CAT/C/71/D/900/2018
State Secretariat for Migration. It noted that “refusal to serve and desertion are indeed
severely punished in Eritrea. The penalty that is imposed is generally accompanied by
imprisonment in inhuman conditions, and often by torture, since desertion and refusal to
serve are considered acts of protest against the regime; as such, this penalty constitutes a form
of persecution, and a well-founded fear of being exposed to it leads to recognition as a
refugee.” However, the Court concluded that in this case, “there was no evidence that the
person concerned was actually at risk of being enlisted”.
2.8
The Federal Administrative Court mistakenly noted that the complainant belonged to
the Tigrinya ethnic group and that he had left school at the age of 15 years. These details are
not without importance, as the first would explain any misunderstandings that might have
arisen with the Tigrinya interpreter, and the second would make it all the more plausible that
the complainant was at risk of being conscripted into the military when he was still a minor.
2.9
The complainant declares 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 complaint
3.1
The complainant argues that the State party would be in breach of its obligations under
articles 1 and 3 of the Convention if it returned him to Eritrea, where he would be subjected
to acts of torture by the authorities. The Federal Administrative Court did not take into
account that ill-treatment and abuse are so widespread within both the military and civilian
sectors of the national service that all members of the service face a real and serious risk of
being subjected to such abuse. The Court’s argument – that is, that the complainant’s personal
circumstances did not place him at real risk of being subjected to treatment that is prohibited
by international law – is not convincing. For example, according to the Court, it was not
plausible that soldiers seeking to recruit young people would ask them to present themselves
with their parents. Yet it is not hard to imagine the military authorities requesting that the
complainant be accompanied by his parents on the grounds that he was still a minor. The
Court did not confirm that the complainant’s account was implausible and inconsistent, as
argued by the State Secretariat for Migration in its decision of 16 January 2018. It would
appear, therefore, that the Court did not find this argument convincing. Furthermore, the
complainant’s statements are actually consistent with the practice of the Eritrean authorities
in this regard. Although most recruits are at least 18 years old, there are also some 16-yearolds stationed in Sawa, many of whom are young Eritreans who have dropped out of school,
like the complainant. 2 According to the International Labour Organization, it has been
confirmed in various reports by non-governmental organizations that almost one third of new
conscripts in military training centres are under 18 years old.3
3.2
By deciding on the complainant’s asylum application after he had reached the age of
majority, the State Secretariat for Migration circumvented the principles that apply to the
assessment of evidence in connection with asylum applications submitted by minors. If it had
dealt with his case as promptly as required by the principle of the best interests of the child,
it would have (and easily could have) reached a decision before he became an adult, given
that he submitted the application at the age of 17 years and 1 month. In those circumstances,
it would have been more likely to give him the benefit of the doubt, in view of the fact that
he was not only a minor but also unaccompanied.
3.3
This point is all the more important as the complainant’s two hearings were conducted
not in Saho, his mother tongue, but in Tigrinya, a language that he had learned only at school,
and the hearings took place more than 18 months apart. This could explain any omissions
and inconsistencies or contradictions of which he has been accused. In any case, the alleged
2
3
GE.21-13784
Swiss Refugee Council, “Érythrée: recrutement de mineurs” (Eritrea: recruitment of minors) (21
January 2015), p. 3.
International Labour Organization, Individual Case (CAS) – Discussion: 2015, Publication: 104th
ILC session (2015), available at
http://www.ilo.org/dyn/normlex/fr/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:324
1910.
3