CASE OF H.N. v. SWEDEN
No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Burundi);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Burundi)
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
7. The applicant was born in 1984. 8. On 19 September 2006 the applicant arrived in Sweden. He applied for asylum the following day. He stated, in interviews and written submissions, that he is of mixed Tutsi/Hutu ethnicity and that his mother and younger brother had been killed in 1997 during ethnic violence. Following the victory in the 2005 general elections by CNDD-FDD (Conseil National pour la Défense de la Démocratie – Forces de Défense de la Démocratie), that party had set out to imprison and assassinate people suspected of being members of Palipehutu-FNL (Parti pour la Libération du Peuple Hutu – Forces Nationales de Libération) and other organisations hostile to CNDD-FDD. He claimed that he and his family had been threatened and harassed on several occasions, being accused of collaborating with the FNL group. On 5 August 2006 CNDD-FDD supporters had come to the family’s home and had killed the applicant’s father and arrested the applicant. He had then been detained for a month, during which time he had been beaten and tortured daily. A return to Burundi would entail the risk of renewed detention and torture as well as death, as he would be able to give evidence about what had happened to his family. 9. On 26 July 2007 the Migration Board (Migrationsverket) rejected his application. It stated that the general situation in Burundi, due to recent improvements, was not a sufficient ground for asylum. It further considered that the events alleged by the applicant had to be seen as acts of individual soldiers which did not constitute persecution by the Burundian authorities. Moreover, the applicant had not shown that the authorities were unwilling or unable to protect him from such crimes. The Board also considered that the situation in Burundi had changed since August 2006 and that there was no evidence that the applicant would any longer be of interest to the authorities or the FNL. Thus, he had not made plausible that there was a real risk of ill-treatment upon return. 10. The applicant appealed to the Migration Court (Migrations-domstolen) in Stockholm. He submitted a search warrant dated 10 September 2006, purportedly issued by the Burundian intelligence service (Service National des Renseignements), which had allegedly been given to a friend of his father and forwarded to the applicant by that friend’s wife. He further submitted a death certificate concerning his father issued by a hospital in Burundi. At the oral hearing before the court, he claimed that he had not been politically active in Burundi but had been involved in an organisation working for peace. He further stated that a guard had helped him to flee from detention. Then his father’s friend had contacted a man who had taken him out of the country. His father’s friend had subsequently been arrested. 11. On 4 April 2008 the court rejected the appeal. It noted that the applicant had not proved his identity. Moreover, it found that his explanation how he had come into possession of the above-mentioned documents of the security police and the hospital was peculiar. In these circumstances, the court considered that the documents had a low value as evidence. It further called into question the applicant’s account on how he had been able to flee the prison and then leave the country without himself showing identity papers en route. Thus, in general, the applicant was not credible. As to the alleged risks facing him in Burundi, the court noted that he had not been politically active or otherwise active in seeking justice for the alleged crimes against his family. It therefore questioned that the Burundian authorities would have any particular interest in him. 12. Following the applicant’s further appeal, on 26 June 2008 the Migration Court of Appeal (Migrationsöverdomstolen) refused him leave to appeal. 13. On three subsequent occasions, the applicant claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew. In support of the second of these applications, he submitted a birth certificate and other documents to prove his identity. He further stated that he had been the deputy head of the youth section of MIPAREC (Ministère pour la Paix et la Reconsiliation), a Christian organisation working for peace and reconciliation in Burundi. Because of his membership in MIPAREC and also due to his having refused to join the FNL, the latter organisation had tried to kill him several times and had also extorted food and money from his family. Moreover, in August 2008, the applicant had been informed that his remaining four siblings, who had been abducted by CNDD-FDD members on 5 August 2006, had been found murdered. Previously, he had not known of their fate. 14. By decisions of 16 December 2008 and 5 February 2009, the Migration Board found that the applicant’s new submissions were just additions or modifications of circumstances already alleged which could neither qualify as impediments to deportation or reasons to examine his asylum application anew. 15. In his third application for a new examination, the applicant added that he had been politically active in Sweden, having organised and participated in several demonstrations against the government of Burundi. He had also received telephone calls from an unknown person, who had stated that the Burundian government knew of these activities and would kill him upon return to the country. 16. On 16 June 2009 the Migration Board did not find that the applicant had made it plausible that he would risk persecution in Burundi on account of sur place activities in Sweden. Thus, no new circumstances constituting an impediment to his deportation had been adduced. Nor were there reasons to re-examine the question of a residence permit. 17. The applicant’s appeals against the Migration Board’s decisions of 16 December 2008 and 5 February 2009 were rejected by the Migration Court. It appears that the applicant did not appeal against the Board’s decision of 16 June 2009. 18. On 30 June 2009, following the Court’s decision under Rule 39 of the Rules of Court (see paragraph 4 above), the Migration Board decided to stay the applicant’s deportation until further notice. 19. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”). 20. 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 (Chapter 5, section 1 of the 2005 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 (Chapter 4, section 1). 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). 21. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 22. As regards the enforcement of a deportation or expulsion order, account has 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 must not be sent to a country where there are 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 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 23. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that 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 (Chapter 12, section 18). If a residence permit cannot be granted under this criteria, 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, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 24. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9).