Committee against Torture

Communication No. 492/2012

Decision adopted by the Committee at its fifty-third session, 3–28 November 2014

Submitted by:	Abed Azizi(representedby counsel,UrsEbnöther)
Alleged victim :	Abed Azizi
State party:	Switzerland
Date of complaint:	22February 2012 (initial submission)
Date of present decision:	27November 2014
Subject matter:	Deportation to Islamic Republic of Iran
Procedural issue s :	–
Substantive issue s :	Risk of torture upon return to the countryof origin
Article of the Convention :	3

Annex

Decision of the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (fifty-third session)

concerning

Communication No. 492/2012

Submitted by:	Abed Azizi(represented by counsel,UrsEbnöther)
Alleged victim :	Abed Azizi
State party:	Switzerland
Date of complaint:	22 February 2012(initial submission)

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 27 November 2014,

Having concluded its consideration of complaint No. 492/2012, submitted on behalf of Abed Azizi under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the complainant, his counsel and the State party,

Adopts the following:

Decision under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

1.1The complainant, Abed Azizi, is a citizen of the Islamic Republic of Iran, born on 14 April 1983. He claims that his deportation to the Islamic Republic of Iran would constitute a violation by Switzerland of article 3 of the Convention against Torture. The complainant is represented by counsel, Urs Ebnöther.

1.2On 27 February 2012, the Committee requested the State party, pursuant to rule 114, paragraph 1, of its rules of procedure, not to deport the complainant to the Islamic Republic of Iran while the complaint is being considered.

The facts as submitted by the complainant

2.1The complainant is an Iranian national of Kurdish ethnicity from the town of Negel. Through a friend, the complainant was introduced to the Kurdish Democratic Party of Iran (KDPI). On 11 November 2001, he left the Islamic Republic of Iran and fled to Iraq. On the same day, the Pasdaran (Iranian Revolutionary Guards) searched his house and confiscated political flyers. His father was arrested and sentenced to two years in prison. In addition, the friend who had introduced him to the KDPI was also arrested and sentenced to death. Later, his sentence was changed to life imprisonment. Following the release of the complainant’s father from prison, his family was summoned by the authorities several times. The authorities wanted to know Mr. Azizi’s whereabouts.

2.2From 2001 to 2006, the complainant actively participated in KDPI activities in Iraq. Owing to frictions within the party, he feared that he would be killed, and therefore decided to leave Iraq.

2.3On 27 November 2008, the complainant entered Switzerland illegally and requested asylum there. On 23 November 2009, the Federal Office for Migration rejected his asylum request. On 7 December 2009, the complainant filed an appeal against that decision with the Swiss Federal Administrative Tribunal. On 23 December 2011, the Tribunal rejected the appeal. By letter dated 5 January 2012, the Federal Office for Migration ordered the complainant to leave the country by 31 January 2012.

2.4Since his arrival in Switzerland, the complainant has been politically active in the Swiss branch of the KDPI. He has taken part in various demonstrations and published articles on the Internet. His name appears on four permits issued by the Zurich city police for KDPI political campaigns in Zurich, as he was part of the organizing committee for the events. He has also acted as president of the regional executive committee of the KDPI in Switzerland for the cantons of Zurich, Saint Gallen, Schaffhausen and Thurgau.

2.5During his stay in Switzerland, the complainant became interested in Christianity. He has been in close contact with the Protestant church in Turbenthal, Switzerland. He has converted to Christianity and was baptized on 31 January 2010.

2.6The Swiss Federal Administrative Tribunal is the highest national authority in asylum matters. Therefore, the complainant submits that he has exhausted all domestic remedies.

The complaint

3.1The complainant claims that his forcible return to the Islamic Republic of Iran would constitute a breach by Switzerland of article 3 of the Convention.

3.2He submits that he would face a real risk of being subjected to treatment contrary to the Convention if he were deported to the Islamic Republic of Iran, for the following reasons:

(a)The general human rights situation in the Islamic Republic of Iran has become worse since the presidential election in June 2009. Respect for basic human rights in the Islamic Republic of Iran has continued to deteriorate and the Government shows no tolerance for peaceful protests or gatherings, routinely detaining participants and subjecting them to torture;

(b)The complainant claims that he is in a similar position to the two heads of cantonal branches of the Democratic Association for Refugees, a political opposition group active in Switzerland only, who the Committee considered to be at risk of persecution if returned to the Islamic Republic of Iran;

(c)The complainant has been an active member of KDPI in Switzerland. He claims that reliable reports confirm that the Iranian authorities thoroughly monitor and record the political activities of the Iranian diaspora, and asylum seekers and refugees are kept under strict surveillance by the Iranian embassies and their network of informers;

(d)The complainant has converted to Christianity. The complainant claims that Christian converts are considered second-class citizens in the Islamic Republic of Iran, targeted by radical Muslim groups and persecuted by their own families. Rejected asylum seekers are thoroughly questioned upon entering the Islamic Republic of Iran and it is very likely that the authorities would find out about his conversion;

(e)Since the complainant left the Islamic Republic of Iran illegally, he finds it probable that he would come to the attention of the Iranian authorities and that his past would be likely to be revealed, which would put him at additional risk.

State party’s observations on the merits

4.1On 15 August 2012, the State party submitted its observations on the merits of the complaint. It submits that the national authorities evaluated in detail the risk of the complainant’s persecution in the Islamic Republic of Iran and found that the complaint does not include any new elements that had not been evaluated by the Federal Office for Migration and the Federal Administrative Tribunal.

4.2It considers that, although the human rights situation in the Islamic Republic of Iran is worrisome in several respects, the Islamic Republic of Iran is not affected by generalized violence. While the complainant refers to a general risk, he has not demonstrated that he incurs a foreseeable, personal and real risk of being subjected to torture. The State party also argues that rejected asylum seekers do not face persecution if returned to the Islamic Republic of Iran, even if they left the country illegally.

4.3The State party submits that the complainant was not subjected to torture or ill-treatment in the past. It also submits that the complainant does not have the profile of a serious opponent who poses a danger to the Iranian regime owing to his political activities abroad. His statements about his political activities in the Islamic Republic of Iran lack credibility and he has not demonstrated that the Iranian authorities have initiated proceedings against him.

4.4The State party notes the complainant’s submission that he is politically active in the Swiss branch of the KDPI, that he participates in demonstrations against the Iranian regime, and that films and photographs documenting his participation have been published on the Internet. His name appears on the authorizations from the city of Zurich authorities for political events and he serves as the president of the executive committee of KDPI Switzerland for the cantons of Luzern, Schwyz and Zug.

4.5The State party acknowledges that the Iranian authorities systematically monitor the political activities of their citizens abroad. However, they focus on individuals with a specific profile whose action goes beyond mass opposition and who hold positions or carry out activities that could represent a concrete threat to the regime. The State party asserts that the complainant does not have such a profile; the activities in which he alleges to participate are the typical activities undertaken by many exiled Iranians and would not distinguish the complainant as potentially dangerous to the Iranian regime, even if the Iranian authorities came to known of him. Mere membership of a political organization abroad, participation in demonstrations against the regime, carrying banners and shouting slogans do not suffice to be perceived as a danger in case of return.

4.6The State party asserts that, even if the Iranian authorities are likely to be informed about the political activities of many Iranians abroad, they cannot monitor and identify them all. They are also aware that many Iranians living abroad attempt to portray themselves as dissidents in order to obtain asylum. The complainant’s political involvement in Switzerland is typical mass opposition behaviour; his profile is not that of a serious opponent who is dangerous to the regime. The State party notes that since 9 July 2009, the Swiss Federal Administrative Tribunal has adopted a stricter position concerning Iranian groups in Switzerland, as their aim appears to be to increase the visibility of their members in order to influence the asylum procedure.

4.7The State party contests the complainant’s statement that he has a particular profile owing to his position within the KDPI. The State party considers his role in the organization to be administrative in nature. The complainant does not appear to be a serious and dangerous opponent of the regime.

4.8The State party submits that the complainant’s entire claim concerning the risk of his persecution in the Islamic Republic of Iran, particularly his activities in Switzerland, was examined by the competent Swiss authorities. The complaint submitted to the Committee does not contain any new elements, or claim that there were any shortcomings in the State party’s asylum procedure. The State party refers to the Committee’s jurisprudence that “it is within the purview of the courts of the States parties to the Convention to assess the facts and evidence in a case”, and that the Committee should examine facts and evidence only if it can be established that “the evidence was assessed in a patently arbitrary manner or one that amounted to a miscarriage of justice”. In the case in question, the elements submitted by the complainant do not point to any such irregularities.

4.9The State party also notes that the complainant refers to the decision of the European Court of Human Rights in the case of R.C. v. Sweden. However, in that case, the applicant had proved that his ill-treatment had been the result of his political involvement in the Islamic Republic of Iran, and therefore the Court had ruled that his forced return would constitute a violation of the prohibition of torture. In the present case, the complainant had not demonstrated that he had been mistreated in his country of origin and his allegations concerning his political activities there lacked credibility.

4.10The State party maintains that conversion to Christianity abroad would not expose the complainant to a risk of persecution in the Islamic Republic of Iran, unless he had practised Christianity actively and visibly. The complainant did not mention any public exposure with respect to his Christianity.

4.11The State party points to factual inconsistencies in the complainant’s statements and to his lack of credibility. During the interrogations by the Federal Office for Migration, it became apparent that since December 2006, approximately, the author had also lived in Germany, where he had requested asylum, and that he had later been expelled to Greece, where he had lived for at least a year and a half. Therefore, his statements concerning his stay in Iraq are not credible. In addition, his statement containing his reasons for leaving the Islamic Republic of Iran was submitted late during the asylum procedure and was therefore considered dubious. Lastly, he made contradictory statements concerning the alleged search of his home by the authorities in the Islamic Republic of Iran.

Complainant’s comments on the State party’s observations

5.1In his comments of 14 November 2012, the complainant contested the State party’s argument that he did not demonstrate that he would be at a foreseeable, real and personal risk of being subject to treatment contrary to the Convention if he were returned to the Islamic Republic of Iran. He reiterates that he has taken part in various demonstrations against the Iranian regime, his name and photograph appear on the Internet in connection with his activity with the KDPI, in which he holds a leading position, and he has converted to Christianity. His illegal departure from the Islamic Republic of Iran, his political activity and conversion to Christianity are ample grounds for demonstrating that he would be at risk of being subject to treatment contrary to the Convention.

5.2The complainant maintains that it is not only high-profile opponents of the regime who are at risk of being detained, ill-treated or tortured. He also contests the State party’s argument that his role in the PDKI is merely administrative. Being a head of cantonal sections of the PDKI, organizing events and taking part in conferences are clearly more than merely administrative activities. His name appears on permits for political campaigns and he was on the organizing committees of those events and took an active part in them.

5.3The complainant submits that the Iranian authorities actively monitor the Internet as well as demonstrations abroad. He refers to a 2011 judgment of the Upper Tribunal (Immigration and Asylum Chamber) of the United Kingdom, which concluded that the Iranian authorities systematically target individuals who participate in political demonstrations abroad and that they do not distinguish at all between real political activists and what the Tribunal refers to as opportunistic demonstrators.

5.4The complainant rejects the State party’s submission that his accounts were not credible. He mentioned his political activity for the PDKI in his first request for asylum. His first request was denied and he filed a new request based on his political activity in Switzerland. Owing to the strict procedural rules on asylum, facts considered in the previous asylum request cannot be assessed in the second asylum request. Therefore, the second asylum request did not contain further facts regarding his political activity in the Islamic Republic of Iran. He stands by the statements he made regarding his political activity in the Islamic Republic of Iran and in Iraq, which add to the danger of a real and personal risk of his being subjected to treatment contrary to the Convention.

5.5The complainant contests the State party’s statement that the Iranian regime focuses only on opponents who have a particular profile. He asserts that that there is strong evidence suggesting that the human rights situation in the Islamic Republic of Iran is deteriorating and that even low-profile and opportunistic protestors are persecuted. The complainant also asserts that he is an active and visible member of the Swiss branch of the PDKI. He also maintains that a simple Google search and cross-referencing of websites and photographs could quickly reveal a list of political activists in Switzerland. He rejects the State party’s assertion that his political activity is aimed primarily at attaining the right to stay in Switzerland; that assertion is unfounded.

5.6Regarding his conversion to Christianity, the complainant maintains that many sources confirm that there is a danger of being persecuted, even sentenced to death, for converting or proselytizing. Rejected asylum seekers are thoroughly questioned upon entering the Islamic Republic of Iran. It is therefore likely that the authorities would find out about the complainant’s conversion. It is also unacceptable to expect that the complainant should refrain from practising his religion in a visible manner. Even if he were to try to conceal his conversion, it is inevitable that in time, his new faith would be discovered.

5.7With respect to the State party’s statement that he did not mention his stays in Greece and Germany, the complainant clarifies that he had not made reference to them because of the significant human rights violations that take place in Greece regarding asylum seekers. In a letter to the Federal Office for Migration dated 11 November 2009, he explained those circumstances in detail.

Complainant’s further submission

6.In a further submission of 7 November 2013, the complainant provided additional evidence concerning his political and religious activity in Switzerland. He maintains that the additional evidence further corroborates the fact that he would face a risk of torture if returned to the Islamic Republic of Iran.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee against Torture must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as required under article 22, paragraph 5 (a), of the Convention, that the same matter has not been, and is not being examined under another procedure of international investigation or settlement.

7.2The Committee notes that the State party has not challenged the admissibility of the complaint and thus proceeds to its consideration on the merits.

Consideration of the merits

8.1The Committee has considered the complaint in the light of all the information made available to it by the parties, in accordance with article 22, paragraph 4, of the Convention.

8.2The issue before the Committee is whether the removal of the complainant to the Islamic Republic of Iran would violate the State party’s obligation 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 or she would be in danger of being subjected to torture.

8.3The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to the Islamic Republic of Iran. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of the determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

8.4The Committee recalls its general comment No. 1 (1997) on the implementation of article 3 of the Convention in the context of article 22 (refoulement and communications), according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. While the risk does not have to meet the test of being “highly probable”, the Committee notes that the burden of proof generally falls on the complainant, who must present an arguable case that he or she faces a “foreseeable, real and personal” risk. The Committee also recalls that, in accordance with its general comment No. 1, it gives considerable weight to findings of facts that are made by organs of the State party concerned. It is not, however, bound by such findings and has the power, under article 22, paragraph 4, of the Convention, of free assessment of the facts based upon the full set of circumstances in every case.

8.5Referring to its recent jurisprudence, the Committee recalls that there are reports that psychological and physical torture are used to solicit confessions in Iran, indicating the widespread and systematic use of such practices, and ongoing reports of incidents of detention and torture of political opponents. The Committee also notes the recent escalating trend of arrest and sentencing of individuals who exercise their rights to freedom of expression and opinion, peaceful assembly and association. The Committee considers that all the more alarming in the light of the fact that the Islamic Republic of Iran frequently administers the death penalty and applies it without due process and in cases involving some crimes that do not meet international standards for the most serious offences. The State party itself has recognized the existence of that situation in the Islamic Republic of Iran.

8.6The Committee notes that the complainant has been an active member of the Swiss branch of KDPI and president of the regional executive committee for several cantons, has participated in various demonstrations and published articles on the Internet. The State party has not contested that information. The Committee notes the State party’s observation that the Iranian authorities target high-profile individuals that could represent a specific danger to the Iranian regime; that the complainant does not represent such a danger; that the activities he alleged to have participated in are typical activities for many exiled Iranians; and that the State party would not identify the complainant as potentially dangerous to the Iranian regime. However, the Committee observes that recent reports indicate that low-level opposition is also closely monitored in the Islamic Republic of Iran. The Committee also notes the persistent reports of continued persecution of ethnic political activists, including recent executions of Kurdish individuals whose conviction processes did not meet fair trial standards.

8.7The Committee notes the complainant’s claim that his conversion to Christianity would expose him to a danger of being persecuted, even sentenced to death, for converting or proselytizing. It also notes the State party’s argument that conversion to Christianity abroad would not expose the complainant to a risk of persecution in the Islamic Republic of Iran unless he had practised Christianity actively and visibly. The Committee observes that recent reports indicate that Christians, in particular Protestants and Christians who have converted from Islam, face persecution in the Islamic Republic of Iran, that several hundred Christians have been arrested and detained over the past few years, and that many churches, especially Protestant evangelical houses of worship, currently operate in a climate of fear. According to the information contained in those reports, (a) members of religious minorities, including Christians, are detained and subjected to torture or cruel, inhuman and degrading treatment and prolonged solitary confinement in order to coerce confession, often without access to a lawyer; (b) most cases involving Christians are tried in revolutionary courts for national security crimes, but some Christians face charges in public criminal courts for manifestation of religious beliefs, and officials routinely threaten to prosecute Christian converts for apostasy; (c) prosecutions often fail to meet international standards, with access to case files and the right to present a defence being limited; and (d) the Iranian authorities at the highest level have designated informal “house churches” and evangelical Christians as threats to national security. Current reports also suggest increased persecution of Protestant Christians, including their detention for involvement in informal house churches and physical and intense psychological abuse, including threats of execution, of Christian converts in detention.

8.8In the light of all those circumstances, including the general human rights situation in the Islamic Republic of Iran, the personal situation of the complainant, who continues his active engagement in political activities against the Iranian regime abroad, and the Committee’s jurisprudence, the Committee is of the opinion that the complainant could well have attracted the attention of the Iranian authorities. The Committee is of the view that the complainant’s conversion to Christianity and his affiliation with Kurdish political activists compound the risk that he will be persecuted if he is returned to the Islamic Republic of Iran. In the light of those considerations, taken as a whole, the Committee considers that in the particular circumstances of the present case, there are substantial grounds for believing that the complainant would risk being subjected to torture if he were returned to the Islamic Republic of Iran. Moreover, the Committee notes that, since the Islamic Republic of Iran is not a party to the Convention, in the event of a violation of the complainant’s Convention rights in that State, he would be deprived of the legal option of recourse to the Committee for protection of any kind.

9.The Committee against Torture, acting under article 22, paragraph 7, of the Convention, concludes that the deportation of the complainant to the Islamic Republic of Iran would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

10.Pursuant to rule 118, paragraph 5, of its rules of procedure, the Committee urges the State party to inform it, within 90 days from the date of the transmittal of the present decision, of the steps it has taken in response to the decision expressed above.