I. Alleged violation of Article 3 of the Convention
54. The applicant complained that he would face a real risk of being subjected to treatment in breach of Article 3 of the Convention if he were deported to Eritrea. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
55. The Government contested that argument.
56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
57. The applicant submitted that he would be arrested immediately at the airport in Asmara if he were deported to Eritrea, as the Eritrean authorities would realise that he had neither a passport nor an exit visa and was of draft age. He would then face arbitrary detention, torture, and arbitrary and inhumane punishment at the hands of either the secret service or the police owing to his desertion and illegal exit. Afterwards he would be returned to the commander of his military unit, who could also punish him arbitrarily.
58. The applicant asserted that his account as presented to the Swiss authorities was consistent and credible. He had provided satisfactory explanations as to the alleged discrepancies, and sufficient evidence in support of his account. There were no strong reasons to question the veracity of his account. Moreover, he was to be accorded the benefit of the doubt. Mainly repeating the submissions he had made in his appeal to the Federal Administrative Court with regard to the duration and end of his schooling, the commencement, duration and content of his military training, the date, duration and conditions of his detention, and his escape from detention, he claimed that that court had not addressed all aspects of his submissions, and had carried out a brief and superficial assessment.
59. In particular, the Federal Administrative Court had drawn wrongful conclusions in relation to his illegal exit. His account was concrete, substantial and reflected his personal experiences, such as losing his way. It could not be dismissed as lacking credibility. His statements concerning the smuggler were not contradictory. They had crossed the border by crossing the river Mereb at night and, as the river was dry for most parts of the year, they had not perceived it as anything but a rift, hence their not realising that they had crossed the border until they had been apprehended by Ethiopian soldiers. Moreover, the documents he had submitted, notably the marriage certificate of 2010 and the baptism certificate of his son of 2012, showed that he had been living in Eritrea when he was of draft age, and that he had been registered in a refugee camp in Ethiopia in November 2013, as confirmed by UNHCR. It was impossible for him to confirm his illegal exit by way of additional evidence, since he had left the country from an area without a border post. He had been in good health and thus not in need of medical treatment which was only available abroad, was poorly educated and thus unable to get a scholarship abroad, and was neither a businessman nor a sportsman. Consequently, it had been impossible for him to obtain an exit visa required for a lawful exit. He had therefore proved or at least established prima facie that he had exited Eritrea illegally. The Government had failed to present a plausible alternative story as to how he could have left Eritrea legally.
60. The applicant asserted that the report by the State Secretariat for Migration of June 2016, to which the Government had referred in their submissions, and which had been published as the EASO report “Eritrea – National Service and Illegal Exit” in November 2016 (see paragraphs 46 to 48 above), did not meet the standards for country information as established by the case-law of the Court in terms of independence, reliability and objectivity of sources. Relying on Saadi v. Italy [GC] (no. 37201/06, § 143, ECHR 2008) and NA. v. the United Kingdom (no. 25904/07, §§ 119-120, 17 July 2008), he argued that the sources used by that report were not sufficiently independent, reliable or objective. Most of the information came from anonymous sources. Reiterating that the Court generally exercised caution when considering reports from anonymous sources which were inconsistent with the remainder of the information before it (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 234, 28 June 2011), he submitted that the report ran counter to the reports of, inter alia, the Commission. The fact-finding mission during which the information had been gathered had not visited detention centres or military institutions. Rather, the report was mainly based on statements by representatives of the Eritrean government and public authorities, who had an interest in portraying the situation in a positive light. Likewise, the interviews with returnees had been arranged for and conducted in the presence of government officials, who had also ensured the translation of the statements, following instructions from an official circular. The applicant made reference to one source who had made a sensitive statement contrary to that circular and had had to flee the country immediately to avoid grave repercussions. Prior to the report’s publication, the Eritrean authorities, which did not allow international organisations to conduct investigations in the country, had cross-checked and confirmed all the statements used.
61. The applicant further referred to the judgment of the Upper Tribunal of 10 October 2016 in the case of MST and Others (see paragraph 52 above), and relied in particular on that judgment’s findings. Firstly, it could not be established that the payment of the 2% diaspora tax and the signing of the letter of regret would enable draft evaders and deserters to reconcile with the Eritrean authorities (see paragraph 52 above, §§ 333-334 and 431 point 7 (i) of the judgment). Secondly, a person whose asylum claim had not been found credible, but who was able to satisfy a decision-maker (i) that he or she had left illegally, and (ii) that he or she was of or approaching draft age, was likely to be perceived on return as a draft evader or deserter from national service, and as a result face a real risk of persecution or serious harm (see paragraph 52 above, § 431 point 9 of the judgment). The applicant argued that his illegal exit was sufficient for him to be perceived as a draft evader or deserter and to face ill-treatment as a result. He could not avoid such harm by paying the 2% diaspora tax. In the light of the Upper Tribunal’s findings, little or no weight should be given to the report by the State Secretariat for Migration.
(b) The Government
62. The Government submitted that the applicant mainly challenged the Swiss authorities’ assessment of evidence, emphasising that it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, which were, as a general principle, best placed to assess the evidence before them. They reiterated that it was the applicant who had to adduce evidence capable of proving that there were substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. They acknowledged that, owing to the special situation in which asylum-seekers often found themselves, it was frequently necessary to give them the benefit of the doubt in relation to assessing the credibility of their statements. Relying on A.F. v. France (no. 80086/13, § 46, 15 January 2015), the Government submitted that, when information was presented which gave strong reasons to question the veracity of an asylum-seeker’s submissions, the individual had to provide a satisfactory explanation for the alleged inaccuracies in those submissions.
63. Observing that these discrepancies in the applicant’s account related to the duration and end of his schooling, the date of commencement and duration of his military training, the duration of his detention and the circumstances of his escape, as well as his illegal exit from Eritrea, the Government submitted that these aspects had been the subject of detailed analyses by both the State Secretariat for Migration and the Federal Administrative Court. In substance, the Government mainly repeated the arguments of the domestic authorities. In relation to the alleged illegal exit, they submitted in particular that the applicant had not explained the discrepancies concerning the time between his escape from detention and his departure from Eritrea, and had made contradictory statements concerning the person who had facilitated his attempt to flee. They submitted that it was hard to imagine that the applicant and the smuggler had not realised that they had crossed the border and gone into Ethiopia at the river Mereb before being apprehended by Ethiopian soldiers, even though that river was dry for large parts of the year. The documents submitted by the applicant, notably the confirmation of his registration in the Hitsas refugee camp, did not prove that he had left Eritrea illegally.
64. The Government concluded by stating that the applicant had failed to clarify the significant discrepancies in his account, and that these could not be explained by the mere passage of time between his interviews with the asylum authorities. In view of the absence of substantive statements and evidence, the Federal Administrative Court could not be criticised for dismissing the applicant’s account as not credible. Despite being granted an additional opportunity to clarify existing doubts concerning his allegedly illegal exit in the form of a third interview, the applicant had not presented a plausible account in relation to his alleged desertion or his alleged illegal exit, distinguishing his case from that of Said v. the Netherlands (no. 2345/02, ECHR 2005 VI).
65. Referring to the information on Eritrea, notably the reports by the State Secretariat for Migration of June 2016, which had been published as an EASO report in November 2016 (see paragraphs 46 to 48 above), the Government argued that the human rights situation was not such that any removal to Eritrea would be in breach of Article 3 of the Convention. In relation to illegal exit in particular, they submitted that, in some cases, people who had left Eritrea illegally were detained without being charged and could spend up to five years in detention. In other cases, however, the people concerned were reassigned to national service or not sanctioned at all. In the majority of documented cases it was not possible to ascertain whether a sanction had been imposed as result of the illegal exit or for other reasons, such as desertion or disciplinary issues. They argued that an illegal exit from Eritrea was not in itself sufficient to put a person at risk of treatment in breach of Article 3 of the Convention. Notably, this concerned people who had left Eritrea prior to reaching draft age and people who had left Eritrea after completing national service.
66. In response to the applicant’s criticism that the report by the State Secretariat for Migration did not meet the relevant standards for country information reports, the Government pointed out that the report contained several references to sources other than the Eritrean authorities, notably independent organisations and representatives of international organisations, whose statements partly contradicted those of the authorities. All sources used, including those which were anonymised, were evaluated in a thorough and transparent manner. The type of source was systematically indicated throughout the report, and the credibility of the different sources was taken into consideration in the conclusions of each chapter. Adding that the weaknesses of the report were made transparent in the report itself, and were also reflected in the conclusions of each chapter, the Government concluded by saying that the report was both comprehensive and balanced.
67. In so far as the applicant alleged that parts of the report were superseded by the judgment of the Upper Tribunal of 10 October 2016, the Government contested that the respective change of practice pertained to the United Kingdom only, emphasising that neither the Norwegian nor the Swedish asylum and migration departments had expressed reservations in respect of the conclusions drawn during the peer review of the report in November 2016 in connection with its publication as an EASO report that month. In any event, as the applicant’s account as a whole had been dismissed as not credible, his submissions concerning the question of whether or not he could avoid excessive sanctions by paying the 2% diaspora tax were not pertinent.
2. The Court’s assessment
(a) General principles
68. The relevant general principles concerning the application of Article 3 have recently been summarised by the Court in J.K. and Others v. Sweden [GC] (no. 59166/12, §§ 77-105, ECHR 2016).
(b) Application of these principles to the present case
69. In accordance with the Court’s established case-law, the existence of a risk of ill-treatment must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see F.G. v. Sweden [GC], no. 43611/11, § 115, ECHR 2016). However, if the applicant has not yet been deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi, cited above, § 133). Since the applicant in the present case has not yet been deported, the question of whether he would face a real risk of persecution upon his return to Eritrea must be examined in the light of the present-day situation.
70. The Court notes that it is evident from the current information on Eritrea that the human rights situation in the country is of grave concern, and that people of various profiles are at risk of serious human rights violations. This is also evidenced in 92% of the applications in 2016 for international protection by Eritrean nationals in Member States of the European Union plus Switzerland and Norway resulting in either refugee status or another form of protection (see paragraphs 36 to 52 above). Reiterating that a general situation of violence would, however, only be of sufficient intensity to create a real risk of treatment contrary to Article 3 of the Convention “in the most extreme cases” where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see, for instance, Sufi and Elmi, cited above, §§ 216 and 218, and J.K. and Others v. Sweden, cited above, § 86, with further references), the Court notes that none of the reports conclude that the situation in Eritrea, as it stands, is such that any Eritrean national, if returned to his or her country, would run such a risk, nor do the reports contain any information capable of leading to such a conclusion. The Court therefore finds that the general human rights situation in Eritrea does not prevent the applicant’s removal per se.
71. Hence, the Court must assess whether the applicant’s personal circumstances are such that he would face a real risk of treatment contrary to Article 3 of the Convention if expelled to Eritrea.
72. The applicant claimed to be at risk of ill-treatment owing to his desertion from military service and his illegal exit from Eritrea, things which in themselves were sufficient to lead to the perception that he was either a draft evader or deserter, considering that he was of draft age. The Court notes that the harsh punishment of deserters and people of draft age who leave Eritrea illegally continues to be widely reported (see paragraphs 40, 48 and 52 above, §§ 281, 283, 354-355, 366-368, and 431 points 7 and 9 of the judgment). It also notes that there are somewhat different assessments as to whether such harm could be avoided by signing a letter of regret and paying a 2% diaspora tax (compare paragraphs 48 and 52 above, §§ 333-334 and 431 point 7 (i) of the judgment). Forcible return to Eritrea is likely to put the person concerned at increased risk of ill treatment (see paragraphs 43, 48 and 52 above, §§ 366-367 of the judgment).
73. Noting that the Swiss authorities dismissed the applicant’s account as not credible, the Court reiterates that, as a general principle, the national authorities are best placed to assess the credibility of an individual, since it is they who have had an opportunity to see, hear and assess his or her demeanour (see, for example, F.G. v. Sweden, cited above, § 118). It also reiterates that asylum-seekers are normally the parties who are able to provide information about their own personal circumstances, which is why the burden of proof, as far as individual circumstances are concerned, should in principle lie with the applicant, who must submit, as soon as possible, all evidence relating to his or her individual circumstances that is needed to substantiate his or her application for international protection (J.K. and Others v. Sweden, cited above, § 96).
74. The Court observes that the applicant did not submit direct documentary evidence relating to a real risk of ill-treatment which he would face in Eritrea. While this cannot be decisive per se (ibid., § 92), it distinguishes the present case from that of M.A. v. Switzerland (no. 52589/13, 18 November 2014). In that case, the failure of the domestic authorities to conduct a meaningful assessment of documentary evidence relating to the alleged risk of ill-treatment in the country of origin played a crucial role in finding that the applicant in that case had adduced evidence capable of proving that there were substantial grounds for believing that, if expelled, he would be exposed to a real risk of treatment contrary to Article 3 of the Convention.
75. Reiterating that the rules concerning the burden of proof should not render the applicant’s rights under Article 3 of the Convention ineffective, and that it is frequently necessary to give asylum-seekers the benefit of the doubt when assessing the credibility of their statements (J.K. and Others v. Sweden, cited above, §§ 93, 97), the Court notes that the Federal Administrative Court found that there were several discrepancies in the applicant’s account. The account also lacked substance and detail, notably with regard to the end of his schooling, the date of commencement, duration and content of his military training, as well as the duration and dates of his detention (see paragraph 28 above). The discrepancies and credibility concerns thus related to core aspects of the applicant’s claim and his account as a whole (compare and contrast N. v. Finland, no. 38885/02, §§ 154-155, 26 July 2005).
76. The applicant submitted that it had been impossible for him to obtain an exit visa required for lawful exit, given his age, health, level of education, and lack of involvement in business or sports (see paragraph 59 above). He relied on the country information which stated that the illegal exit of a person of draft age was sufficient for that person to be perceived as a draft evader or deserter, and consequently face ill-treatment upon a forced return to Eritrea (see paragraph 52 above, §§ 344-347, 354-356, 366-368, 370 and 431 points 7 (iii) and 9 of the judgment). In addition, he referred to the requirement to obtain an exit visa in order to leave Eritrea legally, and the categories of people eligible for exit visas (see paragraphs 41 and 52 above, §§ 308, 326, 328 and 431 point 4 of the judgment). He also relied on his student identity card, his marriage certificate and his son’s baptism certificate to support his claim that he had been living in Eritrea when of draft age, and added that it was impossible for him to confirm his illegal exit by way of additional evidence, as he had left the country on foot from an area without a border post. He also relied on his registration as a prima facie refugee in the Hitsas refugee camp in November 2013 to support his claim.
77. The Court acknowledges that, in circumstances such as those claimed by the applicant, it is impossible to confirm an illegal exit from Eritrea by way of documentary evidence. It is for precisely that reason that decisive weight is attached to the plausibility of the applicant’s testimony. The Court notes that his account appears plausible in the light of the country information on Eritrea, and that some specific elements of his account were corroborated by the country information, notably that the Eritrean authorities initially refrained from drafting him because of his role as a church deacon, as they deferred the draft of clerics until a change in practice in 2010 led to a stricter approach (see paragraph 49 above), and that students with poor grades were typically assigned to Wi’a for military training (see paragraph 51 above).
78. However, the Court also notes that, in their submissions, the State Secretariat for Migration, the Federal Administrative Court and the respondent Government pointed towards a number of discrepancies and a lack of substance and detail in various parts of the applicant’s account, including in relation to his departure from Eritrea and other key elements of his claim. It observes that the State Secretariat for Migration heard the applicant in person three times, explicitly informed him about credibility concerns at the beginning of the third hearing, and gave thorough reasons for its assessment as to why it did not consider his account credible, in relation to his alleged illegal exit or at all (see paragraphs 19 to 21 above). The Court also observes that the applicant undertook to explain the alleged discrepancies in his submissions to the Federal Administrative Court (see paragraphs 22 to 27 above). That court, in turn, gave thorough reasons as to why it did not consider his account in relation to his alleged illegal exit credible, also by drawing inferences from the concerns about the overall credibility of his account (see paragraphs 28 to 32 above).
79. In so far as the applicant asserted that he had credibly demonstrated that he had left Eritrea illegally, and that the Government had failed to present a plausible alternative story as to how he could have left Eritrea legally (see paragraph 59 above), the Court reiterates that it was for the applicant to substantiate his claim, at least as far as his individual circumstances were concerned. In that regard, the Court notes that the applicants in the case of J.K. and Others v. Sweden (cited above) had credibly confirmed that they were victims of past ill-treatment. The Court considered that past ill-treatment served as an indicator of future ill-treatment, and that the information available on the country concerned confirmed such a risk, concluding that it was for the respondent Government to dispel any doubts about that risk (ibid., § 102). In the context of Eritrea, a similar distribution of the burden of proof may apply where it is likely – if need be by drawing inferences from the overall credibility of the person’s account – that a person left the country illegally despite being of or approaching draft age (see also paragraph 52 above, § 431 point 9 of the judgment of the Upper Tribunal of the United Kingdom in the case of MST and Others), leaving it for the authorities to dispel any doubts about risks upon return despite those factors. However, the shared burden of proof cannot be construed in a way which would require the authorities to prove that the applicant in question left Eritrea legally in each and every case, notably where the applicant’s overall account was not deemed to be credible. The Court shares the views of the Upper Tribunal that a person whose asylum claim has not been found credible cannot be assumed to have left Eritrea illegally (ibid., § 431 point 5), and that being a failed asylum-seeker is not in itself sufficient for a person to face a real risk of treatment contrary to Article 3 of the Convention upon his or her removal to Eritrea (ibid., §§ 335-337 and 431 point 6).
80. Having regard to the above, and reiterating that the Convention system is founded on the principle of subsidiarity, and that it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, which are, as a general principle, best placed to assess the evidence before them, the Court is satisfied that the assessment made by the domestic authorities was adequate, sufficiently reasoned, and supported by material originating from reliable and objective sources (see F.G. v. Sweden, cited above, § 117). It endorses the assessment by the Swiss authorities that the applicant failed to substantiate that he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if forced to return to Eritrea.
81. Consequently, his expulsion to Eritrea would not involve a violation of Article 3 of the Convention.
II. Alleged violation of Article 4 of the Convention
82. The applicant alleged that he would risk being subjected to treatment in breach of Article 4 of the Convention if he were deported to Eritrea. He claimed that he would be sent back to his military unit and forced to carry out indefinite military service, which, in its current state, would violate his right not to be held as a slave or in servitude and not to be required to perform forced labour.
A. The parties’ submissions
1. The Government
83. The Government submitted that the applicant had not exhausted domestic remedies in relation to this complaint, and argued for it to be dismissed as inadmissible in accordance with Article 35 § 1 of the Convention. They submitted that, before the Federal Administrative Court, the applicant had alleged a fear of ill-treatment upon his removal due to his desertion and illegal exit from Eritrea. Before the domestic authorities, he had neither explicitly nor in substance alleged a risk of slavery, servitude and/or forced labour in the Eritrean military if he were removed to Eritrea.
84. Referring to the case-law of the Federal Administrative Court (see paragraph 35 above), the Government asserted that the applicant’s submissions before the Court relating to his fear of slavery, servitude and/or forced labour in the Eritrean military constituted an example of a new asylum application, as the relevant facts – the details of the conditions of military service in Eritrea and its legal classification – had not been known at the time of the last domestic decision, and the new submissions would seek to establish the applicant’s refugee status and not only relate to impediments to the enforcement of his removal. Therefore, this did not constitute an extraordinary remedy. Consequently, the applicant could not be exempted from the requirement of pursuing it before the domestic authorities. The Government added that they would not speculate as to the outcome of such an application.
2. The applicant
85. The applicant contested the Government’s arguments. He pointed out that he had stated in his appeal to the Federal Administrative Court that he had also fled Eritrea out of fear of having to return to the military service from which he had escaped. Acknowledging that he had not argued before that court that the military service constituted slavery, servitude and/or forced labour, he argued that he could only reasonably have been expected to make this claim following the publication of the detailed findings of the Commission on 8 June 2016, which had provided the necessary details about the different human rights violations inherent to military service in Eritrea. At the same time, he submitted that this new fact was merely a new legal classification of military service in Eritrea, and that he had asserted the fear of being forced to return to military service in substance before the domestic authorities, and the reasons for his departure had been examined in the set of proceedings leading to the present application. A new asylum application therefore constituted an extraordinary remedy which he did not need to make use of to comply with the requirements of Article 35 § 1 of the Convention.
86. In that regard, he also argued that it was clear from the outset that such a new asylum application would have no prospects of success. The Swiss authorities had dismissed his account in its entirety owing to a lack of credibility. He had no new facts or evidence to present to establish the credibility of his account. Hence, there was no prospect that the domestic authorities would arrive at a different conclusion in relation to his claim that he feared being forced to perform military service in breach of Article 4 of the Convention.
B. The Court’s assessment
87. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, the purpose being to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010). While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the competent domestic courts, at least in substance (ibid.; see also Association Les témoins de Jéhovah v. France (dec.), no. 8916/05, 21 September 2010).
88. Applicants are only obliged to exhaust domestic remedies offering reasonable prospects of success (Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009). A mere doubt on the part of the applicant as to the prospects of success of a particular remedy will not absolve him or her from the obligation to try it (Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002). Extraordinary remedies normally need not be used (Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002).
89. The Court notes that the applicant’s claim as presented to the State Secretariat for Migration and the Federal Administrative Court focused on the risk that he would face ill-treatment if he were deported to Eritrea, for reasons of his alleged desertion from the military and his illegal exit. He did not argue before the domestic authorities that the military service constituted slavery, servitude and/or forced labour, as he has acknowledged himself (see paragraph 85 above). In so far as he asserted before the Court that he had claimed to fear being forced to return to military service following his deportation, it has to be noted that the applicant stated in his appeal to the Federal Administrative Court that, following his escape from prison, he had feared that he would be detained once again or forced to perform military service, and had therefore decided in early October 2013 to leave the country illegally (see paragraph 22 above). The Court considers that, in the set of proceedings leading to the present application, the description of this fear was primarily relevant to the description of the circumstances of the applicant’s departure from Eritrea, and not as relevant to the dangers he would be exposed to if he were forcibly returned (compare and contrast Kalantari v. Germany (dec.), no. 51342/99, 28 September 2000).
90. The Court observes that the Federal Administrative Court rendered its decision on the applicant’s appeal on 9 May 2016. It considers that the applicant could only reasonably have made his claim that military service in Eritrea constituted slavery, servitude and/or forced labour after the publication of the second report of the Commission on 9 May 2016. More importantly, he could only have done so after the detailed findings of that report, published on 8 June 2016, had provided the necessary details about the human rights violations inherent in military service in Eritrea (see paragraphs 44 and 45 above). It also notes that country information on Eritrea which has been published since considers that, even if a person likely to be perceived as a draft evader or deserter could avoid punishment in the form of detention and ill-treatment, he or she would likely be assigned to perform (further) national service, which would likely amount to treatment contrary to Articles 3 and 4 of the Convention (see paragraph 52 above, § 431 point 7 (ii) of the judgment of the Upper Tribunal).
91. Indeed, the Court notes that the Government, referring to the case-law of the Federal Administrative Court (see paragraph 35 above), submitted that the applicant’s submissions relating to his fear of slavery, servitude and/or forced labour in the Eritrean military constituted an example of a new asylum application, as the relevant facts – the details of the conditions of military service in Eritrea and its legal classification – had not been known at the time of the last domestic decision, and the new submissions would seek to establish the applicant’s refugee status (see paragraph 84 above). Therefore, the Court considers that the applicant may institute a new set of proceedings for asylum or temporary admission, in which his claim regarding Article 4 of the Convention will be examined on the merits by the State Secretariat for Migration and, in the event of an appeal, by the Federal Administrative Court. A new asylum application based on this claim would thus not constitute an extraordinary remedy.
92. The Court reiterates that a mere doubt on the part of the applicant as to the prospects of success of a particular remedy does not absolve him from the obligation to try it. It also reiterates the Government’s submission that they would not speculate as to the outcome of a new asylum application based on the applicant’s fear of being sent back to his military unit and forced to carry out indefinite military service, which, in its current state, would violate his right not to be held as a slave or in servitude and not to be required to perform forced labour. The Court adds that the applicant has the opportunity to lodge a new application before the Court, should such a new asylum request be rejected by the domestic authorities and courts.
93. In view of the foregoing considerations, the Court finds that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
1. Declares the complaint concerning Article 3 of the Convention admissible, and the remainder of the application inadmissible;
2. Holds that the implementation of the expulsion order against the applicant would not give rise to a violation of Article 3 of the Convention;
3. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final, or until further order.