Switzerland – Federal Administrative Court, 18 July 2016, D-6806/2013

Country of Decision:
Country of Applicant:
Date of Decision:
18-07-2016
Citation:
D-6806/2013
Court Name:
Federal Administrative Court (Bundesverwaltungsgericht)
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Switzerland – Section 29 BV (Federal Constitution)
Switzerland – Sections 31
32
33 VGG (Administrative Court Act)
Switzerland – Sections 6
8
105
106
108
111b AsylG (Asylum Act)
Switzerland – Sections 12
29ff.
61
63
64 VwVG (Administrative Procedure Act)
Switzerland – Section 182 StGB (Criminal Code)
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Headnote: 

In cases of reasonable suspicion that a person applying for asylum was a victim of human trafficking, the Swiss State Secretary for Migration is obliged to clarify the facts thoroughly on its own initiative.

Facts: 

The applicant is a Nigerian national who requested asylum in Switzerland in 2003.

In her hearing, the applicant said she had lost her parents at a young age and lived with her uncle from thereon who mistreated and forced her to marry a much older man. She was afraid of her husband, who, like her uncle, was a member of the secret society of Asigidi. The applicant asked a priest for help. The priest brought her to the red cross in Lagos from where she was flown to Switzerland.

The Swiss authority issued a decision on 1 October 2004 that the applicant was not entitled to asylum in Switzerland and ordered her expulsion.

In March 2008 the applicant was sentenced to 14 months suspended sentence for drug trafficking.

On 9 October 2013 the applicant requested to reopen the asylum procedure (“Wiedererwägungsgesuch”) and handed in medical certificates and a report about the Juju-cult in Nigeria. She claimed firstly to have suffered for years from mental illness combined with a somatic syndrome and that her treatment in Nigeria was not secured. Secondly, she claimed to have been sexually abused in Nigeria by a criminal network involved in trafficking human beings. They brought her to Europe and caused her noticeable scars in a Juju-ceremony that bound her to the traffickers and prevented her from cooperating with the police.

The request was rejected on 5 November 2013 stating that medical treatment was offered in Nigeria on a comparable level. Furthermore, Nigeria has laws on federal and state level prohibiting ritual practices designated to enforce personal interests, infringements being prosecuted by the Nigerian authorities.

The applicant appealed against the decision at the Federal Administrative Court on 3 December 2013.

Decision & Reasoning: 

The Federal Administrative Court examines extensively the connection between human trafficking, forced prostitution and the Juju-cult in Nigeria.

The Court first turns to the jurisprudence of the European Court of Human Rights (ECtHR) that established a state duty to protect people from human trafficking and a high level of protection in this field. Article 4 ECHR establishes a non-refoulement principle concerning human trafficking.

Art. 10 of the Council of Europe’s Convention on Action against Trafficking in Human Beings requires states to identify victims of human trafficking.

The Court observes that victims of human trafficking very rarely make known their situation or tell untrue / contradictory stories at first because they are intimidated and are therefore treated as unreliable by the authorities.

That is why various organisations have developed a list of factors helping the authorities indicating victims of human trafficking.

The Court shortly examines the situation in the European Union and then turns to Switzerland, noticing that agency staff dealing with asylum-seekers need to be sensitised to signs of human trafficking.

Afterwards, the Court elaborates the situation of the victims, the structures and procedure of human trafficking in Nigeria. Most Nigerian women who are victims of human trafficking are very young and come from the south of the country. They are brought to Europe under false promises and have to work off their (inflated) travel debts by prostituting themselves or selling drugs. Beforehand, victims have to swear an oath that is sealed and controlled by a “voodoo” or “juju” ceremony during which they are injured causing striking scars. The oath includes the obligation to pay off the debts and a vow of silence. The women have to hand over their passports to the traffickers as soon as they arrive in Europe. A so called “Madam” controls and accommodates them and takes their remuneration from them.

The main problem is the deeply rooted faith in supernatural powers and the fear of the consequences when breaking the oath. Because of this and because of a lack of support or even rejection by their families, women who have returned to Nigeria go back to Europe (“Re-Trafficking”). The psychological pressure of the oath keeps them from testifying against the perpetrators, making it hard for prosecution authorities to investigate the crime.

The inquisitorial principle (“Untersuchungsgrundsatz”) governs the asylum procedure. This means the competent authority has to find all the facts on its own initiative.

The right to be heard (“Rechtliches Gehör”) obliges the authority to thoroughly and genuinely examine and consider the submissions of the applicant.

Concerning the applicant, there were various hints indicating she was a victim of human trafficking: missing identity documents, originating from the main area of recruitment for human traffickers in Nigeria, travelling to Europe organised and financed by a third person, “Juju-scars”, being mistreated already as a child and suffering from a severe psychological disease. It remained unclear, if the applicant had sold drugs without getting paid, which also would have been a clue as to her victim status.

In conclusion, the Court finds that the previous instance had examined the facts inadequately, did not sufficiently take the submissions of the applicant into account and had therefore violated her right to be heard and the inquisitorial principle.

Outcome: 

Appeal granted. 

Observations/Comments: 

This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.

Other sources cited: 

Council of Europe - Convention on Action against Trafficking in Human Beings, 15 May 2005

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organised Crime, 15 November 2000 (“Palermo-Protocol”)

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims

European Migration Network, Synthesis Report – Identification of victims of trafficking in human beings in international protection and forced return procedures, March 2014

Group of Experts on Action against Trafficking in Human Beings (GRETA), Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Switzerland, 14 October 2015

Case Law Cited: 

ECtHR - O.G.O. v. the United Kingdom (no. 13950/12), 18 February 2014

ECtHR - C.N. v. United Kingdom, no 4239/08

ECtHR - V. F. v France – Application No. 7196/10

ECtHR – M. and others v. Italy and Bulgaria, 31 July 2012, 40020/03