Kibrom Berhane v. Switzerland

The complainant is Kibrom Berhane, a national of Eritrea of Tigrinya ethnicity, born in Mekerka in 1998. He is facing deportation to Eritrea and considers that his return would constitute a violation by Switzerland of articles 3 and 16 of the Convention. The State party has made the declaration under article 22 (1), effective 2 December 1986. The complainant is represented by counsel, Rêzan Zehrê.

On 28 January 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, decided not to accede to the complainant’s request for interim measures.

The complainant lived in a family of eight children. One of his sisters was in the military camp in Sawa.³ One of his brothers served in the army like his father, who had served in the military for over three decades. His father was unable to support the family because of the meagre salary he was paid. One of the complainant’s uncles was arrested in Eritrea by law enforcement officers and then severely beaten, to the point that he became disabled as a result of his injuries.

3. The complainant has not given any details of his sister’s posting. ↩

Because of his financial difficulties, the complainant had to take care of the family’s farm alongside his schooling. When he was a student, he demonstrated an unequivocal political awareness and a clearly dissident attitude towards the Eritrean authorities. One day,⁴ while the complainant was in a café, the Eritrean authorities carried out a raid; at that point, he succeeded in leaving the country illegally for fear of being forcibly enlisted in the army.

4. The complainant did not specify the date. ↩

In February 2015, the complainant travelled illegally to Sudan and then on to Libya, where he took a boat to Italy before arriving in Switzerland. In September 2015, while still a minor, the complainant submitted an application for asylum at the registration and processing centre of the State Secretariat for Migration in Chiasso. On 21 September 2015, he was interviewed by the State Secretariat for Migration concerning his personal information. On 3 November 2015, he was placed under guardianship because of his age; the guardianship was lifted on 10 January 2017, as he had come of age.

On 18 April 2017, the complainant was interviewed again, in greater depth, about his reasons for claiming asylum. On 27 July 2017, he was authorized by the Canton of Fribourg Population and Migrants Service to begin an apprenticeship as a sanitary fitter.⁵ On 24 November 2017, the State Secretariat for Migration rejected the complainant’s asylum application, considering that he had never been called up for military service by the Eritrean authorities and that the mere theoretical prospect of having to perform military service did not constitute a well-founded fear of persecution within the meaning of article 3 of the Asylum Act. The State Secretariat also noted that his illegal departure from Eritrea was irrelevant and that there was no evidence that the complainant was an undesirable person in the eyes of the military authorities in Eritrea.

5. The Service authorized the complainant to complete his apprenticeship, despite the end of his asylum procedure and the negative decision of the Federal Administrative Court. ↩

On 22 December 2017, the complainant challenged this decision before the Federal Administrative Court, requesting, among other things, that the State party recognize his status as a refugee, grant him asylum and, in the alternative, allow his provisional admission to Switzerland. He argued, among other things, that his illegal departure would be considered by the Eritrean authorities as an evasion of the obligation to perform military service and that, upon his return, he would be subjected to treatment prohibited under articles 3 and 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He also argued that national service of an indefinite duration was tantamount to slavery or forced labour, so that the enforcement of his removal would violate article 4 of the European Convention on Human Rights.

On 1 May 2018, the complainant filed a supplemental appeal with the Federal Administrative Court, submitting a medical report dated 22 March 2018. He invoked the principle of equal treatment in relation to two similar cases, in which two young Eritreans, also unknown to the Eritrean authorities, had been recognized as refugees by the State party, upon reconsideration, because they had reached the age for enlistment.

On 23 January 2019, the Court rejected the complainant’s appeal. The Court found, inter alia, that the risk that the person concerned would be forced to perform military service in Eritrea was not a decisive prejudice under article 3 of the Asylum Act; the raid during which he had managed to escape did not indicate that the complainant was himself targeted, nor that the reason for the raid was the grounds for asylum listed in article 3 of the Asylum Act; that an illegal exit from Eritrea was no longer, in itself, sufficient to justify the recognition of refugee status;⁶ and that the complainant had not shown that he was an undesirable person in the eyes of the Eritrean authorities. The Federal Administrative Court indicated that the claim of unequal treatment had to be rejected as the complainant had not explained clearly enough why his case was so similar to those of the two young people cited in his petition.

6. See Federal Administrative Court reference ruling, D-7898/2015, of 30 January 2017. ↩

The complainant argues that he has exhausted all available domestic remedies and that he has never submitted his complaint for examination under another procedure of international investigation or settlement.

The complainant submits that the Swiss authorities have never questioned the plausibility of his reasons for fleeing his home country and requesting asylum, nor have they challenged his statements regarding his illegal exit from Eritrea. He fears that he would be imprisoned in inhumane conditions and exposed to ill-treatment if he were to be returned to Eritrea. The complainant further submits that it is impossible for an Eritrean to leave the country without an exit visa. Such visas are issued by the authorities under very restrictive conditions,⁷ and the complainant does not fall into the category of those who can benefit from them.

7. In practice, the conditions for issuing exit visas are not clearly established. Despite some remaining contradictions and uncertainties regarding age limits, most sources indicate that exit visas are generally issued for men aged over 54 years, women over 47 years and children under the age of 13 years (some sources cite an even lower age). ↩

The complainant argues that, as a person of military age, he is considered as having evaded his obligation to perform military service; this is in violation of the 1995 Proclamation on National Service and he is therefore considered an opponent of the regime. The complainant submits that, because he evaded his military obligations, narrowly escaped a raid by the Eritrean authorities and left Eritrea illegally, he is at risk of torture and illtreatment; and that, consequently, the State party would be violating his rights under articles 3 and 16 of the Convention if it returned him to Eritrea.

The State party submitted its observations on the merits of the complaint in a note verbale dated 18 September 2020.

The State party first recalls the facts and proceedings brought before the Swiss authorities and courts.

The State party notes that, pursuant to article 3 of the Convention, no State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The State party notes that the Committee has translated the elements of this article in its jurisprudence and, in particular, has issued specific guidelines for the application of this provision in its general comment No. 4 (2017), which provides that the complainant must prove that there is a foreseeable, present, personal and real risk of being subjected to torture in the event of expulsion to the country of origin.⁸ Moreover, the grounds for the existence of such a risk must appear to be substantial, which is the case when the relevant claims are based on credible facts. The elements that must be taken into account in order to conclude that such a risk exists include: evidence of a consistent pattern of gross, flagrant or mass violations of human rights in the State concerned, allegations of torture or ill-treatment by a public official in the recent past; the existence of and access to evidence from independent sources to support the allegations of torture or ill-treatment, allegations of torture or illtreatment that may be inflicted on the complainant or his or her entourage as a result of the procedure before the Committee, the complainant’s political activities inside or outside the State of origin, evidence of the complainant’s credibility and the general veracity of his or her allegations, despite certain inconsistencies in the presentation of the facts or certain failures of memory.

8. Committee against Torture, general comment No. 4 (2017), para. 38. ↩

The State party notes that the Committee must take into account all relevant considerations, in accordance with article 3 (2) of the Convention, including the existence of a consistent pattern of violations of the complainant’s rights by the State. Thus, it must be established whether the complainant was personally in danger of being subjected to torture in the country to which he would be returned.⁹ It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country. Therefore, additional grounds must exist for the risk of torture to qualify as “foreseeable, present, personal and real”.¹⁰

9. M.D.T. v. Switzerland (CAT/C/48/D/382/2009), para. 7.2. ↩
10. A.Y. v. Switzerland (CAT/C/74/DR/887/2018), para. 4.4. ↩

The State party refers to the complainant’s allegations that the Federal Administrative Court, through the jurisprudence it has developed since 2017 regarding the risks incurred by Eritrean nationals who left the country illegally while they were of or close to the age of military service, gave greater credence to unclear, unreliable, and unobjective sources of information than to those of established international organizations. In response to these allegations, the State party sets out its practice in processing asylum applications from Eritrean nationals, the main points of which are taken from the Committee’s decision in the case of M.G. v. Switzerland.¹¹

11. M.G. v. Switzerland (CAT/C/65/D/811/2017), para. 7.4. ↩

The State party refers to its practice in processing asylum cases of Eritrean nationals, as described by the Committee in several decisions.¹² The State party notes that the State Secretariat for Migration regularly evaluates reports on Eritrea and continually exchanges information with experts and partner authorities. On this basis, it maintains an up-to-date inventory of the country, which serves as a basis for decision-making and asylum practice. The State party indicates that, in May 2015, the State Secretariat for Migration prepared a report entitled “Erythrée - étude de pays” (“Eritrea - a country study”), bringing together all the available information on the country. The report was validated by four partner authorities, a scientific expert and the European Asylum Support Office.¹³ The State party notes that, in February and March 2016, the State Secretariat undertook a mission to Eritrea in order to review, develop and supplement this information, in the light of other sources that had become available in the meantime. On the basis of this update, the State Secretariat for Migration published a report entitled “Focus Eritrea: Update Nationaldienst und illegale Ausreise” (“Focus Eritrea: update on national service and illegal emigration”) on 10 August 2016. The State party emphasizes that the findings of this report indicate that the return of Eritrean nationals who have evaded national service in their country no longer poses a risk to them as it did previously.

12. Ibid., para. 4.4 ff. ↩
13. European Asylum Support Office (EASO), EASO Country of Origin Information Report: Eritrea Country Focus, May 2015. ↩

The State party argues that, in reports published between December 2015 and July 2018, several national authorities (e.g. Swedish, Norwegian and British) reached similar conclusions.¹⁴ Since January 2017, the Federal Administrative Court has handed down three reference judgments concerning Eritrea (D-7898/2015 of 30 January 2017, D-2311/2016 of 17 August 2017 and E-5022/2017 of 10 July 2018), in which it discusses specific limitations relating to the availability of information on the situation in Eritrea. The State party notes, in particular, reference judgment E-5022/2017, in which the Court took into account the available information on Eritrea in a manner consistent with the quality standards and scientific methods endorsed by the competent migration authorities, especially in matters related to asylum and removal within the European Union and its member States. Bearing in mind the challenges faced by those seeking information on Eritrea, the State party affirms that it took into consideration not only the facts reported by international human rights organizations, but also the facts reported more recently by foreign journalists, specialists and European authorities in the context of information-gathering missions to the country.¹⁵

14. A.Y. v. Switzerland (CAT/C/74/DR/887/2018), paras. 4.2 and 4.6. ↩
15. Federal Administrative Court reference judgment E-5022/2017, recital 4. ↩

The State party argues that a person will be recognized as a refugee if he or she has good reason, i.e. reasons objectively recognizable to a third party (objective element), for fearing (subjective element) that he or she will in all likelihood suffer persecution in the near future. It recalls that anyone who applies for asylum must prove or at least credibly demonstrate that he or she is a refugee and that refugee status is likely when the authority considers it highly probable.

The State party indicates that, since June 2016, the Swiss asylum authorities have changed their practice regarding illegal departure from Eritrea, as confirmed by the Federal Administrative Court in subsequent decisions,¹⁶ in particular its judgment of 30 January 2017.¹⁷ The State party adds that, in these judgments, the Court examined the situation in Eritrea in great detail on the basis of a large number of sources.¹⁸ The Court concluded that an illegal departure from Eritrea is no longer, in itself, sufficient to justify recognition of refugee status within the meaning of article 3 of the Asylum Act. The State party argues that this assessment is based primarily on the observation that members of the Eritrean diaspora, some of whom left the country illegally, are able to return to Eritrea for short stays without coming to any harm. Consequently, the State party is of the opinion that individuals who left Eritrea without authorization can no longer, as a general rule, be considered to be at risk of severe punishment and thus eligible for asylum. The State party adds that a major risk of punishment or serious harm within the meaning of article 3 of the Asylum Act can now only be accepted if there are additional unfavourable factors, such as having belonged to a group of opponents to the regime, having held a prominent position before fleeing, having deserted or having evaded military service, which therefore make the complainant appear to be an undesirable person in the eyes of the Eritrean authorities.¹⁹

16. Federal Administrative Court reference judgment D-7898/2015 of 30 January 2017, confirmed by judgment E-1218/2019 of 16 April 2019. ↩
17. Federal Administrative Court reference judgment D-7898/2015. ↩
18. Federal Administrative Court judgment D-2311/2016, and reference judgment E-5022/2017. ↩
19. Federal Administrative Court reference judgment D-7898/2015, recital 5.2, and judgment E-1218/2019, recital 4.1. ↩

With regard to the enforceability of removal, the State party recalls that, according to article 83 (4) of the Federal Law on Foreign Nationals and Integration, enforcement of removal cannot reasonably be required if the removal or expulsion of the foreign national to his or her native country or country of origin would put him or her in real danger, for example in the event of war, civil war, generalized violence or medical need.²⁰ In the present case, the State party emphasizes that, according to the findings of the competent asylum authorities, Eritrea is not in a situation of war, civil war or generalized violence which would allow the presumption to be made from the outset – and independently of the circumstances of the case in question – that all the country’s nationals are in real danger within the meaning of article 83 (4) of the Federal Law on Foreign Nationals and Integration. The State party is of the opinion that living conditions in Eritrea have improved, despite ongoing economic problems. The State party also considers that the removal of a person to Eritrea no longer requires the existence of particularly favourable individual circumstances, as stipulated in earlier case law.²¹

20. Federal Administrative Court judgment ATAF 2014/26 of 8 October 2014, recitals 7.3–7.10, and judgment ATAF 2011/50 of 2 May 2011, recitals 8.1–8.3. ↩
21. Federal Administrative Court judgment E-1218/2019, recital 9.2 and references. ↩

With regard to the lawfulness of the removal, the State party submits that the Federal Administrative Court recognized that it appeared from the numerous sources of information consulted that all Eritrean nationals were required to perform national service, that they were generally recruited through the school system and that those who were no longer attending school at the time could be sent directly to national service by the local administrative authority when they reached the age of 18. The Court also recognized that the recruits were often victims of, among other things, ill-treatment and sexual abuse by their superiors. The State party nevertheless stresses that these abuses were not widespread.²² It also considers that the risk of being summoned by the military authority and having to perform national service does not in itself constitute treatment prohibited under the relevant provisions of the Convention and is not in itself such as to render unlawful the enforcement of a removal to Eritrea, in the event of a voluntary return. The State party also considers that a person who indicates that he or she has left his or her country for fear of being called up for national service in the future will only qualify for provisional admission if he or she establishes that there is a substantial likelihood that he or she would be personally targeted by measures inconsistent with the provisions in question.²³

22. Federal Administrative Court reference judgment E-5022/2017, recital 6.1.4. ↩
23. Federal Administrative Court judgment of E-1218/2019, recital 8.5 ff. and references. ↩

The State party notes that a forced return of the complainant to Eritrea is not possible, as Switzerland has not forcibly returned any Eritrean nationals to Eritrea since the country’s independence. The State party emphasizes that the consideration of the present case is limited to the risks incurred by the complainant if he voluntarily complies with his obligation to return, provided that he agrees to report to a consular representation of Eritrea abroad for the issuance of a passport or laissez-passer. The State party considers that there are no additional adverse factors beyond the illegal departure of the complainant from Eritrea and notes that he does not allege that he was personally wanted by the Eritrean authorities, notwithstanding the attempted raid from which he claims to have escaped. The State party points out that the complainant left Eritrea when he was 16 years old, whereas recruitment for military service takes place at the age of 18 years, and that he therefore did not come to the attention of the Eritrean authorities before leaving the country.

The State party submits that it does not contest the complainant’s allegations that he left Eritrea illegally. However, the State party believes that, with regard to Eritrean minors who left the country before reaching military age, sources are incomplete or even contradictory and that a distinction should probably be made between those who are arrested while crossing the border without permission, who may be detained in a “rehabilitation centre” for a short period of time, and those who return to the country afterwards. The State party indicates that, for the second category, it is not impossible, and may even be probable, that the persons concerned will be exempted from punishment for having left the country illegally, especially when they return voluntarily.²⁴ The State party notes that the complainant contests this assessment by the Federal Administrative Court, which is well documented,²⁵ and adds that several more recent sources support this conclusion. The sources indicate that Eritrean nationals who have been abroad for three years have the opportunity to settle their status as a member of the diaspora with the Eritrean authorities by paying the diaspora tax and, for those who have violated their national service obligations, by signing a letter of regret. The State party submits that those persons can then return to Eritrea and stay there temporarily under this status, and do not risk being exposed to sanctions solely on account of their illegal departure from Eritrea.

24. Federal Administrative Court reference judgment D-7898/2015, recital 4.11. ↩
25. Ibid., recitals 4.7 and 4.11. ↩

The State party further states that there is no current, accurate and factual information in respect of the treatment by the Eritrean authorities of persons returning to Eritrea after having left the country illegally and that sources sometimes do not explicitly distinguish between voluntary and forced return. The State party argues that there is no evidence that sanctions have been imposed on returning Eritreans. It adds that the signing by the Ethiopian and Eritrean presidents on 9 July 2018 of the Joint Declaration of Peace and Friendship and then, on 16 September 2018, of the Agreement on Peace, Friendship and Comprehensive Cooperation led to the opening of borders between the two countries,²⁶ which reopened their land border in September 2018 and in January 2019; this has made it easier for citizens on both sides of the border to travel.

26. UN News, ‘Wind of hope’ blowing through Horn of Africa says UN chief, as Ethiopia and Eritrea sign historic peace accord, 16 September 2018, online at https://news.un.org/en/story/2018/09/1019482. ↩

The State party argues that, in its judgment of 23 January 2019, the Federal Administrative Court recognized that, as he left Eritrea before reaching military age and without having been called up for national service, the complainant can expect to be recruited upon his return to the country. However, the State party argues that, given the information available, it is not possible to anticipate the risks of the complainant being assigned to military or civilian national service.²⁷

27. Federal Administrative Court judgment E-2076/2017 of 22 November 2018, inc. recital 4.3.7; and reference judgment E-5022/2017 of 10 July 2018, recitals 5.2.1 in fine, 5.2.2, 5.2.3, 6.1.5.2 and 6.1.6. ↩

The State party recalls that the Federal Administrative Court has recognized that the obligation to perform work on behalf of the State that is very poorly paid and of unpredictable duration constitutes a disproportionate burden comparable to forced labour.²⁸ However, it considers that the harm resulting from such work does not amount to torture or other cruel, inhuman or degrading treatment or punishment within the meaning of articles 3 and 16 of the Convention.

28. Federal Administrative Court judgment E-2076/2017 of 22 November 2018, recitals 4.3.4–4.3.7. ↩

Finally, the State party argues that the complainant has not demonstrated that there is a foreseeable, present, personal and real risk that he would be subjected to treatment contrary to article 3 if he were to be returned to Eritrea; or that he was subjected to torture or illtreatment or engaged in political activities before or after his departure from Eritrea.

On 19 May 2021, the complainant submitted his comments on the State party’s observations on the merits of the complaint. The complainant points out that the State party, in its observations, does not comment on the compatibility of the practice of the Federal Administrative Court with international law as regards the processing of asylum applications from Eritrean nationals.

The complainant submits that the general human rights situation in Eritrea is extremely poor and that there is no reliable information to confirm that it has improved in recent years.

The complainant recalls that, in her report of 25 June 2018,²⁹ the Special Rapporteur on the situation of human rights in Eritrea expressed her concerns regarding the protection of Eritrean refugees and noted, in particular, the hardening of the practice of the Swiss authorities, although no significant developments had taken place on the ground.³⁰ The complainant points to the concluding observations on Eritrea, in which the Human Rights Council indicated that the situation had not changed and that national service in Eritrea was one of the main problems.³¹ The complainant also points out that the legal service of the Swiss Refugee Council has expressed reservations about the tightening of the country’s asylum practice with regard to Eritrean nationals.³² The complainant notes that not only did the Office of the United Nations High Commissioner for Refugees (UNHCR) and other United Nations agencies conclude that there was no reliable information that the human rights situation in Eritrea had improved, particularly with regard to national service, but also found that there was a consensus within Europe in that respect. He considers that, in this case, given the arbitrary and unpredictable nature of the Eritrean regime and the lack of sufficient information regarding the consequences of an illegal departure and evasion of military obligations, the risk is proven.

29. A/HRC/38/50, paras. 98–100. ↩
30. Ibid., para. 100. ↩
31. CCPR/C/ERI/CO/1, para. 37. ↩
32. Swiss Refugee Council, Analyse des durcissements de la pratique suisse à l’égard des requérant-e-s érythréen-ne-s (“Tightening of Swiss asylum practice in regard of asylum-seekers from Eritrea”), Legal Service research, 13 December 2018, with reference to Federal Administrative Court judgment D7898/2015, recital 4.3. ↩

The complainant states that the report entitled “Focus Eritrea: Update Nationaldienst und illegale Ausreise”,³³ published on 22 June 2016 following the mission to Eritrea by the State Secretariat for Migration in February and March 2016, makes a distinction between the situation of voluntary returnees and that of forced returnees. The complainant states that, according to this report, persons who have evaded military service, deserters or persons who have left Eritrea illegally and who return voluntarily would not fear harsh sanctions if their situation was regularized beforehand by the Eritrean State after payment of a diaspora tax and the signing of an admission of guilt.³⁴ The complainant notes that the report nevertheless emphasizes the lack of legal certainty in this context and the lack of information on what actually happens in the event of a lasting return. The complainant points out that, despite this vagueness, the State Secretariat for Migration changed its practice in June 2016 on the basis of the report, which was prepared using sources that were based in various respects solely on information from the Eritrean regime that has not been (or could not be) confirmed or denied by other sources. The complainant therefore challenges the conclusion drawn, on the grounds that it does not comply with the quality standards that the authorities must respect when processing information on the countries of origin of asylum-seekers, contrary to the guidelines published by the European Union³⁵ or by the European Asylum Support Office. Based on the practice of the European Court of Human Rights, the complainant considers that, in the decision-making process, the State party should not only rely on the information available to the competent asylum authority, but also consult other sources, in particular those from non-governmental organizations or United Nations agencies.

33. State Secretariat for Migration, Focus Eritrea: Update Nationaldienst und illegale Ausreise (report of 22 June 2016, updated on 10 August 2016). ↩
34. Ibid., p. 6 ff. ↩
35. European Union, Common EU Guidelines for the Processing of Country of Origin Information, April 2008. ↩

In the present case, the complainant is of the opinion that, in its decision-making process, the State Secretariat for Migration gave far more weight to information from the Eritrean authorities and international diplomatic sources, which are vague and weak. The complainant is of the view that the information used by the State Secretariat cannot be considered sufficiently well founded to justify a change in practice of the State party.³⁶ Consequently, the complainant considers that the Swiss authorities accept the risk that Eritrean nationals forced to return to their country of origin may be exposed to acts of torture or ill-treatment.

36. Federal Administrative Court reference judgments D-7898/2015, D-2311/2016 and E-5022/2017. ↩

With regard to a voluntary return to Eritrea, the complainant reiterates his categorical refusal to submit to the obligation to serve in the army, which would constitute forced labour. He recalls that, according to UNHCR, the impossibility of refusing to serve on grounds of conscience is the basis for the need for international protection when the person concerned would be subjected to inhuman conditions while performing military service.³⁷ The complainant indicates that he is not willing to sign a letter of regret and pay the 2 per cent tax³⁸ in order to escape sanctions imposed by the Eritrean authorities. The complainant considers it very problematic, at the least, that the Swiss authorities would force him to sign a letter of regret in which he would acknowledge having committed an offence in fleeing Eritrea. The complainant states that, according to the report of the European Asylum Support Office³⁹ and the United Kingdom Upper Tribunal,⁴⁰ the letter of regret and the 2 per cent tax do not even constitute a guarantee against the sanctions and risks linked to returning to the country. The complainant states that it is unacceptable for the State party to violate United Nations Security Council resolution 2023 (2011), which severely condemned this practice. He believes that the State party, by encouraging him to pay the diaspora tax, is in violation of Article 25 of the Charter of the United Nations concerning the binding nature of Security Council resolutions.

37. UNHCR, Guidelines on International Protection, No. 9, p. 6 ff. Available at: https://www.refworld.org/docid/50348afc2.html. ↩
38. The levy of this 2 per cent tax was severely condemned by the United Nations Security Council, in its resolution 2023 (2011), para. 10, of 5 December 2011. According to the complainant, various Western states such as the Netherlands and Canada are taking measures against the levying of this diaspora tax by the Eritrean regime. ↩
39. EASO, EASO Country of Origin Information Report: Eritrea Country Focus, May 2015, chapter 3.8.2, p. 42. ↩
40. United Kingdom: Upper Tribunal, MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC), para. 334. ↩

In respect of the State party’s allegation that the complainant had not attracted the attention of the Eritrean authorities either before his departure from the country or subsequently, the complainant notes that both the European Court of Human Rights⁴¹ and the Federal Administrative Court (until its judgment of 30 January 2017) considered that, in the case of an asylum application filed by an Eritrean national of or approaching the age of military service, which made it likely that the departure from the country was illegal, the authority is obliged to dispel any doubt about the risk of mistreatment. The complainant emphasizes that his illegal departure must be considered relevant from the point of view of asylum or at least be taken into account when examining a possible violation of article 3 of the Convention.

41. Council of Europe, European Court of Human Rights, M.O. v. Switzerland, No. 41282/16, 20 June 2017. ↩

The complainant states that the State party does not contest that, as recognized by the International Labour Office and the United Kingdom Upper Tribunal, in the MST and Others judgment, and by Amnesty International,⁴² the obligation to perform work for the State that is very poorly paid and of unpredictable duration constitutes a disproportionate burden comparable to forced labour, which violates articles 3 and 4 of the European Convention on Human Rights. The complainant nevertheless points out that the State party wrongly considered that this harm does not meet the high threshold for a violation of article 4 (2) of the European Convention on Human Rights and does not amount to torture or other cruel, inhuman or degrading treatment or punishment within the meaning of articles 3 and 16 of the Convention against Torture. The complainant further recalls that, according to article 1 of the International Labour Organization Abolition of Forced Labour Convention, 1957 (No. 105), States parties are prohibited from using forced labour, inter alia, as a measure of coercion or political education, as a punishment for holding or expressing certain political opinions or as a method of mobilizing and utilizing labour for purposes of economic development. He recalls that, in the case of Eritrea, military service cannot be considered as conventional military service, only ensuring the country’s defence, but as an instrument used to bring about economic progress and to politically indoctrinate the population.

42. Amnesty International, Swiss Section, Amnesty: Magazin der Menschenrechte, August 2012. Available at: www.amnesty.ch/de/ueber-amnesty/publikationen/magazin-amnesty/ 2012-3/dienstverweigerung-asylgrund-eritrea-schweiz. ↩

The complainant stresses that torture and arbitrariness are widespread practices in the Eritrean national service and that the unhealthy living conditions during the national service are inhumane, both in daily life and when punishment is imposed.⁴³ Accordingly, the complainant states that enlistment in the national service inevitably leads to torture or cruel, inhuman or degrading treatment.

43. Swiss Refugee Council, Country Analysis Theme Paper, Erythrée: service national (Eritrea: national service), Bern, 30 June 2017, p. 15 ff. ↩

The complainant stresses that the burden of proof lies with the State party, when it becomes aware of a consistent pattern of gross, flagrant or mass violations of human rights in the country of origin. He believes that, since it is well known that such a practice exists in Eritrea, it is incumbent upon Switzerland to present reliable information proving that national service in Eritrea does not constitute forced labour that can be qualified as ill-treatment.

In view of the above, the complainant concludes that his fear of being exposed to serious harm within the meaning of articles 3 and 16 of the Convention in the event of his return to Eritrea is justified and well-founded. Consequently, he reiterates his conclusions that he would be exposed to a foreseeable, present, personal and real risk of being subjected to torture or ill-treatment if returned to Eritrea and reaffirms that a violation of articles 3 and 16 of the Convention should be found.

Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as required under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, following the rejection of his appeal, the complainant was handed down a final, negative, decision on his application for asylum, and that the State party has not contested the admissibility of the complaint. Accordingly, the Committee finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.

As the Committee finds no further obstacles to admissibility, it declares the complaint admissible and proceeds with its consideration of the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

In the present case, the issue before the Committee is whether the return of the complainant to Eritrea would constitute a violation of the State party’s obligation under articles 3 and 16 of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Eritrea. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights.⁴⁴ However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not, in his or her specific circumstances, be subject to torture.

44. Committee against Torture, general comment No. 4 (2017), para. 43. ↩

The Committee recalls its general comment No. 4 (2017), which states, first, that the non-refoulement obligation exists whenever there are “substantial grounds” for believing that the person concerned would be in danger of being subjected to torture in the State to which he or she is facing deportation, either as an individual or as a member of a group which may be at risk of being tortured in the State of destination and, second, that the Committee’s practice has been to consider that “substantial grounds” exist whenever the risk is “foreseeable, personal, present and real”.⁴⁵ The Committee further recalls that the burden of proof is upon the complainant, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, personal, present and real. However, when the complainant is in a situation where he or she cannot elaborate on his or her case, the burden of proof is reversed and the State party concerned must investigate the allegations and verify the information on which the communication is based.⁴⁶ The Committee gives considerable weight to findings of fact made by organs of the State party concerned; however, it is not bound by such findings, as it can make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.⁴⁷

45. Ibid., para. 11. ↩
46. Ibid., para. 38. ↩
47. Ibid., para. 50. ↩

In the present case, the Committee takes note of the complainant’s argument that, as a person of military age who has evaded his obligation to perform military service, and that, having left Eritrea illegally, he is at risk of torture and ill-treatment if returned to Eritrea in violation of articles 3 and 16 of the Convention by the State party. The Committee notes that the complainant argues that the assessment on which the Swiss migration authorities based their decision to reconsider their position on the risks associated with the return of persons fleeing forced recruitment in Eritrea was not undertaken on a sound basis and did not take into account numerous reports from United Nations agencies and non-governmental organizations. The Committee also notes that the State party indicates that the report contested by the complainant concludes that the return of Eritrean nationals who have evaded national service no longer poses a risk to them as it did previously. The Committee notes that the State party has reported on its methods of assessing the risks faced by persons fleeing military service in Eritrea based on reports from several national authorities, international organizations and non-governmental organizations, and that the assessment methods used respected the quality standards and scientific methods endorsed by the competent migration authorities, especially in the field of asylum and return within the European Union and its member States. The Committee also notes that the State party recognizes the difficulties inherent in seeking information on the return of persons who have fled military service in Eritrea. The Committee therefore considers that it cannot conclude that the human rights situation in Eritrea has improved.

The Committee notes that the complainant’s assertion that the obligation to perform work for the State that is very poorly paid and of unpredictable duration constitutes a disproportionate burden amounting to forced labour is not contested by the State party.⁴⁸ The Committee nevertheless notes that the complainant contests the State party’s conclusion that this harm does not amount to torture or other cruel, inhuman or degrading treatment or punishment within the meaning of articles 3 and 16 of the Convention. The Committee notes the complainant’s argument that military service in Eritrea is characterized by torture and arbitrariness and that the unhealthy living conditions during national service are inhumane, both in daily life and when punishment is imposed.⁴⁹ The Committee further notes that, according to the complainant, enlistment in the national service inevitably leads to torture or cruel, inhuman or degrading treatment. The Committee notes that it is not disputed by the State party that the Eritrean military service is characterized, inter alia, by arbitrariness, unhealthy and inhumane living conditions and that asylum-seekers returned to Eritrea are reportedly subject to severe punishment upon their return, including long periods of incommunicado detention, torture and ill-treatment.⁵⁰

48. Federal Administrative Court judgment E-2076/2017, recitals 4.3.4–4.3.7. ↩
49. Swiss Refugee Council, Erythrée: service national (Eritrea: national service), Country Analysis Theme Paper, Bern, 30 June 2017, p. 15 ff. ↩
50. A/HRC/47/21, para. 52. ↩

The Committee notes that the State party has acknowledged through its observations (see para. 4.16 above) that the Federal Administrative Court concluded in its judgment of 23 January 2019 that the complainant left Eritrea when a minor, without having been called up for national service, and that he can expect to be recruited upon his return to the country. The Committee notes that the State party has also recognised that, given the information available, it is not possible to anticipate the risks of the complainant being assigned to military or civilian national service.⁵¹

51. Federal Administrative Court judgment E-2076/2017, inc. recital 4.3.7; and leading decision E5022/2017, recitals 5.2.1 in fine, 5.2.2, 5.2.3, 6.1.5.2 and 6.1.6. ↩

The Committee notes the complainant’s position that he is not willing to sign a letter of regret and pay the 2 per cent tax⁵² in order to return freely to the country and enjoy the privileged status of “diaspora” as he considers that that would amount to an admission of having committed an offence. The Committee also notes that, according to the complainant, signing this letter and paying the tax does not even provide a guarantee against the sanctions and risks associated with return.⁵³

52. The levy of this 2 per cent tax was severely condemned by the United Nations Security Council in its resolution 2023, para. 10. According to the complainant, various Western states such as the Netherlands and Canada are taking measures against the levying of this diaspora tax by the Eritrean regime. ↩
53. EASO, EASO Country of Origin Information Report: Eritrea Country Focus, May 2015, section 3.8.2, p. 44 and the decision of the United Kingdom Upper Tribunal in the case of MST and Others (national service – risk categories) (CG) [2016] UKUT 443 (IAC), para. 334. ↩

The Committee notes the State party’s position that, for those persons of military age who fled Eritrea illegally and who return voluntarily, it is possible that they may be exempted from punishment,⁵⁴ including those who have been abroad for three years, who have the option of settling their diaspora status with the Eritrean authorities by paying the diaspora tax, and for those who have violated their national service obligations, by signing a letter of regret. The Committee takes note of the State party’s assertion that there is no current, accurate and factual information on the treatment by the Eritrean authorities of persons returning to Eritrea after illegal departure or information that sanctions have been taken against returning Eritreans. In these circumstances, the Committee cannot presume that there are no risks associated with the complainant being returned to Eritrea.

54. Federal Administrative Court reference judgment D-7898/2015, recital 4.11. ↩

The Committee notes that the complainant mentioned his political awareness and a dissident attitude towards the Eritrean regime (see para. 2.2 above). The Committee nevertheless notes, from the information in the case file, that the author has not provided evidence of any particular political commitment that might arouse the interest of the authorities. It notes furthermore that the complainant has not mentioned any acts of torture in the past. The Committee nevertheless observes that persons who have not completed their military service are at risk solely by virtue of having deserted or refused to enlist. The Committee also observes that allegations of torture and ill-treatment of persons who have fled military service in Eritrea are acknowledged not only by the State party, but also by several United Nations agencies, including UNHCR, and the Special Rapporteur on the situation of human rights in Eritrea. The Committee also observes that the State party does not contest that, in the event of return, the complainant could be assigned to military or civilian national service in circumstances amounting to cruel, inhuman or degrading treatment.

In order to determine whether the complainant would be in danger of being subjected to torture upon his return to Eritrea, the Committee relies not only on the submissions of the complainant and the State party, but also on the report of the Special Rapporteur on the situation of human rights in Eritrea, published in May 2021.⁵⁵ The Committee thus notes that, in the report, the Special Rapporteur on the situation of human rights in Eritrea on the human rights situation in Eritrea indicated that asylum-seekers who are returned to Eritrea reportedly face severe punishment upon their return, including prolonged periods of incommunicado detention, torture and ill-treatment.⁵⁶ The Committee also notes that the Special Rapporteur previously expressed concern that the voluntary return of 56 individuals from Switzerland to Eritrea in 2019 “could be placing individuals at risk, given that their conditions of return cannot be adequately monitored.”⁵⁷ The Committee also notes that, in a statement to the Human Rights Council on 4 March 2022, the Special Rapporteur emphasized that, judging by recent developments, the human rights situation in Eritrea was still not improving.⁵⁸

55. A/HRC/47/21. ↩
56. Ibid., para. 52. ↩
57. Ibid., para. 83. ↩
58. See https://www.ohchr.org/fr/press-releases/2022/03/human-rights-council-holds-separate-interactive-dialogues-human-rights. ↩

In view of the findings of the Special Rapporteur that failed asylum-seekers who are returned to Eritrea face a risk of being subjected to torture, the Committee cannot conclude in the present case that the complainant, whose asylum claim was denied by the State party, does not face a foreseeable, real, present and personal risk of being subjected to torture if he is returned to Eritrea.⁵⁹ The Committee therefore considers that his forced return to Eritrea would constitute a violation of article 3 of the Convention.

59. See X. v. Switzerland (CAT/C/71/D/900/2018) and Y. v. Switzerland (CAT/C/72/D/916/2019). ↩

In the light of the foregoing, the Committee, acting under article 22 (7) of the Convention, concludes that the return of the complainant to Eritrea would constitute a violation by the State party of article 3 of the Convention. Having reached that conclusion, the Committee does not consider it necessary to examine the claim made under article 16 of the Convention.

The Committee is of the view that, in accordance with article 3 of the Convention, the State party has an obligation to refrain from forcibly returning the complainant to Eritrea.

Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party to inform it, within 90 days from the date of the transmittal of the present decision, of the steps it has taken to respond to the above observations.