THIRD SECTION

Application no. 51315/12 K.S. against the Netherlands lodged on 7 August 2012

STATEMENT OF FACTS

1. The applicant, Mr K.S., is an Iranian national, who was born in 1971 and lives in Alkmaar . He is represented before the Court by Mr P.J. Schüller , a lawyer practising in Amsterdam .

The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. In 2008, the applicant fled from Iran to the Netherlands where he applied for asylum, submitting the following account.

4. The applicant hails from Ahwaz , in Khozestan province. Ahwaz is predominantly inhabited by Arabs. In 2000, there was civil unrest in Ahwaz caused by the Iranian Arabs. During this unrest, the applicant was arrested as his house and shop were situated in an Arab neighbourhood. The applicant was detained for ten months in the Sepidar prison in Ahwaz . After signing a declaration that he would not undertake any oppositional activities, the applicant was released on an undisclosed date.

5. In 2001, together with a friend, the applicant started a new business, a copy shop. The main business of this copy shop was printing wedding invitations, advertising leaflets and the like. In the off-hours, the applicant, his business partner and another friend printed also political cartoons and critical publications about Iranian politicians and the doctrine of Veleyate Faghih . This doctrine means the guardianship of the Faghih (religious jurist), better known as the Supreme Leader, and forms the basis for the Iranian constitution.

6. In 2003, the applicant was asked by an old acquaintance if he could give some work to a sixteen year old boy, called Mr K. Mr K. was given cleaning jobs in the copy shop.

7. In the beginning of 2004, the applicant was informed by his business partner that several of the clandestine materials in the shop had been moved and that one CD-ROM had gone missing. The applicant and his business partner kept those materials hidden from their employees.

8. The applicant consulted his uncle, who advised him to close the copy shop. Meanwhile, the applicant ’ s business partner had discovered that Mr K. ’ s brother was involved in an organisation called Ansar . The Ansar organisation has links to the Iranian regime.

9. In March/April 2004 the applicant and his partner decided to close the copy shop. They subsequently had to clean out the premises which they were renting. When they arrived at the copy shop, twenty men in semi-military uniforms appeared. They belonged to Ansar . They started to ravage the shop, destroying the equipment still present. The applicant and his business partner were beaten by these men. The applicant and his business partner were interrogated about the clandestine materials. After a while the Ansar men left, ordering the applicant and his business partner to remain at the shop. Both the applicant and his business partner left the shop. The applicant went into hiding at his uncle ’ s place, where he remained for sometime. The applicant and his uncle decided that he should leave the country. In order to arrange everything, the applicant went home one evening to collect some papers. He stayed the night at his own place and had planned to leave early the next day. Early in the morning, the applicant was arrested. Probably his house had been monitored. The applicant was blindfolded and taken to a facility of the intelligence service in Ahwaz , where he was detained for almost four years after which he managed to escape. During his detention the applicant was tortured. He was beaten with iron pipes, his teeth and nails were pulled out, he was tied by his feet and hung upside down, a watering can was attached to his testicles whilst the can was slowly filled, material was forced into his anus using a bicycle pump, etc. He was also transferred to different facilities where he was interrogated and tortured. At one point a mock execution was carried out. During the final stage of his detention the applicant was given injections of morphine in his arms and legs, in order to get him addicted. Sometime near the end of February 2008, the applicant was informed by another inmate that he should eat all of his food right to the end. When he had almost finished his meal, he found a small piece of paper at the bottom. The piece of paper contained a letter from his uncle. His uncle informed him that he was pursuing the applicant ’ s case and that he had bribed one of the applicant ’ s guards. The applicant received two more notes. In the last note the applicant was instructed to pretend to become very ill at a certain date so that he would be transferred to the hospital. The bribed guard provided the applicant with a tiny part of a razor and some depilatory cream. The applicant swallowed the razor and drunk the cream together with some tobacco. This caused internal and external bleeding. Subsequently, the applicant was transferred to a hospital. It was from this hospital that the applicant managed to escape. The bribed guard released the handcuffs and told the applicant to escape through the window. Several hours later the applicant finally managed to leave Iran .

10. On 14 May 2008, the applicant entered the Netherlands and applied for asylum. On 15 May 2008, the applicant was interviewed about his identity, nationality and travel route ( eerste gehoor ).

11. On 26 June 2008, the applicant ’ s lawyer submitted corrections and additions ( correcties en aanvullingen ) to the record drawn up of this first interview. In this letter the applicant ’ s lawyer referred to the scars on the applicant ’ s back and requested the Immigration and Naturalisation Service ( Immigratie - en Naturalisatiedienst ; “ IND ”) to have these scars examined. The lawyer further mentioned that the applicant was suffering from psychological problems and that he doubted whether the applicant would be able to undergo a long interview concerning his asylum motives.

12. On 2 July 2008 , the applicant was interviewed about his asylum motives ( nader gehoor ). Due to his medical condition, this interview was aborted.

13. On 17 July 2008 , the applicant ’ s lawyer submitted a letter of the applicant ’ s general practitioner, stating that the applicant had been tortured and that he was addicted to Tramadol , a very strong painkiller.

14. On 21 August 2008 , the second interview was continued and completed.

15. By letter of 9 October 2008 the applicant submitted his corrections and additions to the record of the second interview.

16. On 6 January 2009 , the applicant was informed that the Deputy Minister of Justice ( Staatssecretaris van Justitie ) had requested the Medical Assessment Section ( Bureau Medische Advisering ; “BMA”) of the Ministry of Justice to assess whether or not upon return to Iran a medical emergency would arise if the applicant would no longer receive the necessary medical treatment and whether or not necessary treatment was available in Iran.

17. On 15 April 2009 , BMA issued its report, which stated that the applicant was suffering from a serious form of Post Traumatic Stress Disorder (PTSD) due to traumatic events in the past. The applicant was further addicted to Tramadol . However, his medical condition could not be considered as a terminal illness. No medical emergency would arise in the short term if the applicant no longer received the necessary medical treatment. Furthermore, necessary treatment was available in Iran .

18. By letter of 29 April 2009, sent on 4 May 2009, the Deputy Minister notified the applicant of her intention ( voornemen ) to reject his asylum application. It was considered that the applicant had failed to submit any documents concerning his nationality, identity and travel route, and that this failure was attributable to him. The applicant ’ s account of having been detained was found to lack credence, therefore his claim that he had been unable to take any documents concerning his nationality and identity with him was disbelieved as well. Thus, the failure to submit documents was attributable to the applicant. Furthermore, the applicant had been unable to give any details about his travel itinerary nor had he submitted any documents on said itinerary. As a result, the credibility of his statements was impaired and in these circumstances the applicant bore a heavier burden of proof to establish the plausibility of his asylum account, thus that his account should not contain any gaps, vagueness, illogical twists or inconsistencies as regards relevant details. It should, on the contrary, be positively convincing. It was concluded that the applicant ’ s account was not positively convincing. It was noted that the alleged uprising of Arabs in Ahwaz in 2000 had not been documented in country information. It was also considered odd that the applicant, being of Persian origin, had been arrested and detained for 10 months just because he lived in a predominantly Arab neighbourhood. Furthermore, the applicant had failed to make consistent statements about the question whether or not an arrest warrant for this arrest existed. It was not found credible that the applicant was unable to name the political party for which his friend was active. The applicant and his friend had worked closely together in printing and distributing cartoons and critical articles; it might thus have been expected that the applicant knew to which political party his friend belonged. Furthermore, the applicant had given inconsistent statements about what had happened after Ansar had ravaged his copy shop. In this respect the Deputy Minister noted that the applicant had initially claimed that, after having been ill-treated by Ansar , he had stayed home for a couple of days. However, later on in the interview he had claimed that after the ill-treatment he had gone directly to his uncle and stayed there a week in order to recuperate. After this week he had gone home, where he had stayed for a week before he had been arrested. Still later on in the interview, he had claimed that he had stayed at his uncle ’ s place for a week, had gone home for one night and had then been arrested. The Deputy Minister further found that the applicant ’ s alleged detention and his subsequent escape lacked credence and that the applicant had failed to establish that he had been sentenced to death. Additionally, the hospital which the applicant claimed to have escaped from did not appear in country information and the applicant had failed to establish that this hospital actually existed. Finally, the Deputy Minister held that the manner in which the applicant claimed to have escaped seemed too easy for someone who had been sentenced to death.

19. By letter of 11 May 2009 the applicant ’ s lawyer claimed that the applicant ’ s mental condition affected his ability to give consistent statements. He requested the Deputy Minister to obtain a medical assessment of the applicant ’ s ability to give consistent statements, and urged the Deputy Minister to withdraw the intention. By letter of 19 May 2009 the lawyer repeated this request.

20. In her response of 28 May 2009 the Deputy Minister stated that the question whether or not the applicant ’ s mental condition affected his ability to give consistent statements had not been put before BMA because they were unable to answer this question.

21. On 29 May 2009 , the applicant submitted a letter from his general practitioner to his representative. According to this letter the applicant was suffering from PTSD as a result of severe ill-treatment in his country of origin.

22. In his written comments to the intention ( zienswijze ) of 29 June 2009, the applicant maintained his account. He claimed that due to his medical condition he had been unable to give consistent statements. He claimed that the Deputy Minister had neglected to assess whether or not he was able to give consistent statements. As demonstrated, he was suffering from PTSD and addicted to Tramadol . This could interfere with the ability to give consistent statements. The Deputy Minister should, at least, have sought medical advice on this claim. He further referred to country of origin information which showed that unrest existed under the Arabs of Ahwaz. He also referred to Google Maps, which showed that the hospital he had mentioned did exist. He explained that he had not been sentenced to death, as was assumed by the Deputy Minister, but that he had been the victim of a mock execution, which was something entirely different. He further explained that no warrant for his arrest had been issued.

23. On 27 July 2009, the Deputy Minister refused the applicant ’ s asylum application, finding that he had failed to dispel the doubts cast on the credibility of his account. According to the Deputy Minister, BMA was not able to give any indication whether or not an alien is able to give consistent statements. Furthermore, a request for such an assessment should have been made before any interview had been conducted, which had not been done in the applicant ’ s case. The applicant ’ s lawyer had not claimed that no interview could take place due to the medical condition of the applicant, and there had been no indications that the applicant had been unfit to be interviewed.

24. On 17 August 2009, the applicant filed an appeal with the Regional Court ( rechtbank ) of The Hague .

25. On 14 October 2009 the applicant filed his grounds for appeal.

26. By letter of 10 December 2009, the applicant submitted further grounds of appeal. He submitted a letter of Stichting Centrum ‘ 45 (“Centrum ‘ 45”), a centre specialised in the treatment of complex trauma ailments resulting from persecution, war and violence. According to this letter the applicant had been admitted to their treatment programme.

27. By letter of 26 April 2010, the applicant submitted further grounds of appeal. He submitted a further letter from Centrum ‘ 45 of 14 April 2010. As regards the connection between the traumatic events in Iran and the applicant ’ s complaints, it state d :

“The applicant was arrested in Iran . He was suspected of incitement against the regime, producing pamphlets critical of the regime and other articles. While in detention he was subjected to torture on a daily basis for seven years. Once he was told that he would be executed, only to find out at the last possible moment that it was a mock execution. Also, his teeth were pulled out, his back burned with iron pipes, and he was made addicted to morphine. He was locked up in a dog cage, in which he was unable to stand or lie down. These have been very humiliating and frightening experiences for the applicant. As a result he withdraws himself from company and likes to be alone.”

28. The letter also stated that the applicant was suffering from PTSD as a result of having been subjected to ill-treatment in Iran and that he was receiving in-house treatment for PTSD. It further stated that:

“At this moment, there are no indications (yet) that the applicant is not able to give consistent statements concerning his (medical) situation. However, it is possible that the seriousness of his complaints and his distress taken together with his confused state and concentration problems may, when the applicant is under pressure, interfere with his ability to give correct factual information.”

29. On 16 September 2010, a hearing took place before the Regional Court of The Hague sitting in Maastricht , in the course of which the applicant submitted a further letter from Centrum ‘ 45 of 31 August 2010. This hearing was adjourned, to allow the Deputy Minister to react to the letter of 31 August 2010 of Centrum ‘ 45.

30. On 24 September 2010, the applicant again submitted further grounds of appeal. He referred to the letter of Centrum ‘ 45 and an operational instruction of the IND.

31. By letter of 29 September 2010, the Minister for Immigration and Asylum ( Minister voor Immigratie en Asiel , the successor to the Deputy Minister), reacted to the report of Centrum ‘ 45. According to the Minister, BMA was not the designated institute to make an assessment whether or not the mental condition of the applicant interfered with his ability to give consistent statements; such an assessment was to be carried out by the Municipal Health Service ( Gemeentelijke gezondheidsdienst ; “GGD”). When lodging his asylum application, the GGD had not seen any reason to assume that the applicant was unable to give consistent statements. According to the Minister, this assessment was supported by the findings of Centrum ‘ 45, according to which no indications existed that the applicant was unable to give consistent statements.

32. On 7 October 2010, another hearing took place before the Regional Court .

33. By judgment of 17 December 2010, the Regional Court accepted the applicant ’ s appeal and quashed the decision of 27 July 2009. The court ordered the Minister to take a fresh decision. The court accepted the Minister ’ s reasoning with regard to the credibility of the applicant ’ s account, finding that the Minister had had good reasons to attribute the failure to submit documents to the applicant. The court further held that the Minister was justified in maintaining his position that the applicant ’ s asylum account lacked credence, since the applicant had failed to establish that the inconsistencies in his account and the vague statements he had made were attributable to his mental condition. However, as to the applicant ’ s claim that upon return to Iran he had a real and personal risk of being subjected to treatment in violation of Article 3 of the Convention, the court held that the Minister had failed to give any consideration to the applicant ’ s claims that he had been tortured during his detention. The court took into account the fact that the applicant had given elaborate statements about his alleged torture, and that he had submitted medical evidence that showed that he had physical and mental complaints as a result of torture. The court further took into account that the applicant ’ s claims fitted the country of origin information. Finally, the court referred to this Court ’ s judgment in R.C. v. Sweden ( no. 41827/07 , § 53, 9 March 2010). The court held that the Minister had failed to give sufficient reasons why the applicant ’ s return to Iran would not violate Article 3 of the Convention.

34. Both the applicant and the Minister appealed the judgment to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ; “the Division”). The applicant argued essentially that he could not be blamed for not having submitted documents. He further argued that the Minister had neglected to take into account his mental health. Furthermore, although the applicant had rebutted some of the Minister ’ s claims in his written comments (for instance the claim that a certain hospital did not exist), the Minister had failed to take this into account. In support of his further appeal, the Minister argued essentially that the Regional Court had given a wrong interpretation of this Court ’ s judgment in R.C. v. Sweden (cited above). Furthermore, the applicant had not submitted any medical report which showed that he had been subjected to torture. Centrum ‘ 45 ’ s report could not be regarded as such as it did not mention that the applicant ’ s scars and complaints resulted from the alleged torture.

35. On 8 February 2012, the Division rejected the applicant ’ s further appeal on summary grounds for not raising any points of law. In the same decision the Division accepted the Minister ’ s appeal, quashed the judgment of 17 December 2010 and dismissed the applicant ’ s initial appeal. The Division held that Centrum ‘ 45 ’ s report was based upon the applicant ’ s own statements. Therefore, the report could not be regarded as an expert report which showed that the applicant indeed had been subjected to torture. Thus, the applicant had failed to demonstrate that he had been subjected to torture.

36. No further appeal was possible. As a result of the negative decision, the applicant was no longer lawfully residing in the Netherlands . However, the Netherlands authorities have, so far, not taken any steps aimed at the expulsion of the applicant.

37. On 28 June 2012, the Institute for Human Rights and Medical Assessment ( instituut voor Mensenrechten en Medisch Onderzoek ; “ iMMO ”) examined the applicant. According to a report drawn up by iMMO , the applicant had been subjected to torture. iMMO held that:

“[ ... ] [The applicant ’ s] scars fit the profile of external injuries. [The applicant] stated that he had been burned with metal pipes on various places of his body. The round scars are a result of burning. They fit in and are consistent with his account. His teeth have been pulled out without anaesthesia. In the Netherlands he has been provided with dentures. The exact cause of the restriction of his movement and pain in shoulder and arm cannot be deduced from this examination. Therefore, specialised examination is necessary. However, it can be said that this kind of shoulder complaints are known to emerge from a dislocation caused by suspending someone by his arms, while the arms are bound at the back, as has happened according to [ the applicant ’ s ] account. Thus, those complaints are consistent with [the applicant ’ s] account. [ ... ]

The psychiatric complaints and the psychiatric findings cannot be interpreted otherwise than as having been caused by humiliations and ill-treatment undergone by an initially healthy man. As far as we can see, there is no premorbid disposition. [The applicant ’ s] psychological and social development was normal before everything took place. Accordingly, the psychiatric complaints are characteristic and fit [the applicant ’ s] account of having been subjected to torture. [ ... ]

The results of the Bourdon- Wiersma test show that [the applicant ’ s] ability to concentrate is very limited. The results of the Harvard Trauma Questionnaire (HTQ) confirm that [the applicant] suffers from a serious form of PTSD. [ ... ]

Answers of the questions put before the expert.

(a) Is it possible that the scars/physical complaints have emerged from the alleged asylum claims?

Yes, this is very plausible. Especially in the light of the very consistent relationship between the medical findings and the asylum claims.

(b) Is it possible that the psychological complaints have emerged from the alleged asylum claims?

Yes, this is very plausible given the typical relationship between the psychiatric findings and the asylum claims.

(c) Are there psychological complaints that interfere, or have interfered in the past, with the ability to give complete, coherent and consistent statements concerning the asylum application?

Yes, it is very likely that the psychiatric complaints and restrictions (like the limited concentration) interfere with the ability to give complete, coherent and consistent statements of the asylum account at the present time. In view of the seriousness of [the applicant ’ s] condition and indications derived from various documents, it can be deduced that this medical condition already existed when the asylum proceedings commenced. Therefore, it is very likely that this has resulted in a similar inability in situations perceived by [the applicant] as threatening or similar to an interrogation. It can be added that, due to his medication addiction in conjunction with the anxiety and mood disorder, it is very probable that in previous situations of examination [the applicant] may not have been entirely coherent and consistent in his statements.”

COMPLAINTS

38. The applicant complains under Article 3 of the Convention that there are substantial grounds for believing that he will be subjected to a real risk of treatment contrary to this provision if he were expelled to Iran .

39. The applicant complains under Article 13 that he did not have an effective remedy in Dutch national law in terms of his complaint under Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if he is expelled?

2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

3. Given that the applicant ’ s asylum request has been rejected because – due to certain inconsistencies in his asylum account – his account was disbelieved, do the findings of the assessment carried out by the Institute for Human Rights and Medical Assessment ( instituut voor Mensenrechten en Medisch Onderzoek ; iMMO ), in particular those concerning the applicant ’ s ability to give a complete, coherent and consistent asylum account, warrant a reconsideration of the applicant ’ s asylum request?