Switzerland – Federal Administrative Court, 18. February 2015, D-5553/2013
| Country of Decision: | Switzerland |
| Country of applicant: | Syria |
| Court name: | Federal Administrative Court, Division IV |
| Date of decision: | 18-02-2015 |
| Citation: | D-5553/2013 |
Headnote:
Even after the introduction of Art. 3 (3) AsylG, the previous legal practice with regard to persons who justify their asylum application by refusing military service or desertion in their home country continues to be valid. Accordingly, a conscientious objection to military service or desertion cannot establish refugee status on its own, only if it is associated with persecution within the meaning of Art. 3 para. 1 AsylG.
Facts:
The complainant is a Syrian citizen of Kurdish ethnicity. According to his own statements, he left his home country for Turkey on 23 September 2010. On 11 March 2011, he entered Switzerland uncontrolled and on the same day applied for asylum at the Basel Reception and Procedure Centre. On 29 March 2011, he was questioned summarily by the then Federal Office for Migration (FOM) and on 4 April 2011, he was thoroughly questioned regarding the reasons for his asylum application. The complainant stated that he had been summoned by al-Malikiyah prior to his departure by the Syrian state secret service Idarat al-Amn as-Siyasi (Political Security Department). Although he was not politically active, he was accused of having organised political meetings at home and was questioned about the political activities of his uncle. The interrogating officer asked the complainant to work as an informer and asked why he had not yet completed his military service. He was released after a two-hour interrogation.
On 23 September 2010, during his absence, the security forces carried out a house search, finding and confiscating books and flags he was keeping for his uncle. For this reason, and because he had neither wanted to continue working as a spy nor to enter military service, he left Syria on the same day. In his submission to the Federal Office of Migration of 13 April 2012, the complainant stated that he was politically active as a member of the Democratic Kurds in Switzerland and had taken part in various demonstrations against the Syrian regime.
By order of 30 August, the Federal Office for Migration rejected the complainant's asylum application but ordered provisional admission to Switzerland on the grounds that it was unreasonable to expect the removal order to be carried out.
Decision & reasoning:
By submission of his legal representative of 2 October 2013, the complainant challenged the order of the Federal Office for Migration before the Federal Administrative Court. The appeal is directed against the rejection of the asylum application, the finding by the Federal Office of Migration that the complainant did not fulfil refugee status, and the order for removal. In doing so, he applied for the revocation of the aforementioned order, the determination of his refugee status and the granting of asylum. The question of the enforcement of the removal order is therefore not the subject of the appeal proceedings. Furthermore, he asserted that in issuing the contested order, the Federal Office for Migration had adopted an outdated practice with regard to the question of the existence of subjective grounds for flight becoming prevalent after asylum-seekers of Syrian origin have left their home countries due to their political involvement in exile.
Anyone applying for asylum must prove or at least substantiate their refugee status. The refugee status is credible if the authority considers its existence to be predominantly probable. In the present case, the asylum application submitted by the complainant on 11 March 2011 was decided by the Federal Office for Migration and Refugees by order of 30 August 2013, whereby Art. 3 (3) AsylG is to be applied. The question arises as to the legal meaning of this provision. The principle that every state has the legitimate right to maintain an army and to oblige its citizens to serve in that army, as well as the conclusion that sanctions provided for in the event of failure to comply with the official duty are also legitimate and therefore in principle not relevant under refugee law, are unanimously recognised by refugee law doctrine and practice in Switzerland. However, these principles do not apply without exceptions. A penalty threatened for failure to comply with the duty to serve constitutes asylum-relevant persecution if the conscript is expecting a penalty due to his conduct which is either discriminatively higher on grounds of Article 3 of the AsylG or disproportionately high in itself.
It is clear from the materials that Art. 3 (3) AsylG is not applicable if the person concerned is or must fear to be exposed to serious disadvantages due to his/her race, religion, nationality, membership of a certain social group or due to his/her political views due to a conscientious objection to military service or desertion. This is common practice of both the Federal Administrative Court and the Federal Office of Migration. However, in the course of the parliamentary debates, the wording of Art. 3 (3) AsylG underwent two adaptations compared to the Federal Council's draft. On the one hand, this was done by deleting the word "only" and, on the other hand, by adding a reservation with regard to the 1951 Refugee Convention.
This gives rise to the question whether and to what extent the meaning of the provision has been altered. The impetus for the introduction of Art. 3 (3) AsylG was given by the political intention to lower the number of Eritrean nationals which was perceived to be too high, in particular those applications for asylum on grounds of conscientious objection or desertion. However, this objective was not to be achieved by a substantive change in the definition of refugees, but - in so far as the Federal Council's proposal was adopted - by clarifying the current legal situation by law. The recurring reference to an increase in asylum applications by persons who would claim conscientious objection or desertion as the sole ground for asylum shows that the amendment is also intended to have a deterrent effect on such applications.
On the other hand, the purpose of the amendment is not to restrict the definition of refugees within the meaning of Art. 3 AsylG. Rather, the reservation of compliance with the 1951 Refugee Convention is intended to ensure the continuation of the previous practice. As a result of the interpretation, it is thus apparent that after the introduction of Art. 3 (3) AsylG, the previous legal practice with regard to persons who justify their asylum application by refusing military service or desertion in their home state is still valid. Accordingly, a conscientious objection to military service or desertion cannot establish refugee status on its own, only if it is associated with persecution within the meaning of Art. 3 (1) AsylG, in other words if the person concerned, for the reasons stated in this provision (race, religion, nationality, membership of a particular social group or political opinion), has to expect treatment because of his conscientious objection to military service or desertion which amounts to serious disadvantages in accordance with Art. 3 (2) AsylG.
In the examination of refugee status, the persecution situation existing at the time of departure of the asylum seeker(s) is of primary interest. However, according to doctrine and practice, the situation at risk at the time of the asylum decision is taken into account if the situation in the home country has changed significantly in favour of or to the detriment of the asylum-seeking person(s) between departure and asylum decision. The uncertainty of the political situation in Syria is of considerable importance from the point of view of asylum law, insofar as the question arises as to what extent asylum reasons lying in the past can be assessed in view of the constant changes both from the point of view of the current situation and of possible future developments.
In the contested decision of 30 August 2013, the FOM considered neither the alleged threat by the Syrian secret service Idarat al-Amn as-Siyasi nor the obligation to perform his military service to be credible. Meanwhile, the Federal Office, within the framework of the decision of 8 January 2014, by which it reversed paragraphs 4-7 of the decision of 30 August 2013 and stated that the execution of the removal order was inadmissible, recognised that the complainant - implicitly by means of the Syrian documents submitted within the framework of the complaint proceedings - had been able to substantiate that he had avoided the military service obligation by leaving Syria. The complainant had provided contradictory information on the question of where he had been at the time when he had learned of the house search. However, it must also be stated that this contradiction, to the extent that it was apparent, was the only discrepancy in the statements recorded by the complainant. Moreover, it turns out that the complainant's further statements on his grounds for asylum were consistently detailed, plausible and without significant contradictions. In the sense of an overall consideration of all credibility indications, the threat asserted by the complainant by the secret service Idarat al-Amn as-Siyasi therefore appears - contrary to the assessment of the lower court - to be predominantly credible.
Since credibility is established, the relevance of these respective aspects of persecution under asylum law must be examined. A large number of reports show that since the outbreak of the conflict in March 2011, the Syrian state security forces have proceeded with the greatest brutality and ruthlessness against actual or alleged opponents of the regime. It should be noted that the complainant belongs to the Kurdish ethnic group, comes from a family active in the opposition movement and has already attracted the attention of the Syrian state security forces in the past. It should also be noted that, after he had already been called up for military service but had postponed its commencement, he was made aware of his military service obligation by the Syrian authorities in the period immediately prior to his departure and left the country only a few months before the outbreak of the civil war. In view of this personal background and the Syrian regime's approach mentioned above, it is very likely that the complainant's refusal to serve will be perceived by the Syrian authorities as an expression of hostility to the regime. It can therefore be assumed that the punishment threatening the complainant would not only serve to secure the military service, which, according to practice to be confirmed - always subject to the conditions of the rule of law and in conformity with international law - would in principle be regarded as legitimate. Rather, it is to be expected that the complainant, due to his refusal to serve, would qualify as a political opponent and as such would be disproportionately severely punished.
Finally, the question must be answered as to whether the identified threat extends to the whole of Syria or whether the complainant would be protected in his home region against possible seizure by the Syrian state authorities in the sense of a domestic flight alternative. At the present time, however, it cannot be assumed that the above-mentioned Kurdish actors were able to consolidate their position of power to an extent or will be able to do so in the near future, so that one could speak of a stable and unrestricted authority. Consequently, there is no domestic flight alternative.
Outcome:
The complaint is approved and the order of the Federal Office for Migration of 30 August 2013 is repealed.
The Swiss Refugee Agency is instructed to recognise the complainant as a refugee and grant him asylum in Switzerland.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Said v. the Netherlands, Application no. 2345/02, 5 July 2005 |
Other sources:
Domestic Case Law Cited
BVGE 2011/51 E. 8,
BVGE 2008/12 E. 7.2.6.2,
BVGE 2013/11 E. 5.1,
BVGE 2010/57 E. 2.3,
EMARK 2005 Nr. 21 E. 6.1,
EMARK 1996 Nr. 27 E. 3c/aa,
EMARK 1996 Nr. 28 E. 3a,
EMARK 1994 Nr. 6 E. 5,
EMARK 1995 Nr. 2 E. 3a
BVGE 2007 Nr. 7 E. 4.4,
BVGE 2013/50 E. 5.2.4,
EMARK 2006 Nr. 3,
EMARK 2004 Nr. 2 E. 6b,
EMARK 2002 Nr. 19 E. 6f,
EMARK 2001 Nr. 15 E. 8d,
BGE 131 III 35 E. 2,
BGE 131 III 314 E. 2.2,
BGE 130 II 211 E. 5.1,
BGE 119 II 186 E. 4b/aa,
BVGE 2007/7 E. 4.1,
BVGE 2007/24 E. 2.3,
BVGE 2008/9 E. 6,
BVGE 2013/50 E. 5.2.2,
BVGE 2009/8 E. 7.1,
BVGE 2012/2 E. 3.1,
BVGE 2013/20 E. 3.2.7
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