Information Note on the Court’s case-law No. 77
July-August 2005
Said v. the Netherlands - 2345/02
Judgment 5.7.2005 [Section II]
Article 3
Expulsion
Impending expulsion to Eritrea of alleged deserter: violation
The applicant, an Eritrean national, arrived in the respondent State in May 2001 and applied for asylum, claiming hat he had served as a soldier fighting in the war against Ethiopia. Although the war had ended in June 2000, the troops had not been demobilised until considerably later because the Eritrean authorities had feared further military incursions from the Ethiopians. In August 2000 a meeting had been held with the applicant's battalion, at which the commanders had told the soldiers they had not fought well. The applicant had spoken out at the meeting, complaining that the commanders had forced the soldiers, who were hungry, thirsty and tired, to continue fighting and that this had resulted in casualties. He had said his unit should be replaced or strengthened. Other soldiers had supported him and an argument had ensued. In December 2000 he had been accused of inciting the soldiers, ordered to hand over his weapons and detained in an underground cell for almost five months without being interviewed, charged or brought before a military tribunal. In April 2001 he had been put into a jeep, with a driver and a guard who were armed. He had been neither handcuffed nor bound. While driving, they had passed a military vehicle which had had an accident. Both the driver and the guard had left the car to see if they could help, leaving the applicant, who had escaped through the back of the car. The applicant had made his way to Sudan and, after passing through various other countries, to the Netherlands. In May 2001 the Deputy Minister of Justice, applying an accelerated procedure, rejected the applicant's request for asylum. His failure to submit any document capable of establishing his identity, his nationality or his travel itinerary was held to affect the credibility of his statements. The Deputy Minister also considered the applicant's account of his alleged escape to be implausible. The applicant appealed unsuccessfully.
Law – Article 3: The applicant's statements had been consistent and he had provided information to refute the Government's claim that his account lacked credibility. Even though the material submitted was of a general nature, it was difficult to see what additional evidence the applicant could reasonably have been expected to produce in support of his version of events. A strong indication that he was a deserter lay in the fact that he had applied for asylum in the Netherlands in May 2001, a year before demobilisation begun. Although the war had ended in June 2000, the information available suggested that the Eritrean authorities had not demobilised their troops quickly and were eager to keep their army at full strength. In the overall circumstances it was difficult to imagine by what means other than desertion the applicant might have left the army. Even if the account of his escape might have appeared somewhat remarkable, the Court considered that it did not detract from the overall credibility of the applicant's claim that he was a deserter. As to whether he would risk ill-treatment if returned the Court noted various country reports describing the treatment of deserters in Eritrea which constituted inhuman treatment. The applicant had maintained that he had already been arrested and detained by Eritrean military authorities after he had spoken out at the battalion meeting. In the overall circumstances substantial grounds had been shown for believing that, if expelled at the present time, the applicant would be exposed to a real risk of being treated or punished in violation of Article 3.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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