AS TO THE ADMISSIBILITY OF
Application No. 28987/95
by Amaro ZAPATA SALAZAR and Family
against Sweden
The European Commission of Human Rights sitting in private on
7 March 1996, the following members being present:
MM. S. TRECHSEL, President
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
I. BÉKÉS
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 6 October 1995 by
Amaro Zapata Salazar and family against Sweden and registered on
26 October 1995 under file No. 28987/95;
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 7 December 1995, the observations in reply submitted by
the applicants on 10 January and 6 February 1996 and the Government's
additional observations of 12 February 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are a Peruvian family. The husband,
Mr. Amaro Zapata Salazar, was born in 1955, the wife,
Mrs. Cecilia Lopez Espinoza, in 1958 and the children, Rogger, Mario
and Carlos Zapata Lopez, in 1977, 1978 and 1980. All except Rogger are
currently in hiding in Sweden, while Rogger is residing in Peru.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
Mr. Zapata Salazar entered Sweden on 29 July 1992 and requested
asylum on 3 August 1992. In his asylum request he stated that he and
his family had been continuously harassed by representatives of the
Peruvian guerilla organisation Sendero Luminoso ("Shining Path") and
unknown persons, possibly representatives of the Peruvian National
Police. He himself had been working as a farming adviser, helping
cooperatives to sell their products at higher prices without
intermediaries. On 20 February 1989 he had been arrested and assaulted
by unknown persons, as a result of which his right collarbone had been
broken. In August 1989 his wife and his brother had been falsely
accused of illegal penetration of certain premises, but the accusations
had later been withdrawn. In October 1989 a colleague of his had been
assaulted and killed, following which he had left his post.
On 11 June 1992 Mr. Zapata Salazar had allegedly received an
anonymous death threat as a result of a song which he had composed,
named "Basta de tanta violencia" ("Enough of so much violence"). This
threat he had reported to the authorities. He had first left the family
for another area in the Peruvian countryside but, since he had not felt
safe there either, he had gone to stay in Lima. On 11 December 1992
Mrs. Lopez Espinoza had been tortured and raped by four men apparently
because of his activities. After this incident she and the children had
moved in with a relative. On 22 January 1993 the children had received
a written death threat from Sendero Luminoso, stating that "if they
wanted peace, they would die". The children had previously participated
in a competition about peace. Mr. Zapata Salazar had reported the
threat to the authorities and had hired a private security service to
protect the children.
On 14 April 1993 Mrs. Lopez Espinoza and the children entered
Sweden. They requested asylum on 21 April 1993.
On 19 November 1993 the National Immigration Board (statens
invandrarverk) rejected the family's request for asylum. The Board
noted that all family members had left Peru legally, holding valid
passports. None of them had claimed to have been politically active or
subjected to any deprivation of liberty, and they therefore appeared
to have no reason to fear reprisals from the Peruvian authorities on
their return. Moreover, Mr. Zapata Salazar had not asked for asylum
immediately on his arrival in Sweden, and the other family members had
stated on their arrival that they had come to visit Sweden as tourists.
In their appeal to the Aliens Appeals Board (utlänningsnämnden)
the family underlined that they had been harassed also by
police officers. Mr. Zapata Salazar's brother-in-law A, a teenager, had
furthermore been tortured and subjected to sexual violence. They also
referred to Mr. Zapata Salazar's statements to Swedish media and other
actions in Sweden whereby he had criticised the human rights situation
in Peru.
In February 1994 Mr. Zapata Salazar appeared on Swedish
television, referring to the human rights violations which he and his
family had allegedly been subjected to. He was later interviewed by
several Swedish newspapers. In this connection he criticised the human
rights situation in Peru and expressed fears of ill-treatment, should
he and his family be returned there.
In March and April 1994 Mr. Zapata Salazar carried out a hunger
strike during which he again criticised the human rights violations in
Peru for which he held President Fujimori responsible.
On 4 and 11 October 1994 a Peruvian newspaper published articles
about "Peruvian terrorists" on hunger strike in Sweden, attempting to
avoid being expelled back to Peru. The articles did not specify any of
the applicants by name, but named another Peruvian asylum seeker, N.
In November 1994 the applicant family supplemented their appeal
to the Aliens Appeals Board by referring to the above newspaper article
and the fate of N, who had been expelled to Peru in September 1994. He
had allegedly been arrested on his arrival and accused of terrorism.
On 28 November 1994 Mrs. Lopez Espinoza's father was allegedly
interrogated by the Peruvian National Police in regard to the political
activities carried out by Mr. Zapata Salazar in Sweden.
On 28 December 1994 A was allegedly interrogated and again
tortured by the Peruvian National Police. Police officers searched his
home and indicated that Mr. Zapata Salazar was being accused of
terrorism and treason. It appears that A arrived in Sweden shortly
thereafter.
From 22 April to 21 May 1995 Mr. Zapata Salazar carried out a
further hunger strike during which he was brought to hospital for care.
On 23 May 1995 the Aliens Appeals Board rejected the applicant
family's appeal. It noted that in their submissions of 4 February 1994
the family had emphasised that they did not risk persecution by the
Peruvian authorities. Subsequently they had stated, however, that the
Peruvian authorities were considering all hunger striking Peruvian
refugees as "terrorists". Mr. Zapata Salazar's activities in Sweden
could not change the Board's finding that there were no grounds for
granting asylum.
The Aliens Appeals Board further noted that the fear of
ill-treatment expressed by the family was not connected to the Peruvian
authorities. It accepted that grounds for asylum could nevertheless
exist, depending on, for instance, the effectiveness of the protection
afforded by the receiving State and the possibility for someone to find
refuge within his or her own country. The Board did not find any reason
to question the account of the death threats and the physical assaults
to which the family had referred. Nor was there any reason to question
that these actions had been taken by illegal organisations. The Board
noted, however, that Mr. Zapata Salazar had left the countryside for
Lima in June 1992, and that he had not received any death threats after
that. Moreover, the rest of the family had moved in with a relative in
December 1992, and after that they had not received any such threats
either. It was also known to the Board that Peruvian organisations were
assisting persons wishing to relocate within the country.
The Aliens Appeals Board did not question that
Mrs. Lopez Espinoza had been raped in December 1992. It noted, however,
that she had sought psychological treatment already in Peru and that
her mental state had begun to improve already before her arrival in
Sweden.
On 28 May 1995 Mr. Zapata Salazar was allegedly summoned to
appear, on 2 June 1995, before the Anti-Terrorist and Anti-Drug Board
("Dincote") of the Peruvian National Police to face accusations of
treason. The summons referred to his "violent political activities" in
Peru from 1989 to 1992 as well as to his campaigns in Sweden which had
been intended to tarnish the international reputation of Peru by using
the media and by carrying out hunger strikes. The summons was allegedly
handed over to his father-in-law in Peru on 29 May 1995.
On 7 June 1995 the applicant Carlos was caught shoplifting and
later attempted to commit suicide by consuming pills. According to a
medical report of 12 June 1995, Carlos had explained that he had
shoplifted so that he would be put in prison in Sweden and thus not be
returned to Peru. The doctor found, however, that the suicide attempt
had been "half-hearted".
According to the applicants, they were informed of the National
Immigration Board's decision of 25 May 1995 only on 30 May 1995.
On 9 June 1995 the applicant family lodged a further request for
a residence permit on humanitarian grounds, invoking a copy of the
summons of 28 May 1995, which in their view showed that
Mr. Zapata Salazar would incur a risk of torture or extrajudicial
killing, should he be returned to Peru.
The applicant family's further request was rejected by the Aliens
Appeals Board on 26 June 1995. The Board noted, inter alia, that
Mr. Zapata Salazar had not previously claimed to have been "politically
active" in Peru and therefore seriously questioned the contents of the
summons of 28 May 1995. It also noted that he "had not explained why
he had been summoned to the police in these circumstances".
On 13 July 1995 an article in the Swedish socialist newspaper
"Norrskensflamman" voiced suspicions that the Aliens Appeals Board was
systematically informing the Peruvian authorities of its decisions in
regard to asylum claims lodged by Peruvians, although such decisions
were confidential. It was suspected, inter alia, that the Board's
decision of 23 May 1995 in the applicant family's case had immediately
been communicated to the Peruvian authorities. The newspaper found no
other explanation for the issuing of the summons of 28 May 1995.
On 18 August 1995 the applicant family lodged a further request
for a residence permit on humanitarian grounds, now invoking an alleged
warrant of arrest concerning Mr. Zapata Salazar issued on 26 June 1995.
This request was rejected by the Aliens Appeals Board on
21 August 1995, considering, inter alia, that Mr. Zapata Salazar "had
not explained the reasons behind the warrant of arrest".
On 15 October 1995 the applicant Rogger was found by the Swedish
police and detained with a view to being expelled. Having been
requested to co-operate so as to enable the police to enforce the
expulsion order concerning the whole family, he told the police that
he and the rest of his family had decided to separate in order to
obstruct enforcement. He did not appeal against the detention order.
On 16 October 1995 a person requested permission to visit Rogger,
showing the detention centre staff an authority form signed by him.
According to the Government, it was not possible to grant permission
for a visit at the relevant time. The person was therefore recommended
to contact the detention centre by telephone so that a visit could be
arranged somewhat later. The detention centre was not contacted to this
end. Instead the person returned to the centre in the evening of the
same day, leaving a bag for Rogger. According to the applicants,
several persons attempted to visit Rogger during his detention but were
refused permission. The police also refused to indicate to the
applicant family which plane Rogger would be arriving on at the Lima
airport. The family was therefore unable to see to it that he was met
on his arrival there.
On 16 October 1995 a further request for a residence permit on
humanitarian grounds was lodged on behalf of Rogger. Reference was made
to threats which he had received from a Peruvian and purported asylum
seeker, who had been staying in the same refugee centre in the summer
of 1994. This man, allegedly an undercover officer in the Peruvian
police force, had threatened to hand over tapes, photographs and
articles concerning the applicant family's political and cultural
activities to the Peruvian Embassy in Sweden. The man had later
returned to Peru.
On 17 October 1995 the Aliens Appeals Board decided not to stay
enforcement of the expulsion order as far as it concerned Rogger. On
18 October 1995 his expulsion was enforced. According to the
Government, Rogger was accompanied by two Swedish officials throughout
his return to Peru. At Lima airport he passed through the passport and
customs controls without any problems. In Lima the Swedish officials
contacted representatives of a church who promised to help Rogger get
in touch with a humanitarian aid organisation.
On 30 October 1995 the Aliens Appeals Board rejected Rogger's new
request of 16 October 1995, since it could not legally be granted in
view of the enforcement which had already taken place.
On 20 November 1995 the National Immigration Board decided to
stay enforcement of the expulsion order in so far as it concerned the
other family members. The Board also ordered that these applicants
should be detained pursuant to the Aliens Act, if apprehended.
In a letter of 3 January 1996 the non-governmental organisation
"Human Rights Watch/Americas" urged the Aliens Appeals Board not to
expel "Peruvians making credible asylum claims in Sweden". The
organisation expressed particular concern about three Peruvians facing
a possible return to Peru, among them N (see above). These persons
"merit[ed] refugee status and [could] reasonably fear harm, if forced
to return to Peru because of the threat of unfair trial under current
Peruvian anti-terrorism law which depends on a systematic violation of
human rights". An expulsion would therefore put these individuals "in
serious danger".
As regards the case of N, the organisation stated as follows:
"N ... left Peru to begin his studies in the Soviet Union
in 1984, where he remained until 1994. During that time,
several of his family members took part in public political
activities in Peru. A brother, ... , a Peruvian policeman,
took part in protests against police abuses while a sister,
..., was accused of belonging to the Communist Party of
Peru - Shining Path and was killed while incarcerated in
1992. We have documented several cases where individuals
whose family members have taken part in guerilla activities
have themselves been persecuted.
While in Europe, N was accused by the Peruvian Government
of being a member of a Shining Path support network, a
charge N denies. For this crime, N was tried in absentia by
a "faceless court" along with sixty-seven other people.
Meanwhile, N was arrested for being an illegal resident in
Sweden in 1994. At that time he applied for asylum, arguing
that he faced danger in Peru. His petition was denied and
he was forcibly returned to Peru in September, where he was
arrested in the airport.
Beaten by anti-terrorism police, he was then transferred to
a jail in the Palace of Justice, where he was subjected to
further beatings, shortages of food and medical care, and
substandard living conditions. Like other individuals, he
was transferred to a maximum-security prison and subjected
to an extremely punitive prison regime, including
restricted visits with his lawyer and family members and
little to no medical care.
Despite an acquittal on 18 January 1995, N continued to
suffer harassment in Lima. For that reason, N chose to
return to Sweden and reapply for asylum. He now suffers
from lasting pain as a result of beatings by anti-terrorism
police."
Relevant domestic law
According to the 1989 Aliens Act (utlänningslag 1989:529), a
residence permit may be granted to an alien for humanitarian reasons
(chapter 2, section 4, subsection 1 (2)). Up to 1 July 1995 a so-called
new request for a residence permit could only be granted if the
request, lodged by an alien who was to be refused entry or expelled by
a decision which has acquired legal force, was based on new
circumstances and provided the applicant was either entitled to asylum
or there were weighty humanitarian reasons for allowing him or her to
stay in Sweden (chapter 2, section 5, subsection 3). As from
1 July 1995 a new request for a residence permit may be granted if it
is based on new circumstances and provided the applicant is entitled
to asylum, or it would otherwise be in conflict with humanitarian
demands to enforce the decision on refusal of entry or expulsion
(chapter 2, section 5b).
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 or whether there are other special obstacles
to the enforcement of such a decision. Any necessary instructions
regarding the enforcement order shall be given by the Government, the
Aliens Appeals Board or the National Immigration Board in their
decisions (chapter 4, section 12).
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).
If the enforcing authority finds that the enforcement cannot be
carried out or that further information is needed, it shall notify the
National Immigration Board 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).
If an expulsion order or a decision refusing entry contains no
instructions regarding its enforcement or if it is evident that the
instructions cannot be complied with, the enforcing authority shall
decide how to carry out the enforcement, provided it does not proceed
in accordance with chapter 8, section 13 of the Aliens Act (chapter 7,
section 2 of the 1989 Aliens Ordinance (utlänningsförordning
1989:547)).
When considering a new request for a residence permit lodged by
an alien who is to be expelled according to a decision which has
acquired legal force, the National Immigration Board (and in certain
cases also the Government) may stay the enforcement of that decision.
For particular reasons the Board may also otherwise stay enforcement
(chapter 8, section 10). Similarly, the Aliens Appeals Board may decide
to stay the enforcement of a previous expulsion order.
An at least sixteen-year-old alien may be detained if, for
instance, there are reasons to believe that he or she would evade
enforcement of an expulsion order (chapter 6, section 2 of the Aliens
Act). Such a detention order may be appealed against to an
administrative court of appeal and the Supreme Administrative Court
(chapter 7, section 7). A detained alien shall be allowed such
facilities as are permissible with due regard to the order and safety
of the detention premises (chapter 5, section 13 of the Aliens
Ordinance).
COMPLAINTS
Those family members who have not yet been returned to Peru
complain about their forthcoming expulsion to Peru, where they fear
that their personal liberty and lives would be in great peril. They
refer in particular to the wide-scale criticism which Mr. Zapata
Salazar has expressed about the present regime in Peru both before and
after his arrival in Sweden. They stress that he has been composing and
singing for Peruvian farmers, demanding social progress and justice for
the poor. The offence of treason of which he is allegedly now accused
carries a minimum punishment of 20 years' imprisonment.
On behalf of Rogger, the other family members also complain about
his return to Peru and notably the manner in which the expulsion order
was enforced. They consider his detention as part of this enforcement.
No particular Convention provision is invoked.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 October 1995 and registered
on 26 October 1995.
On 26 October 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 those
applicants who still remained in Sweden until the Commission had
examined the application at the latest on 8 December 1995.
The Government's written observations were submitted on
7 December 1995, after an extension of the time-limit fixed for that
purpose.
On 7 December 1995 the Commission prolonged its indication under
Rule 36 until 26 January 1996.
The applicants' observations in reply were submitted on
10 January 1996.
On 25 January 1996 the Commission's indication under Rule 36 was
prolonged until 8 March 1996.
Additional observations in reply were submitted by the applicants
on 6 February 1996 and by the Government on 12 February 1996.
THE LAW
Those family members who have not yet been returned to Peru
complain about their forthcoming expulsion to Peru. On behalf of the
already expelled family member, Rogger, the other applicants complain
about the manner in which his expulsion was enforced.
1. The Commission has first examined whether the return to Peru of
those family members who remain in Sweden would violate Article 3
(Art. 3) of the Convention. This provision 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. The applicants left Peru holding valid passports. On
arrival in Sweden they did not immediately request asylum but stated
that they intended to visit the country as tourists. After their first
request for asylum or a residence permit was rejected they dramatically
changed the account of Mr. Zapata Salazar's political activities in
Peru and the source of the harassment and violence allegedly directed
against them. The Government therefore question the trustworthiness of
the applicants' submissions and the authenticity of the documents
allegedly issued by the Peruvian authorities.
The Government furthermore submit that internal relocation within
Peru is available to many persons in situations similar to that which
the applicants originally claimed that they had been facing in their
country. This well-developed informal mechanism within the
non-governmental human rights community can be used not only if the
applicants fear pressure or reprisals by Sendero Luminoso, but also if
they fear actions initiated by the Peruvian Government. Furthermore,
the applicant Rogger appears to have had no problems either with that
guerilla movement or with the Peruvian Government after his return to
the country. In any case, the guerilla movement has been weakened after
the arrest of its leader in 1992, and it now controls only certain
isolated parts of Peru.
The applicants submit that they have been targeted by the
Peruvian authorities as returning Peruvian asylum seekers. They fear
that the Peruvian National Police must have received knowledge of the
Aliens Appeals Board's decision even before they did, since it issued
a summons already on 28 May 1995. According to reports by human rights
organisations, a significant number of innocent Peruvians are facing
charges of treason. Because of international attention the Peruvian
authorities are now being cautious not to ill-treat returning Peruvians
publicly and the reprisals therefore begin only some time after their
return.
The applicants finally submit that before leaving Peru for Sweden
Rogger had also been performing songs denouncing the mortal violence
against innocent Peruvian civilians. After his return he was allegedly
ill-treated and his mental condition became unstable.
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 by a Contracting State of an asylum seeker may give rise to
an issue under Article 3 (Art. 3) of the Convention, and hence engage
the responsibility of that 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., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., p. 37, para. 111).
The Commission furthermore recalls that the assessment of the
risk of ill-treatment should be made primarily with reference to those
facts which were known or ought to have been known to the respondent
State at the time of the enforcement of an expulsion order. Regard can,
however, also be had to information which has come to light after the
enforcement has taken place, as such information may be of value in
confirming or refuting the appreciation made by the respondent State
or the well-foundedness of the fears of the expelled person (Eur. Court
H.R., Cruz Varas and Others judgment of 20 March 1991, Series A
no. 201, p. 30, para. 76).
(a) In this connection, the Commission notes that the Swedish
immigration authorities have not questioned the account of the
applicants' background in so far as it concerns the actions for which
the applicants hold Sendero Luminoso responsible. The Commission
nevertheless considers that regard must also be had to the lapse of
time since those actions occurred, the current position of Sendero
Luminoso and the undisputed possibility of internal relocation within
Peru. Finally, there is no indication that the applicant Rogger has
been treated contrary to Article 3 (Art. 3) of the Convention following
his return to Peru in October 1995, throughout which he was accompanied
by Swedish officials.
In these circumstances the Commission does not find it
established that there are substantial grounds for believing that those
applicants who have not yet been returned to Peru would, on account of
the treatment to which they may previously have been subjected by
Sendero Luminoso, be exposed to a "real risk" of being subjected to
treatment contrary to Article 3 (Art. 3) in that country, if now
returned there.
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) The Commission has next considered whether these applicants might
run a "real risk" of treatment contrary to Article 3 (Art. 3) emanating
from the Peruvian authorities on account of the alleged treason
accusations against Mr. Zapata Salazar. The Commission notes the
Swedish authorities' doubts as to whether this part of the applicants'
account of their background is a genuine one and as to whether the
documents adduced in support of their appeal to the Aliens Appeals
Board and their subsequent fresh requests for residence permits are
authentic.
The Commission shares the doubts expressed by the Swedish
authorities. It observes, in particular, that the alleged summons and
warrant of arrest concerning Mr. Zapata Salazar were adduced by the
applicants only after their asylum request was finally rejected on
23 May 1995. It also remains open to doubt whether and how they could
have obtained these allegedly authentic documents, although at the time
they were all residing in Sweden. Finally, there is no indication that
applicant Rogger has been treated contrary to Article 3 (Art. 3) of the
Convention following his return to Peru in October 1995, throughout
which he was accompanied by Swedish officials.
It is true that Mr. Zapata Salazar has taken part in hunger
strikes which have been reported in the Peruvian press and that a
Peruvian asylum seeker, N, who had also participated in such a hunger
strike, appears to have been arrested, ill-treated and accused of
terrorism on his return to Peru. However, the Commission notes the
significant differences between Mr. Zapata Salazar's account of his
background in Peru and the background of N, as reported by Human Rights
Watch/Americas. In addition, non-compliance in the receiving State with
the guarantees laid down in Article 6 (Art. 6) of the Convention would
not in itself, and in the absence of special circumstances, make Mr.
Zapata Salazar's return amount to treatment proscribed by Article 3
(Art. 3), even assuming that he might be charged with an offence of a
political character (cf. No. 10308/83, Dec. 3.5.83, D.R. 36, pp. 209
et seq., at p. 232).
Bearing all the above-mentioned circumstances in mind, the
Commission does not find it established that there are substantial
grounds for believing that those applicants who remain in Sweden would,
if returned to Peru, be exposed to a "real risk" of being subjected to
treatment contrary to Article 3 (Art. 3) on account of Mr. Zapata
Salazar's activities.
It follows that this aspect of the complaint must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The Commission considers that an issue might exceptionally arise
under Article 6 (Art. 6) of the Convention in circumstances where the
person to be expelled would risk suffering a flagrant denial of justice
in the receiving country (cf. Eur. Court H.R., Soering judgment of
7 July 1989, Series A no. 161, p. 45, para. 113). The Commission has
therefore also examined whether the return to Peru of
Mr. Zapata Salazar would violate that provision which reads as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly
... .
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficie
nt means to pay for legal assistance, to be given it free
when the interests of justice so require;
d. to examine or have examined witnesses against
him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him;
e. to have the free assistance of an interpreter if
he cannot understand or speak the language used in court."
Referring to its considerations above and particularly to the
different backgrounds of Mr. Zapata Salazar and N, the Commission does
not find that Mr. Zapata Salazar's return to Peru would violate
Article 6 (Art. 6) of the Convention.
It follows that this aspect of the application must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The Commission has next examined whether the already enforced
expulsion of the applicant Rogger violated Article 3 (Art. 3) of the
Convention.
(a) The first question arising is whether Rogger's expulsion violated
Article 3 (Art. 3) on account of the alleged risk of ill-treatment on
his return to Peru.
Referring to their arguments as summarised at point 1 above, the
Government submit that this complaint is also manifestly ill-founded.
The Commission is of the view, in the light of its considerations
above at point 1, that the information which was available to the
respondent Government at the time when Rogger's expulsion was enforced
did not show that he would run a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) on his return to Peru (cf.
No. 16832/90, Dec. 28.5.91, D.R. 69, p. 321).
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) The Commission has next considered whether the enforcement in
itself, including Rogger's preceding detention, caused him a trauma
exceeding the threshold of treatment proscribed by Article 3 (Art. 3)
(cf. the above-mentioned Cruz Varas and Others judgment, p. 31, paras.
83-84).
On this point the Government submit that Rogger did not appeal
against the detention order. In the alternative, they argue that the
complaint is manifestly ill-founded. The enforcement of the expulsion
order was conducted as speedily as possible. Rogger could have received
visits during the official visiting hours provided proper requests to
this end had been made. From an objective point of view he was thus not
placed in isolation. In any case, his detention could have been
avoided, had he and his family accepted to co-operate with the
authorities responsible for enforcing the expulsion order.
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is relative; it depends on all
the circumstances of the case, such as the nature and context of the
treatment, the manner and method of its execution, its duration, its
physical or mental effects and, in some instances, the sex, age and
state of health of the victim (the above-mentioned Cruz Varas and
others judgment, loc. cit.).
Leaving aside the question of possible non-exhaustion of domestic
remedies, the Commission notes that Rogger's alleged isolation lasted
about three days. It has not been shown that his detention was of such
a character that it could raise an issue under Article 3 (Art. 3). The
Commission also notes that Rogger was accompanied by Swedish officials
throughout his return to Peru.
The Commission therefore does not find it established that
Rogger's detention or the manner in which he was returned to Peru
subjected him to treatment contrary to Article 3 (Art. 3) of the
Convention.
It follows that this aspect of the complaint must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
4. The Commission has finally considered whether the enforcement of
the expulsion order as far as it concerned Rogger was in compliance
with Article 8 (Art. 8) of the Convention. This provision reads as
follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Government submit that this aspect of the application is also
manifestly ill-founded. At the time of Rogger's return to Peru all the
other applicants had gone into hiding in order to evade enforcement of
the expulsion order. The applicants have not shown the existence of any
obstacles to continued family life in Peru. In the circumstances of the
case the Swedish Government cannot be held responsible for the
separation of the family.
The Commission considers that the separation of Rogger from the
rest of his immediate family raises the question whether there has been
a lack of respect for his family life. It recalls that the essential
object of Article 8 (Art. 8) of the Convention is to protect the
individual against arbitrary action by public authorities. There may
in addition be positive obligations inherent in effective "respect" for
family life. However, the boundaries between the State's positive and
negative obligations under this provision do not lend themselves to
precise definition.
The applicable principles are nevertheless similar. In both
contexts regard must be had to the fair balance that has to be struck
between the competing interests of the individual and of the community
as a whole. In both contexts the Contracting State enjoys a certain
margin of appreciation. In order to establish the scope of the State's
obligations the facts of the particular case must be considered (e.g.,
Eur. Court H.R., Gül v. Switzerland judgment of 19 February 1996,
para. 38, to be published in Reports of Judgments and Decisions for
1996; No. 23159/94, Dec. 19.5.94, D.R. 77-A, p. 126).
The Commission further recalls that as a matter of
well-established international law and subject to its treaty
obligations, a State has the right to control the entry of
non-nationals to its territory. In the field of immigration Contracting
States enjoy a wide margin of appreciation in determining the steps to
be taken to ensure compliance with the Convention, with due regard to
the needs and resources of the community and of individuals (the
above-mentioned Gül judgment, loc.cit.; Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 28 May 1985, Series A no. 94,
pp. 33-34, para. 67). For instance, insisting on family unity when part
of the family has gone into hiding to avoid the enforcement of an
expulsion order could seriously impede the effectiveness of immigration
control (cf. Cruz Varas and Others v. Sweden, Comm. Report 7.6.90,
para. 101, Eur. Court H.R., Series A no. 201, p. 48).
In the present case the Commission observes that the intention
of the Swedish authorities was to keep the whole applicant family
together during the enforcement of the expulsion order. Having
apprehended Rogger, the enforcing police authority was obliged to
choose between, on the one hand, enforcing the order only in so far as
it concerned him and, on the other hand, releasing him from detention
and awaiting a possible subsequent opportunity to return the applicant
family as a whole.
Recalling its reasoning at point 1 above, the Commission finds
no indication that the applicants were, at the time of Rogger's return,
prevented from pursuing their family life in Peru. Also in view of
Rogger's age and his statement to the police that the whole family
intended to obstruct possible enforcement, the respondent State cannot
be considered to have been obliged under Article 8 (Art. 8) not to
return Rogger to Peru once he had been apprehended and detained under
the Aliens Act for enforcement purposes. Accordingly, there is no
appearance of any lack of respect on the part of the respondent State
in the particular circumstances of this case.
It follows that this complaint must also 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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