CAT/C/71/D/900/2018
contradictions relating to the attempts to find him in Eritrea before his departure are not
decisive in this case and should be considered to be of secondary importance.
3.4
The complainant���s illegal departure from Eritrea constitutes an aggravating factor that
the Federal Administrative Court failed to take into account, in violation of article 3 of the
European Convention on Human Rights. 4 According to the findings of the commission of
inquiry on human rights in Eritrea published in 2016, the use of torture by Eritrean officials
is widespread and systematic in civilian and military detention centres.5 If the complainant is
returned to Eritrea, he does not intend to comply with the Eritrean authorities’ requirement
that he sign the “regret form”, in which he would have to acknowledge that he “regrets having
committed an offence by failing to complete his national service” and that he “is prepared to
accept any appropriate penalty when the time comes”, or to pay the corresponding tax in
order to regularize his military situation. 6 Moreover, he cannot be forced to do so without
there being a violation of his freedom of opinion or even his dignity.
3.5
The position taken by the Federal Administrative Court did not make sense. On the
one hand, the Court recognized that refusal to serve and desertion were severely punished in
Eritrea and that the penalty imposed, which was completely arbitrary or disproportionate,
was generally accompanied by imprisonment in inhuman conditions for an indefinite period
of time, and often by torture that was likely to cause serious physical or psychological harm.
According to the Court, refusal to serve and desertion, as well as the illegal departure that
usually followed, were considered acts of protest against the regime. The penalty in such
cases therefore constituted a form of persecution, and a well-founded fear of being exposed
to it led to recognition as a refugee. On the other hand, strangely, the Court seemed to
consider (based on the assumption that he had fled his country without having had any prior
contact with the military authorities) that he, as a draft evader, would no longer be exposed
to such persecution at the hands of the military authorities if he were to return to Eritrea once
he had turned 18 years old, that is, the official minimum age for enlistment in the army. Yet,
in both these scenarios, what matters is that the complainant is “actually at risk of being
enlisted”.
3.6
The Federal Administrative Court completely overlooked the complainant’s specific
status as someone who fled his country in order to avoid conscription. The complainant has
now reached the official age for compulsory military service, he is not eligible for exemption
therefrom7 and he would almost certainly be identified and arrested as soon as he arrived in
Eritrea. The Court was wrong to conclude that, in the context of compulsory military service,
a young draft evader would not be at risk of torture or slavery upon return to Eritrea. There
is no evidence that Eritreans who return to their country are no longer at risk of being put in
danger or punished, and if there is any doubt, protection should be the priority. 8
3.7
In a judgment on another case, the Federal Administrative Court itself admitted that
it did not have access to reliable sources of information on the human rights situation in
Eritrea, for several reasons, including the lack of quality sources (due to methodological
problems, bias and insufficiency), the fact that Eritrea was a single-party State, the lack of
government transparency, the restrictions on the freedom of expression and movement of
those who worked for foreign missions in Eritrea and the fact that representatives of
international human rights organizations were unable to gain access to the country. 9
Furthermore, in another judgment, the Court declared that forced removals to Eritrea were,
as a general rule, not feasible, and that it had left undecided the question of whether they
4
5
6
7
8
9
4
See, inter alia, European Court of Human Rights, M.O. v. Switzerland (application No. 41282/16),
judgment of 20 June 2017, para. 79.
A/HRC/32/47, para. 39.
See, inter alia, A/HRC/RES/38/15, para. 6 (j).
European Asylum Support Office, Country of Origin Information Report: Eritrea – National Service
and Illegal Exit (November 2016), p. 42.
Here the complainant is quoting remarks made by the former Special Rapporteur on the human rights
of migrants; see Radio Télévision Suisse, “La gestion des réfugiés érythréens par la Suisse critiquée
par l’ONU” (Switzerland criticized by the United Nations for its management of Eritrean refugees),
17 February 2017.
Switzerland, Federal Administrative Court, Reference Judgment D-2311/2016, 17 August 2017.
GE.21-13784