Committee against Torture, A.Y. v. Switzerland, CAT/C/74/D/887/2018, 30/01/2023
| Country of applicant: | Eritrea |
| Court name: | Committee against Torture |
| Date of decision: | 30-01-2023 |
| Citation: | CRC, A.Y. v. Switzerland, CAT/C/74/D/887/2018, 30/01/2023 |
Keywords:
| Keywords |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The Committee found a violation of Article 3 of the Convention against Torture (non-refoulement), considering that the State party failed to address the individual circumstances and risk profile of the complainant, namely the fact that she was a woman of conscription age and a “failed asylum seeker”, when ascertaining whether her return to Eritrea would pose a risk of torture and inhuman and degrading treatment. Also, it observed that the State disregarded her asylum claim relying on the report’s findings, which did not meet the impartiality required as evidentiary proof.
Facts:
The case refers to an Eritrean citizen of Tigrinya ethnicity. She was divorced and was raising her 8-year-old daughter on her own. In February 2013, she was apprehended by authorities on the streets and was kept in the police station for an entire day while her daughter was alone at home. After that, she fled, arriving in Switzerland on 6 August 2014.
On 7 August 2014, she filed an asylum claim, which was rejected by the State Secretariat for Migration on the basis that she had fabricated the story of her apprehension owing to inconsistencies in her explanation between the initial and the second, substantive hearing. The subsequent domestic appeals lodged by the complainant were also denied due to the lack of credibility in her statements. In her challenge against these decisions, the complainant argued that her explanations were misunderstood, mainly because of the translation, and that the extradition order would expose her to a real risk of torture, ill-treatment, and arbitrary detention.
Decision & reasoning:
The Committee observed that the assessment of whether an individual would personally be at risk upon return to the country from where they fled should consider all relevant aspects pointed out in Article 3(2) of the Convention against Torture (CAT), in addition to other substantial grounds, highlighting that the existence of a pattern of flagrant violations of human rights does not entail per se a serious risk.
In this regard, the Committed first concluded that there are substantial grounds, following findings from reliable reports and the claimant’s statement about the treatment received in the past, to believe that the complainant’s return would subject her to abuse and mistreatment, amounting to torture, inhumane and degrading treatment, including sexual abuse. Indeed, asylum seekers returning to Eritrea report that they face severe punishments upon arrival in the country, including women’s exposure to sexual violence, rape, etc. In addition, reports have shown a deterioration in the human rights situation since November 2020 due to Eritrea’s involvement in the armed conflict in Ethiopia.
Second, regarding the State’s claim that she failed to mention that she was arrested by the authorities at the first hearing and only mentioned it at the substantial hearing, making her statement less credible and leading to the conclusion that it was fabricated to strengthen her claim, the Committee decided that it was not possible for the State to dismiss her entire claim on that basis. When evaluating the content of the interviews, it was concluded that the first hearing was deliberately short and conducted in a rudimentary manner, which prompted the State to interpret it negatively, in comparison with the more detailed answers provided during the second interview.
Given these circumstances, the Committee found a violation of Article 3 CAT.
Outcome:
The Committee against Torture found that the facts disclosed a violation of Article 3 of the Convention, as the claimant’s return to Eritrea given her circumstances would violate the principle of non-refoulement.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Switzerland, National Service Proclamation No. 82/1995, Article 37 |
Other sources:
- Domestic Case Law Cited
Judgment D-6764/2017, 14 May 2018, para. 3.3
Judgment D-7898/2015, 30 January 2017.
Judgment D-2311/2016, 17 August 2017.
Judgment E-5022/2017, 10 July 2018.
Other Member State’ Case Law Cited
- ECtHR Cases Cited
M.A. v Switzerland, Application No. 52589/13, Judgment, 18 November 2014.
Other Cases Cited
Bakatu-Bia v. Sweden (CAT/C/46/D/379/2009)
Agiza v. Sweden (CAT/C/34/D/233/2003)
Ali Fadel v. Switzerland (CAT/C/53/D/450/2011)
Tony Chahin v. Sweden (CAT/C/46/D/310/2007)
Tursunov v. Kazakhstan (CAT/C/54/D/538/201)
Alhaj Ali v. Morocco (CAT/C/58/D/682/2015)
- Other Sources Cited
Conference room paper of inquiry on human rights in Eritrea
The Committee General Comment No. 4 (2017)
Report by the Secretariat (May, 2015): Eritrea – Country Study
Home Office, Country Information and Guidance, Eritrea: Illegal Exit (September 2015)
Home Office, “Country policy and information note. Eritrea: national service and illegal exit”, July 2018, para. 2.4.12
Committee on the Elimination of Discrimination against Women (CEDAW/C/ERI/CO/6)
Special Rapporteur on Eritrea (A/HRC/47/21)
Statement of the Special Rapporteur on the situation of human rights situation in Eritrea, 13 June 2022.