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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