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