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FIFTH
SECTION
CASE OF H.N. v. SWEDEN
(Application
no. 30720/09)
JUDGMENT
STRASBOURG
15
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of H.N. v. Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30720/09) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Burundian national, Mr H.N. (“the
applicant”), on 11 June 2009. The President of the Third
Section granted the applicant anonymity (Rule 47 § 3 of the
Rules of Court).
- The
applicant was represented by Ms A. Sjunghamn, a lawyer practising in
Stockholm. The Swedish Government (“the Government”) were
represented by their Agent, Mr B. Sjöberg, of the Ministry for
Foreign Affairs.
- The
applicant alleged that his deportation to Burundi would entail the
risk of being killed, in violation of Article 2 of the Convention, or
of being subjected to treatment in breach of Article 3.
- On
30 June 2009 the President of the Third Section decided to apply Rule
39, indicating to the Government that it was desirable in the
interests of the parties and the proper conduct of the proceedings
that the applicant should not be deported to Burundi until further
notice.
- On
21 September 2009 the President of the Third Section decided to give
notice of the application to the Government.
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1) and the present application was assigned to the
newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1984.
- 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.
- 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.
- 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.
- 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.
- Following
the applicant’s further appeal, on 26 June 2008 the Migration
Court of Appeal (Migrationsöverdomstolen) refused him
leave to appeal.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
II. RELEVANT DOMESTIC LAW
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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
- The
applicant complained that, if deported to Burundi, he would risk
imprisonment, torture and death. He relied on Articles 2 and 3 of the
Convention, which read as follows:
Article 2:
- 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 Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained the claims that he had presented in the Swedish
proceedings. He had described, in the best possible way, the
persecution and abuse to which his family had been subjected,
including the attack in 2006, and his own imprisonment and subsequent
escape. It was normal for a person in his situation to have repressed
certain details and there was nothing remarkable about the fact that
a prison guard had helped him to flee. He had presented a statement
by MIPAREC to the effect that he had been imprisoned and tortured. No
further proof could be obtained from Burundian authorities. Further,
as asylum seekers only had a limited right to medical care in Sweden
and as he had not had the financial means to consult a doctor
himself, he had not been able to obtain documentation on his
injuries.
- The
applicant further pointed out that, while he had mentioned his
membership in MIPAREC late in the domestic proceedings, he had stated
early on that he had been working for a peace organisation.
Similarly, while not specifically expressing that he risked
persecution by the FNL in his original asylum application, he had
stated that the FNL had extorted food and money from his family. As
regards his late claim concerning political activities in Sweden, the
applicant submitted that the reason was that these activities had
indeed taken place at a late stage of the proceedings when his
political awareness had developed.
- The
Government agreed with the national authorities that the applicant
was not credible. They submitted that the details given by him
regarding the persecution to which he claimed that he and his family
had been subjected were vague or non-existent. In particular, he had
not been able to name or in any other way describe the attackers who
had allegedly come to his family’s home in 2006. Nor had he
described the conditions during the subsequent imprisonment or
explained why a prison guard would help him to flee. Further, the
Government pointed out that he had not been able to present any
documentation showing mistreatment or torture in prison, although he
had claimed to have been tortured daily for a month and had soon
thereafter fled to Sweden, where all asylum seekers were offered a
health examination upon arrival.
- The
Government further submitted that the applicant had invoked new and
vital circumstances at a very late stage of the asylum proceedings,
including his membership in MIPAREC and the alleged risk of
persecution by the FNL. No explanation had been given as to why this
information had not been presented at the start of the asylum
proceedings. They also questioned the claim that he had been
politically active after his arrival in Sweden, as he had not been
politically active in Burundi and as the claim was presented very
late and without substantiation.
32. The
Court finds that the issues under Articles 2 and 3 of the Convention
are indissociable and it will therefore examine them together.
- The
Court reiterates that Contracting States have the right, as a matter
of well-established international law and subject to their treaty
obligations, including the Convention, to control the entry,
residence and expulsion of aliens (see, for example, Üner v.
the Netherlands [GC], no. 46410/99, § 54, ECHR
2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom,
judgment of 28 May 1985, Series A no. 94, p. 34, § 67; and
Boujlifa v. France, judgment of 21 October 1997, Reports
1997 VI, p. 2264, § 42). However, the expulsion of an
alien by a Contracting State may give rise to an issue under Article
3, and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing
that the person in question, if deported, would face a real risk of
being subjected to treatment contrary to Article 3 in the receiving
country. In these circumstances, Article 3 implies the obligation not
to deport the person in question to that country (see, among other
authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125,
ECHR 2008-...).
- The
assessment of whether there are substantial grounds for believing
that the applicant faces such a real risk inevitably requires that
the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and Askarov
v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR
2005-I). These standards imply that the ill-treatment the applicant
alleges he will face if returned must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001-II). Owing to the absolute character of the right
guaranteed, Article 3 of the Convention may also apply where the
danger emanates from persons or groups of persons who are not public
officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the
risk by providing appropriate protection (H.L.R. v. France,
judgment of 29 April 1997, Reports 1997-III, § 40).
35. The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). In this
respect, the Court acknowledges that, owing to the special
situation in which asylum seekers often find themselves, it is
frequently necessary to give them the benefit of the doubt when it
comes to assessing the credibility of their statements and the
documents submitted in support thereof. However, when information is
presented which gives strong reasons to question the veracity of an
asylum seeker’s submissions, the individual must provide a
satisfactory explanation for the alleged discrepancies (see, among
other authorities, Collins and Akasiebie v. Sweden
(dec.), no. 23944/05, 8 March 2007; and Hakizimana v. Sweden
(dec.), no. 37913/05, 27 March 2008).
- The
above principles apply also in regard to Article 2 of the Convention
(see, for example, Kaboulov v. Ukraine, no. 41015/04, §
99, 19 November 2009).
- In cases concerning the expulsion of asylum seekers,
the Court does not itself
examine the actual asylum applications or verify how the States
honour their obligations under the Geneva Convention relating to the
status of refugees. It must be satisfied, though, that the assessment
made by the authorities of the Contracting State is adequate and
sufficiently supported by domestic materials as well as by materials
originating from other reliable and objective sources such as, for
instance, other contracting or non-contracting states, agencies of
the United Nations and reputable non-governmental organisations (see
N.A. v. the United Kingdom, no. 25904/07, § 119, 17 July
2008).
38. Whilst
being aware of reports of serious human rights violations in Burundi,
the Court does not find them to be of such a nature as to show, on
their own, that there would be a violation of the Convention if the
applicant were to return to that country (see, for example, I.N.
v. Sweden (dec.), 1334/09, 15 September 2009; E.N. v. Sweden
(dec.), 15009/09, 8 December 2009; and Muco v.
Sweden (dec.), 31243/09, 4 January 2012). The Court has to
establish whether the applicant’s personal situation is such
that his return to Burundi would contravene the relevant provisions
of the Convention.
- The
Court first notes that the applicant was heard by both the Migration
Board and the Migration Court, that his claims were carefully
examined by these instances and that they delivered decisions
containing extensive reasons for their conclusions.
- The
Court finds, in agreement with the Swedish authorities, that there
are credibility issues with regard to the applicant’s
statements. Notably, his claims escalated considerably during the
domestic proceedings. For instance, it was not until after the
original asylum proceedings had been finalised that the applicant
stated that the peace organisation in which he had been involved was
MIPAREC and that he had been the deputy head of its youth section. At
the same time, he also claimed for the first time that not only
CNDD-FDD but also the FNL group were threatening his life. Also, only
two years after his siblings’ abduction had he been informed
that they had been killed. Moreover, many of the applicants
statements are vague and lacking in detail. Had he been subjected to
the events alleged, it would be reasonable to assume that he could
provide more specific information. In particular, the Court finds it
remarkable that, although the applicant had escaped from prison,
where he had allegedly been tortured on a daily basis for a month,
just about two weeks before his arrival in Sweden, he apparently made
no attempt to draw the migration authorities’ attention to
possible injuries, for instance by undergoing an initial health
examination.
- The
Court further notes that the applicant has not been politically
active in Burundi and that his claimed activities in Sweden have been
of a rather limited nature.
- Having
regard to the above, the Court must conclude that the applicant has
failed to make it plausible that he would face a real risk of being
killed or subjected to ill-treatment upon return to Burundi.
Consequently, his deportation to that country would not involve a
violation of Article 2 or 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant further appeared to complain that he did not have a fair
hearing in the proceedings in Sweden. He relied on Articles 6 and 13
of the Convention.
- The
Court reiterates that Article 6 of the Convention does not apply to
asylum proceedings as they do not concern the determination of either
civil rights and obligations or of any criminal charge (Maaouia v.
France [GC], no. 39652/98, § 40, ECHR 2000 X).
Consequently, this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 of the Convention and must be rejected as inadmissible
pursuant to Article 35 § 4.
- Furthermore,
the applicant’s allegations were examined by the Migration
Board and, following his appeal, by the Migration Court. Accordingly,
he had an effective remedy within the meaning of Article 13 of the
Convention. It follows that this complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected as inadmissible pursuant to Article 35 § 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Articles 2 and
3 of the Convention admissible and the remainder of the application
inadmissible;
- Holds that the applicant’s deportation to
Burundi would not involve a violation of Article 2 or 3 of the
Convention.
Done in English, and notified in writing on 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
