The complaint
grounds for asylum and the reasons which prompted
him to request asylum.”
3.
The author is afraid that he will be questioned
about his political activities when he returns to Iran.
He adds that torture during interrogations is common
in Iran. Furthermore, he is afraid that he will be
charged with the Molotov cocktail attack of 1982
and that he will consequently be sentenced to a long
term of imprisonment or even death. He adds that
the mere act of requesting asylum in another country
is considered an offence in Iran.
4.4 The State party also contests Mrs. Aemei’s
status as author of the communication.
4.5 In a letter of 1 March 1996, counsel refutes
the State party’s argument contesting Mrs. Aemei’s
status as author of the communication on the
grounds that she has not claimed any ground for
asylum peculiar to herself. Counsel further states
that if Mrs. Aemei were to be sent back to Iran, she
would be liable to the same risks as her husband, or
even greater risks, and that the State party itself has
acknowledged that the applicant’s subsequent
conduct in Switzerland does not constitute a ground
for asylum under Swiss legislation. He also
maintains that the applicant had no reason to
mention his political activities in Switzerland during
the asylum procedures and had always been
questioned about his past and about facts which
could have supported his application for asylum.
Procedural issues
4.1 On 22 November 1995, the Committee
transmitted the communication to the State party for
its observations.
4.2 In its observations of 22 January 1996, the
State party contests the admissibility of the
communication, stating that since the author had not,
in the course of the ordinary asylum procedure
before the national bodies, mentioned his fear that
his political activities in Switzerland would render
him liable to torture if he returned to Iran, he had not
exhausted domestic remedies. The State party
explains that this point should have been made
during the procedure to establish the right of asylum.
Since the point was not mentioned until the request
for review, the authorities were not able to consider
it, as the author’s activities within the APHO did not
constitute a new development in the light of the
criteria established by the jurisprudence of the
Federal Court.
4.6 Counsel points out that in any case the nonreturn obligation is an absolute obligation. Although
the argument of the author’s political activities in
Switzerland was submitted late and hence, for
procedural reasons, could not be taken into account
in relation to the asylum decision, counsel is of the
opinion that the rejection of the asylum application
does not mean that the person can now be sent back
to his country. He points out that Swiss legislation
offers alternatives such as the possibility of a
residence permit for humanitarian reasons (Asylum
Act, art. 17, para. 2) or temporary admission
(Asylum Act, art. 18, para. 1). Counsel also draws
attention to the fact that physical integrity must not
be endangered for procedural reasons. The risk that
an asylum-seeker will misuse the procedure should
not be overestimated, especially as few asylumseekers can point to events as serious as those
referred to by the authors in the case at hand.
4.3 In its observations, the State party
nevertheless submits “that is a subjective ground
under article 8 (a) of the Asylum Act, which in this
connection provides that ‘asylum shall not be
granted to a foreigner when ... only his conduct
following his departure would justify his being
considered a refugee within the meaning of article 3’.
According to case law and doctrine, the concept of
‘subjective grounds occurring after flight from the
country’ covers situations in which the threat of
persecution could not have been the cause of the
departure of the asylum-seeker but results from his
subsequent conduct. Although such grounds are not
relevant to the granting of asylum under the
exclusion clause of the above-mentioned article 8 (a),
an applicant who invokes subjective grounds may
nevertheless remain in Switzerland, by virtue of the
non-return principle, if the conditions of article 45 of
the Asylum Act are met. The allegation of
‘subjective grounds’, like the grounds which
prompted the applicant to leave his country, must
nevertheless satisfy the requirements of asylum
procedure, among which are those relating to the
obligation to cooperate. In accordance with article
12 (b) of the Asylum Act, the applicant is required to
cooperate in the verification of the facts; to this end,
he has in particular to explain, at his hearing, his
4.7 After considering the observations of the
parties, the Committee decided, at its sixteenth
session, to suspend consideration of the
communication pending the result of the author’s
requests for reconsideration in the light of his
political activities in Switzerland. The Committee
also requests information from the State party on
domestic remedies and asked the applicant to
provide additional information concerning his
asylum applications in Switzerland on the basis of
his political activities in Switzerland. The
Committee also asked the State party not to expel the
author and his family while their communication is
under consideration.
Further observations by counsel
5.1 In a letter of 5 August 1996, counsel explains
that the author did not mention his activities within
22
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