ECtHR - M.O v Switzerland, Application no. 4128/16, 20 June 2017

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Country of Applicant: 
Eritrea
Date of Decision: 
20-06-2017
Citation: 
M.O v Switzerland, Application no. 4128/16, 20 June 2017
Court Name: 
European Court of Human Rights (third section)
Headnote: 

An Eritrean national claimed refugee status in Switzerland as a result of having allegedly been beaten and tortured for his attempt to escape from military service. His attempt to rely on Article 3 of the Convention of Human Rights to avoid an expulsion order issued by the Swiss authorities was denied as a result of his failure to corroborate his story with factual evidence, inconsistencies in his account and the fact that risk of ill-treatment on his return to Eritrea could be mitigated. 

Facts: 

The applicant was an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland. The applicant entered Switzerland irregularly on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the State Secretariat for Migration (SEM), on 1st July 2014, 11th March 2015 and 29th January 2016. He then appealed to the Federal Administrative Court on 14th April 2016.

In all three hearings the narrative that the applicant presented was as follows. He had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school, and had been summoned for military service, which he had tried to avoid. He had tried to escape almost immediately after reporting for duty. He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea, he had left the country on foot crossing the border at Mereb with a smuggler arranged by his family. He had been picked up by Ethiopian soldiers the next day and taken to the Hitsas refugee camp.

However, there were multiple discrepancies in his timelines such as the specific years of his schooling and the length of time he remained in prison following his attempt to escape from the military. He did not mention any incidents whilst detained and simply mentioned his daily routine. He had no details regarding his military training and claimed this was because of his immediate escape attempt. The applicant’s submissions regarding his illegal exit from Eritrea were also deemed not credible as there were few details such as the smuggler’s origin and the length of time they had spent at his parents’ house and even these were subject to change. 

The applicant attempted to corroborate his story with documentation such as a student card, a card showing his Church deacon status and a UNHCR letter from the Hitsas refugee camp. None of these were deemed substantial enough to outweigh the discrepancies in his story.

On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland having failed to prove or credibly demonstrate his refugee status pursuant to section 7 of the Asylum Act, the applicant was not a refugee as defined in section 3 of the Asylum Act. On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. Furthermore, the court found that the applicant’s removal was possible, permitted and reasonable within the meaning of section 83(1)-(4) of the Aliens Act and the SEM set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016. 

Decision & Reasoning: 

Firstly, the Court held that the complaint concerning Article 3 of the Convention to be admissible and the remainder of the application to be inadmissible.

The court held that the implementation of the expulsion order against the applicant would not give rise to a violation of Article 3 of the Convention. Although the Court did recognise that the human rights situation in Eritrea with 92% of all applicants being granted asylum, it stated that it was not necessarily true that a returning Eritrean would automatically be at risk of ill-treatment. The Court therefore finds that the general human rights situation in Eritrea does not prevent the applicant’s removal per se. The Court did also note the risk of ill-treatment owing to desertion from military service and illegal exit from Eritrea and that it was unsubstantiated that this risk could be mitigated via a payment of a 2% diaspora tax and letter of regret.

The Court also acknowledged that, in circumstances such as those claimed by the applicant, it is impossible to confirm an illegal exit from Eritrea by way of documentary evidence. It is for precisely that reason that decisive weight is attached to the plausibility of the applicant’s testimony. The Court did note that some of the applicant’s account did seem credible notably that the Eritrean authorities initially refrained from drafting him because of his role as a church deacon and that he was assigned to Wi’a military training as a result of his poor grades, however the account also lacked substance and detail. This lack of detail was most notable with regards to the end of his schooling, the date of commencement, duration and content of his military training, as well as the duration and dates of his detention.

The Court observed that the discrepancies pointed out by the national authorities were numerous and that the applicant was repeatedly and explicitly informed three times about his need for credibility. The Court reiterated that the national authorities are best placed to assess the credibility of an individual since it is they who have an opportunity to discern their demeanour. The Court observes that the applicant did not submit direct documentary evidence relating to a real risk of ill-treatment which he would face in Eritrea.

Consequently, the Court held that the applicant failed to substantiate that he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if forced to return to Eritrea.

The applicant’s attempt to rely on Article 4 of the Convention, i.e. his right not to be held as a slave or in servitude and not to be required to perform forced labour was not deemed admissible. It was deemed likely that the applicant had based this part of his application on a report detailing human rights violation inherent in military service in Eritrea by the European Commission on 9th May 2016.  This was published after the domestic hearings and as the details of conditions of military service had not been made known to the domestic courts and his original application was not based on those grounds he could reapply for asylum. He had therefore not exhausted all domestic remedies and could reapply and lodge a new application to the Court if rejected in the domestic courts.

 

Finally, the Court decided under Rule 39 of the Rules of Court that the government ought not to expel the applicant until such time as the present judgment becomes final, or until further order.

Outcome: 

No violation of Article 3.

Observations/Comments: 

This case summary was written by Adam Janmohamed.

Other sources cited: 

Reports by the UN Commission of Inquiry on Human Rights in Eritrea (2015, 2016)

Reports by EASO – The November 2016 report “Eritrea – National Service and Illegal Exit” consisting of: Statements made by the Eritrean government; Assessments by persons in Eritrea; Assessments by persons who have left Eritrea; Position of the Eritrean government

Detailed human rights reports published by the UN Commission of Inquiry in June 2015 and 2016 & Amnesty International in December 2015.

Reports by Country of Origin Information (COI) units in the United Kingdom consisting of: The May 2015 report “Eritrea – Country Focus”

The report “Latest asylum trends – 2016 overview”

Views of international observers in Asmara

The 2009 Country Report by the US Department of State

Crisis Group Africa Briefing No 100 August 2014 (‘Eritrea: Ending the Exodus?’)

[Country Information and Guidance] on Illegal Exit (the Swiss Report of March 2016)

 

 

Authentic Language: 
English
State Party: 
Switzerland
National / Other Legislative Provisions: 
Switzerland – “LAsi” The Asylum Act - 26 June 1998 – Section 3
5
7 &54
Switzerland – Aliens Act – 16 December 2005 – Section 83
Eritrea – Proclmation No.82/1995 – Article 17