Salah Sheekh v. the Netherlands

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 93

January 2007

Salah Sheekh v. the Netherlands - 1948/04

Judgment 11.1.2007 [Section III]

Article 3

Degrading treatment

Inhuman treatment

Proposed deportation of asylum seeker to “relatively safe area” of Somalia: expulsion would violate Article 3

Article 13

Effective remedy

Application for a stay of execution of a deportation order: no violation

Article 37

Temporary arrangements for asylum seeker insufficient to “resolve matter”: no reason to strike out

Facts: The applicant, a Somali national born in 1986, left Somalia on a false passport in May 2003 and asked for asylum on arriving at Amsterdam Schiphol Airport. He explained that his family, who were members of the minority Ashraf population group, had left Mogadishu in 1991 because of the civil war and taken refuge in a village 25 kilometres away, where they had been robbed of their remaining possessions. The village was controlled by the Agbal clan, whose armed militia persecuted the applicant and his family and three other Ashraf families, knowing that they had no means of protection. In various incidents ranging over several years the militia had killed his father and brother, violently assaulted him and his brothers and twice abducted and raped his sister. His request for asylum was refused in June 2003, as the Minister for Immigration and Integration considered, inter alia, that he did not qualify for refugee status, there being no evidence that he had made himself known as an opponent to the (local) regime, was a member or sympathiser of a political party or movement or had ever been arrested or detained. The Minister found that the applicant's problems were not the result of major, systematic acts of discrimination, but a consequence of the general unstable situation in which criminal gangs frequently, but arbitrarily, intimidated and threatened people. There was, therefore, no real risk of his being subjected to treatment proscribed by Article 3 upon his return to Somalia and arrangements could be made for him to settle in one of the areas which the Netherlands authorities classified as “relatively safe”. An appeal by the applicant to a regional court was dismissed. After being informed that he was to be issued with a European Union travel document and deported to one of the “relatively safe areas”, the applicant lodged an objection with the Minister and requested the regional court to stay his deportation pending the hearing of the objection. He argued, inter alia, that, as a member of a minority unable to obtain protection from one of the ruling clans, even if he went to one of the “relatively safe areas” he would be forced to live in a camp for internally displaced persons where conditions were appalling. The applicant's objection to the Minister's decision and his request for a stay were dismissed. However, in the interim the Netherlands authorities cancelled the arrangements for the applicant's expulsion and released him from detention after receiving an indication under Rule 39 from the Court. The applicant was subsequently permitted to apply for a residence permit under temporary arrangements that had been adopted in the interim by the Minister for certain categories of asylum seeker from Somalia. He was granted asylum in March 2006.

Law: Article 37(1)(c) – While the applicant was in no danger of immediate expulsion, the Court nevertheless found that the temporary arrangements that had been put in place for certain categories of asylum seeker from Somalia did not constitute a solution of the matter, as the authorities had unambiguously stated that these would be reviewed once the Court had decided the merits of the cases concerning Somali nationals in which it had indicated an interim measure. Continuing with the examination of the application thus appeared to be the most efficient way of proceeding, especially bearing in mind that if the application was struck out and the arrangements were then withdrawn, the applicant would in all probability seek the restoration of his application to the list: no reason to strike out.

Article 3 – The Court noted that it was not the Government's intention to expel the applicant to areas in Somalia other than those they considered “relatively safe”. Although such areas were generally more stable and peaceful than those in other parts of the country, there was a marked difference between the position of individuals who originated from those areas and had clan and/or family there and individuals from elsewhere in Somalia who did not have such links. It was most unlikely that the applicant, who fell into the latter category, would be able to obtain clan protection in one of the “relatively safe” areas. The chances were, therefore, that he would end up in a settlement for internally displaced persons, whose occupants were marginalised, isolated and vulnerable to crime. However, irrespective of whether the applicant would be exposed to a real risk of proscribed treatment within those areas, his expulsion was in any event precluded by Article 3, as the guarantees that had to be in place as a precondition for relying on an internal flight alternative – the person to be expelled had to be able to travel to the area concerned, gain admittance and be able to settle there – were missing. The authorities in the “relatively safe areas” had informed the respondent Government that they were opposed to the forced deportation of various classes of refugee and did not accept the EU travel document. Thus, even if the Government succeeded in removing the applicant to one of the “relatively safe” areas, this by no means constituted a guarantee that, once there, he would be allowed to stay, and in the absence of monitoring, the Government would have no way of verifying whether he had succeeded in gaining entry. Consequently, there was a real danger of his being removed, or of having no alternative but to go to areas of the country which both the Government and the UNHCR considered unsafe. As to whether the applicant would run a real risk of being exposed to proscribed treatment if he ended up outside one of the “relatively safe areas”, the treatment to which he alleged he had been subjected prior to leaving Somalia could be classified as inhuman within the meaning of Article 3 and the vulnerability of the minority group to which he belonged to human rights abuses was well-documented. The respondent Government's assertion that the problems experienced by the applicant were a consequence of a general unstable situation in which criminal gangs frequently, but arbitrarily, intimidated and threatened people was insufficient to remove the treatment meted out to the applicant from the scope of Article 3, as that provision could thus also apply in situations where the danger emanated from persons who were not public officials The relevant factor was whether the applicant would be able to obtain protection against and seek redress for the acts perpetrated against him and the Court considered that he would not. Given that there had been no significant improvement in the situation in Somalia, there was no indication that the applicant would find himself in a significantly different situation from the one he had fled. Nor had the treatment been meted out arbitrarily: the applicant and his family had been specifically targeted because they belonged to a minority and were known to have no means of protection. The applicant could not be required to establish that further special distinguishing features, concerning him personally, existed in order to show that he was, and continued to be, personally at risk. While a mere possibility of ill-treatment was insufficient to give rise to a breach of Article 3, the Court considered that there was a foreseeable risk in the applicant's case.

Conclusion: expulsion would violate Article 3 (unanimously).

Article 13 – The applicant had applied to a regional court for a stay of expulsion pending a decision on his objection, but it had ruled that his expulsion would not violate Article 3. Bearing in mind that the word “remedy” within the meaning of Article 13 did not mean a remedy that was bound to succeed, and that the compatibility of the scheduled removal with Article 3 had been examined, the applicant had been provided with an effective remedy as regards the manner in which his expulsion was to be carried out.

Conclusion: no violation (unanimously).

For further details, see Press Release no. 18.

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