European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 30425/09
Marie Antoinette NIYITEGURE
against Sweden

The European Court of Human Rights (Fifth Section), sitting on 14 February 2012 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 11 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, Marie Antoinette Niyitegure, is a Burundian national who was born on 25 October 1975.

A.  The circumstances of the case

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

The applicant entered Sweden on 24 May 2007 and applied for asylum the following day. She stated, inter alia, that she was Hutu and Catholic and had studied psychology at the University in Bujumbura for three years, until 2001. Thereafter, in 2004 she had joined the human rights association JDPDH (Jeunesse pour la Défense et la Promotion des Droits de l’Homme) as psychologist in charge at a refugee camp. She also investigated and wrote reports on human rights abuses of which people in the camp had been the victims. In August and September 2004 she investigated a massacre in a refugee camp in Gatumba and found that the FNL (Forces Nationales de Libération) and other political parties had been involved in the massacre. The parties denied any involvement and in October 2004 the applicant received threats that she would be killed if she did not stop accusing the FNL.

In May 2006 the applicant’s home town was attacked. Her father and brother were killed and she was raped by four men.

In January 2007 the applicant finalised a report in which she concluded that a massacre in July and August 2006 of thirty-one prisoners in Muyinga had been committed by the intelligence service. As a consequence, its chief Dominique Surwayuba was arrested, also in January 2007.

On 22 February 2007 a group of men came to her home but the applicant and her husband had managed to escape. However, their maid was stabbed to death and her husband’s daughter was injured.

On 20 March 2007, the applicant sought protection at the home of the director of the JDPDH. During the night, the military attacked them. The director and the applicant were threatened that they would be killed unless they changed the report so that Dominique Surwayuba could be released.

In May 2007 she was arrested by the FNL or by the intelligence service for three days and ill-treated. Her husband found out where she was and contacted a priest who helped her to obtain travel documents. She was released on 23 May 2007 and left the country the same day with a smuggler via the airport in Bujumbura.

On 25 February 2008 the Migration Board (Migrationsverket) rejected the application, finding that the applicant had given vague and contradictory information and that she lacked credibility.

On appeal, the Migration Court (Migrationsdomstolen) upheld the decision by a judgment of 19 June 2008.

On 1 September 2008, represented by legal counsel, the applicant appealed against the judgment. On 12 September 2008 the Migration Court rejected the appeal because it had been lodged out of time. In order to comply with the procedural time limit the applicant should have appealed before 10 July 2008, which was three weeks after the disputed judgment.

Thereafter the applicant requested a new assessment by the Migration Board, which was refused on 26 September 2008.

On appeal, the decision was upheld by the Migration Court in a judgment of 14 May 2009.

The applicant failed to apply for leave to appeal against that judgment to the Migration Court of Appeal (Migrationsöverdomstolen).

Instead, she reapplied to the Migration Board, which on 7 July 2009 upheld its decision to refuse to grant the applicant asylum.

On 19 October 2009 the Court decided to apply Rule 39 of the Rules of Court and to stay the applicant’s deportation to Burundi for the duration of the proceedings before it.

Despite specific requests by the Court, the applicant has not submitted any domestic decisions taken after 7 July 2009.

B.  Relevant domestic law and practice

Relevant domestic law and practice can be found in Hussein v. Sweden (dec.), no. 18452/11, 20 September 2011.

C.  Relevant information on Burundi

Relevant recent information about Burundi can be found in Hussein v. Sweden, cited above.

COMPLAINTS

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

THE LAW

The applicant invoked Articles 2, 3 and 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).

In the present case the applicant did not lodge an appeal within the procedural time-limit against the Migration Court’s judgment of 19 June 2008.

Moreover, she did not request leave to appeal against the Migration Court’s judgment of 14 May 2009 to the Migration Court of Appeal, although such an appeal would have constituted an effective remedy (see Hussein v. Sweden, cited above).

Before the Court the applicant has not submitted any documents demonstrating that she has appealed against the Migration Board’s decision of 7 July 2009.

Finally, the applicant has failed to substantiate that she raised, either in form or substance, before the domestic courts the complaint made to it under Article 8 of the Convention.

Accordingly, the application must be rejected pursuant to Article 35 § 4 of the Convention. The application of Rule 39 of the Rules of Court thus comes to an end.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President