European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2012/361.html
Cite as: [2012] ECHR 361
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FIFTH SECTION
DECISION
Application no.
35480/09
by Alonzo NIZIGIYMANA
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 3 July 2009,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court on 2 February 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Alonzo Nizigiymana, is a Burundian national who was born in 1982 and lives in Hudiksvall.
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 29 March 2006 and applied for asylum. Before the Migration Board (Migrationsverket) he stated that, in 1996, he had testified against five persons of Hutu ethnicity who had killed his neighbours. Subsequently, he had received threatening letters from these men who had considered him a traitor because his father had been Hutu (his mother was Tutsi) and his house had been attacked.
On 24 January 2007 the Migration Board rejected the application. It noted from the outset that, although the general situation in Burundi still lacked security and the rule of law, it was not so serious that a residence permit could be granted on this sole ground. Turning to the applicant’s personal situation, it observed that there were no indications that the Burundian authorities had been responsible for the threats and the attack on the applicant’s home. On the contrary, these appeared to be acts of individual criminals. The applicant had not reported any of these acts to the authorities and the Board found unsubstantiated the applicant’s allegation that the authorities would not help him but would also consider him a traitor, because most persons within the police were Hutus. The Board concluded that the applicant did not fulfil the requirements for being granted asylum in Sweden.
The applicant appealed against the decision to the Migration Court, (Migrationsdomstolen) and added that he could not report the men who had threatened him to the police because the latter sympathised with these men. He further claimed that in Sweden he had received threats from Burundi via messages on his mobile phone, stating that he would be killed if he returned to Burundi. He also submitted a copy of a letter in Kirundi which contained threats against him.
On 25 February 2008 the Migration Court rejected the appeal. It considered that the copy of the submitted letter was of very low evidentiary value and that the applicant had failed to show that he would face a real and personal risk of persecution upon return to Burundi.
The applicant failed to appeal against the decision to the Migration Court of Appeal (Migrationsöverdomstolen).
The applicant’s request for reconsideration of his case was refused by the Migration Board on 5 September 2008 finding that he had failed to invoke any new circumstances.
The applicant appealed to the Migration Court maintaining that he had received a copy of a search warrant from which it appeared that he was sought for having given false testimony. He had also received further threats on his mobile phone. He also alleged that upon return to Burundi he risked being killed by the person who had been the leader of the CNDD-FDD (Conseil national pour la défense de la démocratie-Forces de défense de la démocratie) when it had been a rebel group, and who was afraid that the applicant would testify against him at the International Criminal Court.
On 13 November 2008, the Migration Court rejected the appeal, finding that the applicant had failed to invoke any new significant circumstances.
The applicant failed to appeal against the decision to the Migration Court of Appeal.
The applicant lodged a new request with the Migration Board for reconsideration of his case. He claimed that relatives of the five persons against whom he had testified still threatened him. Moreover, unknown Burundians had broken into his girlfriend’s apartment in Sweden, looking for him, and threatened her since he had not been there.
It appears that an attempt to implement the deportation order failed in June 2009 due to technical problems with the plane.
On 23 June 2009 the Migration Board refused anew to reconsider the applicant’s case, finding that the grounds invoked by him in essence had already been decided by the Swedish authorities.
It appears that the applicant lodged an appeal to the Migration Court and alleged that the persons who had broken into his girlfriend’s apartment worked for the Burundian Secret Service. They were searching for him because he had testified against persons in Burundi who had then been convicted of crimes against international law and who were now free and looking for revenge. Those persons were supported by the Burundian Secret Service Chief and could thus operate both inside and outside Burundi.
Despite specific requests by the Court, the applicant has not submitted any decisions taken by the Migration Court and the Migration Court of Appeal after 23 June 2009 regarding the applicant’s appeal against the Migration Board’s decision of 23 June 2009.
It appears that an attempt to implement the deportation order failed in September 2009 due to the applicant’s physical resistance.
On 2 February 2010, 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.
On 8 August 2010, the applicant and his girlfriend had a child in Sweden.
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.
COMPLAINT
The applicant complained that an implementation of the deportation order to return him to Burundi would be in violation of Articles 2 and 3 of the Convention.
THE LAW
Articles 2 and 3 of the Convention read in so far as relevant:
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 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 appeal against the Migration Court’s decisions of 25 February and 13 November 2008 to the Migration Court of Appeal, although such an appeal would have constituted an effective remedy (see Hussein v. Sweden, cited above).
Despite specific requests by the Court, the applicant has also failed to substantiate that he has exhausted domestic remedies as regards the Migration Board’s decision of 23 June 2009.
In these circumstances the applicant has failed to meet the requirements under Article 35 § 1 of the Convention, and the application must be rejected in accordance with 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