opencaselaw.ch

CAT/C/18/D/34/1995

Aemei v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 1997-05-09 · en CH

Decision on merits; Substantive issues: non-refoulement refugee status torture; Articles: 3 (1) 3 (2); Procedural issues: interim measures; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

UNITED

NATIONS

CAT

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.

RESTRICTED*

CAT/C/18/D/34/1995

29 May 1997

ENGLISH

Original: FRENCH

COMMITTEE AGAINST TORTURE

Eighteenth session

(28 April-9 May 1997)

VIEWS

Communication No. 34/1995

Submitted by:

Seid Mortesa Aemei

(represented by counsel)

Alleged victims:

The author and his family

State party:

Switzerland

Date of communication:

26 October 1995

Date of adoption of Views:

9 May 1997 [See annex]

* Made public by decision of the Committee against Torture.

GE.97-16822 (E)

CAT/C/18/D/34/1995

page 2

Annex

VIEWS OF THE COMMITTEE AGAINST TORTURE UNDER ARTICLE 22,

PARAGRAPH 7, OF THE CONVENTION AGAINST TORTURE AND OTHER

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

- EIGHTEENTH SESSION -

concerning

Communication No. 34/1995

Submitted by:

Seid Mortesa Aemei

(represented by counsel)

Alleged victims:

The author and his family

State party:

Switzerland

Date of communication:

26 October 1995

The Committee against Torture, established in conformity with article 17

of the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 9 May 1997,

Having completed consideration of communication No. 34/1995 submitted to

the Committee against Torture under article 22 of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken account of all the information communicated to it by the

author of the communication, his counsel and the State party,

Adopts the following:

Views under article 22, paragraph 7, of the Convention

1.

The author of the communication is Seid Mortesa Aemei, an Iranian

citizen, born on 1 February 1957, currently residing in Switzerland, where

he seeks asylum. He claims that his return to Iran after dismissal of his

refugee claim would constitute a violation of article 3 of the Convention by

Switzerland. He submits the communication also on behalf of his wife. He is

represented by counsel.

The facts as submitted

2.1

The author became a People's Mojahedin activist in Iran in 1979.

On 20 June 1981, after he had participated in a demonstration by the

Mojahedin, he was arrested and kept in detention for 25 days. Thereafter, he

had to abandon his university studies. In 1982, he threw a Molotov cocktail

into the house of a senior officer of the Revolutionary Committee.

CAT/C/18/D/34/1995

page 3

2.2

On 4 April 1983, the author was again arrested and his house was

searched. He claims that he was ill-treated during the interrogations and, in

particular, that he was caned after having his feet and head submerged in ice,

that the next day the police officers extinguished cigarettes on his body

while he was dressed only in underclothes, that he still bears the scars from

those burns, and that his wife was only allowed to visit him after six months.

Subsequently, he was convicted for his political activities and for stealing

the licence plate of a car and sentenced to two years' imprisonment.

2.3

Seven months after his release, the author's brother-in-law fled the

country, and the author was detained for three hours and questioned about the

whereabouts of his brother-in-law. The author then moved to Teheran, but

returned to his home town after three years. In February or March 1989, he

was recognized by a client of his father's firm as the person who had thrown

the Molotov cocktail seven years earlier. In panic, he fled to Teheran. He

claims that his parents were visited regularly by the police and questioned

about his whereabouts. After a year, he decided to leave the country, also

because his son, who was born on 23 January 1984, had reached school age and

he was afraid that his son's enrolment in school would lead to the police

discovering his whereabouts. With a false passport he fled the country,

together with his wife and their two children, and applied for asylum in

Switzerland on 2 May 1990.

2.4

On 27 August 1992, his application was refused by the Federal Office for

Refugees, which considered his story not credible and full of inconsistencies.

It also considered that the author's wife was not aware of any political

activities on the part of her husband. The Appeal Commission rejected his

appeal on 26 January 1993, considering that the author's claim and story were

illogical and revealed no practical experience in illegal political activities

and were moreover full of contradictions.

2.5

On 26 April 1993, the author, represented by the Beratungsstelle für

Asylsuchende der Region Basel, filed a request for reconsideration, based

on his activities in Switzerland for the Armenian and Persian Aid

Organization (APHO), which, according to the author, is considered an illegal

organization in Iran. The author refers in this connection to three attempts

to murder the leader of the APHO in Zurich and claims that these attempts

prove that APHO members are being persecuted by Iran. The author stated that

he had distributed leaflets and helped run various APHO stands, notably at a

demonstration in Bern. In support of his statements he presented an APHO

membership card and stand permits issued in his name, and photos showing his

activities. He also said that incidents involving representatives of the

Government of Iran had occurred in May 1991 (when a friend of the brother of

the President of the Iranian Council of Ministers threatened APHO members with

a pistol) and in June 1992 (when the Iranian consul visited the APHO stand and

attempted to identify the participants). The author stated that he had

reported the incident to the police the same day, in his capacity as the

person in charge of the stand. In his request for review he alleged that his

activity within the APHO would render him liable to treatment contrary to

article 3 of the Convention if he returned to Iran.

2.6

By a decision of 5 May 1993, the Federal Office for Refugees refused to

consider his request for review. The Appeals Commission also declared his

CAT/C/18/D/34/1995

page 4

application to be ill-founded by a decision of 10 August 1994. The author

states that he has since been contacted by the police for the purpose of the

preparation of his departure from Switzerland.

Substance of the complaint

3.

The author is afraid that he will be questioned about his political

activities when he returns to Iran. He adds that torture during

interrogations is common in Iran. Furthermore, he is afraid that he will be

charged with the Molotov cocktail attack of 1982 and that he will consequently

be sentenced to a long term of imprisonment or even death. He adds that the

mere act of requesting asylum in another country is considered an offence in

Iran.

Procedural questions

4.1

On 22 November 1995, the Committee transmitted the communication to the

State party for its observations.

4.2

In its observations of 22 January 1996, the State party contests the

admissibility of the communication, stating that since the author had not, in

the course of the ordinary asylum procedure before the national bodies,

mentioned his fear that his political activities in Switzerland would render

him liable to torture if he returned to Iran, he had not exhausted domestic

remedies. The State party explains that this point should have been made

during the procedure to establish the right of asylum. Since the point was

not mentioned until the request for review, the authorities were not able to

consider it, as the author's activities within the APHO did not constitute a

new development in the light of the criteria established by the jurisprudence

of the Federal Court.

4.3

In its observations, the State party nevertheless submits “that is a

subjective ground under article 8 (a) of the Asylum Act, which in this

connection provides that 'asylum shall not be granted to a foreigner when ...

only his conduct following his departure would justify his being considered a

refugee within the meaning of article 3'. According to case law and doctrine,

the concept of 'subjective grounds occurring after flight from the country'

covers situations in which the threat of persecution could not have been the

cause of the departure of the asylum-seeker but results from his subsequent

conduct. Although such grounds are not relevant to the granting of asylum

under the exclusion clause of the above-mentioned article 8 (a), an applicant

who invokes subjective grounds may nevertheless remain in Switzerland, by

virtue of the non-return principle, if the conditions of article 45 of the

Asylum Act are met. The allegation of 'subjective grounds', like the grounds

which prompted the applicant to leave his country, must nevertheless satisfy

the requirements of asylum procedure, among which are those relating to the

obligation to cooperate. In accordance with article 12 (b) of the Asylum Act,

the applicant is required to cooperate in the verification of the facts; to

this end, he has in particular to explain, at his hearing, his grounds for

asylum and the reasons which prompted him to request asylum.”

4.4

The State party also contests Mrs. Aemei's status as author of the

communication.

CAT/C/18/D/34/1995

page 5

4.5

In a letter of 1 March 1996, the author's counsel refutes the State

party's argument contesting Mrs. Aemei's status as author of the communication

on the grounds that she has not claimed any ground for asylum peculiar to

herself. Counsel further states that if Mrs. Aemei were to be sent back to

Iran, she would be liable to the same risks as her husband, or even greater

risks, and that the State party itself has acknowledged that the applicant's

subsequent conduct in Switzerland does not constitute a ground for asylum

under Swiss legislation. He also maintains that the applicant had no reason

to mention his political activities in Switzerland during the asylum

procedures and had always been questioned about his past and about facts

which could have supported his application for asylum.

4.6

Counsel points out that in any case the non-return obligation is

an absolute obligation. Although the argument of the author's political

activities in Switzerland was submitted late and hence, for procedural

reasons, could not be taken into account in relation to the asylum decision,

counsel is of the opinion that the rejection of the asylum application does

not mean that the person can now be sent back to his country. He points out

that Swiss legislation offers alternatives such as the possibility of a

residence permit for humanitarian reasons (Asylum Act, art. 17, para. 2) or

temporary admission (Asylum Act, art. 18, para. 1). Counsel also draws

attention to the fact that physical integrity must not be endangered for

procedural reasons. The risk that an asylum-seeker will misuse the procedure

should not be overestimated, especially as few asylum-seekers can point to

events as serious as those referred to by the authors in the case at hand.

4.7

After considering the observations of the parties, the Committee

decided, at its sixteenth session, to suspend consideration of the

communication pending the result of the author's requests for reconsideration

in the light of his political activities in Switzerland. The Committee also

requests information from the State party on domestic remedies and asked the

applicant to provide additional information concerning his asylum applications

in Switzerland on the basis of his political activities in Switzerland. The

Committee also asked the State party not to expel the author and his family

while their communication is under consideration.

Further observations by counsel

5.1

In a letter of 5 August 1996, counsel explains that the author did not

mention his activities within the APHO in the course of the ordinary procedure

for obtaining refugee status, which led to the decision of the Swiss Appeal

Commission of 26 January 1993, because he had not been aware that those

activities would be a determining factor. The situation changed after the

decision, when he learned that he would have to return to Iran. At that

point, he realized that because of his political activities in Iran before

1990 and, in particular, because of his political activities in Switzerland

since 1990, he and his wife ran a very great risk of being subjected to acts

contrary to article 3 of the Convention if they returned to Iran. Counsel

repeats that since 1990 the author has been active in the APHO, which is

considered an illegal and dissident organization in Iran and whose activities

in Switzerland are monitored by the Iranian secret police. The author

distributed leaflets attacking the regime in Iran, and in May 1991 he was seen

and threatened by the brother of the President of the Iranian Council of

CAT/C/18/D/34/1995

page 6

Ministers. In June 1992, the Iranian consul visited the APHO stand in Bern

and attempted to identify the people participating in APHO activities.

Counsel concludes that the author's identity is very probably known to the

Iranian authorities.

5.2

Counsel adds that on 13 May 1996 the author filed an application for

temporary authorization because of his son's medical problems.

State party's observations on the admissibility and validity of the

communication

6.1

In its observations of 7 August 1996, the State party informs the

Committee that it no longer contests the admissibility of the communication.

6.2

The State party summarizes the “facts alleged by the author” and the

domestic procedures under way. As regards the points raised by the Swiss

authorities, it observes that, “under article 12 (a) of the Asylum Act, an

asylum-seeker must prove - or at least make out a good case - that he is a

refugee within the meaning of article 3 of the Asylum Act, i.e. that he would

be likely to suffer serious harm or that he has good reason to fear that he

would suffer such harm, in particular because of his political opinions”, and

concludes that “from that standpoint, articles 3 and 12 (a) of the Asylum Act,

as interpreted by the Appeal Commission, establish criteria similar to those

of article 3 of the Convention, namely, the existence of serious, concrete and

personal danger of persecution (art. 3, para. 1; cf. B. Mutombo v.

Switzerland, ...), in the determination of which all relevant considerations

must be taken into account (art. 3, para. 2), including, in particular, the

likelihood that the author's statements are true (Asylum Act, art. 12 (a))

and, where appropriate, the existence of a consistent pattern of gross,

flagrant or mass violations of human rights (art. 3, para. 2)”.

6.3

The State party also declares that “in the present case, the Appeal

Commission confirmed the decision to reject asylum on the basis of the

author's statements. It considered that the grounds invoked did not make it

possible to conclude that refugee status was highly probable in the author's

case. The Appeal Commission took the following points into account in making

its decision:

The author's statements about his political activity were not

sufficiently substantiated, since his knowledge of the political

programme of the organization in which he claims to have been active

was very sketchy in essential respects;

The circumstances in which the author claims to have resumed working

with the organization are at variance with what is known about the

practice of movements hostile to an established political regime. The

author's explanations regarding his alleged conviction following his

political activity were also considered to be at variance with the

facts;

Finally, the author's wife was unable to corroborate his statements at

the hearing before the Federal Office for Refugees.”

CAT/C/18/D/34/1995

page 7

The State party concludes that Swiss legislation essentially uses the

same conditions for prohibiting return as those laid down in article 3 of the

Convention.

6.4

The State party refers to the text of article 3 of the Convention and

the Committee's practice of considering whether there are specific grounds for

believing that the individual would be in personal danger of being subjected

to acts of torture in the country to which he would be returned. The

existence of a consistent pattern of gross, flagrant or mass violations of

human rights does not in itself constitute a sufficient ground for concluding

that a person would be in danger of being subjected to torture on his return

to that country.

6.5

The State party observes that “in the present case, the author's

statements concerning his political activity with the People's Mojahedin did

not appear to be sufficiently substantiated in the opinion of the competent

Swiss authorities”. It maintains that, “in view of the inconsistency of the

author's statements, they were not sufficiently plausible to cause the Swiss

authorities to consider that refugee status was highly probable in the case

of the author of the communication. The allegation of a risk of inhuman

treatment if the author were to return to Iran, which is based principally,

if not exclusively, on the consequences of his political activity cannot

seriously be taken into account when it has never been established that he

engaged in the political activities in question, or even that he was a member

of a party that opposed the existing political regime”. The State party

further submits “that the author of the present communication has produced no

document with evidentiary value, either in the course of the domestic

proceedings or before the Committee against Torture, relating to his political

activities for the Mojahedin, or any medical certificate attesting to his

having been subjected to treatment prohibited by the Convention”. In the

opinion of the State party, “at this stage already, the author's communication

appears to be manifestly ill-founded as regards the existence of a personal,

serious and concrete danger of treatment contrary to article 3 of the

Convention, to which the author claims he would be exposed if he were sent

back to his country”.

6.6

The Swiss authorities further consider that some of the author's

statements do not correspond to the facts and, because they show a lack of

familiarity with established practice with regard to illegal political

activities, describe them as “totally unrealistic”. In particular, the

author's statement that he was sentenced to only two years' imprisonment

because of the judge's respect for his origins contradicts information

gathered by the Swiss authorities in the course of asylum proceedings

concerning Mojahedin.

6.7

Finally, the State party notes that the author's wife did not

corroborate his statements about his political activities. The State party

therefore concludes that the author's fear appears to be manifestly

ill-founded.

6.8

With regard to the author's activities in Switzerland, the State party

is not able to confirm the author's allegation that his identity is very

probably known to the Iranian authorities because of the events that occurred

CAT/C/18/D/34/1995

page 8

in May 1991 and June 1992. In particular, the Bern police are not aware of

the participation of the brother of President Rafsanjani in the May 1991

incident. As regards the Iranian consul's visit to the APHO stand, the Swiss

Government has stated that, “a member of the city of Bern police force recalls

that there was a skirmish between Iranians in June 1992, but does not know

whether it involved members of the Iranian consulate and APHO activists,

because the incident was already over by the time the police arrived, when

only APHO members were present. In the light of this information, the Swiss

Government considers it at least doubtful whether the events in question

occurred so they cannot automatically be considered to constitute a decisive

ground in respect of article 3 of the Convention”.

6.9

As to the author's allegation that the filing of an application for

asylum is in itself a relevant ground within the meaning of article 3,

paragraph 1, of the Convention, the State party observes that the author

adduces no evidence in support of this argument. The State party further

notes, “such an argument cannot be sufficient in respect of article 3,

paragraph 1, of the Convention since the prohibition laid down in this

provision is dependent on the proven existence of substantial grounds for

persecution”. The State party maintains that it has no information to

substantiate the specific danger of persecution as a result of filing an

application for asylum in Switzerland.

6.10

The State party considers that the author's statements do not enable

the conclusion to be drawn that there are substantial and proven grounds for

believing that he would be in danger of being tortured if he returned to Iran.

Finally, it observes that “the European Commission of Human Rights has deemed

that the general situation in Iran was not characterized by mass violations of

human rights [application No. 21649/93, DR, 75/282]” and that, “the author

himself does not claim that there is a consistent pattern of human rights

violations in Iran”.

Counsel's comments on the State party's observations

7.1

In a letter of 30 October 1996, counsel reiterates the points made in

his initial communication. As regards the State party's argument that the

author's statements about his political activity within the People's Mojahedin

did not appear to be sufficiently substantiated, counsel submits that it is

normal for a sympathizer not to be as well informed about an organization as

one of its members. He explains that the author was motivated by hostility

towards the regime rather than the Mojahedin's political ideas. Counsel notes

that the author is not in a position to produce documents in support of his

allegations concerning the events that took place in Iran, and states that

after his release the author was no longer active within the Mojahedin.

7.2

Counsel acknowledges that the security measures taken by the author's

group in Iran were not sufficient, but rejects the conclusion that the

author's statements are unrealistic. He also maintains that merely

distributing leaflets can lead to life imprisonment and explains that the fact

that the author was only sentenced to two years' imprisonment in April 1983

was due, inter alia, to the author's origin as a descendant of Muhammad.

Concerning the alleged contradictions, counsel affirms that the author's

statements are not contradictory on essential points, and that the

CAT/C/18/D/34/1995

page 9

discrepancies with the information provided by his wife are not relevant.

Mrs. Aemei has lived in great fear for years, which would explain the fact

that she wanted to know as little as possible about her husband's political

activities. In any case, she first heard about them in April 1983.

7.3

Counsel is of the opinion that the author's statements about his

political activities are true, which is also proved by the fact that the Swiss

Government admits in its observations that there was an APHO stand in

June 1992 and that a skirmish between Iranians did indeed take place. He

further submits that the Swiss authorities' refusal to consider the author's

request for reconsideration, based on his activities in the APHO, is a serious

procedural error and contrary to the author's right to have his fear of being

tortured considered by the competent authorities.

7.4

Counsel reiterates the fact, already mentioned by the author in his

appeal of 24 September 1992, that the mere act of requesting asylum can

constitute a relevant ground within the meaning of article 3, paragraph 1, of

the Convention against Torture, and refers in this connection to documentation

of the Schweizerisches Flüchtlingswerk.

Decision concerning admissibility and examination of the merits:

8.

The Committee notes with appreciation the information given by the

State party that the author and his family will not be expelled while the

communication is under consideration by the Committee (rules of procedure,

art. 108, para. 9).

9.1

Before considering any claim contained in a communication, the Committee

against Torture must decide whether or not it is admissible under article 22

of the Convention. The Committee has ascertained, as it is required to do

under article 22, paragraph 5 (a) of the Convention, that the same matter has

not been, and is not being examined under another international investigation

or settlement procedure. The Committee notes that the State party has not

raised any objection to the admissibility of the communication (see State

party's observations dated 7 August 1996). The Committee therefore finds that

no obstacle to the admissibility of the communication exists and proceeds with

the examination of the merits of the communication.

9.2

The Committee reiterates that it is by no means its responsibility to

determine whether the author's rights as recognized by the Convention have

been violated by Iran, the country to which he risks being expelled,

regardless of whether or not this State is a party to the Convention. The

question before the Committee is whether expulsion, return or extradition to

the latter country would violate Switzerland's obligation, under article 3 of

the Convention, not to expel or return an individual to a State where there

are substantial grounds for believing that he would be in danger of being

subjected to torture.

9.3

In accordance with article 3, paragraph 1, of the Convention, the

Committee has to determine whether there are substantial grounds for believing

that Mr. Aemei and the members of his family would be in danger of being

subjected to torture if they returned to Iran. In order to do this, the

Committee must, in accordance with article 3, paragraph 2, take into account

CAT/C/18/D/34/1995

page 10

all relevant considerations, including the existence of a consistent pattern

of gross, flagrant or mass violations of human rights. In other words, the

existence of a consistent pattern of violations of human rights within the

meaning of article 3, paragraph 2, lends force to the Committee's belief that

substantial grounds exist within the meaning of paragraph 1.

9.4

However, the Committee has to determine whether the person concerned

would be personally at risk of being subjected to torture in the country to

which he would be expelled. Consequently, the existence of a consistent

pattern of gross, flagrant or mass violations of human rights in a particular

country does not in itself constitute a sufficient ground for concluding that

a particular person would be in danger of being subjected to torture after

returning to his country; additional grounds must exist in order to conclude

that the person concerned is personally at risk. Similarly, the absence of a

consistent pattern of flagrant violations of human rights does not mean that a

person cannot be considered to be at risk of being subjected to torture in his

specific circumstances.

9.5

In the present case, therefore, the Committee has to determine whether

the expulsion of Mr. Aemei (and his family) to Iran would have the foreseeable

consequence of exposing him to a real and personal risk of being arrested and

tortured. It observes that the “substantial grounds” for believing that

return or expulsion would expose the applicant to the risk of being subjected

to torture may be based not only on acts committed in the country of origin,

in other words before his flight from the country, but also on activities

undertaken by him in the receiving country: in fact, the wording of article 3

does not distinguish between the commission of acts, which might later expose

the applicant to the risk of torture, in the country of origin or in the

receiving country. In other words, even if the activities of which the author

is accused in Iran were insufficient for article 3 to apply, his subsequent

activities in the receiving country could prove sufficient for application of

that article.

9.6

The Committee certainly does not take lightly concern on the part of the

State party that article 3 of the Convention might be improperly invoked by

asylum seekers. However, the Committee is of the opinion that, even though

there may be some remaining doubt as to the veracity of the facts adduced

by the author of a communication, it must ensure that his security is not

endangered. In order to do this, it is not necessary that all the facts

1

invoked by the author should be proved; it is sufficient that the Committee

should consider them to be sufficiently substantiated and reliable.

9.7

In the case of the author of the present communication, the Committee

considers that his membership of the People's Mojahedin organization, his

participation in the activities of that organization and his record of

detention in 1981 and 1983 must be taken into consideration in order to

determine whether he would be in danger of being subjected to torture if he

returned to his country. The State party has pointed to inconsistencies and

contradictions in the author's statements, which in its opinion cast doubt on

the veracity of his allegations. The Committee considers that although there

may indeed be some doubt about the nature of the author's political activities

in his country of origin, there can be no doubt about the nature of the

activities he engaged in in Switzerland for the APHO, which is considered an

CAT/C/18/D/34/1995

page 11

illegal organization in Iran. The State party confirms these activities

by the author and does not deny that skirmishes occurred between APHO

representatives and other Iranian nationals in Bern in June 1992. The State

party does not say whether it investigated these skirmishes, but the material

submitted to the Committee gives the impression that no such investigation

took place. In the circumstances, the Committee must take seriously the

author's statement that individuals close to the Iranian authorities

threatened the APHO members and the author himself on two occasions, in

May 1991 and June 1992. The State party simply noted that Mr. Aemei's

activities within the APHO did not constitute a new development vis-à-vis

the criteria established by the case law of the Federal Tribunal and that

consequently the competent authorities could not take up the matter of the

author's application for reconsideration.

9.8

The Committee is not convinced by the State party's explanations insofar

as they refer to Mr. Aemei's activities in Switzerland. It would recall that

the protection accorded by article 3 of the Convention is absolute. Whenever

there are substantial grounds for believing that a particular person would be

in danger of being subjected to torture if he was expelled to another State,

the State party is required not to return that person to that State. The

nature of the activities in which the person engaged is not a relevant

consideration in the taking of a decision in accordance with article 3 of

the Convention. In the present case, the refusal of the competent Swiss

2

authorities to take up the author's request for review, based on reasoning of

a procedural nature, does not appear justified in the light of article 3 of

the Convention.

9.9

Lastly, the Committee is aware of the serious human rights situation in

Iran, as reported inter alia to the United Nations Commission on Human Rights

by the Commission's Special Representative on the situation of human rights in

the Islamic Republic of Iran. The Committee notes, in particular, the concern

expressed by the Commission, especially about the large number of cases of

cruel, inhuman or degrading treatment or punishment.

9.10

In the light of the content of the preceding paragraphs, the Committee

considers that substantial grounds exist for believing that the author and his

family would be in danger of being subjected to torture if they were sent back

to Iran.

10.

Taking account of the above, the Committee is of the view that, in the

present circumstances, the State party has an obligation to refrain from

forcibly returning the author and his family to Iran, or to any other country

where they would run a real risk of being expelled or returned to Iran.

11.

The Committee's finding of a violation of article 3 of the Convention

in no way affects the decision(s) of the competent national authorities

concerning the granting or refusal of asylum. The finding of a violation of

article 3 has a declaratory character. Consequently, the State party is not

required to modify its decision(s) concerning the granting of asylum; on the

other hand, it does have a responsibility to find solutions that will enable

it to take all necessary measures to comply with the provisions of article 3

of the Convention. These solutions may be of a legal nature (e.g. decision to

CAT/C/18/D/34/1995

page 12

1. See views on Communication No. 13/1993 (Mutombo v. Switzerland), paragraph

9.2, adopted on 27 April 1994.

2. See views in communication No. 39/1996 (Tapia Paez v. Sweden), paragraph

14.5, adopted on 28 April 1997.

-----

admit the applicant temporarily), but also of a political nature (e.g. action

to find a third State willing to admit the applicant to its territory and

undertaking not to return or expel him in its turn).

[Text adopted in French (original version) and translated into English,

Spanish and Russian]

Notes