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Cite as: [2012] ECHR 792

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FIRST SECTION

DECISION

Application no. 53351/09
X
against Norway

The European Court of Human Rights (First Section), sitting on 17 April 2012 as a Chamber composed of:

Nina Vajić, President,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 7 October 2009,

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

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr X, is a Burundian national who was born in 1958 and lives in Bergen. He is represented before the Court by Mr C.A. Kramer, a lawyer practising in Oslo. The Norwegian Government (“the Government”) are represented by Mr M. Emberland, Attorney, Attorney General’s Office (Civil Matters), as their Agent.

A. The circumstances of the case

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

1. Application for asylum and rejection by the Directorate of Immigration

On 20 July 2006 the applicant and his wife (born in 1977), arrived in Norway together with their two children, Z (born in 2003) and Y (born in 2005). The couple applied for asylum on 22 July 2006 on humanitarian grounds. The applicant stated that he was an ethnic Hutu originating from Province M in Burundi and that his wife was an ethnic Tutsi from the Bujumbura Province, Burundi. They had travelled from country N via the Czech Republic with their diplomatic passports and Norwegian visas issued in N. The applicant stated that he had served as a high-ranking diplomat for Burundi in N from October 2002 until he had left for Norway.

The applicant further informed that he was HIV positive and had been so during the past ten to thirteen years.

As a ground for seeking asylum, the applicant submitted that he and his family’s security was threatened because he as a previous office holder of the Province M had taken part in combating rebels who were currently represented in government. He gave in particular the reasons summarised below.

Prior to his departure from Burundi (in 2002) the applicant had been a member of UPRONA (Unity for National Progress, a political party which governed Burundi under one-party rule for over thirty years) and had held political office in Province M for two periods in the 1990s. During the civil war between 1996 and 1998 he had been involved in the coordination of activities to protect the civil population and had thus been exposed to rebel attacks. In 1999 the President of Burundi had found his situation so dangerous that he called the applicant to return to the National Assembly where he still had a seat. The applicant had been informed that a municipal administrator and his family had been killed because they had worked against the rebels. According to the applicant’s wife another provincial office holder and his family had been killed after the applicant had become a Member of Parliament.

Moreover, the former rebels had won the elections in 2005 and were integrated into the national army. The applicant had since August 2005 received anonymous threats by telephone informing him that what he risked was clear and that he had to come to Burundi to explain himself. He had also been called home from his diplomatic post. But in order to save his family he had opted for going to another country.

According to the applicant he had been sought after by members of the CNDD-FDD (National Council for the Defence of Democracy – Forces for the Defence of Democracy). The reason was that he, as a political office holder and as a representative of UPRONA, had been combating the rebels, who today belonged to the largest party in Government and Parliament. They considered the applicant as an enemy and would either unjustifiably accuse him or kill him. His life and the lives of his family members were in danger. His wife submitted that he was on a death list.

The applicant further pointed out that he had been supporting AC Genocide (Association burundaise de lutte contre le génocide), an organisation for combating genocide in Burundi, and that members of this organisation had been particularly exposed in the country. He further invoked the poor human rights situation there and that people were arrested and tortured at random.

In its examination of the applicant’s asylum request, the Directorate of Immigration enquired with a liaison officer in Burundi about the organisation AC Genocide, including whether some of its members had been arrested and the security situation of its members. The Directorate was informed that three members of AC Genocide had been arrested in May 2006 but had been released after a week. In February 2000, the AC Genocide had concluded an agreement with a number of other organisations with a view to re-establishing a constitutional government in Burundi. As regards the security situation of its members, the officer stated that the police had come to the organisations’ general meeting in December 2006 and had interrogated members the next day in order to identify those who had expressed views about a certain matter. Otherwise there was no reason to fear for the general security of AC Genocide members. Their only problem was that they might have difficulties in accessing the job market.

On 5 July 2007 the Directorate requested the Norwegian Country of Origin Information Centre (Landinfo) to provide information on the risks currently run by former office holders and diplomats upon their return to Burundi. The Directorate also asked for information about former high ranking diplomats who had been called home from their postings since the change of regime and about former UPRONA office holders who were currently the object of attention from the authorities. The Regional Adviser replied that the Centre had no specific information on the situation of returned/former high-ranking diplomats. In her view, the situation depended on whether and on what grounds they had criticised the Government; it was not unusual for a high-ranking diplomat to be replaced when a new government took up office.

On 4 September 2007 the Directorate rejected the asylum request, finding it not sufficiently probable that the applicant and his wife would face persecution upon return to their home country. The fact that the applicant had held political office in Province M after the civil war had erupted and that rebels had conducted attacks there did not mean that he would be particularly exposed at present. The applicant had not been threatened in such a way, the threats having been anonymous, that it was probable that there was a risk of persecution. Nor was it unusual that high ranking diplomats were called home after a change of government. Several highly placed office holders had lost their position – probably due to CNDD-FDD dominance – but this ought to be seen as a shift in politics. A number of them were still living in Burundi. Nor was it probable that the applicant risked persecution because of his role in the conflict. The fact that former Vice-President Kadege and former leader of UPRONA, Charles Mukais, had fled to Canada was no indication that the applicant risked persecution, as their situation was not comparable with his. Kadege and Mukasi had previously been high profile politicians and had distinguished themselves as prominent opposition politicians. Apart from that, the arrests had occurred at a time when the security situation was different. The applicant’s support of AC Genocide could not form a ground for asylum.

Finally, the Directorate took into account that the applicant was HIV infected. However, no documents had been submitted regarding his illness, which he had not mentioned in the asylum interview. In the Directorate’s view it was clearly probable that he would obtain treatment in Burundi. Since he was a resourceful and privileged person, probably with good contacts in his home country, his possibilities in this respect probably were better than for ordinary people.

On 24 September 2007 the Directorate granted a request by the applicant for stay of execution of his and his family’s expulsion.

2. Proceedings before the Immigration Appeals Board

On 18 December 2008 the Immigration Appeals Board rejected the applicant’s appeal. The Board did not find it probable that he would risk persecution in the sense of the Refugee Convention. He had not made it probable that he would be particularly exposed on return because he had held high political office in a province or been a member of UPRONA. Although he had stated that he was oppositional, it was not probable that he in that context had behaved in a manner entailing a risk of exposure. UPRONA was currently one of the political parties forming part of the coalition government.

The fact that the applicant had been called home as a high-ranking diplomat after the CNDD-FDD had won the elections in 2005 did not in itself suggest a risk of persecution. At the oral hearing before the Board he had said that he did not regard this as a problem. The Board considered that the threats which he had received anonymously by telephone in country N had not been of such a nature and extent as to constitute persecution. He had not reported the matter to the police in N. Nor could he say anything more concrete about the threats or their contents.

Thus there was insufficient basis for considering that the applicant, upon return to his home country, risked reactions by the authorities or others that could be described as persecution.

The Board further considered that HIV infected persons were stigmatised and, apart from the fact that the general humanitarian situation was difficult for this group, might be exposed to harassment and discrimination in Burundi. However, there was no information to the effect that HIV infected persons risked persecution generally. According to information from Landinfo and the World Health Organisation (WHO), the Burundian authorities offered HIV infected persons treatment in accordance with WHO guidelines, at a strongly subsidised price of USD 20-30 per year. The offer applied independently of ethnic or other origin and there was no reason to assume that the authorities discriminated against HIV infected persons in a manner breaching human rights. Nor did any individual circumstances pertaining to the applicant suggest otherwise. On the contrary the Board considered that he would be in a better position than most HIV infected persons in Burundi.

For these reasons the Board considered that the applicant could not be granted refugee status within the meaning of the Immigration Act and the Refugee Convention (sections 16 and 17 of the Immigration Act 1988). It endorsed in the main the reasoning stated by the Directorate in its decision.

The Board further examined whether protection was warranted according to the provisions applying to a wider range of persons than those covered by the refugee definition on the basis of less stringent requirements of proof and risk (section 15(1)(1)). On this point, a majority of the Board (the Chair and one member) concluded in the negative, referring to the reasons stated above. The minority (one member) considered that there was some doubt. Although the applicant’s explanations were vague, the risk that he would be exposed to oppression by the authorities upon return could not be excluded since due to his membership of UPRONA, he might be accused of opposing the current regime even though his party was a member of the coalition.

The Board also examined whether the applicant upon return would be exposed to an immediate danger of loss of life or inhuman treatment (section 15(1), second sentence of the Immigration Act 1988):

“The majority consider that the general security situation in the appellant’s home country does not indicate that section 15(1), second sentence, is an obstacle to return.

The majority maintain that to their knowledge the security situation in Burundi is no longer of such a nature that asylum seekers without individual grounds for protection cannot return to Burundi.

Since 1993 Burundi has been involved in a civil war that started with the murder of President Melchior Ndadaye, the first democratically elected president with a Hutu background. In spite of the fact that a peace agreement was concluded, and a coalition government with representatives of both the Hutus and Tutsis formed, in 2001, and in spite of the conclusion of a formal ceasefire agreement with one of the most central of the rebel groups (FDD [Forces for the Defence of Democracy, the armed wing of CNDD-FDD during the rebellion]) in December 2002, the civil war has still not been regarded as having ceased entirely. Armed activities continued in spite of the number of ceasefire agreements that have been concluded. In February 2005, a referendum was held on a new constitution. The peace process was formally terminated by the elections in summer 2005. The most recent ceasefire between the Burundian government and the FNL is dated 7 September 2006.

On the basis of overall protection considerations, the Directorate of Immigration has until recently granted all applications for asylum by Burundi nationals. Permits have been granted either in the form of asylum (cf. section 17(1) of the Immigration Act) or pursuant to the provisions on protection against return under section 8(2) (cf. section 21(1), cf. section 15(1)). The reason for this practice was the generally difficult security situation in Burundi, and protection under the last-mentioned provision has been granted unless there has been doubt about the individual’s identity or nationality. In 2006 the Directorate of Immigration announced that it would consider changing this practice, and due partly to the visit to Burundi by Landinfo earlier that year, the Directorate has now changed its practice with regard to return to Burundi.

The majority of the Board also refer to the report by [the] Regional Adviser ... at the Board hearing, where she stated that on 4 December 2008 a new agreement was concluded between the Government of Burundi and the FNL that was a direct extension of the agreements concluded in 2006. Under the agreement, the FNL was given the opportunity to become a political party. A camp was to be established for the rebels, where they would be demobilised and disarmed. The FNL was to be represented in the Government. The security situation in Burundi is closely related to the behaviour of the FNL, and has been relatively stable since May 2008 because the FNL had disarmed for a certain period of time. This occurred after their attack on Bujumbura in spring 2008, when the authorities had arrested about 1,000 persons suspected of belonging to the FNL. International actors who were monitoring the situation in Burundi immediately took action to save the peace process. In May, the leader of the FNL, Agathon Rwasa, returned to Bujumbura from exile in order to negotiate with the Government.

A political process between the Government and the opposition is being conducted in parallel with these efforts. The authorities have arrested members of ‘new’ opposition parties suspected of undermining the Government’s position and of recruiting young Tutsis to fight in Congo. In November one of the better-known members of the opposition, the journalist Alex Sinduhije, was arrested during this process, together with thirty other members of the opposition. Most of the arrested persons were released after a short time, but the journalist’s fate is not known.

For these reasons the majority of the Board considers that the general security situation in Burundi is not an obstacle to return.

Furthermore, the majority does not consider that there are any individual circumstances indicating that on return the appellants would be in immediate danger of their lives or of inhuman treatment. Reference is made to the asylum assessment above.

Thus section 15(1), second sentence, of the Immigration Act is not considered to preclude a return to Burundi.”

The Board then went on to consider whether a residence permit was warranted by strong humanitarian considerations. As regards the applicant’s HIV infection, the Board noted that this had already been established upon his arrival in Norway and that he had started the antiretroviral treatment probably several years before arriving in Norway. The Board assumed that if he did not receive treatment for HIV/AIDS, the illness would be lethal in relatively short time. In Norway he had received individually adapted treatment. According to Landinfo and the WHO, the Burundian authorities offered first line antiretroviral treatment at a heavily subsidised cost of 20 30 USD per year. The treatment was available in fifteen locations in the capital city of Bujumbara and twenty-two other locations in the country. The offer had been elaborated in cooperation with the WHO and, in accordance with WHO recommendations, was subject to continuous development. Although the level of treatment would not be of the same quality as in Norway and his life expectancy and quality of life probably would be longer and better if he remained in Norway, immigration policy considerations suggested that this could not be decisive as long as the applicant would receive necessary and adequate treatment in his home country.

The Board in addition had regard to the son Y’s health situation, which had not yet been clarified, and the fact that he was under examination for autism. However, even if it were to be established that he did suffer from such a condition, this could not of its own warrant a residence permit.

3. Requests for reconsideration by the Board

On 6 April 2009 the applicant, represented by another lawyer, requested the Immigration Appeals Board to reconsider its earlier decision. He stated that his son, Y, had received extensive professional follow-up in his kindergarten and was to be examined for autism. The applicant argued that Y would not receive any form of assistance were he to return to Burundi and that he lacked the necessary means. The applicant’s own life expectancy had been reduced as a result of his HIV infection. If he were to pass away, his wife and children would more or less be left to their own devices.

By a decision of 16 April 2009, the Board rejected the applicant’s request. It found no new information suggesting that the applicant had a need for protection. Nor did it find that a work- or residence permit was warranted by strong humanitarian considerations or by the existence of any particular links to Norway.

On 7 July 2009 the Immigration Appeals Board rejected a further request for reconsideration.

4. Statement by the UNHCR and renewed request for reconsideration

On 13 July 2009 the applicant’s lawyer sought the opinion of the United Nations High Commissioner for Refugees (“UNHCR”), Regional Office for the Baltic and Nordic Countries, located in Stockholm, Sweden. On 15 July 2009, the Regional Protection Officer replied:

“In response to your fax of 13 July 2009, in which you asked for UNHCR’s consideration of the international protection needs of your client Mr. [X], citizen of Burundi, ..., presently residing in Norway, UNHCR has consulted our Office in Burundi with regard to Mr. [X]’s background as well as his possible international protection needs in light of his background and would like to provide you with the following information.

UNHCR notes that Mr. [X] originates from [Province M]. Prior to his departure, he was a member of UPRONA that governed Burundi under one-party rule for over 30 years. His ethnicity is Hutu and he is married to a Tutsi woman. He has worked as:

• [Held high political office] in his native [Province M] ...

• Representative in the National Assembly ...

• [High-ranking diplomat] in [country N] ...

In light of Mr. [X]’s previous political activities, reportedly including a formal complaint lodged against FRODEBU [Burundi Democratic Front] resulting in the removal of the then main opposition party from the [Province M] election list in 1993 – an act by a Hutu against a political formation with Hutu majority; his function as an elected representative for UPRONA, a party known to consist of a majority of Tutsi; and his post as [high-ranking diplomat] under the Government of former President Buyoya, a Tutsi, Mr. [X] may well be perceived as a ‘sold Hutu’ and a traitor, on the pay roll of Tutsis. He is therefore considered to be potentially at risk of persecution by the Hutu community, including people who are in power today, upon his return to Burundi.

We therefore recommend you to consider pursuing all possible legal avenues in Norway and, as suggested earlier, to consider making a submission to the European Court of Human Rights, under Rule 39 of the Rules of Procedure of the Court, to prevent a deportation of Mr. [X] to Burundi.”

On 17 September 2009 the Board refused a request by the applicant for reconsideration of its refusal of 18 December 2008. In its view, this was not warranted by the fact that his son Y subsequently had been diagnosed as suffering from autism. Nor could it be justified by the UNHCR opinion of 15 July 2009, the question having been extensively and carefully reviewed in the Board’s decision of 18 December 2008.

5. The Court’s decision to apply Rule 39 and to give notice of the application to the respondent Government

On 13 October 2009 the President of the First Section decided in the interest of the parties and the proper conduct of the proceedings before the Court to indicate to the Norwegian Government, under Rule 39 of the Rules of Court, that the applicant and his family should not be expelled to Burundi until further notice.

On 19 November 2009 the President decided to give notice of the application, inviting the parties to address the following two questions:

“1. Has the applicant exhausted domestic remedies with regard to his submissions to the effect that his and his family’s expulsion to Burundi would be contrary to the Convention?

2. Bearing in mind the statement by the United Nations High Commissioner for Refugees, Regional Office for the Baltic and Nordic Countries, dated 15 July 2009, would the expulsion of the applicant, his wife and children, to Burundi be compatible with Articles 2 and 3 of the Convention?”

6. Request for legal aid

On 23 April 2010 the applicant, with the assistance of a lawyer, applied to the County Governor of Hordaland for a grant of free legal aid (fri sakførsel), under the Free Legal Aid Act 1980. On 6 May 2010 the County Governor refused the request.

The applicant appealed but, on 28 June 2010, the State Civil Affairs Authority upheld the County Governor’s decision. Albeit satisfied that the applicant fulfilled the financial conditions for free legal aid, it dismissed his appeal notably with reference to section 16 (3) of the Free Legal Aid Act, giving inter alia the following reasons:

“We understand that the case is of great importance for the [applicant], but having regard to the circumstances of the case as a whole we do not find that free legal representation should be granted in this case. In reaching this decision decisive weight has been attached to the fact that the case does not have priority for the purposes of legal aid and that a very restrictive practice applies with respect to the grant of free legal representation in immigration cases that do not fall within the categories of section 16 (1) no. 1 of the Free Legal Aid Act, cf. the Ministry of Justice’s Circular G 12/05, section 6.5. In immigration cases that are not prioritised, free legal representation is granted only exceptionally, if there are entirely special reasons, for example where the case raises questions of particular interest that have not previously been examined by the courts.

The State Civil Affairs Authority finds against the background of the documents presented that the case does not have sufficient common traits with the subject matters mentioned in section 16 (1) and (2). Nor do we find it shown that the case raises questions of principle of particular interest that have not been previously examined by the courts.

In practice it is considered that, as a main rule, the public authorities should not grant legal aid in cases concerning judicial review in respect of decisions by the Immigration Appeals Board. The reason for this is that the claimant already has had his or her case reviewed administratively by both the Directorate of Immigration and by the Board. These instances possess special competence within immigration law. In this regard attention is drawn to the fact that the present case has been examined by the immigration authorities a number of times, without success. ... The case has thus been examined by the immigration authorities five times. In this connection it is noted that the [applicant] has been assisted by a lawyer both in connection with his administrative appeal and when two of his three requests for reconsideration were made. ... Therefore, his fundamental need for legal security must be considered to have been safeguarded through the administrative examination of the case.

In the assessment regard has also been had to the [applicant’s] allegation that the UNHCR in its statement of 15 July 2009 had expressed a different evaluation of the [applicant’s] risk upon return to Burundi than that made by the Board in its decision of 18 December 2008. In this context we point to the fact that in examining the [applicant’s] third request for reconsideration, the Board considered the statement by the UNHCR, without it leading to a different result in the case. The State Civil Affairs authority also observes that the UNCHR statement does not appear to have been based on a thorough consideration of the facts of this case but rather stated a general assessment.

Regard is further had to the argument that the European Court of Human Rights by a letter of 13 October 2009 indicated to the Norwegian authorities not to deport the applicant. Like the County Governor, the State Civil Affairs Authority finds that this indication does not seem to have been based on a thorough examination of the validity of the Immigration Appeals Board’s decision. It is also observed that it does not appear from the case documents on what ground the Court has based its decision.

Having regard to the circumstances of the case as a whole, the State Civil Affairs Authority finds that it should not grant free legal representation in the present case. ...”

7. Recent development

By a letter of 1 February 2012 the applicant informed the Court that his son, Y, had tragically died on 1 October 2011.

B. Relevant domestic law

Under the 2005 Code of Civil Procedure (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 1-5, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 29-1) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act 1999).

Under Chapters 32 and 34 of the Code, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order.

For further details on the conditions and modalities regarding judicial review of the Immigration Appeals Board’s decisions, reference is made to the part “B. Relevant domestic law” in the Court’s decision on admissibility in Agalar v. Norway ((dec.) no. 55120/09, 8 November 2011).

C. Relevant information on Burundi

The Burundian population counts approximately 8.6 million people and is composed of three ethnic groups: the Hutu (85%), the Tutsi (14%) and the Twa (1%).

By the Arusha Peace and Reconciliation Agreement of 2000 the Government of Burundi, the National Assembly and all the main political parties agreed to end a decade of armed hostilities between the Hutu majority and the Tutsi minority, estimated to have cost the lives of approximately 500,000 Burundians between 1972 and 2000. Pursuant to this agreement a new constitution was elaborated and adopted by referendum in 2005, establishing terms by which the two ethnic groups would share power and recognising fundamental human rights for all Burundians. A significant reform was the enactment in April 2009 of a revision of the Penal Code, which abolished the death penalty, defined and prohibited torture and criminalised genocide, war crimes and crimes against humanity (Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office in Burundi, 31 August 2009, A/HRC/12/43, paragraphs 1 and 7).

The law imposes ethnic quotas, requiring that 60 percent of the seats in both houses of parliament be filled by Hutus and 40 percent by Tutsis. The Twa ethnic group is entitled to three seats in each house. By law military and police positions should be divided equally between Hutus and Tutsis. The government fulfilled this mandate with respect to the military; however, inequalities continued to exist within the police force. While Hutus and Tutsis constituted 51 and 49 percent, respectively, of the police force, disparities existed at the higher ranks. Eighty percent of police commissioners at the national level were Tutsis, while Hutus made up 66 percent at the provincial district level (US Department of State, 2010 Human Rights Report Burundi, 8 April 2011).

According to the Fifth Report of the Secretary General on the United Nations Integrated Office in Burundi (document S/2009/270), dated 22 May 2009, the period under review (December 2008 to May 2009) witnessed significant breakthroughs in the peace process which led to some improvements in the security situation in Burundi, especially in the north western provinces. However, criminal activities perpetrated by alleged FNL elements, former combatants, members of the security forces and unidentified armed individuals persisted throughout the country. These included killings, abductions, rapes, lootings, armed robberies, grenade attacks, ambushes and violent incidents related to land conflicts. Moreover, despite limited improvement in the overall human rights situation during the reporting period, impunity continued to be a source of serious concern, in particular for sexual and gender-based crimes. (see I.N. v. Sweden, no. 1334/09 (dec.), § 23, 15 September 2009).

The following are the main political parties in Burundi (Human Rights Watch, “We’ll Tie You Up and Shoot You”, Lack of Accountability for Political Violence in Burundi, May 2010):

“CNDD: National Council for the Defense of Democracy (Conseil National pour la Défense de la Démocratie), a political party and former rebel movement founded in 1994, run by former rebel leader Leonard Nyangoma. The party’s official name is CNDD, but it is frequently referred to as CNDD-Nyangoma to distinguish it from the ruling party, CNDD-FDD, which split off from CNDD in 1998.

CNDD-FDD: National Council for the Defense of Democracy-Forces for the Defense of Democracy (Conseil National pour la Défense de la Démocratie-Forces pour la Défense de la Démocratie), a former rebel movement. The FDD (Forces pour la Défense de la Démocratie) was initially the armed wing of the CNDD, above. A fission within the movement in 1988 resulted in the formation of CNDD-FDD as a break-off faction of the original CNDD. CNDD-FDD joined the government in 2004 and was elected into power in 2005, with a majority of seats in parliament and former rebel leader Pierre Nkurunziza as president.

FNL: National Liberation Forces (Forces Nationales de Libération). This term initially referred to the armed wing of the rebel movement Palipehutu-FNL. In January 2009, the Palipehutu-FNL changed its name to simply “FNL.” In April 2009, it disarmed and became a registered political party.

FRODEBU: Democratic Front in Burundi (Front pour la Démocratie au Burundi), a political party founded in 1992 as a predominantly Hutu party opposed to the Tutsi dominated dictatorship of UPRONA.

MSD: Movement for Solidarity and Democracy (Mouvement pour la Solidarité et la Démocratie), a political party founded in 2007 by Alexis Sinduhije.

...

UPD-Zigamibanga: Union for Peace and Development-Zigamibanga (Union pour la Paix et le Développement), a party that was once closely aligned with CNDD-FDD, but that broke off this unofficial alliance in 2007 after the arrest of former ruling party leader Hussein Radjabu.

UPRONA: Union for National Progress (Union pour le Progrès National), a political party founded in 1958 and historically dominated by Tutsis.”

A detailed account of the peace process and political violence in Burundi may be found in Human Rights Watch’s above-cited May 2010 report and in its report “Closing Doors? The Narrowing of Democratic Space in Burundi”, also issued in May 2010, as well as in its May 2009 Report entitled “Pursuit of Power – Political Violence and Repression in Burundi”, the latter being appended to the Government’s observations of 15 March 2010.

The Government in addition submitted a copy of the US Department of State’s “Burundi – Country Reports on Human Rights Practices – 2008” and the UK Border Agency (Home Office) Country of Origin Information Key Documents, Burundi, of 17 December 2009.

Further surveys may be found in the Fifth, Sixth and Seventh reports of the Secretary-General on the United Nations Integrated Office in Burundi (respectively of 22 May 2009, 30 November 2009 and 30 November 2010, Security Council); and the Report of the Independent Expert on the situation of human rights in Burundi of 31 May 2011 (Rapport de l’expert independent sur la situation des droits de l’homme au Burundi), Fatsah Ouguergouz, 31 mai 2011), Human Rights Council, Seventeenth session, A/HRC/17/50, General Assembly).

The 2010 Human Rights Report Burundi (see paragraph 39 above) contained the following summary on the various elections held in Burundi in 2010 and election related violence:

“Elections and Political Participation

Between May and September the government held presidential, parliamentary, Communal Council, and local elections. Presidential elections in June resulted in the re-election of President Nkurunziza, the candidate of the ruling CNDD-FDD party. While the elections were generally described as free and fair by international observers and the election days themselves were peaceful, political parties engaged in intimidation and violence leading up to the elections. The ruling CNDD-FDD party and their affiliates were particularly active. In the run-up to the elections, there were widespread reports that the CNDD-FDD’s Imbonerakure youth wing committed abuses, such as threatening and assaulting opposition party members, with impunity. A coalition of parties alleged massive fraud in the May 24 Communal Council elections; all six of the opposition parties that had registered for the June presidential election withdrew their candidates. Only a few parties participated in the July parliamentary elections, in which the president’s CNDD-FDD increased its majority, winning 81 of the 106 seats in the National Assembly. The Union for National Progress (UPRONA) won 17 seats, the Front for Democracy "Genuine" (FRODEBU Nyakuri) won five seats, and the Twa ethnic group received three seats. In the Senate the CNDD-FDD won 32 of the 41 seats and UPRONA two. The Twa ethnic group received three seats; the four living former presidents of the country received the remaining seats. International and domestic observers released statements that noted instances of electoral irregularities in these parliamentary elections but did not substantiate claims of massive, systemic fraud.

Police searches of opposition parties’ headquarters and homes, particularly those targeting the FNL, MSD, and UPD parties, increased significantly during the elections and their aftermath. Major opposition party leaders left the country and went into hiding .... On August 9, police allegedly found a grenade, a pair of army boots, and a set of military binoculars during a raid on the MSD’s national headquarters. On September 16, after MSD President Alexis Sinduhije fled the country, police searched his residence and allegedly found a box of 20 military uniforms. Human rights organizations and opposition parties suggested that the items found in the two raids were likely planted by police or the SNR to entrap MSD members and to discredit the party and its president.

Election violence resulted in numerous deaths.”

On 26 August 2010 President Nkurunziza was inaugurated for a second term and the following day, in accordance with the Constitution, he nominated a new Government that reflected the composition of the National Assembly, comprising twenty-one ministers: fourteen from CNDD-FDD, three from UPRONA, one from FRODEBU-Nyakuri and three from civil society (Seventh Report of the Secretary-General on the United Nations Integrated Office in Burundi, document S/2010/608, 30 November 2010).

It does not transpire from the above-mentioned material that former holders of high political office at provincial level such as that held by the applicant or members of UPRONA, whether of Hutu or Tutsi ethnic origin, have by reason of their background been specifically targeted of political violence, including extra-judicial executions, killings, torture or other ill treatment, in recent years.

The 2011 UNHCR country operations profile – Burundi, stated as follows under the heading “Working environment” (quoted in Sibomana v. Sweden (dec.) no. 32010/09, 22 November 2011):

“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.”

On the return of refugees to Burundi, the above-mentioned 2010 Human Rights Report Burundi (see paragraph 39 above) stated inter alia:

“During the year the UNHCR facilitated the voluntary repatriation of approximately 3,400 refugees who had previously fled to neighbouring countries. Among the returnees were 689 repatriated from Tanzania, 2,647 from the DRC, and 80 from Rwanda, South Africa, Lesotho, Zambia, and Europe. This brought the total number of returned refugees to 509,061 since 2002. The UNHCR and the Government Project for the Reintegration of War-Affected Persons (PARESI) assisted in the repatriation and reintegration of these returnees and internally displaced persons (IDPs). PARESI did not register any expelled persons during the year.”

COMPLAINTS

Under Articles 2 and 3 of the Convention, the applicant complained on his own and his family members’ behalf that if they were to be expelled to Burundi their lives would be at danger. The current regime in Burundi considered the applicant as an enemy and would either unjustifiably accuse him or kill him.

THE LAW

A. Whether the application is inadmissible on grounds of failure to exhaust domestic remedies

The Government maintained that the applicant had not satisfied the requirement in Article 35 § 1 of the Convention that “all domestic remedies have been exhausted according to the generally recognised rules of international law”. They therefore requested the Court to declare the application inadmissible under Article 35 §§ l and 4.

The applicant disputed the Government’s contention that his application should be declared inadmissible on grounds of failure to exhaust domestic remedies.

The Court notes that the parties’ arguments were in the main identical or similar to those of the parties in its decision on admissibility in Agalar (cited above, see Section A under “The Law” part in that decision). Essentially for the same reasons as set out in that case, the fact that Mr X did not seek judicial review means in the Court’s view that his complaints under the Convention should in principle be declared inadmissible on the grounds of failure to exhaust domestic remedies.

As to the further question whether there are any special circumstances which absolve the applicant from his normal obligation to exhaust domestic remedies, the Court notes in particular that, like Mr Agalar, Mr X applied for free legal aid to the competent national legal aid authorities, the County Governor and (on appeal) the Civil Affairs Authority, with a view to obtaining national judicial review of the impugned decisions. Also in this case the Court cannot but note that, despite the legal aid authorities’ being satisfied that the applicant fulfilled the conditions of indigence for being granted free legal representation before the national courts, they decided to refuse his request for such a grant (see paragraph 32 above). This was done even though the Court had decided to apply Rule 39 of the Rules of Court and had given notice of the application to the Government with two specific questions (see paragraphs 29 and 30 above). In this respect, the Court will emphasise that according to its practice, decisions under Rule 39 are only taken after a careful examination. The circumstances of the refusal and the reasons stated by the State Civil Affairs Authority in the present case (see paragraph 32 above) were practically identical to those in Agalar.

As in Agalar, the Court finds also in the case now under consideration that there are special circumstances of such a nature as could arguably absolve the applicant from his normal obligation to exhaust the national judicial remedies. However, as was also the situation in that case, bearing in mind the thorough review that had been carried out at the administrative level by the Directorate and by the Board, the Court does not deem it necessary to determine this issue since in any event his application is manifestly ill-founded for the reasons stated below.

B. The complaint under Articles 2 and 3 of the Convention

1. Arguments of the parties

(a) The Government