Salah Sheekh v. The Netherlands

Salah Sheekh (plaintiff) was a citizen of Somalia who fled to the Netherlands (defendant) and sought asylum. Sheekh and his family had originally lived in Mogadishu but fled to Tuulo Nuh during a civil war in 1991. In Somalia, clan affiliation was the most critical factor relating to a person’s personal security. Sheekh was a member of the Ashraf minority group. However, the Abgal clan, with its armed militia, controlled Tuulo Nuh. Without clan affiliation in Tuulo Nuh, Sheekh’s family had no protection and was subject to persecution by the Abgal militia. From the time Sheekh was seven years old, the militia went to his home periodically to assault or harass him and his family. Over a 12-year period, the militia killed his father, killed one of his brothers, and raped his sister twice. On the militia’s visit to Sheekh’s home just prior to his flight from the area, eight members of the militia carrying AK-47 and M16 rifles punched, beat, kicked, and threatened Sheekh. Sheekh fled to the Netherlands, seeking asylum. However, the Netherlands wanted to return Sheekh to what the Netherlands viewed as a relatively safe area of Somalia. The Netherlands wanted to expel Sheekh to Somaliland or to Puntland, areas that were more stable. However, because of the clan system across all of Somalia, a person who did not originate from Somaliland or Puntland would also lack the clan or family affiliation in those places needed for protection. Country reports indicated that such persons ended up in awful settlements for the internally displaced, making them vulnerable to crime. In fact, Somalia’s three most vulnerable populations were the internally displaced, minorities, and those returning from exile. If the Netherlands expelled Sheekh, even to the areas it considered relatively safe, he would fit into all three of the most vulnerable populations. Also, Somaliland and Puntland authorities had grown tired of people who were not from those areas settling there. Somaliland had issued an as-yet unenforced decree to expel anyone not from Somaliland. Likewise, Puntland had indicated that it would no longer admit anyone who was not of the same clan or who was not a prior resident. Authorities from both territories informed the Netherlands of their opposition to its actions in forcibly deporting refugees to their territories. The European Court of Human Rights considered whether refoulement i.e., returning Sheekh to the presumed safe areas, would violate Article 3 of the European Convention on Human Rights, although nonrefoulement was not mentioned in the convention.