Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 984/2020 *, **

Communication submitted by:Robert Nijimbere

Alleged victim:The complainant

State party:Sweden

Date of com plaint :10 January 2020 (initial submission)

Document references:Decisions taken pursuant to rules 114 and 115 of the Committee’s rules of procedure, transmitted to the State party on 31 January 2020 (not issued in document form)

Date of adoption of decision :21 April 2023

Subject matter:Deportation to Burundi of a person claiming to be at risk of torture

Procedural issue :Level of substantiation of claims

Substantive issue:Non-refoulement

Article of the Co nvention :3

1.1The complainant is Robert Nijimbere, a national of Burundi of Hutu ethnicity born on 12 December 1989 in Bujumbura, Burundi. Having made a request for asylum in Sweden, which was rejected, he claims that his deportation to Burundi would constitute a violation by the State party of article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 8 January 1986. The complainant is not represented by counsel.

1.2On 31 January 2020, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Burundi while the communication was being considered by the Committee.

Facts as submitted by the complainant

2.1The complainant is a national of Burundi of Hutu ethnicity, born in Bujumbura. Both of his parents were killed in 1993 during the genocide in Burundi. In July 2009 he became a member of the Forces nationales de libération, an opposition party; at the time, he was living in the district of Musaga in Bujumbura. He has been detained twice for political reasons. On 17 May 2010, he was told by members of the Imbonerakure, the youth league of the ruling political party in Burundi, to stop campaign-related activities for the elections, and was detained by police officers for two days. In September 2010, he was again detained by police officers when he was returning to his house. During that detention, he was tortured by four police officers in the presence of two others, who interrogated him about his political activities, requesting information about the president of the Forces nationales de libération, asking him why he joined the party, and inquiring about the names of other party members and where weapons were hidden. During the interrogation, the complainant was forced to undress, hung upside down and hit with blunt objects, including with the butt of a firearm. Following a strong blow to his head, he temporarily lost consciousness. When he regained consciousness, he decided to cooperate. He was released and brought to a hospital for treatment of the injuries he had suffered during the interrogation. When he left the hospital, the complainant decided to start living in hiding.

2.2On 27 May 2011, while the complainant was working as a motorcycle taxi driver, he was threatened by an unknown individual who was carrying a firearm and who was being chased by a group of people. The armed person forced the complainant to transport him to another location at high speed. When the complainant was forced to stop at a checkpoint, the armed person instructed him to continue driving and shot two police officers. The complainant was later forced to stop and get off the motorcycle. The assailant then drove away. The complainant contacted his aunt, his closest relative following the killing of his parents, who advised him to stay in hiding as the event had been widely disseminated on national television, including images of his motorcycle and registration documents. The complainant’s party membership card was among the documents left with the motorcycle. Given the delicate situation, the complainant decided to leave the country.

2.3On 28 May 2011, the complainant left Burundi with the help of an acquaintance of his aunt. He crossed the border and travelled to Kigoma, United Republic of Tanzania. He later boarded a plane heading for Europe, leaving from the international airport in Dar Es Salaam, United Republic of Tanzania.

2.4On 19 June 2011, the complainant arrived in Denmark, where he applied for asylum. The application was rejected and he was instructed to return to Burundi. He claims that at the time of the decision of the Danish authorities, military camps were attacked in the district of Musaga, where he had lived, following protests against the third term of the former President, Pierre Nkurunziza. The complainant left Denmark and travelled to Sweden, where he managed to abscond and was surviving in a situation of homelessness.

2.5.On 23 December 2015, the complainant requested asylum in Sweden. The documents provided by the complainant indicate that following a check of his fingerprints in the European fingerprint database, the Swedish authorities noticed that he had previously requested asylum in Denmark. On 16 February 2016, a decision was taken to transfer the complainant to Denmark. In response, the complainant filed a non-conformity claim on 15 March 2016. On 6 July 2017, the police declared that a transfer within the time limit would not be possible, and on 9 August 2017, the complainant was apprehended by police officers and taken into custody. The complainant filed a second application for asylum on 10 August 2017.

2.6On 17 April 2018, the Swedish Migration Agency rejected the complainant’s request for asylum, referring to a lack of authenticity of documents he had provided in support of his claim, including the membership cards proving his political affiliation. The Agency mentioned that the shortcomings could not be remedied by the story of the complainant.

2.7The complainant’s appeal of that decision was rejected by the Supreme Administrative Court on 27 May 2019. The complainant notes that the Court did recognize that he had some affiliation to the Forces nationales de libération party, confirmed that he had been tortured for his political affiliation, and recognized the existence of an armed conflict in Burundi. However, the Court repeated concerns about the lack of probative value of some documents the complainant presented, questioned the likelihood that the authorities of Burundi would subject him to torture eight years after the initial torture and noted the relatively low-profile nature of his political activities. The Court deemed that there was no need for international protection.

2.8On 24 July 2019, determining that there was no new evidence, the Supreme Administrative Court rejected an appeal presented by the complainant. On 21 August 2019, the complainant presented authorities with a copy of his birth certificate, a copy of a letter of recognition to prove his political affiliation and a copy of a card attesting to his membership in the Congrès national pour la liberté political party. On 3 September 2019, his additional request for review was refused, as the Supreme Administrative Court had already ruled on the matter. On 23 September 2019, the complainant again requested that his file be reopened, providing more information about the documents he had submitted and adding that he had participated in political events in Uppsala, Sweden. He claimed that information about that political protest against the Government of Burundi and his participation therein had been disseminated in Burundi and could result in an additional risk, as he was still a member of the opposition party. The complainant also provided a medical certificate proving that he was suffering from hepatitis B, an illness requiring constant medical monitoring, which could most likely not be provided in Burundi. On 3 October 2019, the Swedish authorities confirmed their decision not to reopen the case. On 11 October 2019, the complainant submitted additional documents, including an original birth certificate, but his claim was rejected by the Swedish authorities on 17 October 2019, as no additional or new elements had been provided. On 5 November 2019, the complainant was invited to a meeting with the Swedish immigration authorities to plan the details of his return to Burundi.

2.9The complainant points out that the general human rights situation in the country has not improved, but rather deteriorated, and refers to the absence of active civil society organizations, the crackdown on the independent media, the closing of the United Nations human rights office in Burundi and other events in the country. He explains that he does face a personal risk, given his membership in an opposition political party. He holds that this risk is demonstrated by the fact that he was detained twice and tortured for reasons related to his political affiliation and activities. He adds that the motorcycle-taxi incident in 2011 could have a political implication that increases his risk, because his membership card was present on his motorcycle, and that it is likely that upon his return he will be prosecuted for the alleged killing of the two police officers. The complainant also adds that since January 2010, the Imbonerakure has been recruiting boys and young men with an increased level of frequency and aggression. He points out that he has no family left in Burundi. He refers to the report of the Commission of Inquiry on Burundi of 2019, highlighting the information about attacks against, and arbitrary detention and enforced disappearance of, members of the opposition and persons who return from exile.

Complaint

3.1The complainant claims that his forcible return to Burundi would constitute a breach by Sweden of article 3 of the Convention.

3.2The complainant alleges that the Swedish authorities erred in their assessment that he faces no real, personal and imminent risk of being subjected to torture if he were to be returned to his country of origin. He submits that the authorities did recognize that he was a member of a political opposition party and that he had been living in an area known for supporting the opposition. Moreover, he notes that the migration authorities recognized that he had been arbitrarily detained for reasons linked to his political activities and subjected to torture, but that they did not consider that he would face a risk of being subjected to torture or ill-treatment upon his return to Burundi. The complainant adds that he is terrified to be sent back to Burundi, where he could be subjected to torture or even killed.

State party’s observations on admissibility and the merits

4.1On 30 September 2020, the State party submitted observations on the admissibility and merits of the communication. It puts forward that the communication should be declared inadmissible as it is manifestly unfounded, in line with article 22 (2) of the Convention and rule 113 (b) of the Committee’s rules of procedure. Concerning the merits, the State party contends that the communication reveals no violation of the Convention.

4.2As to the facts, the State party refers to the decisions of the Swedish migration authorities, adding that the English versions of the documents submitted by the complainant do not seem to have been translated by an appropriate translator, are severely flawed and contain several errors. The State party thus presents the Government’s translations of the decision of the Migration Agency dated 17 April 2018, the Migration Court judgment of 27 May 2019 and the decision of the Migration Agency dated 5 September 2019. The State party refers to the initial asylum application, dated 23 December 2015, and the decision related to the complainant’s transfer to Denmark. It clarifies that subsequently, on 10 August 2017, the complainant applied for asylum again. As the time limit concerning his transfer to Denmark had expired, the Swedish Migration Agency considered that Sweden had a responsibility to process the application. The State party lists the various proceedings it carried out, which led to the decision not to grant the complainant refugee status or a residence permit. The State party notes that it implemented the interim measures requested by the Committee on 31 January 2020, and that the Migration Agency decided on that same day to stay the enforcement of the complainant’s expulsion order until further notice.

4.3Regarding admissibility, the State party does not contest the fact that all available domestic remedies have been exhausted. It submits that the communication is manifestly unfounded and thus inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s rules of procedure. It also refers to the Committee’s previous decision in H.I.A. v. Sweden, in which the Committee considered that a complaint for an alleged violation of article 3 of the Convention was inadmissible due to a lack of substantiation.

4.4On the merits, the State party refers to the fact that the Aliens Act reflects the same principles as those laid down in article 3 of the Convention. It argues that the assessment made by the Swedish authorities is significantly broader in scope than the matter before the Committee, as it includes other grounds for asylum and the request for a residency permit. It states that the national authorities are in a good position to assess the information submitted by an asylum-seeker and to appraise the credibility of the statements. It recalls the Committee’s jurisprudence that considerable weight will be given to the findings of facts made by bodies of the State party concerned, and adds that it is for the courts of the State party, and not the Committee, to evaluate the facts and evidence in a particular case, unless it can be ascertained that the manner in which the facts and evidence were evaluated were clearly arbitrary or amounted to a denial of justice.

4.5The State party further argues that the authorities had sufficient information to make a well-informed, transparent and reasonable risk assessment, and notes that there is no reason to conclude that the national rulings were inadequate or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a manifest error or denial of justice. Additionally, it recalls that Burundi is a party to the Convention and to the International Covenant on Civil and Political Rights. The State party clarifies that it does not wish to underestimate the concerns that may legitimately be expressed with respect to the current human rights situation in Burundi, but holds that the prevailing situation in the country cannot be deemed such that there is a general need to protect all asylum-seekers from the country. It states that the assessment before the Committee must thus focus on the foreseeable consequences of the complainant’s expulsion to Burundi in the light of his personal circumstances, as the Swedish migration authorities did.

4.6Regarding the complainant’s personal circumstances, the State party reiterates that when he left Burundi in May 2011, he did so on his own account, due to the fact that he was suspected of a crime that was not related to his political views. It refers to the amount of time that has passed since the complainant left Burundi as an important factor in the assessment of his real risk of being subjected to treatment in violation of article 3 of the Convention. It adds that there is no support for the assertion that the complainant has held or holds an important position within the Burundian opposition. The State party further points out that the complainant obtained a new identity card in April 2011, before he left his country of origin in May 2011. It highlights that the complainant remained in Burundi for a substantial amount of time after the incidents in 2010 and had contact with the Burundian authorities during that time. Moreover, it states that the complainant has not made plausible that his political activities in Sweden mean that he risks treatment contrary to article 3 upon his return to Burundi. The State party thus maintains that the complainant’s account and the facts on which the complaint is based are insufficient to conclude that the risk of ill-treatment that the complainant would allegedly face upon his return to Burundi meets the requirements of being foreseeable, real and personal. It adds that, therefore, an enforcement of the expulsion order, under the present circumstances, would not constitute a violation of the State party’s obligations under article 3 of the Convention.

Complainant’s comments on the State party’s observations

5.1On 21 March 2021, the complainant submitted comments on the State party’s observations. He notes that Sweden has recognized his involvement in the Forces nationales de libération and Congrès national pour la liberté political parties and points out that following two days of interviews he had with a psychologist and various medical examinations carried out by doctors, the State party acknowledged that he had suffered torture in his country of origin.

5.2Regarding the State party’s argument about the low profile of his political activities, the complainant points out that his role in the opposition was “political mobilizer”, with the main objective of “preaching or teaching party ideologies”. He points out that, although “political mobilizer” is not an official title, acting as one is very dangerous, as the President and his political party strive to have close and local control of the population to be able to impose their political ideas and vision, which results in persecutions of and threats against grass-roots political mobilizers. He reiterates that the opposition in Burundi is subjected to attacks and recalls that the motorcycle-taxi incident in May 2011 will be interpreted as a political act, because his political membership card had been taken along with the motorcycle. He also highlights that the Swedish authorities recognize that the detention and torture he suffered was politically motivated.

5.3Related to the State party’s observation that the complainant had remained in the country and had been in contact with the local authorities, the complainant clarifies that he obtained the identity card through an acquaintance of his aunt who worked in the municipality concerned, adding that he never personally set foot on the premises of the office concerned. He adds that he did not leave the country immediately after the torture he had been subjected to in 2010, as “fleeing the country is not something that someone does immediately”. He submits that at the time, many people trying to flee the country disappeared or were later found dead, at times cut into pieces and thrown into the Rusizi River.

5.4The complainant contends that the State party acknowledges that the information he provided related to his participation in the protests in Uppsala against the third term of the President of Burundi was coherent and adds that the Swedish authorities are aware that photographs were taken by spies of the Government and later disseminated in Burundi.

5.5The complainant refers to article 4 (4) of Directive 2011/95/EU of the European Parliament and of the Council, which states that the fact that an applicant has already been subjected to persecution or serious harm or to direct threats of such persecution or such harm is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. He also refers to the report of the Commission of Inquiry on Burundi issued on 13 August 2020, as well as extracts of the Commission’s detailed conclusions related to torture and sexual violence committed against men. Paraphrasing parts of the Commission’s findings, he recalls that the main human rights violations in the country continue to have a political dimension, and notes that the Commission determined that it had reasonable grounds to believe that serious human rights violations, some of which might constitute crimes against humanity, had been committed in Burundi.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

6.2In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party does not contest that the complainant has exhausted all available domestic remedies.

6.3The State party submits that the communication is inadmissible as it is manifestly unfounded. The Committee considers, however, that the arguments put forward by the complainant raise substantive issues, which should be dealt with on the merits. Accordingly, the Committee declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

7.2The issue before the Committee is whether the forcible removal of the complainant to Burundi would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (refouler) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

7.3The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Burundi. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

7.4The Committee recalls its general comment No. 4 (2017), in particular paragraph 45, according to which the Committee will assess “substantial grounds” and consider the risk of torture as foreseeable, personal, present and real when the existence of facts relating to the risk by itself, at the time of its decision, would affect the rights of the complainant under the Convention in the case of the complainant’s deportation. Indications of personal risk may include, but are not limited to: the political affiliation or political activities of the complainant or his or her family members; arrest or detention without guarantee of fair treatment and trial; and previous torture. With respect to the application of article 3 of the Convention to the merits of a communication submitted under article 22, the burden of proof is upon the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, present, personal and real. The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned. However, it is not bound by such findings, as it can make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.

7.5The Committee notes the complainant’s argument that there are substantial grounds for believing that, upon removal to Burundi, he would be subjected to torture and cruel, inhuman or degrading treatment or punishment. It also notes that the complainant claims that he was a member of an opposition political party and that he has been detained twice for reasons linked to his political affiliation and activities. The Committee further takes note of the complainant’s arguments that his detention for political reasons was recognized by the Swedish migratory authorities, as was the torture he had been subjected to. The complainant further submits that he is at risk of being detained upon his return to Burundi for his involvement in the motorcycle taxi incident in May 2011, which could be interpreted as a political act. He argues that he was involved in political activities in Sweden, which could increase his risk upon return to Burundi, as the images were allegedly disseminated in the country. The complainant also highlights the difficult circumstances in his country of origin, and claims, referring to a report of the Commission of Inquiry on Burundi, that there are reasonable grounds to believe that serious human rights violations, some of which may constitute crimes against humanity, have been committed there.

7.6The Committee takes note of the State party’s argument that the national authorities are in a good position to assess the information submitted by asylum-seekers and to appraise the credibility of their statements. It also takes note that the State party does not wish to underestimate the concerns that may legitimately be expressed with respect to the current human rights situation in Burundi, but that it holds that the prevailing situation there cannot be deemed such that there is a general need to protect all asylum-seekers from the country. Similarly, the Committee takes note that the State party argues that the complainant remained in the country for a considerable amount of time after the detention and torture incidents, that he left the country on his own account, that he had contact with the local authorities and that there is no support for the assertion that the complainant has held or holds an important position within the Burundian opposition.

7.7Having taken account of the arguments presented by the parties, the Committee considers that the complainant has submitted sufficient elements to suggest that he would be at risk of being subjected to treatment that violates article 1, read in conjunction with article 2, of the Convention if he were returned to Burundi. This is based primarily on the complainants’ claims, as recognized by the State party, that he was a member of a political party, which led to his detention in two different instances, and that during one period of detention he had been submitted to torture. The fact that the complainant allegedly did not hold an important position within the Burundian opposition does not exclude the possibility that he faces a real, personal and imminent risk that he could be subjected to torture again, especially taking into account the documented and accepted prior detention and torture. In this regard, the Committee refers to the argument of the complainant that political activists at the local and grass-roots level also face a particular risk, especially from the Imbonerakure, given the country dynamics in Burundi. In this regard, the Committee takes note of the claims made by the complainant that, according to the Commission of Inquiry on Burundi, the victims of human rights violations committed around the time of submission of the complaint were mainly opposition political parties and their members, with the main perpetrators being identified as members of the Imbonerakure and local administrative officials acting alone or jointly with the police or the National Intelligence Service. In that regard, the Commission of Inquiry on Burundi stated in 2019 that the majority of cases had taken place in rural areas controlled by the Imbonerakure, who seek to keep the population in check and compel their allegiance to the Conseil national pour la défense de la démocratie-Forces pour la défense de la démocratie. In 2020, the Commission determined that acts of torture continued to be committed, with the main aim of intimidating, controlling, repressing or punishing women and men for their supposed or actual political opinions, their refusal to join the ruling party or their links with armed movements. This risk for low-profile members of opposition parties at the local level is further alluded to by the Commission, which has reported that the only way to gain access to resources in Burundi is by taking power or being close to it; this leads to one of the root causes of human rights violations, namely, that perpetrators seek to eliminate all political opposition in order to ensure that a minority remains in power and has access to wealth.

7.8Regarding the State party’s recognition of the arbitrary detention and torture the complainant was subjected to, the Committee notes that the Migration Court rejected the complainant’s appeal on 27 May 2019. It did so in spite of the fact that the Swedish Migration Agency had obtained a torture-related injury assessment concerning the injuries of the complainant and how they could have been sustained, and that an investigation had indicated that the torture-related injury assessment was consistent with the psychological and somatic findings that had emerged. The same Court noted that the fact that the complainant had been subjected to torture was a serious indication that something similar could happen again, unless there were good reasons to assume that it would not be repeated. The Migration Court also stated that it considered that the complainant had plausibly demonstrated that he had previously been subjected to torture by the Burundian authorities on the grounds of his political views. Additionally, the complainant’s alleged involvement in the motorcycle-taxi incident in May 2011 could imply that the local authorities could still be looking for him. Furthermore, the Commission of Inquiry of Burundi has stated that some returnees have continued to face hostility from local officials and the Imbonerakure, who have intimidated and threatened them. The Committee is of the view that these elements should have caught the attention of the State party and that they constitute sufficient grounds for investigating the alleged risks more thoroughly.

7.9On the basis of all the information submitted to it, and taking into account the human rights situation in Burundi, the Committee is of the view that the complainant has provided sufficient evidence and an arguable case for it to consider that a possible foreseeable consequence of his return to his country of origin would be that he would be exposed to a real, present and personal risk of being subjected to torture within the meaning of article 3 of the Convention.

8.The Committee, acting under article 22 (7) of the Convention, considers that the return of the complainant to Burundi would constitute a breach of article 3 of the Convention by the State party.

9.The Committee is of the view that, pursuant to article 3 of the Convention, the State party has an obligation to reconsider the complainant’s asylum application in the light of its obligations under the Convention and the present decision. The State party is also requested to refrain from expelling the complainant while his asylum application is being reconsidered.

10.Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.