Decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.26-06658 (E) 040626 040626
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1152/2022*, **
Communication submitted by:
L (represented by counsel, Tarig Hassan)
Alleged victim:
The complainant
State Party:
Switzerland
Date of complaint:
24 August 2022 (initial submission)
Document references:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State Party on 30 August 2022 (not issued
in document form)
Date of adoption of decision:
17 April 2026
Subject matter:
Deportation to Eritrea
Procedural issue:
None
Substantive issue:
Risk to life or risk of torture or other cruel,
inhuman or degrading treatment or punishment,
if deported to country of origin (non-
refoulement)
Article of the Convention:
3
1.1
The complainant is a national of Eritrea born in 1993. He applied for asylum in
Switzerland, but his application was rejected. He is facing deportation to Eritrea and submits
that his deportation would constitute a violation by the State Party of article 3 of the
Convention. The State Party made the declaration provided for in article 22 (1) of the
Convention on 2 December 1986. The complainant is represented by counsel.
1.2
On 30 August 2022, pursuant to article 114 of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, requested the State
Party not to deport the complainant to Eritrea while the communication was being considered
by the Committee.
* Adopted by the Committee at its eighty-fourth session (13 April–1 May 2026).
** The following members of the Committee participated in the examination of the communication:
Jorge Contesse, Lorena González Pinto, Claude Heller, Erdogan Iscan, Peter Vedel Kessing,
Liu Huawen, Maeda Naoko, Moulaye Abdallah Moulaye Abdallah, Ana Racu and Abderrazak
Rouwane.
United Nations
CAT/C/84/D/1152/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
4 June 2026
Original: English
CAT/C/84/D/1152/2022
2
GE.26-06658
1.3
On 2 September 2022, the State Party informed the Committee that, in accordance
with its established procedure, the State Secretariat for Migration had requested the
competent authority to refrain from taking any steps to deport the complainant, so that he
could be assured of remaining in Switzerland pending consideration of his complaint by the
Committee.
Factual background
2.1
In 2007, the complainant dropped out of school while he was in the eighth grade to
take care of his sick sister. A month later, while he was going to meet his friends, he was
picked up on a Saturday by members of the Eritrean army during a raid for the purpose of
military conscription. The military came with their cars and started to ask people for their
permits. Since the complainant was no longer attending school, he did not have a valid permit.
He was thus arrested, together with thirty or forty other people, and was taken to a police
station for two days. Some were able to produce documents and were released, but the
complainant was taken to two different places and eventually to a military camp.1
2.2
The complainant remained in the camp for approximately three months and one week.
The military training consisted mainly of long marches and other physical activities. The
complainant was only allowed to do shooting exercises twice, after about two months. He
made two friends, with whom he planned to escape. They fled in October 2007 and went to
small villages to ask for help from herders. It took the complainant and his friends about three
days to reach their village, and the complainant went into hiding for fear of being picked up
again, sometimes at his mother’s place of origin.2
2.3
The complainant began to organize his departure from the country, which took
approximately nine months. With the help of his family and a smuggler, he managed to
escape to Ethiopia in August 2008, where he stayed for about two years and two months.3
Then, he travelled to the Sudan, where he stayed for about a month, and then headed to Israel,
where he obtained a limited residence permit valid from the beginning of 2011 until June
2015. The complainant spent four and a half years in Israel.4 Since he could no longer renew
his documents and did not want to stay there illegally, he travelled to Rwanda, Uganda,
Kenya, Ethiopia, the Sudan and Libya and then crossed the Mediterranean Sea to arrive in
Italy,5 where he stayed for eight months.6 On 22 February 2017, he travelled to Switzerland,
where one of his sisters lives, and applied for asylum the same day.
2.4
The State Secretariat for Migration interviewed the complainant on 28 February 2017
and 5 April 2018. On 9 July 2019, it rejected his request, citing contradictory statements and
a lack of concrete details regarding his escape from the training camp. At the first hearing,
the complainant declared that he had dropped out of school in eighth grade, but at the second
hearing he claimed that he had completed eighth grade. Also, at the first hearing he declared
that he abandoned the school because he had been forcibly recruited to the military service,
while at the second hearing he declared that he had not started the new school year because
he had to take care of his sick sister. The State Secretariat also noted that the complainant
was not able to clarify when exactly he had arrived in the military camp and for how long he
had stayed there. It then noted that although the complainant had declared that he had
completed two days of shooting sessions with a Kalashnikov, he was not able to tell how
many rounds were in its magazine. It also rejected the complainant’s statement that he did
not have to clean the rifle himself, but that the trainers cleaned the weapons – in the State
Secretariat’s view, cleaning one’s own weapon is one of the central training objectives of
military service that is taught to soldiers from the very beginning. It also did not believe the
complainant’s allegation that soldiers did not have real weapons, but were training with
1 According to the decision of 9 July 2019 by the State Secretariat for Migration, he was taken only to
two places.
2 No further details were provided.
3 No further details were provided.
4 No further details were provided.
5 No further details were provided.
6 According to the decision of 9 July 2019 by the State Secretariat for Migration, he stayed in Italy for
six months.
CAT/C/84/D/1152/2022
GE.26-06658
3
homemade wooden weapons. Hence, it considered that the complainant had not been in
military service and had not received military training.
2.5
The State Secretariat expressed doubts that the complainant had been conscripted into
military service at the age of 14 or 15, as persons are usually liable for military service when
they reach the age of 18 or eleventh grade, which was not the complainant’s case. The State
Secretariat also did not believe that the complainant had deserted, as he did not give any
details: how the opportunity to escape had arisen, how he had prepared and carried out the
escape and how he had been able to leave the troops. This was also openly contradicted by
his statement at the hearing that he had been planning the escape for “a very long time”, only
to immediately state in his next answer that he and his colleague had not actually prepared
anything. The complainant then did not give details as to how he spent the nine months in
hiding, how he had left the country and what measures he had taken during the escape. He
was also not able to describe how he had reached the border when he left the country.
Moreover, his emotional involvement with his descriptions was largely absent, which gave
the impression that he had not experienced the events he was describing. In conclusion, the
State Secretariat did not believe the complainant’s allegation that he had served in the army,
that he had deserted and that he had left the country illegally. However, irrespective of the
question of credibility, it held that the alleged illegal departure alone could not justify a fear
of future asylum-relevant persecution. Also, the mere possibility of being taken into custody
upon return for the purpose of being sent to military training was not considered sufficient
for the assumption of the existence of a real risk.
2.6
Without going into the question as to whether conscription into the Eritrean national
service would constitute a violation of article 4 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights) on the
prohibition of forced labour, the State Secretariat noted that according to the case law of both
the Federal Administrative Court7 and the European Court of Human Rights,8 a “real and
immediate risk” of a future violation of article 4 of the European Convention on Human
Rights must be made credible in the individual case in order to affirm a violation of that
article that has not yet occurred, but threatens to occur in the future. The mere possibility of
a future realization of the danger is therefore not sufficient.
2.7
The State Secretariat further noted that article 4 (3) (b) of the European Convention
on Human Rights explicitly excludes services of a military nature. Compulsory military
service therefore does not fall within the scope of application of that article. However, a
prerequisite for the applicability of this exception is that the work performed in the service is
of a purely military nature. Recourse by the State to forced or compulsory labour in the
context of so-called “military service” for the purpose of achieving economic advantages is
therefore not covered by the exception in article 4 (3) (b) of the European Convention on
Human Rights. In the complainant’s case, however, the State Secretariat was unable to assess
whether there was a real and immediate risk of an imminent violation of article 4 of the
European Convention on Human Rights on the basis of the implausible information that the
complainant had provided in relation to his claims. There were, in principle, many
possibilities regarding the complainant’s personal situation on the ground which could not be
conclusively clarified by the State Secretariat. Therefore, it could not be assumed that in the
complainant’s case there was a real and immediate risk of recruitment and possible future
violation of article 4 of the European Convention on Human Rights.
2.8
The complainant lodged an appeal on 8 August 2019. Then, in a submission on
16 March 2021, he produced a medical report dated 3 March 2021 which mentioned for the
first time that he was homosexual and suffered from anxiety. He declared that in Eritrea, he
had never spoken about his homosexuality with his family, but he had had a secret
relationship for a year with a homosexual friend whom he had known from his childhood.
He explained the reasons that made him conceal his homosexuality during the asylum
proceedings: he was afraid that the Eritrean community in Switzerland would find out and
7 Federal Administrative Court, case No. D-6806/2013, judgment of 18 July 2016, paras. 5.2.6 and
5.3.1.
8 European Court of Human Rights, V.F. v. France (application No. 7196/10), decision of
29 November 2011.
CAT/C/84/D/1152/2022
4
GE.26-06658
harass him; he was in a bad mental state, and in particular was ashamed because in his
community several people had spoken out against LGBTQI+ persons; and he feared being
deported to Eritrea and being ill-treated because of his sexual orientation.
2.9
On 18 July 2022, the Federal Administrative Court dismissed the complainant’s
appeal. The Court was aware that in Eritrea, conscientious objection and desertion are
unjustifiably punished, and stated that the fear of punishment in such cases is justified if the
person concerned has had specific contact with the military authorities. Such contact is
regularly assumed if the person concerned was on active service and deserted. In addition,
any contact with the authorities is relevant when it becomes apparent that the person
concerned was to be recruited, for example in the case of receipt of a marching order. In these
cases, the threat is not only imprisonment but also detention under inhumane conditions and
torture, whereby deserters are regularly subjected to the will of their superiors. The Eritrean
authorities consider desertion to be an expression of hostility to the regime. Accordingly,
persons who have a well-founded fear of being subjected to such punishment may be
recognized as refugees. However, the Court agreed with the State Secretariat’s conclusion
that the alleged conscription into military service, desertion and illegal departure were not
credible because the complainant had not been able to present these claims in a consistent
and substantiated manner.
2.10
The Federal Administrative Court did not accept the complainant’s speculative
statement according to which his declaration that he had finished the 2007 school year did
not exclude the possibility that he could have finished school by dropping out. In addition to
the temporal circumstances, it noted the fact that the complainant had given different reasons
for not continuing school in the statement of reasons and at the hearing. At one hearing, he
had specifically stated that he had not started the new school class because of his sister’s
illness, but in contrast, at the other hearing, he had stated that he had dropped out of eighth
grade because of forced recruitment. The reasons given are thus quite obviously different.
2.11
The Federal Administrative Court considered the fact that the complainant claimed to
have undergone military training, but at the same time did not even have basic knowledge of
weapons, to be an unexplained contradiction. It found unrealistic his explanation that he had
only shot a few times, that the instructors had always cleaned the gun for him and that he had
then simply made a gun out of wood and practised with it. This contradicted the generally
known military procedure of training recruits in the use of weapons, the purpose of which is
to impart elementary military knowledge about the handling of the weapon, its maintenance
and its use. The complainant did not have any knowledge in this regard that would even
remotely suggest that he had ever undergone military training. The Court also noted that the
account of the period spent in the military camp was vague and that he had been unable to
describe the structure or function of the various buildings.
2.12
The Federal Administrative Court then pointed to indications that the complainant had
left the country legally. The complainant had stated unequivocally at the hearing that his
father operated a cross-border trade in goods and could easily travel abroad legally to obtain
the goods.9 Against this background, the Court assumed that these possibilities could also
have existed for the complainant. However, the question of whether he had travelled legally
or illegally could be left open, as it became irrelevant in view of a change in the Court’s
jurisprudence as of January 2017. In a reference judgment,10 the Federal Administrative
Court concluded, after a thorough source-based analysis of the situation, that the previous
practice – according to which an illegal departure in itself led to refugee status – could no
longer be upheld. It could not be assumed with overwhelming probability that a person was
threatened with asylum-relevant persecution solely on the basis of his or her illegal departure
from Eritrea. In order to establish refugee status in the Eritrean context, in addition to the
illegal departure, additional factors were required that could lead to a sharpening of the
profile and thus to a risk of persecution relevant under refugee law. In the present case, the
complainant was unable to credibly demonstrate that he had deserted from military service.
Moreover, there were no concrete indications that in his case – in addition to the alleged
illegal departure – there were additional factors that would have made him appear to be an
9 The complainant’s family owns two clothes shops and a small hotel.
10 Federal Administrative Court, case No. D-7898/2015, judgment of 30 January 2017.
CAT/C/84/D/1152/2022
GE.26-06658
5
unpopular person in the eyes of the Eritrean authorities. Consequently, it could not be
assumed that he feared persecution relevant to refugee law for this reason, as there was no
indication of a threat of persecution based on subjective grounds arising after his fleeing.
2.13
As to the complainant’s alleged homosexuality, raised for the first time on appeal, the
Federal Administrative Court did not find convincing his explanation for not having raised it
earlier: fear and shame in relation to the interpreter and poor mental health. It would have
been expected that he would at least have been able to open up to his female legal
representative and that the corresponding arguments would have been made at the latest in
the complaint. Furthermore, his homosexuality appeared to be at least doubtful in the light of
the other statements on record. Particularly, in connection with the alleged stay of several
months in the military camp, in cramped conditions with other young men and with only
rudimentary possibilities of washing and showering, naked in public in the river, it would
have been expected for the complainant to have at least hinted at corresponding remarks,
feelings or fears. The Court also observed that in the medical report of his family doctor, it
is stated, without further specifics, that “the patient is gay and fears exclusion in his home
country”. There was no further substantiation of the alleged homosexuality. Given the facts
of the case, this must be regarded as an afterthought and thus as implausible, although it can
be left open. On the basis of the case file, the mere fact that the complainant claimed to his
family doctor that he was homosexual was insufficient to establish persecution relevant to
asylum.
2.14
The Federal Administrative Court admitted that homosexuality is forbidden in Eritrea
and can be punished by up to several years in prison. However, the legal practice is unclear,
and the Court has not yet ruled on the collective persecution of homosexuals in Eritrea. It
thus considered that the necessary conditions – targeted and intensive persecution measures
directed against the collective, which are sufficiently dense and go beyond what other parts
of the population have to put up with – were not fulfilled. It was therefore not sufficient to
prove or at least credibly demonstrate mere affiliation with the group of homosexuals in
Eritrea in order to justify refugee status. Rather, an individual, concrete and subjectively and
objectively justified fear of disadvantages that are significant under refugee law must be
made credible or proven. However, the Court held that the corresponding circumstances did
not exist in the complainant’s case, even if the asserted homosexuality was credible.
2.15
Lastly, the Federal Administrative Court recalled that the question of the admissibility
of the execution of a deportation order in the case of an impending enlistment in the Eritrean
national service had been clarified in a landmark ruling where the Court had examined and
affirmed the admissibility of the execution of deportation both from the perspective of the
prohibition of forced labour and from the perspective of the prohibition of torture and
inhuman and degrading treatment.11 Therefore, even a credible threat of being called up for
military service – which could not be assumed on the basis of the implausible statements
made by the complainant regarding the alleged desertion and illegal departure – does not
prevent the deportation to Eritrea from being permissible. The Court thus concluded that in
the absence of a sufficiently concrete threat, the threat of enlistment in the Eritrean national
service does not generally lead to a finding that execution of the removal order would be
unreasonable.12
Complaint
3.1
The complainant claims that his deportation to Eritrea would constitute a violation of
his rights under article 3 of the Convention. He refers to the human rights situation in the
country and submits that he is a deserter, that he left the country illegally and that he is
homosexual. He thus seriously fears that he will be arrested and detained if returned to
Eritrea, whereupon he is likely to face torture, imprisonment and inhuman treatment.
3.2
The complainant contests the way in which the Swiss authorities examined his
situation. The inconsistencies in his statements were due to the interview taking place 10
years after his escape. The asylum authorities did not take into account the fact that he was
11 Federal Administrative Court, case No. E-5022/2017, judgment of 10 July 2018, para. 6.1.5.2.
12 Ibid., para. 6.2.
CAT/C/84/D/1152/2022
6
GE.26-06658
not even 15 years old at the time of the events, so he could not be expected to remember all
the details and the exact dates. Moreover, he was taken to three different locations before
arriving at the military camp.13 Therefore, it is plausible that he did not know the exact date
on which he reached the camp.
3.3
The complainant asserts that the Swiss authorities relied too heavily on the screening
interview, which is only of a summary nature and therefore the statements made during it can
only be attributed a limited evidentiary value. The complainant considers that he was able to
explain the contradictions regarding his schooling. However, the Federal Administrative
Court justified what it considered to be implausibility with linguistic technicalities, which
can easily be attributed to the translation. The complainant stated that he dropped out of
school because of his sister and was unable to resume school and graduate due to forced
recruitment. Consequently, he did not make contradictory statements.
3.4
The complainant considers that he provided very concrete, detailed and differentiated
descriptions and gave the impression that he had experienced what he was describing. The
Swiss authorities tried to deduce from his lack of knowledge about the Kalashnikov that he
had never been in the military. In doing so, they ignored the country-specific circumstances
and projected their own ideas of military recruitment procedures onto the circumstances of
the complainant’s case. The Eritrean military service is not comparable to the Swiss military
service. The complainant was forcibly recruited only for three months before he fled, so it is
quite realistic that he only had to carry out shooting exercises a few times during that period.
It is also understandable that, 10 years later, he does not know how many shots are in a
magazine, how to disassemble a weapon or how to clean it.
3.5
The complainant claims that overall, the Federal Administrative Court failed to prove
that he was not recruited. In particular, the allegation that forced recruitment is only
conducted after the age of 18 contradicts the known country information. He also considers
that it is readily understandable that he could not plan his escape in detail, as he did not know
the area. He fled with two people and relied on them.
3.6
Finally, the complainant claims that the Federal Administrative Court lacks a basic
understanding of the difficulties faced by LGBTQI+ persons. It is unrealistic to assume that
just because the legal representative is a woman, a person can come out without problems,
after a lifetime of hiding his sexual orientation. The complainant explained that since he
comes from an environment where homosexuality is criminalized, it was difficult for him to
come out without any fear. He had always experienced rejection towards LGBTQI+ persons
in the Eritrean community. He was afraid that this would become known in Switzerland and
that he would be ostracized. He was also afraid of imprisonment in Eritrea in case of
deportation, if it became known. Furthermore, the Court’s statements that, since he spent a
lot of time with men and washed with them during his military training, he should have
expressed homosexual feelings, demonstrated a complete misunderstanding of
homosexuality by the Swiss authorities. The complainant declares that he is homosexual and
that the Federal Administrative Court did not prove otherwise. He considers that he has
presented his arguments in a credible manner that is free of contradictions and is coherent,
logical, realistic and detailed.
State Party’s observations on the merits
4.1
On 16 May 2023, the State Party submitted its observations on the merits. It first
describes the Swiss authorities’ practice of processing asylum applications from Eritrean
nationals.
4.2
Since January 2017, the Federal Administrative Court has rendered three landmark
decisions regarding illegal departures from Eritrea.14 As established in these decisions, and
under the Asylum Act and the practice of the State Secretariat for Migration and of the
Federal Administrative Court, refusal to serve and desertion are not sufficient, in themselves,
13 When presenting the facts in his communication to the Committee, the complainant mentioned a total
of three locations, not four.
14 Federal Administrative Court: case No. D-7898/2015, judgment of 30 January 2017; case No. D-
2311/2016, judgment of 17 August 2017; and case No. E-5022/2017, judgment of 10 July 2018.
CAT/C/84/D/1152/2022
GE.26-06658
7
to justify recognition as a refugee. However, an asylum-seeker must be recognized as a
refugee if the refusal to serve or the desertion involves persecution within the meaning of the
Asylum Act. If the examination of an individual case reveals that the punishment serves not
only to enforce the person’s military obligations but also reveals that the person is considered
a political opponent who risks being disproportionately punished and treated inhumanely,
there is relevant persecution within the meaning of the Asylum Act.
4.3
The Federal Administrative Court found that refusal to serve and desertion are
severely punished in Eritrea. The punishment imposed is generally accompanied by
imprisonment in inhumane conditions, and often torture, since desertion and refusal to serve
are considered a manifestation of opposition to the regime; as such, this punishment
constitutes persecution, and a well-founded fear of being exposed to it leads to the recognition
of refugee status. However, such a fear is only well founded if the person concerned has
already had specific contact with the military authority or another authority, insofar as this
contact may give rise to an expectation of imminent recruitment, such as following the receipt
of a summons from the army. The mere possibility that a summons may be sent to the person
in the near future is not sufficient. Furthermore, the mere fact of eventually having to perform
military service is not decisive from the point of view of the Asylum Act.
4.4
Since June 2016, the State Secretariat for Migration has considered that the mere fact
of having left Eritrea illegally does not expose the person concerned, in the event of return to
their country, to persecution within the meaning of the Asylum Act. Therefore, Eritrean
nationals who have not yet been called up for national military service, are exempt from it or
have been released from it are no longer recognized as refugees for this reason alone.15
4.5
The State Party then reiterates the arguments made by the Swiss asylum authorities.
It observes that the complainant does not claim to have been tortured or ill-treated, nor does
he claim to have been politically active in Eritrea or outside his country of origin. It
acknowledges that the human rights situation in Eritrea is worrying in many respects,16 but
points out that the general situation does not as such constitute sufficient reason for
determining that a particular person would be in danger of being subjected to torture on return
to that country. Therefore, additional grounds must exist.
4.6
The State Party notes that a forced return of the complainant to Eritrea is not possible,
as Switzerland has not forcibly returned any Eritrean nationals to Eritrea since the country’s
independence. The State Party emphasizes that the consideration of the present case is limited
to the risks incurred by the complainant if he voluntarily complies with his obligation to
return, provided that he agrees to report to a consular representation of Eritrea abroad for the
issuance of a passport or laissez-passer.
4.7
With regard to the inconsistencies in his account which the complainant explains
mainly by the passage of time, since the hearings took place 10 years after the events, the
State Party contends that while such a long period of time may explain a certain lack of
precision, it cannot justify the complete absence of detail in his account of what he claims to
have experienced. As noted by both the State Secretariat for Migration and the Federal
Administrative Court, the complainant failed to provide detailed descriptions of the period
spent in the military camp, of the circumstances surrounding his desertion or of the nine-
month period prior to his departure from Eritrea. Even in his communication to the
Committee, the presentation of the facts between the alleged recruitment and the departure
to Israel does not contain any supporting evidence, which confirms the assessment of the
domestic authorities. In addition, he attempts to resolve the contradictions regarding the end
of his schooling by adding a third version, according to which he first left school before the
end of eighth grade due to his sister’s health and was then recruited a year later.
4.8
As regards the complainant’s homosexuality, and contrary to his allegations, the
Federal Administrative Court did not attach particular importance to the fact that it was raised
only at a very late stage, but, on the contrary, considered that this was merely an assertion by
the complainant. The reasons given for his failure to reveal it earlier in the process – fear and
shame in relation to the interpreter and poor mental health – were not convincing, especially
15 Berhane v. Switzerland (CAT/C/76/D/983/2020), para. 4.10.
16 See A/HRC/50/20.
CAT/C/84/D/1152/2022
8
GE.26-06658
since he had not mentioned his sexual orientation in his appeal of 8 August 2019 either.
Furthermore, the homosexuality invoked at some point after he had introduced his appeal
seemed doubtful in light of the other statements made during the hearings. One would have
expected the complainant to at least allude to statements, feelings or fears on this subject,
particularly in relation to the alleged stay of about three months in the military camp, the
restricted living conditions among young recruits and the rudimentary possibilities for
washing and showering, naked in public in the river.
4.9
The State Party notes that the medical report from his family doctor states, without
further concrete explanation, that “the patient is gay and fears exclusion in his country of
origin”. While the State Party is aware that homosexuality is punishable in Eritrea, it contends
that the legal practice is unknown and there are no signs of collective persecution of the group
of homosexuals.
4.10
The State Party submits that, contrary to what he claims, the complainant did not
substantiate his assertion that he is homosexual. On the contrary, the explanations provided
in his letter of 16 March 2021 to the Federal Administrative Court are essentially limited to
general explanations about his fears regarding the treatment of homosexuals in Eritrea. Only
the assertion that he had a relationship for about a year in Eritrea with another boy he knew
from school is a concrete statement. It should be noted, however, that the complainant left
Eritrea on 14 August 2008, at the age of fifteen and a half, and has not returned since.
Furthermore, after his departure, he stayed for long periods of time in countries known to be
homophobic, such as Uganda. For all these reasons, the complainant’s return to Eritrea is not
contrary to the Convention solely on the grounds of his sexual orientation.
4.11
The State Party concludes that the complainant has not demonstrated that there are
serious grounds for fearing that he would be exposed to a foreseeable, present, personal and
real risk of being subjected to torture or cruel, inhuman or degrading treatment if he were
returned to Eritrea.
Complainant’s comments on the State Party’s observations on the merits
5.1
On 18 March 2024, the complainant submitted comments in which he contested the
State Party’s arguments. As regards the alleged inconsistencies in his statements, he considers
that the findings were based on an overly restrictive handling of the rule of evidence
according to the Asylum Act and asserts that his credible statements outweigh any
inconsistencies.
5.2
The complainant does not agree with the new jurisprudence of the Federal
Administrative Court, according to which Eritrean nationals no longer risk punishment in the
form of detention and torture or ill-treatment if they leave Eritrea illegally. He claims that all
the reports issued by the United Nations and other international organizations quoted in the
Court’s judgment demonstrate that Eritreans caught while trying to leave Eritrea illegally are
detained, ill-treated and/or handed over for conscription afterwards. The same applies to
individuals who have been forcibly returned to Eritrea.17
5.3
The complainant insists that he faces an imminent and real risk of being subjected to
torture or other cruel and degrading treatment if he is forced to return to Eritrea because he
fled the current regime illegally. He therefore appears as an enemy of the Eritrean regime.
The Eritrean authorities at the airport in Asmara will immediately note his illegal exit and
earlier desertion, as he has no passport and no exit visa and is of draft age. He would therefore
be apprehended at the airport and subjected to interrogation and detention. As illegal exit is
regarded by the Eritrean authorities as political dissent, the complainant would be harshly
punished and would be in danger of being subjected to torture.
17 The complainant refers to reports issued in 2015.
CAT/C/84/D/1152/2022
GE.26-06658
9
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it
shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. The Committee notes that, in the
present case, the State Party has not contested that the complainant has exhausted all available
domestic remedies, nor has it contested the admissibility of the complaint.
6.3
In the absence of any other obstacle to the admissibility of the present communication,
the Committee proceeds with its consideration of the merits of the claims submitted by the
complainant under article 3 of the Convention.
Consideration of the merits
7.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the communication in the light of all the information made available to it by the parties.
7.2
In the present case, the issue before the Committee is whether the return of the
complainant to Eritrea would constitute a violation of the State Party’s obligation under
article 3 of the Convention not to expel or to return (refouler) a person to another State where
there are grounds for believing that he or she would be in danger of being subjected to torture.
7.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainant would be personally in danger of being subjected to torture upon return to
Eritrea. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights. However, the
Committee recalls that the aim of such determination is to establish whether the individual
concerned would be personally at a foreseeable, present and real risk of being subjected to
torture in the country to which he or she would be returned. It follows that the existence of a
consistent pattern of gross, flagrant or mass violations of human rights in a country does not
as such constitute sufficient reason for determining that a particular person would be in
danger of being subjected to torture on return to that country; additional grounds must be
adduced to show that the individual concerned would be personally at risk.
7.4
The Committee recalls its general comment No. 4 (2017), according to which the risk
of torture must be assessed on grounds that go beyond mere theory or suspicion. Although
the risk does not have to be shown to be “highly probable”, the burden of proof generally
falls on the complainant, who must present an arguable case establishing that he or she faces
a foreseeable, real and personal risk.18 The Committee recalls that it gives considerable
weight to findings of fact made by organs of the State Party concerned, while, at the same
time, it is not bound by such findings and instead has the power, under article 22 (4) of the
Convention, to make a free assessment of the information available to it, taking into account
all the circumstances relevant to each case.19
7.5
In the present case, the Committee notes the complainant’s claims that he would be in
danger of facing treatment contrary to article 3 of the Convention if returned to Eritrea, as he
would risk detention and acts of torture and ill-treatment because he is a deserter, he left the
country illegally and he is homosexual. The Committee also notes the State Party’s reference
to the contradictions that the asylum authorities identified in the complainant’s account and
their conclusion that the complainant had failed to plausibly argue that he had been drafted
18 See, inter alia, Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4; and A.R. v. Netherlands
(CAT/C/31/D/203/2002), para. 7.3.
19 See the Committee’s general comment No. 4 (2017), paras. 11, 39 and 50.
CAT/C/84/D/1152/2022
10
GE.26-06658
into the army at the age of 14 or 15, that he had deserted, that he had left the country illegally
and that he was homosexual. The Committee notes that the Swiss authorities duly examined
the complainant’s allegations in support of his request for asylum, but revealed
inconsistencies and expressed doubts as to their credibility.
7.6
In that regard, the State Secretariat for Migration noted that the complainant had given
conflicting declarations as to why he had dropped out of school, and had been unable to
explain when he arrived in the military camp and how long he stayed there. It also noted that
the complainant had not been able to prove that he had been conscripted in the military and
had received military training. He had also been unable to give a detailed account of his
desertion from the military camp, of his nine-month period of hiding thereafter and of his
leaving the country. The Committee notes that the complainant has not provided a convincing
explanation for these discrepancies – either to the Swiss asylum authorities or to the
Committee.
7.7
The Committee notes that the Swiss authorities have called into question the
complainant’s alleged homosexuality. They have, however, considered the risk in the event
that the complainant is indeed homosexual, and have determined that mere affiliation with
the group of homosexuals in Eritrea could not justify refugee status in the absence of
individual and concrete risks. In that connection, the Committee observes that while the
complainant raised the matter of his homosexuality in his original communication to the
Committee, he did not refer to his homosexuality at all in his comments on the State Party’s
observations. The Committee also notes, from the English translation of the minutes of the
hearing before the State Secretariat for Migration of 28 February 2017, that when asked to
clarify the mention in the file that he had a wife, the complainant replied: “I have a child with
her from a previous relationship. But we are not together.” The complainant made no mention
of this relationship in his communication to the Committee.
7.8
With respect to the argument relating to the worsening of the human rights situation
in Eritrea, the Committee recalls that the occurrence of human rights violations in the
complainant’s country of origin is not, of itself, sufficient for it to conclude that the
complainant is personally at risk of being tortured there. The Committee notes that the
complainant had ample opportunity to provide the State Secretariat for Migration and the
Federal Administrative Court with supporting evidence and more information about his
claims during the asylum proceedings. The Committee considers that the information in the
file does not allow it to conclude that the decision of the domestic authorities was arbitrary
in finding that the complainant would not face a real, foreseeable, personal and present risk
of being subjected to torture if he were to be deported to Eritrea or that the authorities of the
State Party failed to conduct a proper investigation into his allegations.20
7.9
The Committee considers that the fact that the complainant may possibly be
confronted with serious difficulties upon return by itself does not necessarily mean that he
would be in a special situation of vulnerability – and in a situation significantly different from
that of many other Eritrean refugees – such as to conclude that his return to Eritrea would
constitute a violation of the State Party’s obligations under article 3 of the Convention. In
particular, the Committee observes that the Swiss authorities examined the situation in Eritrea
of citizens being drafted into the army. However, it notes that while this allegation has not
been contested by the State Party’s authorities, they noted that the complainant had not
produced substantiated arguments showing that he was personally at risk of conscription. In
that sense, the Committee notes that the complainant has not demonstrated that he was
conscripted before leaving the country and did not produce any evidence to show that he is
personally being targeted for conscription.
8.
On the basis of the above, and in the light of the material before it, including on the
general situation of human rights in Eritrea, the Committee considers that the complainant
has not provided sufficient evidence to enable it to conclude that his deportation to his
country of origin would expose him to a foreseeable, personal, present and real risk of being
subjected to treatment contrary to article 3 of the Convention.
20 S.A. v. Switzerland (CAT/C/76/D/1017/2020), para. 7.8; T.B. v. Switzerland (CAT/C/73/D/862/2018),
para. 7.11; and K.M. v. Switzerland (CAT/C/71/D/865/2018), para. 7.9.
CAT/C/84/D/1152/2022
GE.26-06658
11
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the
return of the complainant to Eritrea would not constitute a breach of article 3 of the
Convention by the State Party.