CAT/C/71/D/900/2018
be considered, as a general rule, to be at risk of severe punishment and thus eligible for
asylum.
4.9
In this case, the expulsion of the complainant would not be unenforceable. Eritrea is
not in a situation of war, civil war or widespread violence that would lead automatically –
and regardless of the circumstances of the case – to the assumption that anyone from that
country faced real danger. Moreover, the living conditions there have improved, despite
ongoing economic problems; the situation has stabilized as regards the state of medical
resources, access to water and food, and training conditions. In addition, a large proportion
of the population receives substantial remittances from the diaspora. The peace agreement
that was signed with Ethiopia on 9 July 2018 put an end to the conflict between the two
countries. In this context, removal orders are enforceable unless, owing to specific personal
circumstances, the person’s life would be in danger if he or she were to be returned; the
execution of such orders no longer requires the existence of particularly favourable individual
circumstances, as stipulated in earlier case law. The risk of being enlisted in the national
service can no longer be considered, in itself, an obstacle to the execution of a removal order.
4.10 Furthermore, the expulsion of the complainant would not be unlawful. For the reasons
given by the Federal Administrative Court in Reference Judgment E-5022/2017 of 10 July
2018, all persons who state that they left their country for fear of being summoned for national
service must also demonstrate that it is highly likely that they would be subjected personally
– and not simply by an unfortunate coincidence – to measures that are incompatible with the
relevant provisions of international law. In the present case, according to the complainant,
the Court based its decision solely on information from the Eritrean authorities and did not
examine the situation of persons who are returned to Eritrea in sufficient depth. Yet it is clear
from the judgment in question, and from the other judgments mentioned above, that the
relevant case law is based on a wide range of sources, including reports drawn up by
international organizations, other case law and press articles.
4.11 The case of M.O. v. Switzerland, which is cited by the complainant, is not relevant. In
its judgment on that case, the European Court of Human Rights held that the general human
rights situation in Eritrea did not prevent the applicant’s removal per se. The Court did not
accept that illegal departure from Eritrea was enough to justify granting refugee status to an
Eritrean asylum seeker.
4.12 The complainant is also critical of the fact that according to the case law of the Federal
Administrative Court, national service in Eritrea should be considered forced labour rather
than slavery. However, it should be recalled that this classification is based on Judgment E5022/2017 of 10 July 2018, in which the Court analysed this terminology issue in the light
of the Slavery Convention of 25 September 1926 and the relevant case law of other national
courts and the European Court of Human Rights. The Federal Administrative Court
concluded that the exercise of the powers attaching to the right of ownership is the essential
defining feature of slavery, under article 1 of the Slavery Convention, and that Eritrean
national service cannot be said to have this feature. As regards servitude, the Court held that
servitude was a permanent state and that it could not assume that the same was true of national
service. This approach is in line with that of the Human Rights Council: in its resolution
38/15 of 6 July 2018, the Council did not mention slavery when referring to the report of the
Special Rapporteur on the situation of human rights in Eritrea. 15
4.13 In addition, the complainant has not provided any new information that relates to him
specifically and that suggests he would be at risk of prohibited treatment if he were to perform
military service. In reality, he is trying to have the situation in Eritrea reassessed to his
advantage, without presenting conclusive arguments linked to his personal situation. Lastly,
as mentioned above, the complainant cannot be considered a draft evader.
4.14 According to the conclusions reached by the Federal Administrative Court after a
detailed analysis of the Eritrean national service, ill-treatment and abuse are not so
widespread within the service that all members face a real and serious risk of being subjected
to such abuse. It therefore cannot be said that the complainant would be at serious risk of
being exposed to a violation of the prohibition on forced or compulsory labour if he were to
15
GE.21-13784
See A/HRC/RES/38/15.
7