Communication No. 39/1996
by: Gorki Ernesto Tapia Paez (represented by counsel)
victim: The author
communication: 19 January 1996
decision of admissibility: 8 May 1996
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
on 28 April 1997,
concluded its consideration of communication No. 39/1996, submitted
to the Committee against Torture by Mr. Ernesto Tapia Paez under article
22 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
taken into account all information made available to it by the author
of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication is Mr. Gorki Ernesto Tapia Paez, a Peruvian citizen,
born on 5 October 1965, at present residing in Sweden, where he is seeking
recognition as a refugee. He claims that his forced return to Peru would
constitute a violation by Sweden of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
He is represented by counsel.
as submitted by the author
2.1 The author
states that since 1989 he has been a member of Shining Path, an organization
of the Communist Party of Peru. On 2 April 1989, he was arrested during
a razzia at the university where he was studying. He was taken to the
police station for identification and released after 24 hours. On 1
November 1989, the author participated in a demonstration at which he
handed out leaflets and handmade bombs. The police arrested about 40
persons, among them the leader of the author's cell. According to the
author, this person was forced to reveal the names of the other cell
members. The same day, the author's house was allegedly searched by
the police and the author decided to go into hiding until 24 June 1990,
when he left Peru with a valid passport issued on 5 April 1990.
2.2 The author
states that he is a cousin of José Abel Malpartida Paez, a member of
Shining Path, who was arrested and allegedly killed by the police in
1989, and of Ernesto Castillo Paez, who disappeared on 21 October 1990.
The author's mother and the father of the missing Ernesto Castillo Paez
obtained assistance from a Peruvian lawyer to investigate his whereabouts.
The lawyer subsequently received a letter bomb, which seriously injured
him, upon which he fled the country and was granted asylum in Sweden.
Several members of the author's family have fled Peru; some of them
were granted asylum in Sweden or the Netherlands. His brother's
application was refused in Sweden, while his mother and two sisters
have been granted asylum as de facto refugees. The author's brother
has filed an application with the European Commission of Human Rights,
which was declared admissible on 18 April 1996. On 6 December 1996,
the Commission adopted its report in which it found that the applicant's
expulsion to Peru would not violate article 3 of the Convention.
2.3 The author
arrived in Sweden on 26 June 1990 and applied for political asylum on
6 August 1990. On 30 March 1993, the Swedish Board of Immigration rejected
his application for political asylum, considering that the author had
participated in serious non-political criminality. On 16 December 1994,
the Aliens Appeal Board found that the author had undoubtedly been politically
active but that he could not be regarded as a refugee according to chapter
3, paragraph 2, of the Aliens Law. The Appeal Board considered that,
although the author could be seen as a de facto refugee, his armed political
activities fell within the framework of article 1 F. of the 1951 Convention
relating to the Status of Refugees,4 and therefore particular
reasons existed not to grant him asylum. The Appeal Board forwarded
the case to the Swedish Government for decision. On 12 October 1995,
the Government confirmed the earlier decision not to grant the author
3.1 The author
claims that his return to Peru would constitute a violation by Sweden
of article 3 of the Convention; the author states that the police usually
torture people in cases concerning "terrorism and treason".
The author asks the Committee to request Sweden not to expel him while
his communication is under consideration by the Committee.
3.2 In support
of the author's claim, reference is made to an enclosed letter, dated
18 August 1994, from the Office of the United Nations High Commissioner
for Refugees' regional office concerning the author's mother. The letter
states that the mother's "subjective fear of persecution can be
supported by objective elements". Reference is also made to a letter
by Human Rights Watch of 26 October 1995, concerning another Peruvian
refugee claimant, which states that "returnees from Sweden are
now considered to be de facto Shining Path guerrillas". Finally,
reference is made to an enclosed copy of a July 1995 report by Human
Rights Watch attesting to the practice of torture in Peru.
3.3 It is stated
that the same matter has not been submitted for examination under any
other procedure of international investigation or settlement.
4. On 15 February
1996, the Committee, through its Special Rapporteur, transmitted the
communication to the State party for comments and requested it not to
expel the author while his communication was under consideration by
5.1 By its
submission of 12 April 1996, the State party challenges the admissibility
of the communication but also addresses the merits of the case. It requests
the Committee, should it not find the communication inadmissible, to
examine the communication on its merits as soon as possible. It informs
the Committee that its national Immigration Board has stayed the enforcement
of the expulsion order against the author until 25 May 1996.
5.2 As regards
domestic procedures, the State party explains that the basic provisions
concerning the right of aliens to enter and to remain in Sweden are
contained in the 1989 Aliens Act. For the determination of refugee status
there are normally two instances, the Swedish Immigration Board and
the Aliens Appeal Board. In exceptional cases, an application is referred
to the Government by either of the two boards. Chapter 8, section 1,
of the Act corresponds to article 3 of the Convention against Torture
and states that an alien who has been refused entry or who is to be
expelled may never be sent to a country where there is firm reason to
believe that he or she 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 on to a country where he would be
in such danger. Further, under chapter 2, section 5, subsection 3, of
the Act, an alien who is to be refused entry or expelled can apply for
a residence permit if the application is based on circumstances which
have not previously been examined in the case and if either the alien
is entitled to asylum in Sweden or it will otherwise be in conflict
with humanitarian requirements to enforce the decision on refusal of
entry or expulsion.
5.3 As regards
the facts of the author's story, the State party emphasizes that he
was able to leave his country with a valid passport, issued after the
police allegedly were looking for him. The author has never claimed
to have bribed officials into giving him a passport, indicating, according
to the State party, that the author was not being sought by the police
when he legally left the country in June 1990. Further, the State party
emphasizes that according to the author's own statements, he was never
arrested, detained, prosecuted or sentenced for his activities for Shining
Path. The only time he was arrested, in April 1989, he was released
after 24 hours without having been tortured.
5.4 The State
party explains that the Government, when deciding that the author should
not be granted asylum in Sweden, also took into account whether the
enforcement of the expulsion order would violate chapter 8, section
1, of the Aliens Act. The Government, after having carefully examined
all elements of the author's case, concluded that it would not.
5.5 The State
party argues that the communication is inadmissible as incompatible
with the provisions of the Convention, for lacking the necessary substantiation.
6.1 As to the
merits of the communication, the State party refers to the Committee's
jurisprudence in the case of Mutombo v. Switzerland,1 and the
criteria established by the Committee, first, that a person must personally
be at risk of being subjected to torture and, second, that such torture
must be a necessary and foreseeable consequence of the return of the
person to his or her country.
6.2 As regards
the general situation of human rights in Peru, the State party, aware
of the information collected by international human rights organizations,
submits that political violence in the country has decreased. The State
party further submits that a number of refugee claimants, allegedly
members of Shining Path, have been deported to Peru from Sweden and
that no substantiated reports of torture or ill-treatment of those persons
upon their return to Peru exist. In this connection, the State party
points out that its embassy in Lima has been in contact with some of
the deportees and that no incidents have been reported. The State party
argues that the author will not be in a worse situation than that of
those who were deported earlier. The State party notes that no consistent
pattern of gross, flagrant or mass violations of human rights exists
6.3 The State
party further recalls the terrorist character of Shining Path and contends
that crimes committed in the name of that organization should not constitute
a reason for granting asylum. The State party refers in this context
to article 1 F. of the 1951 Convention relating to the Status of Refugees.
6.4 The State
party refers to its own legislation, which reflects the same principle
as that of article 3 of the Convention. The State party's authorities
thus apply the same test as the Committee in deciding on the return
of a person to his or her country. The State party recalls that the
mere possibility of a person being subjected to torture in his or her
country of origin does not suffice to prohibit his or her return as
being incompatible with article 3 of the Convention.
6.5 The State
party explains its reasons for concluding that there are no substantial
grounds for believing that the author would personally be at risk of
being subjected to torture upon his return to Peru. It recalls that
the author has been arrested only once, in April 1989 and was released
after 24 hours, and that there are no indications that he was subjected
to torture. Further, the author was able to obtain a valid passport
and to use it to leave Peru. It appears that he is not wanted by the
police for terrorist or other acts. There is no indication that his
activities for Shining Path are known to the authorities. Moreover,
the State party argues that even someone wanted by the police for criminal
acts does not necessarily risk being subjected to torture. According
to the State party's sources, such a person will be arrested at the
airport upon arrival, transported to a detention centre and placed under
the supervision of a public prosecutor. The State party submits that
the risk of torture in a detention centre is very limited. Finally,
the State party explains that the author is free to leave Sweden at
any time to a country of his choice.
6.6 With reference
to the arguments summarized above, the State party argues that no sufficient
evidence exists to demonstrate that the risk of the author being tortured
is a foreseeable and necessary consequence of his return.
7.1 In her
comments on the State party's submission, counsel challenges the State
party's interpretation of article 1 F. of the 1951 Convention relating
to the Status of Refugees and argues that the author's membership of
Shining Path does not suffice to exclude him from the protection of
7.2 As regards
the general situation of human rights in Peru, counsel refers to the
United States Department of State Country Report on Human Rights Practices
for 1995, which states that torture and brutal treatment of detainees
are common and that Government security forces still routinely torture
suspected subversives at military and police detention centres.
7.3 As regards
the author's valid passport, counsel states that this was indeed obtained
through bribes, without further specifying her contention. She claims
that it is possible to obtain a passport and leave the country despite
serious problems with the authorities.
7.4 As regards
the State party's statement that it is not aware of any case in which
reliable information exists that a person was tortured upon being returned
from Sweden to Peru, counsel refers to the case of Napoleon Aponte Inga,
who, upon his return, was arrested at the airport and accused of having
been a terrorist ambassador in Europe. He was brought to trial, acquitted
after four months and then released. According to counsel, during his
detention he was subjected to torture.
concludes that the State party underestimates the risk of the author
being subjected to torture upon his return. She refers to reports indicating
that torture is widely practised in Peru and states that the author
belongs to a well-known family, one of his cousins having been killed
by security forces and another cousin having disappeared.
8. At its sixteenth
session, the Committee considered the admissibility of the communication
and found that no obstacles to the admissibility of the communication
9. The Committee
noted that both the State party and author's counsel forwarded observations
on the merits of the communication and that the State party had requested
the Committee, if it were to find the communication admissible, to proceed
to the examination of the merits of the communication. Nevertheless,
the Committee considered that the information before it was not sufficient
to enable it to adopt its Views.
10.1 In particular,
the Committee wished to receive from author's counsel more precise and
detailed information and substantiation of the claim that the author's
house was searched by the police on 1 November 1989, in particular whether
there were witnesses to this search and how the author found out about
it. The Committee also wished to be informed whether the police returned
to the house to look for the author on further occasions and when and
under what circumstances the author went into hiding.
10.2 With regard
to the author's passport, counsel was requested to elaborate on how
the author obtained his passport on 1 April 1990 and by whom the passport
was issued. The Committee further appreciated receiving information
as to the precise date on which the author left his country and his
means of transportation. Counsel was requested to explain whether the
author took any precautions and, if so, what ones, so as to not be stopped
at the border, since he was travelling under his own name. Finally,
the Committee wished to know what indications the author had that the
police were looking for him at the present time and why he believed
that if he were returned he would be in danger of being subjected to
10.3 The Committee
also wished to receive from the State party more detailed information
regarding its statement that it was not aware of returnees from Sweden
being tortured or ill-treated upon return. The Committee would appreciate
it if the State party would clarify why the author's mother and his
sisters were allowed to stay in Sweden but not the author. In particular,
the Committee would like to know whether the distinction between the
author and his mother and sisters was based solely on the exception
under article 1 F. of the 1951 Convention relating to the Status of
Refugees, or whether additional grounds existed to give the mother and
sisters protection, but not the author.
on 8 May 1996, the Committee decided that the communication was admissible.
party's observations on the merits
12.1 By its
submission of 12 September 1996, the State party explains that its conclusion
that no consistent pattern of gross, flagrant or mass violations of
human rights exists in Peru is based on recent information received
from the embassy in Lima. The embassy referred, inter alia, to
the 1995 report of the local Peruvian human rights organization, La
Coordinadora, which supports the State party's conclusion that it is
mostly poor people, peasants and young criminals who are exposed to
torture during police interrogations.
12.2 The State
party reiterates that there are no substantial grounds for believing
that the author personally would be at risk of being subjected to torture
upon his return to Peru, and states that this conclusion is based on
information from its embassy in Lima with regard to the treatment of
returned Peruvians, who have unsuccessfully requested asylum abroad
by referring to activities they carried out for the benefit of Sendero
Luminoso. The embassy has obtained this information through interviews
and contacts with well-informed persons and human rights organizations
in Peru. The State party does not reveal its sources for
reasons of protection.
12.3 The State
party acknowledges that the author's mother and sisters have been given
de facto refugee status because they belong to a family the members
of which have been involved with Sendero Luminoso. The State party adds
that the author's mother and sisters had been given the benefit of the
doubt. The author, however, has himself been active for Sendero Luminoso,
an organization to which article 1 F. of the 1951 Convention relating
to the Status of Refugees applies. In this context, the State party
explains that it was not the membership of Sendero Luminoso that was
decisive but the author's own statements according to which he had handed
out home-made bombs in November 1989, which were actually used against
the police. According to the State party, there was no reason why the
author should be allowed to stay in the country and there were no obstacles
to the enforcement of the expulsion order.
12.4 The State
party reiterates that there is no indication that the authorities attempted
to prevent the author from leaving Peru, which supports the State party's
view that he is of no interest to the Peruvian police. The State party
submits that it has requested its embassy in Lima to investigate the
matter and that the embassy, on 14 August 1996, reported that the author
has not been and is not wanted by the police for terrorist or similar
acts in Peru.b
12.5 The State
party further questions the author's trustworthiness, since he has not
been able to mention his cell leader's name or the name of the friend
who informed him that he was wanted by the police.
12.6 The State
party maintains that the author has not substantiated his assertion
that an enforcement of the expulsion order to Peru would violate article
3 of the Convention. In this context, the State party observes that
it is a general principle that the burden of proof lies with the person
submitting a claim.
13.1 By its
submission of 16 September 1996, counsel explains that on 1 November
1990, when the author's home was searched, his mother and his brother
were present. At 7 p.m., the door was banged on by two men in civilian
clothes who asked for the author. When they were told that he was not
at home, they searched his room and took books and other documents with
them. During the search, a car without registration plates was parked
outside the house, occupied by two armed men. When the men left, they
told the author's mother to tell him to present himself the following
day at DIRCOTE, the anti-terrorist police force, as they wanted to question
him about his university friends. They added that if he did not appear,
things would be worse for him. After the police left, the author's brother
went to see the author's friends and asked them to tell him not to return
home. Counsel adds that the police did not come again to the house to
look for the author.
13.2 As regards
the author's passport, counsel states that it was issued by the Dirección
de Migraciones in Lima and that the author's friend did all the work
for him. Counsel explains that, at the time, everybody could obtain
a legal passport without a problem. One could also use tramitadores,
who would apply for passports in the name of others for a fixed fee.
Counsel refers to a letter from Amnesty International, Swedish section,
of 10 May 1995, addressed to the Swedish Government, which stated that
the fact that a Peruvian asylum seeker has left the country legally
with a passport should not be considered very important when considering
13.3 The author
left the country on 24 June 1990 by plane (Aeroflot). Friends bribed
a person at the airport, and for protection the author was accompanied
by a member of parliament (of the Unión de Izquierda Revolucionaria)
and former member of the Comisión de Justicia y Derechos Humanos in
maintains that the author would be in danger if returned to Peru. She
bases this on the fact that two of his cousins have been victims of
severe persecutions. In this context, counsel recalls that one of the
author's cousins disappeared and another was killed. Since he belongs
to a politically active family, the author has every reason to fear
for his security if he were to return to Peru.
adds that the author's fears have grown because of newspaper articles
in Peru about the case of his brother which is before the European Commission
of Human Rights, in which it is mentioned that his brother is a member
of Sendero Luminoso.
13.6 In a further
submission of 24 October 1996, counsel refers to a publication by Human
Rights Watch/Helsinki of September 1996, entitled "Swedish asylum
policy in a global human rights perspective". In the publication,
criticism is expressed about Swedish policy towards Peruvian asylum
seekers. According to Human Rights Watch, reforms in Peru have been
minimal, travel documents can be easily obtained by bribing officials
and faceless courts continue to prosecute civilians.
to counsel, the Human Rights Watch/Helsinki reports show how badly informed
the Swedish authorities are about the situation in Peru. She refers
to three cases of refoulement which suggest, according to counsel, that
the primary aim of the Swedish policy is to limit immigration.
13.8 As regards
the State party's claim that the author would not be in danger of being
tortured upon his return to Peru, counsel notes that the State party
bases itself on unrevealed sources. Counsel argues that the State party's
mere reference to a non-provided report does not suffice as proof and
requests a copy of the written report by the embassy, with the name
of the sources deleted if necessary.
also refers to information provided by the Swedish embassy in Lima in
the case of the author's mother, which proved to be wrong on the facts.
This, she claims, means that information provided by the Swedish embassy
must be treated with caution. Counsel also refers to the case of Napoleon
Aponte Inga (who was tortured upon his return to Peru), of which the
Swedish embassy seems to be unaware, although he was finally granted
de facto asylum in Sweden.
submits that, while the situation in Peru may have improved as regards
disappearances and judicial killings, the use of torture is still widespread
and systematic. She refers to a report of Human Rights Watch/Americas
of August 1996, which indicates that torture is generally practised
in cases involving terrorism and thus contradicts the State party's
argument that it is mainly poor people, peasants and young criminals
who suffer torture.
contests the State party's argument that the author is untrustworthy
because he cannot name the leader of his cell. She refers to her submission
of 7 November 1990 to the Immigration Board in which she disclosed the
name of the cell leader.
the author refers to the importance attached by the Office of the United
Nations High Commissioner for Refugees to the experience of relatives.
In this context, she recalls that two of the author's cousins were killed
for political reasons and another cousin was granted political asylum
in the Netherlands. Counsel also submits that although the author has
been active for Sendero Luminoso, he himself never committed any crime
against peace, a war crime or a crime against humanity, and therefore
he should not be excluded from protection under article 1 F. of the
1951 Convention relating to the Status of Refugees.
and proceedings before the Committee
14.1 The Committee
has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22,
paragraph 4, of the Convention.
14.2 The Committee
must decide, pursuant to article 3, paragraph 1, whether there are substantial
grounds for believing that Mr. Tapia Paez would be in danger of being
subjected to torture upon return to Peru. In reaching this decision,
the Committee must take into account all relevant considerations, pursuant
to article 3, paragraph 2, including the existence of a consistent pattern
of gross, flagrant or mass violations of human rights. The aim of the
determination, however, is to establish whether the individual concerned
would be personally at risk of being subjected to torture in the country
to which he or she would return. It follows that the existence of a
consistent pattern of gross, flagrant or mass violations of human rights
in a country does not as such constitute a sufficient ground for determining
that a particular person would be in danger of being subjected to torture
upon his return to that country; additional grounds must exist to show
that the individual concerned would be personally at risk. Similarly,
the absence of a consistent pattern of gross violations of human rights
does not mean that a person cannot be considered to be in danger of
being subjected to torture in his or her specific circumstances.
14.3 The Committee
notes that the facts on which the author's asylum claim are based are
not in dispute. The author is a member of Sendero Luminoso and on 1
November 1989 participated in a demonstration where he handed out leaflets
and distributed handmade bombs. Subsequently, the police searched his
house and the author went into hiding and left the country to seek asylum
in Sweden. It is, further, beyond dispute that the author comes from
a politically active family, that one of his cousins disappeared and
another was killed for political reasons, and that his mother and sisters
have been granted de facto refugee status by Sweden.
14.4 It appears
from the State party's submission and from the decisions by the immigration
authorities in the instant case, that the refusal to grant the author
asylum in Sweden is based on the exception clause of article 1 F. of
the 1951 Convention relating to the Status of Refugees. This is illustrated
by the fact that the author's mother and sisters were granted de facto
asylum in Sweden, since it was feared that they may be subjected to
persecution because they belong to a family which is connected to Sendero
Luminoso. No ground has been invoked by the State party for its distinction
between the author, on the one hand, and his mother and sisters, on
the other, other than the author's activities for Sendero Luminoso.
14.5 The Committee
considers that the test of article 3 of the Convention is absolute.
Whenever substantial grounds exist for believing that an individual
would be in danger of being subjected to torture upon expulsion to another
State, the State party is under obligation not to return the person
concerned to that State. The nature of the activities in which the person
concerned engaged cannot be a material consideration when making a determination
under article 3 of the Convention.
14.6 In the
circumstances of the instant case, as set out in paragraph 14.3 above,
the Committee considers that the grounds invoked by the State party
to justify its decision to return the author to Peru do not meet the
requirements of article 3 of the Convention.
15. In the
light of the above, the Committee is of the view that, in the prevailing
circumstances, the State party has an obligation to refrain from forcibly
returning Mr. Gorki Ernesto Tapia Paez to Peru.
[Done in English,
French, Russian and Spanish, the English text being the original version.]