EHRM uitspraak: M.A. tegen Zwitserland - art 3 en 13 EVRM uitzetting - 18 November 2014

Geloofwaardigheid: tegenstrijdigheden en kopieen.

56.  In the present case, the Court observes at the outset that the applicant is to be returned to a country where by all accounts the human rights situation gives rise to grave concern. It is evident from the current information available on Iran (as set out above in paragraphs 35-38) that the Iranian authorities frequently detain and ill-treat persons who peacefully participate in oppositional or human rights activities in the country and that the situation has not eased since the post-election demonstration in 2009. The Court has already noted in its recent case-law on expulsion to Iran (see S.F. and Others v. Sweden, no. 52077/10, § 63, 15 May 2012, and R.C. v. Sweden, no. 41827/07, § 49, 9 March 2010) that it is not only the leaders of political organisations or other high-profile persons who are detained: anyone who demonstrates or in any way opposes the current Iranian regime may be at risk of being detained and ill-treated or tortured. The recent reports on the human rights situation in Iran show that the Court’s assessment in the case-law referred to above still applies.

57.  Whilst being aware of the reports of serious human rights violations in Iran as set out above, the Court does not find them to be of such a nature as to show, as they stand, that there would be as such a violation of the Convention if the applicant were to return to that country. The Court has to establish whether or not the applicant’s personal situation is such that his return to Iran would contravene Article 3 of the Convention (see S.F. and Others v. Sweden, cited above, § 63; see also R.C. v. Sweden, cited above, § 49).

58.  The Court notes that, as stated in the applicant’s submission, he was sentenced in absentia to seven years’ imprisonment, the payment of a fine and 70 lashes of the whip because of his participation in anti-regime demonstrations. The Court considers that if the applicant’s punishment, as he claimed, were to be enforced, such extensive flogging would cause deliberate and severe physical suffering of a severity that would have to be regarded as torture within the meaning of Article 3 of the Convention. As the applicant left Iran without an exit visa and without a passport, he is likely to be arrested upon his return to Iran, where his background would be checked and any conviction would be discovered immediately (see the summary and the assessment of the U.K. Home Office’s Country of Origin Information Report on Iran from August 2009 in R.C. v. Sweden, cited above, §§ 35 and 56, 9 March 2010). The sentence is therefore likely to be enforced upon his return. Moreover, reports on the prison conditions of political prisoners in Iran in general (see paragraphs 35-38 above) show that the applicant would be exposed to inhuman and degrading treatment and to the risk of being tortured if his prison sentence were to be enforced.

59.  In determining whether the applicant has adduced sufficient evidence to prove that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention, the Court agrees with the national authorities that the applicant’s story manifests some weaknesses, especially when it comes to his account of the submission of the first summons and the search of his parents’ house on 10 May 2011. The Court further agrees with the national authorities that the discrepancies cannot be explained by the applicant’s allegation that the interviewer at his second hearing was biased. The fact that a neutral witness from a non‑governmental aid organisation was present during the hearing and that this witness had no cause to document any irregular procedural events in the minutes of the hearing are strong indicators that the interview was carried out in a fair way.

60.  The Court notes, however, that the credibility of the accounts the applicant gave during the two interviews cannot be assessed in isolation but must be judged in the light of the further explanations given by the applicant. The Court disagrees with the Swiss authorities in so far as the latter considered that these explanations were generally not sufficient to dispel the doubts about the veracity of his story. It agrees with the applicant that the difference in the nature of the two hearings cannot be disregarded when assessing the credibility of his accounts. It is clear from the interviewer’s own comment in the minutes of the first hearing (“For lack of staff, the facts summarised under no. 15 of the minutes were not established in detail.”) that during the first interview the applicant was questioned in only a cursory way and was expected to give only a summarised account of the events leading to his escape from Iran. The detailed enquiries about specific points concerning events in Iran during the second interview, on the other hand, show that the applicant was expected to give an in-depth account of the events. This difference may well explain some of the major discrepancies between the applicant’s two accounts, which do not necessarily have to be interpreted as contradictory statements but may result from the fact that the applicant gave a compressed and abridged account of the events during the first hearing. This is especially true with regard to the applicant’s omission to mention the house search of 10 May 2011 during the first hearing and the fact that he plainly stated during the first hearing that he had hidden at his sister’s home and at friends’ homes before his departure from Iran and explained only during the second hearing that he had indeed hidden with his sister but had also spent time with friends during that period.

61.  The Court further agrees with the applicant that the fact that the first hearing was held almost immediately after his arrival in Switzerland whereas the second hearing took place some two years after his departure from Iran, also goes some way towards explaining the discrepancies between the two accounts given by the applicant.

62.  Furthermore, the Court does not agree with the Swiss Government that, merely because some of the documents were copies and on the ground of a generalised allegation that such documents could theoretically have been bought in Iran, the question of whether or not the applicant was able to prove that he would face treatment contrary to Article 3 of the Convention could be decided solely on the basis of the accounts he gave during the two interviews, without having regard to the documents submitted in support. This approach disregards the particular situation of asylum seekers and their special difficulties in providing full proof of the persecution in their home countries (see paragraph 55 above). The veracity of the applicant’s story must therefore also be assessed in the context of the documents submitted.

63.  It must further be noted that the applicant’s sentencing to a long prison term and 70 lashes of the whip is not implausible in itself. As shown above (see paragraph 37) it is not only the leaders of political organisations or other high-profile persons who risk detention and ill‑treatment or torture but rather anyone who demonstrates or in any way opposes the current Iranian regime. Furthermore, flogging is a common punishment in Iran, not only for ordinary crimes like theft or adultery, but also for political convictions (see paragraphs 35 and 38 above). It is therefore possible that the alleged sentence was meted out to the applicant for participating in anti‑regime demonstrations and for handing out leaflets.

64.  In addressing the question whether the summons of 10 May 2011, the copy of the summons of 5 February 2013 and the copy of the judgment of 7 May 2013 were authentic documents or copies of authentic documents, the Court considers that it cannot decide this question itself. However, it is of the view that by submitting the documents in question the applicant did everything that could be expected in his situation in order to prove his conviction for participating in anti-regime demonstrations in Iran, while on the other hand the national authorities – that is to say the Swiss Government – did not substantively challenge the authenticity of the documents.

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