Dutch Officials Should Not Force Choice Between Silence and Death
March 8, 2006
Men and women suspected of homosexual conduct in Iran face the threat of execution. We have documented brutal floggings imposed by courts as punishment, and torture and ill-treatment, including sexual abuse, in police custody.
Scott Long Director of the Lesbian, Gay, Bisexual, and Transgender Rights Program

Dutch Immigration Minister Rita Verdonk’s threat to end a six-month moratorium on deporting lesbian, gay, bisexual, and transgender (LGBT) asylum-seekers back to Iran rests on serious misunderstandings of Iranian law, Human Rights Watch said today in a letter to Verdonk. Deporting LGBT people to Iran would violate the Netherlands’ obligation to protect people from torture, ill-treatment, and possible execution.

The ban on deportations was imposed in September 2005, after reports of executions in Iran for homosexual conduct. In a February 28 letter to the Tweede Kamer (Second Chamber), the main house of parliament, Minister Verdonk declared her intention to end the moratorium. She stated that, “It appears that there are no cases of an execution on the basis of the sole fact that someone is homosexual... For homosexual men and women it is not totally impossible to function in society, although they should be wary of coming out of the closet too openly.”

“Men and women suspected of homosexual conduct in Iran face the threat of execution,” said Scott Long, director of Human Rights Watch’s Lesbian, Gay, Bisexual, and Transgender Rights Program. “We have documented brutal floggings imposed by courts as punishment, and torture and ill-treatment, including sexual abuse, in police custody.”

Article 111 of the Code of Islamic Punishments, Iran’s criminal code, states that lavat – sexual intercourse between men – “is punishable by death.” Under Articles 121-122 of the Penal Code, Tafkhiz – non-penetrative “foreplay” between men – is punishable by 100 lashes for each partner and by death on the fourth conviction. Article 123 of the Penal Code further provides that, “If two men who are not related by blood lie naked under the same cover without any necessity,” each one will receive 99 lashes. Articles 127 to 134 stipulate that the punishment for sexual intercourse between women is 100 lashes; if the offence is repeated three times, the punishment is execution.

“The legal machinery of persecution is oiled, ready, and operating in Iran, and the Netherlands has a binding and absolute legal obligation not to send people back to face it,” said Long.

Human Rights Watch said that the European Convention on Human Rights prohibits the Netherlands from deporting a person who may be at risk of torture, inhuman or degrading treatment or punishment. The European Court last year ruled that the Netherlands could not proceed with a deportation to Eritrea due to such a real risk. The European Court has also held that diplomatic assurances cannot justify returns to countries where torture is “endemic,” or a “recalcitrant and enduring problem.” The United Nations Convention against Torture specifically states, in Article 3, that “No State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It also requires that “for the purpose of determining whether there are such grounds, the competent authorities shall 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.”

Minister Verdonk’s statement has sparked an uproar in the Netherlands, with the opposition calling for a full debate in parliament. In her letter, Minister Verdonk also indicated that religious minorities could avoid persecution in Iran by remaining undercover. “Only when Christians and converted Muslims [in Iran] present themselves with their faith too actively,” the letter said, “can they come to the negative attention of the authorities.”

“Sexual orientation and religious belief are deeply felt parts of the human personality,” said Long. “Silencing oneself is not an acceptable price for staying alive.”