Resolution CM/ResDH(2010)10[1]
Execution of the judgment of the European Court of Human Rights
Salah Sheekh against Netherlands
(Application No.1948/04, judgment of 11 January 2007, final on 23 May 2007)
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 the violation of the Convention found by the Court in this case concerns the risk of ill-treatment encountered by the applicant in case his expulsion to Somalia envisaged by the respondent state had been conducted (violation of Article 3) (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)10
Information about the measures to comply with the judgment in the case of
Salah Sheekh against Netherlands
Introductory case summary
The case concerns the Netherlands authorities’ decision of 2005 refusing the applicant (a Somali national and a member of the Ashraf or Reer Hamar minority) protection under the principle of non-refoulement following the rejection of the applicant’s application for asylum (violation of Article 3).
The authorities considered, on the basis of regular country reports drawn up by the Ministry for Foreign Affairs, that the applicant would run no real risk of treatment contrary to Article 3 if he returned to Somalia and that his forced return would not amount to unduly harsh treatment because he could settle in one of the areas of Somalia identified as “relatively safe”.
The European Court found that there could be no guarantee that the applicant, once in a “relatively safe” area, would be allowed to stay in that territory. In the absence of any monitoring of deported, rejected asylum seekers, the Netherlands authorities could have no means of verifying whether or not the applicant had succeeded in gaining admittance there. In view of the positions taken by the de facto authorities in the “relatively safe” areas, the Court considered it unlikely that the applicant would be allowed to settle there. There was a real chance that he would be removed and obliged to go to areas considered unsafe (§143).
The Court also took the view that the applicant’s treatment before he left Somalia could be classified as inhuman within the meaning of Article 3 and that there was no indication that if he returned to Somalia he would be in a significantly different situation from that from which he had fled (§146).
Lastly, the Court considered that the authorities’ assessment of the applicant’s treatment in Somalia had been meted out arbitrarily. If the protection offered by Article 3 were not to be rendered illusory, he could not be required to establish any further special distinguishing feature other than his membership of the Ashraf minority to show that he was at risk. Thus, the Court found that the expulsion of the applicant to Somalia as envisaged by the Netherlands authorities would be in violation of Article 3 (§148).
I.Payment of just satisfaction and individual measures
The applicant has not submitted any claim for just satisfaction before the European Court.
On 10/03/2006 the applicant was granted a residence permit for asylum purposes on the basis of a temporary categorical protection policy (Article 29§1(d) of the Aliens Act 2000) adopted by the Minister of Justice on 24/06/2005 in respect of asylum seekers coming from certain parts of Somalia. Following the European Court’s judgment, the applicant has been granted a new residence permit for asylum purposes on the basis of Article 29§1(b) of the Aliens Act 2000 (risk of torture or inhuman or degrading treatment or punishment), which is valid from June 2005 to June 2010. This residence permit is, in principle, renewable. In addition, the Dutch authorities gave assurances that they will apply the principles of their reformed non-refoulement/expulsion policy in conformity with Article 3 of the Convention (see below under General Measures) in their future decisions concerning the applicant.
II.General measures
1) Publication and dissemination: The European Court’s judgment was published and annotated in numerous legal journals (AB Rechtspraak Bestuursrecht (2007,76), Jurisprudentie Vreemdelingenzaken (2007, 30) and NJCM- Bulletin (2007, pp. 111-113 and 179-194), and the Nederlands Juristenblad (2007-7) issued a special edition on the case. The judgment was broadcast on radio and television. According to the Dutch authorities, in view of the direct effect of the European Court’s judgments in the Netherlands, these measures will allow all authorities concerned to align their practice to the present judgment.
2) Changes in non-refoulement/expulsion policy regarding the assessment of a risk of treatment contrary to Article 3: According to a letter of 22/06/2007 from the State Secretary of Justice to the Dutch parliament, the assessment of an alleged risk of treatment contrary to Article 3 in asylum procedure was adapted. Individuals are still required to show that they have been singled out for persecution, but the overall situation in a country, including the general circumstances (i.e. the fact of being a member of a minority) were included in the assessment. Furthermore, specific groups of asylum seekers (“vulnerable minority groups”, including, inter alia, the Reer Hamar (Ashraf) in Somalia) were identified where the general situation in their country of origin suggested that upon their return they would be in risk of treatment contrary to Article 3 of the Convention. These asylum seekers only have to adduce minor indications to qualify for a residence permit for asylum purposes under Article 29§1(b) of the Aliens Act 2000. This directive was published in the Dutch Government Gazette on 3/08/2007. Finally, assessment is no longer based solely on the country reports of the Ministry of Foreign Affairs but also increasingly on other sources.
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 has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 4 March at the 1078th meeting of the Ministers’ Deputies.
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