Netherlands in violation of torture

The Netherlands was chastised by the European Court of Human Rights in Strasbourg today for violating the prohibition on torture. The Court decided in the case of Somali asylum seeker Salah Sheekh who was threatened to be (wrongly) deported from the Netherlands, despite the fact that the circumstances in his home country threatened to expose the asylum seeker to instances of “to torture or other cruel or degrading treatment or punishment” (Article 3 of the European Convention on Human Rights).

The now 20-year-old Sheekh fled his country in 2003, after a series of violent and traumatic incidents, including rape, pillage and murder by militia members targeting members of his minority clan, which resulted in severe traumas for his family members and the death of his father. He arrived in the Netherlands, and:

18. Upon his arrival, the applicant indicated that he wished to apply for asylum. He was refused entry into the Netherlands and deprived of his liberty. He was taken to the asylum application centre (aanmeldcentrum, “AC”) at Schiphol to lodge his request for asylum (verblijfsvergunning asiel voor bepaalde tijd) on 13 May 2003. […]

His application for asylum was rejected by the (now ex-) Minister for Immigration and Integration (Verdonk):

25. By a decision of 25 June 2003, the Minister refused the applicant's asylum request. The fact that the applicant had failed to submit documents establishing his identity, nationality and itinerary was held to affect the sincerity of his account and to detract from its credibility. […]

26. The Minister further considered that the applicant had made unreliable statements as to his date of birth and his age. Although he had submitted that he was 17 years of age, an examination had shown that he was at least 20. This was also deemed seriously to affect the credibility of his account.

The application more lenient application of asylum based on trauma experienced by the applicant was also rejected, because the Minister did not believe Sheekh was not traumatised enough:

30. The Minister concluded that it had not appeared that there existed a real risk of the applicant being subjected to treatment in breach of Article 3 of the Convention upon his return to Somalia. Moreover, the applicant was not eligible for a residence permit within the framework of the leniency policy for traumatised asylum seekers (traumatabeleid), given that the alleged murder of his brother had occurred as long ago as March/April 2002 and the alleged rape of his sister as long ago as 1998 and June/July 2002.

A series of appeals to the rejection of asylum was lodged by Sheekh, but all were rejected, after which the Minister issued him with an EU Travel Document so that he can be deported back to his country.

The decision was based on a series of Country Reports compiled by the Dutch Ministry of Foreign Affairs, which deemed large parts of Somalia “relatively safe”, despite reports and complaints from the UN, Médecins sans Frontières, Amnesty International and refugee organisations to the contrary:

100. In its Position Paper on the Return of Rejected Asylum-Seekers to Somalia of January 2004, the United Nations High Commissioner for Refugees (“UNHCR”) stated, inter alia, the following:

“Throughout the country, human rights violations remain endemic. These include murder, looting and destruction of property, use of child soldiers, kidnapping, discrimination of minorities, torture, unlawful arrest and detention, and denial of due process by local authorities. ...

The challenges faced by both Somaliland and Puntland in integrating Somali refugees back home remain a critical humanitarian, recovery and development concern. In both areas, tens of thousands of returnees from exile continue to live in slums on the outskirts of towns where they are often indistinguishable from other vulnerable groups, and as such face many of the same problems accessing basic social services and becoming self-reliant.

[…]

This is true also in Somaliland and Puntland. They already host some 60,000 and 31,000 IDPs [Internally Displaced Persons, addition mine] respectively, which by far exceeds their absorption capacity. In the absence of clan protection and support, which means weak or negligible social networks, a Somali originating from another area would be likely to join the many other underprivileged IDPs who suffer from lack of protection, limited access to education and health services, vulnerability to sexual exploitation and abuse and labour exploitation, eviction, destruction and confiscation of assets. Depending on the goodwill of the local community and what meagre humanitarian assistance may be available, persons perceived as 'outsiders' may be forced to live in a state of chronic humanitarian need and lack of respect for their rights. Specifically, in Somaliland, a self-proclaimed independent state, those not originating from this area (non-Somalilanders) would be considered as foreigners, and face significant acceptance and integration problems, particularly taking into account the extremely difficult socio-economic situation of those native to the territory. ...

Thus as pointed out by the UN organisation responsible for refugees, in large areas of Somalia, any one who is not a member of the same clan / ethnic group (like Sheekh who is of the minority Ashraf group) will be subject to prejudice, hardship and even physical violence. And especially in a ‘state’ like Somalia where the government has collapsed and lost all functions of guaranteeing maintaining peace and security, people and property are basically protected by the good-will and recognition of people of the same ethnic / clan background.

108. In this report, published on 17 March 2005, Amnesty International […] states as follows:

“The minority groups, who have no armed militias, have been extremely vulnerable during the period of state collapse and absence of a justice system and rule of law to killing, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and clan members. Such incidents are still commonly reported and are being documented by local human rights NGOs.”

The Court, weighed the argument by Sheekh that he would be subject to dangers and threats to life and property if deported against the argument of the Dutch government that there is no such danger in the “relatively safe” areas. In construing the nature of the obligation enshrined in the European Convention on Human Rights, Contracting Parties (of which the Netherlands is one):

135. [have] the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. […] However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct, however undesirable or dangerous. The expulsion of an alien may give rise to an issue under this provision, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country […] [emphasis mine]

139 […] Nevertheless, there is a marked difference between the position of, on the one hand, individuals who originate from those areas and have clan and/or family links there and, on the other hand, individuals who hail from elsewhere in Somalia and do not have such links in Somaliland or Puntland. […] As far as the second group is concerned, however, the Court is not persuaded that the relevance of clan protection in the “relatively safe” areas has diminished to the extent as suggested by the Government. It notes in this respect that as regards the expulsion of a Somali national to a part of the country from where he or she does not originate, UNHCR is of the opinion that “considerations based on the prevailing clan system are of crucial importance” (see paragraphs 100 and 102 above). Clan affiliation has further been described as the most important common element of personal security across all of Somalia (see paragraph 105 above), and thus not merely in the “relatively unsafe” areas.

146. The Court considers that the treatment to which the applicant claimed he had been subjected prior to his leaving Somalia can be classified as inhuman within the meaning of Article 3: members of a clan beat, kicked, robbed, intimidated and harassed him on many occasions and made him carry out forced labour. Members of the same clan also killed his father and raped his sister (see paragraphs 7-9 and 12-13 above). The Court notes that the particular – and continuing – vulnerability to this kind of human rights abuses of members of minorities like the Ashraf has been well-documented (see, for instance, paragraphs 103-104 above).

This is a special case, because usually before going to the Human Rights Court in Strasbourg, the applicant must exhaust all local remedies, meaning that he must have gone through all the appeal courts right up to the highest court (in the case of the Netherlands, the Administrative Division of the Council of State [Afdeling Bestuursrechtspraak Raad van State]). The Court however said that in the light of previous cases dealing with asylum, “in practice a further appeal would have stood virtually no prospect of success”. So Sheekh could bbypass this procedural requirement of exhaustion of local remedies (paras. 119-127)

Sheekh has been given a residence permit and is permitted to stay in the Netherlands.