The case of A.M.M. v. Switzerland. The opinion of the Committee dated February 18, 2014. Communication No. 50/2012.
In 2012, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Switzerland.
In the Committee's view, the author failed to demonstrate discrimination based on his ethnic origin or Somali nationality. The Committee concluded: the facts presented did not confirm the manifestation of discrimination based on "race, skin color, descent, national or ethnic origin", within the meaning of article 1 of the Convention on the Elimination of All Forms of Racial Discrimination and, as a result, there was no violation of the international treaty in question.
According to the author, the authorities of the State party categorize asylum seekers according to their background, their political and religious beliefs, as well as their intellectual level and possible plans. The actions and positions of the authorities, who have the ability to control his access to the labor market, medical care and vocational training, invade his privacy, as well as act contrary to his interests in any body, are directly related to his origin, identity, biography and personal characteristics. The author pointed out that his treatment was not equal to that of the rest of the population and that, despite his numerous complaints to various authorities, no investigation had been launched to identify the machinations of the authorities against the author. Therefore, the author claimed that the actions of the authorities towards him constituted a violation by the State party of the provisions of the Convention (paragraph 3 of the Opinions).
The Committee's legal position: according to article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, the expression "racial discrimination" means any distinction, exclusion, restriction or preference based on race, skin color, descent, national or ethnic origin, with the purpose or consequence of destroying or diminishing recognition, use or exercise on an equal basis human rights and fundamental freedoms in political, economic, social, cultural or any other areas of public life. The Committee also recalls article 1, paragraph 2, which states that the Convention does not apply to distinctions, exceptions, restrictions or preferences that States parties make between citizens and non-citizens, and paragraph 3 of the same article, according to which nothing in the Convention can be interpreted as affecting in any way the provisions of the legislation of the participating States relating to nationality, citizenship or naturalization, provided that, that such rulings do not discriminate against any particular nationality (paragraph 8.5 of the Opinion).
The Committee's assessment of the factual circumstances of the case: the author of the communication proceeded from the following: his temporary residence status and the actions and positions of the authorities resulting from this status give them the opportunity to control the author's access to the labor market, medical care, academic and vocational education, invade his privacy, as well as act in any body contrary to the interests of the author. According to the author, these actions, which provide the perpetrators with ample opportunities for maneuver, in practice are directly related to his origin, identity, biography and personal characteristics. The Committee noted that these allegations of the author were convincingly supported by concrete examples of actions that the author considered to be manifestations of discrimination against him. In particular, the Committee pointed to the author's allegations of obstacles to his access to work, vocational and higher education, as well as access to medical care (paragraph 8.3 of the Opinion).
The State party argued that the author's complaints were based solely on his status in terms of aliens legislation, and not on his origin or his Somali nationality, and that the relevant provisions did not apply only to Somali citizens or to any particular group of persons within the meaning of article 1 of the Convention. The Committee noted that, in the State party's view, temporary residence constitutes a legal status and that there is no special relationship between this status and the person concerned and his characteristics that may give rise to discrimination (paragraph 8.4 of the Opinion).
The Committee considered that the author had failed to demonstrate discrimination based on his ethnic origin or Somali nationality. Therefore, the Committee did not find in the present case that the facts presented to it confirmed discrimination based on "race, colour, descent, national or ethnic origin", within the meaning of article 1 of the Convention (paragraph 8.6 of the Opinion).
The Committee noted that the State party itself has recognized the detrimental effects of temporary residence status on the basic spheres of life of this category of non-citizens, in some cases remaining for a long time in a situation that is intended to be transitional. The Committee therefore drew the attention of the State party to its obligations under the Convention and referred to its general recommendation XXX (2004) on discrimination against non-citizens, where the Committee, in particular, recalled the obligation of States parties to take measures to eliminate discrimination against non-citizens regarding working conditions and work requirements, including employment rules and practices having discriminatory purposes or consequences (paragraph 10 of the Opinion).
The Committee's conclusions: the facts presented did not indicate a violation of the Convention.