Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21096/92

by R.P.M.

against Sweden

The European Commission of Human Rights sitting in private on

8 April 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 December 1992

by R.P.M. against Sweden and registered on 16 December 1992 under file

No. 21096/92;

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

of Procedure of the Commission;

Having regard to the written observations submitted by the

Government on 22 January 1993 and the applicant's observations in reply

submitted on 23 February 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Peruvian citizen, was born in 1966 and is at

present staying in Sweden. Before the Commission he is represented by

Mr Magnus Lundh, a lawyer practising in Malmö.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

In 1983, following his father's death allegedly caused by police

brutality, the applicant started working in Peru for the organisation

Sendero Luminoso ("Shining Path") by distributing leaflets, painting

slogans and participating in demonstrations.

In 1984 the applicant was called up for military service. In the

armed forces he received training in a unit stationed in Ayacucho and

specialising in finding and interrogating suspected members or

supporters of Sendero Luminoso. Meanwhile, he continued to work for the

organisation, warning it against actions planned by the military.

Following the disappearance of a military friend, also a member

of Sendero Luminoso, the applicant, having asked for his friend's

whereabouts, was arrested for five days and interrogated under torture

regarding his suspected contacts with the organisation.

Having been taken to a hospital the applicant deserted and went

into hiding until August 1988, while continuing to work for Sendero

Luminoso, inter alia by training fighting units.

In 1988 the applicant was informed that he had been convicted in

absentia by a military court and sentenced to six years' imprisonment

for his desertion and contacts with Sendero Luminoso. The organisation

then helped him to leave Peru by obtaining a passport for him.

On 30 August 1988 the applicant left Peru and arrived in the then

Soviet Union together with a group of Peruvian students holding grants

for studies there.

In October 1989 he left for Sweden, as he was no longer allowed

to stay in the Soviet Union.

On 28 October 1989 he arrived in Sweden, where he requested

asylum.

In the subsequent police investigation of his reasons for

requesting asylum the applicant stated that neither his parents nor any

of his four siblings had been punished or escaped from persecution in

Peru. Only he and his father had been politically active. The applicant

was unable to specify his father's activities.

On 2 October 1991 the National Immigration Board (Statens

invandrarverk) refrained from deciding on the asylum request and

referred the matter to the Government in accordance with Chapter 7,

Section 11 of the 1989 Aliens Act (utlänningslag 1989:529). In its

opinion to the Government the Board stated:

(translation from Swedish)

"... It has been known for a long time that Sendero Luminoso has

been instigating heinous violent offences in Peru. The

organisation can be held responsible even for systematic

murdering of individuals. [Its] activities have for a long time

been focused on democratically elected governments. Membership

in and/or activities conducted within Sendero Luminoso shall

therefore not, whatever the political aims, entitle anyone to

stay in Sweden for reasons mentioned in Chapter 3, Section 1,

nos. 1 or 3 of the Aliens Act ..."

On 8 July 1992 the Government rejected the applicant's request

and decided to expel (avvisade) him from Sweden, at the same time

issuing a prohibition on return valid until 1 August 1994.

In their decision the Government stated:

(translation from Swedish)

"In support of his asylum request [the applicant] has claimed to

have been politically active and also to have been sentenced to

imprisonment for having deserted from military service. A refusal

to perform military service does not, in principle, constitute

a reason for the granting of asylum. [The applicant] has been

able to leave [Peru] lawfully, which contradicts [his] assertion

that he is being wanted by the [Peruvian] authorities. Having

regard to, inter alia, the above-stated, the Government consider

that [the applicant] does not run the risk of being persecuted

in [Peru]. He shall not be considered a refugee under Chapter 3,

Section 1, no. 1 of [the Aliens Act].

[The applicant] has been working for an organisation which,

according to what is known, has committed repeated heinous

offences (grova övergrepp) in Peru. Even if [he] has not

participated in such activities he has been working for an

organisation whose methods can be regarded as comprising

activities falling within the scope of Article 1 F of the 1951

Convention relating to the Status of Refugees according to which

refugee status is excluded. Thus, regardless of whether [he] has

put forward such reasons against a return to his home country as

mentioned under Chapter 3, Section 1, no. 3 of the Aliens Act

there would exist particular reasons for not granting him asylum

in Sweden.

...

[The applicant] shall therefore be expelled in accordance with

Chapter 4, Section 1, subsection 1, no. 2 of the Aliens Act and,

in accordance with Chapter 4, Section 14, be prohibited from

returning [before 1 August 1994]."

On 21 July 1992 the applicant's further request for a residence

permit and suspension of the enforcement of the Government's decision

of 8 July 1992 was rejected by the National Immigration Board.

On 8 September 1992 the National Immigration Board rejected the

applicant's further request for a residence permit and suspension of

the enforcement of the Government's decision of 8 July 1992.

The applicant has also referred to a letter of 8 August 1992 to

a representative of Amnesty International in Sweden, written by

Mr. F.A., one of the Peruvians whom the Swedish Government decided to

expel on 8 July 1992 but who then returned to Peru voluntarily. In

this letter, Mr. F.A. stated as follows:

(translation from Swedish)

"... I have now been in Peru for about a month. During this

period I have on several occasions been subjected to harassment

... Two weeks ago two masked men came to my mother's home in the

night, threatened her and the rest of the family and demanded to

be informed of my whereabouts and what I was doing. I was forced

to escape; if they had found me I would surely have been made to

disappear or have been tortured.

... In Quiruvilca ... the village was occupied by military and

police. My brother-in-law is living there. I found out that he

is a member of a trade union. Three soldiers came to ask me who

I was; they thought I was a member of the revolutionary movement

TUPAC AMARU (MRTA). When we refused to let them in ... they

started shooting outside ...

... The army is responsible for barbaric acts committed against

defenceless farmers. I saw 90 soldiers invading a small village

called El Hospital. Many people were massacred, the soldiers

stole the animals and destroyed the houses. 60 soldiers raped a

woman during a whole night until 5 a.m., when they left her half-

naked in a small pond following which they killed her. They

caught a small boy, tortured him by hanging him by his testicles

and finally killed him. A farmer named Ramos was present when

this happened; he has no connection with the guerilla, but they

tortured him (probably he was also raped), they stole his money,

killed his animals and forbade him to harvest ...

The military thinks everybody are terrorists ... Now I can prove

all this, but I am in great danger as the intelligence service

(servicios de intelligencia) is after me. They are afraid that

I will report the barbaric acts committed by the military on

President Fujimori's order.

When I was in Sweden I did not believe what was said about Peru.

I was totally surprised by all this. The newspapers do not write

anything about what is happening in the Peruvian mountains.

... I request you to help me leave Peru because my life is in

great danger ..."

One of the applicant's brothers was allegedly reported

"disappeared" for eighteen years, but was found in 1990. In 1991 he was

arrested by the security police, but managed to escape to Sweden, where

he requested asylum.

The applicant's second brother allegedly "disappeared" in

June 1990.

The applicant's mother has on several occasions been interrogated

by police and military officials searching for the applicant.

Relevant domestic law

Under Chapter 3, Section 1, an alien may be granted asylum

because he is a refugee (no. 1) or, without being a refugee, if he

wishes not to return to his home country because of the political

situation there and provided he can put forward weighty reasons in

support of his wish (no. 3).

The term "refugee" refers to an alien who is staying outside the

country of which he is a citizen because he feels a well-founded fear

of being persecuted in that country, having regard to his race,

nationality, belonging to a special group in society or his religious

or political convictions, and who cannot or does not wish to avail

himself of his home country's protection (Chapter 3, Section 2).

An alien as referred to in Chapter 3, Section 1 is entitled to

asylum. Asylum may, however, be refused inter alia if, in the case of

an alien falling under Chapter 3, Section 1, no. 3, there are special

grounds for not granting asylum (Chapter 3, Section 4).

An alien may be refused entry into Sweden if he lacks a visa,

residence permit or other permit required for entry, residence or

employment in Sweden (Chapter 4, Section 1, no. 2).

When considering whether to refuse an alien entry or to expel him

it must be examined whether he, pursuant to Chapter 8, Sections 1-4,

can be returned to a particular country or whether there are other

special obstacles to the enforcement of such a decision (Chapter 4,

Section 12).

A refusal of entry issued by the National Board of Immigration

may be combined with a prohibition on return for a specific period of

time (Chapter 4, Section 14). In refusing entry the Government, too,

may issue a prohibition on return for a specific period of time

(Chapter 7, Section 5, subsection 2).

Under Chapter 7, Section 10 the National Board of Immigration may

review its decision, if new circumstances have emerged or for any other

reason, provided it would not affect the alien negatively or be

irrelevant to him. A review may take place even if an appeal has been

lodged against the Board's decision. If the Board has handed over the

file to the Government it may only review its decision, provided its

opinion is requested by the Government.

The National Board of Immigration may, for special reasons, refer

a request for asylum to the Government together with its opinion on the

matter (Chapter 7, Section 11).

An alien who has been refused entry or who is to be expelled may

never be conveyed to a country where there is firm reason to believe

that he would be in danger of being subjected to capital or corporal

punishment or torture, nor to a country where he is not protected from

being sent to a country where he would be in such danger (Chapter 8,

Section 1).

When a refusal-of-entry or expulsion order is put into effect,

the alien may not be sent to a country where he would risk being

persecuted, nor to a country where he would not be protected from being

sent on to a country where he would risk being persecuted (Chapter 8,

Section 2, subsection 1). An alien may, however, be sent to a country

as referred to in subsection 1 if he cannot be sent to any other

country and if he has shown, by committing a particularly serious

offence, that public order and safety would be seriously endangered by

his being allowed to remain in Sweden. This does not apply if the

persecution threatening him in the other country implies danger to his

life or is otherwise of a particularly grave nature. Similarly, the

alien may be sent to a country referred to in subsection 1 if he has

engaged in activities endangering the national security of Sweden and

if there is reason to suppose that he would continue to engage in such

activities in Sweden and he cannot be sent to any other country

(subsection 2).

If the enforcement is not subject to any obstacles under, inter

alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry

or who is to be expelled is to be sent to his country of origin or, if

possible, to the country from which he came to Sweden. If the decision

cannot be put into effect in the manner indicated in subsection 1 or

there are other special grounds for doing so, the alien may be sent to

some other country instead (Chapter 8, Section 5).

When considering a request for a residence permit lodged by an

alien to be expelled according to a decision which has acquired legal

force, the National Board of Immigration (and in certain cases also the

Government) may stay execution of that decision. For particular reasons

the Board may also otherwise stay execution (Chapter 8, Section 10).

If the enforcing authority finds that enforcement cannot be

carried out or that further information is needed, the authority is to

notify the National Board of Immigration accordingly. In such a case,

the Board may decide on the question of enforcement or take such other

measures as are necessary (Chapter 8, Section 13).

Under the 1991 Ordinance on Residence Permits in Certain Cases

(förordning 1991:1999 om uppehållstillstånd i vissa utlänningsärenden)

an alien who has been staying in Sweden for more than eighteen months

on 1 January 1992 may be granted a residence permit unless there are

special reasons for not granting such a permit. The Ordinance entered

into force on 1 February 1992.

COMPLAINT

The applicant complains that, if returned to Peru, he would be

subjected to treatment contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 December 1992 and registered

on 16 December 1992.

On 16 December 1992 the President of the Commission decided,

pursuant to Rule 36 of the Commission's Rules of Procedure, that it was

desirable in the interest of the parties and the proper conduct of the

proceedings not to return the applicant to Peru until the Commission

had had an opportunity to examine the application.

The President further decided, pursuant to Rule 34 para. 3 and

Rule 48 para. 2(b), to bring the application to the notice of the

respondent Government and to invite them to submit written observations

on its admissibility and merits.

On 15 January 1993 the Commission decided to prolong the

indication under Rule 36 until 19 February 1993.

The observations by the Government were submitted on

22 January 1993.

On 19 February 1993 the Commission prolonged its indication under

Rule 36 until 8 April 1993.

On 23 February 1993 the applicant submitted his observations in

reply.

THE LAW

The applicant complains that, if returned to Peru, he will be

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention, which reads:

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

treatment or punishment."

The Government argue that the application is manifestly ill-

founded for the following reasons.

As regards the general situation in Peru the Government are aware

of the information obtained by Amnesty International and other human

rights organisations. However, there have been no indications of

torture or similar treatment in connection with the arrest and trial

of the leader of Sendero Luminoso, Abimael Guzmán, or any of the other

persons arrested together with him. The general opinion among people

interested in human rights in Peru today appears to be that the special

police force entrusted with the task of arresting Sendero Luminoso

activists suspected of having committed crimes is anxious to avoid

accusations or suspicions of being responsible for ill-treatment of

detainees.

Furthermore, according to a new Act (Ley de Arrepentimiento),

which entered into force in May 1992, members of Sendero Luminoso

suspected of having taken part in terrorist acts and who surrender

themselves to the Peruvian authorities, may get a mitigation of their

sentence. Under this Act such individuals may get assistance when

returning to ordinary life in society, by means of a new identity, a

new place to live and new employment.

Concerning the applicant's case, the Government argue that there

are no substantial grounds for believing that he would run a real risk

of being subjected to torture or other forms of ill-treatment. His

allegation that he has been sentenced to imprisonment in Peru inter

alia for evading military service is not confirmed by any kind of

evidence. According to the accepted procedures for determination of

refugee status, as reflected also in the Handbook on Procedures and

Criteria for Determining Refugee Status published by the Office of the

United Nations High Commissioner for Refugees, it is a general

principle that the burden of proof lies on the person submitting a

claim. He should make an effort to support his statements by any

available evidence and give a satisfactory explanation for any lack of

evidence. If necessary, he must make an effort to produce additional

evidence. In the present case, however, the applicant stated in the

investigation of the reasons behind his asylum request that he did not

intend to make any efforts to adduce evidence about his alleged prison

sentence.

The Government submit that even assuming that the applicant's

prison sentence could be confirmed, such a sentence does not in itself

constitute a sufficient reason for refraining from expelling him. The

applicant was able to leave Peru with a valid passport and together

with a group of scholarship holders appointed by the Peruvian

Government. He obtained a prolongation of his passport at the Peruvian

Embassy in Moscow. The applicant has not made it credible that the

police authorities would have reason to arrest him today, or that he

would be of any interest to the police authorities in Peru for any

reason other than his evading military service. He has not adduced any

evidence or otherwise made it credible that he is wanted by the

authorities in Peru because of his political activities or similar

reasons.

The Government finally recall that some of those asylum seekers

who were refused residence permits and whose expulsion was decided on

the same day as the applicant's have returned to Peru voluntarily. None

of those have, however, been reported arrested.

The applicant refutes the Government's arguments. As regards the

general situation in Peru he points out that the Peruvian Government

have made thousands of people disappear or have executed them without

a trial, or tortured them since the Armed Forces took responsibility

for counter-insurgency operations in December 1992.

The present case is in the applicant's view distinguishable from

that of Vilvarajah and Others v. the United Kingdom (Eur. Court H.R.,

judgment of 30 October 1991, Series A no. 215). Unlike the situation

in Sri Lanka the situation in Peru has not improved. As the applicant

has been an active member of Sendero Luminoso his situation is worse

than that of Peruvians in general. The applicant must be considered to

be known by the Peruvian authorities and would therefore run a great

risk of being extra-judicially executed or "disappearing".

The applicant admits that he left Peru with a valid passport

which he had renewed while living in the Soviet Union. It cannot be

ruled out, however, that a person wanted by the Peruvian authorities

or suspected of being a member of Sendero Luminoso could obtain a

passport of that country, as only very few persons are so well-known

and widely sought for that they would be prevented from leaving the

country. Asylum seekers often face considerable difficulties in

presenting evidence regarding both alleged persecution and their

potential treatment upon their return to a country. According to the

Handbook on Procedures and Criteria for Determining Refugee Status "the

duty to ascertain and evaluate all the relevant facts is shared between

the applicant and the examiner [of his asylum request]." In certain

cases the applicant should be given "the benefit of the doubt"

(paras. 196-197).

The applicant recalls that he went into hiding already in 1984,

following which he lost touch with his family. As he never contacted

any of the then existing human rights organisations in Peru, they know

nothing about him. Once a person has "disappeared" it is extremely

difficult to obtain any information about him from the Peruvian

authorities.

The applicant further points out that the fate of his brothers

is corroborated by public statements, newspaper cuttings and letters.

The applicant finally refers to the letter by Mr. F.A., who may have

been ill-treated upon his return. His case is under investigation by

Amnesty International.

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para. 102).

However, expulsion of an asylum seeker may give rise to an issue

under Article 3 (Art. 3) of the Convention, and hence engage the

responsibility of a Contracting State under the Convention, where

substantial grounds have been shown for believing that the person

concerned would face a real risk of being subjected to torture or to

inhuman or degrading treatment or punishment in the country to which

he is to be expelled (ibid., p. 34, para. 103). A mere possibility of

ill-treatment is not in itself sufficient in this context (ibid., p.

37, para. 111).

The Commission considers that the evidence before it concerning

the applicant's background and the general situation in Peru does not

establish that there are substantial grounds for believing that the

applicant would be exposed to a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) of the Convention if returned

to Peru. In reaching this conclusion the Commission notes the

following.

No evidence such as a warrant of arrest or a summons to appear

before authorities in Peru has been submitted by the applicant. Nor

does it appear from the material in the case file that the applicant

would be of special interest to the Peruvian authorities. Thus, the

allegation that he is wanted has remained unsubstantiated. Furthermore,

the evidence before the Commission concerning the applicant's

background and the general situation in Peru does not establish that

his personal situation is any worse than that of those Peruvians who

have returned voluntarily to their home country following the refusal

of asylum (ibid., p. 37, para. 111).

The Commission also attaches importance to the fact that the

Swedish authorities appear to have gained a considerable experience in

evaluating claims of the present nature by virtue of the large number

of Peruvian asylum seekers in Sweden. It notes that residence permits

have in fact been granted in numerous cases. Moreover, it should be

noted that the authorities are obliged to consider basically the same

factors as are relevant to the Convention organs' assessment under

Article 3 (Art. 3) of the Convention. The Government's decision of

8 July 1992 was furthermore made after careful examination of the

applicant's case (cf. Eur. Court H.R., Cruz Varas and Others judgment

of 20 March 1991, Series A no. 201, p. 31, para. 81).

The Commission in particular observes that Chapter 8, Section 1

of the Aliens Act imposes an absolute obligation on the enforcing

authority in Sweden to refrain from expelling an alien, should the

evolution of the human rights situation in the receiving country

constitute firm reason to believe that he would be in danger of being

subjected to capital or corporal punishment or torture in that country.

In these circumstances the Commission cannot find that

substantiated grounds have been established for believing that the

applicant would be exposed to a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) of the Convention on his

return to Peru (cf. No. 20547/92, D. and Others v. Sweden, Dec.

15.2.93; No. 20809/92, C.M. v. Sweden, Dec. 15.2.93).

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R.P.M. v. SWEDEN

R.P.M. v. SWEDEN

LEXI