against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 28 April 1997,
Having 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,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts 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.
The Facts 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 asylum.
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.
State Party's Observations
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 the Committee.
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
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
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 in Peru.
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
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
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 that Convention.
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.
7.5 Counsel 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.
The Committee's Admissibility Decision
8. At its sixteenth session, the Committee considered the admissibility of
the communication and found that no obstacles to the admissibility of the
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 torture.
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.
11. Accordingly, on 8 May 1996, the Committee decided that the communication
State 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
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
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
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 his case.
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 Peru.
13.4 Counsel 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.
13.5 Counsel 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.
13.7 According 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.
13.9 Counsel 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.
13.10 Counsel 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.
13.11 Counsel 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.
13.12 Finally, 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.
Issues 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