AS TO THE ADMISSIBILITY OF

                      Application No. 37014/97

                      by Mahammad Rahim ASPICHI DEHWARI

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

12 March 1998, the following members being present:

           MM    S. TRECHSEL, President

                 J.-C. GEUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, 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 18 June 1997 by

Mahammad Rahim ASPICHI DEHWARI against the Netherlands and registered

on 23 July 1997 under file No. 37014/97;     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

     27 October 1997 and the observations in reply submitted by the

     applicant on 8 January 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Iranian citizen, born in 1959, and currently

residing in the Netherlands. Before the Commission he is represented

by Mrs M. Jansen-Takes, a lawyer practising in Utrecht.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     The applicant has been active as a political opponent of the

Iranian regime since 1977. Initially, while studying at the university

of Zahedan, he had been involved with organisations (which in some

cases he had helped found) fighting for the rights of the Baluchi

minority. In 1980 he had also become involved with the illegal,

communist Sazmaneh Cherkhaye Feda'iye Khalq-e-Iran (the Iranian

People's Fedayan Organisation, hereinafter: Fedayan). His activities

at that time included the organisation of large scale manifestations,

the showing of films and the selling of communist, marxist literature.

     In April 1980 the university building was attacked by Government

forces during which the applicant was wounded and, together with some

thousand other students, detained in a building in Zahedan. He was

ill-treated, threatened with death and subjected to a simulated

execution. The students were released after one month following protest

actions at national level. However, the applicant was not allowed to

return to university.

     After his release the applicant continued his activities for the

Fedayan. Also in 1980, this organisation split into two factions: the

"Majority" (Aksariyyat) and the "Minority" (Aghaliyyat), the latter,

which the applicant joined, being the more radical in its rejection of

the current regime. The applicant was the head of an area committee and

as such in charge of three sub-committees. In August 1981 the applicant

was betrayed by a member of the Fedayan (Majority), arrested on

suspicion of communist activities and kept in detention on remand

pending the judicial investigation. The first month of his detention

he was kept in Zahedan, then he was flown to the Evin prison in

Teheran. Despite the ill-treatment meted out to him (inter alia,

beatings, falakka, being suspended from the arms) the applicant denied

the accusations against him and refused to name his comrades. After two

years he was released as there was no evidence against him. As a

condition of his release he had to sign a declaration to the effect

that he would refrain from future political activities and he had to

post bail with the title-deeds to his house. He was also disqualified

from military service and was given a "red card" (Kart-e-Mahrumiat az

Khedmat). Pursuant to guidelines issued by the Cultural Revolutionary

Council this card was given to persons who had been detained for two

years or longer in connection with their political activities. As a

result he was unable to find employment as a civil servant since he

could not obtain a declaration of good behaviour or of having performed

or of having been exempted from military service.

     In 1986 the applicant was given the choice by the Fedayan

(Minority) to join the armed resistance or to move to another town in

order to continue his political activities there. The applicant moved

to Teheran. After having found a job as a welder in a factory he once

again took up his political activities. These consisted of the

organising of labourers to campaign against working conditions and to

make them politically aware, the recruitment of new members, and the

organisation of meetings. At the factory he was the leader of a cell

which consisted of three other people. The cell would have weekly

meetings at a member's house to discuss, inter alia, when and where to

distribute pamphlets. They collected addresses of colleagues who had

had conflicts with the Islamic security forces or the management of the

factory as they considered that these people might be suitable for the

Fedayan organisation. The applicant would pass these addresses on to

his contact person within the Fedayan. When engaged in their illegal

activities, the cell members used pseudonyms since according to the

safety regulations of the organisation they were not supposed to know

each other's real names.

     The employees at the factory elected the applicant as a member

of a strike committee. He submits that he could not have refused to

accept this election since that might have made his colleagues suspect

him of supporting the regime. In September 1991 a strike broke out and

the factory premises were occupied in protest against low wages and the

lack of job security and health insurance. Preparations for this strike

had taken place in secret; the strike committee came forward at the

beginning of the negotiations with the factory management. Most of the

strikers' demands were fulfilled and after three days the strike and

occupation came to an end. However, a few days later the applicant was

summoned to the director's office where he was arrested by two members

of the security services as he was suspected of having instigated the

workers' revolt. He was blindfolded and transported to a building where

he was detained for one month. During this time he was beaten and

forced to stand upright for long periods of time.

     The employees at the factory again threatened to go on strike if

the director would not bring about the applicant's release. The

director then drew up a declaration to the effect that the applicant

was indispensable at the factory; he also told the security services

that an eye would be kept on the applicant at the factory. Prior to his

subsequent release, the applicant was made to sign a statement that he

would no longer be active in the labour movement. Upon his return to

the factory he was not allowed to continue his work as a welder but he

was made a driver instead.

     On 23 November 1994 two of the applicant's cell members were

arrested while distributing pamphlets. This was observed by the third

cell member who informed the applicant. The applicant told the third

member to take care as the other two were likely to 'betray' the two

of them under torture. He advised him to arrange leave from work and

to find a different address. The applicant then had a meeting with his

contact person who said that the applicant, in view of his past,

constituted a danger for all concerned and should therefore go to a

safe country. The contact person was going to find a "travel agent" and

raise money. Meanwhile, the applicant went into hiding. His family also

contributed financially to his journey out of Iran.

     On 1 December 1994 the applicant left Teheran by car in the

company of a "travel agent". They crossed the border with Turkey on

foot. A second "travel agent" took him to Ankara, where he arrived on

5 December 1994. On 17 December 1994 a third "travel agent" took him

to istanbul and on 19 January 1995 he flew to the Netherlands using a

false passport. That same day he requested asylum in the Netherlands

or, alternatively, a residence permit for reasons of a humanitarian

nature.

     The applicant submits that he has been informed that the Iranian

authorities have been looking for him and the third member of the cell

both at the factory and at their home address. His house has been

searched three times. Moreover, his family have been taken in for

questioning about the applicant's whereabouts three times. His wife and

three children left Teheran and moved to Baluchistan but, finding that

the authorities did not leave them alone there either, have since fled

to Pakistan.

     In the interview which the applicant had with a liaison officer

(contact-ambtenaar) of the Netherlands Ministry of Justice on

3 February 1995 he said, inter alia, that despite the fact that he had

worked in the same factory as the other members of his cell for eight

years he did not know their real names. He added that he had not left

his country in 1982 even though he was living close to the border at

that time because he had wanted to be of use to his country.

     The applicant's requests for asylum and a residence permit were

rejected by the State Secretary for Justice on 20 September 1995 as

manifestly unfounded. The State Secretary held that, in view of the

minor importance of the activities carried out by the applicant, he had

not manifested himself as an important political opponent. She further

considered that the arrests and periods of detention had not previously

given the applicant cause to leave his country and that he had not

substantiated why such a need had arisen in 1994.

     The applicant filed an objection (bezwaarschrift) against this

decision which did not, however, have the effect of suspending his

expulsion. For this reason the applicant applied for an interim measure

(voorlopige voorziening) to the President of the Aliens Division

(Vreemdelingenkamer) of the Regional Court (Arrondissementsrechtbank)

of The Hague sitting at Amsterdam. Following a hearing on

26 January 1996, the President granted the requested interim measure

on 9 February 1996. The President considered that the applicant's

account could not immediately be dismissed as implausible and found

that it fitted to a sufficient extent into what was known about the

situation in Iran.

     The applicant was heard by the Advisory Committee on Aliens

Affairs (Adviescommissie voor Vreemdelingenzaken) on 1 July 1996. In

accordance with this Committee's advice, the State Secretary rejected

the applicant's objection on 11 September 1996. Although she accepted

that the applicant had carried out activities for the Fedayan, the

State Secretary considered it unlikely that these activities were of

a more significant nature than the distribution of pamphlets and the

attending of meetings, and that he was being sought by the Iranian

authorities as a result of these activities. She further did not find

it plausible that the applicant had gone to work in a factory in

Teheran at the instructions of the Fedayan. In this respect the State

Secretary considered it unlikely that the applicant would not have

known the real names of his colleagues who made up the cell of which

he was in charge. She found it similarly unlikely that the applicant

would have organised a strike if he wanted to keep a low profile in

connection with his activities for the Fedayan.

     The applicant filed an appeal against the decision of 1 July 1996

with the Aliens Division of the Regional Court of The Hague sitting at

Amsterdam. In these proceedings he submitted a number of declarations

from sister organisations operating in Europe which confirmed that he

had been politically active for the Fedayan (Minority) in Iran and

would be exposed to torture, detention and possibly execution upon

return to that country. He also stated that he did know the real names

of the people in his cell since they were colleagues of his, but that

he was not supposed to know their names.

     Moreover, the applicant referred to an internal guideline of

10 May 1996 in force at the Ministry of Justice according to which

refugee status may be granted to an Iranian asylum-seeker who has made

a reasonable case for his assertion that he has carried out activities

in the past as a result of which he has experienced problems (such as

detention or convictions) and that he has continued his activities

after his release.

     In her reply to the applicant's appeal memorial, the State

Secretary expressed surprise at the fact that the applicant had

suddenly denied that he did not know the names of the other members of

his cell. She assumed that the applicant had changed his account since

the arrested cell members could not have betrayed him if they had not

been aware of his identity. At the hearing before the Regional Court

on 5 February 1997 the applicant submitted in this respect that it was

clear from the record of his interview with the liaison officer that

he had in any event said on that occasion that the cell members knew

each other's addresses and that would have been sufficient for the

Iranian authorities to find him.

     Following a hearing on 5 February 1997 the Regional Court

rejected the appeal on 20 February 1997. The Regional Court considered

that the decisive issue to be determined was the question whether the

applicant, following the arrest of his two fellow cell members on

23 November 1994, had sufficient reason to fear for his own arrest and

consequently, in view of his resistance activities in the past, for his

safety. In this respect the Regional Court noted that at the interview

with the liaison officer on 3 February 1995, the applicant had said

that he did not know the real names of these two men and that he had

repeated this when he was heard by the Advisory Committee on Aliens

Affairs. However, in his appeal memorial the applicant gave a different

version of his account which, in the opinion of the Regional Court, did

not make his assertion that he feared persecution plausible. In view

of the foregoing the Regional Court also did not find that there were

any circumstances indicating that the applicant, if expelled, would be

exposed to a real risk of being subjected to treatment covered by

Article 3 of the Convention.

COMPLAINTS

     The applicant complains that by expelling him to Iran the

Netherlands authorities expose him to the risk of being killed since

he might be put to death either without a trial or following an unfair

trial on made-up charges, or of being subjected to ill-treatment in

view of the fact that he is known to the Iranian authorities as a

political opponent and a former political prisoner. Moreover, he

submits that he cannot expect a fair trial in Iran. In addition, the

fact that he left Iran illegally, which in itself constitutes an

offence, will lead the authorities to investigate his past thoroughly.

He invokes Article 2 of the Convention in conjunction with Article 1

of Protocol No. 6, and Articles 3 and 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 18 June 1997 and registered on

23 July 1997.

     On 23 July 1997 the President decided to apply Rule 36 of the

Commission's Rules of Procedure until 31 October 1997 and to

communicate the application to the respondent Government. The

Government were asked whether the applicant, if expelled, would face

a real risk of being subjected to treatment in breach of Article 3 of

the Convention.

     The Commission subsequently prolonged the application of Rule 36

on 30 October 1997 and 22 January 1998.

     The Government's written observations were submitted on

27 October 1997, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 8 January 1998.

     On 12 December 1997 the Commission granted the applicant legal

aid.

THE LAW

     The applicant complains that his expulsion to Iran would amount

to inhuman or degrading treatment contrary to Article 3 (Art. 3) of the

Convention, which provides:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     He also invokes Article 2 (Art. 2) of the Convention in

conjunction with Article 1 of Protocol No. 6 (P6-1), and Article 6

(Art. 6) of the Convention. These provisions, insofar as relevant, read

as follows:

     Article 2 (Art. 2) of the Convention

     "1.   Everyone's right to life shall be protected by law.  No one

     shall be deprived of his life intentionally save in the execution

     of a sentence of a court following his conviction of a crime for

     which this penalty is provided by law.

     ... "

     Article 1 of Protocol No. 6 (P6-1)

     "The death penalty shall be abolished. No one shall be condemned

     to such penalty or executed."

     Article 6 (Art. 6) of the Convention

     "1.   In the determination of his civil rights and obligations or

     of any criminal charge against him, everyone is entitled to a

     fair and public hearing within a reasonable time by an

     independent and impartial tribunal established by law..."

     The Government submit that, insofar as it can be assumed that the

applicant was politically active, it cannot be said that in the light

of his personal circumstances he would run a genuine risk of being

exposed to inhuman treatment on his return to Iran. This applies to the

assessment of his situation both in the light of the information

available at the time of the contested decision, and in the light of

current information. In this respect the Government refer to a report

of the Netherlands Minister of Foreign Affairs of 13 June 1997

according to which the general situation in Iran has stabilised since

the early years of the Islamic revolution. The regime has consolidated

its position and repression, generally speaking, has decreased. The

report goes on to say, however, that there are still categories of

cases and certain circumstances in which Iranian citizens might

reasonably fear persecution or inhuman treatment. Thus, an undiminished

policy of repression is still in force against, inter alia, persons

regarded as counter-revolutionaries.

     In reaching their conclusion, the Government have taken account

of the following points. It has neither been claimed nor established

that the applicant is at present wanted by the Iranian authorities. It

has not been convincingly demonstrated that the applicant was an

important political opponent or was known as such to the authorities.

Moreover, according to the Government, the fact that two members of his

cell were arrested after distributing pamphlets does not constitute

sufficient grounds to conclude that the applicant himself runs the risk

of being exposed to inhuman treatment. In respect of the question

whether or not the arrested cell-members knew his name, the Government

submit that the applicant has given different versions of his story at

different stages of the domestic proceedings. In the Government's view,

this does not enhance the credibility of his story.

     The Government further contend that the applicant was released

without further problems after he was arrested in 1980 and 1981. The

applicant has, furthermore, made no statement to the effect that he was

wanted by the Iranian authorities during the period between 1983 and

1991 and it has therefore not been established that these authorities

paid any particular attention to him during that time. The Government

have further taken into consideration the fact that the applicant did

not leave Iran until 1994 and that his arrests and periods of detention

were thus not sufficient reason for him to leave the country.

     Finally, the Government do not find that the applicant carried

out any significant activities in the period from 1983 to 1994 beyond

distributing pamphlets and attending meetings. According to information

from the Netherlands Ministry of Foreign Affairs the distribution of

illegal pamphlets carries only a light penalty and participating in

unlawful gatherings does not appear to provoke repression.

     The applicant maintains that he has been an activist for the

Fedayan (Minority), a subversive political party which aims at the

overthrow of the regime, and that as a result of the arrest of the two

cell members while distributing pamphlets the Iranian authorities will

not only have been informed of this but will also have had their long-

lasting suspicions in that respect confirmed. He had said that he only

knew the two cell members by their pseudonyms because officially he was

not supposed to know their real names. As they had been his colleagues

and he had visited their homes, of course he had been aware of their

real names. In the asylum proceedings he had in any event made it clear

from the start that the arrested men knew his address. In fact, the

Iranian authorities have been to his house in search of him.

     He submits that it cannot be deduced from the fact that he was

not arrested between 1983 and 1991 that his activities were

insignificant. It only indicates that the authorities did not find out

about his activities, and not that he would not have faced severe

problems if they had. The applicant also disputes the Government's

assertion that he was released without further problems after his

arrests in 1980 and 1981. He recalls that he was unable to continue his

studies, that he was disqualified from military service and employment

in the civil service, that he had to sign a statement that he would

refrain from future political activities and had to post bail with the

title deeds to his house.

     According to the applicant, he should be considered as belonging

to the category of counter-revolutionaries in respect of whom

ill-treatment and torture still occur in Iran, as has been confirmed

by the report of the Netherlands Ministry of Foreign Affairs referred

to by the Government. Moreover, the applicant points, inter alia, to

the execution of four Fedayan (Minority) activists in November 1996 and

February/March 1997 to indicate that in spite of the decrease of

repression suggested by the Government, political opponents continue

to be detained and executed.

     The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it 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

         Secretary                            President

     to the Commission                    of the Commission