ECtHR decision in A.A. v. Switzerland, Application No. 58802/12, 7 January 2013

Sunday, February 2, 2014

The Applicant is a Sudanese national and has 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 a deemed lack of credibility. 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 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.

The ECtHR agreed with the Swiss authorities that the Applicant was not a high-profile political activist. However, on the basis of recent country reports and case law, 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’ [43]. 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’ [43]. 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 (right to an effective remedy) were dismissed by the Court, who accepted that the Swiss authorities were right to be critical of the Applicant’s credibility.

Read the judgment of the European Court of Human Rights.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners 

Credibility assessment
Effective remedy (right to)
Political Opinion
Refugee sur place