Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20809/92

by C.M.

against Sweden

The European Commission of Human Rights sitting in private on

15 February 1993, the following members being present:

MM. J.A. FROWEIN, Acting President

F. ERMACORA

G. SPERDUTI

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. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 21 September 1992

by C.M. against Sweden and registered on 13 October 1992 under file No.

20809/92;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 27 November 1992 and the observations in reply submitted

by the applicant on 22 December 1992 as well as to the submissions of

the parties at the hearing held on 15 February 1993;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

The applicant is a Peruvian citizen, born in 1966. He is at

present in Sweden.

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

summarised as follows.

The applicant left Lima on 7 September 1990 and arrived in

Stockholm on 9 September 1990. Upon his arrival he applied for

political asylum in Sweden.

Before the police and the National Immigration Board (statens

invandrarverk, hereinafter "the Board") he stated the following.

His father had a good position in a private enterprise and two

of his uncles had held important positions within the Peruvian

administration. He began studies at the Philosophical and Humanist

Department at the Catholic University of Peru in 1985. There, he was

influenced by the extreme poverty of his people and engaged in

anarchist and communist groups.

In 1989 he joined a section of the "civil" branch of the

organisation "Sendero Luminoso", the "Frente", which was active at the

university. After an initial learning period he was entrusted with the

task of spreading propaganda and of enrolling and teaching new members

and also of providing various forms of humanitarian relief to the poor

and to the members of the organisation who were in prison. On 1

November 1989 he was arrested by the police when participating in a

protest march organised by "Sendero Luminoso" which ended in a violent

confrontation with the police in the course of which several persons

were killed. During his detention, which lasted 15 days (the maximum

allowed under the law before the prisoner had to be presented to a

court), he was subjected to several interrogations with torture in

order to force him to confess his belonging to the prohibited

organisation and to have him reveal information as to his engagement

in the organisation and the names of those of its members whom he knew.

The torture consisted of beating and bruising, mock executions and

drowning exercises.

In connection with a propaganda action in June 1990 (distribution

of leaflets) aimed at convincing the local population to boycott the

presidential elections, two of his collaborators were arrested and

disappeared. Fearing that they would give him up under torture he went

into hiding. There he learnt that the police had searched his parents'

home claiming that their son was a terrorist and also that the

organisation was looking for him as he was suspected of being a

traitor. His situation in Peru appearing hopeless he decided to flee

the country which he managed to do with the assistance of his family.

On 9 September 1991 the Board decided to refrain from taking any

decision itself and to hand the matter over to the Government for

decision in accordance with the provisions of Chapter 7, Section 11 of

the Aliens Act (utlänningslagen 1989:259). In its accompanying opinion

the Board stated inter alia:

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

responsible for extremely violent crimes in Peru. The

organisation may even be held responsible for having

systematically killed individual persons. Its activities have for

a long time been directed against democratically elected

governments. Membership and/or activity in the organisation

should therefore not - notwithstanding the political purposes

which may be ascribed to the movement - in themselves entitle

someone to be allowed to stay in Sweden on the basis of the

provisions laid down in Chapter 3, Section 1, nos. 1 (refugee)

or 3 (de facto refugee) of the 1989 Aliens Act.

In view of the above the Board does not consider that [the

applicant] is entitled to asylum."

In his observations in reply, dated 6 November 1991, the

applicant stated that it was not only "Sendero Luminoso" who were

responsible for violent acts in Peru - the same was true of the

Government as appeared, inter alia, from Amnesty International Reports.

He also stated that he had matured politically while in Sweden and that

he did no longer support the ideology of the organisation. He added

that he had received information from his brother in Peru that the

police was looking for him and had, inter alia, interrogated the

brother in the course of their searches.

In further observations submitted on 20 May 1992, the applicant

stressed the deterioration of the political situation in Peru with its

ensuing increase in the number of terrorist acts, on the side both of

"Sendero Luminoso" and of the Peruvian Government. He also stressed the

critical situation which had arisen as a result of certain statements

made by "Sendero Luminoso" leaders in Belgium to the effect that their

organisation planned to take control of the country by 1994. As a

result of this situation membership of "Sendero Luminoso" was now

sanctioned by imprisonment for life and any opponent to the Government,

even if not a member of the organisation, risked up to 20 years'

imprisonment.

On 8 July 1992 the Government rejected the application and

decided to expel (avvisa) the applicant and to forbid him to return to

Sweden before 1 August 1994.

The Government's decision stated:

"The circumstances invoked by [the applicant] are not such as to

convince the Government that he risks persecution in his home

country. He is not a refugee within the meaning of Chapter 3,

Section 1, no. 1 of the Aliens Act.

[The applicant] has worked for an organisation which, according

to what is known, is responsible for several grave acts of

cruelty in Peru. Even if the [applicant] has not participated in

any such activities, he has still worked for an organisation

whose methods must be considered to fall within the scope of

Article 1 F of the 1951 Convention relating to the Status of

Refugees which deals with cases where the Convention's protection

does not apply. Whether or not [the applicant] would have had

such reasons against returning to his home country as are

envisaged in Chapter 3, Section 1, no. 3 (de facto refugee) of

the Aliens Act there would accordingly exist special reasons for

refusing him political asylum.

[The applicant] shall accordingly be expelled (avvisas) in

accordance with Chapter 4, Section 1, first sub-section, no. 2

of the Aliens Act and be forbidden to return to the country in

accordance with Chapter 4, Section 14 of the same Act."

On 18 August 1992 the applicant filed a new application to the

Board requesting a stay of execution of the expulsion decision and a

residence permit. In addition to the reasons invoked in the earlier

proceedings, the applicant submitted a letter from Amnesty

International to the Minister competent for expulsion cases and several

newspaper articles to testify to the risks regarding his personal

safety which he would face if returned to Peru. He pointed in

particular to the fact that several Peruvian newspapers had made public

the fact that he and 18 other Peruvians alleged to have connections

with "Sendero Luminoso" had been ordered to be expelled from Sweden.

As his expulsion was publicly known he stated that he was convinced

that he would be persecuted if returned to Peru.

The Board rejected this last request. Under Swedish law there is

no obstacle to the expulsion of the applicant at any time.

Relevant domestic law

The relevant provisions of the 1989 Aliens Act read:

Chapter 3; Asylum.

Section 1: "The term asylum as used in this Act refers to a

residence permit awarded to an alien because

1. he is a refugee,

...

3. without being a refugee, he is unwilling to return to his

country of origin on account of the political situation there and is

able to invoke very strong grounds in support of this."

Section 2: "The term refugee in the present Act refers to any

foreigner 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 because of his race, nationality, belonging to a special group

in society or his religious or political convictions and who cannot or

who does not wish to avail himself of his home country's protection

..."

Section 4: "An alien as referred to in Section 1 is entitled to

asylum.

Asylum may, however, be refused if,

in the case of an alien falling under Section 1 ... (3), there

are special grounds for not granting asylum,

..."

Chapter 4; Refusal of entry and expulsion.

Section 1: "An alien may be refused entry

...

2. if he does not possess a visa, residence permit or other

document required for entry, residence or employment in Sweden,

..."

Section 12: "When a question concerning refusal of entry or of

expulsion is examined, it is to be considered whether the alien,

pursuant to the provisions of Chapter 8, Sections 1 - 4, cannot be sent

to a particular country or whether there are other special obstacles

to the decision being enforced.

Decisions made by the Government or the ... Board are to include

such directions with regard to enforcement as this examination may call

for."

Chapter 7; Appeals etc ...

Section 5: "The Government may, when deciding to refuse entry or

to expel an alien, also decide that the alien shall be forbidden to

return to Sweden for a certain period of time ... ."

Section 11: The National Immigration Board may refer a case to

the Government for decision if the Board considers such a procedure

called for on account of special reasons. ... "

Chapter 8; Enforcement.

Section 1: "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 suffering capital or corporal

punishment or of being subjected to torture, nor to a country where he

is not protected from being sent to a country where he would be in such

danger."

Section 2: "When a refusal-of-entry or expulsion order is to be

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.

An alien may, however, be sent to a country as referred to in

paragraph 1 if he cannot be sent to any other country and if he has

shown, by committing a particular 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

paragraph 1 if he has conducted activities endangering the national

security of Sweden and if there is reason to suppose that he would

continue to engage in such activities here and he cannot be sent to any

other country."

Section 5: "If enforcement is not subject to any obstacles under

Sections 1 - 4, 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 paragraph 1 or there are other special grounds for doing so, the

alien may be sent to some other country instead."

Section 13: "If the enforcing authority finds that enforcement

cannot be carried out or that further information is needed, the

authority is to notify the ... Board accordingly. In such a case, the

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

measures as are necessary."

COMPLAINTS

The applicant maintains that his expulsion to Peru would violate

Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 September 1992 and

registered on 13 October 1992.

On 2 October 1992 the Acting 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.

On 23 October 1992 the Commission decided that notice of the

application should be given to the respondent Government and that the

parties should be invited to submit written observations on its

admissibility and merits. The Commission also decided to prolong the

indication given under Rule 36 until 11 December 1992.

The Government's observations were submitted on 27 November 1992

and the applicant's observations in reply on 21 December 1992.

In the meantime, on 11 December 1992, the Commission decided to

prolong the indication given under Rule 36 until 16 January 1993.

On 15 January 1993 the Commission decided to hold a hearing on

the admissibility and merits of the application.

The hearing took place on 15 February 1993. The parties were

represented as follows.

The Government:

Mr. Carl Henrik Ehrenkrona Assistant Under-Secretary for Legal

Affairs, Ministry for Foreign

Affairs, agent

Mr. Erik Lempert Permanent Under-Secretary, Ministry

of Culture and Immigration, adviser

Mrs. Katrin Nyman-Metcalf First Secretary, Ministry of Culture

and Immigration, adviser

The applicant:

Mr. Ingemar Strandberg Counsel

Mr. Sten De Geer Assistant Counsel

THE LAW

The applicant complains that he will be subjected to ill-

treatment contrary to Article 3 (art. 3) of the Convention and possibly

killed if expelled to Peru. Article 3 (art. 3) provides:

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

degrading treatment or punishment."

The Government point out that an asylum seeker has the right

under Swedish law to request a re-examination of the question of

asylum. Such a request must be examined by the authorities, provided

that there are new circumstances which could call for a different

decision. Consequently, this possibility is also open to the applicant,

which means, in the Government's opinion, that the question of

exhaustion of domestic remedies might arise.

The applicant considers that in order to exhaust domestic

remedies he could not be required to file new requests for asylum over

and over again.

The Commission notes that the applicant has invoked before the

Commission essentially the same arguments as were considered by the

Government and the National Immigration Board in their decisions. As

there was no appeal against these decisions, it follows that the

applicant must be considered to have exhausted the domestic remedies.

The Government state that there are at present some 900 Peruvians

in Sweden who have applied for political asylum. The Government decided

19 of these applications on 8 July 1992 (including the applicant's) in

order to provide some guidance for the handling of the remaining cases.

Only one application was granted and this for humanitarian reasons. The

Government emphasise that some Peruvians whose requests were rejected

have already returned to Peru voluntarily and that the Government have

received no information to the effect that any of them have been

arrested or subjected to ill-treatment upon their return to Peru.

The Government emphasise that their examination of a request for

asylum under the Aliens Act takes into account the same factors as are

relevant for the application of Article 3 (art. 3) of the Convention

and that they have given the present case careful consideration. In

addition they stress that, having received a total number of

approximately 1,300 asylum requests from Peruvians in 1991-92, the

Swedish authorities have gained a good knowledge of the situation

prevailing in Peru. Out of 314 cases decided in 1992, residence permits

were granted in 216 cases, many on humanitarian grounds.

As regards the present case, the Government point out that the

applicant's activities in Peru only caused him to be detained for 15

days in 1989. They also point to the fact that this detention was not

the result of any particular interest in the applicant personally but

only the result of his taking part in a demonstration which turned

violent. Even if it were true that he was tortured on this occasion,

something which has not been proven, he was still released and could

continue with his activities until he left for Sweden. The Government

note that he could leave Peru using a passport issued in his own name

after 16 August 1990. They also state that available information does

not indicate that the applicant is suspected of any crime committed in

Peru nor that he has taken part in any activity that would be a reason

for the police authorities in Peru to arrest him again. No attempts

were made to prevent him from leaving Peru. The Government thus find

it unlikely that the Peruvian police would still have an interest in

arresting and interrogating the applicant.

As regards the situation in general in Peru, the Government point

out that according to information obtained by the Swedish Embassy in

Lima there have been no indications of treatment contrary to Article

3 (art. 3) of the Convention in the criminal proceedings instituted in

1992 against the leader of Sendero Luminoso, Mr. Abigael Guzmán, and

the other persons arrested together with him. The general opinion among

people interested in human rights in Peru appears to be that the

special police force responsible for arresting Sendero Luminoso

activists suspected of having committed criminal offences is anxious

to avoid being accused of having ill-treated those activists.

The Government further refer to a new Peruvian Act on Repenters

(Ley de Arrepentimiento) which entered into force in May 1992.

According to this Act members of Sendero Luminoso suspected of having

taken part in terrorist acts who have surrendered themselves to the

Peruvian authorities may have their sentence cut by half in mitigation,

and may also receive assistance in returning to an ordinary life in

society in the form of a new identity, a new place to live and new

employment. The Government state that they have been informed that some

1,400 persons have surrendered under this legislation.

The Government finally submit that the applicant may leave Sweden

whenever he wishes, thereby avoiding his expulsion to Peru. Should the

expulsion order be enforced the Swedish Embassy in Peru will be

instructed to monitor the applicant's return and report any incidents

of relevance to his right to asylum.

The applicant disagrees with the Government as regards the

Peruvian authorities' interest in his person. He maintains that the

Peruvian police are informed, at least via local newspapers, about his

connections with Sendero Luminoso and his intended expulsion to Peru.

The applicant also invokes the reports of Amnesty International and

Americas Watch according to which many suspected terrorists have been

arrested, interrogated and maltreated and killed. Thus between January

1983 and June 1992 Amnesty International is said to have documented

4,200 cases of persons who have "disappeared" after arrest by the

Peruvian security forces. He maintains that the situation has

deteriorated after President Fujimori's "coup" in April 1992 and that

people are even more frequently reported "disappeared" or found killed.

The applicant also submits that the fact that the Peruvian

Government have found it necessary to issue the "Ley de

Arrepentimiento" indicates their interest in combating subversive

groups and suspected persons. This is also borne out by the relaxation

of the legal requirements for being considered a terrorist and by the

introduction of the vaguely defined crime "apology of terrorism" in

Peruvian law in the autumn of 1992. He maintains that since he has been

publicly referred to as a terrorist in Peruvian newspapers, he does not

face a mere possibility of ill-treatment, but a real risk of such

treatment and that, accordingly, his expulsion would violate

Article 3 (art. 3).

The applicant finally states that he does not understand how the

Government can state that he may leave Sweden at any time: the Swedish

police has taken away his passport and, furthermore, pursuant to the

Aliens Act his expulsion should be carried out to Peru.

As regards the last point the Government state that although it

is true that the applicant's passport has been taken by the police, it

is clear that he will get it back upon simple request if he decides to

leave Sweden voluntarily.

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 of the case file that the applicant

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

allegation that the applicant is wanted has remained unsubstantiated.

The evidence before the Commission concerning the applicant's

background and the general situation in Peru does furthermore not

establish that his personal situation is any worse than that of those

Peruvians who have returned voluntarily to their home country following

the Government's 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 also 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.

It follows that the complaint 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 Acting President of the Commission

(H.C. KRÜGER) (C.A. FROWEIN)

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C.M. v. SWEDEN

C.M. v. SWEDEN

LEXI