Paez v. Sweden

EUROPEAN COMMISSION OF HUMAN RIGHTS

AS TO THE ADMISSIBILITY OF
Application of PAEZ v. SWEDEN

REF. NO:

ORIGIN: COMMISSION (Plenary)

TYPE: DECISION

PUBLICATION:

TITLE: PAEZ v. SWEDEN

APPLICATION NO.: 29482/95

NATIONALITY: Peruvian

REPRESENTED BY: NILSSON, Tomas, lawyer, Stockholm RESPONDENT: Sweden

DATE OF INTRODUCTION: 19951116

DATE OF DECISION: 19960418

APPLICABILITY:

CONCLUSION: Admissible

ARTICLES: 3

RULES OF PROCEDURE: Rule 36 of the Commission's Rule

LAW AT ISSUE:

Chapter 3, sections 1 and 4, of the 1989 Aliens Act ; Chapter 8, section 5 of the 1989 Aliens Act

STRASBOURG CASE-LAW:

AS TO THE ADMISSIBILITY OF

Application No. 29482/95 by Jorge Antonio PAEZ against Sweden The European Commission of Human Rights sitting in private on 18 April 1996, the following members being present: MM.S. TRECHSEL, President H. DANELIUS C.L. ROZAKIS E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS Mrs. G.H. THUNE MM.F. MARTINEZ L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA E. KONSTANTINOV D. SVÁBY A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL Mr.M. de SALVIA, Deputy 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 16 November 1995 by Jorge Antonio Paez against Sweden and registered on 7 December 1995 under file No. 29482/95; Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission; Having regard to the observations submitted by the respondent Government on 28 February, the observations in reply submitted by the applicant on 10 April 1996 as well as the Government's additional observations of 17 April 1996; Having deliberated; Decides as follows:

THE FACTS

The applicant is a Peruvian citizen, born in 1971 and currently resident in Sweden. He is represented by Mr. Tomas Nilsson, a lawyer in Stockholm. A.Particular circumstances of the case The facts of the case, as submitted by the parties or otherwise available to the Commission, may be summarised as follows. The applicant arrived in Sweden on 12 February 1991. On 4 March he requested asylum, referring to his activities within the banned opposition movement "Sendero Luminoso" ("Shining Path"). He had become a member of the movement in July 1990 and had thereafter participated in distributing political propaganda in support thereof. In August 1990 he had participated in the building of a road block. He had also taken part in demonstrations and had given speeches in support of the movement. On 13 November 1990 his closest superior within the movement had been arrested and a few days later the applicant had been subjected to an unsuccessful kidnapping attempt. He had then gone into hiding. Meanwhile, he had been searched for in his home. He had stayed with friends until his departure from Peru on 10 February 1991. With the assistance of friends he had left Peru holding a valid passport. In support of his asylum request the applicant furthermore submitted that his family had been very active politically. His parents had been members of leftist movements. His father had been imprisoned for four years in the 1960's on account of his activities within such a movement. One of the applicant's cousins, A, had been arrested and killed by paramilitary troops in July 1989. Another cousin, E, had been arrested by the police in October 1990 and had since then disappeared. A further cousin, C, had also lodged a request for asylum in Sweden, principally referring to her activities within a supporting section of Sendero Luminoso. In March 1991 Z, a human rights lawyer engaged in investigating E's disappearance, received a letter-bomb which blew off one of his arms. He had previously been threatened to death. He was later granted asylum in Sweden. In October 1991 the applicant's mother, L, arrived in Sweden together with one of her daughters, M. A further daughter, I, arrived in Sweden in July 1991. In her asylum request L referred to the kidnappings and disappearances of her nephews A and E in 1989 and 1990, respectively, which had allegedly been carried out by the Peruvian paramilitary group "Comando Democratico Rodrigo Franco" ("CDRF"). Having tried to investigate the kidnapping of E, she had been threatened by members of CDRF. From her husband, who had remained in Peru, she had learnt that members of CDRF had come to look for her in August 1991. On 1 October 1992 C's asylum request was rejected by the Swedish Government. In November 1992 she lodged an application with the Commission, alleging that her return to Peru would subject her to treatment contrary to Article 3 of the Convention. This application was declared inadmissible as being manifestly ill-founded (No. 20990/92, Dec.8.4.93, not published). On 1 June 1993 the National Immigration Board (statens invandrarverk) rejected the applicant's asylum request and ordered his expulsion. The Board did not question his account of his activities within "Sendero Luminoso". It considered, however, that his lawful departure from Peru showed that his activities within the movement had not become known to the Peruvian authorities. In addition, the Board considered that, although the applicant had not himself participated in any serious offences, he had nevertheless been working for an organisation whose methods were covered by Article 1 F of the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention"). He was therefore in any case not entitled to asylum. On 16 December 1994 the Aliens Appeals Board (utlänningsnämnden) decided to refer the applicant's appeal to the Government. In its opinion to the Government the Board noted that the applicant belonged to a politically very active and well-known family. It confirmed the incidents involving his cousins. The Board could not therefore exclude that the applicant might, on his return to Peru, be persecuted on account of his and his family's political activities. It therefore considered that he could claim status as a de facto refugee. The Board recalled, however, the Swedish Government's decision of principle of 1992 to the effect that asylum seekers who "in one way or another" had been involved in, inter alia, activities of "Sendero Luminoso" should not be entitled to asylum. The Board noted that the Government's decision had been repeatedly criticised. Before the Government the applicant referred to, inter alia, an opinion submitted by the Swedish branch of Amnesty International ("AI") dated 10 May 1995. AI expressed its concern about the fact that the current human rights situation in Peru was not sufficiently considered in the Swedish authorities' examination of asylum requests. AI stressed that no one should be refused asylum on account of having participated in peaceful activities. AI also stressed that Article 1 F of the 1951 Convention should be interpreted in line with the Handbook on Procedures and Criteria for Determining Refugee Status of the United Nations High Commissioner for Refugees ("UNHCR"). AI finally noted that the applicant's cousin C had obtained refugee status in the Netherlands after having been recognised as a refugee by the UNHCR. On 12 October 1995 the Government (the Minister of Labour) rejected the applicant's appeal, stating as follows: (translation from Swedish) "In support of his request for asylum Tapia Paez has stated that he has been active for the benefit of an organisation which, according to what is known, has committed repeated severe crimes of the character referred to in Article 1 F (a) of [the 1951 Convention]. The protectional provisions of [that] Convention do not, according to the same Article, apply to a person who has been active for the benefit of such an organisation. The Government share the Aliens Appeals Board's assessment according to which Tapia Paez is not a refugee within the eaning of chapter 3, section 2 of the [1989] Aliens Act [utlänningslag 1989:529]. He must, however, be considered as having presented weighty grounds within the meaning of chapter 3, section 1 (3) ... [for his unwillingness to return to his country of origin on account of the political situation there]. Accordingly, Tapia Paez in principle fulfils the requirements for being regarded as a so-called de facto refugee. Making an overall assessment, the Government finds, on the basis of [his] activities for the benefit of the above-mentioned organisation ..., that there are special reasons within the meaning of chapter 3, section 4 of the Aliens Act for not granting [him] asylum. The remaining grounds invoked [by him] do not constitute any reason for letting him stay in the country." Article 1 F (a) of the 1951 Convention reads as follows: "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; ..." The applicant's brother had also requested asylum in Sweden, referring to activities which he had carried out for the benefit of Sendero Luminoso. By virtue of a similar decision of the Government dated 12 October 1995 he, too, was ordered to be expelled. This expulsion order has not yet been enforced either. The Government's decisions were reported in Peruvian newspapers. For instance, on 13 October 1995 the newspaper "Expreso" wrote about the "terrorists" ordered to be expelled from Sweden. It noted, however, that the Swedish authorities had not disclosed their identities. On 21 December 1995 the Government stayed the enforcement of the expulsion in view of the Commission's decision of 7 December 1995 (see "Proceedings before the Commission"). On 16 February 1996 the Aliens Appeals Board granted L, M and I asylum. It noted that the principal reasons advanced by them as to why they were unwilling to return to Peru were L's attempts to investigate E's fate; the fact that they came from a family which had been subjected to persecution by the Peruvian regime; and their fear that they would be subjected to aggravated political persecution on their return. Since it had not been alleged that L's husband, who still remained in Peru, had been subjected to "problems created by the authorities or paramilitary groups", the Board regarded the risk that she and her daughters might be persecuted on their return as uncertain. They could not therefore be considered refugees within the meaning of chapter 3, section 2 of the Aliens Act. Making an overall assessment and giving L, M and I the benefit of the doubt, the Board nevertheless found that they should be regarded as de facto refugees within the meaning of chapter 3, section 1 (3), principally because they belonged to "a well-known family". The disappearance of E is currently being examined by the Inter-American Court of Human Rights after referral by the Inter-American Commission on Human Rights which has requested that the Court find a number of violations of the American Convention on Human Rights. According to the complaint before that Court, E was arrested by agents of the Peruvian National Police in October 1990 and since then his whereabouts have remained unknown (see, e.g., Press release CDH-CP 1/96). B.Relevant domestic law Under chapter 3, section 1 of the 1989 Aliens Act asylum may be granted to an alien if, inter alia, he is a refugee (1); or if he, without being a refugee, is unwilling to return to his country of origin in view of the political situation there and provided he is able to present weighty grounds in support of his wish to remain in Sweden (3). The term "refugee" is defined in chapter 3, section 2. An alien referred to in chapter 3, section 1 is in principle entitled to asylum. On special grounds asylum may nevertheless be refused even if the alien fulfils the criteria set out in, inter alia, chapter, section 1 (3) (chapter 3, section 4). When considering whether to refuse an alien entry or to issue an expulsion order, the authorities must examine, pursuant to chapter 8, sections 1-4 of the Aliens Act, whether the alien can be returned to a particular country and whether there are other special obstacles to the enforcement of such a decision. If necessary, the authorities must also issue instructions regarding the actual enforcement (chapter 4, section 12). In exceptional cases the Government may determine whether or not an alien should be allowed to remain in the country, provided either the National Immigration Board or the Aliens Appeals Board has referred the matter for such consideration. Such a referral may take place, inter alia, if the matter is deemed to be of special importance for the purpose of obtaining guidance as to the application of the Aliens Act (chapter 7, section 11). If the enforcement meets no obstacles under chapter 8, an alien is to be expelled or returned to the country of origin or, if possible, to the country from which he or she came to Sweden. If the decision cannot be enforced in one of these manners or if special reasons exist, the alien may be sent to another country (chapter 8, section 5). COMPLAINT The applicant complains that his expulsion to Peru would violate Article 3 of the Convention on account of his political background in that country. He considers that the activities in which he has been involved within "Sendero Luminoso" do not constitute such serious offences as to warrant his exclusion from protection under the 1951 Convention. He insists that he has only been involved in "Sendero Luminoso" activities as a member expressing its political views.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 November 1995 and registered on 7 December 1995. On 7 December 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. Pursuant to Rule 36 of its Rules of Procedure, it also decided to indicate to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to enforce the expulsion order concerning the applicant until the Commission had examined the application at the latest on 26 January 1996. On 25 January 1996 the Commission prolonged its indication under Rule 36 until 8 March 1996. The Government's written observations were submitted on 28 February 1996, after two extensions of the time-limit fixed for that purpose. On 7 March 1996 the Commission's indication under Rule 36 was prolonged until 19 April 1996. On 8 March 1996 the applicant was granted legal aid. The applicant's observations in reply were submitted on 10 April 1996, after an extension of the time-limit fixed for that purpose. The Government submitted additional observations on 17 April 1996.

THE LAW

The applicant complains that his expulsion to Peru would violate Article 3 (Art. 3) of the Convention because he must fear ill-treatment on account of his political background in that country. He refers, in particular, to his activities for the benefit of Sendero Luminoso. Article 3 (Art. 3) reads as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government submit that this complaint is manifestly ill-founded, since there are no substantial grounds for believing that the applicant would be subjected to a real risk of torture or other treatment contrary to Article 3 (Art. 3) on his return to Peru. Whilst not doubting that he has taken part in certain Sendero Luminoso activities, the Government consider that he is of no interest to the Peruvian police. For instance, as stated by himself, he has never been arrested, prosecuted or sentenced on account of such activities, nor on account of any other crime or offence committed in Peru. Furthermore, there is no indication that he would presently be suspected of any crime committed in Peru. He also holds a valid Peruvian passport by virtue of which he left his country. As regards the general human rights situation in the receiving country, the Government refer to reports of Peruvian human rights organisations according to which the political violence has decreased and the extrajudicial killings and disappearances have almost ceased. Torture of, among others, terrorist suspects still occurs during police interrogations, but not as a rule. According to the information at the Government's disposal, a Peruvian citizen, who has been returned to his country after having been refused asylum, is transported from the airport of arrival to a detention centre and placed under supervision of a public prosecutor. According to the Government's sources, the risk that such a person might be tortured can be significantly limited because of his placement in such a centre. The Government furthermore refer to the substantial number of Peruvian asylum seekers who have arrived in Sweden in the recent years. A number of these have referred to their membership of or support for Sendero Luminoso. Some of them have been forcibly returned, while others have returned voluntarily. The Swedish Embassy in Peru has been in contact with some of those persons, but there are no substantiated reports that they would have been ill-treated on their return. In any case, the applicant will not be placed in a situation worse than that of Peruvians who have returned voluntarily following the refusal of their asylum requests. The Government finally underline that chapter 8 of the 1989 Aliens Act reflects almost exactly the principles outlined by the Court when applying Article 3 (Art. 3) of the Convention to extradition or expulsion cases. Were the applicant to invoke new information indicating an obstacle to the enforcement of the expulsion order, the authorities might therefore stay enforcement with a view to reconsidering the matter. The applicant contends that his application is well-founded. He recalls that in its referral of his case to the Government the Aliens Appeals Board could not exclude that he might, on his return to Peru, be persecuted on account of his and his family's political activities and that he could therefore claim status as a de facto refugee. The Government in principle recognised him as a de facto refugee but then refused him asylum on account of his "activities" within an organisation known to have carried out serious crimes within the meaning of Article 1 F (a) of the 1951 Convention. However, no evidence has been presented to the effect that he himself committed such offences. The applicant furthermore submits that the fact that he was able to leave Peru holding a valid passport is not striking as such. Through bribery it is possible to obtain a passport without any significant difficulties. There has been no noticeable improvement in the general human rights situation in Peru. Allegedly, supporters of the Peruvian Government are carrying out "espionage" in European countries among members of Sendero Luminoso who have requested asylum. The publicity surrounding the Government's decision of 12 October 1995 to refuse him asylum has led to a dramatic increase of the risk that he might be subjected to treatment contrary to Article 3 (Art. 3) on his return. His forthcoming placement in a detention centre pending trial may last a very long time. He finally recalls that his mother and sisters have been granted asylum in Sweden, principally because they belong to a "well-known" family. The Commission has carried out a preliminary examination of the application and considers that it raises questions of fact and law of such a complex nature that their determination requires an examination of the merits. The application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring it inadmissible has been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging its merits. Deputy Secretary to the Commission President of the Commission (M. de SALVIA) (S. TRECHSEL)