EVRM-Hof veroordeelt Nederland voor uitzettingsprocedure Eritrese vluchteling (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Said v. the Netherlands (application no. 2345/02).

The Court held unanimously that the applicant's expulsion to Eritrea would be in violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Mahmoud Mohammed Said, is an Eritrean national who was born in 1967 and is currently staying in the Netherlands.

On 8 May 2001 the applicant arrived in the Netherlands, where, on 21 May 2001, he applied for asylum (verblijfsvergunning asiel voor bepaalde tijd) at the asylum application centre (aanmeldcentrum, "AC") at Schiphol.

The applicant claimed that he served as a soldier in an anti-tank unit and fought in the war against Ethiopia. Although the war ended on 13 June 2000, the troops were not demobilised until considerably later because the Eritrean authorities feared further military incursions from the Ethiopians.

In August 2000 a meeting was held with the applicant's battalion, at which the commanders told the soldiers they had not fought well. The applicant spoke 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 said his unit should be replaced or strengthened. Other soldiers supported him and an argument ensued.

For some time after the meeting, the applicant thought the army authorities were keeping an eye on him and that he was being followed. On 5 December 2000 he was accused of inciting the soldiers, made to hand over his weapons and detained in an underground cell for almost five months. He was neither interviewed, charged nor brought before a military tribunal.

On 20 April 2001 he was put into a jeep, with a driver and a guard who were armed. He was neither handcuffed nor bound. While driving, they passed a military vehicle which had had an accident. Both the driver and the guard got out of the car to see if they could help, leaving the applicant, who escaped through the back of the car. The applicant made his way to Sudan and, after passing through various other countries, to Breda in the Netherlands.

On 23 May 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie), 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.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 14 January 2002 and declared partly admissible on 5 October 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

András Baka (Hungarian), President,

Giovanni Bonello (Maltese),

Loukis Loucaides (Cypriot),

Karel Jungwiert (Czech),

Wilhelmina Thomassen (Netherlands),

Mindia Ugrekhelidze (Georgian),

Antonella Mularoni (San Marinese), judges,

and also Sally Dollé, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaint

The applicant alleged that his expulsion to Eritrea would place him at risk of being executed and/or subjected to torture or inhuman or degrading treatment. He relied on Articles 2 (right to life) and 3 of the Convention.

Decision of the Court

Article 3

The Court observed that the applicant's statements had been consistent and that he had provided information to refute the Government's claim that his account lacked credibility. Part of his account was also corroborated by the Horn of Africa specialist of the Netherlands branch of Amnesty International. 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.

The Court considered that a strong indication that the applicant 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 ended in June 2000, the information available suggested that the Eritrean authorities did not demobilise their troops quickly. A 2004 Country Report on Human Rights Practices in Eritrea released by the United States Department of State on 28 February 2005 mentioned the Eritrean Government's use of military police roadblocks, street sweeps, and house-to-house searches in order to find deserters. It therefore appeared that the Eritrean authorities were eager to keep their army at full strength.

In those 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.

The question remained whether the applicant was at risk of ill-treatment if he returned home. In that context the Court took note, among other things, of reports from Amnesty International describing the treatment of deserters in Eritrea, ranging from incommunicado detention, to prolonged sun exposure at high temperatures and the tying of hands and feet in painful positions. There could be no doubt that that constituted inhuman treatment. Indeed, the most recent country report on Eritrea compiled by the Netherlands Ministry of Foreign Affairs also stated that there had been reports of ill-treatment of deserters. The applicant maintained that he had already been arrested and detained by Eritrean military authorities after he spoke out at the battalion meeting and that he was known to the authorities. It also appeared that the Eritrean authorities registered the names of deserters. The Court considered that substantial grounds had been shown for believing that, if expelled at the time in question, the applicant would have been exposed to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. Accordingly, the Court found that the expulsion of the applicant to Eritrea would be in violation of Article 3.

Article 2

In the light of its finding under Article 3, the Court considered that no separate issue arose under Article 2.

Judge Thomassen expressed a concurring opinion and Judge Loucaides expressed a dissenting opinion, which are annexed to the judgment.

***

The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.