Y (represented by counsel, Rêzan Zehrê) v. Switzerland

Y (represented by counsel, Rêzan Zehrê) v. Switzerland

Document source:

UN Committee Against Torture (CAT)
Date:
28 January 2022

In this section

The complainant is Y, a national of Eritrea born on 5 November 1998. His application
for asylum in Switzerland was rejected, and he is now facing expulsion to Eritrea. He claims
that his expulsion would constitute a violation by the State party of articles 3 and 16 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 of Tigrinya ethnicity and Catholic faith and was born in Hadish
Adi, Eritrea. His brother has been granted asylum in Switzerland, where he resides. The
complainant has another brother who has also applied for asylum in Switzerland. These two
brothers have deserted the Eritrean armed forces.

The complainant objected to the regime’s policies, including the requirement to serve
in the army for an indefinite period. In October 2014, for fear of being rounded up during a
police raid and detained again, the complainant left Eritrea illegally. His trip was financed by
the proceeds of the sale of cattle belonging to his parents and by savings from his brother,
who was staying in Juba.

The complainant argued,
inter alia, that, by leaving Eritrea illegally, he had evaded the recruitment of which the local
authorities had informed his mother, following his exclusion from school. Consequently, he
would be considered a draft evader if he returned to Eritrea. In addition, two of his brothers
were deserters. There are therefore a number of factors, in addition to his illegal departure,
that would make him appear as persona non grata with the Eritrean authorities. He also argued
that, owing to his illegal departure, he would face treatment prohibited, inter alia, under
article 3 of the Convention upon his return. Moreover, the national service, which is of
indefinite duration, is tantamount to enslavement or forced labour.

The complainant argues that the State party would be in breach of its obligations under
articles 3 and 16 of the Convention if it deported him to Eritrea. Having left Eritrea illegally
and having since reached the age for enlistment, he would be punished and would face a real
and imminent risk of being subjected to inhuman and degrading treatment that would in turn
place his physical and psychological integrity in serious danger. If deported, he would be at
risk of being reimprisoned in inhumane conditions and subjected to torture and ill-treatment
and then forced to enlist in the army.

As to the plausibility of his illegal departure, for many years, permission to leave
Eritrea has, in practice, been given only to a very small number of people considered to be
loyal to the regime, in exchange for a large sum of money. A valid passport, an exit visa and
an international health certificate are required to leave Eritrea legally. Owing to the
restrictions on the issuance of exit visas, it is generally very difficult for ordinary Eritrean
citizens to leave the country legally. For these reasons, deserters and draft evaders like the
complainant, who has never had a passport and did not qualify for an exit visa, tend to leave
the country illegally via the Sudan or Ethiopia.

Furthermore, the complainant may be forced to perform military service for an
indefinite period which amounts to forced labour contrary to his fundamental rights. National
service is of unlimited duration since 2002, and torture is a widespread practice during
Eritrean national service.

The Committee considers the complainant’s other claims under articles 3 and 16 of
the Convention to be sufficiently substantiated for the purpose of admissibility and thus
declares them admissible, and proceeds to their examination on the merits.

In the light of the foregoing, the Committee, acting under article 22 (7) of the
Convention, concludes that the return of the complainant to Eritrea would constitute a
violation by the State party of article 3 of the Convention. Having reached that conclusion,
the Committee does not consider it necessary to examine the claim made under article 16 of
the Convention. The Committee is of the view that, in accordance with article 3 of the Convention, the
State party has an obligation to refrain from forcibly returning the complainant to Eritrea.

Title

Y (represented by counsel, Rêzan Zehrê) v. Switzerland

Document source

UN Committee Against Torture (CAT)

Date

28 January 2022

Document number

CAT/C/72/D/916/2019

Document type

Case Law

Collection

Case Law

Legal instruments

1984 Convention against Torture (CAT)

Country

Switzerland

Eritrea

Keywords

Convention against Torture (CAT)

Deportation / Forcible return

Exhaustion of domestic remedies

Torture

Region

Europe

Protected persons

Asylum-seekers

Population groups

Eritreans

Disclaimer:

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Y (represented by counsel, Rêzan Zehrê) v. Switzerland

y_represented_by_counsel_rezan_zehre_v._switzerland.pdf

In this section

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Conclusion

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