CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28038/95                       by M.A.R.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 16 January 1996, the following members being present:              Mr.    S. TRECHSEL, President            MM.    E. BUSUTTIL                  J.-C. SOYER                  H. DANELIUS                  J.-C. GEUS                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION              Mr.    M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 15 June 1995 by M.A.R. against the United Kingdom and registered on 27 July 1995 under file No. 28038/95;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       15 January 1996 and the observations in reply submitted by the       applicant on 25 March 1996 and on 7 and 8 January 1997;   -      the parties' oral submissions at the hearing on 16 January 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Iranian citizen born in 1954 and is currently detained in Oxfordshire pending expulsion to Iran. He is represented before the Commission by Jawaid Luqmani, a solicitor practising in London. The facts as submitted by the parties may be summarised as follows.         On 27 September 1976 the applicant arrived in the United Kingdom as a visitor, he remained as a student and returned to Iran in September 1978. The present Iranian government came into power in 1979. In December 1981 the applicant left Iran illegally (it being unlawful at the time to leave Iran without permission). He reached Pakistan where he procured a forged passport and plane tickets to London.         The applicant arrived in London on 5 January 1982 and claimed political asylum. The Government claim that the applicant was interviewed three times in relation to his application, that he claimed asylum during the first interview on the grounds of a lack of social freedom in Iran but during the second interview on the grounds that he was a member of the Mujahadeen and that on the basis of those two interviews the applicant was refused asylum.         The applicant then furnished an affidavit dated 12 March 1982 to the Home Office in which he claimed, inter alia, that he had been an active member of the Mujahadeen; that he had been forced to go into hiding as he had been sought by the revolutionary guards; that a long- standing friend of his had been arrested by the revolutionary guards for possession of Mujahadeen newspapers; that he fled Iran in December 1981 with the help of a friend; that his father had informed the applicant that that friend had been imprisoned; that his father had been questioned about the applicant and that it was clear to the applicant that the revolutionary guards had his name and would be looking for him. The UNHCR also intervened and requested the Home Office to grant the applicant asylum. The Government submit that they gave the applicant the benefit of the doubt and accepted that his initial failure to mention his political involvement could be explained on the basis of a fear of being immediately returned to Iran.         On 15 March 1982 the applicant was accorded refugee status by the United Kingdom under the 1951 Geneva Convention. The applicant was given leave to stay initially until 7 May 1983.         Subsequently, the applicant was convicted of a number of drugs related offences. On 20 December 1983 and 21 February 1985 the applicant was convicted of possession of heroin for which offences he was fined and sentenced to three months imprisonment, respectively. On 27 February 1985 he was again convicted of possession of drugs. The court imposed an eighteen month prison sentence and recommended the applicant for deportation.         The Home Secretary consulted the UNHCR which indicated that the applicant's refugee status should not be affected by his offences. However, the UNHCR added that should he re-offend they would not support any application for a renewal of leave to remain. In a letter dated 10 July 1985 the Home Office confirmed to the applicant's then solicitors that no deportation action would be taken against the applicant and that the applicant had been given leave to stay for a further 12 months. That letter also indicated that the Home Office understood that the UNHCR had been in touch with the applicant's solicitors and that they hoped that the contents of the UNHCR's letter to the applicant's solicitors (which appears to have contained the warning that the applicant may lose protection against deportation should he re-offend) would be brought to the applicant's attention. The applicant claims he was never informed of this decision of the Home Office nor of the warning given by the UNHCR.         An application for an extension of leave to remain as a refugee was made on 26 January 1987. However, prior to a decision on this application, the applicant was convicted on 9 June 1988 of being involved in supplying heroin. He was sentenced to 10 years imprisonment, subjected to a forfeiture order and recommended for deportation on completion of sentence.         On 20 February 1989 the UNHCR confirmed that the applicant's circumstances were sufficiently grave to warrant the application of Article 33(2) of the 1951 Geneva Convention on the Status of Refugees (in which case the applicant would not lose his refugee status but rather the protection against deportation because of his being convicted of a serious crime and consequently constituting a danger to the community of the host country).         By letter dated 17 April 1989 the Home Secretary refused the application for leave to remain and indicated that the applicant, being a danger to the community, had brought himself within the terms of Article 33(2) of the 1951 Geneva Convention and should not therefore benefit from any further protection by the United Kingdom. The Home Secretary put off a decision as to the implementation of the deportation recommendation until nearer the date of the applicant's release from prison.         On 31 March 1993 the applicant was granted parole but he was detained as a result of the outstanding matter of his expulsion. Subsequently, the Home Secretary decided that the question of deportation should be decided in accordance with section 3(5)(b) of the Immigration Act 1971 rather than by implementing the court's recommendation for deportation.         On 10 April 1993 the applicant wrote to the Home Office explaining that he had left Iran because, inter alia, of his political activity and that if he was sent back to Iran he would be going to his death. On 11 June 1993 the applicant was interviewed by an Immigration Officer. On 25 August 1993 the Home Secretary issued a deportation order pursuant to section 3(5)(b) of the Immigration Act 1971.         The applicant appealed to a Special Adjudicator. The Home Secretary, in a statement before the Special Adjudicator, indicated that the Home Office was "informed that there was no evidence that Iranians who had served sentences for criminal offences abroad would be liable to further prosecution or face retribution on return to Iran". On 10 June 1994 the applicant's father wrote to him indicating that the person who had helped the applicant to leave Iran was in detention as were others who had previously left Iran with that person's assistance.         By letter dated 22 November 1993 Amnesty International informed the applicant's legal representatives of the current position in Iran. The letter referred to the continuance of systematic human rights abuses which had commenced since 1979, to the arbitrary nature of justice in Iran, to long-term imprisonment of members or supporters of opposition groups and to the widespread use of torture and of the death penalty. That letter went on to note that mere suspicion of political opposition has been, in certain cases, shown to be sufficient to warrant such treatment and that many of those charged and tried are denied access to legal representation and to a trial in public - the trials often being held in prison, summarily and in secret. The prosecution, arrest and detention of long-term absentees from Iran on their return was described as clearly a risk. That letter also referenced the vigorous pursuit of the nationwide anti-drugs campaign introduced in 1989 and the execution of several thousands of persons for drugs related offences. The letter concluded that "given the arbitrary nature of justice in Iran and the ongoing anti-drug campaign, it is our view that the possibility of those returning to Iran following conviction abroad for drug-related offences being subjected to double jeopardy cannot be ruled out".         On the 13 June 1994 the Special Adjudicator, while recognising that it was a "difficult and troubling case", rejected the applicant's appeal.         The following appeal before the Immigration Appeal Tribunal was concerned with two questions: did the applicant fall within the provisions of Article 33(2) of the 1951 Geneva Convention and, if so, was the decision to make the deportation order justified? The Immigration Appeal Tribunal answered both questions in the affirmative and rejected the applicant's appeal on 25 August 1994. The Tribunal made reference to documents which had been placed before the Special Adjudicator referring to human rights abuses of many and serious kinds in Iran (including executions of drugs offenders and the arrest and interrogation of persons returning from abroad) and to the heightened risk in this respect for a person returning after years abroad as a refugee. The tribunal acknowledged that the risk to the applicant on his return to Iran would be a relevant factor in considering his expulsion but concluded that the risk to the applicant if he returned to Iran was outweighed by the risk to the community if he remained in the United Kingdom.         The Court of Appeal rejected the applicant's appeal on 2 May 1995. That court agreed that, even in a situation where the United Kingdom is released from its obligation to guard the refugee as a result of the provisions of Article 33 (2) of the 1951 Geneva Convention because of the threat posed by the refugee to national security, there is still a balancing exercise to be carried out (between the risk to the applicant if expelled and the security risk in the United Kingdom if he is not). However, the Court of Appeal concluded that the Tribunal had adequately carried out that balancing exercise.         On 12 June 1995 the applicant's parents wrote to the Home Office wondering why the applicant was still in detention. The letter pointed out that the applicant had served his sentence and wanted to go backto Iran but that the Home Office was unnecessarily detaining him. By facsimile dated 25 July 1995 the applicant was given his removal directions to be effected on 27 July 1995.         By facsimile dated 26 July 1995 Amnesty International confirmed that the position, outlined in its letter dated November 1993, still pertained.         On 17 March 1996 the applicant's counsel confirmed in a written opinion that there was not the slightest prospect in this case that the Court of Appeal or the House of Lords would grant leave to appeal from the Court of Appeal decision of 2 May 1995 (which should be on a point of law only) due essentially to the factual nature of the Court of Appeal's finding against the applicant.         On 7 January 1997 Amnesty International gave an update of the position in Iran to the applicant's representative as regards Iranian nationals returning from abroad after prolonged periods of absence and, in particular, following conviction abroad for drug-related offences. The letter confirmed that it was Amnesty's view that there was no reason to believe that the position had changed since 1993. The letter went on to note that as of January 1997 the long-standing pattern of human rights abuses in Iran continues with widespread political imprisonment - either without charge or after an unfair trial - of both known and suspected members and supporters of various opposition groups and with the widespread use of torture and the death penalty. The letter also referred to new legislation which came into effect in May 1995 and which has, in Amnesty's view, further compromised the independence of the judiciary.   COMPLAINTS         The applicant complains that his expulsion to Iran would amount to a violation of Articles 2, 3, 5 and 6 of the Convention because he runs a real risk of treatment contrary to those Articles if he is so expelled in view of his political activities against the regime while in Iran, his refugee status in the United Kingdom and in light of his drugs convictions.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 June 1995. On 26 July 1995, pursuant to an application for a ruling by the Commission under Rule 36 of the Commission's Rules of Procedure, the Government of the United Kingdom undertook not to expel the applicant pending the Commission's fuller consideration of the case.         The application was registered on 27 July 1995.         On 14 September 1995 the Commission decided to communicate the application to the respondent Government and to request the Government to submit observations on the admissibility and merits of the applicant's complaints under Articles 2, 3, 5 and 6 of the Convention as regards his proposed expulsion.         The Government's observations were received on 15 January 1996 after two extensions of the time limit fixed for that purpose. The observations of the applicant were received on 25 March 1996 after one extension of the relevant time limit.         On 23 May 1995 the Commission decided to invite the parties to an oral hearing. Further observations were submitted on behalf of the applicant on 7 and 8 January 1997. At the hearing, which took place on 16 January 1997, the Government were represented by Ms. Susan McCrory, Agent, Foreign and Commonwealth Office, Mr. Iain Burnett, Counsel, and Messrs Clive Osborne and Steven Crunkhorn as advisers. The applicant was represented by Mr. Rick Scannell, Counsel, Mr. Jawaid Luqmani, Solicitor, and Ms. Nuala Mole, adviser.   THE LAW         The applicant complains that his expulsion to Iran would constitute a violation of Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of the Convention.   1.     Article 26 (Art. 26) of the Convention         The Government argue that the applicant has not exhausted domestic remedies in that he did not make an application for leave to appeal from the decision of the Court of Appeal of 2 May 1995.         The applicant submits that an application for appeal had no chance of success. He refers to his counsel's opinion dated 17 March 1996 which states that it was not "remotely likely" that any application for leave to appeal would be accepted by the Court of Appeal or the House of Lords. This was because, inter alia, the legal point pursued by the applicant before the Court of Appeal (to the effect that, even when the applicant has lost the protection of the 1951 Geneva Convention, the question of his expulsion should still involve some consideration of the risks faced by the applicant on expulsion and the balancing of such issues against the relevant public security interests involved) was accepted by that court. The finding of the court which went against the applicant was of a factual nature, the Court of Appeal finding that the Immigration Appeal Tribunal had correctly carried out the relevant balancing exercise.         The Commission recalls that according to the constant case-law of the Convention organs the obligation contained in Article 26 (Art. 26) of the Convention to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible and that the burden of proving the existence of such remedies lies upon the State invoking non-exhaustion of domestic remedies (see, for example, No. 12742/87, Dec. 3.5.89, D.R. 61 p. 206 and 17579/90, Dec. 13.1.93, D.R. 74 p. 139).         In the present case, the Commission notes the acceptance by the Court of Appeal of the applicant's legal ground of appeal, the factual nature of the matters upon which the Court of Appeal found against the applicant and the necessity for an appeal to the House of Lords to be based on a point of law. It is also noted that the Government have not, apart from making the non-exhaustion submission, indicated on what basis any such application for leave to appeal could have been formulated or referred to any similar application for leave to appeal having been successful.         Accordingly, the Commission concludes that the application cannot be declared inadmissible on grounds of non-exhaustion of domestic remedies.   2.     Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of the Convention         In the first place, the applicant complains that if he is expelled to Iran he runs a real risk of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention.         The Government submit that the applicant's expulsion to Iran would not give rise to a violation of Articles 2 and 3 (Art. 2, 3) of the Convention. The Government argue that the applicant, on whom they contend the burden of proof lies, has not demonstrated a real risk of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention.         In this respect, the Government submit, inter alia, that other countries have sent back serious offenders to Iran who have not thereafter been subjected to the treatment the applicant suggests awaits him and that certain persons granted refugee status by the United Kingdom have voluntarily returned to Iran with no reported adverse consequences. The Government do not accept that the Amnesty reports referred to by the applicant indicate a real risk for the applicant of "double jeopardy" or that the grant of refugee status or the applicant's long absence from Iran with that status would result in particular interest being shown by the Iranian authorities in the applicant on his return. The Government argue that the relevant risk to the applicant is to be assessed in light of the circumstances prevailing when the Commission considers the application and that the situation since the applicant was granted asylum has considerably improved.         The applicant submits that he has demonstrated that he suffers a real risk of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention. He refers to the political situation in Iran and alleges deficiencies in the judicial system, a long record of human rights abuses in Iran, a vigorous implementation of the anti-drugs campaign initiated in 1989, widespread persecution of political dissidents and of those using or profiting from drugs, together with an increasing number of executions of drugs offenders and political dissidents. He refers in these respects to, inter alia, various Amnesty reports relating to the situation in Iran.         He also refers, inter alia, to his previous political activities against the current regime in Iran, to his consequent long absence from Iran as a political refugee and to the intervention of the UNHCR in his favour when he applied for refugee status. Moreover, his drugs convictions expose him to the possibility of being charged, tried and sentenced to death by the Islamic Revolutionary Court in an entirely arbitrary manner. The applicant considers that he has established a "real risk" of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention on the basis of each of the above factors or on the basis of the cumulative effect of all such elements.         Specifically in relation to Article 2 (Art. 2) of the Convention, the applicant notes that Article 2 (Art. 2) in its terms accepts the execution of a death sentence of a court following conviction of a crime for which that penalty is provided by law. However, he argues that there is a real risk of his extra-judicial execution. In addition, even if he were to be tried in Iran, he argues that the judicial institutions and procedures by which he would be tried are so deficient that his execution following such procedures would engage the United Kingdom's responsibility under Article 2 (Art. 2) of the Convention. The applicant also emphasises the absolute and non-derogable nature of Articles 2 and 3 (Art. 2, 3) of the Convention, arguing that once reasonable risk is established, his expulsion would amount to a violation of those Articles. In this respect, the applicant relies on the judgment in the Ahmed case (Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, to be published in the Reports of Judgments and Decisions for 1996) and on the Chahal judgment (Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, to be published in the Reports of Judgments and Decisions for 1996).         The applicant further complains that his expulsion would constitute a violation of Articles 5 and 6 (Art. 5, 6) of the Convention in that he would run a real risk of detention and trial in Iran in flagrant breach of the rights guaranteed by those Articles.         The Government do not accept that the State's responsibility is engaged as regards the applicant's submissions of a risk of a failure by Iran to meet the requirements of Article 6 (Art. 6) of the Convention.         The Government rely, inter alia, on the fact that Article 6 (Art. 6) of the Convention does not have the same non-derogable nature as Articles 2 and 3 (Art. 2, 3) of the Convention. As to the Court's judgments in the Soering case and the Drozd and Janousek case (Eur. Court HR, Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 45, para. 113 and Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 34, para. 110), the Government note that those cases admit of the possibility of such state responsibility only where a "flagrant denial" of the rights under Article 6 (Art. 6) of the Convention has occurred or is likely to occur.         However, the Government submit that those cases are confined to situations concerning co-operation between the relevant respondent Government and the third country in light of specific criminal proceedings either past or envisaged. The former application concerned extradition to the United States with a view to that applicant's trial and the latter concerned detention in France of prisoners who had already been tried in Andorra. In the present case, the Government argue that there is no element of cooperation between the United Kingdom and the Iranian authorities. In addition, there is no evidence that any trial in Iran is envisaged or of any real risk that such a trial would take place in Iran on the applicant's return. Accordingly, the expulsion of the applicant does not engage the Government's responsibility under Article 6 (Art. 6) of the Convention. The Government rely on the above submissions in arguing that no state responsibility is engaged under Article 5 (Art. 5) of the Convention and that, in addition, there is no evidence that the applicant would be detained by the Iranian authorities in the manner which he describes.         The applicant accepts that, as a general rule, Contracting parties do not have to ensure that the guarantees contained in Articles 5 and 6 (Art. 5, 6) of the Convention will be respected in the receiving State. However, he refers to his above submissions as to the position in Iran and he makes particular reference to recent legislation which has changed the judicial system and which has, in his view, rendered his position even more critical. He argues that he runs a real risk of being detained in a system which does not "even contemplate" the legal safeguards of Article 5 (Art. 5) of the Convention and of being tried in circumstances that fundamentally breach Article 6 (Art. 6) of the Convention. This would amount to a "flagrant denial" of the rights guaranteed by Articles 5 and 6 (Art. 5, 6) of the Convention and, applying the above-mentioned Drozd and Janousek and Soering judgments, would engage the responsibility of the United Kingdom and constitute a violation of those Articles.         The Commission considers that the complaints of the applicant under Articles 2, 3, 5 and 6 (Art. 2, 3, 5, 6) of the Convention raise issues of fact and law which are of such complexity that their determination should depend on an examination of the merits. These complaints cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring them inadmissible have been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.           M. de SALVIA                          S. TRECHSEL       Deputy Secretary                         President      to the Commission                     of the Commission