ECtHR - A.A. v. Switzerland, Application No. 58802/12

Swiss deportation to Sudan of non-high-profile political opponent of Sudanese government would risk inhuman or degrading treatment contrary to Article 3.

Facts:

The Applicant is a Sudanese national and had been the human rights officer of the anti-government group Sudan Liberation Movement-Unity (SLM-Unity), based in Switzerland, since 2009. He applied for asylum in Switzerland twice, in 2004 and 2009. He claimed to the Swiss refugee authority that he fled his home village in North Darfur, Sudan, when it was attacked by Janjaweed, a government-backed militia that operates in Darfur and is in conflict with Darfur rebel groups. He alleged that his father and other villagers were killed and he was mistreated, prompting him to flee without papers via boat to Calais and then Geneva.

Both of his asylum applications were rejected due to credibility problems. Regarding the first, the Swiss authorities relied on an expert assessment of his language and cultural knowledge to reject his claim to be from Darfur, alongside inconsistencies in the Applicant’s account of his travel itinerary, his region and his relatives’ whereabouts.

The second asylum request, based on the new risk created by his political activism with SLM-Unity and fresh evidence of North Darfuri origins allegedly obtained from the birth register in Sudan, was dismissed by the authorities in 2012. His recent political activities - including an interview with a Swiss local TV channel - were rejected as a non-genuine attempt to create ‘post-flight grounds’ against removal, and as insufficiently high-profile to attract the attention of the Sudanese government. The Applicant appealed, submitting that his political activities, including an argument with the Sudanese President’s brother during an international meeting at the UN building in Geneva, must be known by the Sudanese authorities. His appeal was rejected for the same reasons as before, and his birth certificate was deemed valueless as evidence in part due to the likelihood of forgery.

He claimed before the ECtHR that return to Sudan would violate his rights under Article 3, and that the appeal process against his return in Switzerland had violated his right to an effective remedy under Article 13, taken together with Article 3.

Decision & Reasoning:

The European Court agreed with the Swiss authorities that the Applicant was not a high-profile political activist. However, the Court ruled that ‘not only leaders and high-profile people, but also those merely suspected of supporting opposition movements are at risk of treatment contrary to Article 3 of the Convention in Sudan’. The Applicant’s representation of SLM-Unity at the UN meetings in Geneva meant that he ‘might, at least, be suspected of being affiliated with an opposition movement by the Sudanese government’. The Court therefore found substantial grounds for believing that the Applicant would be at risk of detention, interrogation and torture contrary to Article 3 ECHR if returned to Sudan.

The Applicant’s related complaint that his asylum claims were not afforded sufficiently close and rigorous scrutiny as required by Article 13 ECHR was dismissed by the Court, which accepted that the Swiss authorities were right to be critical of the Applicant’s credibility.

Outcome:

Violation of Article 3 if returned to Sudan; no violation of Article 13 together with Article 3.

Subsequent Proceedings :

In June 2015, the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2015)95) wherein it found that adequate execution measures had been adopted by Switzerland. Notably, on the individual level the CM welcomed that the Federal Administrative Court had given the applicant refugee status and provided him with a provisional residence permit. On the general level, the CM was satisfied with the change of practice by the Federal Administrative Court recognising that post-flight activities in loci can also lead to the risk of ill-treatment.

Case Law Cited:

UK - AA (Non-Arab Darfuris - relocation) Sudan CG [2009] UKAIT 00056

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ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04

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ECtHR - Mohammed v Austria, Application No. 2283/12

ECtHR - Singh and Others v. Belgium, Application No. 33210/11

ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09

ECtHR - S.F. and Others v. Sweden, Application No. 52077/10

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ECtHR - N. v Sweden, 20 July 2010, no. 23505/09

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