ECtHR - M.A. v. Switzerland, Application no. 52589/13

Facts:

The facts of the case relate to a political dissident (M.A.) who had participated in anti-regime demonstrations and later received court summons from the Revolutionary Court of Teheran. Absent from the Court hearing, the applicant was later sought by agents of the secret service at his home who intended to arrest him. M.A. had, however, fled to Switzerland and applied for asylum on the basis of political opinion.

Finding that there were inaccuracies with the applicant’s submissions during the first and second hearings, the Migration Board dismissed M.A’s request for asylum and ordered him to leave Switzerland. This decision was reached notwithstanding that the applicant had furnished the Court Summons to the Migration Board. According to the Board the documentary material gave only a general account of the demonstrations, but not specifically anything about the applicant’s alleged participation, and a summons alone could not prove any public persecution [16]. Appealing the decision to the Federal Administrative Court, M.A. stated that a further court summons had been issued and that he had been convicted in abstentia and faced 7 years in prison, 70 lashes and a fine for political demonstrations against the Iranian regime. Copies of the summons were provided to the Court and the applicant provided explanations for the discrepancies in his submissions, notably the difference between the two hearings (one being cursory, the other being detailed) and the considerable elapse of time between the first and second hearing.

The Federal Administrative Court declined to accede to M.A.’s argumentation and dismissed the appeal as manifestly ill-founded. It found that the applicant had no right to asylum and further stated that there was no reason not to execute the expulsion order as the applicant had not been able to prove that he had been subject to state persecution in Iran. Lodging his application with the Court and requesting a Rule 39 interim measure, the applicant claimed that return would breach Article 3 of the Convention and that Switzerland had breached his right to an effective remedy. 

Decision & reasoning:

As a starting point the Court reiterates the relevant principles when assessing a violation of Article 3, notably that the Court must examine the foreseeable consequences of sending the applicant to the receiving country bearing in mind the general situation there and his personal circumstances (El-Masri v. the former Yugoslav Republic of Macedonia no. 39630/09). The existence of such a risk must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion (Saadi v. Italy no. 37201/06)[54]. The Court confirms that with regards to the burden of proof asylum seekers are to be given the benefit of the doubt when it comes to assessing the credibility of their statements [55].

Applying these principles to the case in hand the Court notes that if the applicant were to be sent back he is likely to be arrested upon his return to Iran, where his background would be checked and any conviction would be discovered immediately. Thus, the punishment would likely to be enforced and conditions in prison show that M.A. would likely to be exposed to inhumane treatment [58].  As to the credibility of the applicants submissions the Court agrees with the Swiss government’s argumentation that inconsistencies within M.A’s testimonies existed but this had to be read in the context of subsequent explanations provided by the applicant, notably a lapse of time and the different nature of the interviews. Secondly, the court noted that the authenticity of the summons was challenged by the Swiss government who highlighted that the copies had no probative value and original summons could have been falsified. The Court however concluded that the Government had not verified the authenticity of the documents in a proper manner nor was the applicant given the opportunity to prove their veracity and thus the applicant had adduced evidence capable of proving an Article 3 violation if returned to Iran [69].

The Court therefore found that the applicant had adduced evidence capable of proving a real risk of being subjected to treatment contrary to Article 3 of the Convention and that he must be given the benefit of the doubt with regard to the remaining uncertainties [69].

Turning to M.A.’s complaint that he had no effective domestic remedy through which to assert his claim that he had been summoned and sentenced in absentia to seven years’ imprisonment and 70 lashes of the whip by the Revolutionary Court of Teheran and would therefore be exposed to the risk of treatment contrary to Article 3 of the Convention, the Court found that the Federal Administrative Court gave no convincing reason for not taking into account the alleged summons [71]. The Court, however, found that this raised no separate issue in the case and therefore found no need to examine the claim.

Finally turning to the applicant’s additional complaints, notably Articles 2, 5, 6 and 10 the Court found that Article 6 could not be invoked as provision does not apply to asylum proceedings but solely concern the determination of either civil rights or obligations or of any criminal charge. For the remaining provisions the applicant had not substantiated the complaints, furnishing no details as to how the Swiss authorities had violated these rights and why he thought that these Convention rights had been infringed. The Court thus found that these complaints were manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Outcome:

The Court decided that the complaints under Article 3 of the Convention and Article 13 read in conjunction with Article 3 of the Convention admissible and that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention.

The Court further held that there is no need to examine the complaint under Article 13 in conjunction with Article 3 of the Convention.

Observations/comments:

Concurring Opinion Judge Sajó

Concerning the grant of compensation for the alleged pecuniary loss the Judge finds that the applicant failed to provide documentary evidence that his employer had dismissed him on account of the Federal Administrative Court’s refusal to grant the asylum request.

Dissenting Opinion Judge Kjølbro

The dissenting opinion by Judge Kjølbro attached to the judgment finds that the discrepancies in the applicant’s statements render the account untrustworthy and unreliable. This, in turn, generated additional doubts over the credibility of the summons. Noting the importance of an assessment of the credibility of the account given by the asylum seeker, as noted in the Credibility Assessment in Asylum Procedures – A Multidisciplinary Training Manual, Judge Kjølbro found against a violation of Article 3.

Other sources:

-        UN Human Rights Council, Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran, 11 March 2014, A/HRC/25/75

-        The U.S. Department of State’s “Country Reports on Human Rights Practices 2013” for Iran

-        Report by “Freedom from Torture”: We will make you regret everything - Torture in Iran since the 2009 elections, March 2013

-      The International Federation for Human Rights’ and the Iranian League for the Defense of Human Rights’ Submission on the Islamic Republic of Iran’s Compliance with ICCPR to the Human Rights Committee of the United Nations (103rd session, 17 October – 4 November 2011 in Geneva)

-     Credibility Assessment in Asylum Procedures – A Multidisciplinary Training Manual, 2013, report prepared by the Helsinki Committee in the framework of the CREDO – Improved Credibility Assessment in EU Asylum Procedures

-       U.K. Home Office’s Country of Origin Information Report on Iran