Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29482/95

by Jorge Antonio PAEZ

against Sweden

The European Commission of Human Rights sitting in private on

18 April 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 November 1995

by Jorge Antonio Paez against Sweden and registered on 7 December 1995

under file No. 29482/95;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 28 February, the observations in reply submitted by the

applicant on 10 April 1996 as well as the Government's additional

observations of 17 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

resident in Sweden. He is represented by Mr. Tomas Nilsson, a lawyer

in Stockholm.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties or otherwise

available to the Commission, may be summarised as follows.

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

he requested asylum, referring to his activities within the banned

opposition movement "Sendero Luminoso" ("Shining Path"). He had become

a member of the movement in July 1990 and had thereafter participated

in distributing political propaganda in support thereof. In August 1990

he had participated in the building of a road block. He had also taken

part in demonstrations and had given speeches in support of the

movement. On 13 November 1990 his closest superior within the movement

had been arrested and a few days later the applicant had been subjected

to an unsuccessful kidnapping attempt. He had then gone into hiding.

Meanwhile, he had been searched for in his home. He had stayed with

friends until his departure from Peru on 10 February 1991. With the

assistance of friends he had left Peru holding a valid passport.

In support of his asylum request the applicant furthermore

submitted that his family had been very active politically. His parents

had been members of leftist movements. His father had been imprisoned

for four years in the 1960's on account of his activities within such

a movement. One of the applicant's cousins, A, had been arrested and

killed by paramilitary troops in July 1989. Another cousin, E, had been

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

A further cousin, C, had also lodged a request for asylum in Sweden,

principally referring to her activities within a supporting section of

Sendero Luminoso.

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

E's disappearance, received a letter-bomb which blew off one of his

arms. He had previously been threatened to death. He was later granted

asylum in Sweden.

In October 1991 the applicant's mother, L, arrived in Sweden

together with one of her daughters, M. A further daughter, I, arrived

in Sweden in July 1991. In her asylum request L referred to the

kidnappings and disappearances of her nephews A and E in 1989 and 1990,

respectively, which had allegedly been carried out by the Peruvian

paramilitary group "Comando Democratico Rodrigo Franco" ("CDRF").

Having tried to investigate the kidnapping of E, she had been

threatened by members of CDRF. From her husband, who had remained in

Peru, she had learnt that members of CDRF had come to look for her in

August 1991.

On 1 October 1992 C's asylum request was rejected by the Swedish

Government. In November 1992 she lodged an application with the

Commission, alleging that her return to Peru would subject her to

treatment contrary to Article 3 of the Convention. This application was

declared inadmissible as being manifestly ill-founded (No. 20990/92,

Dec. 8.4.93, not published).

On 1 June 1993 the National Immigration Board (statens invandrar-

verk) rejected the applicant's asylum request and ordered his

expulsion. The Board did not question his account of his activities

within "Sendero Luminoso". It considered, however, that his lawful

departure from Peru showed that his activities within the movement had

not become known to the Peruvian authorities. In addition, the Board

considered that, although the applicant had not himself participated

in any serious offences, he had nevertheless been working for an

organisation whose methods were covered by Article 1 F of the 1951

Convention Relating to the Status of Refugees ("the 1951 Convention").

He was therefore in any case not entitled to asylum.

On 16 December 1994 the Aliens Appeals Board (utlänningsnämnden)

decided to refer the applicant's appeal to the Government. In its

opinion to the Government the Board noted that the applicant belonged

to a politically very active and well-known family. It confirmed the

incidents involving his cousins. The Board could not therefore exclude

that the applicant might, on his return to Peru, be persecuted on

account of his and his family's political activities. It therefore

considered that he could claim status as a de facto refugee. The Board

recalled, however, the Swedish Government's decision of principle of

1992 to the effect that asylum seekers who "in one way or another" had

been involved in, inter alia, activities of "Sendero Luminoso" should

not be entitled to asylum. The Board noted that the Government's

decision had been repeatedly criticised.

Before the Government the applicant referred to, inter alia, an

opinion submitted by the Swedish branch of Amnesty International ("AI")

dated 10 May 1995. AI expressed its concern about the fact that the

current human rights situation in Peru was not sufficiently considered

in the Swedish authorities' examination of asylum requests. AI stressed

that no one should be refused asylum on account of having participated

in peaceful activities. AI also stressed that Article 1 F of the 1951

Convention should be interpreted in line with the Handbook on

Procedures and Criteria for Determining Refugee Status of the United

Nations High Commissioner for Refugees ("UNHCR"). AI finally noted that

the applicant's cousin C had obtained refugee status in the Netherlands

after having been recognised as a refugee by the UNHCR.

On 12 October 1995 the Government (the Minister of Labour)

rejected the applicant's appeal, stating as follows:

(translation from Swedish)

"In support of his request for asylum Tapia Paez has stated

that he has been active for the benefit of an organisation

which, according to what is known, has committed repeated

severe crimes of the character referred to in Article 1 F

(a) of [the 1951 Convention]. The protectional provisions

of [that] Convention do not, according to the same Article,

apply to a person who has been active for the benefit of

such an organisation.

The Government share the Aliens Appeals Board's assessment

according to which Tapia Paez is not a refugee within the

eaning of chapter 3, section 2 of the [1989] Aliens Act

[utlänningslag 1989:529]. He must, however, be considered

as having presented weighty grounds within the meaning

of chapter 3, section 1 (3) ... [for his unwillingness to

return to his country of origin on account of the political

situation there]. Accordingly, Tapia Paez in principle

fulfils the requirements for being regarded as a so-called

de facto refugee.

Making an overall assessment, the Government finds, on the

basis of [his] activities for the benefit of the

above-mentioned organisation ..., that there are special

reasons within the meaning of chapter 3, section 4 of the

Aliens Act for not granting [him] asylum. The remaining

grounds invoked [by him] do not constitute any reason for

letting him stay in the country."

Article 1 F (a) of the 1951 Convention reads as follows:

"The provisions of this Convention shall not apply to any

person with respect to whom there are serious reasons for

considering that:

(a) he has committed a crime against peace, a war crime,

or a crime against humanity, as defined in the

international instruments drawn up to make provision in

respect of such crimes; ..."

The applicant's brother had also requested asylum in Sweden,

referring to activities which he had carried out for the benefit of

Sendero Luminoso. By virtue of a similar decision of the Government

dated 12 October 1995 he, too, was ordered to be expelled. This

expulsion order has not yet been enforced either.

The Government's decisions were reported in Peruvian newspapers.

For instance, on 13 October 1995 the newspaper "Expreso" wrote about

the "terrorists" ordered to be expelled from Sweden. It noted, however,

that the Swedish authorities had not disclosed their identities.

On 21 December 1995 the Government stayed the enforcement of the

expulsion in view of the Commission's decision of 7 December 1995 (see

"Proceedings before the Commission").

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

asylum. It noted that the principal reasons advanced by them as to why

they were unwilling to return to Peru were L's attempts to investigate

E's fate; the fact that they came from a family which had been

subjected to persecution by the Peruvian regime; and their fear that

they would be subjected to aggravated political persecution on their

return.

Since it had not been alleged that L's husband, who still

remained in Peru, had been subjected to "problems created by the

authorities or paramilitary groups", the Board regarded the risk that

she and her daughters might be persecuted on their return as uncertain.

They could not therefore be considered refugees within the meaning of

chapter 3, section 2 of the Aliens Act. Making an overall assessment

and giving L, M and I the benefit of the doubt, the Board nevertheless

found that they should be regarded as de facto refugees within the

meaning of chapter 3, section 1 (3), principally because they belonged

to "a well-known family".

The disappearance of E is currently being examined by the

Inter-American Court of Human Rights after referral by the

Inter-American Commission on Human Rights which has requested that the

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

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

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

then his whereabouts have remained unknown (see, e.g., Press release

CDH-CP 1/96).

B. Relevant domestic law

Under chapter 3, section 1 of the 1989 Aliens Act asylum may be

granted to an alien if, inter alia, he is a refugee (1); or if he,

without being a refugee, is unwilling to return to his country of

origin in view of the political situation there and provided he is able

to present weighty grounds in support of his wish to remain in Sweden

(3). The term "refugee" is defined in chapter 3, section 2.

An alien referred to in chapter 3, section 1 is in principle

entitled to asylum. On special grounds asylum may nevertheless be

refused even if the alien fulfils the criteria set out in, inter alia,

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

When considering whether to refuse an alien entry or to issue an

expulsion order, the authorities must examine, pursuant to chapter 8,

sections 1-4 of the Aliens Act, whether the alien can be returned to a

particular country and whether there are other special obstacles

to the enforcement of such a decision. If necessary, the authorities

must also issue instructions regarding the actual enforcement

(chapter 4, section 12).

In exceptional cases the Government may determine whether or not

an alien should be allowed to remain in the country, provided either

the National Immigration Board or the Aliens Appeals Board has referred

the matter for such consideration. Such a referral may take place,

inter alia, if the matter is deemed to be of special importance for the

purpose of obtaining guidance as to the application of the Aliens Act

(chapter 7, section 11).

If the enforcement meets no obstacles under chapter 8, an alien

is to be expelled or returned to the country of origin or, if possible,

to the country from which he or she came to Sweden. If the decision

cannot be enforced in one of these manners or if special reasons exist,

the alien may be sent to another country (chapter 8, section 5).

COMPLAINT

The applicant complains that his expulsion to Peru would violate

Article 3 of the Convention on account of his political background in

that country. He considers that the activities in which he has been

involved within "Sendero Luminoso" do not constitute such serious

offences as to warrant his exclusion from protection under the 1951

Convention. He insists that he has only been involved in "Sendero

Luminoso" activities as a member expressing its political views.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 November 1995 and registered

on 7 December 1995.

On 7 December 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. Pursuant to Rule 36 of its Rules

of Procedure, it also decided to indicate to the Government that it

would be desirable in the interests of the parties and the proper

conduct of the proceedings not to enforce the expulsion order

concerning the applicant until the Commission had examined the

application at the latest on 26 January 1996.

On 25 January 1996 the Commission prolonged its indication under

Rule 36 until 8 March 1996.

The Government's written observations were submitted on

28 February 1996, after two extensions of the time-limit fixed for that

purpose.

On 7 March 1996 the Commission's indication under Rule 36 was

prolonged until 19 April 1996.

On 8 March 1996 the applicant was granted legal aid.

The applicant's observations in reply were submitted on

10 April 1996, after an extension of the time-limit fixed for that

purpose.

The Government submitted additional observations on

17 April 1996.

THE LAW

The applicant complains that his expulsion to Peru would violate

Article 3 (Art. 3) of the Convention because he must fear ill-treatment

on account of his political background in that country. He refers, in

particular, to his activities for the benefit of Sendero Luminoso.

Article 3 (Art. 3) reads as follows:

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

degrading treatment or punishment."

The Government submit that this complaint is manifestly

ill-founded, since there are no substantial grounds for believing that

the applicant would be subjected to a real risk of torture or other

treatment contrary to Article 3 (Art. 3) on his return to Peru. Whilst

not doubting that he has taken part in certain Sendero Luminoso

activities, the Government consider that he is of no interest to the

Peruvian police. For instance, as stated by himself, he has never been

arrested, prosecuted or sentenced on account of such activities, nor

on account of any other crime or offence committed in Peru.

Furthermore, there is no indication that he would presently be

suspected of any crime committed in Peru. He also holds a valid

Peruvian passport by virtue of which he left his country.

As regards the general human rights situation in the receiving

country, the Government refer to reports of Peruvian human rights

organisations according to which the political violence has decreased

and the extrajudicial killings and disappearances have almost ceased.

Torture of, among others, terrorist suspects still occurs during police

interrogations, but not as a rule. According to the information at the

Government's disposal, a Peruvian citizen, who has been returned to his

country after having been refused asylum, is transported from the

airport of arrival to a detention centre and placed under supervision

of a public prosecutor. According to the Government's sources, the risk

that such a person might be tortured can be significantly limited

because of his placement in such a centre.

The Government furthermore refer to the substantial number of

Peruvian asylum seekers who have arrived in Sweden in the recent years.

A number of these have referred to their membership of or support for

Sendero Luminoso. Some of them have been forcibly returned, while

others have returned voluntarily. The Swedish Embassy in Peru has been

in contact with some of those persons, but there are no substantiated

reports that they would have been ill-treated on their return. In any

case, the applicant will not be placed in a situation worse than that

of Peruvians who have returned voluntarily following the refusal of

their asylum requests.

The Government finally underline that chapter 8 of the 1989

Aliens Act reflects almost exactly the principles outlined by the Court

when applying Article 3 (Art. 3) of the Convention to extradition or

expulsion cases. Were the applicant to invoke new information

indicating an obstacle to the enforcement of the expulsion order, the

authorities might therefore stay enforcement with a view to

reconsidering the matter.

The applicant contends that his application is well-founded. He

recalls that in its referral of his case to the Government the Aliens

Appeals Board could not exclude that he might, on his return to Peru,

be persecuted on account of his and his family's political activities

and that he could therefore claim status as a de facto refugee. The

Government in principle recognised him as a de facto refugee but then

refused him asylum on account of his "activities" within an

organisation known to have carried out serious crimes within the

meaning of Article 1 F (a) of the 1951 Convention. However, no evidence

has been presented to the effect that he himself committed such

offences.

The applicant furthermore submits that the fact that he was able

to leave Peru holding a valid passport is not striking as such. Through

bribery it is possible to obtain a passport without any significant

difficulties. There has been no noticeable improvement in the general

human rights situation in Peru. Allegedly, supporters of the Peruvian

Government are carrying out "espionage" in European countries among

members of Sendero Luminoso who have requested asylum. The publicity

surrounding the Government's decision of 12 October 1995 to refuse him

asylum has led to a dramatic increase of the risk that he might be

subjected to treatment contrary to Article 3 (Art. 3) on his return.

His forthcoming placement in a detention centre pending trial may last

a very long time. He finally recalls that his mother and sisters have

been granted asylum in Sweden, principally because they belong to a

"well-known" family.

The Commission has carried out a preliminary examination of the

application and considers that it raises questions of fact and law of

such a complex nature that their determination requires an

examination of the merits. The application cannot therefore be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for

declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging its

merits.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (S. TRECHSEL)

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PAEZ v. SWEDEN

PAEZ v. SWEDEN

LEXI