I.K. v. Switzerland (No. 21417/17), 18 January 2018

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Country of Applicant: 
Sierra Leone
Date of Decision: 
18-01-2018
Citation: 
No. 21417/17
Court Name: 
European Court of Human Rights, third section
Relevant Legislative Provisions: 
International Law
International Law > 1951 Refugee Convention
Headnote: 

The applicant, a national from Sierra Leone who claimed asylum in Switzerland on the grounds of persecution owing to his homosexuality, is found not to be at risk of treatment prohibited under Article 3 of the Convention in case of return to his country of origin. In substance, the Court recalls that national authorities are in the best position to carry out this risk assessment and recalls the UNHCR Guiding Principles on asylum claims based on sexual orientation, which require the evaluation of the risk through individual assessment, in addition to the examination of the country’s general situation. 

Facts: 

The applicant, a national of Sierra Leone, claimed asylum in Switzerland in 2012 on the grounds of being persecuted in his country of origin on account of his homosexuality. Following the rejection of his asylum claim in 2014 by the Federal Office of Migration (the competent authority at the time), the Federal Administrative Tribunal (TAF) also dismissed the applicant’s appeal in 2017. It found that the applicant’s declarations were contradictory, and the evidence provided was insufficient to demonstrate either his membership to a LGBTI group, or an alleged previous arrest on the grounds of his homosexuality. Moreover, the Tribunal found that the applicant’s return to Sierra Leone would not violate the rights protected under the European Convention on Human Rights (ECHR). Hence, the applicant filed a request to the European Court of Human Rights (ECtHR). 

The applicant argues that his return to Sierra Leone would amount to a violation of Articles 3 and 14 of the Convention, respectively prohibiting degrading and inhuman ill-treatments, and discrimination.

Decision & Reasoning: 

The Court first recalls that it falls to the applicant to produce evidence of his risk of being subjected to treatment prohibited under Article 3. It adds that the existence of the risk of being subjected to such treatments must be corroborated not only by the country’s general situation, but also by the applicant’s own allegations supported by further evidence.

Hence, even though the Court acknowledges the criminalisation of homosexuality in Sierra Leone’s legislation, it observes that the non-application of such criminalisation calls for additional evidence that the applicant’s return would indeed create a risk for him to be subjected to treatments prohibited under Article 3. In that regard, referring to the UNHRC Guiding Principles, the Court notes that the credibility assessment of running the above-mentioned risk must be carried out individually, with national authorities being in the best position to assess such credibility, the Court not having the role to substitute its own examination.

Consequently, in the light of the claim’s assessment by the SEM and the TAF, the Court notes that the applicant’s grounds for asylum were rightly evaluated in a sensitive context involving personal questions, reaching the same conclusion that the declarations and evidence provided were not sufficient to prove a real and genuine risk of treatments prohibited by Article 3.

Finally, the Court found that it did not need to assess the applicant’s alleged violation of Article 14 of the Convention as it dealt with it under its assessment of an alleged violation of Article 3. 

Outcome: 

Application found to be manifestly unfounded  

Attachment(s): 
Other sources cited: 
  • Queeramnesty, Position Statement
  • United Nations Committee on Human Rights, Final Observations of 17 April 2014
  • U.S. State Department, 2016 Report on Human Rights Practices in Sierra Leone, 3 March 2017
  • Amnesty International, 2016/2017 International Report, 22 February 2017
  • Freedom House, Freedom in the World 2016, 23 August 2016
Authentic Language: 
English
State Party: 
Switzerland
National / Other Legislative Provisions: 
Sierra Leone: Offences against the Person Act 1861
Switzerland: Asylum Law of 26 June 1998
Switzerland - Decree 1 on asylum regarding the 11 August 1999 procedure
Switzerland - Federal Law of 16 December 2005 on foreigners