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Cite as: [2011] ECHR 2044

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FIFTH SECTION

DECISION

Application no. 32010/09
Emery SIBOMANA
against Sweden

The European Court of Human Rights (Fifth Section), sitting on 22 November 2011 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 12 June 2009,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Emery Sibomana, is a Burundian national who was born on 10 February 1977 and lives in Norrköping.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant maintained that he entered Sweden on 13 November 2006.

On 15 November 2006 he applied for asylum. He was not in possession of any identity papers. He stated before the Migration Board (Migrationsverket) that his father had been murdered by civilian men in 1993 because of his ethnicity. His mother had reported the murder to the authorities and, following trial, the men had been convicted of the murder and sentenced to imprisonment. While imprisoned, the relatives of these men had called the applicant, his mother and his sister and threatened them. In 2002 his sister had been murdered and he and his mother had reported this to the police. In 2003 his mother had been murdered and he had reported this to the police. The applicant submitted a copy of the death certificates for the deceased to the Migration Board.

He further explained that in the autumn of 2006, the men who had been imprisoned for the murder of his father were released and they immediately started searching for him. They came to his home, where they killed his friend and kidnapped the applicant. He was forced to carry his friend’s dead body to a car and get in. After a while, however, the car had a flat tyre and the applicant managed to escape.

A priest called Claude had helped him to flee from Burundi. The applicant claimed that he did not know how he had travelled or which travel documents he had used during the trip.

On 14 December 2007 the Migration Board rejected the application. It first noted that there was no documentation as to the applicant’s identity but that it was likely that he was from Burundi. As concerned the general situation in Burundi, the Migration Board considered that it had improved since December 2004 when the Government, in cooperation with the UN, had started to demobilise soldiers and former rebels. In July 2005 free Parliamentary elections were held and a new national army had been created. The FNL (Forces nationales de libération) still opposed the Government by the use of force although they had signed a peace agreement in December 2006. Thus, the Board found that although the security situation was still not good, it was not so serious that the applicant could be granted a residence permit on this sole ground. Turning to his individual grounds, it noted that the Burundian authorities had investigated and convicted the persons guilty of his father’s death and that he had also reported his sister’s and mother’s deaths to the police. It observed, however, that he had not reported the murder of his friend and the kidnapping of which he had been the victim. As these were criminal acts committed by private individuals, the Board considered that he should have reported them to the authorities in his home country as they had shown that they were willing and capable of helping and protecting him. Furthermore, the Board seriously questioned the applicant’s story about how he had managed to travel from Burundi to Sweden. In their view, he withheld information as he had not given any information about his travel route or which documents he had used. The Board found it unlikely that a priest would have helped him and paid for the trip without actually knowing him. Hence the Board concluded that the applicant was not in need of protection in Sweden and that there were no other grounds on which to grant him leave to remain in Sweden.

The applicant appealed against the decision to the Migration Court (Migrationsdomstolen) and added that the police had not investigated the murders of his mother or sister although he was convinced that it was the same group of men who were responsible. Due to the police’s failure to investigate, he had lost confidence in the police and thus had not reported the subsequent events. He had met Claude in connection with his church activities and Claude was a very kind man who had taken care of all details surrounding his trip. The applicant submitted an identity card. He also stated that he intended to marry a Burundian woman, whom he had met in Sweden. Finally, he informed the Migration Court that he had received treatment for tuberculosis, but that he still did not feel well.

On 11 February 2009 the Migration Court rejected the appeal. From the outset it noted that the identity card submitted had no evidential value as the text had visibly been erased and changed. Nevertheless, it did not question that the applicant was from Burundi. It further noted that the applicant had not identified anyone in relation to the murders of his mother and sister and there appeared to have been no other witnesses to the acts. Thus, the failure of the police to arrest or identify any assailants seemed to be due to lack of evidence and not due to a lack of willingness. Thus, joining the findings of the Migration Board, the court found that the applicant was not in need of protection in Sweden.

On 12 March 2009 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.

Before the Court the applicant submitted a medical certificate, dated 12 January 2009, by T. Anjum, psychologist at the Medical Centre for Refugees in Östergötland, stating that the applicant had had regular contact with the undersigned since February 2008 due to his traumatic experiences in his home country where he had lost his parents and sister. He was suffering from symptoms of Post Traumatic Stress Disorder (PTSD) such as nightmares and sleeplessness. He was in need of continued psychological support to work through his traumas. It does not appear that the applicant submitted the said certificate in the proceedings above.

It appears that the applicant married a Burundi woman in Sweden in 2009.

On 15 June 2009 the Migration Board decided not to reconsider the applicant’s grounds for asylum as he had not invoked any new circumstances and it found that there were no impediments to his deportation.

The applicant and his wife had a son on 28 April 2010.

On 29 November 2010 anew the Migration Board found that there were no impediments to the applicant’s deportation to Burundi.

On 21 March 2011 the Migration Board refused to reconsider its decision of 29 November 2010.

B. Relevant domestic law and practice

The provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act (Utlänningslagen, 2005:716 hereafter referred to as “the Aliens Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). The Aliens Act was amended anew on 1 January 2010. The following refers to the Aliens Act in force at the relevant time.

Under the previous Aliens Act, asylum applications were dealt with by the Migration Board and the Aliens Appeals Board. Under the Aliens Act in force, matters concerning the right of aliens to enter and remain in Sweden are normally dealt with by three instances, the Migration Board, the Migration Court and the Migration Court of Appeal. Thus, appeal against a decision or an order for expulsion issued by the Migration Board, which carries out the initial examination of the case, lies to the Migration Court. The Migration Board is, in principle, obliged to review its decision before it forwards an appeal to the Court. Appeal against a judgment or decision of the Migration Court in turn lies to the Migration Court of Appeal. This instance will, however, only deal with the merits of the case after having granted leave to appeal. Leave to appeal will be granted if (1) it is considered of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or (2) there are other exceptional grounds for examining the appeal.

Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act).

C. Relevant information on Burundi

The US Department of State, Background note, Burundi, 3 June 2011, sets out, inter alia, as to the history of Burundi:

Full independence was achieved on July 1, 1962. In the context of weak democratic institutions at independence, Ganwa King Mwambutsa IV established a constitutional monarchy comprising equal numbers of Hutus and Tutsis. The 1965 assassination of the Hutu prime minister set in motion a series of destabilizing Hutu revolts and subsequent governmental repression. In 1966, King Mwambutsa was deposed by his son, Prince Ntare IV, who himself was deposed the same year by a military coup led by Capt. Michel Micombero. Micombero abolished the monarchy and declared a republic, although a de facto military regime emerged. In 1972, an aborted Hutu rebellion triggered the flight of hundreds of thousands of Burundians. Civil unrest continued throughout the late 1960s and early 1970s.

In 1976, Col. Jean-Baptiste Bagaza took power in a bloodless coup. Although Bagaza led a Tutsi-dominated military regime, he encouraged land reform, electoral reform, and national reconciliation. In 1981, a new constitution was promulgated. In 1984, Bagaza was elected head of state, as the sole candidate. After his election, Bagaza’s human rights record deteriorated as he suppressed religious activities and detained political opposition members.

In 1987, Maj. Pierre Buyoya overthrew Colonel Bagaza. He dissolved opposition parties, suspended the 1981 constitution, and instituted his ruling Military Committee for National Salvation (CSMN). During 1988, increasing tensions between the ruling Tutsis and the majority Hutus resulted in violent confrontations between the Tutsi-dominated army, the Hutu opposition, and Tutsi hardliners. During this period, an estimated 150,000 people were killed, with tens of thousands of refugees flowing to neighboring countries. Buyoya formed a commission to investigate the causes of the 1988 unrest and to develop a charter for democratic reform.

In 1991, Buyoya approved a constitution that provided for a president, multi-ethnic government, and a parliament. Burundi’s first Hutu president, Melchior Ndadaye, of the Hutu-dominated FRODEBU Party, was elected in 1993. He was assassinated by factions of the Tutsi-dominated armed forces in October 1993. The country was then plunged into civil war, in which tens of thousands of people were killed and hundreds of thousands were displaced by the time the FRODEBU government regained control and elected Cyprien Ntaryamira president in January 1994. Nonetheless, the security situation continued to deteriorate. In April 1994, President Ntaryamira and Rwandan President Juvenal Habyarimana died in a plane crash. This act marked the beginning of the Rwandan genocide, while in Burundi the death of Ntaryamira exacerbated the violence and unrest. Sylvestre Ntibantunganya was installed as president for a 4-year term on April 8, but the security situation further deteriorated. The influx of hundreds of thousands of Rwandan refugees and the activities of armed Hutu and Tutsi groups further destabilized the regime.

Burundi’s civil war officially ended in 2006 under a South Africa-brokered cease-fire agreement with the last of Burundi’s rebel groups. In 2009, the PALIPEHUTU-FNL, the last rebel group, disarmed, demobilized and registered as a political party (the FNL), in accordance with the terms of the agreement. Today the government is focused on rebuilding its infrastructure and re-establishing external relations with its regional neighbours.

The 2011 UNHCR country operations profile – Burundi, states as follows under working environment:

The results of presidential, parliamentary and local elections in 2010 should help to consolidate peace, and build an environment conducive to development in Burundi. However, the opposition’s withdrawal from the electoral process could lead to instability. Although the disarmament, demobilization and reintegration programme for the former rebels of the Palipehutu-Forces nationales de libération (FNL) formally ended in 2009, the security situation is still fragile, and will remain so if the reintegration into society of former FNL combatants is not sustained.

UNHCR’s efforts to strengthen the national judiciary and help it implement transitional justice will address violations of human rights and support good governance. This will contribute to Burundi’s fulfilment of its regional and subregional commitments within the East African Community and the International Conference on the Great Lakes.

With more than 6 per cent of the population being former refugees, reintegration activities are high on the agendas of the Government and the UN. Meanwhile, the repatriation process for approximately 20,000 Burundian refugees out of some 38,000 remaining in the United Republic of Tanzania will continue in 2011. The signing of the tripartite agreement in 2009 between Burundi, the Democratic Republic of the Congo (DRC) and UNHCR has also created the legal framework for the voluntary repatriation of Burundian and Congolese refugees to their respective countries of origin.

A government survey in 2009 estimated that there were some 157,200 internally displaced persons (IDPs) in Burundi. Their needs will be addressed through an integrated programme in support of the national strategy for war-affected people.

COMPLAINTS

The applicant complained that an implementation of the deportation order to return him to Burundi would be in violation of Articles 2, 3 and 8 of the Convention.

THE LAW

The applicant invoked Articles 2 and 3 of the Convention, which in so far as relevant read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court finds that the issues under Article 2 and 3 of the Convention are indissociable and it will therefore examine them together.

The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-....; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42).

However, expulsion by a Contracting State may give rise to an issue under Article 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 deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).

The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).

The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005).

In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA. v. the United Kingdom, cited above, § 119).

The Court considers there are no indications that the situation in Burundi is so serious that the return of the applicant thereto would constitute, in itself, a violation of Article 3 of the Convention (see, for example, I.N. v. Sweden (dec.), 1343/09, 15 September 2011 and E.N. v. Sweden (dec.), 15009/09, 8 December 2009).

Turning to the applicant’s individual situation, he maintained that he would be killed upon return to Burundi by the men who had killed his father and allegedly also his mother and sister. The applicant was sixteen years old in 1993, when his father was murdered because of his ethnicity. It appears that the applicant did not explain or know why the same men would wish to kill him or kidnap him many years later. He was never politically active and had not had any problems with the Burundian authorities. The Swedish authorities noted that the Burundian authorities had investigated and convicted the persons guilty of his father’s death. Moreover, the applicant had reported the assassination of his sister and mother to the police. The applicant had not identified anyone in relation to those murders and there appeared to have been no witnesses to these crimes. Thus, the failure of the police to arrest or identify any assailants seemed to be due to a lack of evidence and not due to a lack of willingness. Thus, in the Swedish authorities’ view the applicant could have reported the murder of his friend and the kidnapping of which he had been the victim. In conclusion they did not find that the applicant’s situation could justify the granting of asylum.

The Court notes that the Migration Board and the Migration Court both conducted a thorough examination of the applicant’s case, and that he was heard and assisted by appointed counsel. The national authorities had the benefit of seeing, hearing and questioning the applicant in person and of assessing directly the information and documents submitted by him, before deciding the case. The Court finds no reason to conclude that their decisions were inadequate or that the outcome of the proceedings before the two instances was arbitrary. Furthermore, there are no indications that the assessment made by the domestic authorities was insufficiently supported by relevant materials or that the authorities were wrong in their conclusion that there were no substantial grounds for finding that the applicant would risk being persecuted upon return to Burundi.

The Court also observes that it does not appear that the applicant invoked mental suffering in support of his application for asylum before the domestic authorities. In any event, the Court is not in possession of any medical certificate submitted after 17 April 2009 which could indicate whether the applicant’s mental health has improved or deteriorated. There are no elements either indicating that the State and the psychologist previously involved will not react to a concrete threat to the applicant’s mental health as far as possible or that the State will enforce the deportation order if it is medically impossible for the applicant to travel to his home country.

Having regard to the above, the Court finds that the applicant has failed to substantiate being at a real and concrete risk of being killed or subjected to ill-treatment contrary to Articles 2 or 3 upon return to Burundi.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

Before the Court the applicant also complained that an implementation of the deportation order to return him to Burundi would be in violation of Article 8 of the Convention.

The Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

The applicant failed to raise, either in form or substance, before the domestic courts the complaint made to it. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

Accordingly, the application must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann
Registrar President