HAKIZIMANA v. SWEDEN
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
The applicant, Mr Jean M. V. Hakizimana, is a Rwandan national who was born in 1973 and is currently living in Sweden. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Huddinge. The Swedish Government (“the Government”) were represented by their Agent, Mr C. H. Ehrenkrona, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 December 2002 the applicant applied to the Migration Board (Migrationsverket) for asylum and a residence permit and, on the same day, an initial interview was held with him. The applicant claimed that he had arrived in Sweden that same day and he submitted his Rwandan identity card. However, he did not present a passport or any travel documents. He stated that he was an ethnic Hutu and had been persecuted by the Tutsis. Between 6 and 29 November 2002, he had been imprisoned in his home town, Gatore, and had been tortured. On the day of his escape from prison, he had been taken by car to Kampala airport and had left the country by plane the following day, via Nairobi and with a second stop-over at a place unknown to him. In the context of a comprehensive asylum investigation, the applicant appeared before the Migration Board on 10 June 2004 in the presence of his legal counsel and stated, in particular, as follows. He came from Gatore, a town in the municipality of Rusumo, in the province of Kibungo. In 1994, because of the civil war, he and his family had fled to Tanzania, where they had lived in a refugee camp and he had worked as a teacher. Upon his return to Rwanda, in 1996, he had received an identity card and had worked for the United Nations World Food Programme. However, he claimed that he had been insulted and then dismissed because of his Hutu ethnicity. Between 1998 and 2002 he had studied computer engineering at a university in Madras, in India, as a United Nations scholarship holder. His wife and two daughters had remained in Rwanda and when one of the daughters had fallen ill, he had returned. On 3 November 2002 he had arrived at the airport in Rwanda where he had had to fill in an “entry form” and then his passport had been taken away from him by a man in civilian clothes. He had been told to return to collect it when he needed it, but he believed that the passport had been taken in order to prevent him from leaving the country. Three days later, when he had gone to visit his parents in Rusumo, he had been arrested by a person working for the Local Defence Forces (hereafter “the LDF”). He had been taken to a secret prison in the countryside where, almost daily, he had been insulted and hit with sticks and he had not been given anything to eat, apart from when his relatives brought him food. However, he had never been interrogated and had managed to escape after his family had bribed a guard. He had subsequently fled to Uganda, via Gatona, by hiding in a pick-up truck. Relatives in Uganda had arranged for him to travel to Sweden since he had not dared to stay in Uganda because of the presence there of high-ranking military persons of Rwandan nationality. Moreover, the applicant stated that he had never been politically active but that the Rwandan authorities probably thought that a Hutu coming back from India could be capable of influencing other Hutus. He had thus been called to gacaca trials (see below under “relevant background material”), as had many others who had been to school. His father had also, several times, been summoned to the police station to be questioned about the applicant’s whereabouts and his brother-in-law had fled to Malawi. His brothers and sisters had been forced to leave Rwanda as well. In a written submission to the Migration Board, the applicant, who had been given the opportunity to comment on the investigation, made certain clarifications and additions. However, he first complained that he had spent more than six hours on a train to get to the meeting with the Board and for this reason he had been tired and unable to prepare himself sufficiently for the interview. He then stated that the prison to which he had been taken had in fact been a normal house, belonging to a businessman. Moreover, he had been arrested when he had got off a bus to visit his brother, who since 1996 had been held in the local “Prison Central”. He had never been informed of the reason for his arrest but he had been ill-treated and threatened and had also seen other persons who had been tortured and had died from their injuries. The applicant further added that, while in Tanzania, he had married his wife and their first child had been born there. In 1996 they, together with all other Hutus in the country, had been forced by the Tanzanian military to return to Rwanda. However, he claimed that they had been too afraid to settle in their home town since his family’s property had been confiscated by the authorities and they had therefore settled in the county town of Kibungo. He had nevertheless made a claim to the mayor of the municipality of Rusumo to have the family’s property returned. The applicant alleged that the mayor had understood the demand to mean that he was against the regime and had issued an order for his arrest. Although the mayor had left office in 1997, the applicant had remained afraid of returning because of the arrest order. Furthermore, the fact that he was a Hutu and well-educated had increased the risk of his being considered as a danger to the regime and arrested. This was particularly so because he had openly expressed his discontent with the Rwandan regime while he had been in India and he was convinced that two other Rwandan students there had been informers of the regime and had reported him to the Rwandan Embassy in New Delhi. The applicant further submitted that he had been in contact with one of his brothers who had recently fled to Uganda and had reported that their father had been battered and interrogated about the applicant’s whereabouts by the same persons who had arrested him. Thus, if forced to return to Rwanda, the applicant was convinced that he would be killed, seriously ill-treated or persecuted because he was a Hutu with higher education who had demanded to have his family’s property returned and who had escaped from a local prison. He was afraid of being sentenced by the gacaca courts. Although their task was to consider charges against people suspected of genocide, he was certain that they also convicted innocent persons whom the Government suspected of being a threat to security or of belonging to the opposition. On 14 July 2004 the Migration Board rejected the application. It first noted that the Special Representative of the European Union in the Great Lakes Region had reported that conditions in the region had developed in a positive way. Freedom of expression and political rights were respected to a larger extent and the death squads in the eastern part of the Democratic Republic of Congo were no longer considered a threat to the internal security of Rwanda. Moreover, because it was still commonplace for people in Rwanda to be accused of having taken part in the genocide, whether they actually had or not, the Government had created the gacaca courts, a community-based justice system. On the basis of this, the Board found that the general conditions in Rwanda were not such as to grant a right to asylum. Turning to the applicant’s personal circumstances, the Board observed that he had not been politically active and therefore considered that it was unlikely that the Rwandan authorities would suspect him of being a security risk or of working against them. If the Rwandan embassy in India had had such suspicions, he would probably have been arrested already upon his arrival at Kigali airport. In view of this, it considered that the fact that his passport had been taken from him at the airport did not raise an issue. Turning to the applicant’s arrest, the Board found that he had probably been arrested because the LDF wanted to make money, since he had neither been interrogated nor accused of any offence. It further considered that the applicant’s allegations that the mayor of Rusumo had ordered his arrest because he had demanded to have his family’s property returned, were not credible as he had added it at a late stage of the proceedings. In any event, the Board was of the opinion that it was not probable that his arrest in 2002 was connected to the mayor’s arrest order in 1996. If such an order had been issued, it was remarkable that he had not been arrested earlier, since he had not been in hiding but had been working and moving freely before travelling to India. Moreover, as regards the applicant’s fear that he would be convicted by the gacaca courts, the Board noted that there were no reports about these courts sentencing innocent people only because the regime suspected them of being a security risk or of belonging to the opposition. However, even if there were such a risk, the Board considered that the applicant would not face a real risk of being convicted by the gacaca courts since he was not a security risk or politically active against the regime. Lastly, having regard to the fact that he had been living in Rwanda between 1996 and 1998 without having any problems and that the Rwandan Government was working very hard to prevent harassment attributable to the genocide, the Board concluded that the applicant would not risk persecution upon his return to Rwanda. The Board thus concluded that the applicant could neither be granted asylum in Sweden nor granted leave to remain on humanitarian grounds. The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adducing, inter alia, the following clarifications and additional comments. When he was arrested on 6 November 2002, the arrest had been made in his home town by a person belonging to the LDF and who knew that he was Hutu and had a higher education. Moreover, his family had bribed a prison guard (i.e. not a member of the LDF) to release him. It was therefore probable that the LDF were still looking for him and that they had beaten his father as revenge and also threatened his brother and sister so that they had felt forced to flee to Uganda. Those two siblings had been registered as refugees by the UNHCR in Uganda. In this respect, the applicant also claimed that another brother of his had recently died following ten years’ imprisonment only because of his Hutu ethnicity. A document was submitted in support of the alleged death. The applicant further alleged that everyone had to carry an identity card in Rwanda, especially Hutus, as otherwise they would be considered to belong to a rebel group or an opposition party. Furthermore, as regards his passport, he had obtained it through payment of bribes and, since he was not in the RUHARWA’s register (the register containing the names of persons suspected of having participated in the genocide), his name was not on any lists at airports or embassies and he had therefore been able to travel to India. The applicant stated that torture still occurred in Rwanda and that, during his imprisonment, he had been tortured as had many others, some of whom had died from their injuries. He gave the names of several of these persons. He was certain that his arrest had been motivated solely by his ethnicity. Moreover, in June 2004, his father had been very severely battered by the police and had had to be hospitalised. He had not been able to report what had happened since the police, the prosecutors and the members of the judiciary were all Tutsis. In the applicant’s view, although the Tutsis made up only 14% of the population, they were governing the country and seeking to “tutsify” it. He further questioned the sources referred to by the Migration Board, alleging that the elections in Rwanda in 2003 had not been fair and that the country was not at all safe for Hutus. The gacaca courts did not reunify the people but only created more conflicts. He invoked various reports in support of the general, poor human rights situation in Rwanda. He was convinced that he would be arrested upon return to his home country and the fact that he had applied for asylum abroad increased this risk even further. On 29 September 2005 the Aliens Appeals Board rejected the appeal, subscribing to the reasons given by the Migration Board. It also added, inter alia, that the applicant could not be considered to have been the victim of State-sanctioned persecution in Rwanda because of his ethnicity, noting that he had been able to live in Rwanda for two years prior to his journey to India and that he had been able to return to his home country without being arrested. The Board further found it improbable that the Rwandan authorities would have a special interest in him only because he had applied for asylum in Sweden. In the Board’Sweden and could not be granted leave to remain on humanitarian grounds. He was ordered to leave the country within two weeks from the date of the decision. On 20 October 2005 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to Rwanda. He alleged that he would face a real risk of being imprisoned, tortured and possibly even killed if forced to return to his home country. Moreover, he submitted two letters. The first one, dated 27 February 2005, was from the coordinator of the Refugee Sponsorship Program of the Diocese of Thunder Bay, Canada, and stated that the Diocese was willing to offer him support to resettle in Canada, provided that his case was formally referred to them by the UNHCR. The second letter, dated 4 October 2005, was from the Religious of Jesus-Mary, Montreal, Canada, and stated that they promised to provide the applicant with sponsorship as a priority for the beginning of October 2005. They had an agreement with the Government of Quebec which permitted them to sign commitments under which they retained responsibility for refugees during their first year in Canada. On 24 October 2005 the Court decided to apply Rule 39 and to suspend the deportation until the applicant had received an answer concerning the possibilities for him to go to Canada. On the following day, the Migration Board stayed the deportation of the applicant until further notice. The Migration Board’s decision is still in force. On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed. On 14 June 2006, after having received several submissions from the applicant, the Migration Board decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. 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 the country. By letters of 20 June 2006 and 11 September 2006, the Court requested the applicant to inform it whether he had obtained permission to go to Canada. In a reply which arrived to the Court on 9 October 2006, the applicant stated that he would inform the Court about the outcome of the Canadian proceedings within two months. The applicant then made a new request to the Migration Board for a residence permit in Sweden or, in the alternative, a student visa for one year. He claimed that, if he was allowed to remain one year in Sweden to study, it would heal him mentally and he could then return to live and work in Africa. On 20 November 2006 the Migration Board rejected the request as it considered that these were no new circumstances which could constitute an impediment to the enforcement of the deportation in accordance with the Aliens Act. Subsequently, the applicant submitted several “testimonies” and letters from named Rwandans in confirmation of the poor human rights situation in the country, in particular for Hutus and intellectuals. One of the persons stated that he had been asked to falsely accuse the applicant of having assaulted him and another person and alleged that the applicant had been summoned by the police on 13 December 2005. This person affirmed that he had been instructed to accuse all former teachers in Rwanda of having taught “ethnism” and “divisionism”. Furthermore, two persons testified that they had spent time with the applicant in prison, that they had been battered and that many people had died from the ill-treatment. Another two persons claimed that they had been asked, but had refused, to give false testimony against the applicant by stating that he had taken part in the genocide. However, they alleged that many other people had given false testimonies and that, therefore, the applicant would risk being accused and convicted by the gacaca courts. One more person, who was a Rwandan asylum-seeker in France, stated that, in May 2004, he had heard people mentioning that the applicant was on the Rwandan authorities’ list of people who were considered politically dangerous and who should be arrested. He also confirmed that the applicant had been detained without a trial. The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (Utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was superseded on 31 March 2006 by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 and 2005 Acts define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. Chapter 1, Section 4, of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the grant of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country. Further, under the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had 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 3, Section 3). An alien who was to be refused entry, deported or expelled, in accordance with a decision that had gained legal force, could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or if it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7). As regards the enforcement of a refusal of entry, deportation or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1). In essence, the 2005 Act did not substantially amend the above provisions, except for the following. Under the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to renew applications but, instead, the Migration Board determines, on its own initiative, whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18). Furthermore, on 15 November 2005 certain interim amendments to the 1989 Act entered into force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined. Rwanda is a constitutional Republic dominated by a strong presidency and with a population of 8.4 million (an estimated 88% Hutus, 11% Tutsis and 1% Twa pygmies). In April 1994, the Hutu-dominated national army and its armed youth militia (the Interahamwe), under the direction of the Hutu-dominated government, began a massacre directed primarily against the minority Tutsi ethnic group, but also against those from the Hutu majority who opposed the killing or had been active in the pro-democracy movement. The genocide, which left close to one million people dead, ended in July 1994 when the predominantly Tutsi Rwandan Patriotic Front (the RPF) overthrew the government and took power. It formed a government of National Unity that functioned until 2003 when, in largely peaceful but seriously marred elections, the RPF won the majority of the seats in the Chamber of Deputies and the Senate. Prior to the genocide, all Rwandans were required to carry identity cards that indicated ethnicity, a practice that had been instituted during the Belgian colonial administration. Following the genocide, the government banned all identity card references to ethnic affiliation and called for national reconciliation. They also eliminated all references to ethnicity in written and non-written official discourse as well as ethnic quotas for education, training, or government employment. The constitution provides for the eradication of ethnic, regional, and other divisions and the promotion of national unity. While some organisations and individuals have continued to accuse the government of favouring Tutsis in government employment, admission to professional schooling, and other matters, the government have denied this charge and there is no evidence to suggest that the government practises ethnic favouritism. The law prohibits “any propaganda of ethnic, regional, racial, or divisive character or based on any other form of divisionism”, and public incitement to “divisionism” is punishable by up to five years in prison, heavy fines, or both. Individuals can criticise the government publicly and privately on most topics but the law discourages citizens from expressing viewpoints unacceptable to the government on sensitive subjects, as such viewpoints sometimes result in imprisonment, harassment, or intimidation under the pretext of “divisionism”. In 2006 Rwanda received some positive comment by a peer review team of the New Economic Partnership for Africa (NEPAD) but was criticized for restricting political space and not recognizing diversity. There were reports that security forces had committed extrajudicial killings and torture, abused suspects with impunity and arbitrarily arrested and detained persons, including street children and members of other vulnerable groups. Local officials had briefly detained some individuals who disagreed publicly with government decisions or policies. Such individuals had not usually been charged and had been released after a day in detention. Furthermore, there were reports of secret detention centres being run by security officials where individuals were detained illegally, abused and deprived of food and water. The government and police denied this but, in 2006, the Senate opened an investigation into the matter. Members of local communities chose community volunteers to serve in the Local Defence Forces (the LDF), a statutorily established law-enforcement organisation under the Ministry of Local Government that assisted police. The national police exercised tactical control of the LDF while locally appointed officials had responsibility for the operational oversight. LDF members performed basic security guard duties throughout the country, including maintaining a presence at gacaca trials, and they were ordinarily unpaid and received less training than the national police. Police officers and LDF members allegedly committed several unlawful killings but the government investigated these killings and reports generally indicated that the LDF members accused of killings had been arrested and charged. In 2006 there were fewer reports of police officers abusing suspects at the time of arrest, and authorities dismissed or disciplined some police officers for excessive use of force. The government took significant steps in 2006 to address human rights deficiencies and institute reforms, such as forming a unit in the National Police to investigate citizens’ reports of official abuse and corruption. Moreover, the judiciary has demonstrated increased independence in its growing willingness to rule against the executive branch, its release of some political prisoners, and in its use of the Judicial Council to conduct investigations into judicial corruption. A traditional, community-based gacaca system of tribunals was established in 2002 to try people suspected of crimes during the 1994 genocide, in order to resolve the enormous caseload of such crimes (however, not the most serious, so-called “category I” crimes, which are still tried in the ordinary courts). The government’s stated goal for the gacaca system was to ensure that those who had participated in the genocide were brought to trial, furthering the ends of justice, ending impunity and promoting national unity. The gacaca law provides for reduced sentences including community service, for cooperation, and credit for time served. After a pilot phase when approximately 700,000 individuals were identified for prosecution for having participated in the genocide, the gacaca courts began trials nationwide in July 2006. The trials have been public but there have been concerns about their fairness, among other things because of a perceived lack of impartiality and reports that defendants have not been given the opportunity to defend themselves. In addition, some courts have spent only a few hours hearing each case and poorly qualified, ill-trained and corrupt gacaca judges in certain districts have fuelled widespread distrust of the gacaca system. There have been reports of local gacaca officials and citizens abusing the process to pursue personal matters and settle grudges unrelated to the genocide, including making false accusations in order to acquire land. However, in some reported cases where judges had acted inappropriately, gacaca officials intervened and held that the procedure had been illegal. Moreover, “Lawyers without Borders” has offered training to gacaca judges. The establishment of section-level appeal courts has lagged behind, limiting the possibility of recourse for those who feel wrongly judged. Many Rwandans have not trusted the gacaca courts and have either boycotted the sessions or have attended under duress. In 2006, when the trials began, some fled to neighbouring countries in fear of being prosecuted but most of them returned to Rwanda later the same year. A variety of international NGOs and more than six domestic human rights groups have been operating in the country. One of these, LIPRODOHR, employed some of its 600 members to conduct field investigations into alleged abuses, published its findings and discussed them with government officials. It raised concerns about false accusations in gacaca trials. In 2006, more than 17,000 asylum seekers returned to Rwanda from Burundi. There were no reports that these repatriates were mistreated upon their return. Also in 2006, Tanzania expelled more that 13,000 Rwandans. The Rwandan government worked with UNHCR and other aid organisations to assist the returnees, who were resettled, and government mediators handled land disputes resulting from the number of returnees. It was reported that Rwandan nationals had not encountered any particular problems in obtaining identity cards or passports, either to leave the country or to return following exile. Corruption was not considered a problem for obtaining passports but it was expensive, thus creating an obstacle for many. According to the UNHCR 2004 Guidelines on Rwandan asylum seekers, the mere assertion of having been deprived of property before or during exile, by itself, was not sufficient to establish a refugee claim. The Rwandan Government had undertaken to ensure the resolution of such cases, and some properties which had been taken by those who returned in 1994 had been restored to their rightful owners. However, persons who illegally took or seized other peoples’ properties in Rwanda are known to have falsely accused the rightful owners of involvement in the genocide when the latter have attempted to assert their property rights.