CAT/C/64/D/783/2016 State party’s observations on the merits 5.1 On 18 May 2017, the State party submitted its observations on the merits, recalling first the facts and the asylum proceedings undertaken by the complainant in Switzerland. It notes that the asylum authorities have duly considered the complainant’s arguments, without any procedural flaws. In the State party’s view, the communication does not include any new information that would invalidate the asylum authorities’ decisions. It therefore holds that the deportation of the complainant to the Islamic Republic of Iran would not constitute a violation of article 3 of the Convention by the State party. 5.2 The State party points out that, under article 3 of the Convention, States parties are prohibited from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities are to take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Referring to the Committee’s general comment No. 1 (1997) on the implementation of article 3 of the Convention in the context of article 22, the State party claims that the complainant must establish the existence of a personal, present and substantial risk of being subjected to torture upon return to his or her country of origin. There must be grounds for describing the risk of torture as “substantial”.29 The State party recalls that the following elements must be taken into account to ascertain the existence of such a risk: any evidence of a consistent pattern of gross, flagrant or mass violations of human rights in the country of origin; any claims of torture or ill-treatment of the complainant in the recent past and independent evidence to support those claims; political activity of the complainant within or outside the country of origin; any evidence as to the credibility of the complainant; and any factual inconsistencies in the complainant’s claims.30 The State party presents its observations in the light of these factors. 5.3 The State party points out that the existence of a consistent pattern of gross, flagrant or mass violations of human rights does not, in itself, constitute sufficient grounds for determining that a particular person would be subjected to torture upon return to his or her country of origin. Rather, the Committee must establish whether the complainant is personally at risk of being subjected to torture in the country to which he or she would be returned. Additional grounds must be adduced in order for the risk of torture to qualify as “foreseeable, real and personal” for the purposes of article 3 (1) of the Convention. The existence of such a risk must be assessed on grounds that go beyond mere theory or suspicion. 5.4 Regarding the existence of a consistent pattern of gross, flagrant or mass violations of human rights, the State party acknowledges that the mere fact of being homosexual establishes a high risk of being persecuted in the Islamic Republic of Iran. However, the country’s Penal Code does not criminalize homosexuality in and of itself, but only some homosexual acts. In this regard, the State party emphasizes that it is not possible to precisely assess the number of homosexuals against whom the death penalty has been carried out. 31 Accordingly, the situation in the complainant’s country of origin does not constitute, in itself, sufficient grounds for concluding that the complainant would be at risk of torture if he were to be returned there. The State party alleges that homosexuals who conceal their homosexuality and keep a low profile can live freely in Iranian society. 5.5 As regards the allegations of torture of the complainant in the past, the State party underlines that the alleged sexual abuses mentioned by the complainant occurred in 1997, during his military service — more than 20 years ago. Therefore, those events cannot be linked to the complainant’s departure for Europe in 2015. The State party also points out the fact that the complainant left the Islamic Republic of Iran in 2004 and stayed for two 29 30 31 6 See the Committee’s general comment No. 1, paras. 6 and 7, which has been replaced, with effect from 6 December 2017, by its general comment No. 4 (2017) on the implementation of article 3 in the context of article 22. See the Committee’s general comment No. 1, para. 8. The State party refers to a decision of its domestic court, namely TAF (D-7383/2015 of 17 December 2015).