Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 3863/2020 * , ** , ***

Communication submitted by:A.I. (not represented by counsel)

Alleged victim:The author

State party:Sweden

Date of communication:13 December 2020 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 18 December 2020 (not issued in document form)

Date of adoption of decision:26 July 2022

Subject matter:Deportation to Burundi

Procedural issue:Admissibility – communication manifestly ill-founded

Substantive issues:Right to life; torture; cruel, inhuman or degrading treatment or punishment; right to a fair trial; freedom of opinion and expression

Articles of the Covenant:7, 14 and 19

Article of the Optional Protocol:2

1.1The author of the communication is A.I., a national of Burundi born in 1980. She claims that the State party has violated her rights under articles 7, 14 and 19 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The author is not represented by counsel.

1.2On 17 December 2020, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party not to deport the author to Burundi while the communication was under consideration. On the same day, the State party decided to suspend the author’s deportation.

Factual background

2.1The author notes that her husband was an accountant with the Mouvement pour la solidarité et la démocratie (Movement for Solidarity and Democracy) partyand that, in 2015, he actively participated in the many protest marches against the candidacy of the President of Burundi, Pierre Nkurunziza, for a third presidential term.Ever since, the armed militia of the ruling party (the Imbonerakure), police officers and judges have been tracking down members of the Mouvement pour la solidarité et la démocratie and their families.

2.2On 17 February 2017, the author travelled to the State party to visit her sister.Her husband stayed in Burundi. A few days later, she was toldthat police officers had gone to her home in Bujumbura, Burundi, on 20 February 2017 to look for her husband. She provides a notice dated the same day and issued by the local station of the Musaga criminal investigation police in which her husband is listed as wanted for “participation in an insurrectional movement”. The author asserts that her husband disappeared on 20 February 2017 and that she has not heard from him since.

2.3The author notes that the police and the Imbonerakure are also actively looking for her because of her husband’s political activities and because the authorities believe that she knows his whereabouts.She provides a notice issued by the local station of the Musaga criminal investigation police, dated 28 February 2017, in which she is listed as wanted.

2.4The author applied for asylum in the State party on 14 March 2017. On 22 February 2018, the Swedish Migration Agency rejected her asylum application for reasons including the contradictory nature of her statements regarding her husband’s political activities and her inability to provide details about the activities of the Mouvement pour la solidarité et la démocratie, her husband’s political activities and how those activities had affected their daily lives. The Swedish Migration Agency also considered that the author’s limited explanations were unsatisfactory given that her husband had occupied a full-time post within the party for several years and that they had lived together in fear of being killed as a result of those activities.

2.5The author filed an appeal with the Migration Court, which was rejected on 9 April 2020. On 27 May 2020, the Migration Court of Appeal refused her leave to appeal, and the decision to deport her became final.

Complaint

3.1The author fears that, if she is returned to Burundi, the police or the Imbonerakure will persecute her to obtain information on her husband’s whereabouts.

3.2The author notes that, since the elections of 2015, the police and the Imbonerakure have been tracking down members of the Mouvement pour la solidarité et la démocratie and their families, who are frequently arrested, imprisoned or killed. She adds that the party has been banned by the Government and that it is in fact the only party that the Government banned from participating in the 2020 elections.

3.3The author asserts that the State party has rejected all her appeals following her application for political asylum and protection and is forcing her to leave the country despite the physical evidence that she has provided, including a copy of the notice issued by the Burundian police in which she is listed as wanted.

State party’s observations on admissibility and the merits

4.1On 17 August 2021, the State party submitted its observations on admissibility and the merits of the communication.

4.2From the content of the communication, the State party infers that the author is arguing that her deportation to Burundi would violate articles 6 and 7 of the Covenant because of the threat that she faces from the Burundian authorities and the Imbonerakure.

4.3The State party considers that the author’s assertion that, if returned to Burundi, she runs the risk of being treated in a manner that would amount to a violation of the Covenant fails to rise to the minimum level of substantiation required for purposes of admissibility. It therefore considers that the communication is manifestly unfounded and consequently inadmissible.

4.4To determine whether the author’s forced return to Burundi would violate articles 6 and 7 of the Covenant, the following elements must be taken into account, in accordance with the Committee’s jurisprudence: the general human rights situation in Burundi and the personal, foreseeable and real risk of the author being subjected to treatment contrary to articles 6 and 7 of the Covenant after returning to her country.

4.5Concerning the general human rights situation in Burundi, with reference to a series of reports by the United Nations and non-governmental organizations,the State party notes that, while it does not wish to underestimate the concerns that may legitimately be expressed in that regard, the general human rights situation in Burundi is not in itself sufficient to establish that the author’s deportation would be contrary to articles 6 and 7 of the Covenant.

4.6With regard to the author’s personal risk of being subjected to treatment contrary to articles 6 and 7 of the Covenant, the State party notes that, according to the migration authorities, the fact that she is a woman and is of Tutsi ethnicity was not in itself sufficient for the author to be considered as having plausibly demonstrated that she was in need of protection.In addition, the written evidence submitted by the author in her file was considered to be simplistic and therefore of little probative value. The State party adds that, in its ruling, the Migration Court also found the author’s account of her husband’s activities in the Mouvement pour la solidarité et la démocratie to be imprecise and lacking in detail. The Court noted that, according to the author, she had never attracted the attention of the authorities or any other actor, and her account of the threat that she faced was thus found to be insufficient. The claim that she and her husband are wanted persons is based on second-hand information and was not found to be sufficient to plausibly demonstrate that she was in need of protection.

4.7The State party further notes that the national migration authorities considered that the security situation in Burundi was one of internal armed conflict. However, it was considered that not all residents were at risk of treatment constituting grounds for protection, and the author did not plausibly demonstrate that she was in need of protection in connection with the situation in her country of origin.

4.8In short, the migration authorities considered that the reasons given by the author regarding the risk of treatment constituting grounds for protection in her country of origin were insufficient to plausibly demonstrate that she was in need of protection. Furthermore, the State party believes that the author is trying to use the Committee as a court of appeal.

4.9In conclusion, the State party asserts that there is no reason to conclude that the decisions of the national authorities were inadequate or that the outcome of the national proceedings was arbitrary or amounted to a denial of justice. It considers that the author’s version of events and the facts put forward in her complaint are insufficient to support the conclusion that her alleged risk of ill-treatment in the event of a return to Burundi meets the requirements of being foreseeable, real and personal. The State party therefore concludes that the enforcement of the deportation order would not, under the present circumstances, constitute a violation of its obligations under articles 6 and 7 of the Covenant.

Author’s comments on the State party’s observations

5.1On 9 December 2021, the author submitted her comments on the State party’s observations.

5.2In these comments, the author states that she faces a personal, real and considerable risk of being subjected to treatment contrary to article 7 of the Covenant if deported to Burundi. She in no way disputes the content of the various reports on the human rights situation in Burundi to which the State party refers in its observations. In addition, she refers to a report of January 2020 by the Burundi Human Rights Initiative indicating that arrests, ill-treatment, torture and extrajudicial killings by the police and the Imbonerakure were continuing to occur in Burundi and that most of the victims were members of the opposition, including the Congrès national pour la liberté (National Congress for Liberty) and the Mouvement pour la solidarité et la démocratie, and their families.

5.3The author recalls that the Office of the United Nations High Commissioner for Human Rights in Burundi was closed on 28 February 2019, following a decision by the Government of Burundi, and that the Office of the Special Envoy of the Secretary-General for Burundi was closed on 31 May 2021.

5.4The author also maintains that, by deporting her to Burundi, the State party would be violating article 14 of the Covenant, as she would be at risk of being arrested and not receiving a fair trial in the country. She recalls that a notice in which she was listed as wanted for “participation in an insurrectional movement” was issued by the local station of the Musaga criminal investigation police, dated 28 February 2017, and that human rights activists convicted of the same offence without having been given a fair trial have received prison sentences exceeding 30 years. It is noted in the report of the Burundi Human Rights Initiative that pressure on the justice system to do the bidding of the ruling party had intensified to such an extent that, by early 2020, what was left of the independence of the justice system had almost completely disappeared for politically sensitive cases. It is emphasized in the same report that this kind of obstruction is particularly pronounced in trials where the defendants are members of opposition parties.

5.5Lastly, the author refers to article 19 of the Covenant, which states that everyone has the right to hold opinions without interference.

State party’s further observations

6.1On 16 February 2022, the State party submitted further observations on the author’s comments.

6.2The State party notes that the author’s comments do not contain any new relevant arguments on the merits that have not essentially already been addressed in the State party’s initial observations. It wishes to emphasize that it fully maintains its position regarding the facts, admissibility and merits of the present complaint, as set out in its initial observations.

6.3In addition, the State party notes that, in her comments, the author appears to assert that there has been a violation of articles 14 and 19 of the Covenant. It emphasizes in this regard that this is the first time that the author has invoked these articles and that she has not explained why these provisions are applicable. The State party therefore considers that this part of the complaint should be declared inadmissible.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes the author’s assertion that she has exhausted all effective domestic remedies available to her. In the absence of any objection by the State party in that regard, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

7.4The Committee also takes note of the author’s assertion that her deportation to Burundi would result in a violation of article 14 of the Covenant, insofar as she would be at risk of being arrested and not receiving a fair trial in the country, as well as a violation of article 19 of the Covenant. The Committee notes, however, that the author has failed to sufficiently substantiate these claims and therefore declares them inadmissible under article 2 of the Optional Protocol.

7.5As for the author’s claims based on a risk of being subjected to treatment contrary to article 7 of the Covenant, the Committee recalls paragraph 12 of its general comment No. 31 (2004), in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. The Committee has also indicated that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.In assessing the existence of such a risk, all relevant facts and circumstances must be considered, including the general human rights situation in the country of origin.The Committee recalls its jurisprudence according to which considerable weight should be given to the assessment conducted by the State party and reiterates that it is generally for organs of States parties to review or evaluate facts and evidence in order to determine whether such a risk exists, unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.The Committee also recalls its jurisprudence to the effect that the burden is on the author to prove that he or she would face a real and personal risk of irreparable harm if deported.

7.6The Committee notes the author’s assertion that the police and the Imbonerakure are actively looking for her because of her husband’s activities in the Mouvement pour la solidarité et la démocratie and because they want to obtain information on the whereabouts of her husband, who disappeared in 2017. It also notes that the author fears being arrested, subjected to inhuman or degrading treatment and not receiving a fair trial if returned to Burundi.

7.7The Committee notes the State party’s assertion that the present communication is insufficiently substantiated. It also notes the fact that, in its ruling of 9 April 2020, the Migration Court found the author’s account of her husband’s activities in the Mouvement pour la solidarité et la démocratie to be contradictory, imprecise and lacking in detail. It further notes the findings of the national migration authorities that the author did not plausibly demonstrate that she was in need of protection and the fact that the written evidence submitted by the author in her application was considered to be simplistic and therefore of little probative value.

7.8The Committee finds that the author’s claim that her husband was active in the Mouvement pour la solidarité et la démocratie is the basis on which her complaint rests and the cause of the risk that she faces of being subjected to treatment contrary to article 7 of the Covenant. In this regard, it notes that the author has not provided any information to substantiate this claim and that the statements that she made on the matter during the national proceedings were considered to be contradictory, imprecise and lacking in detail, despite the many relevant questions that she was asked during her interview with the Swedish Migration Agency, whether on the activities of the party itself, her husband’s activities in particular or, should her husband never have told her anything about his activities in the party, how his activities had affected their personal lives. The Committee therefore considers that the author has not convincingly explained the basis for her fears that returning to Burundi would put her at risk of being subjected to treatment contrary to article 7 of the Covenant.

7.9Moreover, the Committee notes that the national authorities have considered all the author’s claims and finds that she has not demonstrated that the assessment by and conclusions of the national authorities were clearly arbitrary or amounted to a manifest error or denial of justice.

7.10The Committee therefore concludes that the communication is inadmissible under article 2 of the Optional Protocol.

8.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That the present decision shall be communicated to the State party and to the author.