waited four months
in Sweden before applying for asylum.
4.11 On 25
November 1996 the Aliens Appeal Board rejected the appeal of S.M.R.
and her children, adding to the findings of the National Immigration
Board that she had not applied for asylum until three months after
she allegedly learned that the authorities were looking for her in
Iran. In the Board's view, her explanation that she did not, until
that point, realize the proportions of the authorities' interest in
her was not convincing. The Board stated that the delay alone gave
reason to doubt her need of protection in Sweden. The Board further
stated that not only had S.M.R. been able to obtain a national passport
in 1993, but she had also been able to leave the country several times,
which shows that she was not of particular interest to the Iranian
authorities. The Board further found not credible her statement that
she had travelled to the Syrian Arab Republic at the request of the
authorities in order to prove that she was a true Muslim. The Board
considered that this was rather an attempt to explain the departure
stamps in her passport.
application for asylum was rejected by the National Immigration Board
on 23 April 1997. The Board noted that his grounds for requesting
asylum were connected to his wife's political activities in Iran,
activities which had not been considered of such nature as to justify
her protection in Sweden. M.M.R.'s claim that he risked imprisonment
for having left Iran without a visa was not regarded as grounds for
granting him protection.
Aliens Appeal Board turned down his appeal on 27 October 1997. The
Board noted that in September 1996, after the alleged detention in
August 1995, he obtained a valid passport and permission to leave
the country. Therefore, the Board concluded, he was not at that time
of special interest to the Iranian authorities. The Board also noted
that, when entering Sweden, he had stated that he had not experienced
any problems of a political nature in Iran.
State party reiterates that it does not question S.M.R.'s statement
in respect of imprisonment and ill-treatment in the past. What is
called into question is whether S.M.R. has been politically active
since 1991 in the manner claimed by her and therefore at risk of being
tortured if she returns to Iran at this time. In this context, the
State party points out several circumstances and elements in the authors'
account which give rise to doubts as to S.M.R.'s alleged political
activities during recent years.
the State party asserts that, according to reliable information available
to the Government, the Mujahedin has for many years been operating
from outside Iran only. Production and distribution of leaflets for
the Mujahedin within Iran consequently does not occur. Due to this
circumstance alone, S.M.R.'s statement concerning her political activities
is not credible.
State party also underlines the findings of the National Immigration
Board and the Aliens Appeal Board as to the authors' possession of
passports. S.M.R. was in possession of a valid national passport and
visa when entering Sweden. She obtained a passport in 1993 and had,
according to the stamps in it, left Iran on several occasions before
travelling to Sweden. In the initial investigation following her application
for asylum, S.M.R. stated that she had turned in her passport to the
authorities in 1995 in order to have her youngest child registered
in it. She further stated that when she applied for a new passport
she was requested by the authorities to travel to Syria in order to
prove that she was a true Muslim. The State party finds, in accordance
with the findings of the Boards, that this statement is not credible
but rather a construction devised to explain the departure stamps
in her passport. These circumstances contradict the assertion that
she was of special interest to the Iranian authorities at the time
of her departure. The State party also underlines the facts that M.M.R.,
after he had allegedly been detained in August 1995, stayed in Iran
for more than a year, that he had obtained a valid passport and that
he declared, when entering Sweden, that he did not have any problems
of a political character in Iran.
the State party draws the attention of the Committee to the fact that
S.M.R. has not been able to give any reasonable explanation as to
why she waited for more than four months before applying for asylum
in Sweden. The State party maintains that her explanation is not convincing,
especially as she alleged that her husband was arrested two weeks
after her arrival in Sweden.
4.18 In the
State party's view the decisive element in this case, in making the
risk assessment under article 3 of the Convention, is the credibility
that can be attached to the statements made by the authors of the
communication. In view of the circumstances recounted above, the State
party considers that S.M.R. and M.M.R. have not substantiated the
claim that they would run any particular personal risk of being detained
and tortured if they were to return to Iran.
State party concludes that, in the circumstances of the present case,
the authors' return to Iran would not have the foreseeable and necessary
consequence of exposing them to a real risk of torture. An enforcement
of the expulsion order against the authors would therefore not constitute
a violation of article 3 of the Convention.
recalls that the State party does not in any way question that S.M.R.
has been imprisoned and tortured in the past. He also points out that
the State party is aware of the serious human rights violations occurring
in Iran, including the widespread use of torture, and concludes that
there are substantial risks that S.M.R. would face torture again if
returned to Iran.
further argues that the act of deporting a person to a country to
which she fears to return owing to having previously been tortured,
is in itself an act of torture or other cruel, inhuman or degrading
treatment or punishment.
counsel refers to a certificate submitted by a psychiatrist at the
Swedish Red Cross centre for tortured refugees in Stockholm, according
to which S.M.R.'s statements regarding imprisonment and torture clearly
are based on her own personal experiences. The psychiatrist further
states that in his view, S.M.R.'s account of how, after her release
from prison in 1990, she pursued her political activities and her
fear of being persecuted by the Iranian authorities are credible and
Committee's decision on admissibility
6.1 At its
twenty-first session the Committee considered the admissibility of
the communication. It ascertained that the same matter had not been
and was not being examined under another procedure of international
investigation or settlement, and considered that all available domestic
remedies had been exhausted in view of the fact that no new circumstances
existed on the basis of which the authors could file a new application
with the Aliens Appeal Board. Accordingly, it decided that the communication
6.2 The Committee
noted the information given by the State party that the Immigration
Board had stayed the enforcement of the expulsion order against the
authors, pending the Committee's final decision on the communication.
Committee further noted that both the State party and the author's
counsel had provided observations on the merits of the communication,
and that the State party had requested the Committee, if it were to
find the communication admissible, to proceed to the examination of
the merits of the communication. Nevertheless, the Committee considered
that the information before it was not sufficient to enable it to
adopt its Views at that stage. Accordingly, it decided to request
both parties to make additional submissions within three months, with
a view to examining the merits of the communication at the Committee's
6.4 In particular,
the Committee decided to request from the authors' counsel additional
information about the nature of S.M.R.'s political activities after
1990 and the current situation of the other members of the political
group to which she belonged. Likewise, the Committee requested clarifications
from the State party and the authors' counsel as to the circumstances
relating to the authors' departure from Iran and entry into Sweden,
as well as their obtaining of passports. Clarifications were also
requested regarding the authors' statement that Swedish police authorities
had informed the Iranian authorities about the illegal departure of
M.M.R. from Iran.
rule 110, paragraph 3, of the rules of procedure, the Committee further
requested the State party not to return the authors to Iran while
their communication is under consideration by the Committee.
information submitted by the State party
7.1 In response
to the Committee's request regarding the circumstances of the authors'
departure from Iran, entry into Sweden and obtaining of passports,
the State party submits that the information it provided is based
on the authors' own statements to Swedish immigration authorities.
S.M.R.'s passport was issued on 10 May 1993 with validity until 10
May 1996. She applied for a visa in January 1995 in order for her
and her two children to visit her brother in Sweden. They were granted
entry visas valid for 30 days with departure from Sweden not later
than 17 September 1995. She arrived in Sweden on 21 July 1995.
has stated that she obtained her passport without difficulty. In March
1995 she returned it to the authorities in order to have her youngest
child registered on it. After being informed that her name resembled
the name of a person who was not permitted to leave the country, she
was requested to report to the prosecution authority. The prosecution
authority discovered that her name was miswritten and decided not
to return her passport to her. When she applied for a new passport
the authorities made it a condition that she first travel to Syria.
The trip was arranged by the authorities as a test in order to prove
that she was a true Muslim supporting the regime. The authorities
made it an additional condition that she turn in the certificate of
registration of title of her house before the trip. Her passport was
returned a week before she travelled to Syria with her husband and
7.3 The State
party maintains that S.M.R.'s statement concerning her trip to Syria
is not credible, but rather an attempt to explain the departure stamps
in her passport. It notes that her husband has not mentioned anything
about a trip to Syria, nor has he mentioned anything about a passport
he must have been in possession of in order to travel to Syria.
to reliable sources, a valid passport and an exit visa are required
in order to be allowed to leave Iran. Persons convicted of a serious
crime or under suspicion of such a crime or under surveillance for
other reasons are not allowed to leave the country. Since S.M.R. had
no difficulties in obtaining a passport as well as a visa and leaving
the country, it is unlikely that she was of any special interest to
the Iranian authorities at the time of her departure. On the other
hand, her husband, who was allegedly arrested and interrogated, was
released after a week and stayed in Iran for more than a year thereafter.
Further, he further obtained a valid passport, issued on 30 September
1996, and a permit to leave Iran. Obviously, the Iranian authorities
had no special interest in him either at the time of his departure
arrived in Sweden without an entry visa. In the initial interrogation
following his application for asylum he stated that he had obtained
his passport without any difficulties, that he had not experienced
any problems of a political nature in Iran and that his intention
was to reunite with his wife and children. He also stated that he
had not applied for an entry visa because he was convinced that he
would not obtain one. Therefore, he paid a smuggler who bought him
a ticket and helped him to pass through the gates at the airport in
7.6 The State
party contests M.M.R.'s statement that the Swedish police informed
the Iranian authorities about his illegal departure from Iran. However,
due to M.M.R.'s lack of a valid entry visa, the Swedish police authorities
informed Iran Air of his arrival in Sweden. That was done in accordance
with provisions of the Aliens Act aimed at inducing carriers to make
thorough checks of passengers' travel documents in order to avoid
their arrival in Sweden undocumented.
7.7 The State
party has obtained information according to which a person who returns
to Iran after leaving the country illegally risks a fine and can be
taken into custody for three days at the most. The State party has,
however, no information indicating that Iranian citizens who have
been expelled from Sweden have been subjected to ill-treatment upon
their return to Iran. The State party calls into question whether
the Iranian authorities would consider M.M.R.'s departure as illegal,
in view of the fact that he was holding a valid passport, he passed
the departure controls and was allowed to travel by Iran Air.
the State party indicates that the enforcement of the expulsion order
against the authors has been stayed pending the Committee's final
decision on the matter.
information submitted by counsel
8.1 In response
to the Committee's request for clarifications regarding the nature
of S.M.R.'s political activities after 1990, counsel states that she
was in charge of typing texts that she received from the leader of
her group. Once typed, the texts were copied and distributed by others
in the form of leaflets. The group had four members and they met two
or three times a week when M.M.R. was not at home. These activities
continued until S.M.R. left Iran. When she left for Sweden her intention
was to return and continue her political activities. While in Sweden
S.M.R. has continued to work for her organization by participating
in administrative tasks and the preparation of a newspaper. She has
also taken part in demonstrations.
has had no contacts with the members of her group in Iran. She has
nevertheless been informed by her organization that they have been
arrested and that the leader was sentenced to 10 years of imprisonment.
When M.M.R. was arrested he was shown a picture of the leader and
asked if he recognized her. The other members of the group were not
mentioned to him.
8.3 As to
the clarifications concerning S.M.R.'s passport, counsel states that
she applied for a passport three years after her release from prison.
She had no intention of using it but she wanted to check whether it
was possible for her to obtain one. According to the law, she should
have been interrogated at court after her application. In fact she
was not, and the passport was sent to her within 24 hours. When S.M.R.
requested to have her child registered in the passport the authorities
found that she was not entitled to have one and was forbidden to leave
the country. She had to go to a court, where she was questioned about
her activities and her reasons for leaving the country. She replied
that she wanted to attend her brother's wedding. She was then told
that somebody had to be responsible for her and that her first trip
abroad had to be to an Islamic country. For that reason she travelled
to Syria with her husband and child. In order to obtain a permit to
leave for Sweden she had to put up the family's house as guarantee
of her return.
obtained his passport without difficulty. He had not had any problems
with the authorities for a long time. He was arrested and released
after one to two weeks, since he had not committed any crime. At that
time he did not believe that his wife was in Sweden; he therefore
suggested that the authorities ask the travel agent where she had
gone. Upon his leaving the country he paid a Pakistani citizen to
help him to enter the plane without being checked. The airline is
responsible for checking that passengers have valid visas; this might
be the reason why the Swedish authorities contacted the Iranian authorities.
Iranian revolutionary guards visited M.M.R.'s mother and asked her
about his leaving the country without a visa. She replied that she
did not know anything about it.
of the merits
9.1 The Committee
has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22,
paragraph 4, of the Convention.
9.2 The issue
before the Committee is whether the forced return of the authors to
Iran would violate the obligation of Sweden under article 3 of the
Convention not to expel or to return a person to another State where
there are substantial grounds for believing that he/she would be in
danger of being subjected to torture.
9.3 The Committee
must decide, pursuant to paragraph 1 of article 3, whether there are
substantial grounds for believing that the authors would be in danger
of being subjected to torture upon return to Iran. In reaching this
decision the Committee must take into account all relevant considerations,
pursuant to paragraph 2 of article 3, including the existence of a
consistent pattern of gross, flagrant or mass violations of human
rights. The aim of the determination, however, is to establish whether
the individuals concerned would be personally at risk of being subjected
to torture in the country to which they would return. The existence
of a consistent pattern of gross, flagrant or mass violations of human
rights in a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his return to that country; specific grounds
must exist indicating that the individual concerned would be personally
at risk. Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to
be in danger of being subjected to torture in his or her specific
9.4 In the
case under consideration the Committee notes the State party's statement
that the risk of torture should be a "foreseeable and necessary consequence"
of an individual's return. In this respect the Committee recalls its
previous jurisprudence .
- - - - - that the requirement of necessity and predictability
should be interpreted in the light of its general comment on the implementation
of article 3, which reads: "Bearing in mind that the State party and
the Committee are obliged to assess whether there are substantial
grounds for believing that the author would be in danger of being
subjected to torture were he/she to be expelled, returned or extradited,
the risk of torture must be assessed on grounds that go beyond mere
theory or suspicion. However, the risk does not have to meet the test
of being highly probable" (A/53/44, annex IX, para. 6).
9.5 The Committee
does not share the view of the National Immigration Board that it
is unlikely that S.M.R. held regular meetings at her home without
her husband's knowledge. Furthermore, the Committee has no reasons
to question S.M.R.'s credibility regarding her past experiences of
detention, her political activities and the way in which she obtained
a passport. However the Committee considers, on the basis of the information
provided, that the political activities that S.M.R. claims to have
carried out after 1991, inside and outside Iran, are not of such a
nature as to conclude that she risks being tortured upon her return.
The Committee notes, in particular, that after M.M.R.'s release he
was not further questioned about his wife's activities and whereabouts,
neither was he molested by the Iranian authorities. Moreover, there
is no indication that an arrest order has been issued against S.M.R.
Counsel submits that the other members of her group were arrested
and that the head of the group was sentenced to imprisonment. No information
is provided, however, as to the grounds for her conviction and there
is no indication that the women were subjected to torture or ill-treatment.
9.6 The Committee
further considers that the fact that M.M.R. left Iran without a visa
to enter Sweden does not constitute an additional argument to conclude
that the authors risk being tortured if they return to Iran. No evidence
has been provided to the Committee that such an act is punished in
Iran with imprisonment, let alone torture.
9.7 The Committee
notes with concern the numerous reports of human rights violations,
including the use of torture, in Iran, but recalls that for the purposes
of article 3 of the Convention, the individual concerned must face
a foreseeable, real and personal risk of being tortured in the country
to which he is returned. In the light of the foregoing, the Committee
deems that such a risk has not been established.
9.8 On the
basis of the above considerations the Committee considers that the
information before it does not show substantial grounds for believing
that the authors run a personal risk of being tortured if they return
10. The Committee
against Torture, acting under article 22, paragraph 7, of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, concludes that the decision of the State party to return
the authors to Iran would not constitute a breach of article 3 of
English, French, Russian and Spanish, the English text being the original
No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27 April 1994.
No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May 1997.
No. 101/1997 (CAT/C/21/D/101/1997), Views adopted on 20 November 1998.