ECtHR - A.A. v. Switzerland, Application No. 58802/12
| Country of applicant: | Sudan |
| Court name: | European Court of Human Rights - Second Section |
| Date of decision: | 07-01-2014 |
| Citation: | Application No. 58802/12 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
Swiss deportation to Sudan of non-high-profile political opponent of Sudanese government would risk inhuman or degrading treatment contrary to Article 3.
Facts:
The Applicant is a Sudanese national and had been the human rights officer of the anti-government group Sudan Liberation Movement-Unity (SLM-Unity), based in Switzerland, since 2009. He applied for asylum in Switzerland twice, in 2004 and 2009. He claimed to the Swiss refugee authority that he fled his home village in North Darfur, Sudan, when it was attacked by Janjaweed, a government-backed militia that operates in Darfur and is in conflict with Darfur rebel groups. He alleged that his father and other villagers were killed and he was mistreated, prompting him to flee without papers via boat to Calais and then Geneva.
Both of his asylum applications were rejected due to credibility problems. Regarding the first, the Swiss authorities relied on an expert assessment of his language and cultural knowledge to reject his claim to be from Darfur, alongside inconsistencies in the Applicant’s account of his travel itinerary, his region and his relatives’ whereabouts.
The second asylum request, based on the new risk created by his political activism with SLM-Unity and fresh evidence of North Darfuri origins allegedly obtained from the birth register in Sudan, was dismissed by the authorities in 2012. His recent political activities - including an interview with a Swiss local TV channel - were rejected as a non-genuine attempt to create ‘post-flight grounds’ against removal, and as insufficiently high-profile to attract the attention of the Sudanese government. The Applicant appealed, submitting that his political activities, including an argument with the Sudanese President’s brother during an international meeting at the UN building in Geneva, must be known by the Sudanese authorities. His appeal was rejected for the same reasons as before, and his birth certificate was deemed valueless as evidence in part due to the likelihood of forgery.
He claimed before the ECtHR that return to Sudan would violate his rights under Article 3, and that the appeal process against his return in Switzerland had violated his right to an effective remedy under Article 13, taken together with Article 3.
Decision & reasoning:
The European Court agreed with the Swiss authorities that the Applicant was not a high-profile political activist. However, the Court ruled that ‘not only leaders and high-profile people, but also those merely suspected of supporting opposition movements are at risk of treatment contrary to Article 3 of the Convention in Sudan’. The Applicant’s representation of SLM-Unity at the UN meetings in Geneva meant that he ‘might, at least, be suspected of being affiliated with an opposition movement by the Sudanese government’. The Court therefore found substantial grounds for believing that the Applicant would be at risk of detention, interrogation and torture contrary to Article 3 ECHR if returned to Sudan.
The Applicant’s related complaint that his asylum claims were not afforded sufficiently close and rigorous scrutiny as required by Article 13 ECHR was dismissed by the Court, which accepted that the Swiss authorities were right to be critical of the Applicant’s credibility.
Outcome:
Violation of Article 3 if returned to Sudan; no violation of Article 13 together with Article 3.
Subsequent proceedings:
In June 2015, the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2015)95) wherein it found that adequate execution measures had been adopted by Switzerland. Notably, on the individual level the CM welcomed that the Federal Administrative Court had given the applicant refugee status and provided him with a provisional residence permit. On the general level, the CM was satisfied with the change of practice by the Federal Administrative Court recognising that post-flight activities in loci can also lead to the risk of ill-treatment.
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02) |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Kolesnik v Russia, Application No. 26876/08 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
| ECtHR - N. v. Finland, Application No. 38885/02 |
| ECtHR - S.F. and Others v. Sweden, Application No. 52077/10 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Singh and Others v. Belgium, Application No. 33210/11 |
| ECtHR - Mohammed v Austria, Application No. 2283/12 |
| ECtHR - F.N. and Another v. Sweden, Application No. 28774/09 |
| ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04 |
| ECtHR - R.C. v Sweden, Application No. 41827/07 |
Follower Cases:
Other sources:
Swiss Asylum Act of 26 June 1998: Articles 3, 7, 29 and 54
U.S. Department of State’s 2011 Country report on human rights practices, Sudan;
UK Foreign and Commonwealth Office’s 2012 Human Rights and Democracy Report and 2013 Country update on Sudan;
Tenth periodic report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, 2008;
Amnesty International Annual Report 2013 on Sudan;
Human Rights Watch World Report 2013 on Sudan;
Swiss Refugee Council report - Sudan: Persecution of returning nationals on the ground of their political activities in exile of 28 September 2005