CEDH · CASELAW;STATEMENTOFFACTS;ENG — 7 décembre 2009

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B480138 { width:266.49pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s29100277 { font-family:Arial; font-weight:bold } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }   23 November 2009       FIRST SECTION Application no. 53351/09 by Henri TUZAGI against Norway lodged on 7 October 2009   STATEMENT OF FACTS THE FACTS The applicant, Mr Henri Tuzagi, is a Burundian national who was born in 1958 and lives in Bergen. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.   Application for asylum and rejection by the Directorate of Immigration On 20 July 2006 the applicant and his wife, Mrs Lydia Ndaysishimiye (born in 1977), arrived in Norway together with their two children, Christina Niyuhire (born in 2003) and Mike Tuzagi (born in 2005). The couple applied for asylum on 22 July 2006 on humanitarian ground. The applicant stated that he was an ethnic Hutu from the Cankuzo Province in Burundi and he informed that she was an ethnic Tutsi from the Bujumbura Province, Burundi. They had travelled from Cairo via the Czech Republic with their diplomatic passports and Norwegian visas issued in Cairo. The applicant stated that he had been the Ambassador of Burundi in Cairo from October 2002 until he had left for Norway. The applicant further informed that he was HIV positive and had been so during the past ten to thirteen years. As a ground for seeking asylum, the applicant submitted that he and his family’s security was threatened because he as a previous Governor of the Cankuzo Province had taken part in combating rebels who were currently represented in government. He submitted in particular the reasons summarised below. Prior to his departure from Burundi the applicant had been a member of UPRONA (Unity for National Progress, which governed Burundi under one-party rule for over thirty years) and had served as Governor of the Cankuzo Province during the periods from 1991 to 1993 and 1996 to December 1998. During the civil war between 1996 and 1998 he had been involved in the coordination of activities to protect the civil population and had thus been exposed to rebel attacks. In 1999 the President had found his situation so dangerous that he called the applicant to join the National Assembly. The applicant had been informed that a municipal administrator and his family had been killed because they had worked against the rebels. His wife had been informed that the Vice-Governor and his family had been killed after the applicant had become an MP. Moreover, former rebels had won the elections in 2005 and had integrated the national army. The applicant had since August 2005 received anonymous threats by telephone informing him that what he risked was clear and that he had to come to Burundi to explain himself. He had also been called home. But in order to save his family he had opted for going to another country. CNDD-FDD (National Council for the Defence of Democracy- Forces for the Defence of Democracy) members of the current Burundian regime were after the applicant because he as a Governor and representative of UPRONA had been combating the rebels, who today belonged to the greatest party in Government and Parliament. They considered the applicant as an enemy and would either unjustifiably accuse him or kill him. His life and the lives of his family members were at danger. His wife submitted that the applicant was on a death list. The applicant further pointed out that he had been supporting AC Genocide, an organisation for combating Genocide in Burundi, and that members of this organisation had been particularly exposed in Burundi. He further invoked the poor human rights situation in Burundi and that people were arrested and tortured at random. The Directorate of Immigration observed that, on contacting a liaison officer in Burundi, it had been informed that three members of AC Genocide had been arrested in May 2006 but had been released after a week. Police had come to its general meeting in December 2006 and had interrogated members next day in order to identify those who had expressed views about a certain matter. Otherwise there was no reason to fear for the general security of AC Genocide members. Their only problem was that they might have difficulties in accessing the job market. On 4 September 2007 the Directorate rejected the asylum request, finding it not sufficiently probable that the applicant and his wife would face persecution upon return to their home country. The fact that The applicant had been Governor in Cankuzo after the eruption of the civil war and that rebels conducted attacks in the province did not mean that the applicant were particularly exposed today. The applicant had not been threatened in such a way, the threats having been anonymous, that it was probable that there was a risk of persecution. Nor was it unusual that ambassadors were called home after a change of government. Several governors had lost their position– probably due to CNDD-FDD dominance – but this ought to be seen as a shift in politics. A number of Governors were still living in Burundi. Nor was it probable that the applicant risked persecution because of his role in the conflict. The fact that former Vice-President Kadege and former leader of UPRONA, Charles Mukais, had fled to Canada was no indication that the applicant risked persecution, as their situation was not comparable with his. Kadege and Mukasi had previously been high profile politicians and had distinguished themselves as prominent opposition politicians. Apart from that, the arrests had occurred at a time when the security situation was different. The applicant’s support of AC Genocide could not form a ground for asylum. Finally, the Directorate took into account that the applicant was infected with the HIV. However, no documents had been submitted regarding his illness, which he had not mentioned in the asylum interview. In the Directorate’s view it was clearly probable that he would obtain treatment in his home country. Since he was a resourceful and privileged person, probably with good contacts in his home country, his possibilities in this respect probably were better than for ordinary people. On 24 September 2007 the Directorate granted a request by applicant for stay of execution of their expulsion. 2. Proceedings before the Immigration Appeals Board On 18 December 2008 the Immigration Appeals Board rejected the applicant’s appeal. It did not find it probable that he would risk persecution in the sense of the Refugee Convention. He had not made it probable that he would be particularly exposed on return because he had served as Governor or been a member of UPRONAS. Although he had affirmed that he was oppositional, it was not probable that he in that context had behaved in a manner entailing a risk of exposure. UPRONA was currently one of the parties in a coalition government. The fact that the applicant had been called home as an ambassador after the CNDD-FDD had won the elections in 2005 did not in itself suggest a risk of persecution. At the oral hearing before the Board he had said that he did not regard this as a problem. The Board considered that the threats which he had received anonymously by telephone in Cairo had not been of such a nature and extent as to constitute persecution. He had not reported the matter to Egyptian police. Nor could he say anything more concrete about the threats or their contents. Thus there was insufficient basis for considering that the applicant, upon return to his home country, risked reactions by the authorities or others that could be described as persecution. The Board further considered the applicant’s HIV infection. HIV infected persons were stigmatised and, apart from the fact that the general humanitarian situation was difficult for this group, might be exposed to harassment and discrimination in Burundi. However, there was no information to the effect that HIV infected persons risked persecution generally. According to information from Landinfo and the WHO, the Burundian authorities offered HIV infected person treatment in accordance with WHO guidelines, at a strongly subsidised price of USD 20-30 per year. The offer applied independently of ethnic origin or other links and there was no reason to assume that the Burundian authorities discriminated against HIV infected persons in a manner breaching human rights. Nor did any individual circumstances pertaining to the applicant suggest otherwise. On the contrary the Board considered that he would be in a better position than most HIV infected persons in Burundi. Nor did the Board (majority of 2 votes to 1) consider that the general security situation in Burundi was such as to hinder the applicant’ return. Civil war had ravaged the country since the murder of the first democratically elected President, Mr Melchior Ndadaye, in 1993 (of Hutu ethnic origin). Despite peace agreements between the Hutus and the Tutsis in 2001 and 2002, the civil war had not really come to and end. A new Constitution had been the subject of a referendum in February 2005 and the peace process had formally been completed in the summer of 2005. In 2006 the Norwegian immigration authorities had warned that they were considering abandoning their previous policy of granting asylum to Burundian nationals in view of their general protection needs. A cease fire agreement of 2006 between the authorities had been followed up with a further agreement of December 2008, to the effect that the FNL (National Liberation Forces, a Hutu organisation) had been to be transformed into a political party, the rebels were to be demobilised and disarmed and the FNL were to be given positions in government. The security situation had been relatively stable since May 2008 (when FNL as the last active rebel group signed a cease fire) and there was an ongoing peace process between the Government and the opposition. The minority considered that it could not be excluded that, due to his membership of UPRONA, the applicant would be exposed to infringements by the authorities upon return and that he should be given the benefit of any doubt in this respect. The Board then went on to consider whether a residence permit was warranted by strong humanitarian considerations. As regards the applicant’s HIV infection, the Board noted that this had already been established upon his arrival in Norway and that he had started the ARV treatment probably several years before arriving in Norway. The Board assumed that if he did not receive treatment for HIV/AIDS, the illness would be lethal in relatively short time. In Norway he had received individually adapted treatment. According to Landinfo and the WHO, the Burundian authorities offered first line ARV treatment (as stated above at a heavily subsidised cost of 20-30 USD per year). The treatment was available in fifteen locations in the capital city of Bujumbara and twenty-two other locations in the country. The offer which had been elaborated in cooperation with the WHO and, in accordance with WHO recommendations, was subject to continuous development. Although the level of treatment would not be of the same quality as in Norway and his life expectancy and quality of life probably would be longer and better if he remained in Norway, immigration policy considerations suggested that this could not be decisive as long as the applicant would receive necessary and adequate treatment in his home country. The Board in addition had regard to the son Mikes’ unclear health situations, that he was under investigation for autism. However, even if it were to be established that he did suffer from such a condition, this could not of its own warrant a residence permit. On 13 July 2009 the applicant’s lawyer sought the opinion of the United Nations High Commissioner for Refugees (“UNHCR”), Regional Office for the Baltic and Nordic Countries, located in Stockholm, Sweden. On 15 July 2009, Mr Straub, Regional Protection Officer, replied:   “In response to your fax of 13 July 2009, in which you asked for UNHCR’s consideration of the international protection needs of your client Mr. Henri Tuzagi, citizen of Burundi, date of birth 25 May 1958, presently residing in Norway, UNHCR has consulted our Office in Burundi with regard to Mr. Tuzagi’s background as well as his possible international protection needs in light of his background and would like to provide you with the following information. UNHCR notes that Mr. Tuzagi originates from the Cankuzo province. Prior to his departure, he was a member of UPRONA that governed Burundi under one-party rule for over 30 years. His ethnicity is Hutu and he is married to a Tutsi woman. He has worked as: • Governor of his native province Cankuzo (1991-1993 and 1996-1999) • Representative in the National Assembly (1993-1996 and 1999-2002) • Ambassador in Cairo (2002-2006) In light of Mr. Tuzagi’s previous political activities, reportedly including a formal complaint lodged against FRODEBU [Burundi Democratic Front] resulting in the removal of the then main opposition party from the Cankuzo province election list in 1993 - an act by a Hutu against a political formation with Hutu majority; his function as an elected representative for UPRONA, a party known to consist of a majority of Tutsi; and his post as ambassador under the Government of former President Buyoya, a Tutsi, Mr. Tuzagi may well be perceived as a “sold Hutu” and a traitor, on the pay roll of Tutsis. He is therefore considered to be potentially at risk of persecution by the Hutu community, including people who are in power today, upon his return to Burundi. We therefore recommend you to consider pursuing all possible legal avenues in Norway and, as suggested earlier, to consider making a submission to the European Court of Human Rights, under Rule 39 of the Rules of Procedure of the Court, to prevent a deportation of Mr. Tuzagi to Burundi.” On 17 September 2009 the Board refused a request by the applicant for reconsideration of its refusal of 18 December 2008. In its view, this was not warranted by the fact that Mike subsequently had been diagnosed as suffering from autism. Nor could it be justified by the UNHCR opinion of 15 July 2009, the question having been extensively and carefully reviewed in the Board’s decision of 18 December 2008. COMPLAINTS The applicant, relying on the right to life in Article 2 of the Convention and the prohibition of torture in Article 3, complained on his own behalf and on behalf of his family members that their lives would be at danger if they were to be expelled to Burundi. The current regime in Burundi considered the applicant as an enemy and would either unjustifiably accuse him or kill him. QUESTIONS TO THE PARTIES AND REQUESTS   1.     Has the applicant exhausted domestic remedies with regard to his submissions to the effect that his and his family’s expulsion to Burundi would be contrary to the Convention?   2.     Bearing in mind the statement by the United Nations High Commissioner for Refugees, Regional Office for the Baltic and Nordic Countries, dated 15 July 2009, would the expulsion of the applicant, his wife and children, to Burundi be compatible with Articles 2 and 3 of the Convention?   3.     The Government are requested to provide (a) an English translation of the Immigration Appeals Board’s decision of 18 December 2008 and (b) a copy of the Board’s decisions of 16 April and 7 July 2009.