CAT/C/53/D/482/2011
2.13 On 11 May 2011, the Federal Administrative Court rejected the complainants’
appeal against the Federal Office for Migration’s decision to deny their asylum applications.
The complainants claimed that they could not obtain effective protection in their own
country, as shown by the fact that the judicial and police authorities had failed to provide
such protection prior to their departure. The Court recalled that, in accordance with its case
law, persecution by third parties is grounds for granting asylum only if the State of origin
does not provide adequate protection, and it found that the Kosovo authorities had provided
adequate protection insofar as their means and resources permitted. It also ruled that, in the
absence of a reasonable body of hard evidence to the contrary, the fact that the police had
been unable to find the culprits was not sufficient grounds either to conclude that the
latter’s conduct was supported, encouraged or endorsed by the State or to demonstrate the
absence of adequate national protection. The Court specified that the requirement for
adequate protection cannot be interpreted as a need for absolute protection, as no State is in
a position to guarantee such protection for all its citizens in all places at all times. The
Court also noted that, should they continue to feel unsafe in their village, the complainants
could move to an urban area.
2.14 On 16 May 2011, the Federal Office for Migration notified all the complainants that,
in the light of the Federal Administrative Court’s decision, they must leave Switzerland no
later than 13 June 2011.
2.15 On 13 June 2011, E.S. and B.S. submitted a request for review to the Federal Office
for Migration. The request was based on the existence of new evidence, namely the murder
of a family member who had been a police officer and the release without charge of the
person whom the police had arrested in connection with the inquiry into the father’s murder.
On 20 July 2011, the Federal Office for Migration decided not to examine the substance of
the two requests for review on the grounds that new evidence was lacking. B.S. appealed
against the decision to the Federal Administrative Court on 2 September 2011, but the
Court declared both the request for review and the appeal inadmissible.
2.16 On 26 July 2011, H.S. also submitted a request for review to the Federal Office for
Migration, which, on 9 August 2011, decided not to examine the substance of the request.
On 13 September 2011, the complainant filed a new request to have the decision to reject
his asylum application reviewed in the light of his medical condition, i.e., diabetes-related
symptoms from which he had been suffering for 10 years. On 21 September 2001, the
Court declared this request inadmissible.
2.17 According to a report issued on 31 August 2011 by the Swiss Refugee Council,
which carried out inquiries in situ and interviewed police officers involved in the
investigation of the attempted murder of V.S. in 2007, the number of murders in Grabanice
had risen considerably in the previous 10 years. Between 2000 and 2010, five persons were
killed without either the police or the United Nations Interim Administration Mission in
Kosovo (UNMIK) or the European Union Rule of Law Mission in Kosovo (EULEX) being
able to identify the culprits. The police officers who were interviewed confirmed that the
complainants’ lives would be in danger if they returned to the village, that it appeared to be
a case of personal revenge and that the police were no longer able to protect the family
against the attacks. In fact, the murders remained a mystery for the police, given the
absence of any suspect, clue or suspicions on the part of the family as to the identity and
motives of the assailants.
The complaint
3.1
The complainants claim that their deportation to Kosovo would constitute a
violation by Switzerland of their rights under article 3 of the Convention, as they would be
exposed to death threats and a real danger of suffering a violent death.
GE.15-00578
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