March 8, 2006
Mrs. drs. M.C.F. Verdonk
Minister of Alien Affairs and Integration
Ministry of Justice
P.O. Box 20301
On behalf of Human Rights Watch, I am writing to protest your proposal to lift the existing moratorium on the deportation of gay and lesbian asylum seekers to Iran--and to object in the strongest possible terms to any actual resumption of expulsions of gay and lesbian asylum seekers to Iran. The stated grounds for your proposal, as reflected in your letter of February 28, 2006 to the Tweede Kamer, indicate a profound misunderstanding of the legal situation of homosexual conduct in Iran. Deportations of lesbian, gay, bisexual, or transgender asylum-seekers to Iran would violate Dutch government’s obligations to people facing torture or execution in their country of origin. We are particularly concerned that Human Rights Watch’s findings in a particular case appear to have been used to make a sweeping, and inaccurate, analysis of the legal penalties for homosexual conduct in Iran in general.
In your letter, purportedly based on an investigation by the Foreign Ministry, you state that “It appears that there are no cases of an execution [in Iran] 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.” You predicate this generalization in large part on the fact that while initial accounts suggested that two young men executed in the city of Mashhad on July 19 were killed for the crime of lavat or consensual sodomy, later and more detailed reports raised the possibility that they had been convicted for an assault on a minor. To found a decision which could affect—and end—the lives of an unknown number of asylum-seekers on a single uncertain case, rather than a full examination of the existing penalties in legislation and in practice, is irresponsible.
Within the region, Iran is distinguished by the overt severity of the penalties it imposes on consensual, adult homosexual conduct. “Sodomy” or lavat—consummated sexual activity between males, whether penetrative or not—is punishable by execution, regardless of whether the partner is passive or active. (Article 111 of the Code of Islamic Punishments or Penal Code states that “Lavat is punishable by death so long as both the active and passive partners are mature, of sound mind, and have acted of free will.”) Tafkhiz (the rubbing together of thighs or buttocks or other forms of non-penetrative “foreplay” between men) is punishable by one hundred lashes for each partner, according to Articles 121-122 of the Penal Code. Recidivism is punishable by death on the fourth conviction. In addition, 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 ninety-nine lashes. Articles 127 to 134 stipulate that the punishment for sexual intercourse between women is one hundred lashes and if the offence is repeated three times, the punishment is execution. 1
Consistent with Islamic law and Quranic tradition, Iran’s Penal Code requires that sodomy will be considered proven if the accused person reiterates a confession to the act four times or if four “righteous men” testify that they have witnessed the act. Yet the Code also offers a way of circumventing this titular high standard of evidence. Judges may lodge a conviction for sodomy based on “the knowledge of the judge,” in practice allowing a wide range of circumstantial evidence to be adduced as proof. Furthermore, the practice of torture is prevalent in Iran, and the practice of torturing prisoners to extract confessions is common. Forced confessions are openly accepted as evidence in criminal trials. In June 2002, Iran’s Council of Guardians—a committee of twelve senior clerics—vetoed a bill which had been passed by the Majlis (Parliament) which would have placed certain restrictions on the use of torture and would have limited the judicial use of confessions obtained under duress. Even that bill provided inadequate protections against torture; it would have set no limit, for instance, on the length of time that a person could be detained incommunicado, and would have exempted altogether from its protections certain categories of arrestees, including Mohareb (people at war with God), a general category for dissidents or moral offenders which could also be interpreted to include homosexuals.The refusal of Iran’s government to enact even rudimentary safeguards against torture sent a clear message that confessions can be obtained from arrestees by any means. In word and deed, that government has also continued to stigmatize certain categories of arrestees as undeserving of even the most minimal protections.
As is well known, Ayatollah Ruhollah Khomeini called for homosexuals to be extirpated as “parasites and corruptors of the nation” who “spread the stain of wickedness.” In a further sign of the general judicial attitude to homosexual conduct, Ayatollah Musavi-Ardebili, at the time the head of the Supreme Council of Judiciary, said in a sermon delivered in 1990 at Teheran University: “For homosexuals, men or women, Islam has prescribed the most severe punishments… Do you know how homosexuals are treated in Islam? After it has been prov[en] on the basis of Shari’ah, they should seize him [or her]…they should keep him standing, they should split him in two with a sword, they should either cut off his neck or they should split him from the head. He will fall down. They get what they deserve” (BBC Monitoring, 21 May 1990).
In such an environment, it can reasonably be affirmed that the death penalty for lavat is not merely a paper punishment in Iran: it is enforced. Trials on morals charges in Iran are held in camera, and international outrage over the frequency of executions (Iran has the highest rate of executions per capita in the world) has led the government to exercise tight controls over press reporting of the death penalty. For these reasons, confirming the frequency of executions for lavat is effectively impossible. However, as reported by the newspaper Etemad (25 Esfand 1383/15 March 2005), two men were sentenced to death by the Teheran Criminal Court earlier this year, after the wife of one of the men discovered a videotape of the two engaging in homosexual acts. She lodged a complaint with the court, leading to the men’s arrest and trial. Similarly, on November 13, 2005, the semi-official Tehran daily Kayhan reported that the Iranian government publicly hung two men, Mokhtar N. (24 years old) and Ali A. (25 years old), in the Shahid Bahonar Square of the northern town of Gorgan. The government reportedly executed the two men for the crime of lavat.
Other reports show extensive police surveillance as well as torture of men suspected of homosexual conduct.
- In September 2003, police arrested a group of men at a private gathering in one of their homes in Shiraz and held them in detention for several days. According to Amir, one of the men arrested—whom Human Rights Watch was able to interview after the event--police tortured the men to obtain confessions. The judiciary charged five of the defendants with “participation in a corrupt gathering” and fined them.
- In June 2004, undercover police agents in Shiraz arranged meetings with men through Internet chatrooms and then arrested them. Amir was again arrested and held in detention for a week, during which time police repeatedly tortured him. The judicial authorities in Shiraz sentenced him to 175 lashes, 100 of which were administered immediately. Following his arrest, security officials subjected Amir to regular surveillance and periodic arrests. From July 2005 until he fled the country later in the year, police threatened Amir with imminent execution.
Human Rights Watch is deeply disturbed by your assumption that simply keeping one’s sexuality covert and one’s selfhood hidden is a safe and acceptable response to the likelihood of persecution. It is an assumption mirrored by your statement, in the same letter, that “Only when Christians and converted Muslims [in Iran] present themselves with their faith too actively can they come to the negative attention of the authorities.” Both sexual orientation and religious belief are deeply felt and central aspects of the human person. No one should be expected to conceal them simply in order to stay alive. Such silencing is not a recourse from persecution: it is itself persecution. It is embarrassing for a high official of the Dutch government to endorse the notion that those who fear to speak out under the threat of death, can still be called free.
You are undoubtedly aware that a fundamental obligation rests upon the Netherlands not to return asylum-seekers to countries where they face the real risk of torture or execution. 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. In Said v Netherlands (Application no. 2345/02, judgment of July 5, 2005, confirmed by the Grand Chamber on October 5, 2005) the European Court specifically reminded the Dutch government that:
the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 33-34).”
The Court went on to rule that the deportation of the applicant to Eritrea by the Dutch government would be a violation of the absolute prohibition under Article 3 of the ECHR.”
The European Court has further held that diplomatic assurances cannot justify returns to countries where torture is “endemic,” or a “recalcitrant and enduring problem.” (See Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V).
As you also know, the Netherlands is also a party to the United Nations Convention Against Torture which 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.”
Finally, we would also recall that the United Nations High Commission for Refugees has repeatedly urged states to recognize people facing persecution because of their sexual orientation as protected under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Refugee Convention). These require that no state “shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The UNCHR has declared “that persons facing attack, inhumane treatment, or serious discrimination because of their homosexuality,and whose governments are unable or unwilling to protect them, should be recognized as refugees" (UNHCR/PI/Q&A-UK1.PM5/Feb. 1996). We urge you to fulfill the moral and legal obligations upon your government by withdrawing this proposal.
Director, Lesbian, Gay, Bisexual, and Transgender Rights Program
Human Rights Watch
 Research by Anna Enayat, Senior Associate member at St. Antony’s College, Oxford, contributed substantially to Human Rights Watch’s analysis of legal conditions surrounding sexual offenses in Iran.