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.
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.
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.
14.3 The Committee notes that the facts on which
the author’s asylum claim is 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.
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.
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.
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
14.5 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.
14.1 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 Páez 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
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
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