Human Rights

• Author: International Law Group

Hoda Jabari, a citizen of Iran, is now living in Istanbul, Turkey. Afraid of being convicted for adultery, she had become a fugitive from Iran in 1997. Adultery is a serious offense in Iran with a potential sentence of stoning to death or flogging. Illegally in Turkey, she attempted to fly from Istanbul to Canada through France using a forged Turkish passport. The Paris police, however, sent her back to Istanbul. At the Istanbul airport, police arrested Jabari and authorities ordered her deportation to Iran.

She then sought asylum in Turkey but her petition failed because she had not filed it within five-days of her arrival in Turkey. The U.N. Human Rights Commission branch office in Ankara granted her refugee status in February 1998. Two months later, however, the Ankara Administrative Court dismissed her petition to avoid deportation as untimely. It ruled that no obvious illegality tainted her deportation and that sending her back to Iran would not cause her irreparable harm.

Jabari then filed an application with the European Commission of Human Rights in February 1998 which the Commission found to have been partly admissible in October 1999. Before the European Court of Human Rights, a Chamber of seven judges heard Jabari's application.

Applicant contended that her deportation to Iran would violate Article 3 of the European Convention on Human Rights (B. Carter and P. Trimble, 1999-2000 Int'l Law Sel. Docs. at 472). It provides that: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." (Id. at 473) She also relied upon Article 13 which states: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." (Id. at 476)

In the Court's view, the fundamental nature of Article 3 rights requires it to rigorously...