CAT/C/65/D/811/2017
disregarding all relevant information on the human rights situation in Eritrea and his risk
profile as a young man of age to perform military service who left his country without prior
authorization.
2.6
In view of his lack of financial resources, 5 the complainant requested that his legal
fees be waived. In an interim decision on 22 April 2016, the Federal Administrative Court
rejected his request while specifying that, if an advance payment of 600 Swiss francs was
not made, the appeal would be inadmissible. In reaching this conclusion, the Court made an
early and summary assessment of the evidence to determine what the likely outcome of the
proceedings might be and found that the conclusions reached in the appeal seemed bound to
fail from the outset, as it contained no arguments or evidence likely prima facie to call into
question the merits of the Secretariat decision. In particular, the Court held that the
genuineness of a school certificate of 29 March 2016 and a baptism certificate of 25 March
2016 given as evidence in the appeal appeared questionable. According to information
available to the Court, such documents could be easily forged. In this case, the dates of
issue, i.e. shortly after the contested decision was received, on 1 March 2016, suggested
that they had been produced for the purposes of the case. 6
2.7
As to the complainant’s arguments regarding the violation of the right to be heard in
his mother tongue, the Federal Administrative Court observed that the complainant had
stated that he had well understood the interpreter during earlier hearings and that he had
attested to having understood the content of the minutes by signing all the pages of the said
minutes. For the Court, these minutes seemed clear and complete and therefore sufficient to
make an informed decision. The Court noted that the complainant had referred to many
specific dates; on the other hand, his statements concerning his call-up for military service
and his departure from Eritrea remained particularly evasive, stereotypical and lacking in
detail. The Court then held that the fact that he could not obtain a visa from the Eritrean
authorities did not in itself make it likely that the departure was illegal. Considering that the
legal conditions for a waiver of payment of the legal fees were not met, the Court therefore
rejected the application for full legal aid 7 and invited the complainant to pay 600 Swiss
francs as a guarantee for the estimated legal fees; otherwise the appeal would be declared
inadmissible. On 17 May 2016, for lack of payment, the Court declared the appeal
inadmissible.
2.8
Following this negative decision, the complainant left Switzerland for Germany,
where he applied for asylum. The German authorities requested that he be taken back by
Switzerland under the Dublin II Regulation. The Swiss authorities agreed, and the
complainant was transferred to Switzerland on 15 November 2016.
The complaint
3.1
Given that he has evaded military service and fled after learning that he had been
called up and that his departure from the country was illegal, the complainant would face
serious harm, within the meaning of articles 3 and 16 of the Convention, in the event of his
return to Eritrea.
5
6
7
GE.19-01118
A social assistance certificate dated 9 March 2016 is included in the case file. The certificate indicates
that the complainant has been entirely dependent on the social assistance he has been receiving since
10 June 2014 amounting to 415 Swiss francs. The complainant points out that his lodging and
medical insurance are covered by the Swiss authorities, but that he himself must bear the cost of food,
clothing, toiletries, transport etc.
The complainant explains that, as the State Secretariat for Migration did not pose any questions about
any identity papers other than the passport and identity card, he therefore filed copies of his parents’
identity cards. It was only during the hearing with Caritas he had understood the extent of his duty to
cooperate. He then contacted his family for it to transmit to him his school certificate (dated 29 March
2016) and baptism certificate (dated 25 March 2016).
In order to conclude that the conditions for waiving payment of the legal fees had not been met, the
Federal Administrative Court referred to article 65 al. 1 of the Federal Act on Administrative
Procedure, which states: “Once the appeal is filed, a party who does not have sufficient resources and
whose submissions do not appear to be bound to fail from the outset shall, at the party’s request, be
exempted by the appeal authority, its president or the investigating judge from paying the legal fees.”
3