ECtHR - Said v. the Netherlands, Application no. 2345/02, 5 July 2005

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Country of Applicant: 
Eritrea
Date of Decision: 
05-07-2005
Citation: 
Said v. the Netherlands, Application no. 2345/02, 5 July 2005
Court Name: 
European Court of Human Rights, Second Chamber
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.

Case Law Cited: 

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - H.L.R. v. France, Application no. 24573/94

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
Attachment(s): 
Other sources cited: 

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

Authentic Language: 
English
State Party: 
Netherlands
National / Other Legislative Provisions: 
Netherlands - Aliens Act 2000 (Vreemdelingenwet 2000