Human Rights Committee

Communication No. 2329/2014

Views adopted by the Committee at its 114th session(29 June–24 July 2015)

Submitted by:Z (represented by counsel, Marianne Vølund)

Alleged victim:The author

State p arty:Denmark

Date of communication:7 January 2014 (initial submission)

Document references:Special Rapporteur’s decision under rules 92 and 97, transmitted to the State party on 9 January 2014 (not issued in document form)

Date of adoption of Views:15 July 2015

Subject matter: Deportation to the Islamic Republic of Iran

Procedural issues: Failure to sufficiently substantiate allegations; incompatibility ratione materiae with the Covenant

Substantive issues: Prohibition of torture or cruel, inhuman or degrading treatment; right to freedom of thought and religion; right to freedom of expression

Articles of the Covenant: 7, 18, 19

Articles of the Optional Protocol: 2, 3

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (114th session)

concerning

Communication No. 2329/2014 *

Submitted by:Z (represented by counsel, Marianne Vølund)

Alleged victim:The author

State p arty:Denmark

Date of communication:7 January 2014 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on15 July 2015,

Having concluded its consideration of communication No. 2329/2014, submitted to the Human Rights Committee on behalf of Z under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1The author of the communication is Z, an Iranian national born on 20 June 1989. He claims that the State party would be violating his rights under articles 7, 18 and 19 of the Covenant if he were to be deported to the Islamic Republic of Iran. He is represented by counsel, Marianne Vølund.

1.2On 9 January 2014, pursuant to rule 92 of the Committee’s rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to refrain from deporting the author to the Islamic Republic of Iran while the communication was being examined. On 20 January 2014, the Refugee Appeals Board suspended the time limit for the author’s departure from the State party, in accordance with the Committee’s request.

The facts as submitted by the author

2.1The author is of Kurdish ethnicity and of Sunni Muslim faith. He claims that he was born in Iraq, presumably in a refugee camp, but he is an Iranian national. His family moved back to the Islamic Republic of Iran when he was 1 or 2 years old. The author had gone to school for 13 years, and he was attending a one-year preparatory university course.

2.2The author submits that he has been an active sympathizer of the Kurdish Democratic Party of Iran since 2008, a party which is considered illegal in the Islamic Republic of Iran since its objective is to create an independent Kurdish state, and that he had been encouraged to participate in its activities by two close friends. In that connection, he claims that he distributed flyers twice between August and November 2008.

2.3The author claims that he was supposed to hand out flyers for the third time, along with his two friends, on 24 or 25 November 2008. The night before, the author read a single flyer while he was doing his homework; as he was tired he just folded the flyer up and put it into his biology book. The next day he went to school carrying 70 to 80 flyers in a secret pocket of a bag, to be distributed in the evening, as planned with his friends. At a certain moment, he left the classroom to get some air, as he was feeling ill. He also claims that, while he was outside, he heard people shouting and screaming in the room; that he could not understand much of what was being said, but he was able to catch the word “flyer”; and that a friend then called him on the telephone and told him that somebody had found the flyer in his book and that he should leave the school immediately. After leaving the school, he went underground. The author alleges that some of his teachers and classmates belonged to or collaborated with the Basij, a Shia Muslim organization, which supports the central administration, and says that he presumes that a Basij collaborator had found the flyer. The author also alleges that his brother informed him later that, on the same day, the police and the intelligence service searched his family house and his father and older brother had to sign a written declaration stating that they would inform the authorities of the author’s whereabouts.

2.4Subsequently, the author travelled via Sapola Zahab and Orumieh to Salmas. From Salmas, his father and brother helped him to flee illegally from the Islamic Republic of Iran, by paying someone to take him to Stockholm. The author maintains that he left the Islamic Republic of Iran via Turkey hidden in a truck, in a compartment. On his way, he travelled in three or four different trucks. He only realized that he was in Denmark, and not Sweden, when he was dropped off at Copenhagen Central Station.

2.5 On 14 December 2008, the author entered Denmark, without valid travel documents, and applied for asylum. During the asylum proceedings, he claimed, inter alia,that he feared being imprisoned and tortured by the Iranian authorities if he were to be returned to the Islamic Republic of Iran, as he was a Kurdish Democratic Party of Iran sympathizer and had worked for the party by distributing flyers, which had been discovered by his teacher and classmates who were allegedly Basij collaborators.

2.6On 9 September 2009, the Danish Immigration Service rejected the author’s application for asylum, pursuant to section 7 of the Aliens Act. The author appealed the decision before the country’s Refugee Appeals Board.

2.7On 9 November 2009, the Refugee Appeals Board upheld the refusal of the author’s asylum application by the Danish Immigration Service. The Board took note of the author’s accounts — provided in the interview reports of 27 January and 27 August 2009 that had been prepared by the police and the Danish Immigration Service respectively, his asylum application form of 16 February 2009, and his statements at the hearing held by the Board, and concluded that:

[It] cannot accept the applicant’s statement as facts. The Board considers it unlikely that the applicant would bring flyers to school to distribute them at night, and that he had also used one of them as a bookmark with the obvious risk of discovery, considering the information given by the applicant himself that he had gone to school by car and could have left the flyers in the car.

The Refugee Appeals Board finds that the applicant’s grounds for seeking asylum were fabricated for the occasion and should be set aside; see section 40 (1) of the Aliens Act.

Accordingly, there are no substantive grounds for asylum, and the Refugee Appeals Board therefore finds that, if returned to the Islamic Republic of Iran, the applicant will not be at a real risk of abuse justifying asylum as set out in section 7 of the Aliens Act.

2.8On 24 March 2010, the author requested the Refugee Appeals Board to reopen the asylum proceedings, alleging that there were no inconsistencies in his statements to the Danish Immigration Service and the Refugee Appeals Board. In letters dated 14 June 2010, 8 May 2012 and 13 July 2012, the author submitted further substantiation and supplementary information to the Refugee Appeals Board. In support of his request, the author maintained, inter alia, that he would not dare to leave the flyers at home, due to the risk that this could cause to his family; that he had not used the flyer as a bookmark, but had accidentally left it in his biology book; and that he had taken a taxi to go to school, therefore he could not have left the flyers in the car. The author’s request was accompanied by a fax from the French branch of the Kurdish Democratic Party of Iran, stating that the author was a sympathizer of the party and that his life would be in danger if he returned to the Islamic Republic of Iran. The author also referred to the zero-tolerance policy in the Islamic Republic of Iran under which the possession of a flyer with some political content may result in imprisonment for 10 years, and to the fact that capital punishments were actually carried out. He pointed out that the Refugee Appeals Board’s background material indicated that members of the Kurdish Democratic Party of Iran were oppressed by the Iranian Government. The author also submitted that he had a tattoo of Zartosht, which is the symbol of the Zoroastrian religion; that he had opened a Facebook account in June 2009 and shared links for the Kurdish Democratic Party of Iran, for example to its flag; that he was a friend of A.M., the secretary-general of the Komala Party of Iranian Kurdistan; and that he was a member of the open groups named “kurdland”, “Kurdish Democratic Party of Iran” and “Freedom and Democracy for Iran”.

2.9On 20 September 2012, the Refugee Appeals Board refused to reopen the case. It considered that no substantial new information had been submitted by the author beyond the information available at the initial hearing, and it did not find any reasons for extending the deadline for the author’s departure. The Board relied on the reasoning behind its decision of 9 November 2009 and stated that the author’s grounds for seeking asylum had been fabricated for the occasion; for that reason, it could not accord any weight to the letter from the French branch of the Kurdish Democratic Party of Iran. Nor could the information about the author’s Facebook page or alleged tattoo lead to a different assessment. Concerning the tattoo, the Board noted that the author had stated throughout the proceedings that he was a Sunni Muslim and had not indicated any affiliation with Zoroastrianism.

The complaint

3.1The author contends that his deportation to the Islamic Republic of Iran by the State party would constitute a violation of articles 7, 18 and 19 of the Covenant.

3.2The author claims that, if returned to the Islamic Republic of Iran, he would be at risk of being subjected to inhuman or degrading treatment or punishment in violation of article 7 of the Covenant. He points out that the Kurdish Democratic Party of Iran in Europe issued a letter, that was provided to the State party’s authorities, that confirmed that he was a sympathizer of the Kurdish Democratic Party of Iran, and that the mere possession of a flyer from an opposition group such as the Kurdish Democratic Party of Iran can lead to 10 years of imprisonment. He submits that capital punishment is not only imposed as a sentence but is also carried out, inter alia against young Kurds, solely on the basis of suspicion of participation in political activities.

3.3The author states that he has not converted to the Zoroastrian religion, but because of his tattoo he will be considered as a Muslim who has converted to Zoroastrianism. He alleges that the Iranian authorities harass, discriminate against, and in some cases, arrest and persecute adherents of the Zoroastrian religion, since, in common with Christianity, it is seen as a threat to national security and to the Islamic revolution. He submits that many Iranians have been adopting Zoroastrian symbols and marking Zoroastrian festivals to express their rejection of the Shiite theocracy. He submits that he obtained the tattoo to show his disregard for the Iranian theocracy and authorities. It does not matter whether the authorities conceive of the tattoo as a symbol of him rejecting the Iranian theocracy or consider him as a Muslim who converted to Zoroastrianism; either way, he will be at great risk.

3.4Furthermore, the author claims that it cannot be ruled out that he will be at risk of inhuman or degrading treatment or punishment on account of his opinions and the information contained in his Facebook account. He has been posting critical pictures and comments, for example on the subject of the Kurdish Democratic Party of Iran, political activists and the execution of Iranian citizens. He also uploaded a picture of his tattoo. He submits that the authorities keep Iranians around the world under surveillance, and moreover, force people returning to the Islamic Republic of Iran to log into their Facebook accounts in order to identify opponents to the Iranian regime. If the Iranian authorities are not aware of his Facebook account, it is highly probable that they will learn about it upon his arrival in the Islamic Republic of Iran.

3.5Finally, the author points out that the fact that he left the Islamic Republic of Iran illegally and will be deported to the Islamic Republic of Iran without a valid passport puts him at further risk. Denmark has a new procedure whereby Iranian citizens who have an identity document, or school or military papers, are deported without their passport or laissez-passer and the Iranian authorities at the airport are asked if the person will be accepted. The author alleges that persons without legal travel documents are arrested and taken to court, where their background and their reason for departure are assessed.

3.6Against this background, the author claims that the authorities of the State party arbitrarily refused his asylum request, failing to assess adequately the risk that he would face if he were returned to the Islamic Republic of Iran. In that connection, he submits that the Refugee Appeals Board’s decision to refuse his asylum request was only based on its appraisal of his accounts as implausible, that the Board did not even provide an adequate explanation for finding them untrustworthy, and that it therefore failed to assess all the elements related to his case, including the fact that he is a sympathizer of the Kurdish Democratic Party of Iran.

State party’s observations on admissibility and the merits

4.1On 9 July 2014, the State party provided observations on the admissibility and merits of the communication.It submits that the communication should be declared inadmissible on the grounds of incompatibility with the provisions of the Covenant, and for non-substantiation. If the Committee were to declare the communication admissible, the State party maintains that the Covenant would not be violated if the author were returned to the Islamic Republic of Iran.

4.2The State party provided a detailed description of the asylum proceedings under the Aliens Act and, in particular, of the organization and competence of the Refugee Appeals Board. The State party advises that the Board’s decisions are based on an individual and specific assessment of the relevant case. The asylum seeker’s statements regarding his grounds for seeking asylum are assessed in the light of all relevant evidence, which includes what is known about conditions in the country of origin (background material). The Board is responsible not only for examining and bringing out information on the specific facts of the case, but also for providing the necessary background material, including information on the situation in the asylum seeker’s country of origin or first country of asylum. It also notes that it is up to the asylum seeker to make it probable that the conditions for granting asylum are met. The assessment of evidence, carried out by the Board, is not governed by special rules of evidence. Indeed, the assessment of evidence performed by the Board is made on the basis of an overall assessment of the asylum seeker’s statements and personal appearance during the hearing, in conjunction with other information relevant to the case, including the Board’s background material on the asylum seeker’s country of origin. In its adjudication of cases, the Board seeks to determine what findings of fact it should make, based on the evidence. If the asylum seeker’s statements appear coherent and consistent, the Board will normally accept them as facts. However, inconsistent statements by the asylum seeker about crucial parts of his grounds for seeking asylum may weaken his credibility.

4.3The State party maintains that it is the author’s responsibility to establish a prima facie case, but that, in the present case, the author failed to do so for the purposes of the admissibility of his communication under articles 7, 18 and 19 of the Covenant. It has not been established that there are substantial grounds for believing that the author is in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment in violation of article 7, if he were to be returned to the Islamic Republic of Iran.

4.4The author’s claims under articles 18 and 19 of the Covenant are manifestly ill-founded. Moreover, the author is seeking to apply those obligations in an extraterritorial manner. The State party submits that the author’s allegations of a violation of those articles do not rest on any treatment that he has suffered in Denmark, or in an area where Danish authorities are in effective control, but rather on consequences that he will allegedly suffer if he is returned to the Islamic Republic of Iran. The Committee accordingly lacks jurisdiction over the relevant violations in respect of Denmark, and this part of the communication is thus incompatible with the provisions of the Covenant. The State party points out that, under article 1 of the Optional Protocol, the Committee has competence to receive and consider communications from individuals who are subject to the jurisdiction of a State party who claim to be victims of a violation of any of the rights set forth in the Covenant committed by that State Party. Furthermore, extraditing, deporting, expelling or otherwise removing a person who is in fear of having his rights violated by another State — for example, his rights under articles 18 and 19 of the Covenant — will not cause such irreparable harm as that contemplated by articles 6 and 7 of the Covenant. Accordingly, the State party submits that this part of the communication should be rejected as inadmissible ratione loci and ratione materiae pursuant to rule 96 (d) of the Committee’s rules of procedure read together with rule 96 (a) of the Committee’s rules of procedure and article 2 of the Optional Protocol.

4.5If the Committee considers the author’s communication to be admissible, the State party maintains that this would not disclose a violation of the Covenant. The State party submits that the author is, in fact, trying to use the Committee as an appellate body to have the factual circumstances that have been advocated in support of his claim for asylum reassessed, and that the Committee must give considerable weight to the findings of the Refugee Appeals Board, which is better placed to assess the findings of fact in the author’s case.

4.6The State party reiterates the findings of the Refugee Appeals Board, considering the author’s account to be unlikely. In addition, the State party refers to the author’s statement, when interviewed by the Danish Immigration Service on 27 August 2009, that he found it very risky to distribute the flyers. Nevertheless, according to his own statement, he left a book with a flyer on a table in the classroom, which was freely accessible to his teachers and classmates. The State party considers that the author’s statement about his carelessness with the flyers, even though he considered the task of distributing them a very risky one, is inexplicable and contradictory. No matter whether the author had used the flyer as a bookmark or had forgotten about the flyer in the book, his actions amounted to incautious handling of the flyers. Correspondingly, it does not matter whether the author had driven to school in his own car or whether he had gone by taxi and walked the last ten minutes.

4.7The State party refers to the findings of the Refugee Appeals Board in respect of the letter from the French branch of the Kurdish Democratic Party of Iran, the author’s tattoo and his Facebook activities. It maintains that the Board included all the relevant information in its decisions, and that there is no basis for doubting or setting aside the Board’s assessment that the author has not established that there are substantial grounds for believing that he would be at risk of being subjected to persecution if he were returned to the Islamic Republic of Iran.

4.8The State party observes that even though the Danish police may present the author before the Iranian authorities at the airport, such a procedure in itself cannot justify asylum. The information that the author has applied for asylum in Denmark and that the application has been refused is confidential; for that reason, it cannot be assumed that the Iranian authorities are familiar with this information.

Author’s comments on admissibility and the merits

5.1On 11 September 2014, the author submitted his comments on admissibility and the merits.

5.2He submits that during the proceedings his explanations have been very consistent and have contained no contradictory information. He points out that the only reason for the Refugee Appeals Board’s refusal of his application for asylum was that it considered it unlikely that he had brought the flyers to school and had not left them in the car in which he had gone to school; in addition, he points out that the State party maintains in its observations that it does not matter whether he drove to school in his own car or went by taxi and walked the last ten minutes. The author submits that, on the contrary, it does matter, because the Refugee Appeals Board’s refusal is based on an assessment of probability. In that connection, the author submits that he explained to the Board that he took a taxi to school and walked the last ten minutes. Therefore, the Board’s decision is based on a misunderstanding of relevant facts of the case. The author also argues that his account cannot be disregarded as improbable on the basis of subjective and undocumented considerations which are unsubstantiated, as he gave no contradictory or imprecise accounts and the background material supported his claims.

5.3He reiterates that his tattoo should be seen as a public way of showing his disagreement with and opposition to the Iranian authorities and points out that the crucial matter is that the Iranian authorities will assume that he has converted to Zoroastrianism. Regarding his Facebook activities, he repeats that the Iranian authorities monitor Iranians residing outside the Islamic Republic of Iran and that he is therefore at risk of inhuman or degrading treatment or punishment.

5.4He also submits that the State party did not comment on the fact that he might be at risk because he left the Islamic Republic of Iran illegally.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.

6.2As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author. The Committee has noted that the author unsuccessfully appealed the negative asylum decision of the Danish Immigration Service to the Refugee Appeals Board and that the State party does not challenge the exhaustion of domestic remedies by the author.

6.4The Committee notes the State party’s argument that the author’s claims with respect to articles 7, 18 and 19 of the Covenant should be held inadmissible owing to insufficient substantiation, as well as the State party’s objections with regard to the extraterritorial application of articles 18 and 19 of the Covenant. However, the Committee considers that the author has adequately explained the reasons for which he fears that his forcible return to the Islamic Republic of Iran would result in a risk of treatment incompatible with article 7 of the Covenant and that he has provided relevant documentation in support of his claims. The Committee is, therefore, of the opinion that, for the purposes of admissibility, the author has sufficiently substantiated his allegations under article 7 with plausible arguments in support thereof. As for the allegations concerning a violation of articles 18 and 19, the Committee considers that they cannot be dissociated from the author’s allegations under article 7, which must be determined on the merits.

6.5In the light of the foregoing, the Committee considers that, under article 5 (2) (b) of the Optional Protocol, the communication is admissible insofar as it raises issues relating to articles 7, 18 and 19 of the Covenant.

Consideration of the merits

7.1The Human Rights Committee has considered the present communication in the light of all the information received, in accordance with article 5 (1) of the Optional Protocol.

7.2The Committee recalls its general comment No. 31 in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by article 7 of the Covenant. The Committee has also indicated that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.

7.3The Committee notes the author’s claims that he faces a real risk of being subjected to treatment contrary to article 7 of the Covenant if he is returned to the Islamic Republic of Iran, due to being a Kurdish Democratic Party of Iran sympathizer and to his activities distributing flyers with political content prior to his departure, which is allegedly known by the Iranian authorities. In addition, he has a tattoo of Zartosht, which will lead the Iranian authorities to consider that he has converted from Islam to Zoroastrianism. According to the author, this, together with the fact that he left the Islamic Republic of Iran illegally and will be sent back without a legal travel document, puts him at risk of being apprehended and tortured by the Iranian authorities upon arrival.

7.4The Committee recalls its jurisprudence that important weight should be given to the assessment conducted by the State party, and that it is generally for the organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. In this connection, the Committee observes that the Refugee Appeals Board, in reaching its decisions of 9 November 2009 and 20 September 2012, took note of the allegations raised by the author before the State party’s authorities, including in the interviews with the Danish National Police and the Danish Immigration Service, and of the documentation submitted by the author in support of his claims, but it concluded that there were no substantive grounds for asylum, as his accounts were considered to be unlikely and fabricated for the occasion. In the absence of evidence establishing that the decisions of the Refugee Appeals Board were manifestly unreasonable or arbitrary with respect to the author’s allegations, the Committee cannot conclude that the information before it shows that the author’s removal to the Islamic Republic of Iran would expose him to a real risk of treatment contrary to article 7 of the Covenant. In the light of this conclusion, the Committee does not deem it necessary to separately examine the author’s claims under article 18 and 19 of the Covenant.

8. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the removal of the author to the Islamic Republic of Iran would not violate his rights under articles 7, 18 and 19 of the Covenant.