ECtHR - Said v. the Netherlands, Application no. 2345/02, 5 July 2005
| Country of applicant: | Eritrea |
| Court name: | European Court of Human Rights, Second Chamber |
| Date of decision: | 05-07-2005 |
| Citation: | Said v. the Netherlands, Application no. 2345/02, 5 July 2005 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The European Court of Human Rights held that the expulsion of an Eritrean deserter to Eritrea would give rise to a violation of Article 3 of the Convention.
Facts:
The applicant, an Eritrean national, applied for asylum in the Netherlands after escaping from Eritrea, where he was held in detention for criticising the Eritrean Army commanders. The Deputy Minister of Justice rejected his request on the grounds of failure to establish his identity, nationality or travel itinerary and the lack of credibility in his story. He subsequently appealed unsuccessfully against that decision, submitting amongst others, an identity card and a military identity card. The applicant lodged a further appeal with the Administrative Jurisdiction Division of the Council of State, which upheld the Regional Court’s negative decision.
The applicant complained that he would be exposed to a real risk of being executed and/or being subjected to torture or inhuman or degrading treatment contrary to Articles 2 and 3 of the Convention if he were expelled from the Netherlands and sent back to Eritrea.
Decision & reasoning:
Turning to the case at hand, the Court first examined the general credibility of the applicant’s statements before the Netherlands authorities. In this context, it found his statements consistent and his argument to contravene the claim of incredibility, persuasive [50]. More specifically, the letter from Amnesty International’s specialist in the Horn of Africa, even though not personally related to the applicant, confirmed the Eritrean Army’s practice to arrest soldiers sometime after they had criticised their superiors [51]. What is more, the Court accepted the applicant’s claim that he was a deserter and further examined whether the applicant was at risk of ill-treatment. Taking note of the general information on the treatment of deserters in Eritrea, the Court noted that it definitely constituted inhuman treatment. It further highlighted that the applicant was known to the military authorities since he was arrested and detained by them [54].
Taking cue from reports of ill-treatment of a number of Eritrean deserters deported from Malta, the Court considered that there were substantial grounds for believing that, if expelled at the present time, the applicant would be exposed to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment [ 54].
Accordingly, it found that the applicant’s expulsion to Eritrea would violate Article 3 of the Convention [55].
Outcome:
Violation of Article 3 in case of expulsion to Eritrea.
Observations/comments:
Concurring Opinion of Judge Thomassen
Judge Thomassen shared the majority’s opinion that the applicant’s expulsion to Eritrea would give rise to a violation of Article 3 of the Convention. Nevertheless, he gave additional reasons for his disagreement with the Government’s argument that the applicant’s account lacked credibility. He acknowledged the difficulty that some applicants face in presenting proof of the facts. Therefore, he highlighted that the conclusion of non-credibility should be based on scrutinised investigation of facts as well as be accompanied by adequate reasoning. That was not, in his opinion, the case in the present case. The consideration of the first and second instance national instruments lacked rigorous scrutiny of the applicant’s account.
Separate opinion of Judge Loucaides
Judge Loucaides upheld the majority’s opinion. However, he considered the United States Department of State Country Report on Human Rights as an unreliable source of information on human rights. In his opinion, those reports were not objective since they were prepared by a state instrument and therefore promoted that State’s foreign policy.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Aliens Act 2000 (Vreemdelingenwet 2000 |
Cited Cases:
| Cited Cases |
| ECtHR - Bahaddar v The Netherlands (Application no. 25894/94) |
| ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98) |
| ECtHR - Nasimi v Sweden (Application no 38865/02) (unreported) 2004 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
| ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87 |
| ECtHR - Hilal v. the United Kingdom, Application no. 45276/99, 6 June 2001 |
Follower Cases:
Other sources:
Amnesty International, Annual Report 2003
Amnesty International, Press Release of 11 August 2003
Amnesty International, Report 2004
Amnesty International, Report 2005
Amnesty International, "Eritrea: You have no Right to Ask- Government Resists Scrutiny on Human Rights", May 2004
United States Department of State, 2004 Report on Human Rights Practices in Eritrea, 28 February 2005