AS TO THE ADMISSIBILITY OF
Application no. 11682/04
by Faradokht DEJBAKHSH and Nagmeh MAHMOUD ZADEH
The European Court of Human Rights (Second Section), sitting on 13 December 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 24 March 2004,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Faradokht Dejbakhsh (“D”) and Ms Nagmeh Mahmoud Zadeh (“M”), are Iranian nationals who were born in 1950 and 1978 respectively. They are mother and daughter. They are represented before the Court by Mr P. Stadig, a lawyer practising in Stockholm. The respondent Government are represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants arrived in Sweden on 16 March 2002 and applied for asylum on 5 April the same year. They presented genuine passports, valid until 6 September 2002 and 20 September 2002 respectively, as well as visas valid from 31 February to 1 April 2002, issued by the Swedish Embassy in Teheran on 4 February 2002. The applicants had previously been granted visas to Sweden on two separate occasions; D in 1997 and M in 1998, both for the purpose of visiting relatives. D’s mother (M’s grandmother) had been a permanent resident of this country since the 1980s, as had three sisters and a brother of D.
The Migration Board (Migrationsverket) conducted an initial interview with the applicants on 5 April 2002. D essentially stated the following: Her mother had died on 2 February 2002. She applied for asylum in Sweden solely because of the problems she had experienced with her husband in Iran (henceforth referred to as “H”). They had married in 1967 and since then he had repeatedly subjected her to harassment and physical assault. They had two children together, M and a son born in 1971. H had also assaulted the son. The assaults had occurred when H, an alcoholic, was drunk and had caused D injuries such as a broken jaw. At one point, D had been in surgery for a navel rupture. Before the wound had healed, H had stabbed her in the stomach with a knife so that she had to be operated again. D had not reported any of the incidents of assault to the Iranian authorities because they would not offer her any protection anyway. Furthermore, H was an influential person. He was retired but had worked in the military, where he had held the rank of colonel. She believed that he worked for the revolutionary committee; he had done so previously. The stabbing incident had been automatically reported to the police, but she had told them that she had fainted and could not remember what had happened. The police had not pursued the matter any further. She had not divorced H, because this was not possible for her, being a woman. However, they had been living apart since 1992, when he had thrown her and the children out of their home. Prior to that they had lived apart from time to time, but this time the separation had been definite. D had moved with the children into her mother’s home in Teheran and, after the son had married, D and M had lived there alone. However, H had continued to harass the applicants, claiming that they were women of no morals. He had asserted that M must marry a man he had chosen for her in order to restore her father’s honour. If M would disobey him, he had threatened to cut her throat. Despite the discords, H had given his permission for D to apply for a passport. This passport had been issued on 6 September 1997. This time she had left Iran without his knowledge. The additional consent he had given her to travel outside Iran in 1997 still applied. Since the separation in 1992, D had worked as a hairdresser and, in addition to an inheritance from her father, she had received financial support from her mother and family.
At the interview on 5 April 2002, M essentially stated the following: She had left Iran because of her father. She and D had lived in her grandmother’s home in Teheran for the past 11 years but had also stayed with H intermittently. However, they had not returned to him since their last visit to Sweden. She had studied at the university in Zanjan between 1996 and 2000 and was currently working at a private pharmaceutical company. While she had still been studying, she had been interrogated by the security forces several times, the last time in the winter of 2000. H had friends in the security forces. She had been interrogated because of his claim that she was a girl of bad morals. He had not been able to take her from the university because she had already paid the entrance fee. The man he wanted her to marry was already married.
The Migration Board conducted a second interview with D and M on 8 May 2002. On this occasion D essentially added the following: Her mother had been buried in Iran on 10 February 2002. D’s siblings had brought the remains from Sweden to Iran. H had tried to ruin the funeral. He had taken M to a physician in forensic medicine to ascertain whether she was still a virgin. D had not lived with H since 1992 but had visited him at times when he had been ill. He had allowed her and the children to live on their own so that he would be free to get drunk and would not have to pay for them. After the revolution he had worked in the revolutionary court for three to four years. Just before retiring in 1985-86, he had been in command over Iraqi prisoners of war. Since then he had worked secretly for the revolutionary committee but she did not know exactly for whom. The committee was part of the security forces (Niruha-ye-Entezami) and its task was to ensure that people followed rules of dress and behaviour. There were several committees named after geographical areas. H knew that she and M had left Iran, but she did not know whether he had reported her to some authority. H had disapproved of M’s studies and had physically assaulted M two or three times when he had come to visit her at her student residence.
With regard to the stabbing incident, D first stated that the operation for the navel rupture had been carried out in November/December 2000 and that H had come to see her while she had still been in bed recovering. She later stated that the operation, which had allegedly occurred on 22 January 2001, had not been well performed. H had asked what she had done wrong against God, since she had not yet recovered, and had stabbed her. She had first thought that her stitches had come undone. When she had opened her eyes she was in hospital. The police had arrived and told her that H had stabbed her. When asked by the interviewer why the police had come to the hospital, D said that hospitals were obliged to report knife and bullet injuries to the police. She further stated that when she had regained consciousness she had told the police what had happened. They had also talked with the nurse and the doctors. She had not contacted the police to find out what had happened with the investigation, and assumed that it had been dropped since no one had contacted her about it.
During the second interview on 8 May 2002, M essentially added the following: H had come to the university more than 20 times during the four years she had studied there. He had been rude and had always given her a smack on the face. On most occasions he had been accompanied by some of his friends from the committee in Teheran, which was a group of people belonging to the Basij (a paramilitary volunteer force operating in Iran). They made sure that people followed strict moral rules. The last time M and her mother had stayed with H had been in September 1998 when they had returned from Sweden. They had stayed with him for three weeks. They had moved away from him for the first time in 1991/1992 and had moved back and forth a number of times until 1998. Since September 1998 they had not returned to him.
In submissions of 6 June 2002 to the Migration Board, counsel for the applicants stated the following: The son of the family had recently told the applicants that H had threatened and blamed him for their departure from Iran. H had further stated that he intended to put them on trial in order to have them sentenced to stoning when they returned to Iran. As to what extent the applicants had lived with him, it was submitted that the applicants had returned to him on some occasions between 1992 and 1998 because it had been difficult to live without him and because he had repeatedly promised to give up drinking and stop battering D. However, he had never kept his promise and they had not lived with him since a few weeks after returning from Sweden in 1998.
To the submission of 6 June 2002 were appended three documents, seemingly drafted by Iranian authorities: a “statement” issued by the “Madanis legal complex” on 3 April 2002, apparently based on a report made by H, and two summonses instructing the applicants to appear at the complex on 23 May 2002. The applicants also invoked a marriage licence between D and H.
On 16 July 2002 the Migration Board rejected the applicants’ request for a residence permit and ordered that they be deported to Iran. The Board questioned the veracity of the applicants’ statements concerning the alleged actions and controlling influence of H, as the applicants had lived on their own since 1992, as M had been able to study in another town between 1996 and 2000, and as they had been able to leave for Sweden in 1997/98 and in 2002. Noting that H was retired, the Board also found that the applicants had not shown that he was a man of great influence in Iranian society or that he was involved with the security forces. The Board also found it remarkable that the applicants had waited three weeks after their arrival in Sweden to apply for asylum. The fact that D’s mother had died could not explain this delay, as she had died and had been buried in Iran before the applicants left for Sweden. The Board further noted that D had given conflicting information on her reporting the stabbing incident to the police. It also took into account that the applicants had not turned to the police to report H’s alleged threats and harassment, and that D had not filed for divorce. In conclusion, the Board did not find the applicants’ statements credible.
The applicants appealed to the Aliens Appeals Board (Utlännings-nämnden) on 6 August 2002. In the appeal they submitted that they had applied for asylum while their visas were still valid and that they were staying legally in Sweden. The reason why they had not applied for asylum earlier was that they had been busy with different mourning ceremonies among relatives and friends and that D had been in a bad mental state due to her mother’s death. It was furthermore submitted that D’s operation for the navel rupture had taken place at the end of 2001, and that H had stabbed her on 22 January 2002. In this respect the applicants invoked an operation report sheet and a note of medical records. They also invoked an ID card to confirm their claim that H was employed by the Basij.
Further submissions were made to the Appeals Board on 13 October 2003. Appended to the submissions was a summons (“warning”) directed at D to appear before the family court in Teheran on 31 August 2003 in order to respond to a report made against her by H. The applicants stated that the son had sent the summons to Sweden by fax and that, according to the summons, there was further documentation in the case, the content of which D was not aware, and which she did not know how to access unless she was to appear in person before the court. D submitted that a summons to the family court could be very serious because the various religious authorities cooperated closely with that court, which she believed to be the case here.
On 24 November 2003 the applicants made yet another submission to the Appeals Board. They claimed that the report filed by H against D had turned out to concern adultery and had resulted in D being sentenced in her absence by an Iranian court to death by stoning. The son had allegedly obtained the report and the judgment by bribing court officials. As it appears, the report had been filed on 20 July 2003, the hearing held on 31 August 2003 and the judgment issued the same day.
In final submissions of 18 February 2004, the applicants claimed that the circumstances that had led to the judgment against D gave strong reason to believe that M would face a similar charge and conviction.
On 22 March 2004, the Aliens Appeals Board rejected the applicants’ appeal. It generally agreed with the Migration Board’s assessment and added the following: It noted that the medical documents concerning D’s operation for stabbing wounds were dated 22 January 2001 and not 22 January 2002, as alleged by D. Although D had stated that she had been operated for a navel rupture before the alleged stabbing, the documents did not mention any such operation. In regard to the alleged judgment and death sentence against D, the Appeals Board found it remarkable that she had been sentenced in absentia, having regard to the evidence requirements under the hodûd rules of the Iranian criminal law. The Board also noted that the judgment submitted by the applicants stated that it was final, whereas Iranian death sentences were subject to appeal.
Following the Court’s indications under Rule 39 of the Rules of Court, the Migration Board decided, by decisions of 8 July, 13 August and 27 September 2004, to stay the enforcement of the deportation order against the applicants, on the latter occasion without a time-limit.
The applicants complained under Articles 2 and 3 of the Convention that they would be executed upon return to Iran.
The applicants complained that their deportation to Iran would involve a violation of Articles 2 and 3 of the Convention. The Court finds that Article1 of Protocol No. 13 to the Convention is also applicable to the applicants’ complaints. In so far as relevant, these provisions provide as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 1 of Protocol No. 13:
“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”
The respondent Government submitted that the application was inadmissible as being manifestly ill-founded. In regard to the risks facing the applicants personally in the event of their return to Iran, the Government stated that the Swedish Embassy in Teheran had consulted Iranian legal expertise on the authenticity of the documents relied on by the applicants in support of their claim that D had been sentenced in absentia to death by stoning. Claiming that the investigation had shown that the documents, with great certainty, were forgeries, the Government noted, inter alia, the following: The documents referred to different branches of the relevant court and had different case numbers. The “statement” of 3 April 2002 had been made on a form intended for civil law matters, on which a creditor notes his claim before sending it to the relevant debtor. Also the report of 20 July 2003 had been made on a form intended for use in civil and not criminal proceedings. Further, this report as well as the summons to a hearing on 31 August 2003 and the judgment of the latter date, contained references to the family court, which did not deal with criminal cases but solely with matters regarding divorce and the custody of children. The judgment did not provide any account of the factual circumstances of the criminal act or any witness statements, which elements were always included in a genuine judgment. Moreover, it was not possible to convict a person of adultery on the grounds that she had not appeared before the court or had not defended herself against the accusations. Finally, the assertion in the judgment that it had acquired legal force had no basis in law; judgments sentencing a person to death by stoning were always subject to appeal, and the fact that a person had been sentenced in absentia, in itself, gave a right to appeal.
The Government further stated that it appeared highly unlikely that D would have been sentenced to stoning for adultery for the additional reason that such a sentence required a confession from the accused before the relevant court. Since D, according to the purported judgment, had been convicted and sentenced in absentia, she could obviously not have made such a confession. A further possible ground for conviction and a sentence of stoning could then be that at least four righteous witnesses had testified against her in court. However, there were no indications that such statements had been made in the present case. As already noted, there were no accounts of witness statements in the judgment, which, according to the legal expert consulted by the Embassy, should always be included.
With respect to the harassment and abuse allegedly suffered by the applicants at the hands of H, the Government submitted that D had provided conflicting information to the Swedish authorities in regard to the alleged stabbing by him. Moreover, despite the alleged repeated abuse, she had not divorced him. From the information provided by D, it further appeared that H had allowed her and M to live on their own, which was hard to reconcile with the proposition that he wanted very much to control their way of living. He had also given permission for D to apply for a passport and a written consent for her to travel to Sweden in 1997. While she had returned to him from time to time, she appeared to have done so more or less voluntarily, as she apparently did not have to rely on him for financial support. Furthermore, none of the applicants had ever reported any abuse to the police, and their claim concerning H’s position in general, or his relation to the Iranian security forces, had not been substantiated.
The applicants maintained their application. They asserted that the documents relied on were genuine. In this respect, they stated that the Government had failed to consider that the documents might have been prepared by religious officials rather than legally trained personnel, as was allegedly common in Iranian courts. Moreover, two of the documents had been filled in by H, who had erroneously addressed them to the family court, from where they had been transferred to a general court competent to deal with the matters in question. This also explained why there were mistakes in those documents. The mention of different branches of the same court and the differing case numbers could be explained by the fact that the case had been transferred from the family court to the general court or by a typing error. According to an Iranian lawyer consulted by the applicants, the judgment against D had been correctly drafted, except that the court had gone beyond its competence in sentencing D to death and in stating that the judgment was enforceable despite the fact that it had not acquired legal force. The judgment was in fact subject to appeal to the Supreme Court. Moreover, the Government’s assertions were based on the erroneous assumption that the Iranian courts were reliable and always operated in accordance with law.
Furthermore, given the precarious situation of women in Iran, the fact that D had not divorced H could not affect her credibility. She had also refrained from reporting him to the Iranian authorities not only out of fear of him, but also due to the fact that he had the support of those authorities. She further claimed that she had not given conflicting information as to the wounds inflicted on her by H.
In regard to M, the applicants referred to their aforementioned concerns about Iranian society and its legal system. Upon return, M would risk being killed by H in order to restore his “honour”.
The Court observes at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien 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 in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person to that country (see, among other authorities, H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 3334).
Moreover, the Court does not exclude that analogous considerations might apply to Article 2 of the Convention and Article 1 of Protocol No. 13 to the Convention where the return of an alien puts his or her life in danger, as a result of the imposition of the death penalty or otherwise (see, e.g., Bahaddar v. the Netherlands judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, opinion of the Commission, p. 270-71, §§ 75-78, and Sinnarajah v. Switzerland (dec.), no. 45187/99, 11 May 1999, unpublished).
The Court finds that the issues under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 are indissociable. They will therefore be examined together.
The Court reiterates that the applicants’ claim that their return to Iran would violate their rights under the Convention is based on the actions of H, the husband of D and the father of M. He had allegedly harassed them and subjected them to physical violence for many years. Following their departure for Sweden, he had initiated legal proceedings against D which had eventually led to her being sentenced to death for adultery. They feared that M would face a similar charge and conviction.
In regard to the Iranian court documents relied on by the applicants, the Court notes that their authenticity is in dispute between the parties, who both refer to Iranian legal expertise consulted by them. The Government have pointed out several factual and formal errors in the documents, which the applicants have claimed are due to their having been prepared by H and by personnel not trained in law, and the fact that the case has been transferred from the family court to a court of general jurisdiction. More remarkable is the fact that the purported judgment of 31 August 2003 states that D has been sentenced in her absence to death by stoning and that the judgment is final, despite the rules on evidence and the right of appeal under Iranian law. In this respect, the Court notes that the Iranian lawyer consulted by the applicants have stated that the court convicting D had gone beyond its competence in sentencing D to death and in stating that the judgment was enforceable despite the fact that it had not acquired legal force.
In assessing the applicants’ statements, the Court has further regard to the fact that, despite H’s alleged disapproval of their way of life, they lived on their own more or less continuously since 1991/92. They moved back to him from time to time, apparently on a voluntary basis, until September 1998, after which date they did not return to him. He had given D, and presumably also M, permission to apply for a passport and travel to Sweden in 1997/98. Moreover, M was able to complete her studies in another town between 1996 and 2000, and both applicants were working before they left for Sweden a second time in March 2002. No reports were made to the authorities of harassment or assault by H. His position within Iranian society remains unsubstantiated. As regards H’s alleged stabbing of D, it appears from the translation of the submitted medical documents that D underwent an operation for knife wounds on 22 January 2001. Despite the allegations that the wounds had been inflicted by H and that he generally subjected the applicants to various forms of harassment and violence, with the support of Iranian authorities, they remained in Iran for a further 14 months before leaving for Sweden. Following their arrival in Sweden, they waited about three weeks before applying for asylum.
In view of the foregoing, the applicants’ allegations of harassment and assault at the hands of H and his controlling influence on their lives lack credibility. Taking into account that they remained in Iran for a long time and did not apply for asylum immediately upon their arrival in Sweden, it also appears that the applicants themselves did not consider their need of protection to be particularly great.
In conclusion, having regard to all the submissions made by the applicants, the Court finds that it has not been established that there are substantial grounds for believing that, if deported to Iran, they would be exposed to a real risk of being subjected to treatment contrary to Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 to the Convention.
It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. Dollé J.-P.
DEJBAKHSH AND MAHMOUD ZADEH v. SWEDEN DECISION
DEJBAKHSH AND MAHMOUD ZADEH v. SWEDEN DECISION