United Nations Human Rights Website - Treaty Bodies Database - Document - Sessional/Annual Report of Committee - 9.7 In the case of the author of the present communication, the Committee considers that his membership in the People's Mujahedin Organization, his participation in the activities of that organization and his record of detention in 1981 and 1983 must be taken into consideration in order to determine whether he would be in danger of being subjected to torture if he returned to his country. The State party has pointed to inconsistencies and contradictions in the author's statements, which in its opinion cast doubt on the veracity of his allegations. The Committee considers that although there may indeed be some doubt about the nature of the author's political activities in his country of origin, there can be no doubt about the nature of the activities he engaged in in Switzerland for APHO, which is considered an illegal organization in Iran. The State party confirms those activities by the author and does not deny that skirmishes occurred between APHO representatives and other Iranian nationals in Bern in June 1992. The State party does not say whether it investigated those skirmishes, but the material submitted to the Committee gives the impression that no such investigation took place. In the circumstances, the Committee must take seriously the author's statement that individuals close to the Iranian authorities threatened APHO members and the author himself on two occasions, in May 1991 and June 1992. The State party simply noted that Mr. Aemei's activities within APHO did not constitute a new development vis-à-vis the criteria established by the case law of the Federal Tribunal and that, consequently, the competent authorities could not take up the matter of the author's application for reconsideration. 9.8 The Committee is not convinced by the State party's explanations insofar as they refer to Mr. Aemei's activities in Switzerland. It would recall that the protection accorded by article 3 of the Convention is absolute. Whenever there are substantial grounds for believing that a particular person would be in danger of being subjected to torture if he was expelled to another State, the State party is required not to return that person to that State. The nature of the activities in which the person engaged is not a relevant consideration in the taking of a decision in accordance with article 3 of the Convention (see below: 4. Communication No. 39/1996, para. 14.5). In the present case, the refusal of the competent Swiss authorities to take up the author's request for review, based on reasoning of a procedural nature, does not appear justified in the light of article 3 of the Convention. 9.9 Lastly, the Committee is aware of the serious human rights situation in Iran, as reported inter alia to the Commission on Human Rights by the Commission's Special Representative on the situation of human rights in Iran. The Committee notes, in particular, the concern expressed by the Commission, especially about the large number of cases of cruel, inhuman or degrading treatment or punishment. 9.10 In the light of the preceding paragraphs, the Committee considers that substantial grounds exist for believing that the author and his family would be in danger of being subjected to torture if they were sent back to Iran. 10. Taking account of the above, the Committee is of the view that, in the present circumstances, the State party has an obligation to refrain from forcibly returning the author and his family to Iran or to any other country where they would run a real risk of being expelled or returned to Iran. 11. The Committee's finding of a violation of article 3 of the Convention in no way affects the decision (s) of the competent national authorities concerning the granting or refusal of asylum. The finding of a http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/de75e94f920bd0a0802565a600537744?Opendocument (81 of 109)16/10/2006 9:54:12 AM