July 11, 2006
Press Release from Iranian Refugees’ Alliance, Inc.

Iranian refugees win their case against Turkey in international court, UN Refugee Agency’s perverse decision condemned.

On June 22, 2006 the European Court of Human Rights in Strasburg announced its judgment on the case of D. and Others v. Turkey (No. 24245/03). The Court unanimously held that enforcement of the decision to deport applicants to Iran would be a breach of Article 3 of the European Convention on Human Rights. The Court also held, without providing any reasons, that it was unnecessary to examine applicants’ complaints under Article 13 and 14. The applicants, D., his wife, S., and their daughter, P., Iranian asylum seekers since 1999, filed their application with the Court on August 4, 2003 after Turkish authorities served them a deportation order. The order was issued upon notification by the Ankara Office of the United Nations High Commissioner for Refugees (UNHCR) that the agency had rejected and closed their refugee application.

"We are pleased with the Court’s ruling for validating the applicants’ fear of persecution in Iran and permanently preventing their deportation,” said Iranian Refugees’ Alliance’s director, Deljou Abadi, who has represented the applicants before the Court. "The Court obviously has limited itself to a small part of the applicants’ complaints, but at a time when there is no tribunal to provide any measure of justice whatsoever to refugee applicants whose cases are unjustly rejected by UNHCR and who are as a result deported to their country of persecution, even a minimal remedy can save lives.”

Mr. D. and Mrs. S. are from Sunni Kurdish and Shi’ite Azeri families, respectively. Having been arrested, detained and tortured previously by Iranian authorities for political reasons, D. fled to Turkey illegally in 1999 when the authorities again suspected him of resuming political activity. S. too fled at the same time along with their child because she was imminently facing a cruel, inhuman, and in her case life-threatening, hadd sentence of 100 lashes. In 1996, Iranian judicial authorities sentenced D. and S. to the hadd punishment of 100 lashes a few days after they were married by a Sunni clergy. The court declared their marriage vows null and convicted them of committing fornication because S.’s father opposed the marriage and had not given his consent. D.’s sentence was administered subsequently. S.’s was temporarily postponed initially due to pregnancy and then nursing P. Despite medical evidence stating that lashing would put S.’s life at risk because of her poor health, judicial authorities insisted on carrying out the 100 lashes with a slight modification that it should be administered in two sessions rather than one.

As Turkey still maintains a “geographical limitation” in application of the UN 1951 Refugee Convention, non-Europeans are not accepted as refugees. The government issues such asylum seekers temporary residence permits until UNHCR decides on their asylum applications. UNHCR periodically informs the government of the status of applications. Those who are accepted as refugees are allowed to stay until UNHCR resettles them in a third country. UNHCR rejected cases are issued deportation orders by the Ministry of Interior and eventually forcibly removed to their country of origin.

In their application to the Court, Mr. D. & Mrs. S. alleged that by expelling them to Iran, the Turkish government would violate Article 3 (prohibition of torture and inhumane treatment) of the European Convention on Human Rights by exposing D. to political persecution and S. to the punishment of 100 lashes, and by causing the permanent destruction of their family. They also submitted that the government has violated Article 13 (right to an effective remedy) of the Convention by not providing them a fair asylum determination procedure and by not providing an effective and accessible remedy to challenge their deportation order. They also argued that Turkey is in violation of Article 14 (freedom from discrimination) of the Convention because it implements a discriminatory asylum system whereby non-European asylum seekers’ applications are not properly investigated and, unless they find resettlement in a third country, they are deported to their country of persecution.

In its ruling on the applicants’ Article 3 complaints, the Court, limiting its examination to Mrs. S.’s impending sentence of 100 lash strokes, held that her expulsion to Iran would constitute a violation of Article 3. The Court dismissed UNHCR’s entire reasoning for rejecting the applicants’ refugee claim. While the applicants had lodged their refugee application with the UNHCR in November 1999, UNHCR’s rejection reasons were for the first time revealed six years later at the last stages of the Court’s proceedings in the form of a short letter dated 9 September 2005 to the authorities. Agreeing with the applicants, the Court stated that neither the postponement of Mrs. S.’s lashing sentence for several years, nor its slightly modified implementation for health reasons or that she had fled her country with a valid passport are valid reasons to reject Mrs. S.’s request for asylum.

The Court particularly criticized UNHCR’s unsubstantiated assertion that “in view of her state of health” Mrs. S.’s sentence had been “reduced” to a “symbolic” punishment of a single stroke administered with a bundle of 100 lashes. The Court found it not only factually incorrect, but also a misqualification of such punishment’s inherent “inhuman” character. “Even if UNHCR’s allegation were true”, the Court added, “although the applicant would be spared more grievous injury, her punishment - whereby she would be treated as an object in the power of the authorities – still constitutes an assault on precisely that which is one of the main purposes of Article 3 to protect, namely her personal dignity and her mental and physical integrity.” [unofficial translation from French]

With respect to the applicants’ other complaints, the Court rejected the government’s preliminary objection that applicants could have contested their deportation order in the administrative court and agreed with the applicants that such a remedy would not be effective. However, it held without any reasoning that its finding under Article 3 made it unnecessary to examine the case under Article 13 and Article 14. Applicants complaints under Articles 13 and 14 included the authorities’: 1) failure to inform them of their rejection reasons, 2) failure to conduct even an appearance of an examination of their application throughout the asylum procedures and even before the Court, 3) failure to provide legal assistance, proper information and adequate translation, 4) failure to set up an effective appeal system, and 5) no-questions-asked reliance on UNHCR’s decision without any scrutiny of its substance or its fairness.

In regard to the applicants’ request for “just satisfaction” under Article 41 of the Convention, the Court considered that the finding of a potential breach of the Convention constituted in itself sufficient just satisfaction for the non-pecuniary damage suffered by the applicants and awarded the applicants 5,000 euros (EUR) for costs and expenses.

“Considering the gravity and clarity of this case, it is a pity that the Court opted for the minimum possible examination” said Abadi. “After experiencing six years of total rightlessness, ineptitude and secrecy, ِD. and S. and their daughter certainly deserved a stronger and broader condemnation of the authorities’ actions and inactions. Had the Court proceeded with even one of the applicants’ other complaints, particularly those which deal with procedural issues, it would have inevitably found violations of basic fairness standards required by any refugee status determination worth its name. Such finding perhaps would have made it possible for other refugee applicants going through similar experiences to benefit more significantly from the Court’s ruling.”

The judgment is available in French at the Court’s website www.echr.coe.int.

For further information regarding this case please contact the Iranian Refugees’ Alliance, Inc. at the address below.

Iranian Refugees' Alliance, Inc., is a non-profit NGO in the U.S. assisting and advocating on behalf of Iranian asylum seekers and refugees nationally and internationally.

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Iranian Refugees' Alliance, Inc.
Cooper Station
P.O.Box 316
New York, NY 10276-0316 USA
tel/fax: 212-260-7460
email: irainc@irainc.org
url: www.irainc.org