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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Meeting on 15 May 1998,
Having concluded its consideration of communication No. 83/1997, submitted
to the Committee against Torture 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, her counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is G. R. B., a Peruvian citizen born in
1966, currently residing in Sweden, where she is seeking asylum. She claims
that her forced return to Peru would constitute a violation by Sweden of
article 3 of the Convention against Torture. The author also claims that a
deportation per se would constitute a violation of article 16 of the
Convention. Ms. G. R. B. is represented by counsel.
Facts as Presented by the Author
2.1 The author states that she belongs to a politically active family in
Palcamayo in the Department of Junin. Her parents were sympathizers of the
legal Communist Party of Peru and party meetings were frequently held in
their home. The author also became a supporter of the party. From 1983 to
1985, the author studied to become a nurse in Tarma, another town in the
same department, and she was at that time actively involved in the party's
activities. From 1985 to 1992, the author, who had been granted a
scholarship, studied medicine in the former Soviet Union (Ukrainian SSR).
2.2 On 9 May 1991, the author left Ukraine to visit her parents, and she
arrived in Peru on 11 May 1991. She intended to stay in Peru until August
1991. When arriving in Palcamayo she learnt from her family that her
parents' house had been searched by government soldiers in February the same
year. The soldiers had confiscated books and magazines, some of which had
been sent by the author from Ukraine. The author's parents had been taken to
a prison, where the father had been severely beaten and tortured before they
were released. Her father told the author that she should return to Ukraine
as soon as possible since it was dangerous for her to stay in Peru. She
nevertheless decided to stay a couple of days with relatives in Tarma.
2.3 On 16 May 1991, the author took a bus from Tarma to Palcamayo in order
to visit her parents. According to the author, the bus was stopped on the
way by two men belonging to the Sendero Luminoso. They forced the author off
the bus and she was raped and held as a prisoner for one or two nights
before she managed to escape. Her parents reported the matter to the police,
but according to the author they did not show any interest in the matter.
The author then returned to Ukraine on 19 May 1991.
2.4 A short time after her return to Ukraine, explosives went off at the
doorstep of her parent's house, wounding an aunt and a cousin. According to
the author, the explosion was a revenge for her escape.
2.5 The author arrived in Sweden on 12 March 1993 and requested asylum two
weeks later. On 27 January 1994, the Swedish Immigration Board rejected her
application, considering that there were no indications that she was
persecuted by the Peruvian authorities, and that the acts by Sendero
Luminoso could not be considered as persecution by authorities, but criminal
activities. The Aliens Appeals Board rejected the author's appeal on 8 June
1995, adding that the risk of persecution from non-governmental entities
like Sendero Luminoso could in exceptional cases constitute a ground for
granting refugee status, but that in an internal flight alternative existed
in the author's case. A new application, based on the alleged rape and
medical evidence showing that the author suffered from a post- traumatic
stress disorder, was turned down by the Board on 19 April 1996. On 10
February 1997, a second application, invoking humanitarian reasons, was
rejected by the Aliens Appeals Board. A third application, based on a letter
to the Board from the Human Rights Watch and further medical evidence to
support her claim, was turned down on 23 May 1997.
The Complaint
3.1 The author considers that there exists a substantial risk for her to be
subjected to torture both by Sendero Luminoso and the State authorities, for
which internal flight is no safe solution.
3.2 The author further claims that, in view of her fragile psychiatric
condition and the severe post-traumatic stress disorder from which she is
suffering as a result of her having been raped by Sendero Luminoso members,
the deportation as such would constitute a violation of article 16 of the
Convention.
State Party's Observations
4.1 On 1 August 1997, the Committee, through its Special Rapporteur
transmitted the communication to the State party for comments and requested
the State party under rule 108, paragraph 9, of the rules of procedure, not
to expel the author while her communication was under consideration by the
Committee.
4.2 By submission of 30 September 1997, the State party informs the
Committee that, following its request under rule 108, paragraph 9, the
Swedish Immigration Board has decided to stay the expulsion order against
the author while her communication is under consideration by the Committee.
4.3 As regards the domestic procedure, the State party explains that the
basic provisions concerning the right of aliens to enter and to remain in
Sweden are found in the 1989 Aliens Act, as amended on 1 January 1997. For
the determination of refugee status there are normally two instances, the
Swedish Board of Immigration and the Aliens Appeals Board. In exceptional
cases, an application is referred to the Government by either of the two
boards. In this context, the State party explains that the Government has no
jurisdiction of its own in cases not referred to it by either of the boards.
Decisions to refer a given case to the Government are taken by the boards
independently. The State party clarifies that the Swedish Constitution
prohibits any interference by the Government, the Parliament or any other
public authority in the decision making of an administrative authority in a
particular case. According to the State party, the Swedish Board of
Immigration and the Aliens Appeals Board enjoy the same independence as a
court of law in this respect.
4.4 As of January 1997, the Aliens Act has been amended. According to the
amended Act (chap. 3, sect. 4, in conjunction with sect. 3), an alien is
entitled to a residence permit if he or she experiences a well-founded fear
of being subjected to the death penalty or to corporal punishment or to
torture or other inhuman or degrading treatment or punishment. Under chapter
2, section 5(b), of the Act, an alien who is refused entry, can reapply 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 if it will otherwise be in conflict with humanitarian
requirements to enforce the decision on refusal of entry or expulsion. New
circumstances cannot be assessed by the administrative authorities ex
officio, but only upon application.
4.5 Chapter 8, section 1 of the Act, which corresponds to article 3 of the
Convention against Torture, has been amended and now provides that an alien,
who has been refused entry or who shall be expelled, may never be sent to a
country where there are reasonable grounds (previously firm reasons) to
believe that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or degrading
treatment or punishment (text in italics added in the revised text), nor to
a country where he is not protected from being sent on to a country where he
would be in such danger.
4.6 As to the admissibility of the communication, the State party submits
that it is not aware of the same matter having been presented to another
international instance of international investigation or settlement. The
State party explains that the author can at any time lodge a new application
for re-examination of her case to the Aliens Appeals Board, based on new
factual circumstances. The State party draws the attention to the fact that
a fourth new request for a residence permit is currently pending before the
Aliens Appeals Board. However, since the new circumstances invoked do not
mainly relate to the risks faced by the author if deported, but to
humanitarian reasons to let her remain in Sweden, the Government is not
making a formal objection that domestic remedies are not exhausted, but
leaves this question to the discretion of the Committee. Finally, the State
party contends that the communication is inadmissible as being incompatible
with the provisions of the Convention, since the author's claim lacks
necessary substantiation.
4.7 As to the merits of the communication, the State party refers to the
Committee's jurisprudence in the cases of Mutombo v. Switzerland [FNa] and
Ernesto Gorki Tapia Paez v. Sweden [FNb 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.
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[FNa] Communication No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27
April 1994
[FNb] ] Communication No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May
1997
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4.8 The State party reiterates that when determining whether article 3 of
the Convention applies, the following considerations are relevant: (a) the
general situation of human rights in the receiving country, although the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights is not in itself determinative; (b) the personal risk of the
individual concerned of being subjected to torture in the country to which
he would be returned; and (c) the risk of the individual of being subject to
torture if returned must be a foreseeable and necessary consequence. The
State party recalls that the mere possibility that a person be subjected to
torture in his or her country of origin does not suffice to prohibit his or
her return for being incompatible with article 3 of the Convention.
4.9 As to the current general situation of human rights in Peru, the State
party reiterates that for members of Sendero Luminoso, the Movimiento
Revolucionario T�pac Amaru (MRTA) or similar terrorist organizations who are
wanted by the Peruvian authorities, the risk of torture or ill-treatment
cannot be disregarded. However, it adds, with respect to persons not
belonging to any of the categories above, there is in general no reason of
concern. According to the State party, although the human rights situation
is far from satisfactory, no pattern of gross flagrant or mass violations
exists in Peru.
4.10 As regards its assessment of whether the author would be personally at
risk of being subjected to torture when returned to Peru, the State party
relies on the evaluation of the facts and evidence made by the Swedish Board
of Immigration and the Aliens Appeals Board, showing that there are no
substantial grounds for believing that the author personally would be at
risk. On 27 January 1994, the Swedish Board of Immigration rejected the
author's application on the basis that there were no indications that she
currently was of interest to the Peruvian authorities, inter alia, because
she had not been politically active since 1985 and had been able to visit
the country twice without encountering difficulties with the authorities. As
to persecution by the Sendero Luminoso, the Board of Immigration stressed
that such persecution should be considered as criminal activities
non-attributable to the national authorities and was therefore not a reason
to grant residence permit in Sweden. On 8 June 1995, the Aliens Appeals
Board maintained that no sufficient grounds for asylum existed on account of
risk for persecution from the Peruvian authorities, adding that as to the
threat from Sendero Luminoso, this was considered to be of local character
and an internal flight alternative would therefore be possible.
4.11 On 19 April 1996, the Aliens Appeals Board rejected a new application
for a residence permit by the author, based on the newly presented
circumstances that she had been abducted and raped by members of Sendero
Luminoso and medical certificates from a psychologist and psychotherapist
regarding the author's present state of health. The Aliens Appeals Board
considered that rape in itself did not represent grounds for asylum and
pointed out that for asylum to be granted, such a crime must, inter alia,
have been perpetrated or sanctioned by the authorities, or the situation
must be such that sufficient protection against such an act cannot be
provided by the authorities. The Board did not consider that the
circumstances in the present case indicated that this was the situation and
maintained that there existed an internal flight alternative. As to the
humanitarian reasons invoked by the author, the Board did not consider them
to be sufficient to grant a residence permit.
4.12 On 10 February 1997, the Board rejected a second new application for
residence permit, based on further medical evidence of the author's state of
health. The Board considered that, in accordance with established practice,
a residence permit could only be granted on humanitarian grounds in
exceptional cases, such as when the applicant suffered from a
life-threatening disease for which treatment was not available in the
country of origin or where the person suffered from an exceptionally serious
disability. The humanitarian reasons for asylum were not considered to be
sufficient in the present case. On 23 May 1997, a third new application was
rejected, in which the author invoked the Committee's decision in the case
Ernesto Gorki Tapia Paez v. Sweden, a letter from the Human Rights Watch and
further new medical evidence. The Board did not consider that the
information invoked in the application revealed any new circumstances that
would entitle the author to remain in Sweden.
4.13 With reference to the decisions by the Swedish authorities, accounted
for above, the State party reiterates the main elements in the author's
story which indicate that she does not risk persecution by Peruvian
authorities. The author states that at the time when Sendero Luminoso
started its terrorist acts in the region, she and her family, being
supporters of the legal Communist Party, were accused of having committed
acts of terrorism. However, the author has not been politically active since
1985 when she left Peru to study in the Soviet Union. Further, the author
visited Peru in both 1988 and 1991, without experiencing any difficulties
with the authorities. In 1993, the author obtained a valid passport without
any problems from the Peruvian embassy in Moscow. Adding the author's own
statement that her family reported her abduction by the Sendero Luminoso to
the police, there is nothing to indicate that the authorities were
particularly interested in her or her relatives in Peru. In this connection,
the State party recalls that the author did not apply for asylum until after
two weeks in Sweden, indicating that she was not in immediate need of
protection.
4.14 As regards the persecution that the author fears from the Sendero
Luminoso, the State party stresses that the acts of Sendero Luminoso cannot
be attributable to the authorities. Nevertheless, the State party recognizes
that, depending on the circumstances in the individual case, grounds might
exist to grant a person asylum although the risk of persecution is not
related to a government but to a non-governmental entity. However, the State
party's view in the present case is that, even if there is a risk of
persecution from Sendero Luminoso, it is of local character and the author
could therefore secure her safety by moving within the country.
4.15 The State party concludes that the information provided by the author
about her political affiliation and experiences of abuse by the guerilla
movement does not demonstrate that the risk of her being tortured is a
foreseeable and necessary consequence of her return to Peru. An enforcement
of the expulsion order against the author would therefore not constitute a
violation of article 3 of the Convention.
4.16 Finally, as regards the question of whether there are any humanitarian
grounds to let the author remain in Sweden, the State party shares the
assessment of the Aliens Appeals Board, that there were not sufficient
reasons to grant residence permit on such grounds at the time of the
decisions. It is once again stressed that a fourth new application based on
humanitarian grounds is pending before the Board.
4.17 By way of conclusion, the State party notes that the Committee has
found violations of article 3 in all the cases against Sweden which it so
far has examined on the merits. In this context, the State party points out
that its immigration authorities have a considerable experience, involving
difficult assessments as regards the credibility of the information
submitted. Moreover, they have a considerable knowledge about the human
rights situations in different countries. The State party also recalls that
the test applied by the European Commission of Human Rights under article 3
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, is in principle the same as the one applied by the
Committee under article 3 of the Convention against Torture. However, the
European Commission has declared inadmissible most complaints against Sweden
as manifestly ill-founded. The State party expresses its concern about a
possible development of different standards under the two human rights
instruments of essentially the same right. The State party argues that
diverging standards in this respect would create serious problems for states
which have declared themselves bound by both instruments. Problems would
arise when states attempt to adapt themselves to international case-law, if
this case-law is inconsistent. According to the State party, inconsistent
case-law may also have serious detrimental effects on the overall
credibility of the human rights protection system at international level.
Counsel's Comments
5.1 In a letter dated 2 December 1997, counsel informs the Committee that
the author's fourth new application to the Aliens Appeals Board has been
withdrawn.
5.2 In his comments on the State party's submission, counsel refutes the
statement of the State party that except for members of Sendero Luminoso,
MRTA or similar terrorist organizations who are wanted by Peruvian
authorities, there is no reason to express concern about the use of torture
or ill-treatment in Peru. The author draws the attention of the Committee to
the case of the Peruvian asylum-seeker Napoleon Aponte Inga who was deported
from Sweden and immediately arrested by Peruvian authorities at the airport,
detained and tortured for a period of three months.
5.3 As to the risk of being subjected to torture by Peruvian authorities,
counsel further points out that the reason why the author did not encounter
any problems with the authorities during her visit in Peru during 1988 was
simply that at that time the guerilla movement was hardly present in the
department of Junin and the situation was therefore fairly calm. Counsel
states that it is not correct to say that the author did not have any
difficulties with the authorities during her visit in 1991. In fact, and as
pointed out earlier, owing to her fear of the authorities she did not even
dare to stay with her parents, but preferred to live with other relatives in
another town.
5.4 Counsel refutes the argument of an existing internal flight alternative,
since the author has seen the faces of the members of Sendero Luminoso who
abducted and raped her and for that reason is not safe anywhere in the
country.
5.5 Counsel further states that the fact that the author did not apply for
asylum immediately at the Swedish border does not indicate anything about
the author's need of protection. She was simply tired after a long journey,
in a very bad mental condition and under severe stress.
5.6 Counsel concludes that there are substantial grounds for believing that
the author would be subjected to torture if returned to Peru.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 5(a), of the Convention, that the
same matter has not been and is not being examined under another procedure
of international investigation or settlement. The Committee also notes that
a fourth new application previously pending before the Aliens Appeals Board
has been withdrawn and that all domestic remedies have been exhausted and
finds that no further obstacles to the admissibility of the communication
exist. Since both the State party and the author's counsel have provided
observations on the merits of the communication, the Committee proceeds
immediately with the consideration of the merits of the communication.
6.2 The issue before the Committee is whether the forced return of the
author to Peru would violate the obligation of Sweden under article 3 of the
Convention not to expel or to return a person to another State where there
are substantial grounds for believing that he or she would be in danger of
being subjected to torture. Before the Committee is also the issue of
whether, pursuant to article 16, paragraph 1, the forced return per se would
constitute cruel, inhuman or degrading treatment or punishment not amounting
to torture as defined in article 1.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subject 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; specific grounds must exist that indicate 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.
6.4 The Committee notes that the facts on which the author's claim are
based, are not in dispute. The Committee further notes that the author has
never been subjected to torture or ill-treatment by the Peruvian authorities
and that she has not been politically active since 1985 when she left Peru
to study abroad. According to unchallenged information, the author has been
able to visit Peru on two occasions without encountering difficulties with
the national authorities.
6.5 The Committee recalls that the State party's obligation to refrain from
forcibly returning a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected
to torture is directly linked to the definition of torture as found in
article 1 of the Convention. For the purposes of the Convention, according
to Article 1, "the term 'torture' means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity". The Committee considers that the issue whether the State
party has an obligation to refrain from expelling a person who might risk
pain or suffering inflicted by a non-governmental entity, without the
consent or acquiescence of the Government, falls outside the scope of
article 3 of the Convention.
6.6 The Committee notes with concern the numerous reports of torture in
Peru, but recalls that, for the purposes of article 3 of the Convention, a
foreseeable, real and personal risk must exist of being tortured in the
country to which a person is returned. On the basis of the considerations
above, the Committee is of the opinion that such risk has not been
established.
6.7 The Committee must further decide whether, pursuant to paragraph 1 of
article 16, the author's forced return would constitute cruel, inhuman or
degrading treatment or punishment not amounting to torture as defined in
article 1, in view of the author's poor state of health. The Committee notes
the medical evidence presented by the author demonstrating that she suffers
severely from post-traumatic stress disorder, most probably as the
consequence of the abuse faced by the author in 1991. The Committee
considers, however, that the aggravation of the author's state of health
possibly caused by her deportation would not
amount to the type of cruel, inhuman or degrading treatment envisaged by
article 16 of the Convention, attributable to the State party.
7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the facts as found by the
Committee do not reveal a breach of article 3 or article 16 of the
Convention.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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