Communication
No. 83/1997
Submitted by :
G. R. B. (name withheld) [represented
by counsel]
Alleged victim:
The author
Date of communication:
2 June 1997
The Committee against
Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
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
Communication No. 13/1993 (CAT/C/12/D/13/1993), Views adopted
on 27 April 1994. and Ernesto Gorki Tapia Paez v. Sweden
Communication No. 39/1996 (CAT/C/18/39/1996), Views adopted
on 7 May 1997. 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.
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
Túpac 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.]
