CAT/C/65/D/811/2017
2010 with a view to conscripting him into the army. He was detained in a metal freight
container with about 70 to 80 other persons. He did not suffer any physical violence, but the
conditions inside the container were appalling: it was extremely hot; there was not enough
room to sleep; the inmates were given only bread to eat once a day; and they could go out
only in the evening to relieve themselves. The complainant managed to escape with other
prisoners one evening while they were outside to relieve themselves. The guards opened
fire but, as there were many fugitives, they were unable to stop them.
2.2
The complainant returned to his home on 10 February 2010 and began living in
hiding in the mountains. On 20 June 2010, after learning from his cousin that he was being
summoned by the local authorities to be recruited by the army, he left Eritrea illegally for
the Sudan on foot, where he stayed for three years and eight months, first in Kassala, then
in the Shagarab refugee camp of the Office of the United Nations High Commissioner for
Refugees (UNHCR). On 3 March 2014, the complainant left the Sudan and undertook a
high-risk journey to Europe, crossing the desert into Libya and continuing by boat to Italy.
He arrived in Switzerland on 22 May 2014 and applied for asylum the same day.
2.3
On 5 June 2014, the complainant had a first, summary hearing with the State
Secretariat for Migration on his personal details. As the Swiss asylum system does not
provide for free legal representation, the complainant, who is destitute, did not have the
benefit of legal counsel. Nor was the complainant represented by counsel at his second
hearing on 17 February 2016. Despite indications that his mother tongue was Bilen, the
Secretariat conducted the hearing in Tigrinya. 2
2.4
On 1 March 2016, the State Secretariat for Migration rejected his application for
asylum on the grounds that the reasons he cited for leaving and the claim that he left Eritrea
illegally were implausible. Citing the legal obligation for any asylum seeker to collaborate,
in particular by giving one’s name, with supporting documents and identity papers, the
Secretariat noted that the complainant’s identity had not been established, as he had not
submitted any such documents.3 The Secretariat also noted that, in the first hearing, the
complainant had stated that he had been released from prison on 9 February 2010 whereas
during his second hearing he had alleged that, on that date, he had escaped with other
inmates. For the State Secretariat for Migration, a discrepancy of this kind in such a central
part of his story discredited it. The Secretariat then noted inconsistencies in the
complainant’s story 4 and found that he had never been arrested or imprisoned by the
Eritrean authorities, that his illegal departure was not credible and that the probability of his
being required in the future to perform military service in Eritrea could not on its own
justify granting refugee status given that such an obligation was imposed on every Eritrean
citizen without discrimination.
2.5
Following the decision of the State Secretariat for Migration, the complainant
appealed to the free legal advice office of Caritas in Fribourg. In an appeal to the Federal
Administrative Court dated 4 April 2016, the complainant noted that, in the event of return
to Eritrea, he would be at risk of being subjected to torture because of his refusal to serve in
the army and his illegal departure from the country. Among other things, he asserted that
his right to be heard had been violated since the hearings had been held in Tigrinya and not
Bilen, his mother tongue. He also stated that the first instance authority had not properly
assessed the risk of severe persecution he would face if he were to return, in particular by
2
3
4
2
In the minutes of the hearing, the Swiss authorities claimed that the complainant had declared during
the first hearing that his command of Tigrinya was sufficient. The complainant denies this assertion,
however, and points out that he had insisted that the second hearing be held in his language, Bilen.
The State Secretariat for Migration noted that the complainant had simply stated that he had never
possessed any documents while the case file did not show that he had taken any steps to obtain such
documents.
The State Secretariat for Migration considered that after eight years of schooling it was not credible
that he did not know how to read Tigrinya; that it was illogical, to say the least, that the authorities,
after his alleged escape from prison in February 2010, limited themselves to a mere summons several
months later, without taking further action; that it defied all logic that the complainant should not be
able to better describe his alleged illegal departure from the country, namely a journey on foot of
some 200 km, from Keren to Kassala; and that it was unlikely that he would not have been stopped at
any point by the authorities over such a long distance.
GE.19-01118