AS TO THE ADMISSIBILITY OF
Application No. 21096/92
by R.P.M.
against Sweden
The European Commission of Human Rights sitting in private on
8 April 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, 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 9 December 1992
by R.P.M. against Sweden and registered on 16 December 1992 under file
No. 21096/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the written observations submitted by the
Government on 22 January 1993 and the applicant's observations in reply
submitted on 23 February 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Peruvian citizen, was born in 1966 and is at
present staying in Sweden. Before the Commission he is represented by
Mr Magnus Lundh, a lawyer practising in Malmö.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
In 1983, following his father's death allegedly caused by police
brutality, the applicant started working in Peru for the organisation
Sendero Luminoso ("Shining Path") by distributing leaflets, painting
slogans and participating in demonstrations.
In 1984 the applicant was called up for military service. In the
armed forces he received training in a unit stationed in Ayacucho and
specialising in finding and interrogating suspected members or
supporters of Sendero Luminoso. Meanwhile, he continued to work for the
organisation, warning it against actions planned by the military.
Following the disappearance of a military friend, also a member
of Sendero Luminoso, the applicant, having asked for his friend's
whereabouts, was arrested for five days and interrogated under torture
regarding his suspected contacts with the organisation.
Having been taken to a hospital the applicant deserted and went
into hiding until August 1988, while continuing to work for Sendero
Luminoso, inter alia by training fighting units.
In 1988 the applicant was informed that he had been convicted in
absentia by a military court and sentenced to six years' imprisonment
for his desertion and contacts with Sendero Luminoso. The organisation
then helped him to leave Peru by obtaining a passport for him.
On 30 August 1988 the applicant left Peru and arrived in the then
Soviet Union together with a group of Peruvian students holding grants
for studies there.
In October 1989 he left for Sweden, as he was no longer allowed
to stay in the Soviet Union.
On 28 October 1989 he arrived in Sweden, where he requested
asylum.
In the subsequent police investigation of his reasons for
requesting asylum the applicant stated that neither his parents nor any
of his four siblings had been punished or escaped from persecution in
Peru. Only he and his father had been politically active. The applicant
was unable to specify his father's activities.
On 2 October 1991 the National Immigration Board (Statens
invandrarverk) refrained from deciding on the asylum request and
referred the matter to the Government in accordance with Chapter 7,
Section 11 of the 1989 Aliens Act (utlänningslag 1989:529). In its
opinion to the Government the Board stated:
(translation from Swedish)
"... It has been known for a long time that Sendero Luminoso has
been instigating heinous violent offences in Peru. The
organisation can be held responsible even for systematic
murdering of individuals. [Its] activities have for a long time
been focused on democratically elected governments. Membership
in and/or activities conducted within Sendero Luminoso shall
therefore not, whatever the political aims, entitle anyone to
stay in Sweden for reasons mentioned in Chapter 3, Section 1,
nos. 1 or 3 of the Aliens Act ..."
On 8 July 1992 the Government rejected the applicant's request
and decided to expel (avvisade) him from Sweden, at the same time
issuing a prohibition on return valid until 1 August 1994.
In their decision the Government stated:
(translation from Swedish)
"In support of his asylum request [the applicant] has claimed to
have been politically active and also to have been sentenced to
imprisonment for having deserted from military service. A refusal
to perform military service does not, in principle, constitute
a reason for the granting of asylum. [The applicant] has been
able to leave [Peru] lawfully, which contradicts [his] assertion
that he is being wanted by the [Peruvian] authorities. Having
regard to, inter alia, the above-stated, the Government consider
that [the applicant] does not run the risk of being persecuted
in [Peru]. He shall not be considered a refugee under Chapter 3,
Section 1, no. 1 of [the Aliens Act].
[The applicant] has been working for an organisation which,
according to what is known, has committed repeated heinous
offences (grova övergrepp) in Peru. Even if [he] has not
participated in such activities he has been working for an
organisation whose methods can be regarded as comprising
activities falling within the scope of Article 1 F of the 1951
Convention relating to the Status of Refugees according to which
refugee status is excluded. Thus, regardless of whether [he] has
put forward such reasons against a return to his home country as
mentioned under Chapter 3, Section 1, no. 3 of the Aliens Act
there would exist particular reasons for not granting him asylum
in Sweden.
...
[The applicant] shall therefore be expelled in accordance with
Chapter 4, Section 1, subsection 1, no. 2 of the Aliens Act and,
in accordance with Chapter 4, Section 14, be prohibited from
returning [before 1 August 1994]."
On 21 July 1992 the applicant's further request for a residence
permit and suspension of the enforcement of the Government's decision
of 8 July 1992 was rejected by the National Immigration Board.
On 8 September 1992 the National Immigration Board rejected the
applicant's further request for a residence permit and suspension of
the enforcement of the Government's decision of 8 July 1992.
The applicant has also referred to a letter of 8 August 1992 to
a representative of Amnesty International in Sweden, written by
Mr. F.A., one of the Peruvians whom the Swedish Government decided to
expel on 8 July 1992 but who then returned to Peru voluntarily. In
this letter, Mr. F.A. stated as follows:
(translation from Swedish)
"... I have now been in Peru for about a month. During this
period I have on several occasions been subjected to harassment
... Two weeks ago two masked men came to my mother's home in the
night, threatened her and the rest of the family and demanded to
be informed of my whereabouts and what I was doing. I was forced
to escape; if they had found me I would surely have been made to
disappear or have been tortured.
... In Quiruvilca ... the village was occupied by military and
police. My brother-in-law is living there. I found out that he
is a member of a trade union. Three soldiers came to ask me who
I was; they thought I was a member of the revolutionary movement
TUPAC AMARU (MRTA). When we refused to let them in ... they
started shooting outside ...
... The army is responsible for barbaric acts committed against
defenceless farmers. I saw 90 soldiers invading a small village
called El Hospital. Many people were massacred, the soldiers
stole the animals and destroyed the houses. 60 soldiers raped a
woman during a whole night until 5 a.m., when they left her half-
naked in a small pond following which they killed her. They
caught a small boy, tortured him by hanging him by his testicles
and finally killed him. A farmer named Ramos was present when
this happened; he has no connection with the guerilla, but they
tortured him (probably he was also raped), they stole his money,
killed his animals and forbade him to harvest ...
The military thinks everybody are terrorists ... Now I can prove
all this, but I am in great danger as the intelligence service
(servicios de intelligencia) is after me. They are afraid that
I will report the barbaric acts committed by the military on
President Fujimori's order.
When I was in Sweden I did not believe what was said about Peru.
I was totally surprised by all this. The newspapers do not write
anything about what is happening in the Peruvian mountains.
... I request you to help me leave Peru because my life is in
great danger ..."
One of the applicant's brothers was allegedly reported
"disappeared" for eighteen years, but was found in 1990. In 1991 he was
arrested by the security police, but managed to escape to Sweden, where
he requested asylum.
The applicant's second brother allegedly "disappeared" in
June 1990.
The applicant's mother has on several occasions been interrogated
by police and military officials searching for the applicant.
Relevant domestic law
Under Chapter 3, Section 1, an alien may be granted asylum
because he is a refugee (no. 1) or, without being a refugee, if he
wishes not to return to his home country because of the political
situation there and provided he can put forward weighty reasons in
support of his wish (no. 3).
The term "refugee" refers to an alien who is staying outside the
country of which he is a citizen because he feels a well-founded fear
of being persecuted in that country, having regard to his race,
nationality, belonging to a special group in society or his religious
or political convictions, and who cannot or does not wish to avail
himself of his home country's protection (Chapter 3, Section 2).
An alien as referred to in Chapter 3, Section 1 is entitled to
asylum. Asylum may, however, be refused inter alia if, in the case of
an alien falling under Chapter 3, Section 1, no. 3, there are special
grounds for not granting asylum (Chapter 3, Section 4).
An alien may be refused entry into Sweden if he lacks a visa,
residence permit or other permit required for entry, residence or
employment in Sweden (Chapter 4, Section 1, no. 2).
When considering whether to refuse an alien entry or to expel him
it must be examined whether he, pursuant to Chapter 8, Sections 1-4,
can be returned to a particular country or whether there are other
special obstacles to the enforcement of such a decision (Chapter 4,
Section 12).
A refusal of entry issued by the National Board of Immigration
may be combined with a prohibition on return for a specific period of
time (Chapter 4, Section 14). In refusing entry the Government, too,
may issue a prohibition on return for a specific period of time
(Chapter 7, Section 5, subsection 2).
Under Chapter 7, Section 10 the National Board of Immigration may
review its decision, if new circumstances have emerged or for any other
reason, provided it would not affect the alien negatively or be
irrelevant to him. A review may take place even if an appeal has been
lodged against the Board's decision. If the Board has handed over the
file to the Government it may only review its decision, provided its
opinion is requested by the Government.
The National Board of Immigration may, for special reasons, refer
a request for asylum to the Government together with its opinion on the
matter (Chapter 7, Section 11).
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe
that he would be in danger of being subjected to capital or corporal
punishment or torture, nor to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal-of-entry or expulsion order is put into effect,
the alien may not be sent to a country where he would risk being
persecuted, nor to a country where he would not be protected from being
sent on to a country where he would risk being persecuted (Chapter 8,
Section 2, subsection 1). An alien may, however, be sent to a country
as referred to in subsection 1 if he cannot be sent to any other
country and if he has shown, by committing a particularly serious
offence, that public order and safety would be seriously endangered by
his being allowed to remain in Sweden. This does not apply if the
persecution threatening him in the other country implies danger to his
life or is otherwise of a particularly grave nature. Similarly, the
alien may be sent to a country referred to in subsection 1 if he has
engaged in activities endangering the national security of Sweden and
if there is reason to suppose that he would continue to engage in such
activities in Sweden and he cannot be sent to any other country
(subsection 2).
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry
or who is to be expelled is to be sent to his country of origin or, if
possible, to the country from which he came to Sweden. If the decision
cannot be put into effect in the manner indicated in subsection 1 or
there are other special grounds for doing so, the alien may be sent to
some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an
alien to be expelled according to a decision which has acquired legal
force, the National Board of Immigration (and in certain cases also the
Government) may stay execution of that decision. For particular reasons
the Board may also otherwise stay execution (Chapter 8, Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed, the authority is to
notify the National Board of Immigration accordingly. In such a case,
the Board may decide on the question of enforcement or take such other
measures as are necessary (Chapter 8, Section 13).
Under the 1991 Ordinance on Residence Permits in Certain Cases
(förordning 1991:1999 om uppehållstillstånd i vissa utlänningsärenden)
an alien who has been staying in Sweden for more than eighteen months
on 1 January 1992 may be granted a residence permit unless there are
special reasons for not granting such a permit. The Ordinance entered
into force on 1 February 1992.
COMPLAINT
The applicant complains that, if returned to Peru, he would be
subjected to treatment contrary to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 December 1992 and registered
on 16 December 1992.
On 16 December 1992 the President of the Commission decided,
pursuant to Rule 36 of the Commission's Rules of Procedure, that it was
desirable in the interest of the parties and the proper conduct of the
proceedings not to return the applicant to Peru until the Commission
had had an opportunity to examine the application.
The President further decided, pursuant to Rule 34 para. 3 and
Rule 48 para. 2(b), to bring the application to the notice of the
respondent Government and to invite them to submit written observations
on its admissibility and merits.
On 15 January 1993 the Commission decided to prolong the
indication under Rule 36 until 19 February 1993.
The observations by the Government were submitted on
22 January 1993.
On 19 February 1993 the Commission prolonged its indication under
Rule 36 until 8 April 1993.
On 23 February 1993 the applicant submitted his observations in
reply.
THE LAW
The applicant complains that, if returned to Peru, he will be
subjected to treatment contrary to Article 3 (Art. 3) of the
Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government argue that the application is manifestly ill-
founded for the following reasons.
As regards the general situation in Peru the Government are aware
of the information obtained by Amnesty International and other human
rights organisations. However, there have been no indications of
torture or similar treatment in connection with the arrest and trial
of the leader of Sendero Luminoso, Abimael Guzmán, or any of the other
persons arrested together with him. The general opinion among people
interested in human rights in Peru today appears to be that the special
police force entrusted with the task of arresting Sendero Luminoso
activists suspected of having committed crimes is anxious to avoid
accusations or suspicions of being responsible for ill-treatment of
detainees.
Furthermore, according to a new Act (Ley de Arrepentimiento),
which entered into force in May 1992, members of Sendero Luminoso
suspected of having taken part in terrorist acts and who surrender
themselves to the Peruvian authorities, may get a mitigation of their
sentence. Under this Act such individuals may get assistance when
returning to ordinary life in society, by means of a new identity, a
new place to live and new employment.
Concerning the applicant's case, the Government argue that there
are no substantial grounds for believing that he would run a real risk
of being subjected to torture or other forms of ill-treatment. His
allegation that he has been sentenced to imprisonment in Peru inter
alia for evading military service is not confirmed by any kind of
evidence. According to the accepted procedures for determination of
refugee status, as reflected also in the Handbook on Procedures and
Criteria for Determining Refugee Status published by the Office of the
United Nations High Commissioner for Refugees, it is a general
principle that the burden of proof lies on the person submitting a
claim. He should make an effort to support his statements by any
available evidence and give a satisfactory explanation for any lack of
evidence. If necessary, he must make an effort to produce additional
evidence. In the present case, however, the applicant stated in the
investigation of the reasons behind his asylum request that he did not
intend to make any efforts to adduce evidence about his alleged prison
sentence.
The Government submit that even assuming that the applicant's
prison sentence could be confirmed, such a sentence does not in itself
constitute a sufficient reason for refraining from expelling him. The
applicant was able to leave Peru with a valid passport and together
with a group of scholarship holders appointed by the Peruvian
Government. He obtained a prolongation of his passport at the Peruvian
Embassy in Moscow. The applicant has not made it credible that the
police authorities would have reason to arrest him today, or that he
would be of any interest to the police authorities in Peru for any
reason other than his evading military service. He has not adduced any
evidence or otherwise made it credible that he is wanted by the
authorities in Peru because of his political activities or similar
reasons.
The Government finally recall that some of those asylum seekers
who were refused residence permits and whose expulsion was decided on
the same day as the applicant's have returned to Peru voluntarily. None
of those have, however, been reported arrested.
The applicant refutes the Government's arguments. As regards the
general situation in Peru he points out that the Peruvian Government
have made thousands of people disappear or have executed them without
a trial, or tortured them since the Armed Forces took responsibility
for counter-insurgency operations in December 1992.
The present case is in the applicant's view distinguishable from
that of Vilvarajah and Others v. the United Kingdom (Eur. Court H.R.,
judgment of 30 October 1991, Series A no. 215). Unlike the situation
in Sri Lanka the situation in Peru has not improved. As the applicant
has been an active member of Sendero Luminoso his situation is worse
than that of Peruvians in general. The applicant must be considered to
be known by the Peruvian authorities and would therefore run a great
risk of being extra-judicially executed or "disappearing".
The applicant admits that he left Peru with a valid passport
which he had renewed while living in the Soviet Union. It cannot be
ruled out, however, that a person wanted by the Peruvian authorities
or suspected of being a member of Sendero Luminoso could obtain a
passport of that country, as only very few persons are so well-known
and widely sought for that they would be prevented from leaving the
country. Asylum seekers often face considerable difficulties in
presenting evidence regarding both alleged persecution and their
potential treatment upon their return to a country. According to the
Handbook on Procedures and Criteria for Determining Refugee Status "the
duty to ascertain and evaluate all the relevant facts is shared between
the applicant and the examiner [of his asylum request]." In certain
cases the applicant should be given "the benefit of the doubt"
(paras. 196-197).
The applicant recalls that he went into hiding already in 1984,
following which he lost touch with his family. As he never contacted
any of the then existing human rights organisations in Peru, they know
nothing about him. Once a person has "disappeared" it is extremely
difficult to obtain any information about him from the Peruvian
authorities.
The applicant further points out that the fate of his brothers
is corroborated by public statements, newspaper cuttings and letters.
The applicant finally refers to the letter by Mr. F.A., who may have
been ill-treated upon his return. His case is under investigation by
Amnesty International.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102).
However, expulsion of an asylum seeker may give rise to an issue
under Article 3 (Art. 3) of the Convention, and hence engage the
responsibility of a Contracting State under the Convention, where
substantial grounds have been shown for believing that the person
concerned would face a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the country to which
he is to be expelled (ibid., p. 34, para. 103). A mere possibility of
ill-treatment is not in itself sufficient in this context (ibid., p.
37, para. 111).
The Commission considers that the evidence before it concerning
the applicant's background and the general situation in Peru does not
establish that there are substantial grounds for believing that the
applicant would be exposed to a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if returned
to Peru. In reaching this conclusion the Commission notes the
following.
No evidence such as a warrant of arrest or a summons to appear
before authorities in Peru has been submitted by the applicant. Nor
does it appear from the material in the case file that the applicant
would be of special interest to the Peruvian authorities. Thus, the
allegation that he is wanted has remained unsubstantiated. Furthermore,
the evidence before the Commission concerning the applicant's
background and the general situation in Peru does not establish that
his personal situation is any worse than that of those Peruvians who
have returned voluntarily to their home country following the refusal
of asylum (ibid., p. 37, para. 111).
The Commission also attaches importance to the fact that the
Swedish authorities appear to have gained a considerable experience in
evaluating claims of the present nature by virtue of the large number
of Peruvian asylum seekers in Sweden. It notes that residence permits
have in fact been granted in numerous cases. Moreover, it should be
noted that the authorities are obliged to consider basically the same
factors as are relevant to the Convention organs' assessment under
Article 3 (Art. 3) of the Convention. The Government's decision of
8 July 1992 was furthermore made after careful examination of the
applicant's case (cf. Eur. Court H.R., Cruz Varas and Others judgment
of 20 March 1991, Series A no. 201, p. 31, para. 81).
The Commission in particular observes that Chapter 8, Section 1
of the Aliens Act imposes an absolute obligation on the enforcing
authority in Sweden to refrain from expelling an alien, should the
evolution of the human rights situation in the receiving country
constitute firm reason to believe that he would be in danger of being
subjected to capital or corporal punishment or torture in that country.
In these circumstances the Commission cannot find that
substantiated grounds have been established for believing that the
applicant would be exposed to a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention on his
return to Peru (cf. No. 20547/92, D. and Others v. Sweden, Dec.
15.2.93; No. 20809/92, C.M. v. Sweden, Dec. 15.2.93).
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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