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FIFTH
SECTION
CASE OF S.F. AND OTHERS v. SWEDEN
(Application
no. 52077/10)
JUDGMENT
STRASBOURG
15
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of S.F. and Others v.
Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52077/10) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Iranian nationals, S.F., N.S. and A.F.
(“the applicants”), on 10 September 2010. The President
of the Section acceded to the applicants’ request not to have
their names disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicants were represented by Ms G. Stenberg, a lawyer practising in
Stockholm. The Swedish Government (“the Government”) were
represented by their Agent, Ms G. Isaksson, of the Ministry of
Foreign Affairs.
- The
applicants alleged that, if deported from Sweden to Iran, they would
face a real risk of being arrested and subjected to torture or
inhuman treatment in violation of Article 3 of the Convention.
- On
14 September 2010 the President of the Chamber decided to apply Rule
39 of the Rules of the Court, indicating to the Government, in the
interest of the parties and the proper conduct of the proceedings
before the Court, that the applicants should not be deported until
further notice.
- On
21 October 2010 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1977, 1979 and 2009 respectively and are
currently in Sweden.
- On
10 September 2007 the first and second applicants, a married couple,
arrived in Sweden and applied to the Migration Board
(Migrationsverket) for asylum, residence and work permits.
Applications for refugee status and travel documents were lodged with
written submissions dated 28 February 2008.
- The
applicants submitted that they had lived together in Tehran. The
first applicant is a Kurdish Sunni Muslim and the second applicant a
Persian Shia Muslim. They both had a university degree and had been
working, the first applicant as a machine supervisor at a car factory
and the second applicant as a teacher, before they left Iran. The
first applicant had also been a musician, and he used to perform and
sing political music for the Kurdish cause in Iran. He had played at
several concerts, which had been criticised by the authorities.
He had also been an active athlete as an Iranian kick-boxing
champion.
- The
first applicant claimed that he had been politically active in Iran.
He had always been interested in the Kurdish issue and had once, in
2003, been arrested and questioned by Etalat, the Iranian security
forces, for being involved in a discussion on this topic.
Subsequently, he had been sentenced to 12 months’ imprisonment
by the Mojtama Ghazani e Ghods court. He had served one month in Qasr
prison, before being released on bail. Despite the sentence, he had
been able to keep his job and stay in Tehran.
- Approximately
one year before they left Iran, the first applicant had been
approached by a colleague and close friend, who was a member of the
Democratic Party of Iranian Kurdistan (KDPI), and asked if he was
interested in supporting and working for the KDPI. He had accepted
the proposition and started to disseminate leaflets, compact discs
and other information about the party and also to recruit new
members. He had sympathised with the party but had not been a full
member. His only contact with the party had been through the
colleague.
- On
26 August 2007 the first applicant had witnessed the arrest of a work
colleague by Etalat outside their workplace. He had then, out of
fear, decided to leave Iran as he assumed that his friend would
reveal his contacts under torture. He had left work, gone to the bank
to withdraw his savings and then home to tell his wife and to pack
their most important belongings. The
applicants had travelled first to Karaj, where the second applicant’s
parents lived and where they also left some personal belongings and
documents, and then to Sardesht, where they stayed with the first
applicant’s grandparents for two nights.
- On
27 August 2007 the first applicant had called the doorman in their
apartment building and been told that four men from Etalat had come
looking for the applicants. Etalat had broken into their apartment,
where allegedly they found evidence and KDPI-related documents which
the applicants had left behind.
- On
the night between 28 and 29 August 2007, the applicants had crossed
the border into Turkey and then continued through Europe by truck.
Since coming to Sweden they had been in touch with the first
applicant’s father, who had claimed that he had been threatened
by Etalat and that they had been searching for the first applicant.
On several occasions, Etalat had approached the father in his home
and taken him to their head office for interrogation.
- The
second applicant submitted that she had not been politically involved
and that she knew little of the extent of her husband’s
involvement in political activities while they were living in Iran.
She had, however, helped him to distribute some materials from the
party to friends and relatives.
- In
the initial contact with the Migration Board the applicants also
submitted that they had both been politically active in Sweden. They
had taken part in several meetings for the Kurdish cause and were
also active in news programmes that were broadcast on a satellite
channel banned in Iran and on internet blogs.
- The
first applicant had contacted members of the KDPI when he arrived in
Sweden and, soon after his arrival, he had participated in an
information meeting concerning the party’s 14th Congress. The
applicant submitted photographs of his attendance at the meeting
before the Migration Board. He also submitted a certificate issued by
the KDPI office in Paris on 15 April 2008, stating that the first
applicant was a supporter of the party and that his life would be in
danger if he were to return to Iran.
- The
second applicant had started in 2008 to work regularly for Newroz TV,
a Kurdish TV channel which was banned in Iran and considered critical
of the Iranian regime.
- On
23 May 2008 the Migration Board rejected the applicants’
request for asylum. The Board found that the applicants’ story
lacked credibility in several aspects. Leaving the credibility issues
aside, the Board also found that the applicants had only been active
in the KDPI at a very low level and that only activists higher up in
the hierarchy would be of any interest to the Iranian authorities.
Furthermore, the Board found that the applicants had not been very
active since their arrival in Sweden and had only participated in
general meetings.
- The
first and second applicants proceeded to the Migration Court
(Migrationsdomstolen) where they maintained their
story and added that several of their friends had been arrested since
they had left Iran and the first applicant’s father had
received several threatening telephone calls from Etalat. In July
2008 the first applicant had been interviewed on Newroz TV about
himself, sports and music, and political activity. The second
applicant had started to work for Newroz TV as a translator,
newscaster and journalist on a daily basis. She had researched and
reported, inter alia, on the hidden mass killings in Iranian
prisons.
- In
September 2008 they had become members of a European support
committee for Kurdish prisoners on hunger strike in Iran. Until 9
October 2008, when the hunger strike ended, the first applicant had
worked actively to collect support from different NGOs and to spread
the information on human rights violations in Iran. The issue was
brought up by the European Parliament, on the initiative of the
committee. The second applicant, as she could speak English, Farsi
and Sorani fluently, had become the universal spokesperson for the
committee. During the hunger strike, she had been interviewed by
several Kurdish media, Newroz TV and Roj TV and both applicants had
participated in debates on human rights violations in Iran on blogs
and several internet sites. During another hunger strike in
Stockholm, in October 2008, the first applicant had also been
interviewed by the Kurdish media, Newroz TV and Roj TV, and both
applicants had participated on blogs and several internet sites. They
claimed that their involvement with, inter alia, Newroz TV
must have drawn the attention and interest of Iranian authorities.
They submitted a letter from the first applicant’s father,
compact discs containing interviews with them from Newroz TV and
several reports and certificates from NGOs.
- By
a decision on 14 January 2009 the Migration Court rejected the
applicants’ request to translate the submitted compact discs
containing statements about the Iranian government.
- On
3 April 2009 the Migration Court, after an oral hearing of the case,
rejected the applicants’ appeal. The applicants’ story
about their activities in Iran was considered stringent and
substantiated by written evidence and the court found no reason to
question the credibility of the story. However, reports showed that
mainly high-ranking executives or militant members of the KDPI were
subjected to violent acts. It was not considered probable that the
Iranian authorities would show an interest in someone at such a low
level as the first applicant. Furthermore, the political activities
in Sweden had been limited in scope and the applicants had not been
able to show that these activities were of any interest to the
authorities. The submitted letter from the first applicant’s
father and the certificate from the KDPI’s office in France
were considered very general or of low value as evidence. Having
regard to relevant country information and to the fact that the
Iranian authorities were not interested in activities at a low level,
the court found that there was no indication that the applicants had
come to the direct attention of the Iranian authorities.
- On
19 June 2009 the third applicant was born.
- Before
the Migration Court of Appeal the first applicant additionally
submitted that he had been actively involved for the Kurdish cause on
Newroz TV, where he had expressed criticism and continuously
informed, inter alia, about the situation for Kurds and the
severe human rights violations in Iran. He had also been interviewed
on TV concerning his own reasons for leaving Iran. Newroz TV was
allegedly monitored by the Iranian intelligence services. The second
applicant submitted that, in addition to her work for Newroz TV, she
had been working for other Kurdish broadcasting services, that she
had performed approximately 30 interviews and that she had worked on
translations for Amnesty International’s international
secretariat in London. They submitted that they had been involved in
substantial political sur place activity and that this
activity was known to the Iranian authorities.
- On
8 July 2009 the Migration Court of Appeal
(Migrations-överdomstolen) refused leave to
appeal.
- Subsequently,
the applicants turned again to the Migration Board to stop the
expulsion. On 22 October 2009 the Board decided not to grant a new
examination. This decision was upheld by the Migration Court on
28 January 2010 and the Migration Court of Appeal refused leave
to appeal on 10 March 2010.
- In
August, September and October 2010, the applicants published several
articles in “Kurdish Perspective”. The second applicant
argued, in the articles, in favour of uniting opposition groups
against the Islamic government of Iran. She argued that there were
many racial and religious groups in Iran, all of which were oppressed
by the Iranian authorities, who tried to take advantage of this
variety and distract opposition activities. Several critical articles
were also published on various internet sites.
- In
2010 and 2011 the applicants signed several public petitions to free
human rights activists in Iran on an internet site.
- In
2011, the second applicant was involved in promoting the imprisoned
Kurdish Mr. Kabudwand as candidate for the Nobel Peace Prize. In the
nomination process, the second applicant was named as a member of the
nominating committee on several internet sites. She was interviewed
about his candidacy on one of the most popular opposition sites on 15
March 2011.
- In
Sweden, the first applicant had also become a full member of the
KDPI.
II. RELEVANT DOMESTIC LAW
- The provisions mainly applicable in the present case,
concerning the right of aliens to enter and to remain in Sweden, are
laid down in the Aliens Act (Utlänningslagen, 2005:716 –
hereafter referred to as “the Aliens Act”).
- Chapter 5, Section 1, of the Aliens Act stipulates
that an alien who is considered to be a refugee or otherwise in need
of protection is, with certain exceptions, entitled to a residence
permit in Sweden.
- According
to Chapter 4, Section 1, of the same Act, the term “refugee”
refers to an alien who is outside the country of his or her
nationality owing to a well-founded fear of being persecuted on
grounds of race, nationality, membership of a particular social
group, religious or political beliefs, grounds of gender, sexual
orientation and who is unable or, owing to such fear, is unwilling to
avail himself or herself of the protection of that country. This
applies irrespective of whether the persecution is at the hands of
the authorities of the country or if those authorities cannot be
expected to offer protection against persecution by private
individuals. By “an alien otherwise in need of protection”
is meant, inter alia, a person who has left the country of his
or her nationality because of well-founded fear of being sentenced to
death or receiving corporal punishment, or of being subjected to
torture or other inhuman or degrading treatment or punishment
(Chapter 4, Section 2, of the Aliens Act).
- As
regards the enforcement of a deportation or expulsion order, account
has to be taken of the risk of capital punishment or torture and
other inhuman or degrading treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be
sent to a country where there are reasonable grounds for believing
that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 12, Section 1, of the
Aliens Act). In addition, an alien must not, in principle, be sent to
a country where he or she risks persecution (Chapter 12, Section
2, of the Aliens Act).
- Under
certain conditions, an alien may be granted a residence permit even
if a deportation or expulsion order has gained legal force. This
applies, under Chapter 12, Section 18, of the Aliens Act, where new
circumstances have emerged that mean there are reasonable grounds for
believing, inter alia, that an enforcement would put the alien
in danger of being subjected to treatment as referred to in Chapter
12, Sections 1 and 2, of the Aliens Act or there are medical or other
special reasons why the order should not be enforced. If a residence
permit cannot be granted under this provision, the Migration Board
may instead decide to re-examine the matter. Such a re-examination
shall be carried out where it may be assumed, on the basis of new
circumstances invoked by the alien, that there are lasting
impediments to enforcement of the nature referred to in Chapter 12,
Sections 1 and 2, of the Aliens Act, and these circumstances could
not have been invoked previously or the alien shows that he or she
has a valid excuse for not doing so. Should the applicable conditions
not have been met, the Migration Board shall decide not to grant a
re-examination (Chapter 12, Section 19, of the Aliens Act).
III. RELEVANT COUNTRY INFORMATION AND CASE-LAW
A. Country information on Iran
- After
the elections in Iran on 12 June 2009 the Political Affairs Committee
of the PACE on 1 October 2009 adopted a declaration in which it
considered the violent reactions of the Iranian authorities to
peaceful protests to be a serious breach of Iranian citizens’
human rights. It also called upon governments of other countries not
to expel Iranian citizens to Iran.
- In
a document released by Freedom House on 18 April 2011 (Freedom on
the Net – Iran, p. 1) it was stated:
“Since the protests that followed the disputed
presidential election of June 12, 2009, the Iranian authorities have
waged an active campaign against internet freedom, employing
extensive and sophisticated methods of control that go well beyond
simple content filtering. These include tampering with internet
access, mobile-telephone service, and satellite broadcasting; hacking
opposition and other critical websites; monitoring dissenters online
and using the information obtained to intimidate and arrest them...”
- The
United States Department of State 2010 Human Rights Report: Iran,
section 2: Freedom of Speech and Press/Internet Freedom (8 April
2011) noted that:
“The government monitored Internet communications,
especially via social networking Web sites such as Facebook, Twitter
and Youtube, and collected individuals’ personally identifiable
information in connection with peaceful expression of views. The
government threatened, harassed, and arrested individuals who posted
comments critical of the government on the internet...”
- The
U.K. Home Office’s Operational Guidance Note – Iran,
dated November 2011, stated the following:
“3.7.11 ... There is a real risk that high profile
activists and political opponents who have come to the attention of
the authorities would on return to Iran face a real risk of
persecution and should be granted asylum for reason of his or her
political opinion.
3.7.12
Depending on the particular circumstances, some persons who do not
have a political profile- which would include for example student
demonstrators or other anti-government protestors- are likely to be
perceived by the authorities in Iran to oppose the regime and may
similarly face a real risk of persecution or ill-treatment on return.
Case owners must consider carefully whether the personal
circumstances of the individual concerned are such that he or she
would face a real risk of persecution on return to Iran.
3.7.13
Those who have engaged in opposition political activity in the U.K.
might, depending on their level of involvement, similarly face a real
risk of persecution on return to Iran on account of that activity and
in such cases a grant of asylum will also be appropriate. The test to
be applied in such cases is set out in detail in BA (Demonstrators
in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC).
3.12.9
Kurdish opposition groups suspected of separatist aspiration, such as
the Democratic Party of Iranian Kurdistan (KDPI), are brutally
suppressed.
3.12.10
Politically active groups and individuals are considered a threat to
national security by the Iranian government. If the Iranian
authorities consider a person to be working against national
security, (the person may for example be accused of being a spy or of
cooperating with an oppositional religious, ethnic or political
group), they may face severe punishment ranging from ten years’
imprisonment to execution. For instance, being in possession of a CD,
a pamphlet or something similar made by the Kurdish Democratic Party
of Iran (KDPI), Komala or other Kurdish organisations, may be
considered as an act against national security. This form of
persecution for political activities is a problem all over Iran.
However, the authorities are watching Kurdish areas and Tehran more
carefully than other areas.
3.12.12
There is no evidence to suggest that an applicant of Kurdish ethnic
origin, in the absence of any other risk factor, would on return face
a real risk of serious mistreatment simply on the account of his or
her ethnic origin alone. Applicants who are able to demonstrate that
they are members or supporters of the KDPI, Komala, or active members
of PJAK, and who are known to the authorities as such, will be at
real risk of persecution and a grant of asylum will be appropriate
unless there are case-specific reasons why it would not be.”
- Amnesty
International, in its Amnesty International Annual Report 2011 –
Iran, stated the following:
“The authorities maintained severe
restrictions on freedom of expression, association and assembly.
Sweeping controls on domestic and international media aimed at
reducing Iranians’ contact with the outside world were imposed.
Individuals and groups risked arrest, torture and imprisonment if
perceived as co-operating with human rights and foreign-based
Persian-language media organizations. Political dissidents, women’s
and minority rights activists and other human rights defenders,
lawyers, journalists and students were rounded up in mass and other
arrests and hundreds were imprisoned. Torture and other ill-treatment
of detainees were routine and committed with impunity. Women
continued to face discrimination under the law and in practice. The
authorities acknowledged 252 executions, but there were credible
reports of more than 300 other executions .
...
The authorities continued to restrict access to outside sources of
information such as the internet. International radio and television
broadcasts were jammed. In January, the authorities banned contact by
Iranians with some 60 news outlets and foreign-based organizations.
Those willing to speak to the few large Persian-language media
outlets on human rights issues were threatened or harassed by
security officials .
...
The authorities banned newspapers and student journals and prosecuted
journalists whose reporting they deemed "against the system".
Wiretapping and intercepting of SMS and email communications were
routine. A shadowy "cyber army", reportedly linked to the
Revolutionary Guards, organized attacks on domestic and foreign
internet sites deemed to be anti-government, while other sites,
including some associated with religious leaders, were filtered ...”
- The
U.K. Foreign and Commonwealth Office in its Human Rights and
Democracy: The 2010 Foreign & Commonwealth Office Report –
Iran, (2011), stated:
“The Iranian authorities continued to actively
censor the internet, restricting access to wide range of sites
including Facebook and YouTube and targeting bloggers and online
journalists. The military-run Cyber Army was reported to have taken a
leading role in monitoring and disrupting internet sites and other
online tools, including email and blog sites.”
- The
Swedish Migration Board, in its legal position document (Rättsligt
ställningstagande), regarding the determination of
individual risk for minorities and other groups in Iran and also the
refugee status for individuals with regard to sur place
activity (31 October 2011) stated that it must be considered that the
Iranian regime is interested in internet users and activity abroad.
Its ability to track down and monitor Iranians’ use of internet
and other activities abroad is remarkably high and Iran is considered
to be one of the countries which go the furthest in this respect .
- In
its World Report 2012, Human Rights Watch stated the
following:
“In 2011 Iranian authorities refused to allow
government critics to engage in peaceful demonstrations. In February,
March, April and September security forces broke up large-scale
protests in several major cities... There was a sharp increase in the
use of death penalty. The government continues targeting civil
society activists, especially lawyers, rights activists, students,
and journalists.”
B. Relevant references regarding sur place
activity
- In
a judgment of the U.K. Court of Appeal in SS (Iran)
[2008] EWCA Civ 310, the issue of sur place activities was
considered. The case concerned an appeal by an Iranian of Kurdish
ethnicity who claimed to have been involved with Komala, a Kurdish
political party, in Iran and that Komala leaflets had been found in
his home. He had said that after fleeing Iran and applying for asylum
he had become more involved with Komala. A photograph of him had been
posted on the internet and a film sequence of a demonstration he had
attended in London had been broadcast on Komala Television in Sweden.
The Court of Appeal considered that the Immigration Judge’s
conclusions on the credibility of the appellant were not sustainable,
however, the court did also consider the appellant’s sur
place activities. Bearing in mind that the burden of proof lay on
the appellant, Lord Neuberger found that the Immigration Judge
had been entitled to reach the conclusion he did. He commented:
“There must be a limit as to how far an applicant
for asylum is entitled to rely upon publicity about his activities in
the UK against the government of the country to which he is liable to
be returned. It seems to me that it is not enough for such an
applicant simply to establish, as here, that he was involved in
activities which were relatively limited in duration and importance,
without producing any evidence that the authorities would be
concerned about them, or even that they were or would be aware of
them.”
- However,
in YB (Eritrea) v. Secretary of State for the Home Department
[2008] EWCA Civ 360, which was handed down on 15 April 2008, the
Court of Appeal took the following approach to the issue of sur
place activities. The case involved an Eritrean asylum seeker who
claimed to have been active in support of the opposition Eritrean
Democratic Party whilst in the United Kingdom. The Court of Appeal
again remitted the issues arising from sur place activities to
be heard before a differently constituted Asylum and Immigration
Tribunal, which stated:
“... [T]he Tribunal, while accepting that the
appellant’s political activity in this country was genuine,
were not prepared to accept in the absence of positive evidence that
the Eritrean authorities had ‘the means and the inclination’
to monitor such activities as a demonstration outside their embassy,
or that they would be able to identify the appellant from photographs
of the demonstration. In my judgment, and without disrespect to what
is a specialist tribunal, this is a finding which risks losing
contact with reality. Where, as here, the tribunal has objective
evidence which ‘paints a bleak picture of the suppression of
political opponents’ by a named government, it requires little
or no evidence or speculation to arrive at a strong possibility, -
and perhaps more – that its foreign legations not only film or
photograph their nationals who demonstrate in public against the
regime but have informers among expatriate oppositionist
organisations who can name the people who are filmed or photographed.
Similarly it does not require affirmative evidence to establish a
probability that the intelligence services of such states monitor the
internet for information about oppositionist groups. The real
question in most cases will be what follows for the individual
claimant. If, for example, any information reaching the embassy is
likely to be that a claimant identified in a photograph is a
hanger-on with no real commitment to the oppositionist cause, that
will go directly to the issue flagged up by art 4(3)(d) of the
[Qualification Directive 2004/83/EC].”
- In
a more recent judgment of the U.K. Upper Tribunal in BA
(Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the tribunal gave a new “country guidance”
determination on returns to Iran in light of the post-presidential
election violence. The case concerned an Iranian national’s sur
place activities in the U.K. The Court considered the appellant
to be a demonstrator whom the Iranian authorities would particularly
wish to identify and that there was a real risk that they would be
able to do so. Additionally, because of the nature of his association
with Bamdad e Iran there was also a real risk that he would face
ill-treatment which would amount to persecution because of his
political beliefs. The Court stated, inter alia, the
following.
“1 Given the large numbers of those
who demonstrate here and the publicity which demonstrators
receive, for example on Facebook, combined with the inability of the
Iranian Government to monitor all returnees who have been
involved in demonstrations here, regard must be had to the level of
involvement of the individual here as well as any political activity
which the individual might have been involved in Iran
before seeking asylum in Britain.
2
(a) Iranians returning to Iran are screened on arrival.
A returnee who meets the profile of an activist may be detained while
searches of documentation are made. Students, particularly those who
have known political profiles are likely to be questioned as well as
those who have exited illegally.
(b) There
is not a real risk of persecution for those who have exited Iran
illegally or are merely returning from Britain. The conclusions of
the Tribunal in the country guidance case of SB (risk
on return – illegal exit) Iran CG [2009] UKAIT 00053 are
followed and endorsed.
(c) There
is no evidence of the use of facial recognition technology at the
Imam Khomeini International airport, but there are a number of
officials who may be able to recognize up to 200 faces at any one
time. The procedures used by security at the airport are haphazard.
It is therefore possible that those whom the regime might wish to
question would not come to the attention of the regime on arrival.
If, however, information is known about their activities abroad, they
might well be picked up for questioning and/or transferred to a
special court near the airport in Tehran after they have returned
home.
3 It
is important to consider the level of political involvement before
considering the likelihood of the individual coming to the attention
of the authorities and the priority that the Iranian regime would
give to tracing him. It is only after considering those factors that
the issue of whether or not there is a real risk of his facing
persecution on return can be assessed.”
A number of factors were
considered and placed under four main heads: (i) the type of sur
place activity involved; (ii) the risk that a person will be
identified as engaging in it; (iii) the factors triggering inquiry on
return of the person and; (iv) in the absence of a universal check on
all entering the country, the factors that would lead to
identification at the airport on return or after entry.
- In
a recent judgment of the Swedish Migration Court of Appeal of 16
September 2011, the court considered the need for international
protection based on sur place activity. The court stated that
a real risk to be subjected to severe ill-treatment can be based on
an applicant’s sur place activity and that a
comprehensive examination of all circumstances has to be made to
determine such a risk. It was considered to be of particular
importance whether the claimed activity was an expression and a
continuation of opinions already founded in the country of origin.
- The
Swedish Migration Board, in its legal statement of 31 October 2011(as
referred to above), recognised that a risk based on sur place
activity can constitute grounds for refugee status and asylum and
listed the following factors to be considered in such assessment:
“1. Whether the person has been politically or
religiously active also in his country of origin. It is of importance
for the determination whether a need for international protection has
occurred sur place if the claimed activity is an expression
and a continuation of an opinion already founded in the country of
origin. The starting point should be that the requirements are higher
regarding the extent of sur place activity if it has only
occurred in Sweden.
2.
Whether the political activity and its extent are of interest to the
Iranian state. The activity must be sufficiently serious in nature
and involve behaviour which would generally be seen to displease the
Iranian regime. The assessment should be based on the nature and
extent of the activity and should take into consideration the Iranian
approach to such activity according to current country information,
the degree of exposure in Sweden and the possible subsequent risk on
return to Iran.
3.
Whether the activity has or may come to the knowledge of the Iranian
state. The asylum seeker has to make plausible that the activity has
or may come to the knowledge of the Iranian authorities. To this end
he must, in the absence of other evidence, provide a clear and
coherent story supported by current country information.”
THE LAW
I. ADMISSIBILITY
- The
Court considers that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that, if deported to Iran, they would be
subjected to torture or inhuman and degrading treatment or
punishment, in violation of Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. The parties’ submissions
1. The applicants
- The
applicants maintained that they would run a real risk of being caught
by the Iranian authorities and subjected to torture, inhuman or
degrading treatment or punishment based on the general situation in
Iran regarding political dissidents, the high profile that the
applicants had as such dissidents and these factors together with the
fact that the applicants had left Iran illegally.
- They
further claimed that the country information, referring, inter
alia, to U.K. Home Office Operational Guidance Note Iran of 15
March 2011, had changed and the situation was now more severe.
- Regarding
their personal situation and sur place activities they
referred to a collection of internet links, to some of the articles
written by the applicants, four compact discs with a summary of their
content and links to several interviews and further articles on the
internet. They submitted that the second applicant could be found on
at least 200 sites on Google and the first applicant could also be
found on several sites. They submitted a selection of print-outs of
internet sites and articles to prove that they were actively
promoting human rights in Iran in general and the rights of Kurds in
particular. The first applicant, who was now a full member of the
KDPI, also submitted a membership certificate.
2. The Government
- The
Government argued that the application revealed no violation of the
Convention.
- Furthermore,
the Government did not consider the current situation in Iran in
general sufficient to warrant international protection.
- They
did not question that the first applicant had, to some extent, been
politically active in Iran, before leaving the country. Nor did they
contest that the applicants had participated in certain such
activities in Sweden. However, they did find reason to question the
applicants’ allegation that, due to these activities, they
would face a real and individual risk of being treated in violation
of Article 3 of the Convention if returned to Iran. They also
questioned the significance of the documents submitted by the
applicants to substantiate their claims.
- As
to the facts presented by the applicants, the Government pointed out
that the first applicant had not been a high-ranking member of the
KDPI. The events in 2003, when the first applicant allegedly had been
arrested and sentenced to imprisonment, were not supported by any
written evidence and, further, the alleged proceedings had taken
place several years before the applicants left Iran. It therefore
appeared improbable in the Government’s view that the
applicants would still be of interest to the Iranian authorities.
Nothing had emerged in the case indicating that the applicants were
subjected to any further attention by the authorities in Iran.
- The
Government also noted that the applicants had left Iran due to their
mere suspicion that facts about the first applicant’s political
activities would be disclosed to the authorities by his colleague.
Hence, there was no real evidence to substantiate that the
authorities would have shown an interest in the applicants in 2007
had they stayed in Iran.
- Regarding
the political activity in Sweden, the Government reiterated that the
applicants’ story had escalated over time. The applicants’
accounts of their activities in Sweden were considered rather vague
and the only evidence adduced in this regard - a letter from the
first applicant’s father – had low value as evidence.
Even considering that the applicants were KDPI sympathisers, the
Government held that it was not substantiated that the applicants
were known to the authorities as such nor had they been able to
demonstrate that they would face particular risks upon return.
- The
Governments’ view was that, even considering the updated
country information, the applicants had still not submitted any
evidence which substantiated that they had come, or would risk
coming, to the attention of the Iranian authorities because of their
activities in Sweden or for any other reason.
B. The Court’s assessment
- The
Court observes that Contracting States have the right as a matter of
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens (Üner v. the Netherlands [GC], no. 46410/99,
§ 54, ECHR 2006 XII). However, expulsion by a Contracting
State may give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned, if
deported, faces a real risk of being subjected to treatment contrary
to Article 3. In such a case, Article 3 implies an obligation not to
deport the person in question to that country (Saadi v. Italy
[GC], no. 37201/06, § 125,
ECHR 2008).
- In
regard to the present case, the Court observes from the outset that
the applicants are to be returned to a country where on all accounts
the human rights situation gives rise to grave concern. It is noted
that the country information has changed and that the situation
appears to have deteriorated in Iran since the domestic authorities
determined the case. It is evident from the current information
available on Iran (as set out above) that the Iranian authorities
frequently detain and ill-treat persons who peacefully participate in
oppositional or human rights activities in the country. The Court
notes that it is not only the leaders of political organisations or
other high-profile persons who are detained but that anyone who
demonstrates or in any way opposes the current regime may be at risk
of being detained and ill-treated or tortured.
- Whilst
being aware of the reports of serious human rights violations in
Iran, the Court does not find them to be of such a nature as to show,
on their own, that there would be a violation of the Convention if an
applicant were returned to that country. The Court has to establish
whether the applicants’ personal situation is such that their
return to Iran would contravene Article 3 of the Convention.
- In
order to determine whether there is an individual, real risk of
ill-treatment, the Court must examine the foreseeable consequences of
sending the applicants to Iran, bearing in mind the general situation
there and their personal circumstances (see Vilvarajah and Others
v. the United Kingdom, judgment of 30 October 1991, Series A no.
215, § 108 in fine).
- The
Court acknowledges that it is often difficult to establish,
precisely, the pertinent facts in cases such as the present one and
that, as a general principle, the national authorities are best
placed to assess not just the facts, but also the general credibility
of the applicant’s story. The Court finds, in agreement with
the Swedish Migration Court, that the applicant’s basic story
was consistent throughout the proceedings and that, notwithstanding
some uncertain aspects, such uncertainties do not undermine the
overall credibility of their story.
- Turning
to the alleged incidents and political activity in Iran the Court
notes that the first applicant had sympathised with the KDPI only at
a low political level in Iran and that a considerable time has
elapsed since the first applicant was arrested in 2003. The applicant
had been able to continue his work and life as normal after his time
in prison and there was no indication of any further attention from
the Iranian authorities. Even considering that the first applicant is
allegedly well-known, as a practising musician and prominent
kick-boxer, the Court does not find the alleged circumstances
sufficient independently to constitute grounds for finding that the
applicants would run the risk of Article 3 treatment if returned.
- Turning
then to the applicants’ sur place activity and incidents
after they arrived in Sweden, the Court finds that since 2008 they
have continuously participated in political activity of intensifying
importance. They have appeared with photographs and names on several
internet sites and TV broadcasts, where they have expressed, inter
alia, their opinions on human rights issues in Iran and criticism
against the Iranian regime. They have taken rather leading roles and
the second applicant has been the international spokesperson in a
European committee for the support of Kurdish prisoners and human
rights in Iran. They have expressed their individual views in many
articles published on prominent Kurdish internet sites. The Court
concludes that the applicants have been involved in extensive and
genuine political and human rights activities of relevance for the
determination of the risk on return to Iran.
- To
determine whether these activities would expose the applicants to
persecution or serious harm if returned to Iran, the Court has regard
to the relevant country information on Iran, as set out above. The
information confirms that Iranian authorities effectively monitor
internet communications and regime critics both within and outside of
Iran. It is noted that a specific intelligence “Cyber Unit”
targets regime critics on the internet. Further, according to the
information available to the Court, Iranians returning to Iran are
screened on arrival. There are a number of factors which indicate
that the resources available could be used to identify the applicants
and, in this regard, the Court also considers that the applicants’
activities and alleged incidents in Iran are of relevance. The first
applicant’s arrest in 2003 as well as his background as a
musician and prominent Iranian athlete also increase the risk of his
being identified. Additionally, the applicants allegedly left Iran
illegally and do not have valid exit documentation.
- Having
considered the applicants’ sur place activities and the
identification risk on return, the Court also notes additional
factors possibly triggering an inquiry by the Iranian authorities on
return as the applicants belong to several risk categories. They are
of Kurdish and Persian origin, culturally active and well-educated.
- Having
regard to all of the above, the Court concludes that there are
substantial grounds for believing that the applicants would be
exposed to a real risk of being subjected to treatment contrary to
Article 3 of the Convention if deported to Iran in the current
circumstances. Accordingly, the Court finds that the implementation
of the deportation order against the applicants would give rise to a
violation of Article 3 of the Convention.
III. RULE 39 OF THE RULES OF COURT
- The
Court notes that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above § 4) must remain in force until
the present judgment becomes final or until the Court takes a further
decision in this connection (see operative part).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
74. Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant made no claim in respect of pecuniary and non-pecuniary
damage and the Government similarly made no observations under this
head.
B. Costs and expenses
- The
applicants have, in two submissions to the Court, claimed a total of
10, 931 Swedish kronor (SEK; approximately EUR 1,240),
inclusive of VAT, in legal costs and expenses incurred before the
Court.
- The
Government only commented on the first invoice of SEK 6, 923 and
considered this amount acceptable.
- The
Court considers that the total amount claimed is reasonable and
grants it in full.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that the deportation of the applicants to
Iran would give rise to a violation of Article 3 of the Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the applicants until such time as the present judgment becomes
final or until further order;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1, 240 (one
thousand two hundred and forty euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into Swedish kronor at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
