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)