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As the Netherlands mulls resuming deportations of lesbian, gay, bisexual, and transgender asylum seekers back to Iran, and Sweden begins such deportations again, both European governments must adhere to their international legal obligations not to send people back to the risk of torture, Human Rights Watch said today.

In letters to Dutch and Swedish authorities, Human Rights Watch said that states cannot return people to countries where they face torture, ill-treatment or death. “As the Ahmedinejad government cracks down on dissent, this is the wrong time for the European governments to be considering new expulsions of gay or lesbian asylum seekers to Iran,” said Scott Long, director of Human Rights Watch’s Lesbian, Gay, Bisexual and Transgender Rights Program. “Penalties for homosexual conduct in Iran range from torture to death. Returning people to the risk of torture would make the Netherlands and Sweden complicit in their fate.”

Both governments imposed a moratorium on the deportation of rejected gay and lesbian asylum seekers to Iran in 2005 after reports of executions there for homosexual conduct. In February 2006, Dutch Immigration Minister Rita Verdonk first declared her intention to end the moratorium, stating 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.”

But after strong protests from Dutch civil society and international human rights organizations, including Human Rights Watch, Verdonk reinstated the ban for six more months, pending a review of conditions in Iran. That review is currently being completed.

Meanwhile, Sweden on September 29 announced that it would resume deporting gay and lesbians fleeing from persecution in Iran. Almost immediately, the Swedish Immigration Department decided to return a gay man to Iran, despite evidence from medical experts that he had previously undergone torture there. The case is under appeal.

Article 111 of Iran’s criminal code, the Code of Islamic Punishments, states that lavat (sexual intercourse between men) “is punishable by death.” Under Articles 121 and122 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 offense is repeated three times, the punishment is execution.

Human Rights Watch has documented torture and executions for homosexual conduct in Iran. Meanwhile, the government of President Mahmoud Ahmedinejad has tightened restrictions on civil society and punishments for dissent in recent months. Executions have increased, including death sentences for morals offenses. Human Rights Watch has received reliable reports that eight women and two men now face death by stoning after they were convicted of adultery.

“Persecution for homosexual conduct in Iran is documented and undeniable,” said Long. “Sending gay and lesbian asylum seekers back to face torture is a clear violation of international law.”

The European Convention on Human Rights prohibits states from deporting individuals to countries where they may be at risk of torture, inhuman or degrading treatment or punishment. Last year, the European Court of Human Rights ruled that the Netherlands could not proceed with a deportation to Eritrea due to such a risk.

The UN Convention against Torture, to which the Netherlands and Sweden are parties, 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.”

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