European Court of Human Rights - case of Cruz Varas and Others v. Sweden (March 1991)

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EUROPEAN COURT OF HUMAN RIGHTS

Cruz Varas and Others v Sweden

(Application no. 15576/89)

20 March 1991

[...]

AS TO THE FACTS

I.The particular circumstances of the case

12. The applicants are Mr Hector Cruz Varas (the first

applicant), his wife Mrs Magaly Maritza Bustamento Lazo (the

second applicant) and their son Richard Cruz, born in 1985 (the

third applicant). All of the applicants are Chilean citizens.

13. The first applicant came to Sweden on 28 January 1987 and

applied the following day for political asylum. He was joined

there by the second and third applicants on 5 June 1987.

A. The decision to expel the applicants

14. On 22 June 1987 the first applicant was interrogated by the

Police Authority (polismyndigheten) of Växjö as to his reasons

for requesting political asylum. As regards his background in

Chile he provided the following information. In 1968 he became a

member of the Radical Party's Youth Federation. He joined the

Socialist Party in 1970 and remained a member after the coup

d'état in 1973 as a result of which the coalition Government of

President Allende was replaced by the regime under the Presidency

of General Pinochet. In 1971 he also became a member of the FDR

Party (the Revolutionary Workers Front) of which he was the

secretary until 1973 and worked to create opposition against the

Pinochet régime. In 1976 he was arrested and taken to a military

camp where he was detained for two days. He joined the Mormons

in 1976. From 1976 to 1982 he remained passive politically. In

1982 he moved to Villa Alemana and became involved in

distributing leaflets for the Democratic Front. He participated

in many demonstrations and two general strikes (August 1985 and 4

June 1986). He was arrested in 1973 and 1974 for breaking a

curfew. He was also arrested in August 1985 by agents of the CNI

(Central Nacional de Investigaciones de Chile) for having entered

a prohibited area on a bicycle. He was released after four

hours. Apart from these incidents he had been left alone by the

Chilean police and military. He gave as his reasons for leaving

Chile the fact that he could not keep his house in Villa Alemana

where he lived with his family and his poor financial situation

resulting from lengthy periods of unemployment. He was not able

to pay his mortgage and chose to sell the house to avoid an

enforced sale.

15. In a memorial to the National Immigration Board (statens

invandrarverk - "the Board") dated 27 July 1987 the first

applicant, through his legal counsel, commented upon the above

interrogation. He stated that in 1976 he had been arrested with

four friends and ill-treated. They were not allowed to sleep and

were obliged to stand naked. One of his friends was beaten on

this occasion.

16. On 21 April 1988 the Board decided to expel the applicants

and prohibited them from returning to Sweden before 1 May 1990

without the Board's permission. It also rejected the applicants'

requests for declarations of refugee status and travel documents.

The Board considered that the applicants had not invoked

sufficiently strong political reasons to be considered as

refugees under Section 3 of the Aliens Act (utlänningslagen,

1980 : 376) or the 1951 Geneva Convention relating to the Status

of Refugees.

17. The applicants appealed to the Government. The first

applicant did not invoke any new circumstances. He pointed out

that he did not receive all of the letters sent to him from Chile

and could not therefore submit any documents from Chile in

support of the appeal.

18. The appeal was rejected by the Government (Ministry of

Labour) on 29 September 1988.

19.The applicants then alleged to the Police Authority of

Varberg that there were impediments to the enforcement of the

expulsion order and requested that their case be referred to the

Board. The first applicant was interrogated by the Police

Authority of Varberg on 19 October 1988. He stated that he had

new reasons to invoke in support of his application for asylum.

He considered that he ran the risk of political persecution,

torture and possibly death, if he returned to Chile, because of

his continued involvement in Sweden with a political group known

as the Frente Patriótico Manuel Rodriguez (FPMR) - a radical

organisation that had tried to kill General Pinochet. He had

started to work for this group after his arrival in Sweden. He

feared that his activities in Sweden which began in February 1988

and included the distribution of leaflets to support political

prisoners in Chile would be known to the CNI.

20. The Police Authority of Varberg decided on 21 October 1988

to reject the applicants' request and to enforce the expulsion

decision by sending them by plane to Chile on 28 October 1988 at

16.00 hours from Landvetter Airport in Gothenburg. An appeal

against this decision was rejected by the Board on 26 October

1988. On 27 October 1988 the applicants again requested that

their case be transferred to the Board. On 28 October 1988 the

Police Authority refused this request, and the applicants' appeal

against refusal was rejected by the Board on the same day. In

his letter of appeal Mr Cruz Varas, through a new legal counsel,

stated that he had contributed signed articles in the FPMR

newspaper (El Rodriguista) and had expressed himself critically

about the regime in Chile. He also submitted a certificate by

Juan Marchant of the Varberg FPMR support group dated 23 October

1988 in which it was said that he and his family were politically

active in the group. He further submitted copies of two

newspaper articles dated 21 and 24 October 1988 concerning a

demonstration in Varberg against the expulsion of the applicants.

In these articles it was stated that Mr Cruz Varas had hidden

friends sought by the police in his house in Chile and that he

was active for FPMR in Sweden.

21. The expulsion decision could not be enforced as planned

since the applicants did not appear in time for the scheduled

departure.

22. In a letter dated 30 December 1988 to the Police Authority

of Varberg the applicants again alleged that there were

impediments to the enforcement of the expulsion order. On 13

January 1989 Mr Cruz Varas was interrogated by the Police

Authority of Varberg in the presence of a new counsel. The

official record of the interrogation contains the following

passage (translation from Swedish):

"Cruz wishes especially to add to his statements the

following information with regard to the punishments he has

been subjected to in connection with his being held prisoner

in Chile. Asked about the times and places of these

imprisonments Cruz states that he was imprisoned the first

time in Santiago in 1973. He was arrested with all the

others who were at the Codelco office (a large mining

company) on an occasion soon after the coup. They were

taken to a military centre and badly treated. Cruz has not

talked about this earlier because he was of the opinion that

the police in Sweden co-operate with the Chilean police. He

no longer holds this view.

Since the above-mentioned event lies far back in time Cruz

was encouraged to begin his account by relating the most

recent occasion on which he was subjected to persecution.

He then stated that in January 1987 he was stopped when he

was walking along a street called Calle Troncal. It was

then that two men stepped out of a car and pulled him into a

car which then drove to some sort of security building.

During the journey he was hit in the ribs. He was taken

down a long stairway and into some kind of investigation

room. He was photographed after he had removed his clothes.

He was hit, mainly on the head. He was hung up by his feet

and photographed in this position. He was asked the

whereabouts of Luis Herrera but was unable to answer. Luis

Herrera was chairman of the free humanist thinkers. Cruz

did not wish to relate more about the treatment on this

occasion. He did however add that they told him that they

were going to shoot him later the same day. He was

blindfolded and after that he felt that someone was pressing

the barrel of a weapon against his body but no shot was

fired. Asked why they did this Cruz said that they gave as

a reason that he was a communist, which he has never been.

After Cruz had been scared by the incident with the weapon

he was released and after that was treated kindly by a man

who was also present. The man told Cruz that things would

be much better if he co-operated with the police. When

asked if they were in a police station Cruz said that they

were in a security building. They also mentioned to Cruz

the names of the members of his family. At 4 a.m. he was

driven away and was released after being held in custody for

about 14 hours. Cruz has not mentioned this incident

earlier. Asked why he had not done so in spite of a number

of police interrogations, numerous contacts with counsel and

in spite of the fact that many documents with information

about him had been submitted to the authorities, he replied

that he had been betrayed many times earlier and he could

not therefore trust anyone.

In August 1986, he was somewhat uncertain about the exact

date, Cruz was walking along a street in Valparaiso after

having attended a neighbourhood committee meeting. Cruz was

on his way to catch a bus to Viña del Mar. Four men came in

a car, threatened him with a knife against his throat and

apprehended him. They were civilians in a civilian vehicle.

They travelled in the direction of Viña del Mar. A black

blindfold was placed over his eyes and then they took him

out of the car and kicked him. Cruz protected himself as

well as he could by putting his hands over his head and

crotch. They insulted him too. They told him he should

give up struggling against the Government. They said they

knew of Cruz and that he ought to stop; otherwise this could

be the last day of his life. Even his family was

threatened. These events took place in a building Cruz was

taken to but he knows nothing about it because he was

blindfolded. On this occasion he was subjected to torture

through electric shocks against his testicles. He was even

subjected to shocks by electrodes in the anus and testicles.

After having been subjected to the above Cruz was driven a

bit along the road between Valparaiso and Viña del Mar

before he was set free on this road. He was also near to

being knocked down by a bus in connection with his being

released from the car. The whole sequence of events took

place within a period of 15 hours. About a month later Cruz

found his dog, three years old, dead under such

circumstances that he suspected that it was the CNI or ACHA

[Accíon Chilena Anticomunista] that lay behind it. The dog

had been impaled on a metal fence that surrounded the house

where Cruz lived. The conclusion Cruz drew was that he was

subjected to this as a result of his activity in youth

groups and friendship committees. Cruz had worked for a

democratic development of Chile. Every time Cruz was

arrested the 'police' knew what he had been working for.

The interrogation so far has been translated to Cruz who

subsequently wished to point out that the committees were

neighbourhood committees and not friendship committees and

he also wanted to say that the reason why he did not trust

anyone was just because the police knew so much about him

when they held him in custody.

Without the presence of the interpreter or counsel, in

accordance with Cruz's wishes, he stated that on the

occasion when he was arrested by persons he thought were

from the CNI in 1986 he was also subjected to something else

that he tried to suppress and which he finds very painful to

talk about. After he had been tortured among other ways by

electrodes in his anus and testicles, he was placed on a bed

lying face down and his hands and feet were tied to

bedposts. In this position one or more men attacked him

sexually. Cruz was at that point dazed from the previous

treatment and cannot therefore say with certainty if there

was more than one person. (This section without the

presence of the interpreter or counsel. Cruz can make

himself understood in Swedish.)

In addition Cruz has not been able to express the problems

he has had as a probable result of the treatment he was

subjected to. He has difficulties eating with cutlery made

of metal. These problems manifest themselves with pains in

his teeth on every occasion that his teeth come in contact

with a metal object. This problem has become less intense

but has been very intense earlier. It has thus been a

question of two different types of complaints. Firstly Cruz

has experienced general pain in his teeth and secondly he

has had problems with metal objects. Cruz first experienced

the problem with his teeth after electric shock torture in

1973. He was subjected to this form of torture on a total

of 4 or 5 occasions. After the torture in 1973 Cruz also

had many headaches. He has also noticed that since then he

has had lapses of memory.

Otherwise Cruz has nothing more that he personally wishes to

relate other than the above. When asked if he had anything

to add on his political involvement he stated that he had

already accounted for it but that he could now present new

documents which support the previous statements. Three

certificates were handed over. One from Nicolas Reyes

Armijo, President of the Cultural Centre for Freedom in

Belloto, one from Ricardo Poblete Muñoz, co-ordinator in the

organisation of neighbourhood committees, as well as a

certificate from the Commission on the Rights of Young

People.

The above was translated to Cruz who thereafter had no wish

to refer to further details in the case. He has no

objection to the above description ... ."

23. The first certificate referred to in the record was dated

1 November 1988 and consisted of a statement by the President of

the Centro Cultural "Libertad" (Cultural Centre for Freedom) in

El Belloto. It stated that Mr Cruz Varas took part in the

activities of that institution until he left Chile and that his

psychological and physical integrity would be threatened if he

were to stay in his home country. It further indicated that he

was obliged to leave the country for political reasons. A second

certificate of 23 November 1988 by an official of the Comisión de

Derechos Poblacionales (Peoples' Rights Commission) in Valparaiso

stated that he was persecuted by the dictatorship from November

1983 to August 1986. He was active in the socialist youth group

where he was the representative and leader of the revolutionary

society for Libres Pensadores Humanistas "Artesanos de las

Letras" (Writers and Humanist Free Thinkers) in Villa Alemana.

The certificate also stated that he had been arrested in Santiago

in 1973 and twice in La Serena in November 1974 and September

1977; that he was threatened with death in Viña del Mar in 1983;

that in 1986 and January 1987 he was arrested by civilians and

severely beaten. A third certificate dated 20 November 1988 by

the Comisión de Derechos Juveniles (Commission on the Rights of

Young People) in Quilpue contained similar statements.

24. On 13 January 1989 the Police Authority referred the

question of the enforcement of the expulsion order to the

Immigration Board. On the same day the Police Authority decided

that Mr Cruz Varas should report to the police twice a week

because of the danger that he would evade enforcement of the

expulsion. By letter of 2 March 1989 he submitted a medical

opinion dated 20 February 1989 to the Board issued by Mr Håkan

Ericsson, an assistant researcher at the Institute of Forensic

Medicine at the Karolinska Hospital. Mr Ericsson stated that Mr

Cruz Varas had declared that he had been ill-treated in prisons

in Chile and that he had shown a deformation of his upper left

collar-bone, a scar on his left upper arm and a scar on the left

of his chest.

25. The Board referred the case to the Government on 8 March

1989, expressing the opinion that there was no impediment to the

enforcement of the expulsion order. The Board found that Mr Cruz

Varas had the opportunity on several occasions to present his

case to the Police Authority and to it. However, on these

occasions he had given contradictory information and had now

radically changed his story. It concluded that even if it took

into account the difficulties that a victim might have to

describe what he had been subjected to there was no reason to

believe his allegations.

26. On 11 August 1989 Mr Cruz Varas submitted a medical report

to the Government which had been prepared by a doctor of forensic

medicine, Dr Sten W. Jacobsson. The report dated 9 May 1989

stated, inter alia, as follows (translation from Swedish):

"The patient Cruz Varas Hector born on 9 December 1948 has

seen me on account of alleged torture in his home country.

He has told a story which has been simultaneously

interpreted and which is recorded in Annex I. When

examining the patient I have observed marks on the left

collar-bone area and on the left upper arm which are

referred to in the examination protocol ... .

In view of the above I make the following statement:

That the patient has said that he has been assaulted; that

he has, as objective evidence, shown, firstly, the marks of

a collar-bone fracture following violence with a blunt

instrument and, secondly, a typically rounded and colourless

burn-mark on the inside of the left upper arm (the wound

has, according to forensic medical practice, the typical

appearance of a burn caused by a hot pipe); that he has

subjective symptoms of troubles following genital torture,

anal torture and sexual abuse in the anus; that, when he

describes this, he reacts, in my experience, in such a way

(crying, shaking) that it has to be assumed that he has

experienced this; that, to summarise, nothing has been

established which contradicts the assumption that Hector

Cruz Varas has been subjected to such torture and sexual

abuse as he alleges."

Annex I gave the following information:

"The patient speaks about himself first and then about his

father who was the secretary of the Partido Socialista.

They lived in the town of El Salvador in Chile. His father

was arrested during the military coup in 1973 and was

brutally tortured and released after two months. The

patient was then 24 years old. He was also arrested and hit

but, as he himself states, he was not directly tortured.

They moved to the town of Lazalena. The patient was also a

member of the Partido Socialista which is a party prohibited

in Chile. The patient was persecuted during the seventies

and eighties. His own home was subject to a search in 1981.

He was hit by the police and taken to a security building

where his eyes were bandaged and he was hit by hands and was

burnt on his left arm with a red-hot pipe. He participated

in a demonstration against ... a coin which the Government

had introduced. He was arrested later and was tortured by

electrification. In 1986 he was subjected to such torture

on his genitals. He was sodomised with an electrified rod

which caused him great pain and one can see on the patient's

face when he speaks of this torture that he was clearly in

pain, he is near to tears. He was raped and sodomised

several times which caused him to faint. He is very pained

by telling this and his upper lip shakes and he perspires

profusely. He has never told this to his wife and he now

says 'I cannot take it any more'. The reaction is very

typical of self-experienced humiliating sexual torture.

Following a question the patient says that he has for a long

time after this event had great problems of impotence. He

thinks that it has been better in Sweden. He takes vitamin

E against these problems.

In November 1987 his dog was found dead, hanged on an iron

fence which surrounded his house. There was a note stating

that this would happen to all communists. It was signed by

ACHA which was the same as if it had been CNI. In 1987 he

therefore left Chile. I ask what would happen if he had to

return to Chile. The patient is then very upset and says

that he cannot return and starts to cry; he is convinced

that they will arrest him at the airport and continue

persecuting and torturing him."

27. A further medical opinion was produced in evidence

prepared by Dr Søndergaard, a specialist in psychiatric diseases

at the Karolinska Hospital. That opinion, dated 28 June 1989,

stated that, from the manner in which he presented his story and

his reactions while telling it, there were strong indications

that he suffered from a post-traumatic stress syndrome. Dr

Søndergaard found him to be considerably shaken and on the

borderline of what he could tolerate.

28. The following description of the political activities of

Mr Cruz Varas was given by his lawyer in a letter to the

Government of 11 August 1989:

"The appellant has been politically interested and active in

different left-wing organisations ever since the sixties and

by the end of the sixties he was involved with MIR

(Movimiento de la Izquierda Revolucionaria). During the

seventies he was active primarily in the Socialist Party.

About 1983 he came into contact with people whom he believes

belong to Frente Patriótico Manuel Rodriguez. Together with

these persons he has taken part in certain military

activities.

As a result of his political work he was tortured in 1973,

1976, 1981, 1983, 1986 and 1987. The reason why all these

details are not found in the police interrogation is that

the interrogation concentrated on events during the

eighties. However at the end of the interrogation it is

mentioned that he had been tortured four or five times.

When asked to account for his activity with the 'Front' he

stated the following: some time during 1983 he made contact

by chance with a person who was nicknamed the 'Gorilla'

because of his heavy build and hair growth. Hector knew the

Gorilla from the seventies when both of them were active in

MIR. When they met again they had not seen each other for

more than a decade but they immediately recognised each

other. They met at a parents' meeting in a school in Villa

Alemana which the Gorilla's daughters attended.

...

After a while his acquaintance with the Gorilla led to clear

sabotage activities. The Gorilla held a senior post at the

town's Electricity Board. Hector has a knowledge of

explosives after having worked in mining. Together they

used explosive devices to destroy power lines around the

town. They complemented each other well: the Gorilla

indicated the targets and planned the operations, Hector

acquired the dynamite by travelling to the town of San

Salvador where he has many childhood friends. He was able

to buy dynamite from his friends who work in the mine. The

dynamite was smuggled out by the workers. This activity

continued until some time in 1986.

After this Hector did not participate in any further

sabotage operations since he felt he was under too much

observation. However he believes that the Gorilla continued

the activities since they had a fairly large stock of

dynamite. He has also read in the newspapers about power

lines being sabotaged after he had discontinued the activity

himself.

The Gorilla has tried in different ways to get him to

participate in more advanced military projects. They have

often discussed the possibility of trying to arm the

populace and start a school for military training. They

have drawn up detailed plans of how they would obtain

weapons. These plans began as a discussion about 'how one

could do even more ...'. Among other things concrete plans

were drawn up on how to attack a carabineer barracks. The

purpose of the attack would be to get hold of weapons which

could later be used in other kinds of attacks. Nothing came

of these plans because Hector was arrested in 1983. During

this arrest the police asked a wide range of questions;

inter alia, questions were asked about places which were to

be meeting points for the participants in the attack. The

attack against the carabineer barracks never took place.

Hector found out instead that another attack had been

carried out against another carabineer barracks.

When asked to describe more details about the plan to

attack, Hector said that he and the Gorilla were to carry

the stolen weapons to the churchyard and bury them there.

When the time was right, the weapons were to be fetched from

the churchyard by other persons.

The Gorilla never mentioned Frente Patriótico Manuel

Rodriguez by name, but Hector understood that the Gorilla

had a relatively central position in the organisation. The

Gorilla himself only mentioned that he was now active in the

Communist Party. As an example of the Gorilla's central

position Hector mentioned that a short time before the

assassination attempt against Pinochet the Gorilla asked

Hector if he would consider driving a lorry on a very

important occasion. Hector gave a hesitant reply and the

suggestion was dropped. In retrospect Hector has realised

that it could possibly have been the vehicle that would be

used on the occasion of the assassination attempt.

Hector has not taken part in any direct military operations.

On one occasion however he was instructed to drive a lorry

to a particular spot. He was to park the lorry there and

then fetch another lorry. He was given no more information

on that occasion. However this plan was cancelled for

security reasons. Shortly thereafter Hector read in a

newspaper that an arms cache had been discovered right next

to the place where he was to park the lorry.

A few months after he had met the Gorilla by chance, an old

friend turned up with whom he had worked in a resistance

cell in 1973-74 in the town of La Serena. The friend

immediately said that he was in trouble with the police and

that he needed a place to hide. Hector offered to give him

shelter and they went straight back to Hector's home. Later

in the evening two other friends joined them, all three

armed with pistols. Hector also thought he saw sub-machine

guns of the kind used by the Chilean police.

Hector never found out why the friend was on the run; as he

said, 'it was better not to know anything'. One day, on

leaving Hector's house, the friend was arrested. Hector was

informed of the arrest by an acquaintance who had previously

seen Hector with the friend who was in hiding. The two

other men fled from Hector's house immediately.

After this Hector moved to Santiago and supported himself as

a construction worker. He remained in Santiago between

roughly September 1984 and December 1985. He rented out his

house through a fake owner and was informed that, shortly

after, the house was searched and as a result of the search

the tenants moved. The fake owner found new tenants to live

in the house for the rest of the time. Since no further

searches were carried out Hector did not think it was

dangerous to move back to Villa Alemana. Thus, in December

1985, he returned there.

When asked about the numerous 'chance' occasions when he met

people who can be assumed to belong to the 'Front', Hector

replied that he had also wondered about this. With regard

to the Gorilla he felt it was pure chance that he met him.

Hector is more hesitant about the second friend. Hector

said that it could have been a chance encounter but that it

could also have been a conscious attempt to bind him more

firmly to the activities of the Front. Hector stated

himself that because of his knowledge of explosives and as

the owner of a remotely situated house he could be of

interest to such an organisation as the 'Front'.

When Hector returned to Villa Alemana he felt he was being

observed in different ways. He stated that he quite

frequently encountered different types of salesmen who got

in touch with him.

...

During one of our conversations Hector said suddenly 'there

is something I have never talked about and something which I

shall never tell'. I insisted that he tell me. A

psychological struggle took place which lasted at least an

hour. I tried to maintain the initiative all the time and

to motivate Hector to tell his secret. Hector defended his

position and said 'I'll never say it, not even if I am

expelled will I tell it. I'll only say it at the airport'.

Finally Hector said that he had been in a poor state of mind

for a long time in Chile and had taken large amounts of

anti-depressants. After the torture of 1986 his nerves have

been strained to the point of breaking and because of the

internal confession tradition in the Mormon Church he sought

out the highest ranking leader in the Mormon Church with the

rank of Grand President and told him everything.

He told him of his contacts with the Gorilla and also about

the two other members of the Mormon Church whom he had

introduced to the Gorilla. The conversations took place on

several occasions. On the first occasion Hector took the

initiative and therefore related relatively little, then the

Grand President took the initiative and obtained more

details.

In January 1987 Hector was arrested and tortured. When he

left the torture chamber he tried to get in contact with the

two other members of the Mormon Church but they had both

disappeared. He also tried to make contact with the Gorilla

but he had also disappeared. Hector is subjectively

convinced that all three are dead. He is also convinced

that they have been killed as a result of his mistake in

talking to the Grand President. Hector believes that the

Mormon Church leader used his weak position and informed the

Government about him and his friends.

Hector cannot say with certainty when the three disappeared

but says that the last time he met them was in December

1986. The torture in January 1987 in combination with

self-accusation at having caused the death of the Gorilla

and the two Mormons was a contributing factor to his leaving

Chile a short while after that."

29. Medical reports drawn up by doctors in Varberg hospital

dated 21 June 1989 and 5 October 1989 concerning the welfare of

Richard Cruz Varas (the third applicant) were also submitted to

the Government. These reports stated that Richard had

personality problems and would in all probability suffer serious

psychological harm if expelled from Sweden.

30. The first applicant also submitted a letter from the

United Nations High Commissioner for Refugees' Regional Office

for the Nordic Countries dated 16 August 1989 stating, inter

alia, that:

"... a person who has been exposed to torture will in most

cases have lasting effects of both a physical and

psychological/somatic nature. For this reason, we should

operate neither with time limits nor with degrees of torture

when assessing a torture victim's claim for refugee status."

31. In a letter of 5 October 1989, the same Office wrote:

"Therefore we would like to point out that we believe that

Mr Hector Cruz Varas ... should be protected against return

to his home country; apart from the many

mental/traumatic/humanitarian aspects involved, we are of

the opinion that not only the 1951 Refugee Convention, but

in particular the 1984 Torture Convention should be

emphasised."

32. On 4 October 1989 Mr Cruz Varas was taken into custody by

the Police Authority of Varberg following a decision by the

Minister of Labour. The following day the Government (Ministry

of Labour) found that there was no impediment under Sections 77

and 80 of the Aliens Act to the enforcement of the expulsion

order against the applicants.

33. On 6 October 1989 the Board decided not to stop the

expulsion and on the same day Mr Cruz Varas was expelled to

Chile. His wife and son, however, went into hiding in Sweden.

Their present whereabouts is not known to the Court.

B. Political developments in Chile

In August 1988 the state of emergency was lifted and in

September 1988 exiles were allowed to return to Chile. On

5 October 1988 the Chilean people voted in a plebiscite to reject

the candidacy of General Pinochet as President of the country.

Presidential and congressional elections were then scheduled for

December 1989. Following negotiations between the Government and

opposition groups a referendum was held on 30 July 1989 resulting

in the adoption of various constitutional amendments designed,

inter alia, to render the presidential and congressional

elections more democratic and reduce the continued influence of

the armed forces in civilian life.

The presidential election took place on 14 December 1989

resulting in the election of Mr Patricio Aylwin, a member of the

former opposition Christian Democratic Party and leader of a

17-party alliance entitled "Coalition of Parties for Democracy".

35. In April 1989 the International Covenant on Civil and

Political Rights (1966) was published in the Diario Oficial, the

official gazette, thereby incorporating it into Chilean law. The

State also ratified in 1988 the United Nations Convention against

Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) and the Inter-American Convention to Prevent

and Punish Torture (1985) although with reservations in both

cases.

An Amnesty International report of October 1989, however,

provides details of various cases of torture reported to Amnesty

which allegedly occurred in 1989.

C. Facts subsequent to the expulsion

36. On 7 October 1989 Mr Cruz Varas arrived at the airport in

Rio de Janeiro (Brazil), where he applied unsuccessfully for

asylum. He was then put on a plane for Santiago where he arrived

on 8 October. He did not have any identity documents and when he

came to passport control he was taken aside and photographed. He

was required to sign a declaration to the effect that he had been

in Sweden for financial reasons and that he promised not to

engage in any political activities in Chile.

37. He remained in Chile from 8 to 29 October 1989 and returned

to his home in Villa Alemana. On 26 and 27 October he

participated in political meetings, the latter in favour of the

presidential candidate, Mr Aylwin. He alleges that on that

occasion an unknown person approached him and threatened his

family in Chile. During this period he claims that his

brother-in-law was attacked in the street and badly injured by

unknown persons. Two other brothers-in-law were stopped and

searched by officials who asked them questions about him.

38. On 29 October 1989 he left Chile for Argentina and lived for

a time in Buenos Aires. On 2 December 1989 and 7 March 1990 the

Board rejected requests from Mr Cruz Varas to be allowed to

return to Sweden. Although he was able to attend the hearing

before the Court, his present whereabouts are unknown to it.

D. Dr Jacobsson's evidence before the Commission

39. The Commission heard Dr Sten W. Jacobsson as a witness on

7 December 1989. His evidence is summarised in detail in

paragraphs 49-57 of the Commission's report. He is an associate

professor (docent) of forensic medicine (rättsmedicin) at the

Karolinska Institute and also works with the Red Cross assisting

torture victims. He has twenty years' experience in assessing

scars and wounds and has been working with allegations of torture

from Chile since 1985.

40. Dr Jacobsson testified that there was a very high

probability that the first applicant's story was true having

regard to his wounds (injury to collar bone and burn mark) and

his reactions when recounting his story. He spoke with

considerable reluctance of the sexual torture he had experienced

and sweated profusely. Dr Jacobsson considered that such a

reaction indicated that he had really experienced such treatment.

He also exhibited great fear at the prospect of returning to

Chile. Dr Jacobsson pointed out that victims of sexual torture

are often so damaged that they are not prepared to talk about it

even to their husbands or wives.

E. Further documentary evidence

41. Following the expulsion of Mr Cruz Varas the Government

submitted a memorandum from the Swedish Embassy in Santiago dated

2 January 1990 which contains a report of an inquiry undertaken

in accordance with a request from the Ministry of Labour for

information regarding possible political activities of Mr Cruz

Varas, and any political persecution to which he may have been

exposed. The inquiry had been made on 20 December 1989 by Ms

Jenny Malmqvist, Second Secretary at the Embassy, during a visit

to Villa Alemana, accompanied by, inter alia, the President of

the Commission of Human Rights at Valparaiso. The report

concludes that, as regards political activities, all the

representatives of political parties who had been questioned had

said that they do not know Mr Cruz Varas. Neighbours who were

questioned know him but were unaware of his involvement in any

political activity.

In support of the above the Government have also submitted

affidavits from the Partido Radical, the Partido Socialista and

the Partido Comunista.

42. As regards possible political persecution, the Government

have submitted an affidavit by the President of the Human Rights

Commission in Villa Alemana, Mrs Maria Teresa Ovalle, obtained by

the Swedish Embassy in Santiago. It appears from the affidavit

that Mr Cruz Varas is not known to the Commission and that

consequently no persecution directed against him is known. The

affidavit further states that the Commission has at its disposal

complete registers of those who have disappeared, who have been

tortured and who have been imprisoned in the fifth region of

Chile since 1982.

43. In the proceedings before the Court the Government submitted

a further affidavit from Mrs Ovalle dated 8 October 1990 in which

she declared, inter alia, that Mr Cruz Varas has no connections

with any political party or with any trade union; that there is

no declaration registered at the Human Rights Commission in Villa

Alemana regarding the detention of Mr Cruz Varas; that according

to everyone who has been asked in the district where he lived he

has never been politically active; that in all the inquiries made

directly with persons who have participated in clandestine

activities, he is not known; nor is he known by persons in prison

in Valparaiso for their role in similar activities; that she was

not aware of any explosions in Villa Alemana directed at railway

lines and electric power lines which occurred in the period

1983-86 as alleged by the first applicant; that, following

inquiries, he is not known by the various human rights bodies in

Quilpue.

The Government also submitted an affidavit dated 8 October

1990 by the National Board of the FPMR which declared that Mr

Cruz Varas is not a representative of the organisation abroad and

is not and never has been a combatant member of FPMR. They

further disclaimed all responsibility for any action he may have

taken in the name of the FPMR.

44. The applicants have submitted a medical report drawn up by

Dr Mariano Castex (Professor of Psychiatry, University of

Buenos Aires) following an examination of the first applicant in

February 1990. The report includes the following statement:

"As a conclusion one may state that Mr Hector Cruz Varas

suffers a serious 'post-traumatic stress disorder' instilled

in him as a consequence of the torture and ill-treatment

suffered in Chile in the past years.  The exposure to high

insecurity, and the return to his native land, has increased

the pathological dimension of his sufferings, and if

arrangements are not made for an adequate psychological and

psychiatric treatment, he might suffer from a worsening of

his mental disorder with unforeseeable consequences not only

for him, but for his wife and child, the latter badly

needing a father if one reads carefully the report on the

child."

45. A further psychiatric report dated 9 October 1990 was drawn

up by Dr Søndergaard following a detailed examination of the

applicant in September 1990. The report stated that the first

applicant must have experienced "a stressful event of

catastrophic proportions". It concluded that he showed the

"obvious stigmata of a post-traumatic stress disorder".

46. The applicants have also submitted the following documents:

- a report dated 18 January 1990 from a former Professor of

Psychology at the University of Chile, Marcello

Ferrada-Noli, currently researcher at the Karolinska

Institute, Stockholm, which suggested that the first

applicant might seek to resolve his problems by committing

suicide;

- a letter dated 20 October 1990 from Mr Sergio Bushman

(European spokesman for the FPMR) which stated that it was

not only the members of the FPMR who risked their lives in

Chile but also those who collaborated with the organisation.

He further stated that the risk of torture, imprisonment or

assassination still existed for FPMR members during the

present regime;

- a Chilean newspaper cutting of 17 October 1984 describing

an attempt to blow up a power line in a town ten kilometres

outside Villa Alemana;

- a letter dated 26 September 1990 from staff at the third

applicant's nursery school expressing the fear that his

removal from Sweden may cause him permanent harm.

II. Relevant law and practice

A. Domestic law

47. The Aliens Act of 1980 and Aliens Ordinance were in force

until 1 July 1989 when the Aliens Act of 1989 entered into force.

A new Aliens Ordinance was made under the 1989 Act.

Under the 1980 Act, a decision of expulsion by the Board

could be appealed to the Government whose decision was not

subject to appeal. The Government's decision was then

transferred to a Police Authority for execution. If the alien

contended, inter alia, that he would be exposed to political

persecution or be sent to a theatre of war, the matter would be

referred to the Board (Sections 85 and 86) unless the claims were

manifestly ill-founded or did not merit consideration. If the

Police Authority decided not to refer this question to the Board,

an appeal lay to the Board. If the Board decided against the

alien, the decision could be appealed to the Government.

48. Under the 1989 Act the competent authorities have a duty

when deciding the question of expulsion to consider at the same

time whether there is any impediment to the enforcement of the

expulsion order.

[...]

III. Proceedings before the Commission

A. The Commission's indications under Rule 36 in the present

case

56. The application to the Commission was introduced on

5 October 1989 and registered on the same day. On 6 October

1989, at 09.00 hours, the Commission decided to apply Rule 36 of

its Rules of Procedure in the following terms:

"The Commission ... decided ... to indicate to the

Government of Sweden ... that it was desirable in the

interest of the Parties and the proper conduct of the

proceedings before the Commission not to deport the

applicants to Chile until the Commission had had an

opportunity to examine the application during its

forthcoming session from 6 to 10 November 1989."

[...]

59. On the same day, following a request from Mr Cruz Varas, the

Board decided not to stay the enforcement of the expulsion. At

that time the Board was aware of the present application to the

Commission and of the Commission's indication under Rule 36.

60. Mr Cruz Varas was deported to Chile on 6 October 1989 at

16.40 hours. His wife and their son went into hiding in Sweden.

[...]

B. The Commission's examination of the application

65. The applicants complained that the first applicant's

expulsion amounted to a breach of Article 3 (art. 3) because of

the risk that he would be tortured by the authorities. They also

claimed that the expulsion of the third applicant would be in

breach of Article 3 (art. 3). In addition they complained that

the separation of the family constituted a breach of Article 8

(art. 8) of the Convention. They further invoked Articles 6 and

13 (art. 6, art. 13) of the Convention.

66. The application was declared admissible on 7 December 1989

as regards the applicants' complaints under Articles 3 and 8

(art. 3, art. 8) and inadmissible as regards the complaints under

Articles 6 and 13 (art. 6, art. 13). The Commission also

retained for further examination the issues arising from the

Government's failure to comply with the Rule 36 indications.

In its report adopted on 7 June 1990 (Article 31) (art. 31)

the Commission expressed the opinion that there had been no

violation of Article 3 (art. 3) (eight votes to five) or

Article 8 (art. 8) (unanimously) but that there had been a

failure to comply with Article 25 § 1 (art. 25-1) in fine (twelve

votes to one) by not following the Commission's Rule 36 request

not to expel the first applicant. The full text of the

Commission's opinion and of the separate opinions contained in

the report is reproduced as an annex to the judgment*.

AS TO THE LAW

I.THE ALLEGED BREACH OF ARTICLE 3 (art. 3)

68. The applicants alleged that the expulsion of Mr Cruz Varas

to Chile constituted inhuman treatment in breach of Article 3

(art. 3) of the Convention because of the risk that he would be

tortured by the Chilean authorities and because of the trauma

involved in being sent back to a country where he had previously

been tortured. They further claimed that the expulsion of the

third applicant (Richard) would give rise to such suffering as to

amount to a breach of this provision which reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

A. Applicability of Article 3 (art. 3) in expulsion cases

69. In its Soering judgment of 7 July 1989 the Court held that

the decision by a Contracting State to extradite a fugitive may

give rise to an issue under Article 3 (art. 3), and hence engage

the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned, if extradited, faces a real risk of being subjected to

torture or to inhuman or degrading treatment or punishment in the

requesting country (Series A no. 161, p. 35, § 91).

Although the establishment of such responsibility involves

an assessment of conditions in the requesting country against the

standards of Article 3 (art. 3), there is no question of

adjudicating on or establishing the responsibility of the

receiving country, whether under general international law, under

the Convention or otherwise. In so far as any liability under

the Convention is or may be incurred, it is liability incurred by

the extraditing Contracting State by reason of its having taken

action which has as a direct consequence the exposure of an

individual to proscribed ill-treatment (ibid., p. 36, § 91).

70. Although the present case concerns expulsion as opposed to a

decision to extradite, the Court considers that the above

principle also applies to expulsion decisions and a fortiori to

cases of actual expulsion.

B. Application of Article 3 (art. 3) in the circumstances of

the case

1. Arguments presented by those appearing before the Court

71. The first applicant stated that he had taken part in various

clandestine and subversive political activities in Chile in

collaboration with, but not as a representative of, the FPMR. As

a result he had been arrested on various occasions and tortured

by the Chilean police. He claimed that on account of his

previous activities his expulsion exposed him to the risk that he

would be arrested and tortured once more on his return to Chile

where torture was still prevalent.

In addition he maintained that medical evidence

substantiated his claims to have been tortured in the past and

that he suffers from a post-traumatic stress disorder linked to

these experiences. He submitted that in assessing the

allegations concerning his political and clandestine activities

the Court should take into account the fact that asylum-seekers

can rarely provide documentary proof of such matters. Indeed his

activities were of such a nature that they could not be supported

by documentary evidence. The Court should also have regard to

the fact that those who have been tortured may feel apprehensive

towards any authorities and be afraid to give a full and accurate

account of their case. He contended that against this background

he should be entitled to a "relaxation" of the burden of proof

and given the benefit of the doubt, particularly in view of the

medical evidence he had adduced.

72. The Government stated that they were very well informed

about the situation in Chile in view of the large number of

Chilean refugees they have had to deal with over the years and

their contacts through the Swedish Embassy in Santiago with

opposition groups. They pointed out that at the time the

expulsion decision was taken there had been important

improvements in the political and human rights situation there

and many persons who had sought refuge in Sweden were returning

to Chile to take up political activities. Furthermore they had

carried out a thorough examination of the first applicant's

allegations and had considered that his version of events was not

credible. In this respect they emphasised the fact that he had

said nothing to the authorities about having been tortured until

his interrogation by the Police Authority on 13 January 1989 (see

paragraph 22 above). Moreover, the contents of his story were

found to be contradictory and also lacking in credibility in

various respects.

The Government further contended that the evidence they have

gathered since his expulsion supports their belief that he had

not been politically active or a member of the FPMR or persecuted

by the police.

Finally the Government maintained that the medical evidence

submitted by the first applicant only shows that he had at some

time in the past been subjected to maltreatment. It does not

show that he was tortured by the Chilean authorities or by

persons for whom the Chilean Government could be held

responsible.

73. The Commission, on the other hand, accepted that Mr Cruz

Varas had been subjected in the past to treatment contrary to

Article 3 (art. 3) by persons for whom the Chilean State was

responsible. However, in view of the political evolution which

had taken place in Chile, the Commission did not consider that

there existed a real risk that he would again be exposed to such

treatment.

2. The Court's examination of the issues

    a. The determination of the facts

[...]

76. Since the nature of the Contracting States' responsibility

under Article 3 (art. 3) in cases of this kind lies in the act of

exposing an individual to the risk of ill-treatment, the

existence of the risk must be assessed primarily with reference

to those facts which were known or ought to have been known to

the Contracting State at the time of the expulsion; the Court is

not precluded, however, from having regard to information which

comes to light subsequent to the expulsion. This may be of value

in confirming or refuting the appreciation that has been made by

the Contracting Party or the well-foundedness or otherwise of an

applicant's fears.

b. Whether the first applicant's expulsion exposed

him to a real risk of inhuman treatment

77. The Court takes note of the medical evidence submitted by

the applicants and, in particular, the evidence of Dr Jacobsson

who found that the first applicant's physical injuries and

demeanour while recounting his experiences were consistent with

his allegations (see paragraphs 26 and 39-40 above). Having

regard to Dr Jacobsson's experience in examining victims of

torture, this evidence supports the view that the applicant has,

at some stage in the past, been subjected to inhuman or degrading

treatment. According to the Commission the only plausible

explanation for this treatment is that it was carried out by

persons for whom "the then Chilean regime" was responsible.

There is no element in the material before the Court, however,

apart from the first applicant's allegations, which provides

direct evidence for this conclusion.

78. Moreover, even if allowances are made for the apprehension

that asylum-seekers may have towards the authorities and the

difficulties of substantiating their claims with documentary

evidence, the first applicant's complete silence as to his

alleged clandestine activities and torture by the Chilean police

until more than eighteen months after his first interrogation by

the Växjö Police Authority casts considerable doubt on his

credibility in this respect (see paragraphs 14-22 above).

As the Government have pointed out, there was no reference

to these allegations during the police interrogations that took

place in June 1987 and October 1988 and the many written

submissions made in the course of the immigration proceedings up

to January 1989 (see paragraph 22 above). These doubts are

reinforced by the fact that he was legally represented at all

stages throughout these proceedings and that he must have been

aware of the importance of bringing to the attention of the

authorities any element which supported his asylum claim. His

credibility is further called into question by the continuous

changes in his story following each police interrogation and by

the fact that no material has been presented to the Court which

substantiates his claims of clandestine political activity on

behalf of or in collaboration with members of the FPMR (ibid.).

On the contrary the evidence points in the opposite direction

(see paragraphs 41-43 above).

79. The Court also notes that in the course of his stay in Chile

subsequent to his expulsion the applicant was apparently unable

to locate any witnesses or adduce any other evidence which might

have corroborated to some degree his claims of clandestine

political activity.

80. In any event, a democratic evolution was in the process of

taking place in Chile which had led to improvements in the

political situation and, indeed, to the voluntary return of

refugees from Sweden and elsewhere (see paragraphs 34 and 51

above).

81. The Court also attaches importance to the fact that the

Swedish authorities had particular knowledge and experience in

evaluating claims of the present nature by virtue of the large

number of Chilean asylum-seekers who had arrived in Sweden since

1973. The final decision to expel the applicant was taken after

thorough examinations of his case by the National Immigration

Board and by the Government (see paragraphs 14-33 above).

82. In the light of these considerations the Court finds that

substantial grounds have not been shown for believing that the

first applicant's expulsion would expose him to a real risk of

being subjected to inhuman or degrading treatment on his return

to Chile in October 1989. Accordingly there has been no breach

of Article 3 (art. 3) in this respect.

c. Whether the first applicant's expulsion involved

such trauma that it amounted to a breach of

Article 3 (art. 3)

83. It is recalled that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(art. 3). The assessment of this minimum is, in the nature of

things, relative; it depends on all the circumstances of the

case, such as the nature and context of the treatment, the manner

and method of its execution, its duration, its physical or mental

effects and, in some instances, the sex, age and state of health

of the victim (see the above-mentioned Soering judgment, Series A

no. 161, p. 39, § 100, and the authorities cited therein).

84. In the present case the first applicant was considered to be

suffering from a post-traumatic stress disorder prior to his

expulsion and his mental health appeared to deteriorate following

his return to Chile (see paragraphs 27 and 44 above). However,

it results from the finding in paragraph 82 that no substantial

basis has been shown for his fears. Accordingly the Court does

not consider that the first applicant's expulsion exceeded the

threshold set by Article 3 (art. 3).

d. Whether the possible expulsion of the third

applicant could amount to a breach of Article 3

(art. 3)

85. Before the Court the applicants do not appear to have

maintained their complaint that the expulsion of the third

applicant would amount to a breach of Article 3 (art. 3). In any

event the facts do not reveal a breach in this respect either.

C. Recapitulation

86. In sum, there has been no breach of Article 3 (art. 3).

II. THE ALLEGED BREACH OF ARTICLE 8 (art. 8)

87. All three applicants alleged that the expulsion of the first

applicant led to a separation of the family and amounted to a

violation of their right to respect for family life contrary to

Article 8 (art. 8), which reads:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2.There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

In their view, in assessing whether there had been a breach

of Article 8 (art. 8), it should be borne in mind that the

Commission had requested the Government under Rule 36 of its

Rules of Procedure not to proceed with the expulsion. They

contended that the expulsion of the first applicant confronted

the other members of his family with the choice of remaining in

hiding and exercising the right of petition under Article 25

(art. 25) or returning to Chile with him.

88. As noted by both the Government and the Commission, the

expulsion of all three applicants was ordered by the Swedish

Government but the second and third applicants went into hiding

and have so remained in order to evade enforcement of the order

(see paragraph 33 above). Moreover, the evidence adduced does

not show that there were obstacles to establishing family life in

their home country (see, mutatis mutandis, the Abdulaziz, Cabales

and Balkandali judgment of 28 May 1985, Series A no. 94, p. 34,

§ 68). The Court refers in this respect to its finding

concerning the applicants' complaints under Article 3 (art. 3)

(see paragraph 86 above). In these circumstances responsibility

for the resulting separation of the family cannot be imputed to

Sweden.

89. Accordingly there has been no "lack of respect" for the

applicants' family life in breach of Article 8 (art. 8).

[...]

FOR THESE REASONS, THE COURT

1.Holds by eighteen votes to one that there has been no

violation of Article 3 (art. 3);

2.Holds unanimously that there has been no violation of

Article 8 (art. 8);

3.Holds by ten votes to nine that there has been no violation

of Article 25 § 1 (art. 25-1) in fine.

[...]