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European Court of Human Rights casts doubt on UNHCR RSD, blocks deportation

August 16, 2006

RSDWATCH ANALYSIS

Court finds UNHCR erred in deciding woman would be subject to only “symbolic” lashing in Iran

  • To read the complete official judgment (in French) click here.
  • For an unofficial translation in English, click here.

In a decision likely to strengthen calls for reform of UNHCR procedures, Europe’s highest human rights court has ruled that the UN refugee agency incorrectly rejected an Iranian couple’s refugee application and put a woman at risk of inhumane punishment.

The case, D. and Others v. Turkey, was filed by an Iranian couple whose applications for refugee status were refused three times by UNHCR’s Ankara office. The woman had been sentenced by an Iranian Islamic court to 100 lashes for fornication, but UNHCR said that she would be subject only to “symbolic application of the sentence.”

In a decision issued in June, the European Court of Human Rights concluded that UNHCR was wrong and instructed Turkey that deporting the couple would be a breach of the European Convention on Human Rights and Fundamental Freedoms.

UNHCR is the world’s largest decision-maker on refugee status determination, but its procedures are often faulted for lacking safeguards and UNHCR offers no independent appeal in its refugee status determination process. Were Turkey not a party to the European Convention, the couple would likely have been deported.

The Strasbourg Court has no direct authority over the UN and not did examine whether its procedures meet standards of due process. But the Court pointedly disagreed with UNHCR on the substance of the case, and raised doubts about the agency’s assessment of country of origin information.

The quality of UNHCR’s refugee status determination became central to the Court’s decision because Turkey relied on UNHCR’s assessment of the case in order to justify deporting the couple.  But the Iranian Refugees’ Alliance, which provided legal aid to the couple, faulted the government for being “content to remain in the shadow of UNHCR.” By finding against Turkey, the Court signaled that governments which rely blindly on UNHCR to assess refugee claims may be violating their own obligations under human rights law.

A mixed marriage, accused of fornication

The man at the center of the case, identified in court papers only as “A.D.,” originally applied for refugee protection in Turkey in 1994 because of his involvement with a Kurdish opposition party. But Turkey deported him back to Iran before UNHCR decided his case. In Iran, he was detained and interrogated, and banned from enrolling in university.

A.D., a Sunni Muslim, married P.S., a Shia Muslim, in a Sunni ceremony against her family’s wishes. Because they did not have her father’s consent as required in the Iranian Shia marriage laws, A.D. and P.S. were arrested and P.S. was subjected to a virginity test. An Islamic court declared their marriage void, imposed a fine, and sentenced both of them to 100 lashes as a punishment for fornication.

A.D. endured the lashing, but his wife had her punishment delayed because she was pregnant and had subsequent health problems. In 1999, with the lashing penalty still pending, she obtained a passport and fled to Turkey. Her husband later joined her after entering Turkey illegally.

UNHCR’s reasons for rejection

The couple unsuccessfully applied to UNHCR for protection in November 2000, and later filed appeals and requests to re-open their file. UNHCR gave no reason for rejecting them until 2005, when the case was already in litigation in Strasbourg, after the Turkish government asked for more information.

UNHCR-Ankara argued that P.S. was not in physical danger in Iran because she had obtained a legal passport, and because unspecified “information” indicated that her sentence for lashing would be reduced because she had health problems. The Iranian Refugees’ Alliance produced evidence that Iranians who are subject to criminal penalties are sometimes nevertheless able to obtain travel documents.

UNHCR, acting in violation of the advice it gives out to governments, normally keeps most of the evidence it considers in refugee cases secret. It is therefore impossible to examine in detail its interpretation of conditions in Iran.

The European Court found UNHCR’s assessment flawed in both facts and law. The Court noted that there was no actual indication that Iranian authorities intended to reduce the 100 lash punishment. Even if UNHCR was right that the sentence would be reduced, Iranian law called for an alternative of one single blow with a special whip made of 100 separate woven strips. The Court said that UNHCR was wrong to label this blow “symbolic,” and that it was still a fundamental violation of human rights.

Gender discrimination

The European Court’s judgment focused on the risk of lashing to P.S. and did not examine her husband’s fears that his political activities put him in danger in Iran.

The fact that the case ultimately was decided based on the wife’s situation contrasts with the way UNHCR had originally handled it. In 2000, UNHCR categorized P.S. as a dependent of her husband. This effectively denied her the chance to file her own refugee claim. The Court noted that UNHCR did not interview her “except to verify specific points of his story.”

While the Court focused on whether lashing is a serious human rights violation, UNHCR’s 2005 explanation for rejecting the couple could likely have been challenged on other grounds as well. Iran’s laws against “fornication”, the imposition of a virginity test on P.S., the requirement that fathers of Shia women consent to their daughters’ marriages, and general treatment of women in Iran may all have supported her refugee claim.

In 2002, UNHCR issued guidelines that said: “Severe punishment for women who, by breaching a law, transgress social mores in a society could … amount to persecution.”

In separate decisions issued in 1996 and in 2000 concerning two Iranian women who had passed through Turkey, the New Zealand Refugee Status Appeals Authority provided detailed assessments of gender discrimination in Iran, and both women were recognized as refugees in New Zealand.  UNHCR is an observer on the New Zealand tribunal, and these decisions were published before UNHCR-Ankara made its first decision on P.S.’s application.

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