Iraans echtpaar vlucht na veroordeling tot honderd zweepslagen, maar krijgt uitzettingsbevel - Mensenrechtenhof veroordeelt Turkije (en)
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of D. and Others v. Turkey (application no. 24245/03).
The Court held unanimously
· that there would be a breach of Article 3 of the European Convention on Human Rights (prohibition of inhuman treatment) if the decision to deport P.S. to Iran were to be enforced;
· that no separate issue arose under Article 13 (right to an effective remedy) or Article 14 (prohibition of discrimination).
The Court considered that the finding of a potential breach of the Convention constituted in itself sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. Under Article 41 (just satisfaction), the Court awarded the applicants 5,000 euros (EUR) for costs and expenses, less the EUR 857 they had already received from the Council of Europe in legal aid. (The judgment is available only in French.)
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1.Principal facts
The applicants are three Iranian nationals. A.D., a man of Kurdish origin, was born in 1969. His wife, P.S., of Azeri origin, was born in 1976. Their daughter, A.D., was born in 1997. A.D. is a Sunni Muslim and P.S. a Shia. All three are currently living in Kastamonu (Turkey), where they have been granted a temporary residence permit.
A.D. and P.S. met in 1996 and decided to marry. However, the father and brother of P.S., both members of the Iranian intelligence service2, strongly objected to the proposed marriage. On 11 September 1996 P.S. left home and went to live with the first applicant. They married on 26 September, at a Sunni ceremony, without the consent of the bride’s father, and therefore in breach of Shia sharia law.
Two days after the wedding the couple were arrested. At the request of the Shia religious authorities P.S. was forced to undergo a virginity test and then released.
On 30 September 1996 a judge of the Naghadeh islamic court declared the marriage null and void and fined each of the first two applicants 300,000 rials. At the hearing the judge also persuaded the father of P.S. to agree to a Shia wedding. He fell in with the judge’s wishes and the couple were remarried. The couple were subsequently informed that they had each been sentenced to 100 lashes for fornication, under Article 88 of the Criminal Code, the sentence falling into the category known as haad, meaning that it is irrevocable.
On 12 April 1997 A.D. was subjected to this punishment. However, as his wife was then pregnant, execution of her sentence was postponed, in the first instance until the birth of her daughter and then until 11 October 1999, on account of her fragile physical and mental health. On the latter date it was nevertheless decided that there would be no further stays of execution and that the sentence of 100 lashes would be carried out in two sessions of 50 lashes each.
The applicants fled from Iran, entering Turkey on 22 November 1999. They immediately applied to the local office of the HCR (United Nations High Commissioner for Refugees) and obtained the temporary status of “asylum seekers”. However, the HCR refused them permanent asylum seeker status. As a result, in November 2002, the Turkish immigration service refused to extend the validity of their residence permits. On 22 April 2003 the applicants were served with a ministerial decree informing them that as unsuccessful applicants for asylum seeker status they were free to return to Iran or make their way to a third country of their choice, failing which they ran the risk of deportation. The first applicant appealed.
To date, no final deportation order has been issued against the applicants, who continue to live in Kastamonu by virtue of residence permits which have in the meantime been renewed, pending the outcome of the appeal proceedings.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 4 August 2003 and declared admissible on 30 June 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Boštjan M. Zupan?i? (Slovenian), President,
John Hedigan (Irish),
Lucius Caflisch (Swiss)3,
Riza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Vladimiro Zagrebelsky (Italian),
Alvina Gyulumyan (Armenian), judges,
and also Vincent Berger, Section Registrar.
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3.Summary of the judgment4
Complaints
The applicants submitted that their deportation to Iran, where they ran the risk of undergoing ill-treatment, would breach Articles 3, 13 and 14 of the Convention.
Decision of the Court
Article 3
As regards P.S.
The Court noted that in Iran corporal punishment was the standard penalty for certain categories of offences regarded as immoral, such as adultery and fornication. They were prescribed by law, imposed by the judiciary and inflicted by agents of the State.
After noting the conditions under which sentences of flagellation were executed in Iran, about which there was no dispute, the Court considered that the mere fact of permitting a human being to commit such physical violence against a fellow human being, and in public moreover, was sufficient for it to classify the sentence imposed on P.S. as “inhuman”.
The Turkish Government, like the HCR, asserted that the punishment would have been attenuated on health grounds, to such an extent that it was now a symbolic penalty inflicted by means of a special lash in which the number of tails was equal to the number of blows to be inflicted. Even supposing that that was the case, the Court observed that enforcement of the sentence through a single blow from a lash with one hundred tails did not make the punishment “symbolic” or alter its “inhuman” character. In such an event, although the applicant would be spared more grievous injury, her punishment, which still involved treating her in public as an object in the hands of the State power, would inflict harm on precisely those things which Article 3 was mainly designed to protect, namely her personal dignity and her physical and mental integrity.
The Court further noted with satisfaction that the Government had to date refrained from deporting the applicants, pending the outcome of the appeal lodged by the first applicant. There was no reason to suppose that the proceedings would lead to a hasty decision, without an appropriate examination of the second applicant’s assertions about the fate that awaited her in Iran, given that the Turkish administrative authorities already had sufficient information to avoid or provide redress for the violation imputed to them. However, the Court was not satisfied that P.S. could effectively contest in the administrative courts the legality of any decision to deport her which might ultimately be taken, since such an application could not lead to a stay of execution of the measure or to re-examination of the merits of her allegations.
As regards A.D. and P.D.
As it had already held in a similar case, the Court considered that if P.S. were to be deported that measure would also constitute a breach of Article 3 in respect of A.D and P.D.
In conclusion, the Court considered that, if enforced, the decision to deport P.S. to Iran would breach Article 3 of the Convention in respect of all three applicants.
Articles 13 and 14
The Court held that its finding under Article 3 made it unnecessary for it to examine the case under Articles 13 and 14 also.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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