ECtHR – N.A v. Switzerland, Application no. 66702/13, 30 May 2017

Firstly, the Court declared that the complaint was admissible. The Swiss government had argued that the applicant had not fully utilised all of the domestic avenues to declare new evidence after The Federal Administrative Court of Switzerland’s decision on 4 June 2014. They claimed that the applicant should have made the court aware of these facts via a request for a retrial or a new request for asylum. The Court noted however, that in accordance with Article 55, if the defending party wishes to raise an issue with the admissibility of evidence, it must do so as early as possible. The Court noted that the Government raised the issue on 17 March 2016, in response to additional comments made by the applicant dated February 8 2016. This was well after it had made and submitted its position on merits and admissibility on 12 November 2015. Moreover, there were no special circumstances to justify this delay.

Secondly, the ECtHR held that there was no violation of either article 2 or 3 of the Convention by sending the applicant back to Sudan. The Court recognised that the current human rights situation in Sudan is still very much alarming and that members of the rebel group JEM are at particular risk even when abroad. However, the Court did not identify any significant reason why the Swiss authorities’ original decision, that the applicant’s allegations lacked credibility, should be reconsidered. The Court also stated that there was no explanation that sufficiently clarified the numerous inconsistencies in the applicant’s accounts particularly given that the two hearings were conducted within a month of each other.

The Court also reiterated that it did not find any reason to doubt the domestic courts’ decision that the allegations were not substantiated with enough credibility. In addition, the individual had not been politically active whilst he was living in Greece or previously in Sudan where he was able to leave the country legally via Khartoum’s international airport just after having renewed his passport. The Court therefore concluded that there was no evidence to suggest that the Sudanese authorities would have a significant interest in the applicant whilst he was still living in Sudan or abroad before his arrival in Switzerland.

The Court noted that the applicant’s political activities in Switzerland were marginal; he had never occupied a conspicuous position at the heart of JEM and had never represented the movement, his name had never been cited and it was never shown on the internet. Other concerns such as appearing on a radio or being photographed with the movement’s leader were also not sufficient as to warrant concerns over his safety upon his return to Sudan. The Court also noted that the applicant’s ethnicity did not pose a risk as he was of Arab ethnicity and he had no personal or familial ties with members of the JEM movement.