CASE OF M.O. v. SWITZERLAND
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
6. The applicant is an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland. 7. The applicant entered Switzerland illegally on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration, renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the State Secretariat for Migration”). During all three hearings an interpreter was present and the record was translated for the applicant prior to his signing it. 8. The first hearing was a summary interview at the Centre for Reception and Procedure (Empfangs- und Verfahrenszentrum) in Kreuzlingen on 1 July 2014. The applicant stated that 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. Once he had reported for duty, he had tried to escape but had been caught. He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He was unable to recall the exact dates of his imprisonment, but stated that he had been imprisoned from June 2012 to September 2013. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea for one more week, he had left the country on foot on 3 October 2013, crossing the border at Mereb. He had been picked up by Ethiopian soldiers the next day. 9. In order to support his account, the applicant submitted copies of his student card and a card showing that he was a church deacon, as well as the original of a card used for food distribution in Italy. He stated that he had been issued with an identity card in Eritrea in 2010, but had had to hand it in in Ethiopia. The applicant further stated that he was married and had a son born in October 2012. 10. The second, more detailed, hearing took place at the office of the State Secretariat for Migration in Berne on 11 March 2015. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. 11. The applicant again gave an account of the alleged events in Eritrea leading up to his escape. This time he stated that he had been imprisoned in Wi’a from March to October 2013 following his attempt to escape from the military. When confronted with the discrepancy in comparison with his previous account in that regard, he stated that he might have made a mistake in the first interview. When asked about the conditions of his detention, the applicant claimed that it had been very dirty and very hot, and that he had been locked up all the time. Other than beatings suffered due to his attempt to escape, there had been no particular incidents. He did not recall any rules other than fixed meal times and being brought outside in the mornings and evenings to relieve himself. 12. When asked about his military training, the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape. He had not learned how to use weapons. He could neither provide a name of his superior nor his unit nor his military number. 13. When questioned about his departure from Eritrea, the applicant described leaving A. (a village) on foot at around 6 p.m., together with a person living in the neighbourhood who knew the area. They had walked towards Mereb, but had lost their way as it was night-time. They had been very afraid and also hungry and thirsty. There were lots of thorn bushes in their way and they had heard the howling of hyenas. They had not been sure whether they had reached Ethiopian territory until soldiers who spoke Amharic had apprehended them at around 3 a.m. When informed by the interviewer that his account in relation to his departure might not be considered credible, which would result in the conclusion that he had left the country legally, the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled. 14. The applicant claimed that he had always been in good health. 15. In order to support his account, the applicant submitted the originals of his marriage certificate of 2010 and his son’s baptism certificate of 2012, as well as an attestation that he was a church deacon. He claimed that these documents had been sent to him from Eritrea. 16. The applicant was heard for a third time by the State Secretariat for Migration on 29 January 2016. Again, a member of a non-governmental organisation was present as a neutral witness, who did not note down any observations relating to irregularities. 17. The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from Eritrea, and that the account he had so far provided in this regard would probably be dismissed as not credible, which would result in the conclusion that he had left the country legally. 18. The applicant responded that he had spent two days at his parents’ home in A. after escaping from prison. His family had contacted a people smuggler from the Mereb area. He and the smuggler had left A. on foot at around 6 p.m. When confronted with his previous account that he had left with a person from the neighbourhood, the applicant clarified that the person he had travelled with (the smuggler) came from a neighbouring village. During the night the smuggler had told him that he had taken many people across the border, but that he and the applicant had already been walking for too long a time, which meant that they must have lost their way. They had become disorientated and had only realised that they had crossed the border when they had been apprehended by Ethiopian soldiers at around 4 a.m. who had spoken to them in Amharic. 19. On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland. It found that his account was not credible, and concluded that, 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. 20. The State Secretariat for Migration pointed out that the applicant had stated in the first hearing that he had been detained for a period of one year and three months, from June 2012 to September 2013, whereas in the second hearing he had said that he had been detained for seven months, from March to October 2013. It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling. Furthermore, his account as regards his time in prison and his escape from prison lacked substance, and he could not provide details as to what he had learned during his military training. 21. The State Secretariat for Migration also found that the applicant’s submissions regarding his illegal exit from Eritrea were not credible. Despite being asked several times to provide a detailed account of his departure or specific events in that connection, the applicant’s statement in that regard was superficial and limited to phrases. The State Secretariat for Migration argued that, particularly in relation to the hours during which the applicant and the smuggler had lost their way, it could legitimately be expected that the applicant would provide a substantiated account, which he had failed to do. Nor had he provided a consistent account in that regard. Moreover, he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country. 22. On 14 April 2016 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority. He referred to a report of the European Asylum Support Office (EASO), which stated that the relevant authorities had, at times, deferred the draft of clerics, until a change in practice in 2010 had led to a stricter approach (see paragraph 49 below). The applicant submitted that he had had to undergo his military training in Wi’a, a place to which, according to a report by the US Department of State (see paragraph 51), students with poor grades were typically assigned. Shortly after reporting for duty, he had attempted to escape. He had been caught and, as a result, detained in March 2013. He had managed to escape from detention in September 2013 after seven months. Fearing that he would be detained once again or forced to perform military service, he had decided in early October 2013 to leave the country illegally. His family had organised a smuggler. They had fled during the night and, while attempting to cross the border at Mereb, had lost their way. They had been apprehended by Ethiopian soldiers early in the morning of 4 October 2013 and taken to Endabaguna. One week later, they had been transferred to the Hitsas refugee camp. 23. With regard to the alleged discrepancies relating to his schooling, the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school, but emphasised that he had consistently stated that he had left school after eighth grade, having failed the exams to move on to secondary school, and referred to a report by EASO regarding the national examination at the end of eighth grade (see paragraph 49 below). Also, during the hearing he had corrected himself in relation to the commencement of his military training. Furthermore, it was comprehensible that he could not give a detailed account about things which he had learned during that training, given that he had attempted to escape almost immediately after reporting for duty. 24. The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education. He emphasised that his statements as regards the time of the end of his detention, September 2013, were consistent. In relation to the conditions of detention, he argued that the account he had given to the asylum authorities very much reflected his personal experiences: he had stated that the prison had been dirty, that it had been very hot, that detainees had had lice, that there had been fixed meal times, and that he had been taken outside in the mornings and evenings to relieve himself. In light of this monotonous pattern, the mistake, if any, had been on the part of the interviewer, who had asked for a description of specific events. In that regard, the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event. He emphasised that the interviewer had not questioned him about his scars, which he alleged were the result of that incident, or about specific events surrounding his escape from prison, pointing out that the latter issue had been raised by the representative of the non-governmental organisation who had been present as a neutral witness at the second hearing. As to the time between his escape from prison and his departure from Eritrea, the applicant argued that his first statement that he had left Eritrea one week after escaping from prison, and his second statement that he had spent two days at his parents’ home in A. during that time, were not contradictory. 25. With regard to the circumstances of his departure from Eritrea, he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by Ethiopian soldiers. It was only logical that he could not make detailed statements about the area, as he had no knowledge of that area and had fled during the night. His most prominent memory related to the fears he had experienced when they lost their way. He could also recall the exact words in Amharic used by the Ethiopian soldiers when they had been apprehended. His account, which revolved around feelings of thirst, hunger and fear, and which mentioned the many thorn bushes in their way and the howling of hyenas, corresponded to his young age and poor level of education. Moreover, the State Secretariat for Migration had wrongfully concluded that there was a contradiction in his statements concerning the smuggler’s reaction when they had lost their way. 26. Lastly, the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit Eritrea. Referring to a letter from UNHCR – the original of which he presented – stating that he was registered in the Hitsas refugee camp in Ethiopia on 8 November 2013, and to the fact that crossing the border to enter Ethiopia by land was always unlawful (see paragraph 49 below), he argued that he had proved his illegal exit from Eritrea. 27. In conclusion, the applicant argued that he was a refugee as defined in section 3 of the Asylum Act, on account of his fear of ill-treatment for having deserted from military service. In the alternative, he claimed to qualify for temporary admission because of “subjective post-flight grounds” (as set out in section 54 of the Asylum Act), notably his illegal exit from Eritrea and his asylum application in Switzerland. Further, in the alternative, he alleged that his removal to Eritrea was neither permitted in the light of Article 3 of the Convention nor reasonable, entitling him to temporary admission to Switzerland. 28. On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. It noted that it was not apparent why the applicant’s age – he was 24 years old at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account, and considered that his two statements concerning the end of his schooling, either in 2005/2006 or 2007/2008, could not be reconciled with each other or with his student identity card, which indicated that he was a student in 2010. The court also considered that the applicant’s statements regarding the time and content of his military training lacked substance. It commented that, even if the applicant had left the military shortly after reporting for duty, he could be expected to provide a detailed and specific account of it, given that he merely had to talk about something which he had experienced in person. Viewing the duration and dates of the applicant’s detention as key elements of his asylum claim, the court noted that a discrepancy of eight months as regards the duration, and the different dates given in the first two hearings as regards the end of the detention, constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself. 29. Referring to its judgment in an earlier case concerning Eritrea, the court reiterated that the only way to exit Eritrea legally was with a valid passport and an additional exit visa, and that the practice concerning the issuance of an exit visa was very restrictive. They were issued to a few people who were considered loyal, in exchange for payment of significant sums. As a rule, children aged 11 or more, men under the age of 54, and women under the age of 47, were not granted exit visas. People attempting to leave the country without authorisation risked their life, as the border guards were under orders to prevent attempts to flee by way of targeted shots (a “shoot to kill” policy), in addition to imposing punishment as set out by law. The Eritrean Government viewed illegal exits as an indication of political opposition, and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures. 30. The Federal Administrative Court noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally. However, the burden of proof did not shift to the authorities, and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure. Considering that his account given at first-instance level was not credible, which also raised doubts about his overall credibility, and that he had not provided comprehensible explanations in his submissions on appeal, the court found that the applicant had failed to credibly demonstrate that he had left Eritrea illegally. 31. The Federal Administrative Court added that the applicant could not rely on the letter from UNHCR stating that he was registered in the Hitsas refugee camp in November 2013, since the conditions in Ethiopian refugee camps were chaotic and, in the case of people of Eritrean origin, there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps. This was supported by the wording of the registration, which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of UNHCR. 32. 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. In particular, the applicant was a young man in good health who had a support network in his hometown, notably his wife and their son, who lived in the same house as his parents. 33. On 19 May 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016.