AS TO THE ADMISSIBILITY OF
Application No. 29482/95
by Jorge Antonio PAEZ
against Sweden
The European Commission of Human Rights sitting in private on
18 April 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 November 1995
by Jorge Antonio Paez against Sweden and registered on 7 December 1995
under file No. 29482/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 28 February, the observations in reply submitted by the
applicant on 10 April 1996 as well as the Government's additional
observations of 17 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Peruvian citizen, born in 1971 and currently
resident in Sweden. He is represented by Mr. Tomas Nilsson, a lawyer
in Stockholm.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties or otherwise
available to the Commission, may be summarised as follows.
The applicant arrived in Sweden on 12 February 1991. On 4 March
he requested asylum, referring to his activities within the banned
opposition movement "Sendero Luminoso" ("Shining Path"). He had become
a member of the movement in July 1990 and had thereafter participated
in distributing political propaganda in support thereof. In August 1990
he had participated in the building of a road block. He had also taken
part in demonstrations and had given speeches in support of the
movement. On 13 November 1990 his closest superior within the movement
had been arrested and a few days later the applicant had been subjected
to an unsuccessful kidnapping attempt. He had then gone into hiding.
Meanwhile, he had been searched for in his home. He had stayed with
friends until his departure from Peru on 10 February 1991. With the
assistance of friends he had left Peru holding a valid passport.
In support of his asylum request the applicant furthermore
submitted that his family had been very active politically. His parents
had been members of leftist movements. His father had been imprisoned
for four years in the 1960's on account of his activities within such
a movement. One of the applicant's cousins, A, had been arrested and
killed by paramilitary troops in July 1989. Another cousin, E, had been
arrested by the police in October 1990 and had since then disappeared.
A further cousin, C, had also lodged a request for asylum in Sweden,
principally referring to her activities within a supporting section of
Sendero Luminoso.
In March 1991 Z, a human rights lawyer engaged in investigating
E's disappearance, received a letter-bomb which blew off one of his
arms. He had previously been threatened to death. He was later granted
asylum in Sweden.
In October 1991 the applicant's mother, L, arrived in Sweden
together with one of her daughters, M. A further daughter, I, arrived
in Sweden in July 1991. In her asylum request L referred to the
kidnappings and disappearances of her nephews A and E in 1989 and 1990,
respectively, which had allegedly been carried out by the Peruvian
paramilitary group "Comando Democratico Rodrigo Franco" ("CDRF").
Having tried to investigate the kidnapping of E, she had been
threatened by members of CDRF. From her husband, who had remained in
Peru, she had learnt that members of CDRF had come to look for her in
August 1991.
On 1 October 1992 C's asylum request was rejected by the Swedish
Government. In November 1992 she lodged an application with the
Commission, alleging that her return to Peru would subject her to
treatment contrary to Article 3 of the Convention. This application was
declared inadmissible as being manifestly ill-founded (No. 20990/92,
Dec. 8.4.93, not published).
On 1 June 1993 the National Immigration Board (statens invandrar-
verk) rejected the applicant's asylum request and ordered his
expulsion. The Board did not question his account of his activities
within "Sendero Luminoso". It considered, however, that his lawful
departure from Peru showed that his activities within the movement had
not become known to the Peruvian authorities. In addition, the Board
considered that, although the applicant had not himself participated
in any serious offences, he had nevertheless been working for an
organisation whose methods were covered by Article 1 F of the 1951
Convention Relating to the Status of Refugees ("the 1951 Convention").
He was therefore in any case not entitled to asylum.
On 16 December 1994 the Aliens Appeals Board (utlänningsnämnden)
decided to refer the applicant's appeal to the Government. In its
opinion to the Government the Board noted that the applicant belonged
to a politically very active and well-known family. It confirmed the
incidents involving his cousins. The Board could not therefore exclude
that the applicant might, on his return to Peru, be persecuted on
account of his and his family's political activities. It therefore
considered that he could claim status as a de facto refugee. The Board
recalled, however, the Swedish Government's decision of principle of
1992 to the effect that asylum seekers who "in one way or another" had
been involved in, inter alia, activities of "Sendero Luminoso" should
not be entitled to asylum. The Board noted that the Government's
decision had been repeatedly criticised.
Before the Government the applicant referred to, inter alia, an
opinion submitted by the Swedish branch of Amnesty International ("AI")
dated 10 May 1995. AI expressed its concern about the fact that the
current human rights situation in Peru was not sufficiently considered
in the Swedish authorities' examination of asylum requests. AI stressed
that no one should be refused asylum on account of having participated
in peaceful activities. AI also stressed that Article 1 F of the 1951
Convention should be interpreted in line with the Handbook on
Procedures and Criteria for Determining Refugee Status of the United
Nations High Commissioner for Refugees ("UNHCR"). AI finally noted that
the applicant's cousin C had obtained refugee status in the Netherlands
after having been recognised as a refugee by the UNHCR.
On 12 October 1995 the Government (the Minister of Labour)
rejected the applicant's appeal, stating as follows:
(translation from Swedish)
"In support of his request for asylum Tapia Paez has stated
that he has been active for the benefit of an organisation
which, according to what is known, has committed repeated
severe crimes of the character referred to in Article 1 F
(a) of [the 1951 Convention]. The protectional provisions
of [that] Convention do not, according to the same Article,
apply to a person who has been active for the benefit of
such an organisation.
The Government share the Aliens Appeals Board's assessment
according to which Tapia Paez is not a refugee within the
eaning of chapter 3, section 2 of the [1989] Aliens Act
[utlänningslag 1989:529]. He must, however, be considered
as having presented weighty grounds within the meaning
of chapter 3, section 1 (3) ... [for his unwillingness to
return to his country of origin on account of the political
situation there]. Accordingly, Tapia Paez in principle
fulfils the requirements for being regarded as a so-called
de facto refugee.
Making an overall assessment, the Government finds, on the
basis of [his] activities for the benefit of the
above-mentioned organisation ..., that there are special
reasons within the meaning of chapter 3, section 4 of the
Aliens Act for not granting [him] asylum. The remaining
grounds invoked [by him] do not constitute any reason for
letting him stay in the country."
Article 1 F (a) of the 1951 Convention reads as follows:
"The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for
considering that:
(a) he has committed a crime against peace, a war crime,
or a crime against humanity, as defined in the
international instruments drawn up to make provision in
respect of such crimes; ..."
The applicant's brother had also requested asylum in Sweden,
referring to activities which he had carried out for the benefit of
Sendero Luminoso. By virtue of a similar decision of the Government
dated 12 October 1995 he, too, was ordered to be expelled. This
expulsion order has not yet been enforced either.
The Government's decisions were reported in Peruvian newspapers.
For instance, on 13 October 1995 the newspaper "Expreso" wrote about
the "terrorists" ordered to be expelled from Sweden. It noted, however,
that the Swedish authorities had not disclosed their identities.
On 21 December 1995 the Government stayed the enforcement of the
expulsion in view of the Commission's decision of 7 December 1995 (see
"Proceedings before the Commission").
On 16 February 1996 the Aliens Appeals Board granted L, M and I
asylum. It noted that the principal reasons advanced by them as to why
they were unwilling to return to Peru were L's attempts to investigate
E's fate; the fact that they came from a family which had been
subjected to persecution by the Peruvian regime; and their fear that
they would be subjected to aggravated political persecution on their
return.
Since it had not been alleged that L's husband, who still
remained in Peru, had been subjected to "problems created by the
authorities or paramilitary groups", the Board regarded the risk that
she and her daughters might be persecuted on their return as uncertain.
They could not therefore be considered refugees within the meaning of
chapter 3, section 2 of the Aliens Act. Making an overall assessment
and giving L, M and I the benefit of the doubt, the Board nevertheless
found that they should be regarded as de facto refugees within the
meaning of chapter 3, section 1 (3), principally because they belonged
to "a well-known family".
The disappearance of E is currently being examined by the
Inter-American Court of Human Rights after referral by the
Inter-American Commission on Human Rights which has requested that the
Court find a number of violations of the American Convention on Human
Rights. According to the complaint before that Court, E was arrested
by agents of the Peruvian National Police in October 1990 and since
then his whereabouts have remained unknown (see, e.g., Press release
CDH-CP 1/96).
B. Relevant domestic law
Under chapter 3, section 1 of the 1989 Aliens Act asylum may be
granted to an alien if, inter alia, he is a refugee (1); or if he,
without being a refugee, is unwilling to return to his country of
origin in view of the political situation there and provided he is able
to present weighty grounds in support of his wish to remain in Sweden
(3). The term "refugee" is defined in chapter 3, section 2.
An alien referred to in chapter 3, section 1 is in principle
entitled to asylum. On special grounds asylum may nevertheless be
refused even if the alien fulfils the criteria set out in, inter alia,
chapter, section 1 (3) (chapter 3, section 4).
When considering whether to refuse an alien entry or to issue an
expulsion order, the authorities must examine, pursuant to chapter 8,
sections 1-4 of the Aliens Act, whether the alien can be returned to a
particular country and whether there are other special obstacles
to the enforcement of such a decision. If necessary, the authorities
must also issue instructions regarding the actual enforcement
(chapter 4, section 12).
In exceptional cases the Government may determine whether or not
an alien should be allowed to remain in the country, provided either
the National Immigration Board or the Aliens Appeals Board has referred
the matter for such consideration. Such a referral may take place,
inter alia, if the matter is deemed to be of special importance for the
purpose of obtaining guidance as to the application of the Aliens Act
(chapter 7, section 11).
If the enforcement meets no obstacles under chapter 8, an alien
is to be expelled or returned to the country of origin or, if possible,
to the country from which he or she came to Sweden. If the decision
cannot be enforced in one of these manners or if special reasons exist,
the alien may be sent to another country (chapter 8, section 5).
COMPLAINT
The applicant complains that his expulsion to Peru would violate
Article 3 of the Convention on account of his political background in
that country. He considers that the activities in which he has been
involved within "Sendero Luminoso" do not constitute such serious
offences as to warrant his exclusion from protection under the 1951
Convention. He insists that he has only been involved in "Sendero
Luminoso" activities as a member expressing its political views.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 November 1995 and registered
on 7 December 1995.
On 7 December 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure. Pursuant to Rule 36 of its Rules
of Procedure, it also decided to indicate to the Government that it
would be desirable in the interests of the parties and the proper
conduct of the proceedings not to enforce the expulsion order
concerning the applicant until the Commission had examined the
application at the latest on 26 January 1996.
On 25 January 1996 the Commission prolonged its indication under
Rule 36 until 8 March 1996.
The Government's written observations were submitted on
28 February 1996, after two extensions of the time-limit fixed for that
purpose.
On 7 March 1996 the Commission's indication under Rule 36 was
prolonged until 19 April 1996.
On 8 March 1996 the applicant was granted legal aid.
The applicant's observations in reply were submitted on
10 April 1996, after an extension of the time-limit fixed for that
purpose.
The Government submitted additional observations on
17 April 1996.
THE LAW
The applicant complains that his expulsion to Peru would violate
Article 3 (Art. 3) of the Convention because he must fear ill-treatment
on account of his political background in that country. He refers, in
particular, to his activities for the benefit of Sendero Luminoso.
Article 3 (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government submit that this complaint is manifestly
ill-founded, since there are no substantial grounds for believing that
the applicant would be subjected to a real risk of torture or other
treatment contrary to Article 3 (Art. 3) on his return to Peru. Whilst
not doubting that he has taken part in certain Sendero Luminoso
activities, the Government consider that he is of no interest to the
Peruvian police. For instance, as stated by himself, he has never been
arrested, prosecuted or sentenced on account of such activities, nor
on account of any other crime or offence committed in Peru.
Furthermore, there is no indication that he would presently be
suspected of any crime committed in Peru. He also holds a valid
Peruvian passport by virtue of which he left his country.
As regards the general human rights situation in the receiving
country, the Government refer to reports of Peruvian human rights
organisations according to which the political violence has decreased
and the extrajudicial killings and disappearances have almost ceased.
Torture of, among others, terrorist suspects still occurs during police
interrogations, but not as a rule. According to the information at the
Government's disposal, a Peruvian citizen, who has been returned to his
country after having been refused asylum, is transported from the
airport of arrival to a detention centre and placed under supervision
of a public prosecutor. According to the Government's sources, the risk
that such a person might be tortured can be significantly limited
because of his placement in such a centre.
The Government furthermore refer to the substantial number of
Peruvian asylum seekers who have arrived in Sweden in the recent years.
A number of these have referred to their membership of or support for
Sendero Luminoso. Some of them have been forcibly returned, while
others have returned voluntarily. The Swedish Embassy in Peru has been
in contact with some of those persons, but there are no substantiated
reports that they would have been ill-treated on their return. In any
case, the applicant will not be placed in a situation worse than that
of Peruvians who have returned voluntarily following the refusal of
their asylum requests.
The Government finally underline that chapter 8 of the 1989
Aliens Act reflects almost exactly the principles outlined by the Court
when applying Article 3 (Art. 3) of the Convention to extradition or
expulsion cases. Were the applicant to invoke new information
indicating an obstacle to the enforcement of the expulsion order, the
authorities might therefore stay enforcement with a view to
reconsidering the matter.
The applicant contends that his application is well-founded. He
recalls that in its referral of his case to the Government the Aliens
Appeals Board could not exclude that he might, on his return to Peru,
be persecuted on account of his and his family's political activities
and that he could therefore claim status as a de facto refugee. The
Government in principle recognised him as a de facto refugee but then
refused him asylum on account of his "activities" within an
organisation known to have carried out serious crimes within the
meaning of Article 1 F (a) of the 1951 Convention. However, no evidence
has been presented to the effect that he himself committed such
offences.
The applicant furthermore submits that the fact that he was able
to leave Peru holding a valid passport is not striking as such. Through
bribery it is possible to obtain a passport without any significant
difficulties. There has been no noticeable improvement in the general
human rights situation in Peru. Allegedly, supporters of the Peruvian
Government are carrying out "espionage" in European countries among
members of Sendero Luminoso who have requested asylum. The publicity
surrounding the Government's decision of 12 October 1995 to refuse him
asylum has led to a dramatic increase of the risk that he might be
subjected to treatment contrary to Article 3 (Art. 3) on his return.
His forthcoming placement in a detention centre pending trial may last
a very long time. He finally recalls that his mother and sisters have
been granted asylum in Sweden, principally because they belong to a
"well-known" family.
The Commission has carried out a preliminary examination of the
application and considers that it raises questions of fact and law of
such a complex nature that their determination requires an
examination of the merits. The application cannot therefore be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for
declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging its
merits.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (S. TRECHSEL)
Full & Egal Universal Law Academy