CEDH · CASELAW;REPORTS;ENG — 6 décembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         EUROPEAN COMMISSION OF HUMAN RIGHTS                           Application No. 29482/95                              Jorge Antonio Paez                                    against                                    Sweden                           REPORT OF THE COMMISSION                         (adopted on 6 December 1996)                               TABLE OF CONTENTS                                                                      Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17-58). . . . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 17-34) . . . . . . . . . . . . . . . . . . . . . . 4         B.    The evidence before the Commission            (paras. 35-51) . . . . . . . . . . . . . . . . . . . . . . 7              i.     The United Nations Committee against Torture                  (para. 36) . . . . . . . . . . . . . . . . . . . . . 8              ii.    The Peruvian Government's report to                  the United Nations Economic and Social                  Council (para. 37) . . . . . . . . . . . . . . . . . 9              iii.   The United Nations High Commissioner                  for Refugees (para. 38). . . . . . . . . . . . . . .11              iv.    The United Nations Human Rights                  Committee (para. 39) . . . . . . . . . . . . . . . .12              v.     Human Rights Watch (paras. 40-43). . . . . . . . . .12              vi.    Amnesty International (para. 44) . . . . . . . . . .14              vii.   The State Department of the                  United States of America (para. 45). . . . . . . . .15              viii. The Peruvian press (paras. 46-47). . . . . . . . . .16              ix.    The resurgence of violent Sendero Luminoso                  activities (para. 48). . . . . . . . . . . . . . . .17              x.     The case of Mr. Castillo Paez before the                  Inter-American Commission and Court of                  Human Rights (paras. 49-51). . . . . . . . . . . . .17                               TABLE OF CONTENTS                                                                      Page         C.    Relevant domestic law            (paras. 52-56) . . . . . . . . . . . . . . . . . . . . . .18         D.    The 1951 Convention Relating to the Status            of Refugees            (paras. 57-58) . . . . . . . . . . . . . . . . . . . . . .18   III.   OPINION OF THE COMMISSION       (paras. 59-84). . . . . . . . . . . . . . . . . . . . . . . . .20         A.    Complaint declared admissible            (para. 59) . . . . . . . . . . . . . . . . . . . . . . . .20         B.    Point at issue            (para. 60) . . . . . . . . . . . . . . . . . . . . . . . .20         C.    As regards Article 3 of the Convention            (paras. 61-83) . . . . . . . . . . . . . . . . . . . . . .20              CONCLUSION            (para. 84) . . . . . . . . . . . . . . . . . . . . . . . .24   DISSENTING OPINION OF MM. S. TRECHSEL, I. CABRAL BARRETO, N. BRATZA AND M. VILA AMIGÓ . . . . . . . . . . . . . . . . . . . . .25   DISSENTING OPINION OF Mr. J-C. GEUS, JOINED BY MRS. J. LIDDY and MM. A.S. GÖZÜBÜYÜK, A. WEITZEL, I. BÉKÉS, J. MUCHA AND A. PERENIC. . . . . . . . . . . . . . . . . . . . . . . . . . . .26   DISSENTING OPINION OF MM. F. MARTINEZ, M.A. NOWICKI AND B. CONFORTI . . . . . . . . . . . . . . . . . . . . . . . . . . .29   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . .30   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Peruvian citizen, born in 1971 and currently resident in Sweden. He was represented before the Commission by Mr. Tomas Nilsson, a lawyer in Stockholm.   3.     The application is directed against Sweden. The respondent Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona of the Ministry for Foreign Affairs.   4.     The case concerns the applicant's impending expulsion to Peru. He invokes Article 3 of the Convention.   B.     The proceedings   5.     The application was introduced on 16 November 1995 and registered on 7 December 1995.   6.     On 7 December 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. Pursuant to Rule 36 of its Rules of Procedure, the Commission also decided to indicate to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to enforce the expulsion order concerning the applicant until the Commission had examined the application at the latest on 26 January 1996. On 25 January 1996 the Commission's indication was prolonged until 8 March 1996.   7.     The Government's observations were submitted on 28 February 1996, after two extensions of the time-limit fixed for that purpose. On 7 March 1996 the Commission's indication under Rule 36 was prolonged until 19 April 1996. On 8 March 1996 the applicant was granted legal aid.   8.     The applicant's observations in reply were submitted on 10 April 1996, after an extension of the time-limit fixed for that purpose. The Government submitted additional observations on 17 April 1996.   9.     On 18 April 1996 the Commission declared the application admissible and prolonged its indication under Rule 36 until further notice.   10.    The text of the Commission's decision on admissibility was sent to the parties on 22 April 1996 and they were invited to submit further observations on the merits. Such observations were submitted by the applicant on 9 and 22 May 1996 and by the Government on 20 May 1996.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ   13.    The text of this Report was adopted on 6 December 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose a            breach by the State concerned of its obligations under the            Convention.   15.    The Commission's decision on the admissibility of the application is annexed hereto.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   17.    The applicant arrived in Sweden on 12 February 1991. On 4 March 1991 he requested asylum, referring to his activities within the armed opposition group Partido Comunista del Perú - Sendero Luminoso (Communist Party of Peru - Shining Path; hereinafter "Sendero Luminoso"). He had become a member of the movement in July 1990 and had thereafter participated in distributing political propaganda in support thereof. In August 1990 he had participated in the building of a road block. He had also taken part in demonstrations and had given speeches in support of the movement. On 13 November 1990 his closest superior within the movement had been arrested and a few days later the applicant had been subjected to an unsuccessful kidnapping attempt. He had then gone into hiding. Meanwhile, he had been searched for in his home. He had stayed with friends until his departure from Peru on 10 February 1991. With the assistance of friends he had left Peru holding a valid passport.   18.    In support of his asylum request the applicant furthermore submitted that his family had been very active politically. His parents had been members of leftist movements. His father had been imprisoned for four years in the 1960's on account of his activities within such a movement. One of the applicant's cousins, A, had been arrested and killed by paramilitary troops in July 1989. Another cousin, Mr. Ernesto Castillo Paez, had been arrested by the police in October 1990 and had since then disappeared. A further cousin, Ms. Monica Castillo Paez, had also lodged a request for asylum in Sweden, principally referring to her activities within a supporting section of Sendero Luminoso.   19.    In March 1991 Z, a human rights lawyer engaged in investigating the disappearance of Mr. Castillo Paez received a letter-bomb which blew off one of his arms. He had previously been threatened with death. He was later granted asylum in Sweden.   20.    In October 1991 the applicant's mother, L, arrived in Sweden together with one of her daughters, M. A further daughter, I, arrived in Sweden in July 1991. In her asylum request L referred to the kidnappings and disappearances of her nephews A and Mr. Castillo Paez in 1989 and 1990, respectively, which had allegedly been carried out by the Peruvian paramilitary group Comando Democratico Rodrigo Franco ("CDRF"). Having tried to investigate the kidnapping of Mr. Castillo Paez, she had been threatened by members of CDRF. From her husband, who had remained in Peru, she had learnt that members of CDRF had come to look for her in August 1991.   21.    On 18 June 1992 the National Immigration Board (Statens invandrarverk) refused L, M and I asylum. The Board noted, in particular, that on two occasions I had left Peru and returned there without encountering any problems. The alleged persecution by CDRF could not be considered proven. Finally, the parents of Mr. Castillo Paez were still alive and the father had not considered his security jeopardised. L, M and I appealed to the Aliens Appeals Board (Utlänningsnämnden).   22.    On 1 October 1992 Ms. Castillo Paez was refused asylum by the Swedish Government. In November 1992 she lodged an application with the Commission, alleging that her return to Peru would subject her to treatment contrary to Article 3 of the Convention. This application was declared inadmissible as being manifestly ill-founded (No. 20990/92, Dec. 8.4.93, not published).   23.    On 1 June 1993 the National Immigration Board rejected the applicant's asylum request and ordered his expulsion. The Board did not question his account of his activities within Sendero Luminoso. It considered, however, that his lawful departure from Peru showed that his activities within the movement had not become known to the Peruvian authorities. In addition, the Board considered that, although the applicant had not himself participated in any serious offences, he had nevertheless been working for an organisation whose methods were covered by Article 1 F of the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention"). He was therefore not entitled to asylum.   24.    On 18 August 1994 the Regional Office of the United Nations High Commissioner for Refugees ("UNHCR") stated, as regards L's appeal before the Aliens Appeals Board, as follows:         "... [L] seems to have given a clear account of her       experiences in her country of origin and the reasons for her       departure. The fact that her daughter, [I], has left the       country legally on two occasions should not discredit her       claim. According to information available to UNHCR it is       possible to obtain a passport and leave the country legally by       bribing the relevant officials even if the person concerned       fears difficulties for example because of political activities       directed against the authorities. ..."   25.    On 16 December 1994 the Aliens Appeals Board decided to refer the applicant's appeal to the Government. In its opinion to the Government the Board noted that he belonged to a politically very active and well-known family. It confirmed the incidents involving his cousins. The Board could not exclude that the applicant might, on his return to Peru, be persecuted on account of his and his family's political activities. It therefore considered that he could claim status as a de facto refugee. The Board recalled, however, the Swedish Government's decision of principle of 1992 to the effect that asylum seekers who "in one way or another" had been involved in, inter alia, activities of Sendero Luminoso should not be entitled to asylum. The Board nevertheless noted that the Government's decision had been repeatedly criticised.   26.    Before the Government the applicant referred to an opinion submitted by the Swedish branch of Amnesty International dated 10 May 1995. The organisation expressed its concern about the fact that the current human rights situation in Peru was not sufficiently taken into account in the Swedish authorities' examination of asylum requests. Amnesty International furthermore stressed that no one should be refused asylum on account of having participated in peaceful activities. Article 1 F of the 1951 Convention should be interpreted in line with the Handbook on Procedures and Criteria for Determining Refugee Status of the United Nations High Commissioner for Refugees.   Amnesty International finally noted that the applicant's cousin, Ms. Castillo Paez, had obtained refugee status in the Netherlands after having been recognised as a refugee by the UNHCR.   27.    On 12 October 1995 the Government (the Minister of Labour) rejected the applicant's appeal, stating as follows:         (translation from Swedish)         "In support of his request for asylum [the applicant] has       stated that he has been active for the benefit of an       organisation which, according to what is known, has committed       repeated severe crimes of the character referred to in Article       1 F (a) of [the 1951 Convention]. The protectional provisions       of [that] Convention do not, according to the same Article,       apply to a person who has been active for the benefit of such       an organisation.         The Government share the Aliens Appeals Board's assessment       according to which [the applicant] is not a refugee within the       meaning of chapter 3, section 2 of the [1989] Aliens Act       [utlänningslag 1989:529]. He must, however, be considered as       having presented weighty grounds within the meaning of chapter       3, section 1 (3) ... [for his unwillingness to return to his       country of origin on account of the political situation       there]. Accordingly, [the applicant] in principle fulfils the       requirements for being regarded as a so-called de facto       refugee.         Making an overall assessment, the Government finds, on the       basis of [his] activities for the benefit of the       above-mentioned organisation ..., that there are special       reasons within the meaning of chapter 3, section 4 of the       Aliens Act for not granting [him] asylum. The remaining       grounds invoked [by him] do not constitute any reason for       letting him stay in the country."   28.    The applicant's brother had also requested asylum in Sweden, referring to activities which he had carried out for the benefit of Sendero Luminoso. By virtue of a similar decision of the Government dated 12 October 1995 he, too, was ordered to be expelled. This expulsion order has not yet been enforced.   29.    The Government's decisions of 12 October 1995 were reported in Peruvian newspapers. For instance, on 13 October 1995 the newspaper "Expreso" wrote about the Sendero Luminoso "terrorists" ordered to be expelled from Sweden. It noted, however, that the Swedish authorities had not disclosed their identities.   30.    On 30 November 1995 the Swedish branch of Amnesty International intervened in the proceedings before the Aliens Appeals Board on behalf of L, reiterating its previously expressed concerns regarding her case. It added that the disappearance of her nephew, Mr. Castillo Paez, was under investigation by the Inter-American Commission of Human Rights. This fact in itself naturally meant that the Peruvian authorities' interest in L and her family had increased rather than decreased.   31.    On 21 December 1995 the National Immigration Board stayed the enforcement of the applicant's expulsion in view of the Commission's indication under Rule 36 issued on 7 December 1995 (see para. 6).   32.    On 16 February 1996 the Aliens Appeals Board granted L, M and I asylum as de facto refugees. It noted that the principal reasons advanced by them as to why they were unwilling to return to Peru were L's attempts to investigate the fate of Mr. Castillo Paez; the fact that they came from a family which had been subjected to persecution by the Peruvian regime; and their fear that they would be subjected to aggravated political persecution on their return. Since it had not been alleged that L's husband, who still remained in Peru, had been subjected to "problems created by the authorities or paramilitary groups", the Board regarded the risk that she and her daughters might be persecuted on their return as uncertain. They could not therefore be considered refugees within the meaning of chapter 3, section 2 of the Aliens Act. Making an overall assessment and giving L, M and I the benefit of the doubt, the Board nevertheless found that they should be regarded as de facto refugees within the meaning of chapter 3, section 1 (3), principally because they belonged to "a well-known family".   33.    In its edition of 14 May 1996 the Peruvian newspaper "Politica" reproduced a cable from the news agency AFP according to which the applicant's application had been declared admissible by the Commission. The article was headed: "European Commission of Human Rights accepts application from Sendero Luminoso member." The editor noted the following:         (Translation from Spanish)         "The following cable, which we have reproduced as it arrived       at our office, illustrates the 'progressive' approach       prevailing in certain European circles, where all       South American terrorists are seen as 'freedom fighters' and       the countries of our region as small republics run by       dictators. According to the view expressed in this dispatch       and that held by the distinguished members of the   Commission,       Sendero Luminoso is a harmless political organisation engaging       in propaganda and its courageous active members are persecuted       by fanatical paramilitary groups. Episodes such as this do not       reflect very flatteringly on the attempts by Peruvian       Embassies in Europe to explain the situation."         A caption under a picture stated: "Sweden must grant asylum to Peruvian terrorist".   34.    On 28 June 1996 the applicant lodged a fresh request for a residence permit, referring, inter alia, to the Commission's decision of 18 April 1996 to declare his application admissible. On 3 July 1996 the Aliens Appeals Board decided to stay enforcement of the expulsion order.   B.     The evidence before the Commission   35.    As regards the Peruvian background to the present case, the Commission has had particular regard to the following written evidence available to it.         i.    The United Nations Committee against Torture   36.    In November 1994 the Committee against Torture assessed Peru's initial report submitted under Article 19 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee concluded as follows:         "...       B.    Positive aspects       ...       65. The Committee takes due note of the intensive campaign to make the armed       forces and the police more aware of the need to respect human rights.         66. The Committee is pleased to note the approval of various items of       legislation, such as that permitting procurators to visit places of detention       in areas where a state of emergency has been declared, that providing for       greater flexibility in the procedures relating to terrorism and those which       establish new bodies for protecting human rights.         C.    Subjects of concern         67. One cause for serious concern is the large number of complaints from both       non-governmental organisations and international agencies or commissions       indicating that torture is being used extensively in connection with the       investigation of acts of terrorism and that those responsible are going       unpunished.         68.   The Committee points out that the legislation intended to repress acts       of terrorism does not meet the requirements of international agreements       concerning a fair, just and impartial trial with minimum safeguards for the       rights of the accused (for example, 'faceless' judges, serious limitations on       the right of defence, lack of opportunity to take proceedings before a court,       extension of the period of incommunicado detention, etc.).         69.   The Committee is also concerned by the subjection of civilians to       military jurisdiction and by the fact that, in practice, the competence of       the military courts is being extended as regards cases of abuse of authority.         D.    Recommendations         70.   The Committee is aware of the serious difficulties which Peru is       experiencing because of the terrorist attacks, which are to be condemned, and       hopes that it will succeed in overcoming them.         71.   Despite the determination stated by the delegation of Peru, in the       Committee's opinion, the legislative and administrative measures adopted in       order to comply with the Convention have not been effective in preventing       acts of torture, as required by Article 2, paragraph 1 of the Convention.         73.   Nevertheless, taking into consideration the intentions expressed by the       delegation and the fact that the Government has available to it the means       necessary to eradicate the scourge of torture, the Committee suggests the       adoption of, among others, the following measures:         (a)   The procedure relating to terrorist offences should be reviewed for the       purpose of establishing a prosecution system which is effective but which       preserves the independence and impartiality of the courts and the right of       defence, with the elimination of so-called 'faceless trials' and the holding       of detainees incommunicado;       ...       (f)   Consideration should be given to defining torture as an independent       offence punishable by a penalty appropriate to its seriousness;       ...       (General Assembly; Official Records; Fiftieth Session; Supplement No. 44       (A/50/44), pp. 11-13)."         ii.   The Peruvian Government's Report to the United Nations                  Economic and Social Council   37.    In their 1995 report to the Economic and Social Council the Peruvian Government stated as follows:         159. Since 1980, Peru has been subjected to a criminal offensive by the       terrorist gangs 'Sendero Luminoso' and the Tupac Amaru Revolutionary       Movement, an offensive which has caused over 25,000 deaths and damage       totalling over US$ 25 billion, an amount greater than the country's external       debt. In addition, thousands of families have been driven from their homes by       the violence which is rife in rural areas.         160. The State has been compelled to resort to criminal legislation and the       suspension of rights as permitted under states of exception in order to deal       with this exceptional criminal activity. In addition, a legal and       institutional framework has been designed in order to deal effectively with       terrorism, which had spread throughout the country and was seriously       threatening the very life of the nation. ...         161. Offences committed for terrorist purposes, which are the subject of       this special legislation, are of two types: (a) ordinary terrorist offences       and related offences, and (b) the offence of treason.         The offence of terrorism         162. An ordinary terrorist offence consists in provoking, creating or       maintaining a state of anxiety, terror or fear among the population or part       of the population. It covers acts committed by any person against life,       security of person, individual freedom, property, the security of buildings,       roads or railways, electricity pylons or power plants. The means must involve       the use of weapons, explosive materials or devices or any other means which       may cause damage or serious disturbance of the peace or affect the       international relations or security of society or the State.         163. On this basis, definitions have been made of a number of aggravated       offences, such as membership of an armed gang, attacks on property for       terrorist purposes and the use of minors in the perpetration of these       offences. Included also in this definition are acts of collaboration with       terrorism, such as the storing of explosives, financial assistance, or the       organisation of indoctrination or training courses or centres for terrorist       groups. Other prohibited acts are association for purposes of terrorism,       public incitement to terrorism, and advocacy of violence and terrorism.         164. These characterisations constitute a precise framework for all acts       perpetrated by terrorists and enable a distinction to be made between a       political opponent who uses peaceful means of dissent and a terrorist       belonging to an armed gang that uses criminal methods in an attempt to       destroy the State and impose a totalitarian plan on society.         The offence of treason         165. A person is guilty of the offence of treason if he perpetrates any of       the following six criminal acts:              (a)    First, if he uses car bombs or weapons which cause death or       create serious social danger, provided that the fundamental characteristic of       causing a state of anxiety exists;              (b)    Secondly, if he stores or is in possession of explosives       intended for use in terrorist acts of sabotage such as those described above;              (c)    Thirdly, if he is a ringleader of a terrorist organisation;              (d)    Fourthly, if he is a member of a murder squad set up physically       to eliminate persons;              (e)    Fifthly, if he supplies reports, plans or documents intended to       aid and abet terrorist acts of sabotage provided for in subparagraphs (a) and       (b) above;              (f)    Sixthly, if as a teacher he influences his students by       advocating terrorism.         166. The acts characterised as offences in the previous paragraph are also       liable to the punishment prescribed for the most serious forms of terrorism.       The characterisation is rigid and is drawn from national experience of the       behaviour of the terrorist gangs, and at the same time includes those acts       which cause the greatest damage and public alarm.         Anti-terrorist trials         167. Anti-terrorist procedural legislation seeks to render the crime control       agencies efficient by providing them with the necessary tools to punish       severely the perpetrators of, and accomplices in, offences committed for       terrorist purposes. To that end, the powers of the police have been       increased, without reducing the Public Prosecutor's powers of monitoring and       supervision. Provision has been made for very rapid proceedings in order to       respond quickly to charges of such offences, making it possible to determine       promptly and fairly the legal status of the accused. The institution of the       'faceless judges', which is Colombian in origin, and the use of military       courts to try cases of treason for terrorist purposes constitute two       essential parts of this system of prosecution. These steps have been taken       because the terrorist gangs used to identify judges and intimidate them and,       in many instances, made attempts on their lives. In addition, because of the       precarious state of the judicial system, which in fact made reform essential,       the perpetrators of, and accomplices in, these offences were able to escape       proper punishment; consequently, given the increase in terrorist violence, it       became essential to resort to the military courts in order to try terrorist       acts constituting treason.         168. The Constitution establishes a maximum of 15 days' pre-trial detention       by the police. Notwithstanding this, detainees do not lack a proper defence       because the role of the Public Prosecutor's Department was not abolished by       the anti-terrorist legislation. The Procurator not only visits detention       centres and provides defence for detainees, but ensures that the police       investigation does not exceed the limits imposed by law. Every detention is       reported to the Public Prosecutor and the judge, and it is from that point       that the procurators begin their work of monitoring and supervision. The       Constitution prohibits torture and recognises the right of detainees to ask       for an immediate medical examination. Consequently, although the police now       have greater powers, the Peruvian legal system recognises the power of the       Public Prosecutor's Department to guarantee the rights of the citizen and the       right of the latter to demand medical examinations in order to establish       whether or not he has been subjected to improper treatment.         169. In cases of treason, Decree-Law No. 25,744 authorised the extension of       police custody; that decision was incumbent not on the police themselves but       on the military judge. In any event, without prejudice to the institutional       guarantees specified above, the present Constitution does not permit such an       extension (Constitution, art. 2, para. 24 (f)).         170. Decree-Law No. 25,475 restricts the intervention of the defence counsel       to the period immediately preceding the formal statement by the accused; the       enactment of this provision was due to the existence of an organisation made       up of lawyers linked to the terrorist gangs who would coach the detainees,       threaten them and force them to adopt a certain attitude during the trial.       This restriction should be viewed in the light of the work of the Procurator       in protecting civil rights. The present Constitution stipulates that any       person has the right to communicate personally with a defence counsel of his       choosing and to be advised by him as soon as he is summoned or detained by       any authority (art. 139, para. 14). Consequently, this constitutional       provision takes precedence over the concern to provide maximum guarantees of       the right of defence.         171. Furthermore, the offence of enforced disappearance has been added to       Peruvian criminal legislation (Decree-Law No. 25,592 of 2 July 1992), which       punishes any public official or servant who deprives a person of his freedom       by ordering or performing acts which result in that person's duly established       disappearance. The existence of this offence demonstrates the State's       determination, through legislation, to punish severely acts by officials of       the security agencies which violate human rights. The statement that these       acts are investigated by the Provincial Procurator and the issue of specific       guidelines on this subject (...), as well as the keeping of the National       Register of Detainees, with international cooperation, prove that such acts       are not tolerated by the Government and that they in fact constitute a       serious retrograde step in the national peacemaking campaign.         172. The armed forces and the National Police have also issued numerous       guidelines and regulations designed, first, to educate members of the armed       forces and the police in respect for human rights, secondly, to avoid acts       which constitute violations of civil rights, and thirdly, to punish severely       the perpetrators of human rights violations.         Easing of anti-terrorist legislation         173. The legal measures adopted by the Government as part of its efforts to       tackle terrorism have led to the dismantling of subversive groups, with the       capture of important leaders in various parts of the country and the active       participation and organised support of the community. As a result it has       become necessary to relax the measures in question (E/1990/5/Add.29)."         iii. The United Nations High Commissioner for Refugees   38.    By letter of 15 December 1995 the Regional Representative of the UNHCR approached the Director-General of the Swedish Aliens Appeals Board on behalf of Mr. Napoleon Teobaldo Aponte Inga, a Peruvian asylum seeker removed from Sweden to Peru in September 1994 and thereafter allegedly arrested, accused of terrorism and tortured. He had subsequently re- entered Sweden, again seeking asylum. The Regional Representative wrote as follows:         "... When Mr. Aponte Inga's claim was previously examined, our office,       despite knowing of the case and considering that it required a particularly       careful weighing of factors, decided on balance not to intervene. We are       reluctant to intervene when issues of credibility are at stake, and Mr.       Aponte's credibility had been questioned because of his failure to seek       asylum despite having been in Sweden for over six months. We were of course       a