Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29482/95

Jorge Antonio Paez

against

Sweden

REPORT OF THE COMMISSION

(adopted on 6 December 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-58). . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The particular circumstances of the case

(paras. 17-34) . . . . . . . . . . . . . . . . . . . . . . 4

B. The evidence before the Commission

(paras. 35-51) . . . . . . . . . . . . . . . . . . . . . . 7

i. The United Nations Committee against Torture

(para. 36) . . . . . . . . . . . . . . . . . . . . . 8

ii. The Peruvian Government's report to

the United Nations Economic and Social

Council (para. 37) . . . . . . . . . . . . . . . . . 9

iii. The United Nations High Commissioner

for Refugees (para. 38). . . . . . . . . . . . . . .11

iv. The United Nations Human Rights

Committee (para. 39) . . . . . . . . . . . . . . . .12

v. Human Rights Watch (paras. 40-43). . . . . . . . . .12

vi. Amnesty International (para. 44) . . . . . . . . . .14

vii. The State Department of the

United States of America (para. 45). . . . . . . . .15

viii. The Peruvian press (paras. 46-47). . . . . . . . . .16

ix. The resurgence of violent Sendero Luminoso

activities (para. 48). . . . . . . . . . . . . . . .17

x. The case of Mr. Castillo Paez before the

Inter-American Commission and Court of

Human Rights (paras. 49-51). . . . . . . . . . . . .17

TABLE OF CONTENTS

Page

C. Relevant domestic law

(paras. 52-56) . . . . . . . . . . . . . . . . . . . . . .18

D. The 1951 Convention Relating to the Status

of Refugees

(paras. 57-58) . . . . . . . . . . . . . . . . . . . . . .18

III. OPINION OF THE COMMISSION

(paras. 59-84). . . . . . . . . . . . . . . . . . . . . . . . .20

A. Complaint declared admissible

(para. 59) . . . . . . . . . . . . . . . . . . . . . . . .20

B. Point at issue

(para. 60) . . . . . . . . . . . . . . . . . . . . . . . .20

C. As regards Article 3 of the Convention

(paras. 61-83) . . . . . . . . . . . . . . . . . . . . . .20

CONCLUSION

(para. 84) . . . . . . . . . . . . . . . . . . . . . . . .24

DISSENTING OPINION OF MM. S. TRECHSEL, I. CABRAL BARRETO,

N. BRATZA AND M. VILA AMIGÓ . . . . . . . . . . . . . . . . . . . . .25

DISSENTING OPINION OF Mr. J-C. GEUS, JOINED BY MRS. J. LIDDY

and MM. A.S. GÖZÜBÜYÜK, A. WEITZEL, I. BÉKÉS, J. MUCHA

AND A. PERENIC. . . . . . . . . . . . . . . . . . . . . . . . . . . .26

DISSENTING OPINION OF MM. F. MARTINEZ, M.A. NOWICKI

AND B. CONFORTI . . . . . . . . . . . . . . . . . . . . . . . . . . .29

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . .30

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Peruvian citizen, born in 1971 and currently

resident in Sweden. He was represented before the Commission by Mr. Tomas

Nilsson, a lawyer in Stockholm.

3. The application is directed against Sweden. The respondent

Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona

of the Ministry for Foreign Affairs.

4. The case concerns the applicant's impending expulsion to Peru. He

invokes Article 3 of the Convention.

B. The proceedings

5. The application was introduced on 16 November 1995 and registered

on 7 December 1995.

6. On 7 December 1995 the Commission decided, pursuant to Rule 48 para.

2 (b) of its Rules of Procedure, to give notice of the application to the

respondent Government and to invite the parties to submit written

observations on its admissibility and merits. Pursuant to Rule 36 of its

Rules of Procedure, the Commission 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's indication was prolonged until 8 March 1996.

7. The Government's 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.

8. 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.

9. On 18 April 1996 the Commission declared the application admissible

and prolonged its indication under Rule 36 until further notice.

10. The text of the Commission's decision on admissibility was sent to

the parties on 22 April 1996 and they were invited to submit further

observations on the merits. Such observations were submitted by the

applicant on 9 and 22 May 1996 and by the Government on 20 May 1996.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance

of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

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

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

13. The text of this Report was adopted on 6 December 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention,

is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant arrived in Sweden on 12 February 1991. On 4 March 1991

he requested asylum, referring to his activities within the armed

opposition group Partido Comunista del Perú - Sendero Luminoso (Communist

Party of Peru - Shining Path; hereinafter "Sendero Luminoso"). 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.

18. 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, Mr. Ernesto Castillo

Paez, had been arrested by the police in October 1990 and had since then

disappeared. A further cousin, Ms. Monica Castillo Paez, had also lodged

a request for asylum in Sweden, principally referring to her activities

within a supporting section of Sendero Luminoso.

19. In March 1991 Z, a human rights lawyer engaged in investigating the

disappearance of Mr. Castillo Paez received a letter-bomb which blew off

one of his arms. He had previously been threatened with death. He was

later granted asylum in Sweden.

20. 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 Mr. Castillo Paez 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 Mr. Castillo Paez, 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.

21. On 18 June 1992 the National Immigration Board (Statens

invandrarverk) refused L, M and I asylum. The Board noted, in particular,

that on two occasions I had left Peru and returned there without

encountering any problems. The alleged persecution by CDRF could not be

considered proven. Finally, the parents of Mr. Castillo Paez were still

alive and the father had not considered his security jeopardised. L, M

and I appealed to the Aliens Appeals Board (Utlänningsnämnden).

22. On 1 October 1992 Ms. Castillo Paez was refused asylum 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).

23. On 1 June 1993 the National Immigration Board 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 not entitled to asylum.

24. On 18 August 1994 the Regional Office of the United Nations High

Commissioner for Refugees ("UNHCR") stated, as regards L's appeal before

the Aliens Appeals Board, as follows:

"... [L] seems to have given a clear account of her

experiences in her country of origin and the reasons for her

departure. The fact that her daughter, [I], has left the

country legally on two occasions should not discredit her

claim. According to information available to UNHCR it is

possible to obtain a passport and leave the country legally by

bribing the relevant officials even if the person concerned

fears difficulties for example because of political activities

directed against the authorities. ..."

25. On 16 December 1994 the Aliens Appeals Board decided to refer the

applicant's appeal to the Government. In its opinion to the Government

the Board noted that he belonged to a politically very active and

well-known family. It confirmed the incidents involving his cousins. The

Board could not 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 nevertheless noted that the

Government's decision had been repeatedly criticised.

26. Before the Government the applicant referred to an opinion submitted

by the Swedish branch of Amnesty International dated 10 May 1995. The

organisation expressed its concern about the fact that the current human

rights situation in Peru was not sufficiently taken into account in the

Swedish authorities' examination of asylum requests. Amnesty

International furthermore stressed that no one should be refused asylum

on account of having participated in peaceful activities. 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. Amnesty International finally

noted that the applicant's cousin, Ms. Castillo Paez, had obtained

refugee status in the Netherlands after having been recognised as a

refugee by the UNHCR.

27. 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 [the applicant] 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 [the applicant] is not a refugee within the

meaning 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, [the applicant] 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."

28. 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.

29. The Government's decisions of 12 October 1995 were reported in

Peruvian newspapers. For instance, on 13 October 1995 the newspaper

"Expreso" wrote about the Sendero Luminoso "terrorists" ordered to be

expelled from Sweden. It noted, however, that the Swedish authorities had

not disclosed their identities.

30. On 30 November 1995 the Swedish branch of Amnesty International

intervened in the proceedings before the Aliens Appeals Board on behalf

of L, reiterating its previously expressed concerns regarding her case.

It added that the disappearance of her nephew, Mr. Castillo Paez, was

under investigation by the Inter-American Commission of Human Rights.

This fact in itself naturally meant that the Peruvian authorities'

interest in L and her family had increased rather than decreased.

31. On 21 December 1995 the National Immigration Board stayed the

enforcement of the applicant's expulsion in view of the Commission's

indication under Rule 36 issued on 7 December 1995 (see para. 6).

32. On 16 February 1996 the Aliens Appeals Board granted L, M and I

asylum as de facto refugees. 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 the fate of Mr. Castillo Paez; 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".

33. In its edition of 14 May 1996 the Peruvian newspaper "Politica"

reproduced a cable from the news agency AFP according to which the

applicant's application had been declared admissible by the Commission.

The article was headed: "European Commission of Human Rights accepts

application from Sendero Luminoso member." The editor noted the

following:

(Translation from Spanish)

"The following cable, which we have reproduced as it arrived

at our office, illustrates the 'progressive' approach

prevailing in certain European circles, where all

South American terrorists are seen as 'freedom fighters' and

the countries of our region as small republics run by

dictators. According to the view expressed in this dispatch

and that held by the distinguished members of the Commission,

Sendero Luminoso is a harmless political organisation engaging

in propaganda and its courageous active members are persecuted

by fanatical paramilitary groups. Episodes such as this do not

reflect very flatteringly on the attempts by Peruvian

Embassies in Europe to explain the situation."

A caption under a picture stated: "Sweden must grant asylum to

Peruvian terrorist".

34. On 28 June 1996 the applicant lodged a fresh request for a residence

permit, referring, inter alia, to the Commission's decision of 18 April

1996 to declare his application admissible. On 3 July 1996 the Aliens

Appeals Board decided to stay enforcement of the expulsion order.

B. The evidence before the Commission

35. As regards the Peruvian background to the present case, the

Commission has had particular regard to the following written evidence

available to it.

i. The United Nations Committee against Torture

36. In November 1994 the Committee against Torture assessed Peru's

initial report submitted under Article 19 of the 1984 Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Committee concluded as follows:

"...

B. Positive aspects

...

65. The Committee takes due note of the intensive campaign to make the armed

forces and the police more aware of the need to respect human rights.

66. The Committee is pleased to note the approval of various items of

legislation, such as that permitting procurators to visit places of detention

in areas where a state of emergency has been declared, that providing for

greater flexibility in the procedures relating to terrorism and those which

establish new bodies for protecting human rights.

C. Subjects of concern

67. One cause for serious concern is the large number of complaints from both

non-governmental organisations and international agencies or commissions

indicating that torture is being used extensively in connection with the

investigation of acts of terrorism and that those responsible are going

unpunished.

68. The Committee points out that the legislation intended to repress acts

of terrorism does not meet the requirements of international agreements

concerning a fair, just and impartial trial with minimum safeguards for the

rights of the accused (for example, 'faceless' judges, serious limitations on

the right of defence, lack of opportunity to take proceedings before a court,

extension of the period of incommunicado detention, etc.).

69. The Committee is also concerned by the subjection of civilians to

military jurisdiction and by the fact that, in practice, the competence of

the military courts is being extended as regards cases of abuse of authority.

D. Recommendations

70. The Committee is aware of the serious difficulties which Peru is

experiencing because of the terrorist attacks, which are to be condemned, and

hopes that it will succeed in overcoming them.

71. Despite the determination stated by the delegation of Peru, in the

Committee's opinion, the legislative and administrative measures adopted in

order to comply with the Convention have not been effective in preventing

acts of torture, as required by Article 2, paragraph 1 of the Convention.

73. Nevertheless, taking into consideration the intentions expressed by the

delegation and the fact that the Government has available to it the means

necessary to eradicate the scourge of torture, the Committee suggests the

adoption of, among others, the following measures:

(a) The procedure relating to terrorist offences should be reviewed for the

purpose of establishing a prosecution system which is effective but which

preserves the independence and impartiality of the courts and the right of

defence, with the elimination of so-called 'faceless trials' and the holding

of detainees incommunicado;

...

(f) Consideration should be given to defining torture as an independent

offence punishable by a penalty appropriate to its seriousness;

...

(General Assembly; Official Records; Fiftieth Session; Supplement No. 44

(A/50/44), pp. 11-13)."

ii. The Peruvian Government's Report to the United Nations

Economic and Social Council

37. In their 1995 report to the Economic and Social Council the Peruvian

Government stated as follows:

159. Since 1980, Peru has been subjected to a criminal offensive by the

terrorist gangs 'Sendero Luminoso' and the Tupac Amaru Revolutionary

Movement, an offensive which has caused over 25,000 deaths and damage

totalling over US$ 25 billion, an amount greater than the country's external

debt. In addition, thousands of families have been driven from their homes by

the violence which is rife in rural areas.

160. The State has been compelled to resort to criminal legislation and the

suspension of rights as permitted under states of exception in order to deal

with this exceptional criminal activity. In addition, a legal and

institutional framework has been designed in order to deal effectively with

terrorism, which had spread throughout the country and was seriously

threatening the very life of the nation. ...

161. Offences committed for terrorist purposes, which are the subject of

this special legislation, are of two types: (a) ordinary terrorist offences

and related offences, and (b) the offence of treason.

The offence of terrorism

162. An ordinary terrorist offence consists in provoking, creating or

maintaining a state of anxiety, terror or fear among the population or part

of the population. It covers acts committed by any person against life,

security of person, individual freedom, property, the security of buildings,

roads or railways, electricity pylons or power plants. The means must involve

the use of weapons, explosive materials or devices or any other means which

may cause damage or serious disturbance of the peace or affect the

international relations or security of society or the State.

163. On this basis, definitions have been made of a number of aggravated

offences, such as membership of an armed gang, attacks on property for

terrorist purposes and the use of minors in the perpetration of these

offences. Included also in this definition are acts of collaboration with

terrorism, such as the storing of explosives, financial assistance, or the

organisation of indoctrination or training courses or centres for terrorist

groups. Other prohibited acts are association for purposes of terrorism,

public incitement to terrorism, and advocacy of violence and terrorism.

164. These characterisations constitute a precise framework for all acts

perpetrated by terrorists and enable a distinction to be made between a

political opponent who uses peaceful means of dissent and a terrorist

belonging to an armed gang that uses criminal methods in an attempt to

destroy the State and impose a totalitarian plan on society.

The offence of treason

165. A person is guilty of the offence of treason if he perpetrates any of

the following six criminal acts:

(a) First, if he uses car bombs or weapons which cause death or

create serious social danger, provided that the fundamental characteristic of

causing a state of anxiety exists;

(b) Secondly, if he stores or is in possession of explosives

intended for use in terrorist acts of sabotage such as those described above;

(c) Thirdly, if he is a ringleader of a terrorist organisation;

(d) Fourthly, if he is a member of a murder squad set up physically

to eliminate persons;

(e) Fifthly, if he supplies reports, plans or documents intended to

aid and abet terrorist acts of sabotage provided for in subparagraphs (a) and

(b) above;

(f) Sixthly, if as a teacher he influences his students by

advocating terrorism.

166. The acts characterised as offences in the previous paragraph are also

liable to the punishment prescribed for the most serious forms of terrorism.

The characterisation is rigid and is drawn from national experience of the

behaviour of the terrorist gangs, and at the same time includes those acts

which cause the greatest damage and public alarm.

Anti-terrorist trials

167. Anti-terrorist procedural legislation seeks to render the crime control

agencies efficient by providing them with the necessary tools to punish

severely the perpetrators of, and accomplices in, offences committed for

terrorist purposes. To that end, the powers of the police have been

increased, without reducing the Public Prosecutor's powers of monitoring and

supervision. Provision has been made for very rapid proceedings in order to

respond quickly to charges of such offences, making it possible to determine

promptly and fairly the legal status of the accused. The institution of the

'faceless judges', which is Colombian in origin, and the use of military

courts to try cases of treason for terrorist purposes constitute two

essential parts of this system of prosecution. These steps have been taken

because the terrorist gangs used to identify judges and intimidate them and,

in many instances, made attempts on their lives. In addition, because of the

precarious state of the judicial system, which in fact made reform essential,

the perpetrators of, and accomplices in, these offences were able to escape

proper punishment; consequently, given the increase in terrorist violence, it

became essential to resort to the military courts in order to try terrorist

acts constituting treason.

168. The Constitution establishes a maximum of 15 days' pre-trial detention

by the police. Notwithstanding this, detainees do not lack a proper defence

because the role of the Public Prosecutor's Department was not abolished by

the anti-terrorist legislation. The Procurator not only visits detention

centres and provides defence for detainees, but ensures that the police

investigation does not exceed the limits imposed by law. Every detention is

reported to the Public Prosecutor and the judge, and it is from that point

that the procurators begin their work of monitoring and supervision. The

Constitution prohibits torture and recognises the right of detainees to ask

for an immediate medical examination. Consequently, although the police now

have greater powers, the Peruvian legal system recognises the power of the

Public Prosecutor's Department to guarantee the rights of the citizen and the

right of the latter to demand medical examinations in order to establish

whether or not he has been subjected to improper treatment.

169. In cases of treason, Decree-Law No. 25,744 authorised the extension of

police custody; that decision was incumbent not on the police themselves but

on the military judge. In any event, without prejudice to the institutional

guarantees specified above, the present Constitution does not permit such an

extension (Constitution, art. 2, para. 24 (f)).

170. Decree-Law No. 25,475 restricts the intervention of the defence counsel

to the period immediately preceding the formal statement by the accused; the

enactment of this provision was due to the existence of an organisation made

up of lawyers linked to the terrorist gangs who would coach the detainees,

threaten them and force them to adopt a certain attitude during the trial.

This restriction should be viewed in the light of the work of the Procurator

in protecting civil rights. The present Constitution stipulates that any

person has the right to communicate personally with a defence counsel of his

choosing and to be advised by him as soon as he is summoned or detained by

any authority (art. 139, para. 14). Consequently, this constitutional

provision takes precedence over the concern to provide maximum guarantees of

the right of defence.

171. Furthermore, the offence of enforced disappearance has been added to

Peruvian criminal legislation (Decree-Law No. 25,592 of 2 July 1992), which

punishes any public official or servant who deprives a person of his freedom

by ordering or performing acts which result in that person's duly established

disappearance. The existence of this offence demonstrates the State's

determination, through legislation, to punish severely acts by officials of

the security agencies which violate human rights. The statement that these

acts are investigated by the Provincial Procurator and the issue of specific

guidelines on this subject (...), as well as the keeping of the National

Register of Detainees, with international cooperation, prove that such acts

are not tolerated by the Government and that they in fact constitute a

serious retrograde step in the national peacemaking campaign.

172. The armed forces and the National Police have also issued numerous

guidelines and regulations designed, first, to educate members of the armed

forces and the police in respect for human rights, secondly, to avoid acts

which constitute violations of civil rights, and thirdly, to punish severely

the perpetrators of human rights violations.

Easing of anti-terrorist legislation

173. The legal measures adopted by the Government as part of its efforts to

tackle terrorism have led to the dismantling of subversive groups, with the

capture of important leaders in various parts of the country and the active

participation and organised support of the community. As a result it has

become necessary to relax the measures in question (E/1990/5/Add.29)."

iii. The United Nations High Commissioner for Refugees

38. By letter of 15 December 1995 the Regional Representative of the

UNHCR approached the Director-General of the Swedish Aliens Appeals Board

on behalf of Mr. Napoleon Teobaldo Aponte Inga, a Peruvian asylum seeker

removed from Sweden to Peru in September 1994 and thereafter allegedly

arrested, accused of terrorism and tortured. He had subsequently re-

entered Sweden, again seeking asylum. The Regional Representative wrote

as follows:

"... When Mr. Aponte Inga's claim was previously examined, our office,

despite knowing of the case and considering that it required a particularly

careful weighing of factors, decided on balance not to intervene. We are

reluctant to intervene when issues of credibility are at stake, and Mr.

Aponte's credibility had been questioned because of his failure to seek

asylum despite having been in Sweden for over six months. We were of course

aware that several members of Mr. Aponte's family had already been granted

residence permits in Sweden. Thus, even the very credible information that

Mr. Aponte's two brothers had been imprisoned and tortured, and that his

sister had been the victim of an extrajudicial execution in prison was set

aside. Mr. Aponte himself, we thought, had been outside Peru during the whole

period, and was thus not a likely target of the authorities.

We must now admit that the treatment meted out to Mr. Aponte on return to

Peru seems to belie our earlier assessment. The recent decision of the

Immigration Board in his case does not call into question the information

that he was held in maximum security conditions for three and a half months,

a period which it seems could easily have been a great deal longer had it not

been for the intervention of human right organisations in Peru and in North

America. Neither is Mr. Aponte's claim that he was repeatedly tortured during

his detention, a claim supported by two psychoanalytical practitioners,

questioned by the Immigration Board. The Board found that nothing would

indicate that Mr. Aponte would risk being charged with the same crimes again,

or that the authorities should persecute him for other reasons.

... One could refer to paragraph 43 of the UNHCR Handbook, which mentions the

importance of looking at the experience of relatives, which 'may well show

that [the asylum-seeker's] fear that sooner or later he also will become a

victim of persecution is well-founded'. In this case such experience is of

both objective and subjective relevance - there can be no denying the impact

of the experience of Mr. Aponte's family on his state of mind, or on the

light in which he is viewed by the authorities in Peru.

To conclude, even if one were to concede that there may be room for doubt as

to the future risks faced by Mr. Aponte in Peru, the present case seems

clearly to call for the resolution of that doubt in Mr. Aponte's favour."

iv. The United Nations Human Rights Committee

39. In its preliminary observations of 25 July 1996 the Human Rights

Committee set up under the International Covenant on Civil and Political

Rights assessed the third periodic report of Peru in, inter alia, the

following terms:

"12. The Committee expresses its deepest concern about Decree Law 25,475 and

Decree Law 25,659 which seriously impair the protection of the rights

contained in the Covenant for persons accused of terrorism and contradicts in

many respects the provisions of article 14 of the Covenant. Decree Law 25,475

contains a very broad definition of terrorism under which innocent persons

have been and remain detained. It establishes a system of trial by "faceless

judges", where the defendants do not know who are the judges trying them and

are denied public trials, and which places serious impediments, in law and in

fact, to the possibility for defendants to prepare their defence and

communicate with their lawyers. ...

17. The Committee is deeply concerned by persistent reports of torture or

cruel, inhuman or degrading treatment of persons detained under suspicion of

involvement in terrorist activities or other criminal activities. It regrets

the failure of the State party to provide the Committee with detailed

information on the measures adopted to prevent torture and cruel, degrading

or inhuman treatment, and to punish those responsible. It draws attention to

the legislation which permits incommunicado detention in certain cases. In

this connection, the Committee reiterates its view, as expressed in its

General Comment 20 on article 7, that incommunicado detention is conducive to

torture and that, consequently, this practice should be avoided.

...

19. The Committee takes note of Decree Law 25,499 of 1992, according to

which repentance of one's association with a terrorist organisation and

information concerning such organisations or which lead to the identification

of other persons involved can lead to a reduction in his or her sentence. The

Committee is concerned that this law may have been used by individuals to

denounce innocent persons in order to avoid prison sentences or to reduce the

duration, a concern that is supported by the fact that there are at least

seven draft proposals - one of them from the Defensor Publico and another

from the Ministry of Justice - and a Decree Law 26,329 attempting to solve

the problem of innocent people being prosecuted or having been convicted

under the anti-terrorist laws (CCPR/C/79/Add.67)."

v. Human Rights Watch

40. In its 1996 report the non-governmental organisation Human Rights

Watch notes, on the one hand, that the number of extrajudicial executions

and disappearances attributed to Peruvian Government forces has continued

to decline. On the other hand, the organisation notes that the practice

of torture is not limited to counterinsurgency but is a routine adjunct

to police investigation in Peru, although its severity seems to depend

on the social class and resources of the victim (pp. 116-117).

41. In a report of August 1996 - Peru: Presumption of Guilt - Human

Rights Violations and the Faceless Courts in Peru" (Vol. 8, No. 5 (B) -

Human Rights Watch/Americas states, inter alia, as follows:

"The incarceration of hundreds of innocent prisoners charged or convicted of

terrorist crimes they did not commit is now an open secret in Peru. While

there may be disagreement about the number unjustly prosecuted by Peru's

'faceless courts', no one in Peru, including the architect of the court

system, President Alberto Fujimori, denies that the problem exists. Those

caught up in the system are presumed guilty and have minimal opportunities to

demonstrate their innocence. In recent years, the Minister of Justice, the

former prosecutor for terrorism, Fujimori himself, and many lawmakers have

proposed the creation of special mechanisms such as a review commission to

remedy defects in the trials, at least in those cases where there are

compelling reasons to believe in the defendant's innocence. Yet nothing has

been done to establish any such mechanism. In the meantime, faceless military

and civilian courts, conducting secret trials behind prison walls, continue

to sentence Peruvians to decades of imprisonment in life-threatening

conditions without offering them the basic judicial process guarantees

required by international human rights law.

Extrajudicial executions and disappearances by Peru's military and police

have been dramatically reduced in the past three years, demonstrating the

effectiveness of international pressure over a government which was

officially engaging in these atrocities. This is a welcome development, even

if the arbitrary deprivation of life by the authorities has simply been

supplanted by the arbitrary denial of liberty. Nonetheless, violent

state-sponsored abuse continues as police regularly engage in torture as an

interrogation tool; a practice which is facilitated by lengthy periods of

police detention allowed under anti-terrorism procedures and by routine

acceptance of coerced confessions as evidence in the faceless courts.

Torture is not only practised in cases involving terrorism. ...

Although the inflicting of physical abuse is outlawed in Peru, torture - the

intentional infliction of severe pain by a government agent or with that

agent's acquiescence - is not specifically penalised, as required by the

United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment and Punishment, which Peru has ratified. The scandal

caused by these recent torture deaths led to several parliamentary proposals

for a law specifically criminalising torture. ...

Meanwhile, the violence and terrorist tactics employed by armed opposition

groups in Peru - predominantly by the now divided Shining Path - continue to

rob Peruvians of their most fundamental human right: the right to life.

According to the National Coordinating Committee for Human Rights

(Coordinadora Nacional de Derechos Humanos, hereinafter "the Coordinadora"),

a respected umbrella group of non-governmental human rights organisation,

Shining Path was responsible for 222 selective assassinations in 1995,

considerably more than the 173 cases documented in 1994. These violations of

basic international humanitarian standards far outnumber those committed by

the Peruvian military and police. Whatever effect the human rights movement

has had in improving the climate of respect for human rights in Peru in the

last few years, none of it has influenced the behaviour of the Shining Path.

The calculated cruelty which has characterised the Shining Path's ideology

and strategy throughout the conflict is deeply repugnant and in direct

contradiction to international humanitarian law.

...

Several government spokespersons have announced to the international

community that the process of reviewing terrorism and treason cases is

already underway, although there is no evidence that any action has been

taken. The note verbale presented by the Permanent Mission of Peru to the

United Nations office in Geneva on 12 August 1994, during the 46th Session of

U.N. Sub-Commission on the Prevention of Discrimination and Protection of

Minorities, stated that Peru's Congress had already passed a law submitted by

the executive creating a commission to review cases. This was false: almost

two years later Congress still has not passed any such law.

...

According to a 1994 census conducted by Peru's National Penitentiary

Institute (INPE), 5,003 individuals are currently in prison either charged or

convicted of treason or terrorism (the two categories under which

politically-motivated crimes are catalogued), just under one quarter of the

total prison population. Sixty-six percent of these prisoners are officially

described as belonging to [Sendero Luminoso] and ten percent to the much

smaller Túpac Amaru Revolutionary Movement (Movimiento Revolucionario Túpac

Amaru, MRTA). The remaining twenty-four percent are described as having

'undetermined' affiliation, which evidently means that they belong to neither

of the above groups. Within prison walls, authorities carefully segregate

those prisoners considered to be without affiliation from those of known

militancy. It is reasonable to assume that the category defined in the

statistics as 'undetermined' corresponds roughly with the number of prisoners

who are innocent or who collaborated with the guerrillas against their will.

The Coordinadora is assisting with the legal defence of 607 prisoners they

consider to be innocent. However, they are convinced that there are many

cases of possibly innocent detainees for which they have no information.

Allowing for human error in assessing probable innocence and for undetected

cases, the number of innocent prisoners could scarcely be less then 500, and

it may be considerably higher (pp. 2-4)."

42. Discussing the continuing due process limitations, Human Rights

Watch states:

"Most of the reforms described above are welcome, if long overdue,

improvements. However, they have not affected the basic due process

shortcomings of the faceless court system. Features of this system which

remain unaffected and which contribute to unjust prosecutions and

convictions, include:

the vague definition of terrorism and the disproportionate penalties

assigned. The anti-terrorism law gives imprecise catch-all definitions of

terrorism and violates freedom of expression by criminalising acts such as

'provoking anxiety', 'affecting international relations', or seeming to

excuse the behaviour of terrorists (apología del terrorismo). Both the

terrorism laws and the treason law violate the principle that the punishment

should fit the crime. Under the treason law, for instance, a teacher who

espoused the ideals of the Shining Path and a terrorist who had killed dozens

with a car bomb could receive the same sentence: life imprisonment (pp. 9-

10)."

43. Human Rights Watch furthermore refers to sixteen prisoners who, in

the organisation's view, were unjustly convicted of treason or related

offences (pp. 17-30). The cases were selected in order to illustrate

different due process violations associated with the counter-terrorist

trials. According to Human Rights Watch, the procedures in both the

secret military tribunals which try cases of treason (traición a la

patria), and the civilian "faceless" courts which try terrorism cases

violate elementary international due process obligations. The cases

described by Human Rights Watch include people tortured to extort

confessions while held incommunicado, or falsely incriminated by others

who were themselves tortured or coerced, or who volunteered false

information maliciously or thoughtlessly. All of these defendants were,

according to the organisation, prevented by law from questioning their

accusers. Often they were simply the victims of verdicts reached without

a careful consideration of the evidence presented, or where there had

been no effort made to confirm unsubstantiated allegations (see p. 4).

Out of the sixteen prisoners named in the report five were, according to

Human Rights Watch, unjustly convicted of unwitting "collaboration" (pp.

27-30).

vi. Amnesty International

44. In its 1996 report the non-governmental organisation Amnesty

International notes that the armed opposition groups, including Sendero

Luminoso, remained active in 1995, but on a reduced scale compared with

previous years. However, much of the country remained under a state of

emergency. The armed opposition groups, including Sendero Luminoso,

remained active, but on a reduced scale compared with previous years

(p. 248). Amnesty International continues:

"Peru's anti-terrorism laws continued to fall far short of international fair

trial standards. According to official figures, since 1992 more than 5,000

prisoners had been convicted of 'terrorism' and sentenced to imprisonment.

All were denied the right to have their cases heard in public and to

cross-examine members of the security forces involved in their detention and

interrogation. Hundreds of such prisoners were tried before military

tribunals. Complaints of torture by detainees suspected of 'terrorism'

continued to be filed. ...

Dozens of civilians were deliberately and arbitrarily killed by [Sendero

Luminoso]. Many of those killed had been previously tortured. Among the

victims were local officials, community leaders and captured members of civil

defence patrols. ... (p. 250)."

vii. The State Department of the United States of America

45. In "Country Reports on Human Rights Practices for 1995" (April 1996)

the United States Department of State reports, inter alia, that although

the Peruvian Constitution prohibits torture and inhuman or humiliating

treatment, torture and brutal treatment of detainees are common.

Eyewitnesses and human rights monitors reported that government security

forces still routinely tortured suspected subversives at military and

police detention centres. The country report continues:

"Torture most often takes place in the period immediately following

detention. The law permits police to hold terrorism suspects incommunicado

for 15 days, and for another 15-day period in cases of treason. Human rights

groups report that the incidence of torture is high during this time, partly

because detainees are not allowed access to family or an attorney except when

giving sworn statements to the public prosecutor.

Besides beatings, common methods of torture included electric shock, water

torture, asphyxiation, and the hanging of detainees by a rope attached to

their hands tied behind the back. Common forms of psychological torture

included sleep deprivation and death threats against both detainees and their

families. Interrogators frequently blindfold their victims during torture to

prevent them from later identifying their abusers. ...

Many victims of Sendero Luminoso terrorism also showed signs of torture. ...

According to statistics [of the National Penitentiary Institute of Peru], as

of June [1995], 76 percent of the country's prison population - almost 16,000

of the almost 21,000 prisoners - consisted of accused persons awaiting trial.

... Those tried on treason charges by military courts generally wait no

longer than 40 days between the time of detention and the beginning of the

trial.

...

According to Supreme Council of Military Justice statistics, between 1992 and

August 1995, faceless military tribunals tried 1,031 cases of treason. In

those cases in which a verdict was reached, these tribunals sentenced 267

individuals to life sentences, 217 persons to 30 years or less, 179 cases

were sent to civilian court terrorism trials, and 24 persons were absolved of

all charges. In a public statement on 11 August, [the] President of the

Supreme Council of Military Justice ... stated that the military justice

system was willing to review any case of a conviction for treason in which

procedural errors could be proved.

The Government did not abolish trials of terrorism cases on 15 October by anonymous

superior court tribunals, as it had originally announced. Human rights groups are

concerned about cases sent by the military justice system to the civilian courts even

when there is no evidence to prove the defendant guilty of treason or terrorism,

since a terrorism trial must begin all over again. For example, ..., a medical doctor

detained in January, was found innocent of treason by a faceless military tribunal

in April. The Supreme Council of Military Justice, however, ruled in September that

he must still be tried for terrorism by a civilian court even though there was no

evidence connecting him to terrorist organisations.

In December the Congress passed the Criminal Procedures Code legislation.

This legislation will institute new accusatorial, investigative and trail

procedures. Informed observers claimed that the Government postponed passage

of the new code ...

There were no reports of political prisoners. Members of Sendero Luminoso and

those detained on charges of terrorism - however arbitrary in some instances

- are not considered political prisoners.

...

Although both the army and Sendero Luminoso committed serious human rights

abuses in Peru's internal conflict, the latter was responsible for many more

heinous acts. Sendero frequently used arbitrary violence against civilians

and non-military targets. ... Many of the victims were unarmed women and

children. ... Sendero also practised forced military conscription of

children; ...

Human rights groups repeatedly denounced Sendero Luminoso as the greatest

violator of human rights in Peru, while simultaneously documenting the many

violations by the security forces. Documentary evidence indicates that

Coordinadora members have been balanced in the denunciations of abuses by

both sides. Nevertheless President Fujimori and other government officials

continued to accuse human rights groups of defending terrorism and

criticising only government abuses. Amnesty International added to the debate

when it referred in its 1994 report on Peru (released in mid-1995) to

Peruvian terrorists as 'political prisoners'. President Fujimori denounced

Amnesty International for this on 10 July.

On 10 July the offices of the Human Rights Commission (COMISEDH), a member of

the Coordinadora, were broken into, and files relating to those believed to

be falsely accused of terrorism and to human rights abuses committed by

security forces were rifled. ... (pp. 505-512)."

viii. The Peruvian press

46. On 4 October 1994 the Peruvian newspaper "Expreso" published an

article about "Peruvian terrorists" on hunger strike in Sweden,

attempting to avoid being expelled back to Peru. The newspaper wrote as

follows:

[Translation from Spanish]

"Sendero Luminoso terrorist Aponte extradited from Sweden

One of the promoters or ambassadors of Sendero Luminoso in Europe was

deported by the Swedish authorities, despite the fact that along with other

terrorists he declared himself on hunger strike to try to prevent his

expulsion from Stockholm.

The man is [Napoleon] Teobaldo Aponte Inga ...[see para. 38] who is charged

with terrorists offences under warrants issued by the 33rd and 46th Lima

Criminal Court.

The terrorist was a member of the so-called 'Sol Peru' Committee, which is

dedicated to distributing the Sendero Luminoso newspaper ...

Supreme Court sources said yesterday that the extradition request for

Teobaldo Aponte was submitted at the beginning of February last year. At the

same time, the requests for [the extradition of eight other Peruvians], who

were all campaigning on behalf of Sendero Luminoso, were renewed. They are

also fund raising to finance their terrorist activities in Peru. ... Officers

of the Supreme Court [met one of them at a Peruvian airport], and they

immediately handed him over to the National Anti-Terrorist Department

(Dincote)."

47. In January 1995 the newspaper wrote the following:

[Translation from Spanish]

"For a long time they have been passing for victims of political persecution

Shining Path terrorists ... living like lords in Stockholm

... International activists of the Sendero Luminoso ... are living like lords

in ... Sweden where the government has been conned for many years by

terrorists who get a monthly pension of 1500 dollars, house and medical care,

a reliable source in the National Police (PNP) disclosed.

The terrorists, the PNP chief added, passed themselves off as the victims of

political persecution, which was quite false.

In that way, they arrived in the European country and were given political

asylum, under the protection of their alleged documents supplied to them by

self-styled human rights protection groups in Lima.

Despite the intense activity of these pseudo agencies in support of

terrorists, the source said, terrorists are no longer accepted in Sweden as

they used to be.

The government of that European country became aware of the terrorists'

activities and is now on the track of several of them, although some of them

are living in the guise of sheep, our informant added.

The citizens of these countries, thanks to the efforts of the Peruvian

embassy, know that it is not a question of victims of political persecution

but of terrorists who have been condemned by the United Nations, the source

claimed.

... The police authorities alerted all countries in order to warn them not to

offer political asylum without first checking the position of the Peruvian

seeking such protection. They could be callous terrorists, the offical warned

finally. ..."

ix. The resurgence of violent Sendero Luminoso activities

48. In its edition of 6 October 1996 the International Herald Tribune

reported on a recent series of deadly bombings and attacks in Peru

raising fears that the Sendero Luminoso insurgency is making a comeback.

The newspaper continued:

"... While Peruvians have learned to live under the constant threat of

terrorism, the latest wave of assaults by the Maoist group, which was once

believed to have been defeated, is particularly troubling because it was well

coordinated and reached sensitive government and military targets. The

guerrillas bombed a central police station charged with protecting the

Peruvian Congress and the house of a general who is the military chief in a

region where the rebels have a stronghold. After assertions that the attacks

were made possible by security lapses, the chief of Peru's anti-terrorist

police resigned.

Experts on terrorism said that the attacks were the most successful the

Shining Path has undertaken since its leaders were captured three years ago.

The arrests were considered a turning point in a civil war that has killed

more than 35,000 people and cost 25 billion dollars in damage since 1980. 'If

you consider what has happened in the last few days - that the government was

forced to remove its director of anti-terrorism because of these strategic

attacks - you have to conclude that Shining Path has started to recover from

its long demise', said ... a Peruvian researcher in terrorism."

x. The case of Mr. Castillo Paez before the Inter-American

Commission and Court of Human Rights

49. The disappearance of the applicant's cousin,

Mr. Ernesto Castillo Paez (see para. 18), is currently being examined by

the Inter-American Court of Human Rights after referral by the

Inter-American Commission on Human Rights. The Commission has requested

that the Court find a number of violations of the American Convention on

Human Rights. According to the complaint before the Court, E was arrested

by agents of the Peruvian National Police in October 1990 and since then

his whereabouts have remained unknown.

50. In a judgment of 30 January 1996 the Inter-American Court rejected

the Peruvian Government's preliminary objections and decided to continue

hearing the merits of the case (see the Court's press releases CDH-CP

1/96 and 3/96 as well as Andean Newsletter No. 109 of February 1996, at

p. 7).

51. The case of E has been reported in at least the Peruvian publication

"Ideele", of "Instituto de Defensa Legal" ("The Institute for Legal

Defence") in Peru (No. 80, October 1995).

C. Relevant domestic law

52. Under chapter 3, section 1 of the Swedish Aliens Act of 1989 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.

53. 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

3, section 1 (3) (chapter 3, section 4).

54. 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).

55. In exceptional cases the Government may determine whether or not an

alien should be allowed to remain in the country, provided that 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).

56. 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).

D. The 1951 Convention Relating to the Status of Refugees

57. Article 1 F 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;

(b) he has committed a serious non-political crime outside

the country of refuge prior to his admission to that country

as a refugee;

(c) he has been guilty of acts contrary to the purposes and

principles of the United Nations."

58. According to the Handbook on Procedures and Criteria for Determining

Refugee Status, the interpretation of these exclusion clauses "must be

restrictive" (p. 35, para. 149).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

59. The Commission has declared admissible the applicant's complaint

that his expulsion to Peru would expose him to a real risk of treatment

contrary to Article 3 (art. 3) of the Convention, bearing in mind, in

particular, his activities for the benefit of Sendero Luminoso.

B. Point at issue

60. The issue to be determined is whether the expulsion of the applicant

to Peru would be in violation of Article 3 (art. 3) of the Convention.

C. As regards Article 3 (art. 3) of the Convention

61. Article 3 (art. 3) reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

62. The applicant complains that his expulsion to Peru would violate

Article 3 (art. 3) of the Convention on account of his political

background in that country. He considers that his activities 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.

63. The applicant recalls that in its referral of his case to the

Swedish Government the Aliens Appeals Board stated that it 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. Although in principle recognising him

as a de facto refugee, the Government 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. In

the applicant's view, however, no evidence has been presented to the

effect that he himself committed such offences. He also recalls that his

mother and sisters have been granted asylum in Sweden, principally

because they belong to a "well-known" family.

64. 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 Peruvian passport without any

significant difficulties. He, moreover, refers to the treatment in Peru

of Mr. Aponte Inga, who was removed from Sweden to Peru by order of the

Swedish Government after having been charged with "terrorism" in Peru

(see paras. 38 and 46). Though refusing him asylum following his

subsequent re-entry in Sweden, the National Immigration Board did not

question the fact that he had been ill-treated on his return to Peru.

Contrary to Mr. Aponte Inga, the applicant has openly referred to his

activities in support of Sendero Luminoso and thus runs an equal risk of

being subjected to torture or similar treatment, if returned to Peru.

65. Finally, the applicant submits that 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 refusal of his asylum

request and the Commission's decision on the admissibility of the present

application 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.

66. The Government submit that 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. He has stated himself that 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.

67. The Government recall that in previous cases concerning the

forthcoming expulsion of Peruvians, who had referred to their Sendero

Luminoso connections, the Commission did not deem the situation in Peru

to be such as to prevent those persons from being returned there.

Reference is made to Applications No. 20547/92 (Dec. 15.2.93, D.R. 74,

p. 252) as well as Nos. 20809/92, 20990/92 and 21096/92 (Decs. 15.2.93,

8.4.93 and 8.4.93, respectively; unpublished). Accordingly, the

complaints under Article 3 (art. 3) of the Convention were all regarded

as manifestly ill-founded.

68. In the Government's view there is nothing in the present case which

should call for a different assessment, particularly as there is no

indication that the human rights situation in Peru has deteriorated

subsequent to the Commission's decisions in the cases referred to above.

On the contrary, the situation has developed favourably. The Government

refer to reports according to which the political violence has decreased

and the extrajudicial killings and disappearances have almost ceased.

Particular reference is made to the national human rights organisation

La Coordinadora's report for 1995 (not submitted), the U.S. State

Department's report for the same year (para. 45) as well as to

information from the Swedish Embassy in Lima.

69. According to the Government's sources, torture of, among others,

terrorist suspects still occurs during police interrogations, but not as

a rule. A Peruvian citizen, who has been returned to his country after

having been refused asylum is, if wanted by the Peruvian authorities,

transported from the airport of arrival to a detention centre and placed

under the supervision of a public prosecutor. According to the

Government's sources, the risk that such a person might be tortured can

be limited significantly because of his placement in such a centre.

70. 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 of their free will following the refusal of their asylum

requests. 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. The Embassy has also been in

contact with very well-informed persons with broad experience of

expulsion of Peruvian citizens as well as with representatives of local

human rights organisations. The Government therefore concludes that if

the applicant were to be returned forcibly, he would not be placed in a

situation worse than that of Peruvians who have returned voluntarily.

71. 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.

72. The Commission recalls that Contracting States have the right, as

a matter of well-established international law and subject to their

treaty obligations including the Convention, to control the entry,

residence and expulsion of aliens. The right to political asylum is not

protected in either the Convention or its Protocols. The decision of a

Contracting State to expel a person may nevertheless 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 faces a

real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the receiving country. In such circumstances

Article 3 (art. 3) implies the obligation not to expel the person in

question to that country (see, e.g., Chahal v. the United Kingdom

judgment of 15 November 1996, Reports 1996-I, p. ..., para. 73;

Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991,

Series A no. 215, p. 34, paras. 102-103).

73. The prohibition provided by Article 3 (art. 3) against torture,

inhuman or degrading treatment or punishment is absolute. Whenever

substantial grounds have been shown for believing that an individual

would face a real risk of being subjected to treatment contrary to

Article 3 (art. 3) if removed to another State, the responsibility of the

Contracting State to safeguard him or her against such treatment is

engaged in the event of expulsion. In these circumstances the activities

of the individual in question, however undesirable or dangerous, cannot

be a material consideration (see the above-mentioned Chahal judgment, p.

23, para. 80).

74. The Convention organs' examination of the existence of a risk of

ill-treatment in breach of Article 3 (art. 3) at the relevant time must

necessarily be a rigorous one in view of the absolute character of this

provision and the fact that it enshrines one of the fundamental values

of the democratic societies making up the Council of Europe. In

determining whether substantial grounds have been shown for believing

that a real risk of treatment contrary to Article 3 (art. 3) exists, the

Commission will assess the issue in the light of all the material placed

before it and, if necessary, material obtained of its own motion (see,

e.g., the above-mentioned Chahal judgment, pp. 26-27, paras. 96-97). The

assessment of the existence of the risk must be made on the basis of

information concerning the conditions prevailing at the time of the

Commission's consideration of the case, the historical position being of

interest in so far as it may shed light on the present situation and its

likely evolution (see the above-mentioned Chahal judgment, p. 24, para.

86).

75. The Commission recalls that the previous applications lodged by

Peruvians claiming to be supporters of Sendero Luminoso have been

declared inadmissible, the Commission having found that the applicants

would not face a real risk of treatment contrary to Article 3 (art. 3)

if returned to Peru. The Commission has noted, in particular, the absence

of any evidence such as a warrant of arrest or a summons which would show

that the various applicants are wanted by Peruvian authorities or are

otherwise of any other particular interest to them. The Commission has

also attached importance to the considerable experience which the Swedish

authorities appear to have gained in this field as a result of the large

number of asylum claims lodged by Peruvians.

76. The following facts of the specific case are not in dispute between

the parties: The applicant is not a leading personality in Sendero

Luminoso. He has been supporting the activities of the movement but has

not himself committed any atrocities in the name of Sendero Luminoso. Two

of his cousins were also active within the movement. One was arrested and

killed by paramilitary troops in July 1989, while another cousin was

arrested by the police in October 1990 and has since then disappeared.

A local human rights lawyer engaged in investigating this disappearance

was injured by a letter-bomb. The disappearance is presently pending

before the Inter-American Court of Human Rights. A third cousin of the

applicant, Ms. Monica Castillo Paez, who had been active within a

supporting section of Sendero Luminoso, was allowed to remain in the

Netherlands.

77. The Commission furthermore notes that, in February 1996, the Aliens

Appeals Board granted the applicant's mother and two siblings de facto

refugee status and asylum in Sweden, principally because they were

considered to belong to a "well-known" family in Peru (para. 32). In its

opinion to the respondent Government in respect of the applicant's case

the Aliens Appeals Board considered, moreover, that as he belonged to "a

politically very active family" it could not exclude that he might be

persecuted on his return to Peru (para. 25).

78. The fact remains that the Peruvian treason law would seem to make

no distinction between the crime of committing atrocities in the name of

Sendero Luminoso and, on the other hand, the espousal of the ideals of

the movement (see, e.g., paras. 42-45; cf. also the Peruvian Government's

view as reproduced in para. 37; at p. 10, para. 166 of the quotation).

Various evidence also indicates that torture is still being practised in

Peru and is particularly focused on detainees suspected of terrorism and

subversion (see, e.g., paras. 41 and 44-45).

79. The Commission notes, however, that the applicant has not presented

any warrant of arrest or similar evidence which would show that he is

wanted by the Peruvian authorities or is otherwise of any particular

interest to them at the present time. Nor has it been alleged that his

father has been ill-treated in Peru after the applicant's departure from

Peru in the beginning of 1991.

80. The Commission furthermore notes the efforts reported by the

Peruvian Government to improve the human rights situation in the country

both generally and in respect of persons suspected of being engaged in

subversive activities (see para. 37). The respondent Government have,

moreover, stated that a returned Peruvian is, if wanted by the Peruvian

police, placed in a special detention centre under the supervision of a

public prosecutor where the risk of being tortured can be limited

significantly. In this regard the Commission has already found that there

is no evidence showing that the applicant is in fact wanted by the

Peruvian authorities (para. 79 above).

81. The Commission would not exclude that the various proceedings

instituted by the applicant and his extended family outside Peru,

particularly in international fora, might be perceived negatively by

representatives of Peruvian authorities. Nevertheless, the attention

focused on the applicant and his family outside Peru would not

necessarily increase the risk of his being subjected to ill-treatment on

his return to that country.

82. It is true that some Peruvian media have shown an interest in

Sweden's handling of asylum claims lodged by Peruvians (paras. 29, 33 and

46-47). At least part of these asylum seekers, including the applicant,

have been accused in press articles of being Sendero Luminoso

"terrorists". This fact, however, cannot be of any decisive importance

in the assessment of whether or not his expulsion to Peru would violate

Article 3 (art. 3) of the Convention. This is so, in particular, as there

are no specific indications that the applicant has ever been singled out

as a high profile member of the Sendero Luminoso movement.

83. Having assessed all the material before it, the Commission is of

the opinion that sufficient evidence has not been adduced to establish

substantial grounds for believing that the applicant would be exposed to

a real risk of treatment contrary to Article 3 (art. 3) of the

Convention, if returned to Peru.

CONCLUSION

84. The Commission concludes, by 15 votes to 14, that in the present

case the applicant's expulsion to Peru would not violate Article 3 (art.

3) of the Convention.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MM. S. TRECHSEL, I. CABRAL BARRETO,

N. BRATZA AND M. VILA AMIGÓ

To our regret we cannot agree with the majority of the Commission

in finding that the applicant's expulsion to Peru would not violate

Article 3 of the Convention. The Report leaves us in no doubt that this

is a borderline case. We can accept that looking at the situation of the

applicant in isolation one can indeed reach the conclusion which the

majority has voted for, particularly if, in case of doubt, one gives

precedence to the respondent State's margin of appreciation rather than

to the applicant's security.

However, we cannot look at the case of Mr. Paez in isolation. We are

strongly impressed by the fact that on 16 February 1966 the Aliens

Appeals Board granted asylum to L, M and I, ie. the applicant's mother

and two sisters. They had not advanced any substantially stronger

arguments, if compared with the applicant; the Swedish authorities gave

them the benefit of the doubt and pointed out that they had to be

regarded as de facto refugees, i.a. because they belonged to a

"well-known family" (see para. 32 of the Report).

In rejecting the applicant's appeal on 12 October 1995 the

Government, while finding that the applicant in principle fulfilled the

requirements for being regarded as a de facto refugee, concluded that in

view of his activities within the Sendero Luminoso organisation there

were special reasons for not granting him asylum. To the extent that

these reasons are relied on as justifying the difference of treatment of

the applicant and other members of his family, they do not constitute

valid reasons in terms of the Convention. As the Court pointed out in its

Chahal judgment (Chahal v. the United Kingdom judgment of 15 November

1996, Reports 1996-I, para. 23) the activities of the individual in

question, however undesirable or dangerous, cannot be a material

consideration in determining whether the expulsion of the individual

would be compatible with Article 3, the protection afforded by Article

3 being absolute in character and wider than that afforded under the 1951

Convention on the Status of Refugees. We note in this regard that it is

not in any event suggested that the applicant himself committed any

atrocities in the name of Sendero Luminoso.

In the file before the Commission we have not found any other

convincing argument for distinguishing the situation of the applicant's

family in Sweden from that of the applicant himself. In concluding as we

do that, on balance, substantial grounds have been shown for believing

that the applicant would face a real risk of treatment contrary to

Article 3 of the Convention if returned to Peru, we place particular

reliance on the inconsistency shown by the Swedish authorities.

(Or. English)

DISSENTING OPINION OF Mr. J-C. GEUS, JOINED BY MRS. J. LIDDY AND

MM. A.S. GÖZÜBÜYÜK, A. WEITZEL, I. BÉKÉS, J. MUCHA AND A. PERENIC

I have voted against the finding of the majority that the

applicant's expulsion to Peru would not violate Article 3 of the

Convention. My conclusion differs from that of the majority for the

reasons below.

It is true that the present applicant has not presented any warrant

of arrest or similar evidence showing that he would be wanted by the

Peruvian authorities. However, as there now appears to have been a

resurgence in the violent activities of Sendero Luminoso (para. 48), one

must take into account the effects which this may have on the treatment

of returning Peruvians suspected of participation in activities for the

benefit of that movement. In this connection I note a further report

released by Human Rights Watch/Helsinki in September 1996 - "Swedish

Asylum Policy in Global Human Rights Perspective (Vol. 8, No. 14 (D)) -

which states, inter alia, as follows:

"... Sweden has denied a number of credible asylum applications submitted in

the past few years by Peruvians. In many of these cases, the Swedish

authorities have recognised that the applicant was once a victim of

persecution in Peru. Nonetheless, citing recent reforms in Peru, the

applicants' acquittal by a Peruvian court, or their ability to obtain travel

documents, the Swedish authorities have concluded that they would not face

continued persecution if returned. But, as Human Rights Watch/Helsinki and

other human rights organisations have documented, recent reforms in Peru have

been minor: an acquittal does not protect Peruvians from harassment, arrest,

and retrial; and Peruvian travel documents may be easily obtained by bribing

the relevant officials. Peru's congress has voted to extend the regime of

'faceless courts' until October 1996, meaning that these courts are

continuing to prosecute civilians (p.27; footnotes omitted)."

Human Right Watch goes on to referring to three cases involving

Peruvians, including that of Mr. Aponte Inga (paras. 38 and 46 of the

Commission's Report) and Ms. Monica Castillo Paez (paras. 18 and 26 of

the Commission's Report):

"Aponte, ... left Peru to begin his studies in the Soviet Union in 1984,

where he remained until 1994. During this time, several of his family members

took part in public political activities in Peru. A brother ... took part in

protests against police abuses. His activities resulted in his arrest and

severe torture, followed by the arrest and torture of two younger brothers

... . Aponte's sister ... was accused of belonging to the Communist Party of

Peru - Shining Path and was killed while incarcerated in 1992. His other

siblings ... as well as his parents, fled Peru for Sweden, where they sought

asylum and received permission to stay, some as de facto refugees and others

on family reunification grounds. While in Europe, Aponte was accused by the

Peruvian Government of being a member of a Shining Path support network, a

charge Aponte denies. For this crime, Aponte was tried in absentia by one of

Peru's 'faceless courts', along with sixty-seven other people. Meanwhile, in

1994 Aponte travelled to Sweden to join his family and was subsequently

arrested there for being an illegal resident. At that time he applied for

asylum, arguing that he would face persecution if returned to Peru. His

asylum application was denied, and he was forcibly returned to Peru in

September 1994. Upon arrival at the airport in Lima, he was arrested and

charged with having been sympathetic to terrorist activities. He was

imprisoned for four months, during which he withstood beatings, torture,

shortages of food and medical care, and substandard living conditions. He was

eventually tried by a 'faceless court' and finally acquitted and released on

18 January 1995. Nonetheless, he continued to suffer harassment in Lima. The

police paid frequent visits to his home, and he had the impression of

constantly being followed. Fearing renewed persecution, he left Peru in March

1995, returned to Sweden, and reapplied for asylum. In November 1995, the

Immigration Board once again denied Aponte asylum, reasoning that because he

had ultimately been acquitted, he had nothing more to fear in Peru. In

support of this conclusion, the Immigration Board also noted that Aponte had

been able to obtain travel documents in order to return to Sweden. In July

1996, the Appeals Board reversed the decision of the Immigration Board and

granted Aponte permission to remain in Sweden, albeit with the status of a

'de facto refugee', not a convention refugee.

S.P.

S.P. went to Sweden in October 1991 and immediately applied for asylum. He

based his asylum claim on his fear that, if he returns to Peru, he risks

wrongful arrest on terrorism-related charges and the torture that accompanies

most such arrests in Peru. ... The Swedish authorities have denied three

consecutive applications for asylum filed by S.P. In initially denying him

asylum, the authorities discredited his claims of harassment by the Peruvian

security police, noting that the police had not given him any trouble going

through passport control on his way to Sweden. ... His third application was

denied, in part, because the Appeals Board believes that Peru's 'faceless

courts' no longer prosecute civilians. As previously noted, this decision

reflects a serious error regarding the current state of justice in Peru.

Monica Castillo Paez

Castillo went to Sweden in December 1990. Her brother, Ernesto Castillo Paez

had 'disappeared' in October of that year and is presumed dead. One of her

cousins [A; see para. 18] was killed in 1989. Security forces are suspected

in both cases. Her parents, still living in Peru, have received numerous

threats from people thought to be connected to the security forces. In the

months following her brother's disappearance, the police went to Castillo's

home on several occasions. Fearing the same fate as her brother, Castillo

fled to Sweden and sought asylum. The Swedish authorities denied her

application, finding insufficient grounds for asylum. In August 1993, she was

deported from Sweden. While changing planes in Amsterdam, she applied for

asylum there. The Dutch Government subsequently recognised her as a refugee

under the Refugee Convention (pp. 28-29; footnotes omitted)."

I also note the interest shown notably by Peruvian press in Sweden's

handling of asylum claims lodged by Peruvians. As noted also by the

majority of the Commission (para. 82), at least part of these asylum

seekers have been accused of being Sendero Luminoso "terrorists". I note,

in particular, the newspaper reports of 13 October 1995 and 14 May 1996

(paras. 29 and 33). In these reports the applicant is referred to as a

"terrorist", although there is no indication that he - or indeed any

member of his extended family - has been convicted or even charged with

such a crime. I consider that his treatment on his return to Peru is

likely to be affected negatively by these statements in the public

domain.

The respondent Government have referred to the possibility that the

applicant might be placed in a special detention centre under the

supervision of a public prosecutor where his risk of being tortured could

be limited significantly. I cannot find this argument sufficiently

convincing, as judging from the various evidence available to the

Commission there is still reason to believe that not all officers

particularly within the Peruvian anti-terrorist police respect the

prohibition of torture (cf. the above-mentioned Chahal judgment, paras.

106-107).

Nor can I find any indication that the respondent Government has

received - or even sought - assurances from the Peruvian Government as

to the applicant's fate on his return to Peru.

I also find it probable that the various proceedings which the

applicant himself and members of his extended family have instituted

outside Peru are being perceived negatively by representatives of

Peruvian authorities (see, e.g., paras. 49-50). This is a further element

to be taken into account when assessing whether the applicant would run

a "real risk" of being subjected to treatment contrary to Article 3 on

his return to Peru.

I finally note the facts set out by the majority of the Commission

in paras. 76-78 of the Report. These relate, on the one hand, to the

applicant himself, to the killing and the disappearance of two of his

cousins as well as to the granting of refugee status to members of his

immediate and extended family (see also paras. 18, 20 and 26 in fine).

On the other hand, the facts noted by the majority also relate to the

general situation in Peru. All this information would seem to be of

decisive importance in evaluating the consequences of the applicant's

expulsion to that country.

In these exceptional circumstances I consider that the interest

shown by Peruvian press and presumably by the Peruvian authorities in the

applicant's fate rather than diminishing his risk of facing treatment

contrary to Article 3 has increased it to such an extent as to attain the

threshold set up by the notion of a "real risk" (cf. Eur. Court HR,

Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-

I, p. ..., para. 106).

I am therefore of the opinion that sufficient evidence has been

adduced to establish substantial grounds for believing that the applicant

would be exposed to a real risk of treatment contrary to Article 3 of the

Convention, if returned to Peru. Accordingly, his expulsion to Peru would

violate Article 3 of the Convention.

(Or. English)

DISSENTING OPINION OF MM. F. MARTINEZ, M.A. NOWICKI AND B. CONFORTI

We have voted against the finding of the majority and can subscribe

both to the reasons advanced, on the one hand, by Mr. Geus and others

and, on the other hand, by Mr. Trechsel and others.

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PAEZ v. Sweden

PAEZ v. Sweden

LEXI