Military Service Case

Concerning Ms.F.K vs Denmark for violation of article 2, 7, 14 and 26 of CCPR.

The author is a citizen of Eritrea. She and her family fled in 1985 to Sudan. She married a Sudanese man in 1996, but was expelled from the family for doing this. Unfortunately her husband died, so she married a new man in 2006 also from Sudan, whom she since then has had two children with. In the time between her first husband dying and meeting the new husband, she went back to Eritrea, but her family did not accept her, and she was put in a prison by the police, as they accused her of being a spy. Eventually she escaped back to Sudan where she met her husband. Her spouse was persecuted by the Sudanese authorities, so he decided that they should flee to Europe. During the flight she lost contact, and she is presently seeking protection for herself and her two youngest children born in 2007 and 2009.

Military service is compulsory in Eritrea for both men and women. On return to Eritrea she fears persecution because she left the country illegally without performing military service. She fears that on return, she will be subject to lengthy imprisonment, serious abuse, torture and disappearance. For reasons of consciences, she can not carry weapons but if she refuses to perform military service she will be persecuted.

The Immigration Service rejected her application for asylum on the 2 February 2010. The application had been treated in the manifestly unfounded procedure, and as such the decision could not be appealed to the Refugee Appeals Board.

The issue at the heart of the case is that the Immigration Service refusal was mainly based on her status as a mother. The children would not be at immediate risk from family or other if they were to return, and she was therefore refused asylum. However, the main issues are the military service and that she fled the country illegally which could put her in risk of persecution. The fact that these issues were not considered by the Immigration Service could be due to mistakes, however, then the applicant should have the right to appeal to remedy the mistake.

Consequently the Human Rights Committee can and should invoke the standard setting by CERD in the interpretation of CCPR article 2 and 26. Since the treatment is discriminatory with regard to the right to a fair trial and the right not be subject to torture, cruel or inhumane treatment. It is thus argued that Denmark is violating article 2, 7, 14 and 26.

UPDATE: this case has been discontinued, after the Danish Refugee Board reopened the case and granted the author asylum.

24. November 2023

CCPR 2074/2011
Comm: Human Rights