Case Summary

Case of Salah Sheek v. the Netherlands: European Court of Human Rights (ECHR January 2007)

finds that expulsion of Somali asylum-seeker is in violation of Article 3 ECHR On 12 May 2003 Salah
Sheekh left Somalia and arrived at Amsterdam Schiphol Airport on a false passport and asked for asylum.
In support of his application he claimed that he and his family hailed from Mogadishu and belonged to the
minority Ashraf population group and therefore had no means of protection and had been persecuted as a
result. His asylum request was refused by the Dutch authorities who held that the situation in Somalia for
asylum seekers, whether or not they belonged to the Ashraf clan, was not such that the mere fact that a
person came from that country was sufficient for refugee recognition. Furthermore, it was held that the
problems experienced by the applicant had not come about as the result of systematic, major acts of
discrimination but were rather a consequence of the general unstable situation in which criminal gangs
frequently, but arbitrarily, intimidated and threatened people. The authorities' decision concluded that
returning the applicant to Somalia did not amount to undue harshness because there did not appear to be
a real risk of the applicant being subjected to treatment in breach of Article 3 upon his return and, in order
to avoid any future problems, he could settle in one of Somalia's relatively safe areas such as Somaliland
or Puntland. Mr Sheekh accordingly appealed to the European Court of Human Rights. In its judgment the
Court recognized that it was not the Dutch Government's intention to return the applicant to areas other
than those it considered ‘relatively safe' but while accepting that these areas were indeed more stable the
Court distinguished between the risk for individuals who originate from those areas and have clan links
and those who do not. As far as this second group was concerned it was most unlikely that the applicant
as an Ashraf member hailing from the south of Somalia would be able to obtain protection in these
‘relatively safe' areas. The Court further reiterated its view that the existence of the obligation not to expel
is not dependent on whether the source of the risk of the treatment stems from factors which involve the
responsibility, direct or indirect, of the authorities of the receiving country. Article 3 may thus also apply in
situations where the danger emanates from persons or groups of persons who are not public officials.
What is relevant in that context is whether the applicant was able to obtain protection against and seek
address for the acts perpetrated against him. Furthermore the Court took issue with the national
authorities' assessment that the treatment to which the applicant fell victim was meted out arbitrarily. It
appeared from the applicant's account that he and his family were targeted because they belonged to a
minority and for that reason it was known that they had no means of protection. The Court considered, on
the basis of the applicant's account and the information about the situation in the "relatively unsafe" areas
of Somalia in so far as members of the Ashraf minority were concerned, that his being exposed to
treatment in breach of Article 3 upon his return was foreseeable rather than a mere possibility. The Court
therefore concluded that the expulsion of the applicant to Somalia as envisaged by the respondent
Government would be in violation of Article 3.

For more information read the text of the judgment