C. (I.E.) (Re), Convention Refugee Determination Decisions

 

C. (I.E.) (Re), Convention Refugee Determination Decisions [1991] C.R.D.D. No. 218 No. T90-02709

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario Panel: J. McCaffrey and A. Hope
In camera Heard: September 7, 1990, January 3, 1991 Decision: July 11, 1991 Paraguay (PRY)--Negative--Males--Agents of persecution--Change of circumstances in home country--Exclusion clauses--Human rights violations--Persecution for political opinion--(Indexed). Appearances: Marvin Somers, for the claimant(s). Beth Allen and Rafael Eskenazy, Refugee Hearing Officers.

REASONS FOR DECISION

These are the reasons for the decision of the Refugee Division with respect to the claim to be a Convention refugee [See Note 1 below] of xxxxxxxxxxxxxxxxxxxxxxxxx, a thirty-five-year-old citizen of Paraguay. The claimant bases his claim on a well-founded fear of persecution in Paraguay because of his political opinion. Note 1: "Convention refugee" is defined in s. 2(l) of the Immigration Act, as enacted by R.S.C. 1985, (4th Supp.), c. 28, s. 1, in part, as any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country...

The hearing into the claim was held, pursuant to section 69.1 of the Immigration Act, [as enacted by R.S.C. 1985, (4th Supp.), c. 28, s. 18] on September 7, 1989 and January 3, 1991 at Toronto, Ontario. The claimant was represented by Marvin Somers, Barrister and Solicitor. The panel was assisted at the first session by Beth Allen and at the second by Rafael Eskenazy, Refugee Hearing Officers (RHO). An interpreter proficient in the Spanish and English languages was present throughout the proceedings. The evidence presented at the hearing included the claimant's written testimony in his Personal Information Form (PIF), his oral testimony and documentary evidence submitted by counsel for the claimant and the RHO.

THE EVIDENCE

The following evidence was elicited from the oral and written testimony of the claimant. In 1980, after two years of paid work as an organizer and propagandist for the Partido Colorado Militante (PCM) led by the long-time dictator, Alfredo Stroessner, the claimant was given a job in the Ministry of Interior. His supervisor, xxxxxxxxx xxxxxxxxxxxxxx, organized the staff into five-man teams whose task was to apprehend people opposed to the government. They searched the suspects, homes and arrested them, without warrants, and handed them over to the police for investigation. Other groups passed on the information about the alleged dissidents, and the teams simply executed their superior's orders. Although the work was clandestine, this was a secure, relatively well-paid job, which enabled the claimant to live well and support his mother in reasonable comfort for over nine years. In May 1988, the claimant began to receive threatening letters signed by the PCT (Partido Colorado Tradicionalista). These letters ordered him to stop working for the ministry or they would kill him. He realized that they were from opponents of the government. Three letters were sent to the claimant's home, at intervals of ten to twelve days. At the time, he did not take them seriously, as he considered the government to be stable after thirty-four years in power. On August 17, 1988, while walking home from work for lunch, the claimant was approached at an intersection by three people, who forced him at gunpoint into a truck and drove him for about forty-five minutes to an abandoned house. In his PIF he says he was picked up with four others of his team. He was held there for seven days and subjected to severe torture under interrogation. His captors demanded to know all the details of his work, in particular who gave him his orders. They beat and kicked him, hanged him naked by his arms, burned the soles of his feet with cigarettes and squeezed his testicles. At one point, when he vomited as a result of the pain, he was ordered to eat his vomit. In addition, he was grossly insulted by one of his tormentors, who identified himself as a member of the PCT, a "reform" faction within the governing party. The claimant was astonished, as he had never expected to find himself in such a situation, although supporters of the PCT had numbered among those he had arrested. Finally, his captors released him, threatening to kill his mother if he talked about what had happened to him. He went to a first aid post for treatment for his injuries. As corroboration of this testimony, counsel submitted a letter from a Toronto physician who confirmed the existence of six scars on the claimant's body compatible with his story of torture, and diagnosed him as suffering from extreme post-traumatic stress disorder. [Exhibit C-3.] On November 10, 1988, the door of the claimant's home was blown out by a grenade. The claimant was forced to mov' to another area, since "they" (presumably the PCT) knew his address. After work on November 15 or 16, before he had arranged to move, he was assaulted at the bus stop near his home by three or more people, who beat and kicked him for about three minutes before he managed to escape. The attack was repeated four or five days later and again at the end of the month. They called him a snitch and gossip, and asked him why he was doing such a job. The claimant testified that they must have been confused, because informing was not his role, and they didn't understand that he was just doing a job. The claimant later explained that for the first six years with the ministry, he had indeed worked on collecting information on possible dissidents, and passing it on to others for action. He had only been in the arrest and search unit for the last three years. After the third such attack, he thought about changing his daily routine, but he did not report the incidents to the police, as he didn't really take the matter seriously. On December 10 or 11, 1988, a march was held in Asuncion to celebrate the fortieth anniversary of the proclamation of the Universal Declaration of Human Rights. The claimant testified that "things happened" at the march, and some participants were attacked, injured and jailed. The claimant testified that he had felt that something was going to happen, as the government was not managing matters well. Ministers and government officials were involved in corruption and crime. On February 3, 1989, the dictator Stroessner was ousted in a military coup by General Rodriguez, a long-time friend and political associate, whose daughter was married to Stroessner's son. Rodriguez belonged to the Traditionalist (reform) wing of the governing party. After the coup, the claimant did not report for work. He explained that, from his knowledge of coups in South America, he knew that, with the type of work he had been doing, he would be well advised not even to claim the pay still owed to him. At dawn on February 7, 1989, four days after the coup, the claimant was dragged out of his house in his underwear by five men in sneakers and jeans and wearing mustaches. They searched his home, handcuffed him, asked him why he had kept on working for the government and told him he was now going to disappear. They took him to the Paraguay river, where they beat him and held him under water until he almost drowned. They finally abandoned him, unconscious, by the river, where he was found and helped by some passersby. At this point, the claimant decided that he had to leave the country. He went to visit his mother in Villarica. She was very sad at the thought of his leaving, but he did not tell her the whole story of his problems. The claimant could not say whether any of his co-workers had experienced similar problems, as he had not seen them since the coup. He had not discussed his difficulties with any of them before the coup, because he was afraid his life was in danger. On February 17, 1989, he secured a new Paraguayan identity card without difficulty (his original one had been confiscated during the search of his home ten days earlier), and fled to Argentina, where he remained until he flew to Canada on January 2, 1990. The claimant was asked several questions by the Refugee Hearing officers about the consequences of his actions on those whom he informed on or arrested, and his own attitude to his work. He testified that he took the party job because he wanted to get ahead, and, although he knew the arrests and searches were illegal, he kept the job because it paid well, and because he never stopped supporting the PCM. No one knew where he was working, because it was a sort of clandestine job, for which he was paid in cash by the commissar, and he never wore a uniform or carried an official identity card. The commissar had warned his teams that they risked reprisals, but told them not be afraid. The workers were only occasionally armed, but never used guns for arrest, although they sometimes had to use physical force and fetters to restrain their victims. Asked if he knew what would happen to the people he turned over to the police, he said no, he just left them at the police station. Questioned further, he said that it was better not to know, because there were "disappearances", and that was the reason he didn't look too closely. Asked if it would be dangerous to know these things, he replied that it was not his business. The documentary evidence, particularly exhibit R-2, article from the Toronto Star, September 10, 1990, describes a substantially changed situation for human rights in Paraguay since the claimant's departure, with increasing political freedom, a drastic reduction in the number of detentions. Exhibit R-1, item 1, ICCHRLA Newsletter, 1990, Nos. 1, 2 and 3 concerning Paraguay, reports considerable improvement in the human rights situation, with only a few remaining concerns. Former opposition politicians, some just released from prison, have won election to the new parliament; repressive anti-subversive laws have been repealed; the judiciary has been given increased respect; international human rights covenants have been ratified; all political parties have been recognized and all bans against the media have been lifted. In addition, the "bringing to trial of the most notorious torturers" has resulted in "a marked decrease in reports of torture".

ANALYSIS

Would the claimant face persecution in Paraguay as a result of his employment as a civil servant under the former dictator? Exhibit R-1, Item 3, Response to Information Request No. 3692 from the Immigration and Refugee Board Documentation Centre, [Immigration and Refugee Board Documentation Centre, Response to Information Request No. 3692.] in answer to a query concerning the position of civil servants under the new regime, provides no concrete information, but points out that membership in the governing PCM had for years been a prerequisite to any kind of government employment. There is no evidence that civil servants of the former regime are being brought to trial. Nor are they even being dismissed in large numbers. The article from The Economist of May 6, 1989 (included in the above exhibit) also mentions that the new president, General Rodriguez, declared "the usual big pay raises for civil servants, especially soldiers" as part of his first economic policy moves. In the context of the increased freedom and openness described in the documentary evidence, as well as the absence of evidence of any real pursuit of Militante supporters, the panel finds that there is not a serious possibility of persecution [Adjei v. M.E.I. (1988) 2 F. C. 680 (F. C. A.)] for reasons of the claimant's political opinion. It is an axiom that to have held any kind of government job under Stroessner's dictatorship, one had to at least pay lip service to the ruling party, although there is no evidence that active involvement in the President's (Militante) faction had become a similar requirement in latter years. However, the claimant was not an ordinary civil servant, but was engaged, by his own admission, in clandestine, illegal activities on behalf of the party in power. When he was operating in this illegal manner, his victims did not have recourse to due process, and resorted to the violent reprisals described in his testimony. The mistreatment he suffered at the hands, he believes, of members of the Traditionalist faction of the government party is not condoned by this panel. Now, of course, these same people have access to the system of justice, which we have learned is being overhauled and reformed. The claimant described one occasion on which he was seriously mistreated, which occurred four days after the overthrow of the dictator, and before any of the structural reforms had been instituted. Again, the kind of abuse described is entirely reprehensible, but the weight of documentary evidence strongly indicates that such means of retribution are no longer necessary. If they want to punish him now, they have the legal means at their disposal to do so. If the new regime's housecleaning extends to such minor figures as the claimant, a matter for serious doubt, then what the claimant might face is prosecution for complicity in crimes, not persecution for any of the Convention reasons. Having concluded that there is not a serious possibility that the claimant would face persecution because of his political opinion, and that in fact the only risk he might possibly face on return to Paraguay would be prosecution for criminal activity, the panel determines that xxxxxxxxxxxxxxxxxxxxxxxxx is not a Convention refugee. Once the claimant has been determined not to be a Convention refugee, it is not necessary to decide whether he would be excluded from the definition by virtue of section F of Article 1. [See Note 2 below.] However, the evidence in this case suggests that he would be so excluded. The claimant, by his own admission, was involved in acts which can be described as "crimes against humanity". Note 2: "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;

(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."

The Canadian Criminal Code, [R.S.C. 1985, chap. C-46] in s. 7 (3.76) defines "crime against humanity" as:

"…murder, extermination, enslavement, deportation, persecution, or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and place of its commission and that, at that time and place, constitutes a contravention of customary international law or conventional international law, or is criminal according to the general principles of law recognized by the community of nations..."

It is useful to examine the nature of the claimant's work over the last nine years he was in Paraguay. He gathered information on people suspected of disloyalty to the government party, even to the dominant faction within the party, then apprehended them and delivered them to the police. He knew that these people stood a very good chance of suffering serious physical abuse, even death at the hands of interrogators, but shrugged his shoulders and turned a blind eye to the consequences of his actions, since after all, he was only following orders and doing a job. This twisted logic is known as the "Nurenberg defence", which the Federal Court in Naredo clearly found unacceptable:

Even barbarians and terrorists know full well that torturing and ‘aiding and abetting torturers' are barbaric and inherently criminal. (emphasis added) [Arduenqo Naredo, Fernando and Arduenqo, Nieves del Carmen v. M.E.I. F.C.T.D. no., T-1985-89), Muldoon, July 24, 1990 at p. 17. ]

For nine years the claimant enjoyed a comfortable standard of living by betraying his neighbours to possible imprisonment, torture or death on the mere suspicion that they were opposed to the Stroessner government. He preferred not to dwell upon the probable fate of the people he arrested, but admits that he knew there were disappearances. He "aided and abetted" the torturers and murders, and is as culpable of the torture or death of the victims as those who were directly involved. Therefore, even had the panel found the claimant to be a Convention refugee, we would have found him to be excluded from the definition under section F of Article 1. DATED at Toronto, this 11th day of July, 1991. "Joyce McCaffrey" Concurred in by: "Alice Hope"