Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 885/2018 * , **

Communication submitted by:Y.F. (represented by counsel)

Alleged victim:The complainant

State party:Switzerland

Date of complaint:17 September 2018 (date of initial submission)

Reference:Decision taken pursuant to rules 114 and 115 of the Committee’s rules of procedure, transmitted to the State party on 11 December 2018 (not issued in document form)

Date of adoption of decision:21 July 2021

Subject matter:Expulsion to the Islamic Republic of Iran

Procedural issues:None

Substantive issue:Risk of torture upon return to country of origin

Article of the Convention:3

1.1The complainant is Y.F., an Iranian national born on 25 February 1990. He applied for asylum in Switzerland, but his application was rejected. He is facing deportation to the Islamic Republic of Iran and claims that his expulsion would constitute a violation by the State party of article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 2 December 1986. The complainant is represented by counsel, Mr. Marcel Zirngast.

1.2On 24 September 2018, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to the Islamic Republic of Iran while his complaint was being considered by the Committee.

1.3On 25 September 2018, the State party informed the Committee that, in accordance with its established procedure, the State Secretariat for Migration had requested the competent authority to refrain from taking any steps to remove the complainant, who was therefore assured of remaining in Switzerland pending consideration of his complaint by the Committee.

The facts as submitted by the complainant

2.1At the end of 2015, the complainant left the Islamic Republic of Iran and transited through Turkey to Switzerland, arriving on an unspecified date. On 24 November 2015, he applied for asylum in Switzerland. On 6 April 2016, with his counsel, he attended a hearing to examine his grounds for seeking asylum. He stated that he feared for his life in the Islamic Republic of Iran because he had engaged in an intimate relationship with the daughter of a mullah. The mullah, who had links with the secret service, had refused to consent to their marriage. On 15 April 2016, the complainant was invited to comment on the draft decision of the State Secretariat for Migration. In written comments dated 18 April 2016, he provided explanations for the inconsistencies raised in the draft decision. On 19 April 2016, the State Secretariat for Migration rejected his asylum application on the ground that his reasons for fleeing had not been sufficiently substantiated and were not credible. On 31 May 2016, the Federal Administrative Court dismissed his appeal without examining it, because of non-payment of court costs.

2.2On 6 December 2017, the complainant filed an application for re-examination on the basis of new evidence. He submitted seven documents to establish the credibility of his motives for fleeing: a judgment issued by Marvdasht Revolutionary Court and dated 5 October 2016; three summonses from the Court, namely one dated 6 June 2016 issued in respect of the complainant and two dated 18 June 2016 issued in respect of his father and his brother; and three further summonses from the Court, namely one dated 25 July 2016 issued in respect of the complainant and two dated 8 August 2016 issued in respect of his father and his brother.

2.3According to the judgment of 5 October 2016, following a complaint made by the mullah, the complainant was found guilty of “deception and affront”. Under sharia, the complainant was implicitly found guilty of having committed a criminal offence by seducing the mullah’s daughter into an unlawful intimate relationship and, in so doing, of having insulted and dishonoured her father and the entire family. The judgment was also described as an “enforcement order”, on the basis of which the complainant could be arrested and should expect, in accordance with formal legal principles, to be given a prison sentence of 5 to 6 years.The other documents showed that the complainant, his father and his brother had all been summoned twice in connection with the case. His father and brother complied with the summonses.

2.4On 11 January 2018, the State Secretariat for Migration dismissed the complainant’s application for re-examination. It challenged the notion that the newly submitted judgment and the other documents supported the facts presented. Firstly, the State Secretariat observed that, in the judgment of 5 October 2016, there was no indication that the complainant faced a sentence of 5 to 6 years’ imprisonment and that it did not contain any reference to a relationship outside marriage or an intimate relationship incompatible with sharia. During the ordinary asylum procedure, the complainant had stressed that no formal complaint had been lodged against him; it therefore seemed unlikely that he would have been summoned to a hearing soon after. The State Secretariat noted that the Iranian judgment referred to an earlier judgment, which suggested that the case dated back to the time of the ordinary asylum procedure. Secondly, the State Secretariat considered that the absence of any reference to decrees or specific articles of laws called into question the authenticity of the judgment. Lastly, the State Secretariat noted that it was not clear what the last line of the judgment, in which the complainant was ordered to comply with the instructions within 10 days, related to, since the judgment did not include any instructions.

2.5On 7 February 2018, the Federal Administrative Court rejected the complainant’s appeal. It held that the judgment of Marvdasht Revolutionary Court was not a partial decision on the question of guilt but rather an enforcement order, the last line of which referred to a law on the enforcement of judgments. The Federal Administrative Court therefore considered that the alleged threat to the complainant was unfounded, in spite of the new evidence.

The complaint

3.1The complainant maintains that he is a victim of a violation of article 3 of the Convention by the State party, given that the Swiss authorities have ordered his expulsion to a country where he will certainly be at risk of being subjected to torture and other cruel, inhuman or degrading treatment or punishment.

3.2Contrary to the opinion of the State Secretariat for Migration in its decision of 11 January 2018, the complainant considers that the documents submitted are perfectly sufficient to substantiate the alleged threat. The State party handled the decision inappropriately, as if the Islamic Republic of Iran were governed by the rule of law. The lack of substance of the judgment issued against him in the Islamic Republic of Iran is entirely plausible; the mere fact that the judgment exists is worthy of note. Against the backdrop of Islamic theocracy in the country, more evidence documenting the credibility of a threat simply cannot be expected.

3.3The complainant explains that the judgment of 5 October 2016 of Marvdasht Revolutionary Court was issued in his absence, so it might relate only to the question of guilt, as the sentence itself would be determined following his return to the Islamic Republic of Iran. Since the judgment is called an “enforcement order” and the last line of it refers to a law on the enforcement of judgments, it is also possible that a sentence has already been handed down in another judgment of which the complainant is not aware. The complainant does not know what the formal prison sentence would be: 5 to 6 years is an estimate based on the provisions of the Criminal Code.

3.4The complainant confirms that, contrary to the presumption made by the State Secretariat for Migration, there are no previous criminal proceedings or judgments to which the judgment of 5 October 2016 might refer. The proceedings do not date back to the time of the ordinary asylum procedure. The Secretariat’s presumption is based on a misunderstanding in the translation of the judgment: the original text does not refer to a previous judgment, but to the same judgment, citing the file number displayed in the upper left corner of the original, which was translated into German as “Aktenzeichen”, or reference number. The summonses have the same number listed under “reference number”, proving that it is in fact the file or case number.

3.5The judgment must be understood in the context of the Eastern culture of shame. The mullah has taken care to minimize the humiliation of his daughter and the family. By using the terms “deception and affront”, the allegations against the complainant are deliberately expressed in a vague manner. The details of the dishonour falling upon the mullah’s family, and thus upon him as head of the family, are deliberately omitted, at least in the formal text. As a mullah, he ensured that there was no official text indicating that his daughter had engaged in an intimate relationship outside marriage in a manner inconsistent with sharia and with a man whom he had not chosen. It should also be noted that the girl’s father did not file a complaint in the complainant’s home town of Tabriz, but in Tehran, some 800 km away.

3.6The mullah’s tainted family honour would be restored only once the complainant had disappeared, either by being placed permanently in an Iranian prison, where he would undoubtedly be tortured, or by being killed. Since the religious police in the Islamic Republic of Iran influence and supervise the State’s every action, the complainant cannot expect to receive any State protection. He would therefore be at serious risk of torture or other inhuman treatment in that country.

3.7The complainant recognizes that the judgment of 5 October 2016 does not contain any direct instructions. It is conceivable and plausible that this means that he must no longer evade criminal proceedings and must instead submit to them and report to the authorities. It is possible that the wording of the provision from the law on the enforcement of judgments cited in the judgment might refer to more concrete enforcement measures of which the complainant is not aware and to which he does not have access.

3.8The complainant explains that the judgment of Marvdasht Revolutionary Court is a “coup” orchestrated by the mullah and the revolutionary judge, who is also a mullah. The sole purpose of the judgment is to preserve a semblance of legality in the proceedings against the complainant. It is therefore hardly surprising that the document does not contain a reference to any of the concrete legal provisions the complainant has allegedly contravened. In the Islamic Republic of Iran, the religious authorities influence every State structure and institution. In particular, there is no independent judiciary or police apparatus operating under the rule of law. Although the judgment submitted contains little concrete information, it attests to the fact that criminal proceedings are under way against the complainant and that they were instituted by his girlfriend’s father. It is therefore proven that the complainant has reason to fear for his life and physical integrity.

3.9Lastly, the complainant contests the Federal Administrative Court’s judgment of 7 February 2018, which did not examine in greater detail the credibility of the risk facing him on the basis of the new evidence, but simply reprimanded the body of first instance, arguing that the new evidence should not have been examined in any substantial way since it had not been submitted on time. It is quite possible that the Iranian judgment submitted reflects a separation of the proceedings, even though it contains enforcement instructions that can be used simply as a precautionary measure to ensure the enforcement of a later judgment. It should also be noted that the complainant’s house was confiscated. The other possibility is that, in the same proceedings, another judgment had already been handed down before the judgment submitted, and that the sentence had been determined in that first judgment. Irrespective of these facts, it should be noted that the judgment originally submitted documents the fact that the father of the complainant’s girlfriend initiated criminal proceedings against him and that those proceedings resulted in a conviction.

State party’s observations on the merits

4.1On 25 March 2019, the State party submitted observations on the merits of the communication. Recalling the facts and the proceedings undertaken by the complainant in Switzerland with a view to obtaining asylum, it notes that the competent authorities have duly considered the complainant’s arguments and states that the communication does not include any new information that would invalidate the asylum authorities’ decisions.

4.2The State party points out that, under article 3 of the Convention, States parties are prohibited from expelling, returning or extraditing 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. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State party concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Recalling the Committee’s general comment No. 4 (2017) on the implementation of article 3 in the context of article 22, the State party adds that the author of a communication must establish the existence of a foreseeable, present, personal and real risk of being subjected to torture upon return to his or her country of origin,which is the case when the related allegations are based on credible facts. The reasons for the existence of such a risk must also appear to be substantial.In principle, the burden of proof therefore lies with the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that such a risk exists.The following elements must be taken into account to ascertain the existence of such a risk: any evidence of a consistent pattern of gross, flagrant or mass violations of human rights in the country of origin; any claims of torture or ill-treatment in the recent past and independent evidence to support those claims; the political activity of the author within or outside the country of origin; and any evidence as to the credibility of the author and the overall veracity of his or her allegations, despite certain inconsistencies in the presentation of the facts or lapses of memory.

4.3The State party points out that the existence of a consistent pattern of gross, flagrant or mass violations of human rights does not, in itself, constitute sufficient grounds for determining that a particular person would be subjected to torture upon return to his or her country of origin. The Committee must establish whether the complainant is “personally” at risk of being subjected to torture in the country to which he or she would be returned.Additional grounds must be adduced in order for the risk of torture to qualify as foreseeable, present, personal and real for the purposes of article 3 (1) of the Convention.

4.4The State party recognizes that there are concerns about numerous aspects of the human rights situation in the Islamic Republic of Iran. There are reports of widespread and systematic use of psychological and physical torture to extract confessions. However, the situation in the country does not, in itself, constitute sufficient grounds for concluding that the complainant would be at risk of torture if he were to be returned there.The complainant has not demonstrated that he runs a foreseeable, real and personal risk of being subjected to torture.

4.5With regard to the claims of torture or ill-treatment in the recent past and of political activity, the State party notes that the complainant does not claim to have been subjected to torture by the Iranian authorities or to have engaged in political activity in the Islamic Republic of Iran or Switzerland.

4.6With regard to the complainant’s credibility and the factual consistency of his claims, the State party notes, first of all, that the complainant’s allegations continue to lack substance and detail and that there is nothing to indicate that he is telling the truth. Among other things, he was not able to describe his girlfriend’s father’s political activities or position in the Islamic Revolutionary Guard Corps. Similarly, he could not explain how such a religious family could have allowed his girlfriend to have a relationship with him for four years or why, despite a rape charge against him, no complaint had apparently been filed. The complainant was also unable to describe the efforts he had made to resolve the situation or explain why, when he was reportedly wanted by the authorities, he had decided to apply for a passport in order to leave the country legally by plane.

4.7The State party considers that the evidence the complainant added to the file when he submitted his application for re-examination does not substantiate his claims. Even if the documents were to be considered genuine, they do not show that the complainant would face a prison sentence of 5 to 6 years, nor do they corroborate his claim to have been prosecuted for engaging in an intimate relationship outside marriage; no such offence is mentioned in the document. There is no evidence to support the complainant’s claim that, on the basis of the judgment, he had been found guilty of inciting his girlfriend to engage in an intimate relationship. The explanation the complainant provided to the domestic authorities, namely that the judgment was a partial decision on the question of guilt, was not convincing, since in the event of separation of the proceedings, only the second decision, determining the sentence, would be enforceable.

4.8Furthermore, the State party notes that the judgment of 5 October 2018 is entitled “enforcement order”. It does not therefore relate to criminal penalties, but rather to the enforcement of such penalties. This assessment is supported by the fact that the document contains a reference to the relevant article of the law on the enforcement of criminal judgments. However, the enforcement order does not contain a decision on the facts giving rise to the conviction or on the sentence imposed. Furthermore, given that the complainant indicated at his hearing on 6 April 2016 that his girlfriend’s father intended to settle the case with the Islamic Revolutionary Guard Corps and that, consequently, no criminal complaint would be filed against him, it seems unlikely that two months later he would have been summoned by a court in connection with the matter. Moreover, the judgment in question, namely the enforcement order, as the document is entitled, refers to a previous judgment and a related communication from the Court. Surprisingly, the order’s reference number is not indicated. In any event, given that the document refers to a previous judgment, there is reason to believe that the case in question had already been dealt with by the Iranian authorities and that the procedure must have taken place while the ordinary asylum procedure was under way in Switzerland. It is therefore impossible to understand why the complainant did not mention this procedure at his hearing on 6 April 2016.

4.9There are also questions surrounding the authenticity of the documents. Firstly, according to the assessment of the State Secretariat for Migration, their form differs from that of comparable documents. Secondly, their wording does not correspond to the legal language of other judgments. In particular, the articles of the laws corresponding to the offences mentioned are not cited. With regard to the content, several elements are meaningless. It is thus apparent from the judgment in question that the complainant would be criminally prosecuted and that his property would be seized. At the end of the document, the complainant is asked to comply with the instructions contained in the judgment within 10 days of the date of issuance. However, it is unclear what this order relates to. If it related to the earlier judgment already mentioned, which lacks a reference number, that would usually be indicated.

4.10With regard to the arguments presented by the complainant in his communication concerning criminal proceedings allegedly under way against him, they are simply allegations and have not been substantiated. Moreover, when the complainant claims that a previous judgment may have been handed down or that one might be handed down in the future, he contradicts the allegations he himself made in his appeal against the decision of the State Secretariat for Migration dated 11 January 2018, when he claimed that the reference to another judgment was based on a translation error and that the judgment in fact referred to itself. In addition, no subsequent judgments have been placed on file.

4.11In the light of the foregoing, the State party is of the view that the complainant’s claims are not plausible and that he has failed to demonstrate that he would be at risk of treatment prohibited by the Convention if returned to the Islamic Republic of Iran.

Complainant’s comments on the State party’s submission

5.1On 27 May 2019, the complainant submitted his comments on the State party’s observations. He considers that the State party has simply repeated and summarized the arguments used by the State Secretariat for Migration to reject his application for asylum, without addressing the explanations he provided in his communication to the Committee. He claims that on the essential points, the explanations he gave during the asylum procedure were coherent, plausible and consistent. At no time did the Swiss authorities show any willingness to examine impartially the risks facing him. On the contrary, they sought to find alleged contradictions in his numerous statements or to dismiss them perfunctorily as implausible, with the manifestly biased intention of denying him refugee status.

5.2As an example, the State party’s claim that the complainant has not been able to explain why his girlfriend’s highly religious family allowed him to have a relationship with her outside marriage for four years illustrates this approach. The complainant had already explained in his submission of 18 April 2016 that, although he had known his girlfriend for four years, their contact had been limited to sporadic phone calls and that their relationship only became intimate during a trip in August and September 2015. As his girlfriend’s father had refused his marriage proposal, the pair became intimate during the trip, which the father, a religious fanatic, had forbidden them to take. At no time did the complainant claim to have had an intimate relationship with his girlfriend for four years. Although in the Western cultural context the word “relationship” between two people implies sexual intercourse, this is certainly not the case in the Iranian cultural context.

5.3It is therefore hardly surprising that the State party is not prepared to attach any importance to the court documents submitted. On the contrary, the documents and the conclusions that can be drawn from them have on the whole been discredited and deemed mere allegations. Although the judgment submitted contains little concrete information, the reason for this has already been explained in the communication to the Committee. Even if the Iranian judgment leaves many questions unanswered, the mere existence of a judgment against the complainant is worthy of note. The judgment was set in motion and orchestrated by the girl’s father in order to manipulate the complainant and his family while preserving the appearance of the rule of law.

5.4With regard to the State party’s allegations regarding the possibility of another Iranian judgment having been issued before the one submitted, and with reference to its title of “enforcement order”, the complainant submits that the State party has taken his statements and explanations into consideration only with the intention of drawing contradictions from them. The Iranian judgment submitted provides sufficient proof that the complainant would be at risk of facing difficulties if returned to the Islamic Republic of Iran.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claims 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 it is required to do under article 22 (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.

6.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it should not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. It notes that, in the present case, the State party does not contest the exhaustion of all available domestic remedies by the complainant or, more generally, the admissibility of the complaint.

6.3The Committee considers that the complaint raises substantive issues under article 3 of the Convention and that those issues should be examined on the merits. The Committee finds no obstacle to the admissibility of the present communication and thus declares it admissible and proceeds to its consideration of the merits.

Consideration of the merits

7.1In accordance with article 22 (4) of the Convention, the Committee has considered the communication in the light of all the information made available to it by the parties.

7.2In the present case, the Committee must determine whether the complainant’s removal to the Islamic Republic of Iran would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or return a person to another State where there are grounds for believing that he or she would be in danger of being subjected to torture.

7.3The Committee must evaluate whether there are substantial grounds for believing that the complainant faces a personal risk of being subjected to torture if returned to the Islamic Republic of Iran. In assessing that risk, pursuant to article 3 (2) of the Convention, the Committee must take into account all relevant considerations, including the possible existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned faces a personal, 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 at risk of being subjected to torture on return to that country. Additional grounds must be adduced to show that the individual concerned faces a personal 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. 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 rights under the Convention in that country, he would be deprived of the legal option of recourse to the Committee for protection of any kind.

7.4The Committee recalls its general comment No. 4, according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be “highly probable”, the burden of proof generally falls on the complainant, who must present an arguable case establishing that he or she is at “personal, ... foreseeable and real” risk.The Committee further recalls that, in accordance with its general comment No. 4, it gives considerable weight to findings of fact made by organs of the State party concerned, while, at the same time, it is not bound by such findings and instead has the power, under article 22 (4) of the Convention, to make a free assessment of the information available to it, taking into account all the circumstances relevant to each case.

7.5In the present case, the Committee notes the complainant’s claim that he fears for his life if he returns to the Islamic Republic of Iran, because he has engaged in an intimate relationship with the daughter of a mullah with links to the Iranian secret services, despite the mullah’s refusal to consent to his daughter’s marriage to the complainant. In order to establish the credibility of his motives for fleeing, the complainant relies on a judgment of Marvdasht Revolutionary Court dated 5 October 2016. The Committee notes that the Swiss authorities have duly examined the form and substance of the judgment allegedly issued by the Iranian authorities and, despite the complainant’s explanations, have expressed doubts not only as to whether the document supports the complainant’s claims, but also as to whether it is authentic. In particular, the Committee notes that the parties agree that the judgment makes no mention of any prosecution or conviction for engaging in an intimate relationship outside marriage and that it does not set out any legal position or contain any direct instructions. Furthermore, the Committee notes that the complainant has not contested the State party’s claims that the judgment is a decision to execute an earlier judgment, rather than being an independent judgment in and of itself, and that, in any event, he has not demonstrated that it is a partial decision on the question of guilt on the basis of which he would risk a prison sentence.

7.6The Committee also notes the fact that, according to the State party, the complainant does not claim to have been subjected to torture by the Iranian authorities in the past or to have engaged in political activities in the Islamic Republic of Iran or Switzerland.

7.7The Committee is aware that numerous aspects of the human rights situation in the Islamic Republic of Iran remain problematic. Nevertheless, it recalls that the occurrence of human rights violations in the complainant’s country of origin is not, of itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured. The Committee also notes that the complainant had ample opportunity to provide the State Secretariat for Migration and the Federal Administrative Court with supporting evidence and more information about his claims. However, on the basis of the evidence provided, it has not been possible to confirm the complainant’s account or to determine the existence of a personal, foreseeable, real and present risk of being subjected to torture in the event of his return to his country of origin.

7.8On the basis of the information before it, the Committee concludes that the complainant has not proved that his alleged relationship outside marriage attracted the interest of the authorities of his country of origin and concludes that the information provided does not demonstrate that he would personally be at risk of torture or inhuman or degrading treatment in the event of his return to the Islamic Republic of Iran.

8.In the light of the foregoing, the Committee considers that the information submitted by the complainant is insufficient to substantiate his claim that he would face a personal, foreseeable and real risk of torture if he were returned to the Islamic Republic of Iran.

9.The Committee, acting under article 22 (7) of the Convention, concludes that the expulsion of the complainant to the Islamic Republic of Iran would not constitute a breach of article 3 of the Convention by the State party.