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)