Resolution CM/ResDH(2010)177[1]
Execution of the judgment of the European Court of Human Rights
Said against the Netherlands
(Application No. 2345/02, judgment of 5 July 2005, final on 5 October 2005)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that, in this case, the Court found that the applicant’s expulsion to Eritrea would violate Article 3 of the Convention (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)177
Information about the measures to comply with the judgment in the case of
Said against the Netherlands
Introductory case summary
In this case, the applicant, whose request for asylum had been rejected, alleged that his expulsion to Eritrea would him to a real risk of being subjected to torture and/or inhuman or degrading treatment.
The Netherlands authorities, considering that his declarations concerning his detention by the army and his desertion were not plausible, rejected the applicant’s request for asylum. The European Court held that the applicant’s statements were entirely credible, coherent and corroborated by recent international reports. It concluded that the expulsion of the applicant to Eritrea would constitute a violation of Article 3.
I.Individual measures
The European Court made no award for just satisfaction in the absence of a sufficiently specified claim by the applicant.
The applicant was granted asylum in September 2005. On 14 October 2010 the applicant was granted a permanent residence permit. In addition, the Netherlands authorities gave assurances that they will apply the guidelines concerning the implementation of the Aliens Act in conformity with Article 3 of the Convention (see below under General Measures) in their future decisions concerning the applicant’s asylum status.
II.General measures
The Netherlands authorities stated that, when reviewing administrative decisions on asylum, domestic courts decide ex nunc on the basis of information available at the relevant time, deciding also on the admissibility of the new facts or circumstances alleged by the person concerned. New facts and circumstances may also be adduced in a renewed asylum application if the first application is denied.
Furthermore, the authorities stated that, following the Court’s judgment, the Implementation Guidelines for the Aliens Act 2000 were modified. A specific chapter on refugees from Eritrea was added, ensuring among other things that Eritrean deserters and conscientious objectors are more readily considered eligible for a residence permit.
The judgment was published in several legal journals in the Netherlands (NJCM-Bulletin 2005, pp. 831-843; EHRC 2005, pp. 920-928, No. 93; NJB 2005, p. 2099, No. 40; and AB 2005/368).
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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