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FOURTH SECTION

Application no. 30953/11
A.E.
against Finland
lodged on 19 May 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr A.E., is an Iranian national who was born in 1987. He is represented before the Court by Ms Merja Annala, a lawyer practising in Tampere.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a Kurd of ethnic origin and a Muslim. He lived in Iran in a small village called Gangachin, near the city of Uromye, where everybody knows each other. He comes from a wealthy family of farmers and he worked for two years as a taxi driver.

1.  Applicant’s account of the facts which took place in Iran

The applicant realised in his early childhood that he was homosexual. In his home village he had four homosexual friends. On 13 October 2008 these friends were arrested by the police at a private party in Uromye which the applicant did not attend because he was staying overnight at another friend’s home. He tried to call his friends the same evening but nobody answered.

The next day the applicant’s father called him and told him that the police had come looking for him and had searched the house. The police had seized some discs which contained photographs and video clips of the applicant in interaction with men. The applicant was frightened and decided to flee the country. The applicant’s father knew a person who was asked to smuggle the applicant to Finland where his father’s cousins lived.

On 15 October 2008 the applicant left Iran for Turkey. He spent over a month in Istanbul while the smuggler booked him a flight to Sweden and obtained an Iranian passport for him on somebody else’s name, containing a visa issued by the Belgian authorities. The applicant and the smuggler flew to Stockholm and continued from there to Umeå from where they took a ferry to Finland.

The applicant suspected that the Iranian police had been looking for him because his friends had been tortured to disclose his name. The applicant did not know whether his friends had returned to the village or what had happened to them. His family found out about his homosexuality when the police came to search the house. The applicant was not sure whether he would still be welcome to live with his parents.

2.  Proceedings in Finland

On 29 November 2008 the applicant entered Finland and sought asylum on the same day.

On 1 February 2010 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected his application and ordered his removal to Iran. In its reasons the Service found that, according to the country information, Iran was a relatively tolerant country as concerned homosexuality, as long as it was not exercised in public. Even though the death penalty could be imposed, the threshold for conviction was very high. A conviction required that four “right-minded” persons were eye witnesses to the intercourse or that the accused confessed. During recent years no-one had been executed in Iran on that ground alone. Even though homosexuals could be discriminated against in Iran, they were not systematically persecuted. The Service did not consider the applicant’s account that the police knew about his homosexuality credible. The police had not even tried to look for the applicant after they had allegedly learnt about his homosexuality. However, if he really was persecuted, he could move to another city in Iran. It was not probable that the applicant would be arrested, at least if residing outside his home town, only because of his homosexuality. The applicant had been able to live peacefully in Iran most of his life. He was thus not in need of humanitarian protection.

By letter dated 12 March 2010 the applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming, inter alia, that he could no longer live peacefully in Iran because the police were aware of his homosexuality.

The applicant presented in the Administrative Court a new piece of evidence, a warning letter which the Iranian police had allegedly given to the applicant’s father in the context of the search. According to the letter, the applicant was to appear in court on 15 October 2008. The Immigration Service had obtained a statement from an Iranian legal counsel at the Finnish Embassy in Tehran, according to whom the document was a fake. The identity of the counsel had not been revealed to the applicant nor to the Administrative Court.

On 12 May 2011 the Administrative Court, after having held an oral hearing, rejected the applicant’s appeal. In addition to the Immigration Service’s reasoning, the court noted that, according to several sources, about 4,000 homosexual persons had been executed since 1979 in Iran. A majority of the convictions were not based on evidence required by law but on the judge’s own assessment. If a homosexual relationship came to the authorities’ knowledge, a person could be persecuted. In the present case, the applicant had only assumed that his friends had been arrested and he had never even tried to find out what had happened to them. It was not credible that the Iranian authorities had an interest in him, that they had conducted a search at his home and seized materials related to homosexuality. The credibility of his account was weakened by the fact that the document which he had presented only before the Administrative Court had turned out to be a fake. The applicant had thus not been able to show that he would have difficulties with the Iranian authorities, that they would know about his homosexuality and that he would therefore be persecuted if removed to Iran. The applicant had not raised any issues about how his sexual orientation would have complicated his life. In Iran both heterosexual and homosexual public behaviour were punishable. As the applicant had been able to live in Iran as an active homosexual for five years without problems, it could not be said that he had been obliged to suppress his identity in an unbearable manner.

By letter dated 19 May 2011 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He also requested a stay on removal which was not granted.

On 13 January 2012 the Supreme Administrative Court refused the applicant leave to appeal.

By letter dated 18 January 2012 the applicant lodged an application with the Supreme Administrative Court to reopen his case as the Supreme Administrative Court had decided on 13 January 2012 to refer back to the Immigration Service a similar case concerning an Iranian homosexual (KHO 2012:1). The applicant claimed that this precedent case had changed the principles according to which persecution directed against sexual minorities was to be assessed. He also requested a stay on removal.

The case is still pending before the Supreme Administrative Court.

B.  Relevant international materials

The Home Office’s Operational Guidance Note on Iran of November 2011 provides the following information:

“3.10.10.  The country evidence is that gay rights activists, who come to the attention of the authorities, are in danger of persecution at the hands of the State and should be granted asylum.

3.10.11.  If there is a real risk that a gay man, lesbian or bisexual sexual relationship will come to the attention of the authorities, the applicant would on return to Iran face a real risk of persecution and, as gay men, lesbians and bisexuals in Iran may be considered to be members of a particular social group, they should be granted asylum.

3.10.12.  If an individual chooses to live discreetly because he/she wants to avoid embarrassment or distress to her or his family and friends he/she will not be deemed to have a well-founded fear of persecution and will not qualify for asylum. This is because he/she has adopted a lifestyle to cope with social pressures and not because he/she fears persecution due to her or his sexual orientation. In this regard case-owners should consider carefully the country evidence about the homophobic culture that rules Iranian society and that gay men and lesbians face ostracism and abuse from their families, friends and acquaintances.

3.10.13.  If an individual chooses to live discreetly because he/she fears persecution if he/she were to live as openly gay, lesbian or bisexual then he/she will have a well-founded fear and should be granted asylum. It is important that gay, lesbian and bisexual people enjoy the right to live openly without fear of persecution. They should not be asked or be expected to live discreetly because of their well-founded fear of persecution due to their sexual orientation.”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he fears ill-treatment or torture if removed to Iran. The applicant is gay. He claims that the Iranian police have evidence of his homosexuality (photos and videotapes) and that his homosexual friends have already been arrested. In Iran homosexual acts are punished by the death penalty. He also refers to Articles 2 and 5 of the Convention.

The applicant complains under Article 6 of the Convention that he has not had a fair trial as he could not put questions to the anonymous counsel who had claimed that the warning letter was a fake even though he had not seen the original letter.

QUESTIONS TO THE PARTIES

1.  In the light of the applicant’s claims and the documents which have been submitted, would he face a real risk of being subjected to treatment in breach of Article 3 of the Convention if the removal order to Iran were enforced? In this connection, what weight did the authorities give in their assessment to the opinion of the Iranian lawyer on the authenticity of the warning letter relied on by the applicant?

2.  Has there been a breach of Article 13 of the Convention in view of the fact that domestic law did not provide an automatic stay of removal while the applicant’s asylum claim was pending before the Finnish courts?