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SALAH SHEEKH v. THE NETHERLANDS - 1948/04 [2007] ECHR 36 (11 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/36.html
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[2007] ECHR 36
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THIRD
SECTION
CASE OF SALAH SHEEKH v. THE NETHERLANDS
(Application
no. 1948/04)
JUDGMENT
STRASBOURG
11
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Salah Sheekh v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1948/04) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Somali national, Mr
Abdirizaq Salah Sheekh (“the applicant”), on 15
January 2004.
The
applicant was represented by Mr Ph.J. Schüller, a lawyer
practising in Amsterdam. The Netherlands Government (“the
Government”) were represented by their Agent, Mr R.A.A. Böcker,
of the Ministry for Foreign Affairs.
On
18 March 2004 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided on 9 March 2006 to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant submitted that he was born in 1986 and is currently living
in Amsterdam.
A. Reasons for the applicant's request for asylum
The
applicant requested asylum in the Netherlands for the following
reasons:
He
originally hailed from Mogadishu and belonged to the minority Ashraf
population group. In 1991, due to the civil war, his family was
forced to leave behind their belongings in Mogadishu and flee to the
village of Tuulo Nuh, 25 km from Mogadishu, where they lived in
primitive conditions.
After
their flight from Mogadishu, the family was robbed of their remaining
possessions. Tuulo Nuh was controlled by the Abgal clan of the Hawiye
clan-family. That clan's armed militia knew that the applicant and
his family had no means of protection because they belonged to a
minority, and for that reason the family was persecuted. Three other
Ashraf families were living in Tuulo Nuh; they were treated in the
same manner.
Members
of the militia would frequently come to the family home and threaten
the applicant and his family. The first time this occurred was when
the applicant was about seven years old: the militia threatened the
applicant's father that they would set the house on fire if he did
not give them money. Whenever the applicant went out he would get
harassed and beaten; sometimes when he went to fetch water, the
bucket would be knocked over by members of the Abgal. The applicant's
mother sold fruit and vegetables on the market. She would get robbed
and ill-treated. Sometimes, when her daily takings had been stolen,
the family had to go without food and drink.
In
1995 the applicant's father was killed by members of the Abgal
militia. One evening in December 1998, on one of the occasions that
members of the militia came to the house, the family members were
locked up and ill-treated – the applicant was hit with a belt
and a rifle butt. His brother Ali had his arm broken. Then the
militia members took the applicant's mother and sister as well as a
female acquaintance outside with them. They left his mother, but took
his sister and the acquaintance to a place outside the village where
they raped them and did not release them until the next morning.
In
May 2001 the applicant and one of his brothers were held by members
of the militia, ill-treated and forced to unload a lorry from 10 a.m.
until 5 p.m.
In
March/April 2002 the applicant's brother, who ran a small grocery
store, was shot and killed in his store by Abgal militia members. The
applicant heard the shots and when he went to look he saw the body of
his brother lying on the floor while the militia members were
plundering the store. The militia knew his brother and saw him as
easy prey because, being a member of a minority, his brother was
unable to defend himself.
Three
months later, in June or July 2002, Abgal militia members came to the
family home in a car, took his sister away, raped her and released
her late the same night. Although the applicant was at home, he was
powerless to intervene because he might have been killed in the
process. It was not uncommon for militia members to rape girls. The
majority of girls in the village belonged to the large clans and they
were thus well protected. Of the families belonging to the Ashraf
minority, the applicant's was the only one with a daughter, making
her easy prey.
The
last time members of the militia came to the family home prior to the
applicant's flight was in March 2003. Eight men came in a Jeep,
carrying AK47 and M16 rifles. The applicant was at home with two
younger brothers. He was threatened, beaten, punched and kicked. The
militia searched the house looking for money. They left, saying that
his mother should get money ready for them or else the consequences
would be dire.
On
several occasions the applicant's mother had requested the village
wise men to ask the militia to stop pestering the family, but to no
avail.
The
family had been wanting to leave the country for a long time, but
there was not enough money. Fleeing to another place in Somalia was
not an option, as things might be even worse elsewhere. Finally,
after lengthy negotiations conducted by the applicant's uncle with
clan elders, his mother received compensation from the people who had
moved into the family home in Mogadishu. This meant she had the
financial means to pay for the applicant's escape to the Netherlands.
B. The applicant's journey to the Netherlands
The
applicant's flight from Somalia was arranged by his mother and his
uncle.
On
1 May 2003 he went from Tuulo Nuh to Mogadishu, where he stayed in
his uncle's house for one week, while his uncle established contact
with a “travel agent” named “Frank”. The
applicant handed a number of passport pictures to “Frank”
which the latter used to obtain a Somali passport in the applicant's
name. “Frank” then put the applicant up in a house in
Mogadishu for one day. There he met a boy by the name of Abdulkadir
who was also to flee the country. The next day, the applicant,
Abdulkadir and “Frank” flew from Mogadishu to Nairobi
(Kenya) in an aeroplane used to transport qat (a plant grown in
Kenya, Ethiopia and Yemen; the chewing of its leaves and twigs is
popular among Somalis). In Nairobi they took a taxi to a hotel.
“Frank” did not allow the applicant to continue the
journey using the Somali passport, which he took back from the
applicant. After staying in Nairobi for three days, the applicant,
“Frank” and Abdulkadir flew to Istanbul and from there to
Amsterdam. On this leg of the journey the applicant used a Kenyan
passport in the name of one Mahat Ahmed Hassan, born in 1977, as well
as an identity card in the same name. “Frank” would give
these documents to the applicant as they had to pass through passport
controls, but then he would take them back again. Upon arrival at
Amsterdam Schiphol Airport on 12 May 2003, “Frank” told
the applicant and Abdulkadir to wait for him as he had to go
somewhere at the airport. Whilst they were waiting, they were
approached by police, upon which they asked for asylum.
C. The asylum procedure in the Netherlands
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. A first interview with an official of the Immigration
and Naturalisation Department (Immigratie- en Naturalisatiedienst)
took place that same day, in order to establish the applicant's
identity, nationality and travel route. He stated, inter alia,
that he thought he had been born in 1986 because he knew there was a
three year difference between himself and his brother.
A
number of further questions concerning the applicant's age were put
to him on 14 May 2003. He said that as a result of an illness he had
lost his hair, and this explained why he did not have much hair. He
did not know his exact date of birth and estimated that he was 17
years of age. He consented to undergo an examination to determine his
age.
That
same day a lawyer, on behalf of the applicant, submitted a small
number of corrections to the report drawn up of the first interview.
Referring to a report from the National Ombudsman, the lawyer also
objected to the method used for the determination of the applicant's
age. He further requested that the applicant be granted, ex
officio, a residence permit for stateless persons who, through no
fault of their own, are unable to leave the Netherlands (the
so-called “no-fault residence permit”; “buiten-schuld
vtv”).
On
19 May 2003 the examination in order to determine the applicant's age
was carried out. According to the outcome of this examination, the
applicant was at least 20. For this reason the applicant was
attributed 1 January 1983 as a theoretical date of birth.
The
applicant was interviewed about the reasons for his request for
asylum on 28 May 2003. During this interview he stated, inter
alia, that his mother had told him that he had been born on 23
February 1986 and that he had been five years old at the start of the
war in Somalia. He did not agree to the attribution of a different
date of birth, as he trusted his mother more than the doctor who had
carried out the examination to determine his age.
Meanwhile,
on 15 May 2003, the Minister for Immigration and Integration
(Minister voor Immigratie en Integratie – “the
Minister”) had notified the Regional Court
(arrondissementsrechtbank) of The Hague, sitting in Haarlem,
of the measure imposed on the applicant whereby he was deprived of
his liberty. According to section 94 § 1 of the Aliens Act 2000
(Vreemdelingenwet 2000), the applicant was deemed to have
appealed the measure through this notification. On 2 June 2003 the
Regional Court rejected the appeal.
The
applicant was given a copy of the statement of the intention of the
Minister to deny him asylum (voornemen) on 3 June 2003.
On 20 June 2003 a lawyer, on behalf of the applicant,
submitted written comments (zienswijze) on this intention.
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. This was not altered by the fact that it had
subsequently been established that the applicant had flown to the
Netherlands from Istanbul, since this information had not come to
light with any help from the applicant.
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
Minister found that, in any event, the reasons advanced by the
applicant for his flight were insufficient to qualify him as a
refugee. The situation in Somalia for asylum seekers, whether or not
they belonged to the Ashraf population group, was not such that the
mere fact that a person came from that country was sufficient for
refugee recognition. The applicant's account contained insufficient
indications that he had made himself known as an opponent to the
(local) rulers. He had never been a member or sympathiser of a
political party or movement. He had never been arrested or detained.
The
applicant's claim that he had been harassed, from when he was a
child, by members of the Abgal clan, because he belonged to a
minority in the area where he lived, was also deemed insufficient to
qualify him as a refugee. In this context the Minister held that the
problems experienced by the applicant had not come about as the
result of systematic, major acts of discrimination which rendered his
life unbearable, since these problems should rather be seen as a
consequence of the general unstable situation in which criminal gangs
frequently, but arbitrarily, intimidated and threatened people.
The
applicant's claims that he had been held for one day in May 2001 and
had been forced to perform hard labour, and that he had several times
been threatened with death by members of the Abgal, were also deemed
insufficient. The Minister considered that the applicant's situation
could not have been desperate, given that he had stayed in the area
where he was living despite having become the victim of extortion.
This was not altered by the applicant's claim that he had wanted to
leave sooner but had lacked the money.
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.
According
to the Minister, the return of the applicant to Somalia, given the
general situation there, did not amount to undue harshness because,
in order to avoid any future problems, he could settle in one of
Somalia's relatively safe areas. The applicant had only heard, but
had no proof, that he would experience the same problems there
because he belonged to a minority. There was no reason to conclude
that a general humanitarian emergency situation pertained in those
areas. Whether or not the applicant had family or clan ties in the
relatively safe areas, or whether or not he had ever been there
before, played no role in this context.
The
Minister found that the applicant was not stateless since he held
Somali nationality. Therefore, the applicant was not eligible for a
“no-fault residence permit”. Finally, the Minister
prolonged the measure whereby the applicant was deprived of his
liberty.
The
applicant appealed against the rejection of his request for asylum on
26 June 2003. He argued, inter alia, that a controversial
method had been used to determine whether or not he was a minor, that
the Minister had ignored the fact that his horrific experiences had
their roots in a form of ethnic exclusion and exploitation, and that
no internal flight alternative existed in Somalia. The same
day he also filed an objection (bezwaar) against the refusal
to grant him a “no-fault residence permit” for stateless
persons. The appeals against the deprivation of his liberty which he
was deemed to have lodged through a notification by the Minister were
rejected by the Regional Court of The Hague, sitting in Haarlem, by
decisions of 2 June, 14 July, 25 August, 14 October and 1
December 2003, and 14 January 2004.
The
Minister rejected the applicant's objection against the refusal to
grant him a “no-fault residence permit” for stateless
persons on 15 August 2003. She maintained that the applicant was not
stateless; although there was no effective government in Somalia at
the present time, the possibility existed that one would be
established in the future. Moreover, the international community did
not doubt the existence of the State of Somalia.
Following
a hearing on 16 September 2003, the Regional Court of The Hague,
sitting in Amsterdam, rejected the applicant's appeal against the
rejection of his request for asylum on 7 November 2003. The Regional
Court did not agree with the Minister that the applicant's account
was rendered implausible as a result of the incorrect date of birth;
according to the Regional Court, the applicant had merely stated what
he had been told by his mother. However, the Regional Court
considered that, for the remainder, the Minister's view that the
applicant's account was insufficiently serious to qualify him as a
refugee was well-founded. The Regional Court agreed with the Minister
that the problems experienced by the applicant had not so much come
about as the consequence of an unfavourable interest shown in the
applicant personally, but that the events were rather to be seen as a
result of the generally unstable (security) situation in Somalia, in
which intimidation and insults by criminal groups regularly and
arbitrarily occurred. In this context the Regional Court attached
relevance to the fact that the applicant could distance himself from
the situation pertaining in his immediate living environment by
moving to the “relatively safe areas” of Somalia, as
appeared from, inter alia, the country reports
(ambtsberichten) drawn up by the Minister of Foreign Affairs
(see paragraph 47 below). In view of the foregoing, the Regional
Court further held that the Minister had been correct in finding that
the applicant had failed to substantiate that he would run a real
risk of being subjected to treatment within the meaning of Article 3
of the Convention if he was expelled to his country of origin.
Finally, the Regional Court, referring to a judgment of the
Administrative Jurisdiction Division of the Council of State (see
paragraph 85 below), considered that the Minister could reasonably
have taken the view that the applicant's return to Somalia did not
constitute an exceptionally harsh measure in connection with the
overall situation there, having regard to the fact that rejected
asylum seekers belonging to minority groups could distance themselves
from any problems they might experience by staying in the “relatively
safe areas” of Somalia.
The
applicant did not lodge a further appeal (hoger beroep)
against the rejection of his appeal to the Administrative
Jurisdiction Division (Afdeling Bestuursrechtspraak) of the
Council of State (Raad van State), his lawyer advising him
that in view of that tribunal's established case law concerning the
availability of an alternative place of abode in Somalia, such
further appeal would not stand any chance of success.
Having
been informed that he was to be issued with a European Union (“EU”)
travel document and deported to the “relatively safe areas”
of Somalia, via Nairobi, on 16 January 2004, the applicant lodged an
objection on the basis of section 72 § 3 of the Aliens Act 2000
with the Minister on 8 January. He further requested the
Regional Court of The Hague, sitting in Amsterdam, to issue a
provisional measure to the effect that he would not be deported
pending the appeal. The applicant argued that there were too many
incongruities surrounding a deportation as planned: not only was the
legal basis of the EU travel document unclear, it was also not known
whether the authorities in Puntland and the Somali province of Mudug
allowed persons travelling on such documents entry to their
territory. In addition, the applicant, as a member of a minority
unable to obtain protection from one of the ruling clans, would be
forced to live in a camp for internally displaced persons (“IDPs”)
in the “relatively safe areas”, where the conditions were
so appalling that they had been described as a clear violation of
human rights by the UN Independent Expert on the situation of human
rights in Somalia. This Expert had also noted that the most pressing
concern in Puntland was discrimination against minorities who had no
government or armed protection, and were therefore vulnerable to
sporadic rape and looting.
The
provisional-measures judge (voorzieningenrechter) of the
Regional Court of The Hague, sitting in Amsterdam, rejected the
applicant's request for a provisional measure on 20 January 2004. It
was held that the deportation with EU travel documents might only be
unlawful if there were indications that entry to a territory would be
denied to persons travelling with those documents. No such
indications existed. Moreover, the airline company transporting
rejected asylum seekers from Nairobi to Somalia had undertaken to
return these persons should they be denied entry to Somalia. The fact
that an expulsion via Nairobi entailed a short stop at an airport in
Mogadishu was insufficient to conclude that there would be a risk of
treatment in breach of Article 3 of the Convention. Finally, the
Regional Court considered that the recent tensions between Puntland
and Somaliland did not render the expulsion unlawful, given that the
applicant would be expelled to the province of Mudug.
Meanwhile,
on 15 January 2004, the applicant introduced the present application.
He also requested the Court under Rule 39 of the Rules of Court to
indicate to the Government not to expel him pending the proceedings
before the Court. That same day, the President of the Chamber decided
to indicate to the Government that it was desirable in the interests
of the parties and the proper conduct of the proceedings before the
Court not to expel the applicant. Thereupon, the Netherlands
authorities cancelled the applicant's expulsion. The applicant was
also released.
39.
On 27 February 2004 the Minister dismissed the applicant's objection
against the decision to expel him. His appeal to the Regional Court
of The Hague, sitting in Amsterdam, was declared inadmissible on
10 January 2005. The Regional Court held that the applicant
no longer had an interest in a determination of the merits of his
objection in view of the fact that its aim, a halt to the expulsion,
had been achieved as, following the interim measure issued by the
European Court, the expulsion had been cancelled. This decision was
upheld by the Administrative Jurisdiction Division of the Council of
State on 27 May 2005.
On
7 July 2005 the Government informed the Court that the applicant was
eligible for a residence permit on the basis of a temporary
“categorial protection policy” (categoriaal
beschermingsbeleid, see paragraphs 42-43 and 87 below) adopted by
the Minister on 24 June 2005 in respect of asylum seekers coming from
certain parts of Somalia. Pursuant to this information, the applicant
lodged a fresh application for asylum on 23 September 2005. This
application was granted on 10 March 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum
As
of 1 April 2001 the admission, residence and expulsion of aliens have
been regulated by the Aliens Act 2000 (Vreemdelingenwet 2000),
the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the
Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and
the Aliens Act Implementation Guidelines 2000
(Vreemdelingencirculaire 2000). The General Administrative Law
Act (Algemene Wet Bestuursrecht) is also applicable, except
where otherwise stipulated.
On
the basis of section 29 § 1 of the Aliens Act 2000, in force at
the relevant time, a residence permit for the purposes of asylum may
be issued to an alien:
(a) who
is a refugee within the meaning of the Convention relating to the
Status of Refugees of 28 July 1951 (“the 1951 Convention”);
(b) who
makes a plausible case that he or she has well-founded reasons for
believing that, if expelled, he or she will run a real risk of being
subjected to torture or other cruel or degrading treatment or
punishment;
(c) who
cannot, in the opinion of the Minister, for compelling reasons of a
humanitarian nature connected with the reasons for his or her
departure from the country of origin, reasonably be expected to
return to that country; or
(d) for
whom return to the country of origin would, in the opinion of the
Minister, constitute an exceptionally harsh measure in connection
with the overall situation there.
Pursuant
to section 29 § 1 (d) the Minister may pursue a policy of
categorial protection for a particular group of asylum seekers.
Section 3.106 of the Aliens Decree 2000 specifies indicators that are
used to assess whether such a policy would be justified. In brief,
they are the nature, degree and geographic spread of the violence in
the country of origin, the activities of international organisations
(in so far as they bear strongly on the position of the international
community with regard to the situation in the country of origin) and
the policies of other Member States of the European Union. Categorial
protection is based on considerations related not to specific persons
but to the general situation or patterns of violence in a country of
origin. The criterion of exceptional harshness, laid down in section
29 § 1 (d), is not a formal one, such as the declaration of a
state of siege, a state of war or the existence of some form of armed
conflict, but a material one. It relates to whether the risks that
could arise on return, partly in connection with armed conflict or
the like, would be unreasonable from a humanitarian perspective or
from the perspective of the law of armed conflict. In general,
categorial protection is only justified if armed conflict (including
armed civil conflict) has disrupted daily life to such an extent that
such humanitarian risks arise.
An
asylum seeker whose application for asylum has been rejected, may
appeal that decision to the Regional Court of The Hague. Further
appeal from the Regional Court's judgment lies to the Administrative
Jurisdiction Division of the Council of State.
Section
45 of the Aliens Act 2000 stipulates that a decision rejecting an
asylum application automatically has the following consequences: the
alien is no longer legally resident in the Netherlands, his or her
access to services for asylum seekers is terminated, and he or she is
required to leave the Netherlands within a fixed time limit, failing
which the competent officers are authorised to expel the person
concerned. A separate removal order is, therefore, not required.
However, section 72 § 3 of the Aliens Act 2000 provides, in
relation to means of redress, that acts taken in respect of an alien
– including expulsion – are to be equated with a decision
(beschikking) within the meaning of the General Administrative
Law Act. As a result, the remedies provided for in that Act –
objection and appeal – may be employed in respect of the manner
in which an expulsion is to be carried out or if the situation at the
time of expulsion differs from that at the time of the final
rejection of the asylum application in such a way that it can no
longer be said that the lawfulness of the expulsion has already been
established.
As
a rule, the Netherlands authorities do not monitor asylum seekers
after expulsion, since it is held that such is not appropriate in the
context of a conscientious asylum procedure and would undermine the
credibility of the decisions emerging from that procedure: if an
application for asylum has been rejected and the courts have
determined that this decision was correct, there is no reason to
suppose that upon return to the country of origin, the asylum seeker
in question will face persecution or a breach of Article 3 of the
Convention since, if the latter were the case, he or she would have
been granted a residence permit for the purposes of asylum pursuant
to section 29 § 1 (b) (see paragraph 42 above).
B. Netherlands policy on Somali asylum seekers
The
respondent Government's policy on Somali asylum seekers is developed
by the Deputy Minister of Justice (Staatssecretaris van Justitie)
and, from 2002, by his successor, the Minister for Immigration and
Integration, on the basis of country reports published by the
Minister of Foreign Affairs, who in 1993 published the first of those
reports on the general situation in Somalia.
1. Country reports and policy based on them prior to
November 2004
The
country report of February 2000 indicated that in the “relatively
safe” areas the need for protection by one's own clan was
declining as the effectiveness with which regional authorities
maintained security was increasing. Although this did not mean that
the clan no longer played a role in Somali society, protection by
one's own clan or family was no longer considered necessary in the
“relatively safe” areas, where the local and regional
authorities were generally able to maintain peace and security and to
offer an inclusive, neutral form of protection. As a result, the
policy pursued as of April 2000 no longer included the principle of
clan protection upon return.
While
the country report of June 2001 found that the position of minorities
in the “conflict” area continued to be bad, it
nevertheless stated that despite this insecurity, it was not the case
that all persons belonging to a minority had to fear
(person-specific) persecution for the sole reason that they belonged
to that minority. The June 2001 report further finding a continuation
of the trend of a diminishing need for clan (or family) protection in
the “relatively safe” areas, the then Deputy Minister of
Justice abolished the policy of categorial protection (see paragraphs
42-43 above) for Somalis on 24 September 2001, which until then had
still been applied to members of two particular clan families. Even
though the situation in the “conflict” and “transitional”
areas of the country could lead one to the conclusion that such a
policy continued to be called for, the Government believed that an
alternative place of abode for all failed Somali asylum seekers,
including minorities, was available in the “relatively safe”
areas. In addition, asylum seekers, in respect of whom it had been
determined that they had a well-founded fear of persecution or that
they ran a real risk of being subjected to a treatment within the
meaning of Article 3 of the Convention, were not eligible for a
residence permit for the purpose of asylum if it was established that
they could remove themselves from that feared persecution or real
risk by settling elsewhere within the country of origin.
According
to the country report of March 2003, Somalia could be divided into
the following areas, in terms of the risk run by non-combatants of
falling prey to conflict-related violence or political violence:
- the
“conflict” area in southern Somalia, consisting of
Mogadishu, Kismaayo, the environs of those cities, and the provinces
of Bay and Bakool;
- the
“transitional” area in southern Somalia, consisting of
the provinces of Lower and Middle Juba and Middle Shabelle (in so far
as they were not part of the conflict area), Gedo and the
north-western part of the province of Galgaduud;
- the
“relatively safe” part of Somalia, consisting of the
northern provinces of Adwal, Woqooyi Galbeed, Togdheer, Sahil,
Sanaag, Sool, Bari, Nugaal and the north of Mudug (together making up
the self-declared State of Somaliland in the north-west and the
self-declared autonomous region of Puntland in the north-east), the
south of Mudug, the central provinces of Hiran and Galgaduud (in so
far as they were not in the “transitional” area) and the
islands off the coast of southern Somalia.
The
March 2004 country report emphasised once more that clan protection
was not necessary and that the level of insecurity was not such that
all members of a given minority were justified in fearing
person-specific persecution due to their minority status, even if it
was the case that minorities and the clanless were more likely to
become victims of intimidation and abuse by armed members of
militias.
2. The country report of November 2004
In
June 2004, officers of the Netherlands Ministry of Foreign Affairs
paid a five-day working visit to the city of Bosasso in Puntland. The
November 2004 country report was partly based on the findings of this
mission.
Since
there was not a clear difference in the number of armed clashes
between the “conflict” areas and the “transitional”
areas as referred to in the March 2003 country report, the report of
November 2004 divided Somalia into two regions, namely a “relatively
safe” and a “relatively unsafe” region. On the
basis of the risk which the civilian population ran of becoming the
victim of acts of violence, the two regions were as follows:
- the
“relatively unsafe” region: Mogadishu and Kismaayo and
the area around these towns, the provinces of Bay, Baykool, Lower and
Middle Juba, Lower and Middle Shabelle, Gedo, Hiran and Galgaduud;
- the
“relatively safe” region: the provinces making up
Somaliland and Puntland, the south of Mudug and the islands off the
coast of southern Somalia.
As
previous reports had done, the report of November 2004 further
elaborated on the existence of clans and minority groups in Somalia:
beside the dominant Somali nomadic culture, there are various groups
with differing cultures, such as farming Somali clan families and
non-ethnic Somali minority groups. The farming clan families are
regarded as less “noble” by the nomadic clan families,
and the status of the minority groups, who are estimated to account
for fifteen percent of the population, is even lower. The minorities
either lack a clan structure or have a clan structure which is much
less pronounced than that of the nomadic clan families.
Traditionally, these minority groups have not been covered by Somali
clan law and have therefore received no protection, unless a clan has
agreed to protect them. In general, the minority groups suffered
greatly from the armed conflicts, since they were unarmed and often
had some financial resources owing to their occupations. They were
easy victims of robbery, plundering and murder by militias. Many
members of the minority groups in the south fled in the course of the
civil war, particularly to Kenya and western countries, but also to
Somaliland and Puntland.
According
to the country report, it is not known exactly how many minority
groups exist in Somalia. One of the main minority groups is the
Benadiri (or Reer Hamar) whose ancestors are people of Persian,
Indian, Arab and Portuguese origin who had settled in some of the
coastal towns of Somalia since the ninth century and mixed there to
varying degrees with the original population and later newcomers.
Each Benadiri group can trace its origin back to a single forefather;
Benadiri often refer to these descent groups as clans. The Ashraf,
consisting of two groups traditionally regarded as descendants of the
two grandchildren of the Prophet Mohamed, is one of these Benadiri
groups.
The
November 2004 country report described the position of minority
groups in the “relatively unsafe” regions as bad. Members
of these groups were much more likely to become victims of
intimidation and assault by armed members of the militias.
Notwithstanding this lack of safety, not all people belonging to a
given minority group had cause to fear persecution individually
simply for membership of the minority, and the situation was also not
the same for all minority groups. As the Benadiri did not have a
special relationship with one or more of the Somali clan families,
they could therefore not count on clan protection. Since the civil
war broke out, the Benadiri had tended to be the first victims of
robbery and plundering owing to their relatively isolated social
position and presumed wealth. As a consequence of these problems, a
large proportion of the Benadiri had fled abroad. Those who remained
had often lost some or all of their possessions. Although the scale
of violence had greatly decreased, they were still in a vulnerable
position since they were living in the “relatively unsafe”
regions. They were virtually absent from the “relatively safe”
areas and their numbers there were too small for general statements
to be made about them.
Since
the civil war, the populations of towns and cities in the “relatively
safe” areas had skyrocketed, partly owing to an influx of
displaced persons from the south and partly owing to migration from
rural to urban areas. Many displaced persons had managed to settle in
their new areas on a lasting basis. Almost all of them had ties with
the inhabitants of the area, for example because they were members of
the same clan family or because a relative came from there. A social
safety net may also be provided by other ties, for instance with old
school friends, neighbours or business partners. Displaced persons
without such ties almost invariably ended up in miserable settlements
for the internally displaced, with no real chance of proper
integration.
There
were still some 30,000 people living in settlements for displaced
persons in Puntland, of whom 28,000 were living in the town of
Bosasso. The majority of these people originated from southern
Somalia and also comprised members of the Midgan and Bantu
minorities. The camp-dwellers perceived poor accommodation and lack
of affordable sanitation as the most serious problems. They were
living in huts built from discarded materials which did not provide
adequate protection against Bosasso's harsh climate. There was also a
serious risk of fire, as the high winds could easily cause cooking
fires to get out of control. Another problem was security in the
camps: theft and occasional crimes of violence. Whenever an incident
was reported to the police, there was an investigation and increased
patrolling for about a week, but in most cases the police were unable
to catch the culprits. However, camp-dwellers said this was not
because of discrimination.
In
Somaliland, displaced persons were also living in miserable huts that
they had built for themselves from discarded materials. In October
2003 the Somaliland Government decreed that all displaced persons who
were not originally from Somaliland must leave the country. Although
no-one was actually deported, it was made abundantly clear to
displaced persons from southern Somalia that they were no longer
welcome. Most of them had moved to Puntland or Yemen.
No
reports of violent incidents on the islands off the coast of southern
Somalia had been received in the period under review. Since 2001,
members of the Darod/Marehan clan have had control of these islands,
which are also inhabited by members of the Bajuni minority, who, in
the service of the former, work in the fishing industry.
According
to the November 2004 report, the rate of crime in the “relatively
safe” areas was low, certainly compared with other countries in
Africa. In general, the local and regional administrative authorities
were able to maintain law and order, if necessary with the help of
the police. In Somali society, law enforcement had always been
primarily the preserve of clan elders, village elders, imams and
other community leaders. This traditional form of law enforcement
was, by its very nature, much less effective if the victim was a
member of a minority group or of a small, poorly armed clan. As a
result, displaced persons and unarmed minorities were an easy target
for criminals. The police force of a given city contained members of
all the clans who lived there, as well as a few members of minority
groups and a small number of women. Although the police discriminated
against minority groups and displaced persons, they seldom
categorically refused to act. Where a displaced person or member of a
minority group was a victim of crime, the police would generally take
adequate (or reasonably adequate) action, even though it was likely
that they would be less inclined to do their best for a displaced
person than for local inhabitants belonging to the clans. However, if
there was a dispute with a clan member, there was a real likelihood
that the police would choose the side of that clan member. In such a
case there were indications that police officers may even commit
crimes against displaced persons or members of minority groups.
The
country report concluded that in general, displaced persons in the
“relatively safe” parts of Somalia could be said to have
a marginal, isolated position in society. This made them vulnerable,
and more than average they were victims of crime. Their vulnerability
partly depended on what resources they possessed (money, skills,
etc.), but in general their socioeconomic position was significantly
worse than that of the local population. They were not persecuted by
the local authorities. There was some discrimination by local people,
but at least in Somaliland or Bosasso no serious incidents were known
to have occurred. However, people were not ready to accept the idea
of displaced persons who had no ties whatsoever with their clan
becoming genuinely integrated into their community.
Somalis
could enter and leave the country overland without restriction, in
keeping with ancient nomadic tradition. There were several flights a
week to a number of destinations in Somalia from the surrounding
countries and the United Arab Emirates. When entering Somaliland via
Hargeisa airport, travel documents were checked. The other airports
in Somalia operated on the authority of local warlords, who ran them
as private businesses. Passengers were not asked to produce travel
documents at any of these latter airports.
Since
the collapse of Somalia's central government in 1991 there had been
no internationally recognised body that issued or extended Somali
passports. Travel documents that passed for Somali passports could be
bought at markets in Somalia and in neighbouring countries.
Officially, Somali passports were not internationally recognised as
travel documents, but in practice they were accepted by the countries
of the European Union, Somalia's neighbouring countries and the Gulf
States, since there was no alternative travel document for Somalis to
use. Nor were Somali passports officially recognised as proof of
identity.
Somalis
returning to Somalia met with no hindrance from the local authorities
on arrival. However, in the “relatively unsafe” areas,
passengers were sometimes waylaid en route from the airport by
militias or criminals who stole all their belongings, often resorting
to extreme violence. As a result of the decree of October 2003,
Somalis without ties with Somaliland were not normally allowed to
live in that entity. There were no formal residence restrictions in
the remainder of Somalia. Organised return (voluntary or otherwise)
to Somaliland and Puntland required the consent of the local
authorities. In the past few years UNHCR had helped many thousands of
Somalis return to Somalia, especially to the north. However, the
authorities in Somaliland and Puntland had pointed out that there was
only limited scope for providing those who returned with work and
facilities.
Following
the issuance of this country report, the applicant requested the
Minister of Foreign Affairs to provide him with documents relating to
the working visit of the delegation of the Ministry to Bosasso in
Puntland that had been conducted in June 2004. In response, the
Minister made public the written account of interviews with fifteen
interlocutors conducted by the delegation. A number of passages,
which concerned the identity of and background information relating
to the interviewees, had been deleted, for reasons in respect of
which section 10 § 2 of the Transparency of Public
Administration Act (Wet openbaarheid van bestuur) stipulated
that access could be withheld (for example for the protection of
sources or of the private life of third persons). Administrative
proceedings instituted by the applicant aimed at obtaining a complete
version of the account were unsuccessful.
The
written account of interviews consists of summaries of the
information and replies received by the delegation in the course of
the interviews, some of which were held in two camps for IDPs. The
identities of those interviewed and/or organisations for which they
worked have been deleted, and the questions that were put to them are
not included in the account.
Some
quotes from the account:
- “Banditry
and criminality in a general sense are much less prevalent in Somalia
than in Kenya ... In the whole of Puntland hardly any fighting is
taking place.”
- “In
the villages the council of elders have a firm grip on the situation.
Accordingly, it is very safe there. In cities it is different as far
as this is concerned.”
- “No
serious confrontations took place in Puntland in 2004. There had been
a number of small-scale conflicts about property of land or between
families.”
-
“The police actually undertake action if their assistance is
sought and are generally efficient. The police are composed of
different clans and are capable of acting independently.”
- “If
a minority such as the Bantu go to the police, the police will in
general not do very much. This is mainly because there is not a lot
that the police can do; they prefer the settlement of disputes
through the old clan traditions. As a result it is more difficult for
minorities without a clan ... to obtain justice.”
- In
one of the camps for IDPs visited by the delegation, there were 2,000
persons who “had come from Somaliland following the decree of
October 2003. Most of them were forced to leave and were not even
given the opportunity to collect their belongings.”
- “There
are a total of around 20 camps for IDPs in or near Bosasso. Each camp
has a different ethnic composition, thus that persons belonging to
the same clan/minority look for each other.”
- “In
Bosasso ... there are no Reer Hamar ..., except for those who are on
their way to Yemen (which is a regular occurrence).”
- “Reer
Hamar are practically not found in the north of Somalia (in Bosasso
there are at most 100).”
- “Ultimately
the clan system will continue to control politics. People
nevertheless feel a certain connexion to Puntland as an entity; they
are proud of the stability in Puntland and consider themselves less
primitive than the southerners.”
- “New
IDPs arriving in Bosasso usually already have ties with family
members of acquaintances already living in Bosasso, who will take
care of their first needs. ... IDPs who come to Bosasso without
having any ties there will experience considerably more difficulties.
Such IDPs will generally turn to the mosque for help. In practice
they manage in the end to join other IDPs.”
-
“IDPs are not discriminated against. IDPs and minorities
have their committees and such like to protect their interests.”
- “The
human rights situation in Puntland has worsened in recent years,
especially for IDPs and minorities.”
- “There
is no question of genuine integration of IDPs; they continue to be an
isolated group, even after 20 years. They do not form part of the
community, do not own land. Although officially permitted, it is in
practice not allowed. In short, the position of IDPs is a
marginalised one.”
3. The country report of May 2005
A
new country report was issued in May 2005. This report is virtually
the same as its predecessor, except for the following:
The
report divides Somalia into three areas: a “relatively unsafe”
area, a “relatively safe” area, and a “transitional”
area consisting of the northern provinces of Sool and Sanaag to which
both Somaliland and Puntland lay claim. The “relatively safe”
area was the same as in the November 2004 country report, except that
the south of the province of Mudug was now considered “relatively
unsafe”.
It
was repeated in the May 2005 report that actual deportations from
Somaliland had not taken place. However, the many thousands of
displaced persons residing in Somaliland were living in constant
fear. The country report further refers to the Norwegian Refugee
Council, according to whom the situation of displaced persons in
Somaliland had worsened; they were the victims of exploitation,
extortion and harassment.
The
country report further states that the UN had carried out a
large-scale study amongst IDPs in Puntland in 2004, in the course of
which 99.3% of displaced stated that they felt safe in their
settlements. A footnote states that on the basis of this report, the
Norwegian Refugee Council – co-author of the report together
with the United Nations Office for the Coordination of Humanitarian
Affairs – came to a different conclusion: “Their small
huts made of cloths with often no proper door offer no protection
against assaults by men stealing belongings and raping women at
gunpoint with impunity.”
The
fact that travel documents were checked when entering Somaliland via
Hargeisa airport had not changed. The May 2005 report adds that no
reports had been received of non-Somalilanders having been refused
entry. The report further adds that travel documents were also
checked at Bosasso airport in Puntland.
The
May 2005 report further specifies that the organised return
(voluntary or otherwise) to Somaliland and Puntland requires the
consent of the local authorities if it concerns the return of a group
of persons.
Between
1 January 2004 and 15 April 2005, 26 Somalis returned voluntarily to
Somalia from the Netherlands. Ten of them chose to go to Mogadishu,
two to other destinations in the south, thirteen to Hargeisa
(Somaliland) and one to Bosasso (Puntland). Only one had a Somali
travel document, the others travelled on an EU travel document.
4. The country report of July 2006
The
most recent country report is that of July 2006. According to this
report, the “relatively safe” areas were practically the
same as those described in the May 2005 report (see paragraph 70
above), except that the provinces of Sool and Sanaag were once again
“relatively safe”, while the south of the province of
Mudug continued to be “relatively unsafe”. Moreover, the
whole of the town of Galkayo was now considered to belong to the
“relatively unsafe” areas.
It
was repeated in the July 2006 report that in the “relatively
safe” areas, minorities and displaced persons were victims of
crime more than average. However, these persons' chances of falling
victim to crime were considerably higher in the “relatively
unsafe” regions. Minorities were further said to constitute a
disproportionately large part of the prison population in the
“relatively unsafe” regions.
It
continued to be the case that Somalis without ties to Somaliland
could not in principle obtain a right to reside there, even if no
forced expulsions had taken place. As regards Puntland, no reports
had been received of problems experienced by Somalis who hailed from
elsewhere in staying there.
In
2005 nine Somalis voluntarily returned from the Netherlands; seven to
Mogadishu, one to Kismayo and one to Hargeisa.
5. Comments on and reactions to the country reports
a. Médecins sans Frontières
In
a letter of 26 May 2004 to the Dutch Minister for Immigration and
Integration, Médecins sans Frontières (“MSF”)
wrote that the situation in the relatively safe areas as described in
the country report of March 2004 (see paragraph 51 above) did not
correspond with that organisation's experiences in Puntland. MSF
supported two hospitals in the Puntland town of Galkayo. It was
necessary to support two hospitals in the same town because Galkayo
was split into two by a “Green Line” dividing two warring
clans.
According
to MSF, the security situation in Puntland had not improved in the
course of 2004 and did not justify a policy of forced returns.
Members of both clans and minorities were victims of violence against
which the authorities were unwilling or unable to offer protection.
There was also widespread banditry. A generation of former
child-soldiers who had grown up in an environment where weapons were
the only law and the strongest rule, were now the elders and war
lords. This had led to the demise of rules or traditional customs in
favour of chaos and brutality in which civilians were systematically
targeted.
b. Dutch Refugee Council
In
an analysis of the country report of November 2004,
the Dutch Refugee Council (Vereniging VluchtelingenWerk Nederland)
inter alia pointed to a statement made by a person interviewed
by the delegation of the Dutch Ministry of Foreign Affairs during its
working visit to Bosasso (see paragraph 68 above). Although the
country report stated that no one had actually been deported from
Somaliland, this person had told the delegation that many people had
been forced to leave Somaliland and that, “They were not even
given time to pack their clothes.” The Dutch Refugee Council
also referred to a report of the UN Secretary General to the Security
Council of 9 June 2004, in which it was stated that,
“... the environment for 'foreigners' in general
and IDPs from southern Somalia in particular has continued to
deteriorate in Somaliland. Harassment, exploitation and extortion of
these groups is quite common. These conditions have forced many of
those affected to flee to Puntland, where they are living in squalid
conditions.”
In
addition, according to the Dutch Refugee Council there were many
signals that forced deportees or rejected asylum seekers were not
welcome in Somaliland. On 24 November 2004 the Somaliland Minister
for Resettlement, Rehabilitation and Reintegration had written a
letter to the Dutch Minister for Immigration and Integration, saying
that his Government did not accept forced deportees or rejected
asylum seekers. The Somaliland Government also warned all airlines
flying via Dubai, to stop transporting forced deportees to any
airport in Somaliland.
The
Dutch Refugee Council disputed that police protection was available
and effective in Puntland, since effective law enforcement mechanisms
were absent and since the authorities of Somaliland and Puntland were
themselves sometimes the source of human rights violations.
Whereas
the country report suggested that the fact that some of the camps in
Puntland burned down was due to a combination of inflammable
materials used to build huts and high temperatures, the Dutch Refugee
Council pointed to a number of reports which suggested that three
camps had been set on fire, killing people and leaving thousands of
people homeless. The Dutch Refugee Council reported that the
situation of IDPs in Somaliland seemed to be evolving from bad to
worse. They quoted Mr Jan Egeland, UN Undersecretary General for
Humanitarian Affairs and humanitarian relief coordinator, as saying –
after a visit to a settlement for returning refugees –, “This
is one of the most forgotten places in the world. Darfur is
privileged compared to this.”
c. Amnesty International
The
Dutch section of Amnesty International commented on the November 2004
country report in a letter of 25 February 2005 to the lawyer of the
applicant in the present case. They stated that displaced persons and
members of minorities and low-status clans were continuously at risk
of becoming victims of violence. According to Amnesty's knowledge,
the need for clan protection was still very strong, and those lacking
it ran substantial risks.
6. Case law of the Administrative Jurisdiction Division
of the Council of State in cases concerning Somali asylum seekers
and/or on Article 3 of the Convention, and policy based on that case
law
In
a judgment of 24 June 2003 (Jurisprudentie Vreemdelingenrecht
– Immigration Law Reports, “JV” – 2003/352),
the Administrative Jurisdiction Division of the Council of State
ruled that it did not appear from the country reports that such a
serious, widespread and structural infringement of the security
situation pertained in the “relatively safe” areas of
Somalia that it should lead to the conclusion that the Minister could
not reasonably have taken the view that the relative safety there was
durable and that the areas provided for an alternative place of
abode. Even if it was the case that certain regions of the
“relatively safe” areas were temporarily not accessible
via the external borders, there was no reason to believe that the
Minister could not reasonably have reached the conclusion, as far as
minority groups were concerned, that a return to the “relatively
safe” areas of Somalia would not constitute an exceptionally
harsh measure in connection with the overall situation there.
Since
the above-mentioned decision, the Administrative Jurisdiction
Division has consistently rejected appeals lodged by failed Somali
asylum seekers claiming that they could not settle in the “relatively
safe” areas, until, on 28 May 2004, the Division held that a
particular interim measure issued by the President of the European
Court
stood in the way of an expulsion to northern Somalia of Somali
nationals who belong to a minority and who do not have family or clan
ties in northern Somalia (JV 2004/278). Following this decision, the
Minister adopted a moratorium on expulsions (vertrekmoratorium)
for Somalis belonging to this group on 11 June 2004. The scope of
this moratorium was extended to all Somalis who did not hail from the
“relatively safe” areas on 20 February 2005, pursuant to
a decision of the Administrative Jurisdiction Division of 17 December
2004 (JV 2005/70) in which account was taken of the interim
measure issued by the European Court in an application concerning a
Somali national belonging to a clan whose members constituted a
majority in Puntland.
Since,
according to national law, the duration of a moratorium on expulsions
could not exceed one year, and in view of the interim measures issued
by the European Court – as well as the interpretation of those
measures by the Administrative Jurisdiction Division –, the
Minister adopted a categorial protection policy on 24 June 2005 (see
paragraphs 40 and 42-43 above). In this context the Minister had
regard, in addition to the actions of the European Court, to the
nature and geographical spread of the violence in parts of Somalia,
as described in the country report of May 2005. Provided that no
contraindications exist (in the form of criminal convictions, for
instance), the policy applies to Somali asylum seekers who do not
originate from Somaliland or Puntland (apart from Sool and Sanaag
provinces) and who have not spent more than six months in Somaliland
or Puntland, unless that stay took place in a camp for IDPs. It also
applies to Somalis originating from the islands off the coast of
south Somalia. Even though those islands are considered to be
“relatively safe”, they can only be reached via
“relatively unsafe” territory.
No
time-limit has been set for the duration of the policy; it will be
reviewed when the European Court reaches a decision on the merits in
the cases in which an interim measure has been issued.
In
a decision of 22 August 2003 (JV2003/526) the Administrative
Jurisdiction Division had regard to the information contained in the
country report of June 2001, according to which persons did not have
to fear (person-specific) persecution merely because they belonged to
a minority. In the light of that information the Administrative
Jurisdiction Division found that the Deputy Minister of Justice had
correctly considered that the problems which the alien concerned had
allegedly suffered as a result of the fact that he belonged to the
Reer Hamar – namely slave labour, ill-treatment and
intimidation – had not come about as a consequence of an
unfavourable interest directed specifically at the alien personally,
but of the general situation in the country of origin at that time.
In
a case concerning an Afghan national, and with reference to this
Court's judgment in the case of Vilvarajah and Others v. the
United Kingdom (judgment of 30 October 1991, Series A no. 215),
the Administrative Jurisdiction Division held in a decision of 7
November 2003 (JV 2004/17) that, even if an alien is to be expelled
to a country where organised, large-scale human rights violations are
committed against a group to which that alien belongs, he or she will
have to make out a convincing case that specific facts and
circumstances exist relating to him or her personally in order to be
eligible for the protection offered by Article 3 of the Convention.
This passage has since become a standard feature in decisions of the
Administrative Jurisdiction Division relating to Article 3.
On
5 December 2003 the Administrative Jurisdiction Division rejected the
complaint under Article 3 of the Convention raised in a further
appeal lodged by a Somali national, who claimed that she belonged to
the Reer Hamar and had been subjected to ill-treatment, including
rape (JV 2004/62). The Administrative Jurisdiction Division
considered that the alleged events demonstrated neither that the acts
committed had been specifically aimed at the appellant personally,
nor that she therefore found herself in a position which
substantially deviated from that of other members of the Reer Hamar
in Somalia.
7. The position of the Somaliland and Puntland
authorities on the forced return of Somali nationals
On
14 December 2002 the Minister of Resettlement, Rehabilitation and
Reintegration of the self-proclaimed Republic of Somaliland wrote to
the Netherlands Ministers of Justice and Foreign Affairs, informing
them of his Government's policy towards the repatriation of rejected
asylum seekers. He stated that the Government of Somaliland would not
accept the resettlement, voluntary or otherwise, in Somaliland of
nationals of Somalia. They did, in principle, accept the voluntary
return of Somaliland nationals. However, such voluntary return
operations were only to take place within the context of a bilateral
relationship between the Somaliland Government and the host
Government in accordance with specific agreements and relevant
provisions of international law, and the return of rejected asylum
seekers in the absence of such agreements would be considered
unacceptable and illegal. The only persons eligible for resettlement
were Somalilanders (whose nationality was to be verified by the
Ministry beforehand), who had not been abroad for more than three
years and who were travelling on a Somaliland passport, the
Somaliland authorities not accepting the EU travel document or other
documents.
In reply to questions from a Member of Parliament, the
Dutch Minister for Immigration and Integration stated on 12 March
2003 that the letter from the Somaliland Minister of Resettlement,
Rehabilitation and Reintegration did not give cause to announce a
moratorium on expulsions. Somaliland not being the only “relatively
safe” area of Somalia, rejected Somali asylum seekers still had
the possibility of returning to the other “relatively safe”
areas, which included Puntland (Records of the Lower Chamber of
Parliament – Handelingen Tweede Kamer –,
2002-2003, no. 905, Annex, pp. 1893-94). The Minister added that
the Netherlands attached great importance to the successful
cooperation in respect of the return of illegal migrants, and that he
would inform Parliament of the outcome of any consultations, should
these prove possible.
The
President of the Puntland State of Somalia addressed a letter to the
Netherlands Minister of Foreign Affairs on 24 January 2004,
expressing his deep concern about the forceful removal of Somali
asylum seekers by Dutch authorities in the absence of any meaningful
negotiations with the existing Somali administrations. He stated that
his authorities were “disappointed by the actions of the Dutch
Government to dump ... refugees ... forcefully [into] the Puntland
State of Somalia regardless of which part of Somalia they originally
came from without seeking either the acceptance or prior approval
[of] our Administration”. The President further wrote that the
Puntland State of Somalia did not accept the EU travel document.
The
Netherlands Minister for Immigration and Integration transmitted this
letter to the Chairman of the Lower House of Parliament on 13 April
2004 (Parliamentary Paper – Kamerstuk –,
2003-2004, 19 637, no. 812). In a cover letter, she
stressed that she attached great importance to close cooperation with
the (de facto) Somali authorities and was open to
possibilities for cooperation with those authorities. She further
noted that it did not appear from the letter that the Puntland
authorities objected to the voluntary return of Somali rejected
asylum seekers, regardless of their ethnic origin or area of origin.
As far as forced returns were concerned, the Minister stated that the
“relatively safe” area of Somalia consisted of more than
Puntland alone. There were, therefore, still possibilities to effect
the forced returns of Somalis to the “relatively safe”
area of Somalia. The Minister remarked that she considered the use of
the term “dumping” in the letter of the President of
Puntland misplaced. In this context she elaborated that Somalis who
were being removed were given the opportunity in a country of transit
to indicate to which part of Somalia they preferred to return. The
number of Somalis who had so far been removed to Puntland was small.
In
a letter of 20 November 2004 to the Dutch Minister of Justice, the
Somaliland Minister of Resettlement, Rehabilitation and Reintegration
set out that as a matter of policy, it was impermissible for any
forced deportee or rejected asylum seeker to enter Somaliland
territory. His Government having become aware of two memoranda of
understanding concluded by the Government of the Netherlands with the
Dubai Government and Emirates Airlines, respectively, the Somaliland
authorities had warned all airlines flying via Dubai International
Airport to stop transporting forced deportees to any airport in
Somaliland. The Minister added that his Government were ready to
discuss “how to solve the problem of rejected asylum seekers”.
8. The EU travel document
The EU travel document is based on a Recommendation
adopted on 30 November 1994 by the Council of Ministers of Justice
and Home Affairs of the European Union (Official Journal of the
European Communities no. C 274). Inter alia acknowledging
that the great majority of Member States were experiencing
difficulties in cases of third-country nationals who were required to
be expelled from their territory but were not in possession of travel
documents, the Council recommended that a standard travel document
valid for a single journey be used as appropriate by all Member
States when effecting such expulsions.
Since
1995 the Netherlands have made use of the standard EU travel document
as a replacement document in the event of expulsions to a number of
countries. It can be used for the return of aliens to their country
of origin, as well as for their return to another country to which
they are guaranteed admission. It is issued by the Immigration and
Naturalisation Service (Immigratie- en Naturalisatiedienst) on
behalf of the Minister for Immigration and Integration.
In
legal literature, as well as in the Lower House of Parliament and
before national courts, it has been argued that the EU travel
document as used by the Netherlands is not a lawfully issued document
since the above-mentioned Recommendation has not been transposed into
Dutch law, and since no authority to issue travel documents for the
Minister for Immigration and Integration could be derived from the
Passport Act (Paspoortwet). In reply to questions put by
Members of Parliament, the Minister for Immigration and Integration
denied that the EU travel document lacked a legal basis, and stated
that it had not appeared that any of the Somali aliens who had
returned, either voluntary or involuntary, to Somalia in 2003 and
2004 – some of whom had travelled on a EU travel document –
had been refused entry to the country. She added that if an alien
travelling on an EU travel document was nevertheless denied admission
to his or her country of origin, the provisions concerning
inadmissibles and deportees in Annex 9 to the Chicago Convention on
International Civil Aviation applied, on the basis of which the
Netherlands would allow such aliens to return to the Netherlands
(Records of the Lower Chamber of Parliament, 2003-2004, no. 800,
Annex, pp. 1695-96).
In
the above-mentioned cover letter to the Chairman of the Lower House
of Parliament (see paragraph 94 above), the Minister wrote in respect
of the stated non-acceptance by the Puntland authorities of the EU
travel document, that the EU travel document could be used to
facilitate the return journey, be it voluntary or involuntary, of
Somali aliens who were not, or no longer, in possession of a Somali
passport. In this context the EU travel document was intended to
serve as a travel document rather than a border-crossing document.
Whether or not entry to Somalia was granted depended on the question
if the person concerned was of Somali origin and/or if he or she was
considered as such by the (de facto) authorities.
In
the decision of 28 May 2004 cited above (paragraph 86), the
Administrative Jurisdiction Division of the Council of State held as
follows in response to the appellant's claim that the use of the EU
travel document was unlawful:
“The authority to issue this EU travel document is
based, according to information submitted by the Minister [for
Immigration and Integration], on the Recommendation of the Council of
the European Union of 30 November 1994. It has become manifest that
this Recommendation has not been transposed into Dutch law. The fact
that no legal basis exists for the issuing of an EU travel document
is not in keeping with the principle of lawfulness. This does not
however lead to the conclusion that an expulsion by means of such a
document is unlawful vis-à-vis the appellant, given that this
shortcoming concerns the Dutch internal legal order, that the
appellant is under a legal obligation to leave the Netherlands, and
that the Minister ... has sufficiently substantiated that this
document ... is accepted by third countries.
The fact that no agreement on expulsions exists between
the Netherlands and the de facto authorities in the different
parts of Somalia, does not exclude that in practice an alien is
capable of returning to his country of origin by means of an EU
travel document. The manner in which an expulsion is carried out is
only unlawful ... if, inter alia on the basis of previous
experiences in comparable cases, it is likely that the alien by using
the documents issued to him will not reach his intended destination
or will otherwise encounter problems.”
III. RELEVANT INTERNATIONAL MATERIAL
A. UNHCR
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.
Combined with the fragility of Puntland's economy
and the downturn of Somaliland's, their presence has increased
competition over scarce resources. More sustained assistance is
needed if they are to successfully integrate into these local
economies. Without it, they could become a potential threat to the
hard won peace and stability in both areas. ...
In view of the improvements in peace, security,
stability and governance in northern Somalia (Somaliland and
Puntland), UNHCR is promoting the voluntary repatriation of
Somali refugees originating from there. ...
In the case of Somalia, UNHCR has assessed that the
majority of refugees who fled areas which are now in the northern
sector can safely return to their habitual areas of former abode,
although their right to return is seriously challenged by the
over-stretched absorption capacity. Also, importantly, it cannot be
ruled out that some individuals originating from Somaliland and
Puntland may have a well-founded fear of persecution. Claims
to this effect should therefore be dealt with in line with global
standards of refugee status determination. A similar positive
assessment cannot be made for the southern sector of the country,
where conflict, insecurity and lawlessness still dominate the
situation in large areas. This is why UNHCR continues to encourage
the granting of refugee status, or other forms of complementary
protection, to those being forced to leave the southern sector. ...
Prior to arranging repatriation movements, UNHCR Somalia
requests clearance from the local authorities for all refugees
wishing to repatriate to Somalia. This is to ensure that repatriates
are welcome in their area of return, and to avoid any negative
consequences arising from their being possibly considered to belong
to an area different than their chosen destination. This is of
particular relevance in Somaliland, which, because it considers
itself and independent state, considers non-Somalilanders as
foreigners. In the case of the Puntland State of Somalia, its
Charter and Constitution stipulate that any Somali who respects the
provisions of the Charter/Constitution is allowed to reside in,
travel through and conduct business in Puntland. However, due
to the over-stretched absorption capacity, the authorities, while
respecting the provisions of their basic law, have grown wary of
non-Puntlanders settling there in large numbers. Clan
considerations play an important role. Generally, the lack of local
clan and other support-systems forces most Somalis who no dot not
originate from the area to join the misery of the 31,000 IDPs, who
live in squalid conditions below the poverty line with very limited
access to basic services and physical and legal protection.
It is essential to be aware of the overall impact of
more than half a million voluntary returns (organized and
spontaneous) on the already over-stretched services and resources of
Somaliland and Puntland. As a result, in many cases the returnee
population remains marginalized, often forced to live in squalid
conditions and in a disturbing state of poverty. ...
... the 2003 and 2004 Consolidated Inter-Agency Appeals
for Somalia single out returnees from exile as one of the three most
vulnerable groups in Somalia, together with IDPs and minorities. ...
For purposes of refugee status determination, as with
regard to voluntary repatriation, UNHCR policy divides the country
into north and south, i.e. areas recognized as being stable (north)
and areas recognized as not yet stable because of the absence of
civil administrative structures to guarantee security (south). The
areas administered by the Somaliland and Puntland authorities
fall into the northern sector of the country, and the rest into the
southern sector. The two sectors are roughly separated by a line that
goes through the town of Galkayo. ...
The general pattern of human settlements prevailing in
many parts of Africa, including Somalia, is often characterized by
common ethnic, tribal, religious and /or cultural factors, which
enable access to land, resources and protection from members of the
community. Consequently, this commonality appears to be the necessary
condition to live in safety. In such situations, it would not be
reasonable to expect someone to take up residence in an area or
community where persons with a different ethnic, tribal, religious
and/or cultural background are settled, or where they would otherwise
be considered as aliens. The only conceivable alternative could be to
move to the slums of a big city, where internal migrants from the
countryside lead a precarious existence, often in appalling living
conditions. Persons with a rural background may be rendered destitute
there and thus be subjected to undue hardship. Therefore, it would be
unreasonable to expect a person to move to an area in his or her own
country other than one where he or she has ethnic, tribal, religious
and/or cultural ties.
This is true also in Somaliland and Puntland.
They already host some 60,000 and 31,000 IDPs 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.
...
... UNHCR is of the view that the internal flight
alternative is not applicable in the context of Somalia. ...
UNHCR considers that persons originating from southern
Somalia are in need of international protection and objects to any
involuntary return of rejected asylum-seekers to the area south of
the town of Galkayo.
Despite the fact that security, stability and governance
prevail in Somaliland and to an increasing extent in Puntland, the
conditions are not generally favourable for the forced return of
large numbers of rejected asylum-seekers. While the restoration of
national protection, in line with protection standards applicable to
all other citizens, is not likely to be a problem for persons
originating from these areas, the weak economy, which offers few
employment opportunities, and the lack of sufficient basic services,
result in an environment which is not conducive to maintaining
harmonious relations among the population. Therefore, UNHCR advises
against indiscriminate involuntary returns. It is recommended that
cases be reviewed individually, and that States take into
consideration the particular circumstances of each case (age, gender,
health, ethnic/clan background, family situation, availability of
socio-economic support), in order to determine whether possible
return of the individuals/families in question can be sustainable, or
whether they should be allowed to remain on their territory on
humanitarian grounds.
In this regard, it should also be noted that women,
children and adolescents face particular challenges upon return to
Somalia after a long stay in exile, which may have changed some of
their habits and affected their ability to speak Somali without an
unfamiliar accent. While it is not a policy of the authorities in
Somaliland and Puntland, returnees and deportees from further
afar than the immediate region, or even from urban areas within the
region, often face severe discrimination by their community on
account of not being sufficiently Somali. A 2003 UN-OCHA report
entitled 'A Gap in Their Hearts: the experience of separated Somali
children' concludes: 'Bi-cultural separated Somali minors who are
returned to their homeland under duress or through deception are in
danger of harassment, extortion, rape and murder.' Perceived
unacceptable and culturally insensitive behaviour by girls results in
harsher discrimination and punishment than for boys. While this study
focuses on child smuggling and its consequences, the findings related
to the treatment of returning youths to Somalia are relevant also for
other young Somalis who are involuntarily returned to their homeland,
after having been exposed and to a certain extent adapted to another
culture. ...
With reference to what is said on the non-applicability
of the internal flight alternative in Somalia, it is UNHCR's position
that no Somali should be returned against his/her will to an area of
the country, from where he/she does not originate. In this regard,
considerations based on the prevailing clan system are of crucial
importance.”
On
11 August 2004 the UNHCR Representative for Somalia provided Country
of Origin Information in reply to queries from lawyers with the
Amsterdam Bar. The Representative stated, inter alia:
“Particularly looking first at the situation of
the IDPs located in Somaliland and Puntland, UNHCR is clear in
stating that there is a continued deterioration both in legal
protection and in socio-economic security since the writing of the
Position Paper. This is chiefly due to coping mechanisms of the IDPs
being stretched further and further with the prolongation of the
conflict and the resulting exposure to extreme poverty and
discrimination. ... In Somali society, protection is the
responsibility of the clan and is a process that generally functions.
However, IDPs and other minority groups are largely devoid of such
benefactors. Consequently they are subject to exploitation (both
sexual and economic), denied access to services, subject to forced
relocation and forced labour, restricted in their movements and
otherwise discriminated against. ... [T]he regional authorities of
Somalia are not likely to accept deportations or even to accept
voluntary returns of persons not originating from the respective
areas. In the case of Puntland, it should be noted that the
authorities, despite what is enshrined in their constitution, are
very wary of non-Puntlanders coming to their territory.”
In
November 2005, UNHCR issued the following Advisory on the Return of
Somali Nationals to Somalia:
“1. UNHCR issued its current position
concerning returns to Somalia in January 2004. By way of this
additional advisory, which complements and should be read alongside
the position of January 2004, UNHCR re-confirms that this position
remains valid. Indeed, prevailing problems in Somalia only support
its continued validity and application.
2. ... According to the Report of [UN]
independent expert on the situation of human rights in Somalia Ghanim
Alnajjar, 'The right to life continues to be violated on an extensive
scale in Somalia. Most of the country is marked by insecurity and
violence and the most insecure areas are in the south, notably the
capital city Mogadishu.' (UN Commission on Human Rights,
E/CN.4/2005/117, 11 March 2005, paragraph 17)
...
5. ... UNHCR underlines that an internal
flight alternative is not applicable in Somalia, as no effective
protection can be expected to be available to a person in an area of
the country, from where he/she does not originate. In this regard,
considerations based on the prevailing clan system are of crucial
importance.
6. Therefore, international protection should
not be denied on the basis of an internal flight alternative. Such a
denial would effectively condemn the persons in question to a form of
internal displacement, which brings along a high risk of denial of
basic human rights and violation of socio-economic rights,
exacerbating the already high levels of poverty and instability for
both the individual and the community. ...
7. UNHCR acknowledges that not all Somali
asylum seekers may qualify for refugee status under the 1951
Convention. However, UNHCR considers that asylum seekers originating
from southern and central Somalia are in need of international
protection and, excepting exclusion grounds, should be granted, if
not refugee status, then complementary forms of protection.
8. Correspondingly, UNHCR reiterates its call
upon all governments to refrain from any forced returns to southern
and central Somalia until further notice.
9. As regards forced returns to northern
Somalia, while some returns are possible under certain conditions,
notably where there are clan links within the area of return and
effective clan protection, large-scale involuntary returns should be
avoided. Persons not originating from northern Somalia should not be
forcibly returned there.”
B. Other relevant international material
1. “Somalia: A Situation Analysis and Trend
Assessment” – Professor K. Menkhaus
This
report, dated August 2003, was commissioned by UNHCR and written by
Professor Menkhaus. According to the author, while the chronic and
widespread level of underdevelopment and insecurity in Somalia –
especially south-central Somalia – places a large portion of
the population at risk, some sections of the population are
especially vulnerable to human rights abuses. Two of these groups are
IDPs and members of minorities and weak clans. As regards the latter
group, Menkhaus writes:
“... members of politically weak clans –
minority groups, low status clans, and clans residing in areas where
they are badly outnumbered or outgunned – are not able to call
upon their clan for protection, and hence are vulnerable to predatory
or abusive acts by criminals and militia with little hope of
protection by the law. A report on human rights abuses by the
Mogadishu-based Isma'il Jimale Human Rights Centre in 2003 concludes
that most of the victims were from minority groups 'who have no clan
affiliations as protection'.”
According
to Menkhaus, human rights violations in Somalia remain endemic and
very serious, despite some progress having been made since the early
1990s. Menkhaus distinguishes the following three categories of human
rights violations: violations of the rules of armed combat; human
rights violations perpetrated by criminals which go unaddressed by
local authorities; and human rights violations perpetrated by
political authorities themselves. As regards the second category –
criminal violations of human rights – he writes inter alia:
“The distinction between militia and criminal
activity in Somalia is very difficult to make, as warfare itself is
an enterprise for looting and as armed conflict is increasingly
linked to retaliation against criminal acts. Still, there are
numerous instances in which crimes committed by 'civilians' –
be they criminals or unpaid militia engaging in criminal acts –
are generating serious human rights crises. Certain types of crimes
which qualify as human rights violations, such as murder, generally
are addressed via blood payments or sharia courts. But some
violations go almost entirely unpoliced.”
Menkhaus
goes on to list a number of crimes, whose perpetrators are rarely
held accountable by local authorities. This includes discrimination
against minorities, about which he writes:
“Though presented as a homogeneous society,
Somalia features a number of low-status and minority groups which are
frequently subject to abuse and exploitation. The Somali Bantu
population is now the best known of these minorities; representing
about 5 per cent of the total population, the Bantu are prone to
theft of their land, rape, forced labour, and a range of
discriminatory behaviour. Minority and low status groups such as the
Bantu are afforded little protection under customary clan law and
have virtually no recourse to a system of justice when victimised.
Those who do bring complaints to clan, legal, or religious
authorities place themselves at great risk of intimidation and
assault.”
2. “Somalia – Situation and Trend Analysis”
– Professor K. Menkhaus
In
this report, dated 20 September 2004 and written for the
Schweizerische Flüchtlingshilfe, Professor Menkhaus
writes, inter alia, that “the most important common
element of personal security across all of Somalia is clan
affiliation.” In his view, IDPs constitute the most vulnerable
group in the country:
“They are especially vulnerable as a group for
several reasons: most are from weak, minority, agricultural clans,
and hence easily abused with impunity; nearly all are 'guests' in
territory dominated by larger clans, affording them less protection
(in some places, such as Somaliland, IDPs from south-central Somalia
are seen as 'foreigners' with no legal rights or claims); all are
destitute and survive on short-term wage labour and periodic
infusions of humanitarian aid; and most reside in camps which are
controlled by 'camp managers', militiamen who restrict their movement
and who divert assistance away from the IDPs.”
According
to Menkhaus, “... the zone of Somalia from Galkayo to the
Kenyan border is the most conflict-ridden and lawless portion of the
country”. Puntland is described as being
“one of the most difficult regions to read
politically in recent years: at times it exhibits impressive levels
of stability, reconciliation, unity and modest government capacity,
at other times it lurches toward what appears to be political crisis
and collapse. ... [T]hroughout its recent political confrontations,
Puntland has remained relatively free from violent crime and
lawlessness. ...
Personal security in Puntland has been and remains
relatively good. ... One growing exception to this rule is the
increasing number of IDPs and migrant labourers from south-central
Somalia who now reside in Puntland's main towns of Bosasso, Garowe
and Galkayo. These outsiders do not enjoy full rights and protection
in customary law; the poorest of the migrants reside in sprawling
slums and are subject to abuses for which there is little recourse.”
Somaliland
is said to have remained “a zone of impressive law and order
..., with very low crime rates and a high degree of public safety”.
3. “Somalia: Urgent need for effective human
rights protection under the new transitional government” –
Amnesty International
In
this report, published on 17 March 2005, Amnesty International
urgently calls on the Transitional Federal Government, which was
about to begin a five-year transitional period intended to bring
Somalia back into the international community of nations, to make
human rights protection one of its central and constant aims. Under
the heading “Protection of minority rights”, the report
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.”
4. “Operational Guidance Note Somalia” –
Asylum and Appeals Policy Directorate of the Immigration and
Nationality Directorate of the United Kingdom Home Office Operational
Guidance Note Somalia
The
“Operational Guidance Note Somalia”, issued on 5 May
2006, contains a summary of the general, political and human rights
situation in Somalia and provides information on the nature and
handling of asylum claims frequently received from
nationals/residents of that country.
The
Note states that, although the country's human rights record remained
poor and serious human rights abuses continued in 2005, the human
rights situation was better in Somaliland and Puntland than in other
parts of Somalia. It further set out that Somali society is
characterised by membership of clan families (which are sub-divided
into clans and sub-clans) or membership of minority groups, and that
an individual's position depends to a large extent on their clan
origins. In general terms, a person should be safe in an area
controlled by their clan, and any person, irrespective of clan or
ethnic origin, will be safe from general clan-based persecution in
Somaliland and Puntland. The chronic and widespread level of
underdevelopment in Somalia makes a large portion of the population
vulnerable not only to humanitarian crisis, but also to violations of
their human rights.
In
respect of persons belonging to the Benadiri minority, the Note
states the following:
“Treatment. Somalis with no clan
affiliation are the most vulnerable to serious human rights
violations, including predatory acts by criminals and militias, as
well as economic, political, cultural and social discrimination.
These groups comprise an estimated two million people, or about one
third of the Somali population and include the Benadiri (Reer Hamar)
...
The Benadiri are an urban people of East African Swahili
origin. They all lost property during the war and the majority of
Benadiri fled to Kenya. Those that remain live mainly in the coastal
cities of Mogadishu, Merka and Brava. The situation of the Benadiri
remaining in Somalia is difficult, as they cannot rebuild their
businesses in the presence of clan militias. As of 2003, 90% of the
Reer Hamar population in Mogadishu had left the city as a consequence
of civil war and lack of security. The majority of Reer Hamar who are
still in Mogadishu are older people who live in Mogadishu's
traditional Reer Hamar district; Hamar Weyn which is controlled by
militias of the Habr Gedir sub-clan, Suleiman. Most homes belonging
to the Benadiri ... in Mogadishu had been taken over by members of
clan militias, although sometimes the clan occupants allowed them to
reside in one room.
...
Sufficiency of protection. Minority groups
based in southern or central Somalia that are politically and
economically the weakest and are culturally and ethnically distinct
from Somali clan families such as the Benadiri (Reer Hamar) ... are
not able to secure protection from any major clan family or related
sub-clan in these regions. They are vulnerable to discrimination and
exclusion wherever they reside. ...
Internal relocation. As the Benadiri (Reer
Hamar) ... are vulnerable to discrimination and exclusion by major
clan and sub-clan groups throughout southern and central Somalia,
internal relocation within these regions is not a reasonable option.
The possibility of internal relocation to Somaliland or Puntland is
restricted; in these areas the authorities have made it clear that
they would only admit to the territory they control those who are of
the same clan or who were previously resident in that particular
area.
...
Conclusion. The Benadiri (Reer Hamar) ...
are part of the underclass in Somali society and are subject to
political and economic exclusion due mainly to them being culturally
and ethnically unconnected to any major clan group. They are usually
unable to secure protection from any clan group and are therefore in
a vulnerable position wherever they reside in southern and central
Somalia. ... [I]ndividual applicants who have demonstrated a
reasonable likelihood that they are of Benadiri (Reer Hamar) origins
from southern or central Somalia are likely to encounter ill-
treatment amounting to persecution. The grant of asylum in such cases
is therefore likely to be appropriate.”
5. “Can the Somali Crisis Be Contained?” –
International Crisis Group
In
the executive summary of this report, which was published on
10 August 2006, the following is stated:
“Somalia has been drifting toward a new war since
the Transitional Federal Government (TFG) was formed in late 2004 but
the trend has recently accelerated dramatically. The stand-off
between the TFG and its Ethiopian ally on the one hand, and the
Islamic Courts, which now control Mogadishu, on the other, threatens
to escalate into a wider conflict that would consume much of the
south, destabilise peaceful territories like Somaliland and Puntland
and possibly involve terrorist attacks in neighbouring countries
unless urgent efforts are made by both sides and the international
community to put together a government of national unity.”
6. “Somaliland nabs Belgian officials” –
BBC
This
report, which appeared on the BBC News website on 15 August
2006, tells of three Belgian immigration officials having been
apprehended in Hargeisa, the Somaliland capital, when they arrived
there on a flight from Ethiopia with a man they had deported from
Belgium. In the report, Somaliland's Minister of Aviation is quoted
as saying that the men did not have visas to enter Somaliland or the
prior consent necessary to deliver a deportee there, and that the
deportee had been sent back to Ethiopia on the flight on which he had
arrived.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that his expulsion to Somalia would expose him
to a real risk of being subjected to treatment in breach of Article 3
of the Convention, having regard to his personal situation of
belonging to a minority in the light of the general human rights
situation in Somalia. Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Whether the application should be struck out
In
their letter of 7 July 2005, informing the Court that the applicant
was eligible for a residence permit pursuant to the categorial
protection policy (see paragraph 40 above), the Government suggested
that this development might lead the Court to strike the application
out of its list of cases on the basis of Article 37 of the
Convention. Article 37 reads:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.
2. The Court may decide to restore an
application to its list of cases if it considers that the
circumstances justify such a course.”
The
applicant requested the Court not to strike the case out.
Noting
that the applicant intends to pursue the application, the Court will
examine whether the matter has been resolved. While it is true that
the applicant has been issued with a residence permit (see paragraph
40 above) as a result of which he is not, at present, liable to
expulsion, the Court can nevertheless not find that this constitutes
a solution of the matter. After all, the decision establishing the
categorial protection policy unambiguously states that that policy
will be reviewed when the Court has decided on the merits of cases
lodged by Somali nationals in which it has issued an interim measure
(see paragraph 87 above). Bearing in mind that a strike out entails
that no decision is taken on the merits of a case, it would thus
appear that the Government do not consider the matter solved but
rather want the Court to continue its examination of the application.
This would in any event appear to be the most efficient way of
proceeding since if, following a decision striking the application
out of the list, the categorial protection policy was to be
withdrawn, the applicant would in all probability seek the
application's restoration to the list pursuant to paragraph 2 of
Article 37.
In
the absence of “any other reason” within the meaning of
Article 37 § 1 (c), the Court finds, therefore, that no
circumstances pertain on the basis of which the application should be
struck out of its list of cases.
2. Exhaustion of domestic remedies
The Government submitted that the applicant had
failed to exhaust domestic remedies as required by Article 35 §
1 of the Convention. Firstly, he had failed to lodge a further appeal
with the Administrative Jurisdiction Division of the Council of State
in the proceedings on his application for asylum. Secondly, an appeal
lay against the dismissal of his objection against the manner of his
expulsion which, in so far as the Government were aware, the
applicant had not used.
The
applicant argued that, in view of its case law, a further appeal to
the Administrative Jurisdiction Division would not have stood any
chance of success and this did therefore not constitute a domestic
remedy which he was required to exhaust. As regards the decision on
his objection lodged on the basis of section 72 § 3 of the
Aliens Act 2000 – which was in any event not capable of
providing him with an effective remedy against expulsion –, the
applicant pointed out that he had appealed that decision.
The Court reiterates the relevant principles as to
exhaustion of domestic remedies as set out in, inter alia, its
judgment of 28 July 1999 in Selmouni v. France ([GC], no.
25803/94, §§ 74-77, ECHR 1999-V). The purpose of Article 35
§ 1 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court. The
obligation to exhaust domestic remedies is, however, limited to
making use of those remedies which are likely to be effective and
available in that their existence is sufficiently certain and they
are capable of redressing directly the alleged violation of the
Convention. An applicant cannot be regarded as having failed to
exhaust domestic remedies if he or she can show, by providing
relevant domestic case law or any other suitable evidence, that an
available remedy which he or she has not used was bound to fail.
The
Court observes that in his appeal to the Regional Court against the
refusal of his asylum application the applicant argued that that
application should not have been rejected and that the “relatively
safe” areas of Somalia did not constitute an internal flight
alternative (see paragraph 33 above). It is true, as the Government
have pointed out, that following the dismissal of the appeal by the
Regional Court a subsequent remedy in the shape of a further appeal
to the Administrative Jurisdiction Division of the Council of State
was available to the applicant (see paragraph 44 above). Upon advice
by counsel the applicant chose not to have recourse to this remedy
(see paragraph 35 above).
The
Court considers that, although the Administrative Jurisdiction
Division may in theory have been capable of reversing the decision of
the Regional Court, in practice a further appeal would have stood
virtually no prospect of success. In this context it notes, firstly,
that on the same day the Regional Court rejected the applicant's
appeal, the Administrative Jurisdiction Division specified –
and has ever since repeated – that an individual member of a
group against which organised, large-scale human rights violations
are committed must make a plausible case for believing that specific
facts and circumstances exist relating to him or her personally in
order to qualify for the protection offered by Article 3 (see
paragraph 89 above). Pursuant to a subsequent decision of the
Administrative Jurisdiction Division, concerning a Somali national
who, like the applicant in the present case, belonged to the Reer
Hamar, this means that the acts committed must have been specifically
aimed at the person of the individual concerned and that he or she
must therefore have found themselves in a position which
substantially deviated from that of other members of the Reer Hamar
in Somalia (see paragraph 90 above). The applicant, however, has
never argued that he was treated differently, or substantially worse,
than other members of the Reer Hamar; on the contrary, he has stated
that the other Ashraf families in the village of Tuulo Nuh were
subjected to the same treatment as was meted out to him and his
family (see paragraph 7 above). It is, therefore, difficult to see
how the Administrative Jurisdiction Division could have come to a
different conclusion in the case of the applicant.
Secondly,
the Court considers that the applicant's argument that no internal
flight alternative existed was similarly bound to fail, in view of
the Administrative Jurisdiction Division's consistent case law at the
relevant time, to the effect that an alternative place of abode in
the “relatively safe” area of Somalia was available to
members of minority groups (see paragraphs 85-86 above).
In
respect of the complaint relating to the manner of his expulsion, the
Court observes that the applicant – contrary to what the
Government contended – did lodge an appeal against the
dismissal of his objection, as well as an, equally unsuccessful,
further appeal (see paragraph 39 above). The fact that these
proceedings were still pending at the time the applicant lodged the
present application with the Court cannot be held against him in this
context since the act of lodging the objection did not suspend his
expulsion, and his request for a provisional measure to stay his
expulsion had been turned down (see paragraphs 36-37 above).
The
Court accordingly finds that the Government's plea of inadmissibility
for non-exhaustion of domestic remedies must be dismissed.
The
Court considers that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
The
applicant argued that if he were deported to northern Somalia there
was a real risk that he would be subjected to torture or to cruel and
inhuman treatment because he belonged to the Reer Hamar minority
group. Not having any clan or family ties in the “relatively
safe” areas, there was every possibility that he would be
forced to live in a camp for IDPs; conditions in these camps had been
described as inhumane. In the applicant's opinion, national policy
based on the country reports prepared by the Dutch Ministry of
Foreign Affairs only paid lip service to the Position Paper issued by
UNHCR (see paragraph 100 above). An analysis of the November 2004
country report carried out by the Dutch Refugee Council (see
paragraphs 81-83 above) had impaired that report's validity and
highlighted its inadequacies. Nevertheless, from an anthropological
point of view it gave a useful insight into the position of the Reer
Hamar in Somalia, with which the applicant's personal circumstances
were completely in line.
The
applicant further claimed that there was no guarantee that he would
be admitted to the “relatively safe” areas of Somalia to
which it was intended to expel him, given that the authorities of
Somaliland and Puntland had stated that Somalis with no family or
clan ties to those areas would not be admitted and that they did not
accept the EU travel document with which the Netherlands authorities
expected him to travel. Furthermore, the Government had no agreements
with the de facto authorities in those areas. He feared that
he would not be readmitted to the Netherlands if he were to be denied
entry to the “relatively safe” areas because the
respondent Government would not be aware of his situation, and that
as a result he would end up as a “refugee in orbit”.
He
also argued that the journey would take him through Mogadishu and
that sometimes aircraft that landed there were robbed and failed
asylum seekers arriving from the Netherlands forced to disembark.
Having regard to his previous experiences in Mogadishu, it was clear
that a sojourn in that city would expose him, as a member of the Reer
Hamar minority, to a real risk of falling victim to treatment
proscribed by Article 3.
b. The Government
The
Government remained of the opinion that the applicant, if expelled,
did not run a real risk of being exposed to treatment in breach of
Article 3, since the problems experienced by him were not so much the
result of person-specific unfavourable attention, but of events that
could better be described as the result of the generally unstable
security situation in Somalia. In that context they argued that it
could not necessarily be concluded solely on the basis of the general
situation in a country that a particular person ran a real risk, but
that it was required that individuals showed that they had been
singled out for persecution.
In
so far as the applicant claimed that, as a member of the Ashraf or
Reer Hamar minority, he would experience problems if expelled to the
“relatively safe” areas of Somalia, the Government,
referring to the country reports drawn up by their Minister of
Foreign Affairs, submitted that the minorities present in Somaliland
and Puntland were not persecuted and that their safety was not
generally at risk. While their socioeconomic situation was often
precarious, they nevertheless managed to provide for themselves by
displaying flexibility on the local labour market and taking on all
kinds of work. Newcomers generally established links with other
members of their minority group if they were present in significant
numbers.
As
regards access to the “relatively safe” areas, the
Government noted that Somalis were free to enter and leave the
country, the state borders hardly being subject to controls in
accordance with age-old nomadic tradition. Even though the
Netherlands Minister for Immigration and Integration had informed the
authorities of Somaliland, in reply to the letter from that entity's
Minister of Resettlement, Rehabilitation and Reintegration that she
would like to negotiate arrangements on the return of failed asylum
seekers (see paragraphs 91-92 above), the Government had not
concluded any agreement with the de facto Somali authorities
on this matter. Arrangements had been made with the immigration
authorities in Dubai (United Arab Emirates) and Nairobi (Kenya). In
those countries of transit, Somali asylum seekers forced to return
were given the opportunity to specify to which area within the
“relatively safe” part of Somalia they would prefer to
return. In both cities, the Immigration and Naturalisation Department
had liaison officers who worked closely with the authorities of the
airports from which failed Somali asylum seekers travelled on to
airports in the “relatively safe” areas in Somalia.
In
response to the applicant's contention that by travelling with an EU
travel document, he would run the risk of being denied entry into the
“relatively safe” part of Somalia, the Government
supplemented the considerations of the provisional-measures judge of
the Regional Court of The Hague, sitting in Amsterdam, in its
decision of 20 January 2004 (see paragraph 37 above) as follows: the
number of Somali aliens expelled to Somalia via Dubai or Nairobi was
33 in 2003 and 20 in 2004 up to the moment the Government submitted
its observations in the present case. This included aliens who had
said, when applying for asylum, that they belonged to a minority. The
Government were not aware of any instances of Somali aliens having
been denied entry into Somalia because they were using a travel
document provided to them. In any event, was this to happen, the
provisions of the Chicago Convention on International Civil Aviation
would be applicable. The Government were further unaware of aircraft,
while on a stop-over in Mogadishu on the flight from Nairobi, having
been robbed and failed asylum seekers from the Netherlands forced to
disembark. The Nairobi station manager of the airline involved had
informed the Government that these claims were not supported by the
facts.
2. The Court's assessment
a. General principles
The
Court reiterates at the outset that Contracting States 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. The right to political
asylum is not contained in either the Convention or its Protocols.
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 (see, for example, Hilal v. the United
Kingdom, no. 45276/99, § 59, ECHR 2001-II, and Ahmed v.
Austria, judgment of 17 December 1996, Reports of Judgments
and Decisions 1996 VI, p. 2206, §§ 38-41).
The
establishment of any responsibility of the expelling State under
Article 3 inevitably involves an assessment of conditions in the
requesting country against the standards of Article 3 of the
Convention (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, ECHR 2005-I, § 67). In determining
whether it has been shown that the applicant runs a real risk, if
expelled, of suffering treatment proscribed by Article 3, the Court
will assess the issue in the light of all the material placed before
it, or, if necessary, material obtained proprio motu, in
particular where the applicant – or a third party within the
meaning of Article 36 of the Convention – provides reasoned
grounds which cast doubt on the accuracy of the information relied on
by the respondent Government. In respect of materials obtained
proprio motu, the Court considers that, given the absolute
nature of the protection afforded by Article 3, it must be satisfied
that the assessment made by the authorities of the Contracting State
is adequate and sufficiently supported by domestic materials as well
as by materials originating from other, reliable and objective
sources, such as, for instance, other Contracting or non-Contracting
States, agencies of the United Nations and reputable non-governmental
organisations. In its supervisory task under Article 19 of the
Convention, it would be too narrow an approach under Article 3 in
cases concerning aliens facing expulsion or extradition if the Court,
as an international human rights court, were only to take into
account materials made available by the domestic authorities of the
Contracting State concerned without comparing these with materials
from other, reliable and objective sources. This further implies
that, in assessing an alleged risk of treatment contrary to Article 3
in respect of aliens facing expulsion or extradition, a full and ex
nunc assessment is called for as the situation in a country of
destination may change in the course of time. Since the nature of the
Contracting States' responsibility under Article 3 in cases of this
kind lies in the act of exposing an individual to the risk of
ill-treatment, the existence of the risk must be assessed primarily
with reference to those facts which were known or ought to have been
known to the Contracting State at the time of the expulsion (see
Vilvarajah and Others, cited above, p. 36, § 107). In the
present case, given that the applicant has not yet been expelled, the
material point in time is that of the Court's consideration of the
case. Even though the historical position is of interest in so far as
it may shed light on the current situation and its likely evolution,
it is the present conditions which are decisive and it is therefore
necessary to take into account information that has come to light
after the final decision taken by the domestic authorities (see
Chahal v. the United Kingdom, judgment of 15 November 1996,
pp. 1856 and 1859, §§ 86 and 97, Reports 1996-V;
H.L.R. v. France, 9 April 1997, Reports 1997-III,
p. 758, § 37; and Mamatkulov and Askarov, cited
above, § 69).
Ill-treatment
must also attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this is relative, depending
on all the circumstances of the case (see, amongst other authorities,
Hilal, cited above, § 60). Owing to the absolute character
of the right guaranteed, Article 3 of the Convention may also apply
where the danger emanates from persons or groups of persons who are
not public officials. However, it must be shown that the risk is real
and that the authorities of the receiving State are not able to
obviate the risk by providing appropriate protection (see H.L.R.
v. France, cited above, p. 758, § 40).
b. Application to the present case
The
Court observes at the outset that it is not the Government's
intention to expel the applicant to any area in Somalia other than
those that they consider are “relatively safe”, and that
the applicant's complaint concerns the expulsion as envisaged by the
Government. The issue before the Court is, therefore, whether an
expulsion to those “relatively safe” areas would be in
violation of Article 3.
It appears from the most recent country report on Somalia compiled by
the Dutch Ministry of Foreign Affairs, that the areas currently
considered “relatively safe” are Somaliland, Puntland
(except for the town of Galkayo) and the islands off the coast of
southern Somalia (see paragraphs 53, 70 and 76 above). Apart from the
islands, this corresponds to the areas identified as “safe”
by the UNHCR in its Position Paper of January 2004 (see paragraph 100
above). The Court has been provided with and has obtained a
considerable amount of information relating to the situation in both
Somaliland and Puntland, from which it undoubtedly appears that those
territories are generally more stable and peaceful than south and
central Somalia. 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. On the basis of the available
information, the Court is prepared to accept that the expulsion to
Somaliland or Puntland of a failed asylum seeker belonging to the
first group would not generally expose the person concerned to a real
risk of being subjected to treatment in violation of Article 3. 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.
The
Court considers that it is most unlikely that the applicant, who is a
member of the Ashraf minority – one of the groups making up the
Benadiri (or Reer Hamar) minority group (see paragraph 55 above) –
and who hails from the south of Somalia, would be able to obtain
protection from a clan in the “relatively safe” areas
(see paragraph 111 above). According to the Government's country
report of November 2004, individuals who do not originate from
Somaliland or Puntland and who are unable to claim clan protection
there almost invariably end up in miserable settlements for the
internally displaced, with no real chance of proper integration (see
paragraph 57 above). They are said to have a marginal, isolated
position in society, which renders them vulnerable, and more likely
to be the victims of crime than most (see paragraph 62 above).
Indeed, the three most vulnerable groups in Somalia are said to be
IDPs, minorities and returnees from exile (see paragraph 100 above).
If expelled to the “relatively safe” areas, the applicant
would fall into all three categories. In this context it is in
addition to be noted that, again according to the Government, there
are so few Benadiri in the “relatively safe” areas that
no general statements can be made about their position there (see
paragraph 56 above). However, the Court considers that it is not
necessary to examine whether the conditions in which the applicant is
likely to end up if expelled to Somaliland or Puntland are such that
it would expose him to a real risk of being subjected to treatment in
violation of Article 3, since it is of the opinion that that
provision stands in any event in the way of such an expulsion for the
following reasons.
In its Position Paper of January 2004 and its
Advisory of November 2005, UNHCR has stated its opposition to the
forced return of rejected asylum seekers to areas of Somalia from
which they do not originate, emphasising that there is no internal
flight alternative available in Somalia (see paragraphs 100 and 102
above). It is nevertheless to be noted that it does not appear to be
UNHCR's position that the individuals concerned would have a
well-founded fear of persecution within the meaning of Article 1 of
the 1951 Convention in the areas it considers safe; the
organisation's concerns are focused rather on the possible
destabilising effects of an influx of involuntary returnees on the
already overstretched absorption capacity of Somaliland and Puntland,
as well as the dire situation in which returnees find themselves.
While the Court by no means wishes to detract from the acute
pertinence of socio-economic and humanitarian considerations to the
issue of forced returns of rejected asylum seekers to a particular
part of their country or origin, such considerations do not
necessarily have a bearing, and certainly not a decisive one, on the
question whether the persons concerned would face a real risk of
ill-treatment within the meaning of Article 3 of the Convention in
those areas. Moreover, Article 3 does not, as such, preclude
Contracting States from placing reliance on the existence of an
internal flight alternative in their assessment of an individual's
claim that a return to his or her country of origin would expose him
or her to a real risk of being subjected to treatment proscribed by
that provision (see Chahal, cited above, p. 1859, § 98,
Hilal, cited above, §§ 67-68). However, the Court
has previously held that the indirect removal of an alien to an
intermediary country does not affect the responsibility of the
expelling Contracting State to ensure that he or she is not, as a
result of its decision to expel, exposed to treatment contrary to
Article 3 of the Convention (see T.I. v. the United Kingdom
(dec.), no. 43833/98, ECHR 2000-III). It sees no reason to hold
differently where the expulsion is, as in the present case, to take
place not to an intermediary country but to a particular region of
the country of origin. The Court considers that as a precondition for
relying on an internal flight alternative, certain guarantees have to
be in place: the person to be expelled must be able to travel to the
area concerned, to gain admittance and be able to settle there,
failing which an issue under Article 3 may arise, the more so if in
the absence of such guarantees there is a possibility of the expellee
ending up in a part of the country of origin where he or she may be
subjected to ill-treatment.
The
Court observes that the authorities of Somaliland have issued a
decree – which, admittedly, has not been enforced to date –
ordering all displaced persons not originally from Somaliland to
leave the country, and that the Puntland authorities are said to have
grown wary of non Puntlanders coming to their territory and have
made it clear that they would only admit to the territory they
control those who are of the same clan or who were previously
resident in the area (see paragraphs 59, 71, 81, 100-101 and 111
above). More importantly, the authorities of both entities have
informed the respondent Government of their opposition to the forced
deportations of, in the case of Somaliland, non-Somalilanders and, in
the case of Puntland, “refugees regardless of which part of
Somalia they originally came from without seeking either the
acceptance or prior approval” of the Puntland administration.
In addition, both the Somaliland and Puntland authorities have also
indicated that they do not accept the EU travel document (see
paragraphs 91 and 93 above).
While
it appears that the stance of the Somaliland and Puntland authorities
has led the United Kingdom Government to refrain from expelling
rejected asylum seekers belonging to the Benadiri to those regions
(see paragraph 111 above),
the Netherlands Government insisted such expulsions are possible and
pointed out that in the event of an expellee being denied entry, he
or she would be allowed to return to the Netherlands. Bearing in mind
that, according to information provided by the respondent Government,
Somalis are free to enter and leave the country as the State borders
are hardly subject to controls, the Court accepts that the Government
may well succeed in removing the applicant to either Somaliland or
Puntland (even though, having regard to a recent BBC report (see
paragraph 113 above) this is no certainty). However, this by no means
constitutes a guarantee that the applicant, once there, will be
allowed or enabled to stay in the territory, and with no monitoring
of deported rejected asylum seekers taking place, the Government have
no way of verifying whether or not the applicant will have succeeded
in gaining admittance. In view of the position taken by the Puntland
and particularly the Somaliland authorities, it seems to the Court
rather unlikely that the applicant would be allowed to settle there.
Consequently, there is a real chance of his being removed, or of his
having no alternative but to go to areas of the country which both
the Government and UNHCR consider unsafe.
As
regards the islands off the coast of southern Somalia, which are
considered “relatively safe” by the Government, the Court
notes that these are inhabited by members of the Darod/Marehan clan
and of a minority different from the one to which the applicant
belongs. It has not been suggested that the applicant would be able
to obtain clan protection there. As with Somaliland and Puntland,
there are similarly no guarantees that the applicant would be able to
settle there, quite apart from the fact that the islands can only be
reached via “relatively unsafe” territory (see paragraphs
60 and 87 above).
The
question must therefore be examined whether, if the applicant were to
end up in areas of Somalia other than Somaliland or Puntland, he
would run a real risk of being exposed to treatment contrary to
Article 3. In this context, the Court is aware that the Government do
not consider areas in Somalia “relatively unsafe” because
of any risk that individuals may run there of becoming the victim of
treatment in breach of Article 3 of the Convention, but because of
the overall situation, which is such that, in the opinion of the
Minister for Immigration and Integration, a return to those areas
would constitute an exceptionally harsh measure.
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).
While
the Netherlands authorities were of the opinion that the problems
experienced by the applicant were to be seen as a consequence of the
general unstable situation in which criminal gangs frequently, but
arbitrarily, intimidated and threatened people (see paragraphs 28 and
35 above), the Court is of the view that that is insufficient to
remove the treatment meted out to the applicant from the scope of
Article 3. As set out above (see paragraph 137 above), 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, and Article 3 may thus also apply in situations
where the danger emanates from persons or groups of persons who are
not public officials (see also T.I. v. the United Kingdom,
cited above). What is relevant in this context is whether the
applicant was able to obtain protection against and seek address for
the acts perpetrated against him. The Court considers that this was
not the case. Moreover, having regard to the information available
(see for instance paragraphs 100-102, 108 and 111-112 above), the
Court is far from persuaded that the situation has undergone such a
substantial change for the better that it could be said that the risk
of the applicant being subjected to this kind of treatment anew has
been removed or that he would be able to obtain protection from
(local) authorities. There is no indication, therefore, that the
applicant would find himself in a significantly different situation
from the one he fled (see Ahmed, cited above, § 44).
The
Court would further take issue with the national authorities'
assessment that the treatment to which the applicant fell victim was
meted out arbitrarily. It appears 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; they were easy prey, as were the other three Ashraf
families living in the same village (see paragraph 7 above). The
Court would add that, in its opinion, it cannot be required of the
applicant that he establishes that further special distinguishing
features, concerning him personally, exist in order to show that he
was, and continues to be, personally at risk. In this context, it is
true that a mere possibility of ill-treatment is insufficient to give
rise to a breach of Article 3. Such a situation arose in the case of
Vilvarajah and Others v. the United Kingdom, where the Court
found that a possibility of detention and ill-treatment existed in
respect of young male Tamils returning to Sri Lanka. The Court then
insisted that the applicants show that special distinguishing
features existed in their cases that could or ought to have enabled
the United Kingdom authorities to foresee that they would be treated
in a manner incompatible with Article 3 (judgment cited above, p. 37,
§§ 111-112). However, in the present case, the Court
considers, 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 are
concerned, that it is foreseeable that upon his return the applicant
will be exposed to treatment in breach of Article 3. It might render
the protection offered by that provision illusory if, in addition to
the fact that he belongs to the Ashraf – which the Government
have not disputed –, the applicant be required to show the
existence of further special distinguishing features.
The
foregoing considerations are sufficient to enable the Court to
conclude that the expulsion of the applicant to Somalia as envisaged
by the respondent Government would be in violation of Article 3 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that he did not have an effective remedy in that
the Netherlands authorities refused to suspend his expulsion pending
a decision on his objection against the manner of that expulsion. He
relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government contested the applicant's argument, submitting that
effective legal remedies were available against the rejection of the
asylum application and the manner of expulsion.
The
Court reiterates that the notion of an effective remedy under Article
13 requires that the remedy may prevent the execution of measures
that are contrary to the Convention and whose effects are potentially
irreversible. Consequently, it is inconsistent with Article 13 for
such measures to be executed before the national authorities have
examined whether they are compatible with the Convention, although
Contracting States are afforded some discretion as to the manner in
which they conform to their obligations under this provision (see
Čonka v. Belgium, no. 51564/99, § 79, ECHR
2002-I).
The
Court observes that the objection which the applicant lodged on 8
January 2004 against the manner in which his expulsion was to be
carried out did not automatically suspend that expulsion. However, he
was able to apply to the provisional-measures judge of the Regional
Court of The Hague requesting the expulsion be stayed pending a
decision on his objection. According to the judgment which the
provisional-measures judge delivered on 20 January 2004, and of which
the applicant was informed verbally on 15 January 2004, i.e. the day
before he was to be expelled, the expulsion would not be in breach of
Article 3 of the Convention (see paragraph 37 above). Bearing in mind
that the word “remedy” within the meaning of Article 13
does not mean a remedy bound to succeed (see Hilal, cited
above, § 78), and that the compatibility of the scheduled
removal with Article 3 was examined, the Court considers that the
applicant was provided with an effective remedy as regards the manner
in which his expulsion was to be carried out.
Accordingly, the Court concludes that there has been no violation of
Article 13 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant submitted that he did not wish to make any claims for
pecuniary or non-pecuniary damage. Moreover, he did not claim
reimbursement of costs and expenses incurred at the national level,
since he had had the benefit of legal aid awarded to him by the Legal
Aid Council (Raad voor Rechtsbijstand). Depending on the
outcome of the present proceedings before the Court, the Legal Aid
Council would also reimburse the expenses incurred in these
proceedings.
No
claim for just satisfaction having been made by the applicant, the
Court perceives no cause to examine this issue of its own motion.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that the applicant's expulsion to Somalia
would be in violation of Article 3 of the Convention;
Holds that there has been no violation of
Article 13 of the Convention;
Holds that there is no need to examine the issue
of just satisfaction.
Done in English, and notified in writing on 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
