EGMR

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52. The Court observes, from the outset, that there is a dispute between the parties as to the facts of this case and that the Government have questioned the applicant's credibility and pointed to certain inconsistencies in his story. The Court acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one. It accepts that, as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned. However, in the circumstances of this case, the Court does not share the conclusion of the Government that the information provided by the applicant was such as to undermine his general credibility and it notes that one of the Migration Court's lay judges considered that the applicant had given a credible account of events and that he ought to have been granted asylum. The Court further observes that the applicant has never claimed that he was a member of a political party or of any organisation or association. He has consistently maintained only that he participated in demonstrations to express his opposition to the current Iranian regime and that, following a demonstration in July 2001, he was arrested and tortured by the Iranian authorities. The Court finds that the applicant's basic story was consistent throughout the proceedings and that notwithstanding some uncertain aspects, such as his account as to how he escaped from prison, such uncertainties do not undermine the overall credibility of his story.

53. Firstly, the Court notes that the applicant initially produced a medical certificate before the Migration Board as evidence of his having been tortured (see paragraph 11). Although the certificate was not written by an expert specialising in the assessment of torture injuries, the Court considers that it, nevertheless, gave a rather strong indication to the authorities that the applicant's scars and injuries may have been caused by ill-treatment or torture. In such circumstances, it was for the Migration Board to dispel any doubts that might have persisted as to the cause of such scarring (see the last sentence of paragraph 50). In the Court's view, the Migration Board ought to have directed that an expert opinion be obtained as to the probable cause of the applicant's scars in circumstances where he had made out a prima facie case as to their origin. It did not do so and neither did the appellate courts. While the burden of proof, in principle, rests on the applicant, the Court disagrees with the Government's view that it was incumbent upon him to produce such expert opinion. In cases such as the present one, the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an applicant's injuries may have been caused by torture. The Court notes that the forensic medical report submitted at its request has documented numerous scars on the applicant's body. Although some of them may have been caused by means other than by torture, the Court accepts the report's general conclusion that the injuries, to a large extent, are consistent with having been inflicted on the applicant by other persons and in the manner in which he described, thereby strongly indicating that he has been a victim of torture. The medical evidence thus corroborates the applicant's story.

54. Secondly, it is evident from the information available on Iran (as set out above) that the Iranian authorities frequently detain and ill-treat persons who participate in peaceful demonstrations in the country. The Court notes that it is not only the leaders of political organisations or other high profile persons who are detained but that anyone who demonstrates or in any way opposes the current regime is at risk of being detained and ill-treated or tortured. The Court notes that the applicant has maintained, before the domestic authorities and the Court, that he was arrested with many others when he participated in a demonstration against the regime in July 2001 and that the torture he endured occurred in the months following his arrest. His account, therefore, is consistent with the information available from independent sources concerning Iran.

55. In view of the foregoing, the Court considers that the applicant has substantiated his claim that he was detained and tortured by the Iranian authorities following a demonstration in July 2001. Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to expel any person who, in the receiving country, would run the real risk of being subjected to such treatment (see Saadi, cited above, § 138). The question, therefore, to be considered is whether the applicant would run a real risk of being subjected to such treatment in the event of his return to Iran. Having regard to its finding that the applicant has discharged the burden of proving that he has already been tortured, the Court considers that the onus rests with the State to dispel any doubts about the risk of his being subjected again to treatment contrary to Article 3 in the event that his expulsion proceeds.

56. In assessing such a risk, regard must be had, firstly, to the current situation that prevails in Iran and to the very tense situation in that country where respect for basic human rights has deteriorated considerably following the elections of June 2009 (see paragraphs 31-34). In addition, regard must also be had to the specific risk facing Iranians returning to their home country in circumstances where they cannot produce evidence of their having left that country legally. The Court notes that according to information available from independent international sources (see paragraphs 35 and 36 above) such Iranians are particularly likely to be scrutinised for verification as to the legality of their departure from Iran. The Court observes that the applicant has claimed that he left Iran illegally and that his claim in this regard has not been rebutted by the Government. Therefore, in the light of the information available to the Court, it finds it probable that the applicant, being without valid exit documentation, would come to the attention of the Iranian authorities and that his past is likely to be revealed. The cumulative effect of the above factors adds a further risk to the applicant (see, mutatis mutandis, NA. v. the United Kingdom, no. 25904/07, §§ 134-136, 17 July 2008).

57. Having regard to all of the above, the Court concludes that there are substantial grounds for believing that the applicant would be exposed to a real risk of being detained and subjected to treatment contrary to Article 3 of the Convention if deported to Iran in the current circumstances. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention. [...]