I am pleased to report that a colleague has informed me that the threat I posted about earlier is not as acute as I had suspected.
The court ruled it would only be possible to deport someone to Eritrea who was not threatened with enforced conscription into the National Service. This hangs over almost everyone.
“Persons who have not yet served without being exempted from the military service, especially such who left Eritrea under the age of 18 years, must expect to be redrafted upon return…Additionally, it cannot be excluded that they will not be punished with former imprisonment for not having served. The conditions during detention in Eritrea are generally known to be dire.”
Below if the ruling, and a letter from the attorney in German.
Summary/Most Important Considerations from the Landmark Decision
E.5.3:Any desertions and earlier problems in military service (MS) were not believed to be credible. Since the plaintiff was married, her departure from MS was assumed to have been an official release, rather than an unpermitted evasion.
Consideration 6.3:Approval and Reference to the Landmark Decision on the Issue of Illegal Exit from Eritrea
Admissibility of Enforcement of Removal
Consideration 10.1:To obtain reliable data from Eritrea is a challenge. There are only a few reliable primary sources and barely any verifiable information that exist when having to compile empirical statistics on Eritrea. This situation arose since there are no more non-state media outlets allowed in the one-party state. Though many nations do run embassies, diplomatic staff working in Eritrea are limited in their freedom of movement. IOs and the ICRC do not have access to the country and/or to the prisons. Scientific research based on data collection, with aims to cover social or political topics in Eritrea, are long outdated, and it is currently impossible to accomplish such research. Since 2013, however, an increasing number of foreign journalists have been travelling to Eritrea and have thus obtained entry visas. Recently, European migration offices, among others the Swiss State Secretary for Migration, have started to send Fact Finding Missions to Eritrea.
E.10.2:A compilation of reports are listed on which the court has based its decision, though the sources are not being acknowledged. Among them, the update from OFM from June 22nd, 2016, published after the Fact-Finding-Mission (cited: SEM, Fokus Eritrea)
E.12:Explanation on Military Service
E.12.1:The court distinguishes between the Military National Service and the National Service completed within the civil division. Both branches are said to be mandated by the Defense Ministry and their purpose is not simply to defend the nation’s interests after the independence struggle, but also to rebuild the country and to promote the development of a national identity.
E.12.2 Conscription into the Military service usually happens in 12thgrade. This school year is being spent at the National Training Center at Sawa where the conscripts receive a military training which lasts between several weeks and six months. At the same time, the conscripts accomplish their schooling and undergo their final exams. The best performers receive entry into one of the colleges, yet are not permitted to choose which one. After a two or three-year education, they are placed within the Civil National Service. The students with lower exam grades are placed within Sawa or outside of Sawa, where they receive a vocational training in construction, management, technology and agriculture. After completion, they are summoned to serve either in the Military or the Civil National Service. It is not certain how many of them are conscripted into the military and how many are placed within the civil division.
Those who do not attend secondary school and have turned 18 years of age may be placed directly into the National Service by the Kebabi Administration, in some cases with a simple verbal notice. Minors still attending school are at times also drafted by the Administration. Since 2001, minors have been said to be marshalled and rounded up, to check if they are fulfilling their duty to serve. In cases where they have not, they are said to be facing the risk of imprisonment and subsequent conscription into the military training camps. At Sawa, they are said to be denied access to schooling for they receive only military training. When and how often such round-ups take place is unknown, since sources in this respect are contradictory (EASO Report p. 20).
In both cases, whether in the drafts under the Sawa initiative or in the round-ups, incidents of minors being conscripted are known.
E.12.3:Description of the Civil National Service (work in administration, schools, hospitals, agriculture, construction, etc., personal labor force of the military commanders and for business purposes). More personal freedoms are enjoyed if being assigned to serve in the civil division. However, they must stand ready for military purposes and can be displaced to serve the military at any time, for instance as a means of punishment. Especially individuals with specific skills, higher education or certain privileges are assembled in the National Service.
E.12.4The National Service was first referenced in the Decree 11/1991 of 1991, which was not officially published. The Proclamation was first implemented in July of 1994, when the 1stround of National Service was proclaimed. On October 23rd, 1995, the National Service Proclamation 82/1995 went into effect. It forms the legal basis for the 18-month duration of the National Service, as well as for the Reserve Army.
E.12.5The duration,according to the above-mentioned proclamation, is 18 months for the National Service. In May 2002, however, the government prolonged the service duration, in conjunction with the Warsay-Yikealo Development Campaign, to an indefinite term. Many citizens serve for years and on an indefinite length of time. According to statements made by government officials, an increasing number of conscripts,especially those active in the civil division of the National Service, were demobilized or released within the past years. Foreign officials based in the country were also said to have stated that they knew of cases where servicemembers were released from the civil division of the National Service. Information concerning the military division, however, are barely available (SEM, Fokus Eritrea). To obtain official documents confirming a discharge usually proves to be difficult (UK Upper Tribunal). Such documents are issued in the form of yellow and white identification cards. Women are said to be increasingly freed from duty in cases of marriage, in giving birth or for religious reasons. According to the President’s Aide Yemane Gebreab, a reduction in the age under which women are obliged to serve is under discussion. Additionally, there are reports suggesting that persons can be released for family reasons, for instance if the servicemember is the only salary earner (UK Home Office, Fact-Finding-Mission). Eritreans with good ties to the government are said to receive shorter terms of service, better conditions and earlier demobilization status (Landinfo, p. 25). The UN Human Rights Council states that corruption is involved in the demobilization procedure. The UK Tribunal assumes that, given a population of 6.3 million people (other sources say 3.5 million) and those in active service being 200,000 to 600,000, a considerable part of the population are no longer servicemembers. In the most recent reports, there are variations in trying to define the average term of service. The OFM estimates the average duration to be between 5 to 10 years in the Civil Service, whereas for the Military Service, there was no reliable information at hand (SEM, Fokus Eritrea, p. 50). The UN Human Rights Council discusses the service term to be often more than ten years. Disabled individuals are exempt from the Military National Service and instead must serve in the Civil National Service.
In 2014 and 2015, government representatives announced that the National Service would be re-limited to 18 months. In recent statements, however, there have been no more claims respective to these announcements. In 2015, Eritrea rejected an offer of 200 million Euros from the EU, which was designed to assist in the demobilization. The rejection was based on the premise that no citizen could be dismissed from exercising his or her patriotic duties. According to information from OFM, the reforms now, rather, aim at increasing salaries and creating a wider range of jobs within the civil sector, instead of reducing the time of service (SEM, Fokus Eritrea, p. 47). College graduates are now bound to serve one year of community service, although this does not amount to exemption from service. The People’s Army was created in 2012. It consists of citizens who have either been released from the Civil Service or who are currently completing their Civil Service. They receive military training and a Kalashnikov. They are made to supervise public places, where they are on the lookout for draft evaders or work in development projects.
E.13: Information on Returnees
E.13.1Upon return to Eritrea, asylum seekers who have been rejected are not generally re-conscripted into the National Service. In this context, a distinction between various categories of persons ought to be made.
E.13.2Persons who have not yet served without being exempted from the military service, especially such who left Eritrea under the age of 18 years, must expect to be redrafted upon return. This means that asylum seekers, who can credibly explain during the hearing process that they left the country before being conscripted, or otherwise, are able to provide good reasons why they have not yet received their draft card before their exit, may still be obliged to serve after their return to Eritrea. Additionally, it cannot be excluded that they will not be punished with former imprisonment for not having served. The conditions during detention in Eritrea are generally known to be dire. It must also be assumed that the verdict on the length of a prison term are ruled extrajudicial and arbitrarily. Even though it is assumed that systematic imprisonment doesn’t affect all returnees, it must be pointed out that returnees have often settled their relationship with the Eritrean state by paying a 2% tax, as well as by signing the repentance form in which they regret to not having served in the National Service and thus accept any punishment in due course. The question, however, remains unanswered, in how many of the persons in the above-mentioned categories are at risk of facing inhumane treatment according to Art. 3 ECHR or forced labor (Art. 4 ECHR), in their path of possible imprisonment or being drafted into the military upon return.
E.13.3The risks in the evaluation process are different for persons, who have already completed their military service. This is especially the case for what has been said concerning the length of term for National Service. Although there are contradictory reports having reached different conclusions, there might be regular discharges from such service (see section E.12.5). This could especially be the case for married women. Furthermore, the question of whether persons, who first left Eritrea only after their mid-twenties or older, are primarily the target if to whether they have already completed their service. This would be in accordance with the assumption of the Federal Administrative Court, which agrees in the State Secretariat for Migration’s conclusions that the average length of term served is 5 to 10 years. Prison sentences for not having served are thus not expected for persons who have migrated. That is why the Federal Administrative Court is of the opinion that the risk to be reinstated for persons who have already served, is not predominantly probable upon their return to Eritrea. However, those who have been discharged, in principle, are still persistently under the burden of standing ready for the Reserves. In the incidences where people have been redrafted, the information from reports are not able to assume that these are systematic incidents. Also, the current tendency of reducing the length of service, does not indicate that the risk of being re-conscripted is high (see the UK Upper Tribunal, clause 300).
E.13.4Finally, it must be examined whether the rejected asylum seeker might for other reasons be excluded from being re-conscripted to the National Service upon return to Eritrea. It should be pointed out that there are certain categories of persons who might be exempted from National Service. In such cases, however, solid pieces of evidence need to be provided. Furthermore, persons who have been abroad for more than three years and who have most probably settled their relationship with their home country by paying the 2% tax, as well as by signing the repentance form (cf. above under E.13.2), may also belong to the above-mentioned category. Since the question concerning a possible diaspora status may not yet be subject of further evaluation during the asylum procceeding, it will definitely be necessary to evaluate on this fact further. In connection to this it is to be noted that any contacts with the home country’s authorities and even payments made to family members do already require the payment of the 2% tax (see UK Upper Tribunal, clause 129).
Returnees possessing the so-called diaspora status are issued a document named “residence clearance form” by the Department for Immigration and Nationality in Asmara. According to statements made by the authorities, it may be assumed that holders of this document are exempt from serving and are permitted to exit Eritrea without departure visas. The described “Diaspora status”, however, apparently expires after three years in case a person is residing in Eritrea permanently. Thereafter, the authorities reintroduce Eritreans as residents of Eritrea with all associated duties in connection with National Service and Exit Visas (see SEM, Fokus Eritrea, p. 33f.). Within the three years, however, it is not presumably likely that these persons could be threatened with entry into service or could even be penalized for not fulfilling their duties. At to what extent a concrete risk of a person being subjected to torture or other inhumane treatment after the three years are expired upon return cannot be subject of evaluation for a hypothetical risk or possibility that a certain event may occur in some circumstances at a latter point of time is not decisive. The examination of a “real risk” in the context of Article 3 of ECHR is in practice restricted to the question of an imminent threat of inhumane punishment or treatment at the time of return.
- Considerations respective to the case of the plaintiff.
Admissability respective to the Enforcement of Removal
15.2The legal grounds for the practice applied by the Swiss Asylum Authorities in relation to the admissibility of the enforcement of removal to Eritrea have been assessed in a decision by the Asylum Appeal Commission on May 18th2005.
15.3 A new analysis should be carried out, given a long time has passed since the assessment was made.
16.1 Further explanations stating that statistical data is often missing in the Eritrean context, i.e. no State budget, etc.
16.2 The Eritrean population is estimated to be between 3.6 million and 6 million. Today’s government has inherited structural challenges such as weak infrastructure, widespread poverty and illiteracy. First relations and trade with Ethiopia ended at the beginning of the border conflict in 1998. Aditionally, there have been UN sanctions into effect since 2009 due to the presumed support of Al-Shabab Milicia in Somalia.
16.3 Information on state and judicial apparatus with Reference to verdict D-7898/2015 (The constitution has never been implemented. that is why there is no separation of powers, and no parliamentary or presidential elections have been carried out. The president rules informally by issuing decrees while formal institutions serve as a mere façade. Further explanations on the judicial power.)
16.4 Information on military and security forces (unclear – controlled by the president). The Eritrean Police Force (EPF) is responsible for the internal security. Eritrea Defence Force (EDF) is responsible for external security and is divided into five command zones. The National Security Office monitors a whole network of secret service agents. The People’s Army is either used to monitor public places in search of draft evadors or to work in development projects.
16.5 Information on the surveillance and Espionage apparatus. It is not really known to what an extent the monitoring really happens and how efficient the means of the security service are. The surveillance impede on daily life and often lead to arbitrary arrests, interrogations, torture and detentions. In order to obtain information, the use of threats and intimidation as a means is also known. Further efficient monitoring tools are travel passes/permits, allowing persons to move in specific zones only, as well as the database of families receiving food coupons.
16.6 Explanations on prison sentences, conditions in detention facilities and political prisoners (estimated at 5,000-10,000 for political reasons and 1,200-1,300 for religious reasons).
16.7 Information on Regional Administration and Corruption. Corruption in Eritrea is widespread and it usually goes unpunished. High-ranking military officers are involved in smuggling and human trafficking.
16.8 Information on Roads and Public Transport
16.9 Explanations on (missing) NGOs, UN agencies and a tense relationship with the UN.
16.10 Information on freedom of press. Regarding to the right to freedom of press, Eritrea is ranked last place worldwide. There are no private media groups existing. All media is controlled by the Ministry of Information. State media is not permitted to report negative developments. Numerous journalists have been detained and some of them have not yet undergone legal trial. Access to foreign media is only possible through satellite receivers. Since 2000, the internet has been accessible only to a small part of the population, yet it is monitored and censored. Mobile phones are not widely used.
16.11 Information on Religious Freedoms. Minor denominations and especially Jehovas’s Witnesses are subjected to disadvantages.
16.12 Explanations on the various Ethnic Groups. Even though there aren’t any conflicts, there is still a drift existing between the Tigrinyan majority and the disadvantaged ethnic minorities. In principle, all are provided the same access to the education system, to the health care system and to food coupons. However, the schools and the health care centers are predominantly located in those cities mainly populated by the Tigrinya population. Food coupons may be withdrawn for political reasons. In general, ethnic minorities are more vulnerable and often widely affected by poverty and malnutrition. Their living conditions are usually harsher, since they have fewer family members who have migrated into diaspora and who are thus able to support them financially.
16.13 Information on Property Rights
16.14 Information on Nutrition is unclear. There are no official statistics and therefore aid organizations are unable to assess the situation. Due to the lack of data, the Global Hunger Index is unable to produce a world hunger index for Eritrea. For the years 2011 to 2013, the World Food Program (WFP) estimates that 60% of the Eritrean population suffered from malnutrition. Representatives of CAFOD assume the level of hunger and malnutrition to be quite high. In January 2017, the African Development Bank granted Eritrea with $7.14 million to implement a drought resilience and sustainable livelihood program in association with the ongoing droughts. According to UNICEF, data from the Eritrean Ministry of Health suggests that malnutrition has increased in four of the six Eritrean provinces within the past years. UNICEF states that according to data collected by the Eritrean Population and Health Survey, half of all children show signs of developmental delays (stunted-growth). According to indexes of the Human Development Index (life expectancy, gross domestic product as well as years in education), Eritrea is ranked 179 out of 188, thus making it one of the least developed countries in the world. The World Bank labeled the country in the “estimated to be low income” category ($1.025 or less a day). The unrestricted unlimited National Service hampers production in agricultural and livestock farming, of which 80% of the population is living on. These economic sectors are highly dependent on consistent weather. Moreover, the country’s infrastructure is weak. A major part of the population depends on payments coming from diaspora Eritreans. The Eritrean government is reluctant to accept foreign aid, yet in January 2016, an aid package of 200 million Euro was signed with Europe to promote poverty reduction, socio-economic development, improved governance and the creation of alternative sources of energy.
16.15 It appears that obtaining a regular supply of food, cooking fuel, clean water and electricity remains challenging for the average citizen. Families receive coupons for basic foods such as grains, oil and sugar at reduced prices and in accordance with their size. Given the tough economic situation and the high prices for goods on the open market and respectively on the black market, these food coupons for basic foods remain a crucial factor in the population’s daily life. Receiving coupons, however, depends on the loyalty towards the governing party, i.e. through the regular attendance at party events, the presence at celebrations, as well as the payment of membership fees and voluntary donations (See Welde Giorgis, p. 229ff). Food stuff, as well as fuel and spare parts, are being smuggled across the border to be sold at exaggerated prices on the black market, which is controlled by the military. Regular blackouts are common occurrences in the power supply. The infrastructure of the water supply is often neglected. The lack of fuel has forced even the inner-city population to use firewood, leading to nationwide deforestation (see BTI 2016, p. 23). Since relations with the Gulf States have begun to normalize, the supply of fuel to the country is improving (see Reuters, Crises).
16.16 The wealth is concentrated in the hands of a few army officers and party leaders of the PFDJ. Poverty in rural areas is also the consequence of a state run economy, which hardly allows farmers to gain an income. Farmers are not permitted to sell their crops on the free market, but they are obliged to sell them to the governing party at fixed prices. These prices are far below the market value. Eritrea has never published a state budget, thus reliable economic data is lacking. In 2012, the gross domestic product consisted of 30% in the mining and construction sector, 58.4% in the service sector and 11.6% in agriculture. Eritrea agreed on investment treaties with four foreign countries only, thus foreign investment remains low except fro the mining sector.
Further explanations on mines and the coastline with hundreds of unspoiled islands, rich fish hatcheries and ports, and the three state-controlled banks.The PFDJ party operates the Himbol Financial Service, which oversees transfers and tax payments from Eritreans in diaspora.
Information on the Nakfa currency.There is no reliable data available concerning the rate of inflation, which appears to remain around 13%. At the end of 2015, a monetary reform was implemented and placed many citizens into economic difficulties. Within six weeks, all banknotes had to be exchanged for new ones and cash withdrawals at cash dispensers were limited. Unemployment is one of the main challenges; reliable data is missing. There is no social security system existing except for a Martyr’s Fund. Social security is traditionally left to family and clan structures.
16.17 Eritrea has made progress in health care. It is one of the few African countries on its way to achieve the Millennium Development Goals in this field. The population’s health has improved significantly. The United Nations’ Human Rights Council, however, points out that all information concerning the health care sector is solely obtained from the Eritrean government which means that there are no institutions in the position to review it (see HRC, Findings, p E. 16.1). The main strategy is foccussing on basic medical care. The primary health sector consists of 187 health care units run by nurses. The secondary health care sector consists of 20 municipality hospitals and 55 health centers. In addition, there are transferral clinics existing in the main cities of each of the six zobas (provinces) (see EASO report, p. 23 f.). Whereas community-based health commissioners meet the needs of 2,000-3,000 people, health centers are able to cover the requirements of 5,000-10,000 citizens. Municipal hospitals are responsible for 50,000-100,000 potential patients (see Ministry of Health, p. 17). A rate of 78% of the population does have access to health care within a radius of 10 kilometers and 60% within a radius of 5 kilometers (see Ministry of Health, p. 5). Despite this, most of the health care centers are located in the capital city of Asmara as well as in the most southern administrative province (zoba debub) where the majority of the Tigrinyan population lives (see BTI 2016, p. 16). The rates of mother-child mortality as well as the one of HIV (0.8% in 2011) have been reduced significantly (see Ministry of Health, p. 5; WHO, Eritrea, HRC, Report, p. 60). Studies on Female Genital Mutilation (FGM) show a decline in practice but also that it is still rampant in rural areas. The Eritrean government, however, does not limit its efforts to a legal prohibition, but is also running an awareness campaign against FGM which seems to have proven some success. Medical facilities do employ at least one person specialized in childhood diseases. In 2013, 98% of the population was vaccinated (see Ministry of Health, p.10), so that the eight main diseases which can be vaccinated against do no longer pose any problems (see WHO, Eritrea). In comparison to statistics compiled in 1999, the malaria infection rate has fallen by 85% and the malaria-related mortality rate by 90% (since 1999 at 82%, EaSO report, p. 24). A total of 4,067 health officers were trained to diagnose, treat and prevent malaria (see Ministry of Health, p. 14; HRC, Report, p. 60). The tuberculosis rate has also been in further decline amounting to 152 per 100,000 inhabitants (see Ministry of Health, p. 15; HRC, Report, p. 60). Non-contractable chronic diseases – especially hypertension and diabetes – are on the rise (see Ministry of Health, p. 20). Complex surgical procedures, chemotherapy, radiotherapy and transplantations are not possible in Eritrea. Access to psychiatric care is also limited due to a lack of trained specialists. In the context of a medical collaboration, part of the patients who cannot be treated in Eritrea are thus transferred to Sudan. Certain medicine is difficult to obtain while ordinary drugs are readily available for free (see EASO report, p.24). Not much progress has been made, however, in connection with the Millennium Development Goal on the extermination of hunger and poverty (see HRC, Report, p. 61), as malnutrition remains one of the main challenges to the Eritrean health care system (see WHO, Eritrea). A lack of finances available to the health care system as well as trained medical staff for recruitment in order to meet the growing needs can be observed in Eritrea (see Ministry of Health, p. 19f., WHO, Eritrea). There is a serious shortage in health care staff as well as in equipment and medicine (see EASO report, p. 24) A rapidly increasing number of doctors and other medical staff are leaving the country (see time, BTI 2016, p. 22). In principle, the health care system is provided by the state, but patients except for the very poor ones have to pay part of the expenses for treatment themselves (see EASO report, p. 24). Neither a health insurance system nor any privately-run health care facilities exist, yet there is private practicing in certain public hospitals (see WHO, Eritrea). An estimated 1.2% of the state’s budget is spent on health care.
16.18 In principle, school attendance is compulsory up to 8th grade. To enter into secondary school, an exam must be taken. The 12th school year takes place in the military training center at Sawa. Although attending school is free of charge, parents must provide for school materials, school uniforms and transport fees. Certain schools demand a tuition fee, especially for students attending upper grades. Many parents cannot afford these expenses. Children attending school are missing labourers on fields and in households. That is why especially girls are not sent to school. The enrolment rate in 2013 was 34%, which ranks among the lowest in the world. Whereas 38% of males and 30% of females attend school, the attendance rate among minorities is even lower. Structural drifts are also existing between urban and rural areas as well as between the highland and more remote areas. The low enrolment rate is surprising as, according to the Eritrean Population and Health Survey in 2010, a literacy rate of 57% could be evaluated. Further information on universities and vocational training centers.
17.1 In short, Eritrea can be described as an autocratic one-party state with an intransparent military and security apparatus, as well as with a complex and multi-layered surveillance and espionage system. Prison sentences are arbitrarily and partly extralegally adjourned and there are credible indications that conditions in detention facilities are precarious. Free media as well as NGOs are not allowed in the country which ranks among the lowest in the world what freedom of press is concerned. The right to freedom of religion and belief is not fully guaranteed, and there is a drift between the Tigrinyan majority and ethnic minorities. The latter are generally poorer and more vulnerable. The food situation in Eritrea remains unclear whereby international aid is only being accepted with reluctance. A large part of the population, however, is being financially supported by diaspora Eritreans. The unrestricted National Service hampers economic growth and a free market does hardly exist. The wealth is concentrated in the hands of a few army officers as well as some officials from the ruling party. Respective to the state-funded health care and education systems, the country has been confirmed to have made substantial progress. All information in this context have, however, been provided by the Eritrean government.
17.2 Provided with all this background information, the court still does not assume that a general situation of war, civil war, general violence or any other situation that would in principle prohibit the enforcement of Removal is given in the Eritrean context. “The court can in principle not conclude that a person faces a concrete threat only because the economical living conditions in her country of origin are difficult, for instance because shortage of housing or unemployment is wide-spread (BVGE 2014126, E. 7.6). Since the latest assessement of the living conditions in Eritrea carried out in EMARK 2005 No. 12 where the humanitarian situation has been described as bleak due to decades of warfare, the related internal expulsions and resettlements as well as a long-lasting drought, the living conditions have since improved in certain fields. At that time, it was assumed that about half of the Eritrean population was unable to secure their survival (see E. 10.5-10.8). This assessment can no longer be upheld. Even though the economic situation remains difficult, the population’s supply with basic medical care, nutrition, water and education could be stabilised. The war ended many years ago and serious ethnic or religious tensions are not being observed. What is also worth to be mentionned here are the extensive payments sent home by diaspora Eritreans and from which a huge part of the population is profitting. With this mind, the increased requirements on the enforcement of removal respective to the practice applied until date (see 15.1) are thus no longer justified. The situation of continuous surveillance of the Eritrean population may also not justify the prohibition of the enforcement of removal. Given the country’s difficult general situation, it is, however, still necessary to carefully assess the risk of existential threat in certain cases where specific circumstances arise. The question whether the enforcement of removal can be permitted must remain subject of examination in each individual case.
- The plaintiff is a young and healthy woman. There is no specific evidence which indicates an existential threat. The enforcement of removal may thus be imposed on her.
The possibility of Enforcement of Removal
- It is important to point out that a forced return to Eritrea is currently not possible. The possibility of a voluntary return is, however, in opposition to the ascertainment of the impossibility of the enforcement of removal according to Art. 83, par 2 of the foreigner’s law (AuG).It is therefore within the plaintiff’s responsibility to obtain the necessary travel documents at the consular representation of her home country in order to make her return possible (compare Art. 8 par 4 AsylG and also BVGE 2008134 E. 12). This is why the enforcement of removal is assumed possible.
Zürich, 6. April 2018
Widerruf vorläufige Aufnahme Eritrea, Stellungnahme zur aktuellen Praxis
Sehr geehrte Frau Bundesrätin Sommaruga
Wir gelangen als Rechtsvertreter von A.____, Beschwerdeführerin im Bundesverwaltungsgerichtsverfahren D-2311/2016, an Sie. Bekanntermassen plant das Staatssekretariat für Migration (SEM) gestützt auf das in jenem Verfahren ergangene Grundsatzurteil vom 17. August 2017 die vorläufige Aufnahme von mindestens 3‘200 Eritreern und Eritreerinnen zu widerrufen.
Wir möchten Sie nun aber als Rechtsvertreter im Verfahren D-2311/2016 dringend auf das Folgende aufmerksam machen:
Wir haben gegen das Urteil Bundesverwaltungsgerichts vom 17. August 2017 (D-2311/2016) beim UN Committee Against Torture (CAT) am 2. November 2017 Beschwerde erhoben (CAT Referenz: G/SO 229/31). Mit Schreiben vom 8. November 2017 gewährte das CAT vorsorgliche Massnahmen und verlangte von der Schweiz, dass der Vollzug der Wegweisung der Beschwerdeführerin aufgeschoben werde. Mit Schreiben vom 9. November 2017 bestätigte das SEM, dass die Wegweisung für die Dauer der Prüfung ausgesetzt werde.
Folglich stützt sich das SEM auf ein Urteil des Bundesverwaltungsgerichts, über dessen völkerrechtliche Zulässigkeit noch ein internationales Gremium zu entscheiden hat. Der Vollzug des nationalen Urteils wurde ausgesetzt. Die Schweiz ist Vertragsstaat des Übereinkommens gegen Folter und andere grausame, unmenschliche oder erniedrigende Behandlung oder Strafe (Antifolterkonvention). Als solcher ist die Schweiz zur Einhaltung der Bestimmungen der Antifolterkonvention verpflichtet (Art. 5 Abs. 4 BV; vgl. SEM, Handbuch Asyl und Rückkehr, A1, UN-Folterkonvention, S. 1). Das SEM kann somit nicht gestützt auf die Lagebeurteilung in D-2311/2016 allgemein auf die Zumutbarkeit des Wegweisungsvollzugs nach Eritrea schliessen, wenn das CAT noch darüber zu befinden hat, ob die Schweiz mit diesem Urteil die Antifolterkonvention verletzt hat. Dies zumal das CAT vorsorgliche Massnahmen gewährt und damit den Vollzug der Wegweisung ausgesetzt hat. Sämtliche Entscheide des SEM, welche gestützt auf D-2311/2016 gefällt werden, können damit die Antifolterkonvention, die Bundesverfassung und damit internationales und nationales Recht verletzen.
Wir bitten Sie deshalb dringend, Ihre angekündigte Praxis zu Eritrea im Lichte dieser Argumente nochmals zu überprüfen. Zumindest ersuchen wir Sie aber, den Entscheid des CAT abzuwarten, bevor anfechtbare Verfügungen erlassen werden. Dies aus prozessökonomischer Sicht, um eine Welle von Wiedererwägungs- und neuen Asylgesuchen im Nachgang zu einem gutheissenden CAT-Urteil im betreffenden Fall zu vermeiden.
Im Namen der advokatur kanonengasse
- Mario Gattiker, Staatssekretär, Staatssekretariat für Migration, Quellenweg 6, 3003 Bern-Wabern
- CédricWermuth, Sozialdemokratische Partei des Kantons Aargau, Bachstrasse 43, 5000 Aarau
- Georg Humbel, Redaktor/Reporter Bundeshaus, Rundschau, Schweizer Radio und Fernsehen, Bundesgasse 8, 3003 Bern
- Schweizerische Flüchtlingshilfe, Weyermannsstrasse 10, 3008 Bern