CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juin 2017

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .sFF5E8D99 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:left; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s6B505E72 { margin:0pt; padding-left:0pt } .s550CD9ED { margin-top:6pt; margin-left:55.95pt; margin-bottom:6pt; padding-left:8.4pt; font-family:serif; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2500E58 { font-family:Arial; letter-spacing:2.05pt } .sAA49D30B { font-family:Arial; letter-spacing:1pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s1B50D646 { width:185.6pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     THIRD SECTION               CASE OF M.O. v. SWITZERLAND   (Application no. 41282/16)                   STRASBOURG   20 June 2017       FINAL   20/09/2017     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of M.O. v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Helen Keller,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 30 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41282/16) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for   the Protection of Human Rights and Fundamental Freedoms (“the   Convention”) by an Eritrean national, Mr M.O. (“the applicant”), on   13 July 2016. 2.     The applicant, who had been granted legal aid, was represented by Mr   R. Schuler and Ms A. Stettler, lawyers practising in Zürich. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. 3.     The applicant alleged that his expulsion to Eritrea would give rise to a violation of Articles 3 and 4 of the Convention. 4.     On 22 July 2016 the Vice-President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Eritrea for the duration of the proceedings before the Court, and granted priority to the application under Rule 41 of the Rules of Court, and anonymity to the applicant under Rule 47 § 4 of the Rules of Court. 5.     On the same day, the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant is an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland. 7.     The applicant entered Switzerland illegally on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration , renamed with effect from 1 January 2015 as the Staatssekretariat für Migration , SEM – hereafter “the State Secretariat for Migration”). During all three hearings an interpreter was present and the record was translated for the applicant prior to his signing it. 8.     The first hearing was a summary interview at the Centre for Reception and Procedure ( Empfangs- und Verfahrenszentrum ) in Kreuzlingen on 1 July 2014. The applicant stated that he had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school, and had been summoned for military service, which he had tried to avoid. Once he had reported for duty, he had tried to escape but had been caught. He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He was unable to recall the exact dates of his imprisonment, but stated that he had been imprisoned from June 2012 to September 2013. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea for one more week, he had left the country on foot on 3 October 2013, crossing the border at Mereb. He had been picked up by Ethiopian soldiers the next day. 9.     In order to support his account, the applicant submitted copies of his student card and a card showing that he was a church deacon, as well as the original of a card used for food distribution in Italy. He stated that he had been issued with an identity card in Eritrea in 2010, but had had to hand it in in Ethiopia. The applicant further stated that he was married and had a son born in October 2012. 10.     The second, more detailed, hearing took place at the office of the State Secretariat for Migration in Berne on 11 March 2015. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. 11.     The applicant again gave an account of the alleged events in Eritrea leading up to his escape. This time he stated that he had been imprisoned in Wi’a from March to October 2013 following his attempt to escape from the military. When confronted with the discrepancy in comparison with his previous account in that regard, he stated that he might have made a mistake in the first interview. When asked about the conditions of his detention, the applicant claimed that it had been very dirty and very hot, and that he had been locked up all the time. Other than beatings suffered due to his attempt to escape, there had been no particular incidents. He did not recall any rules other than fixed meal times and being brought outside in the mornings and evenings to relieve himself. 12.     When asked about his military training, the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape. He had not learned how to use weapons. He could neither provide a name of his superior nor his unit nor his military number. 13.     When questioned about his departure from Eritrea, the applicant described leaving A. (a village) on foot at around 6 p.m., together with a person living in the neighbourhood who knew the area. They had walked towards Mereb, but had lost their way as it was night-time. They had been very afraid and also hungry and thirsty. There were lots of thorn bushes in their way and they had heard the howling of hyenas. They had not been sure whether they had reached Ethiopian territory until soldiers who spoke Amharic had apprehended them at around 3 a.m. When informed by the interviewer that his account in relation to his departure might not be considered credible, which would result in the conclusion that he had left the country legally, the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled. 14.     The applicant claimed that he had always been in good health. 15.     In order to support his account, the applicant submitted the originals of his marriage certificate of 2010 and his son’s baptism certificate of 2012, as well as an attestation that he was a church deacon. He claimed that these documents had been sent to him from Eritrea. 16.     The applicant was heard for a third time by the State Secretariat for Migration on 29 January 2016. Again, a member of a non-governmental organisation was present as a neutral witness, who did not note down any observations relating to irregularities. 17.     The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from Eritrea, and that the account he had so far provided in this regard would probably be dismissed as not credible, which would result in the conclusion that he had left the country legally. 18.     The applicant responded that he had spent two days at his parents’ home in A. after escaping from prison. His family had contacted a people smuggler from the Mereb area. He and the smuggler had left A. on foot at around 6 p.m. When confronted with his previous account that he had left with a person from the neighbourhood, the applicant clarified that the person he had travelled with (the smuggler) came from a neighbouring village. During the night the smuggler had told him that he had taken many people across the border, but that he and the applicant had already been walking for too long a time, which meant that they must have lost their way. They had become disorientated and had only realised that they had crossed the border when they had been apprehended by Ethiopian soldiers at around 4 a.m. who had spoken to them in Amharic. 19.     On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland. It found that his account was not credible, and concluded that, having failed to prove or credibly demonstrate his refugee status pursuant to section 7 of the Asylum Act, the applicant was not a refugee as defined in section 3 of the Asylum Act. 20.     The State Secretariat for Migration pointed out that the applicant had stated in the first hearing that he had been detained for a period of one year and three months, from June 2012 to September 2013, whereas in the second hearing he had said that he had been detained for seven months, from March to October 2013. It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling. Furthermore, his account as regards his time in prison and his escape from prison lacked substance, and he could not provide details as to what he had learned during his military training. 21.     The State Secretariat for Migration also found that the applicant’s submissions regarding his illegal exit from Eritrea were not credible. Despite being asked several times to provide a detailed account of his departure or specific events in that connection, the applicant’s statement in that regard was superficial and limited to phrases. The State Secretariat for Migration argued that, particularly in relation to the hours during which the applicant and the smuggler had lost their way, it could legitimately be expected that the applicant would provide a substantiated account, which he had failed to do. Nor had he provided a consistent account in that regard. Moreover, he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country. 22.     On 14 April 2016 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority. He referred to a report of the European Asylum Support Office (EASO), which stated that the relevant authorities had, at times, deferred the draft of clerics, until a change in practice in 2010 had led to a stricter approach (see paragraph 49 below). The applicant submitted that he had had to undergo his military training in Wi’a, a place to which, according to a report by the US Department of State (see paragraph 51), students with poor grades were typically assigned. Shortly after reporting for duty, he had attempted to escape. He had been caught and, as a result, detained in March 2013. He had managed to escape from detention in September 2013 after seven months. Fearing that he would be detained once again or forced to perform military service, he had decided in early October 2013 to leave the country illegally. His family had organised a smuggler. They had fled during the night and, while attempting to cross the border at Mereb, had lost their way. They had been apprehended by Ethiopian soldiers early in the morning of 4 October 2013 and taken to Endabaguna. One week later, they had been transferred to the Hitsas refugee camp. 23.     With regard to the alleged discrepancies relating to his schooling, the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school, but emphasised that he had consistently stated that he had left school after eighth grade, having failed the exams to move on to secondary school, and referred to a report by EASO regarding the national examination at the end of eighth grade (see paragraph 49 below). Also, during the hearing he had corrected himself in relation to the commencement of his military training. Furthermore, it was comprehensible that he could not give a detailed account about things which he had learned during that training, given that he had attempted to escape almost immediately after reporting for duty. 24.     The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education. He emphasised that his statements as regards the time of the end of his detention, September 2013, were consistent. In relation to the conditions of detention, he argued that the account he had given to the asylum authorities very much reflected his personal experiences: he had stated that the prison had been dirty, that it had been very hot, that detainees had had lice, that there had been fixed meal times, and that he had been taken outside in the mornings and evenings to relieve himself. In light of this monotonous pattern, the mistake, if any, had been on the part of the interviewer, who had asked for a description of specific events. In that regard, the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event. He emphasised that the interviewer had not questioned him about his scars, which he alleged were the result of that incident, or about specific events surrounding his escape from prison, pointing out that the latter issue had been raised by the representative of the non-governmental organisation who had been present as a neutral witness at the second hearing. As to the time between his escape from prison and his departure from Eritrea, the applicant argued that his first statement that he had left Eritrea one week after escaping from prison, and his second statement that he had spent two days at his parents’ home in A. during that time, were not contradictory. 25.     With regard to the circumstances of his departure from Eritrea, he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by Ethiopian soldiers. It was only logical that he could not make detailed statements about the area, as he had no knowledge of that area and had fled during the night. His most prominent memory related to the fears he had experienced when they lost their way. He could also recall the exact words in Amharic used by the Ethiopian soldiers when they had been apprehended. His account, which revolved around feelings of thirst, hunger and fear, and which mentioned the many thorn bushes in their way and the howling of hyenas, corresponded to his young age and poor level of education. Moreover, the State Secretariat for Migration had wrongfully concluded that there was a contradiction in his statements concerning the smuggler’s reaction when they had lost their way. 26.     Lastly, the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit Eritrea. Referring to a letter from UNHCR – the original of which he presented – stating that he was registered in the Hitsas refugee camp in Ethiopia on 8 November 2013, and to the fact that crossing the border to enter Ethiopia by land was always unlawful (see paragraph 49 below), he argued that he had proved his illegal exit from Eritrea. 27.     In conclusion, the applicant argued that he was a refugee as defined in section 3 of the Asylum Act, on account of his fear of ill-treatment for having deserted from military service. In the alternative, he claimed to qualify for temporary admission because of “subjective post-flight grounds” (as set out in section 54 of the Asylum Act), notably his illegal exit from Eritrea and his asylum application in Switzerland. Further, in the alternative, he alleged that his removal to Eritrea was neither permitted in the light of Article 3 of the Convention nor reasonable, entitling him to temporary admission to Switzerland. 28.     On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. It noted that it was not apparent why the applicant’s age – he was 24 years old at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account, and considered that his two statements concerning the end of his schooling, either in 2005/2006 or 2007/2008, could not be reconciled with each other or with his student identity card, which indicated that he was a student in 2010. The court also considered that the applicant’s statements regarding the time and content of his military training lacked substance. It commented that, even if the applicant had left the military shortly after reporting for duty, he could be expected to provide a detailed and specific account of it, given that he merely had to talk about something which he had experienced in person. Viewing the duration and dates of the applicant’s detention as key elements of his asylum claim, the court noted that a discrepancy of eight months as regards the duration, and the different dates given in the first two hearings as regards the end of the detention, constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself. 29.     Referring to its judgment in an earlier case concerning Eritrea, the court reiterated that the only way to exit Eritrea legally was with a valid passport and an additional exit visa, and that the practice concerning the issuance of an exit visa was very restrictive. They were issued to a few people who were considered loyal, in exchange for payment of significant sums. As a rule, children aged 11 or more, men under the age of 54, and women under the age of 47, were not granted exit visas. People attempting to leave the country without authorisation risked their life, as the border guards were under orders to prevent attempts to flee by way of targeted shots (a “shoot to kill” policy), in addition to imposing punishment as set out by law. The Eritrean Government viewed illegal exits as an indication of political opposition, and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures. 30.     The Federal Administrative Court noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally. However, the burden of proof did not shift to the authorities, and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure. Considering that his account given at first-instance level was not credible, which also raised doubts about his overall credibility, and that he had not provided comprehensible explanations in his submissions on appeal, the court found that the applicant had failed to credibly demonstrate that he had left Eritrea illegally. 31.     The Federal Administrative Court added that the applicant could not rely on the letter from UNHCR stating that he was registered in the Hitsas refugee camp in November 2013, since the conditions in Ethiopian refugee camps were chaotic and, in the case of people of Eritrean origin, there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps. This was supported by the wording of the registration, which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of UNHCR. 32.     Furthermore, the court found that the applicant’s removal was possible, permitted and reasonable within the meaning of section 83(1)-(4) of the Aliens Act. In particular, the applicant was a young man in good health who had a support network in his hometown, notably his wife and their son, who lived in the same house as his parents. 33.     On 19 May 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016. II.     RELEVANT DOMESTIC LAW AND PRACTICE 34.     The relevant provisions of the Asylum Act of 26 June 1998 ( Asylgesetz , 142.31) read as follows: Section 3 – Definition of the term refugee “1. Refugees are persons who, in their native country or last country of residence, are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group, or owing to their political opinions. 2. Serious disadvantages include a threat to life, physical integrity or freedom, as well as measures which exert intolerable psychological pressure. Motives for seeking asylum which are specific to women must be taken into account. 3. Persons who are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages because they have refused to perform military service or have deserted are not refugees. The provisions of the Convention of 28 July 1951 relating to the Status of Refugees are reserved. 4. Persons who claim grounds based on their conduct following their departure which are neither an expression nor a continuation of a belief already held in their native country or country of origin are not refugees. The provisions of the Refugee Convention are reserved.” Section 5 – Ban on refoulement “1. No person may be forced in any way to return to a country where his or her life, physical integrity or freedom is threatened for any of the reasons stated in section   3(1), or where he or she would be at risk of being forced to return to such a country. 2. The ban on refoulement may not be invoked if there are substantial grounds for the assumption that, because the person invoking it has a legally binding conviction for a particularly serious felony or misdemeanour, he or she represents a threat to Switzerland’s security or is to be considered dangerous to the public.” Section 7 – Proof of refugee status “1. Any person who applies for asylum must prove or at least credibly demonstrate his or her refugee status. 2. Refugee status is credibly demonstrated if the authority regards it as proven on the balance of probabilities. 3. In particular, cases are not credible if they are unfounded in relation to essential points or are inherently contradictory, do not correspond to the facts, or are substantially based on forged or falsified evidence.” Section 54 – Subjective post-flight grounds “Refugees shall not be granted asylum if they became refugees in accordance with section 3 only by leaving their native country or country of origin, or as a result of their conduct after their departure.” The relevant provision of the Aliens Act of 16 December 2005 ( Bundesgesetz über die Ausländerinnen und Ausländer , 142.20) provided as follows: Section 83 – Order for temporary admission “1. If the enforcement of removal or expulsion is not possible, not permitted or not reasonable, the SEM [State Secretariat for Migration] shall order temporary admission. 2. Enforcement is not possible if the foreign national is unable to travel or be taken to his or her native country, or country of origin, or a third country. 3. Enforcement is not permitted if Switzerland’s obligations under international law prevent the foreign national from making an onward journey to his or her native country, country of origin, or a third country. 4. Enforcement may be unreasonable in respect of foreign nationals if they are specifically endangered by situations such as war, civil war, general violence and medical emergency in their native country or country of origin. ... 8. Refugees for whom there are reasons to refuse asylum in accordance with sections 53 and 54 [of the Asylum Act] shall be granted temporary admission. ...” 35.     In accordance with the consistent case-law of the domestic courts, cases where applicants made new submissions which were not part of previous asylum proceedings, and on the basis of which they claimed to be refugees, were to be treated as subsequent asylum applications under section   111c of the Asylum Act (see, for example, Federal Administrative Court judgment of 16 December 2014, no. E-1666/2014, paragraph 4.6). Where the submissions only related to new impediments to the enforcement of the person’s removal and did not contain new aspects concerning the criteria of the refugee definition, they were to be treated as requests for reconsideration under section 111b of the Asylum Act (ibid.). III.     RELEVANT COUNTRY INFORMATION ON ERITREA A.     Reports by the UN Commission of Inquiry on Human Rights in Eritrea 1.     The first report (2015) 36.     On 5 June 2015 the UN Commission of Inquiry on Human Rights in Eritrea (“the Commission”) presented the 483-page detailed findings of its first report to the UN Human Rights Council (A/HRC/29/CRP.1). 37.     It observed that, pursuant to Article 5 of Proclamation No. 82/1995 (National Service Proclamation), all Eritrean nationals between the ages of 18 and 50 had a duty to participate in national service (§ 1178 of the report). Exemptions were applied very narrowly in practice, and mainly concerned people with severe permanent disabilities, as well as married women and single mothers (§§ 1193-1210). Those between the ages of 18 and 40 had a duty to participate in an 18-month period of active national service, comprising six months of military training in a training centre, followed by twelve months of active military service and development work in a combat force unit (§ 1179). The Government extended the statutory national service period of 18 months and made it an indefinite period, effectively leading to a constant state of general mobilisation, arguing that the “no war, no peace” situation with Ethiopia justified the indefinite extension of the period of conscription (§ 1181). National service was also designed to contribute to the economic reconstruction of the country following the struggle for independence, and conscripts were assigned to perform a broad set of tasks, going far beyond military core functions, and working in the development, construction and maintenance of infrastructure projects, in the agricultural sector and in the fledgling industrial and mining sectors (§§ 1176-1177). 38.     The Commission documented a pattern of conscription into national service at an early age with no prospect of formal discharge or release for other reasons, noting that there was a clear pattern of conscription beyond the statutory period of 18 months of national service (§ 1250). Conscripts were not informed about the length of time they were expected to serve beyond the statutory 18 months, and had to remain in national service when the mandatory period of active national service lapsed (ibid.). 39.     While the majority of conscripts were sent to the Sawa military training camp, certain conscripts were sent to other military training camps (§ 1294). The latter category of conscripts included children and adults who had been caught attempting to flee and were thus seen as “traitors”; individuals who were being punished for the conduct of their parents; those who had not reached twelfth grade because they had dropped out of school, had not attended classes or had not passed exams; and those suspected to have purposely repeated classes several times to avoid reaching twelfth grade and being sent to Sawa (ibid.). One of the most notorious camps was opened in Wi’a in around 2003 and was in operation until its closure sometime before 2010 following a high number of deaths among conscripts (§ 1295). Testimonies corroborated by satellite imagery indicated that Wi’a had subsequently been reopened (ibid.). The Commission found that the harsh treatment, the lack of a clear distinction between training and labour, combined with the blurred line between trainees and detainees suggested that Wi’a may have been used as a re-education and correction camp rather than a normal training centre (§ 1302). 40.     Article 37 of the National Service Proclamation provided for punishments for the non-performance of military service, without prejudice to more rigorous punishment under the 1991 Transitional Penal Code of Eritrea (§ 1234). Under the Transitional Penal Code, this statutory offence could lead to imprisonment for longer periods of time, up to life imprisonment in the case of desertion in times of emergency, general mobilisation or war (ibid.). Desertion from active service could be punished by the death penalty (ibid.). In practice, draft evaders and deserters, if caught, were severely punished (§ 1241), and the treatment of apprehended draft evaders and deserters during detention often amounted to torture, cruel, inhumane or degrading punishment (§ 1389). 41.     The Commission further noted that Eritrea imposed severe restrictions on citizens’ departure from the country (§ 400). Exit visas were required (§ 401). The criteria and conditions for granting an exit visa were not provided for by law and were left to the determination of the Government (§ 402). Testimony collected by the Commission revealed that exit visas were issued to certain individuals like older women, individuals who had completed national service, when the nature of their occupation required regular travel, and individuals who needed medical treatment abroad (§§ 403-404). Proclamation No. 82/1995 prohibited Eritrean citizens of military age from going abroad unless they could prove that they had fulfilled their national service duty or were permanently exempt from doing so (§ 406). 42.     The Commission considered that the testimony collected indicated that the border was relatively porous (§ 416). Escapees usually crossed the border on foot (§ 417) and often hired smugglers who knew where border guards were stationed (§ 418). 43.     As regards individuals forcibly returned to Eritrea, the Commission stated: “431. Individuals forcefully repatriated are inevitably considered as having left the country unlawfully, and are consequently regarded as serious offenders, but also as ‘traitors.’ A common pattern of treatment of returnees is their arrest upon arrival in Eritrea. They are questioned about the circumstances of their escape, whether they received help to leave the country, how the flight was funded, whether they [had] contact with opposition groups based abroad, etc. Returnees are systematically ill ‑ treated to the point of torture during the interrogation phase. 432. After interrogation, they are detained in particularly harsh conditions, often to ensure that they will not escape again. Returnees who spoke to the Commission were held in prison between eight months to three years. Male returnees from [country A] were held on Dhalak Island after a few months of detention at Adi Abeito. Deportees from other countries were held in prisons such as Prima Country and Wi’a. 433. Witnesses who spoke to the Commission noted the severe conditions during their detention. They were made to undertake forced labour and were frequently punished by prison guards for inconsequential matters. [Country A] returnees recounted that, on one occasion, they had been reportedly even denied drinking water where they were detained at Dhalak Island where temperatures often soared to 50   degrees Celsius. As a consequence, many fell sick after drinking unsafe water. ... 435. At no point are returnees given opportunity to contact their families, nor are they informed of the length of their detention. Relatives find out about individuals who have been forcefully repatriated only when the latter manage to escape from the prison or the national service, or flee the country another time. After their release, women and accompanied children are usually allowed to go home. Male unaccompanied minors and those of draft age are sent to military training. 436. The Commission found however two exceptions to the rule that returnees are arrested, detained and forced to enlist in the national service upon their arrival in Eritrea. A group of Eritreans was returned from [country D] with a letter certifying that they had paid the 2 per cent Rehabilitation Tax and had already been detained several years in [country D]. The witness had himself been imprisoned for three years in [country D]. He was given a permit to return to his hometown, but which had to be renewed every two months. He left Eritrea again shortly after being deported. The other case concerned forced repatriations to Eritrea in 2014, where seven older men were reportedly freed while the younger men who were returned in Eritrea at the same time were not released.” 2.     The second report (2016) 44.     On 9 May 2016 the Commission presented its second report to the UN Human Rights Council (A/HRC/32/47), which stated: “33. On 8 April 2015, Yemane Gebreab, at the Bruno Kreisky Forum for International Dialogue, announced that Eritrea intended to limit its military/national service programmes to 18 months. Eight months later, however, the Government stated: Eritrea has no option but to take necessary measures of self-defense that are proportionate to the threat it faces ... This is the reason why National Service – limited by law to 18 months – remains prolonged. 34. In February 2016, the Minister for Information, Yemane Ghebremeskel, confirmed that there were no plans to limit military service programmes, stating that ‘demobilization is predicated on removal of the main threat’, and ‘You are talking about prolongation of national service in response to ... continued belligerence by Ethiopia.’ 35. The commission emphasizes that mandatory military/national service is not necessarily a human rights violation. What distinguishes the military/national service programme in Eritrea from those in other States is (a) its open-ended and arbitrary duration, which routinely exceeds the 18 months provided for in a decree issued in 1995, frequently by more than a decade; (b) the use of conscripts as forced labour in a wide range of economic activities, including private enterprises; and (c) the rape and torture perpetrated in military camps, and other conditions that are often inhumane. ... 37. In its first report, the commission reported extensively on cases of arbitrary detention, enforced disappearance, and torture and other cruel, inhuman or degrading treatment in detention centres, military and civilian, official and unofficial. 38. The commission interviewed many Eritreans who had fled the country in the previous two years and reported that the violations described continue. Almost all of those arrested are detained in violation of fundamental rules of international law. Apart from those accused of minor common crimes or misdemeanours, most are detained without any form of judicial proceeding whatsoever. In the vast majority of those cases, the families of those detained receive no official information about the fate of their relatives. Lastly, many of those detained who spoke with the commission – either because they had been released or because they had escaped – described various forms of torture inflicted on them to obtain information or to punish them for alleged wrongs, or simply to create a general climate of fear. ... 57. In its resolution 29/18, the Human Rights Council extended the mandate of the commission of inquiry to investigate systematic, widespread and gross violations of human rights in Eritrea, including where these violations may amount to crimes against humanity. ... 65. ... [T]he victims of the military/national service schemes in Eritrea are not bought and sold on an open market. Rather, the powers attaching to the right of ownership in Eritrea are revealed by (a) the uncertain legal basis for the national service programmes; (b) the arbitrary and open-ended duration of conscription, routinely for years beyond the 18 months provided for by the decree of 1995; (c) the involuntary nature of service beyond the 18 months provided for by law; (d) the use of forced labour, including domestic servitude, to benefit private, PFDJ-controlled and State-owned interests; (e) the limitations on freedom of movement; (f) the inhumane conditions, and the use of torture and sexual violence; (g) extreme coercive measures to deter escape; (h) punishment for alleged attempts to desert military service, without an administrative or judicial proceeding; (i) the limitations on all forms of religious observance; and (j) the catastrophic impact of lengthy conscription and conditions on freedom of religion, choice, association and family life. ... 68. The commission concludes that there are reasonable grounds to believe that, within the context of military/national service programmes, Eritrean officials exercise powers attaching to the right of ownership over Eritrean citizens. It also determines that, despite the justifications for a military/national service programme advanced in 1995, the programmes today serve primarily to boost economic development, to profit State-endorsed enterprises and to maintain control over the Eritrean population in a manner inconsistent with international law. The commission therefore finds that there are reasonable grounds to believe that Eritrean officials have committed the crime of enslavement, a crime against humanity, in a persistent, widespread and systematic manner since no later than 2002.” 45.     These aspects are further elaborated on in the detailed findings which the Commission presented to the UN Human Rights Council on 8   June 2016 (A/HRC/32/CRP.1). B.     Reports by EASO 1.     The November 2016 report “Eritrea – National Service and Illegal Exit” 46.     In November 2016 EASO published a country of origin information report entitled “Eritrea – National Service and Illegal Exit”. The report was authored by the Swiss State Secretariat for Migration, which also published the German version of the report in June 2016, and reviewed by the Norwegian and Swedish asylum and migration departments prior to its publication. It constituted a partial update of the May 2015 EASO report “Eritrea Country Focus”. 47.     In its introductory chapter (pp. 13-17), the November 2016 report elaborated on the methodology employed and the sources used. A fact ‑ finding mission to Eritrea and neighbouring countries had been conducted in February and March 2016. The report stated: “[It] was not possible to visit any detention facilities during official visits made to Eritrea. Other migration services, international organisations and diplomats likewise had no access to Eritrean prisons. ... Access to information about Eritrea, particularly on human rights issues, is difficult. The Eritrean Ministry of Information controls all media in Eritrea. Researchers, journalists and representatives of human rights organisations are generally unable to conduct research in the country, or can do so only to a very limited degree. The Eritrean authorities publish very little detailed information about the national service. There is a similar lack of transparency regarding the implementation of legislation on national service and illegal exit; and the authorities do not publish any guidelines or implementing provisions. This means that there is a lack of essential sources of information on those topics that are relevant to international protection status determination. The information available is based almost exclusively on the following three categories of sources: Statements made by the Eritrean government : The Eritrean government generally dismisses all allegations of human rights violations. It makes its statements public, inter alia , via Eritrea’s state media, including the portal www.shabait.com. Representatives of the Eritrean government, of the ruling party (the People’s Front for Democracy and Justice, PFDJ) and of organisations close to the government also constantly make statements to foreign media and delegations. These statements can be accessed via the media and in various Country of Origin Information (COI) reports. Assessments by persons in Eritrea : Residents of Eritrea (Eritreans and foreign nationals) are best placed to report on the current situation in the country. However, in the experience of the SEM, their knowledge is limited: just like foreign visitors, people from Asmara who are normally contacted by journalists and other observers have no access, for example, to prisons or military camps, meaning that information they provide is based on reports from acquaintances. In recent years, the Eritrean authorities have appeared to tolerate greater criticism. However, residents of Eritrea are rather cautious and reserved when speaking to foreigners (in particular foreign media and official delegations). Accordingly, situation reports provided by Eritrean residents and foreign observers (diplomats, employees of international organisations) tend to be more positive than those provided by exiled Eritreans. These assessments – predominantly assessments by foreign observers – are accessible, inter alia, in the reports produced by various national COI units in Europe. Assessments by persons who have left Eritrea : Reports by human rights organisations in particular are based to a considerable extent on statements by people who have left Eritrea. In the experience of the SEM, these organisations are mainly contacted by people who claim to have had terrible experiences before leaving the country or who, for other reasons, would like to draw attention to abuses in Eritrea. The Eritrean government is likewise frequently the subject of harsh criticism in pro ‑ opposition diaspora media; there are, however, also pro-government diaspora media. The views of people who have left Eritrea can mostly be found in human rights reports produced by organisations such as Human Rights Watch and Amnesty International or by the US Department of State, and also sometimes in the media in the destination countries of Eritrean migrants. ... The Swiss [Country of Origin Information] unit’s views on the sources used in the individual sections are as follows: Legal position : The Eritrean legal provisions on national service and illegal exits are publicly accessible. However, the authorities’ and the military’s internal guidelines are not accessible despite apparently also being applied in those areas. Position of the Eritrean government : This information is mostly based on statements made by representatives of the Eritrean government, of the authorities, of the ruling party (the PFDJ) or of one of two organisations that are close to the government, the National Union of Eritrean Youth and Students (NUEYS) and the National Union of Eritrean Women (NUEW). During the fact-finding mission, these representatives provided information on the topics covered in this report. The Eritrean authorities proofread and confirmed all the statements taken from the discussions held and used in the report. In addition to the interviews conducted as part of the fact ‑ finding mission, public statements made by representatives of the Eritrean government were also included in the report. The government representatives provided information about the arrangements for dealing with deserters, draft evaders etc. that is at odds with the legal position. However, neither they nor other people interviewed as part of the fact-finding mission were able to substantiate the information provided by means of guidelines, court judgments or statistics. Nor was it possible to discuss issues relating to national service with the competent ministry – the Ministry of Defence. Views of international observers in Asmara : The assessments of the situation by people in Eritrea were mostly obtained by interviewing representatives of international organisations and foreign embassies as well as a number of other residents of Asmara. The views of the international observers are based almost exclusively on anecdotal knowledge acquired from conversations with Eritreans and on the conclusions that they themselves have drawn from that information. Since these observers are based in Asmara, this anecdotal knowledge relates mostly to the capital and its surrounding areas; regional variations cannot be ruled out. They also do not have access to guidelines, court judgments or statistics about the arrangements for dealing with deserters, draft evaders etc. Since only relatively few international representatives reside in Asmara and they are in frequent contact with one another, there is a risk of information round-tripping and false corroboration. In addition, in isolated cases, this section also provides information obtained from interviews with Eritreans living in Asmara. At the request of the people interviewed for this report, the sources of all information of this kind have been made anonymous. 2015 and 2016 reports : Four different categories of reports were used: • Detailed human rights reports published by the UN Commission of Inquiry in June 2015 and 2016 and by Amnesty International in December 2015. Both sets of reports are mainly based on statements made by people who have left Eritrea for reasons that make them very critical on the situation there, and in addition on external experts and public sources. The statements used by Amnesty International relate to 2014 and 2015, and those used by the UN Commission of Inquiry cover the period from 1991 to 2015/2016. • Annual summary reports on the human rights situation in 2015 produced by Amnesty International, Human Rights Watch and the US State Department. These reports are based on a variety of sources, primarily from outside Eritrea, which in most cases are not explicitly stated