The deportations do not violate the ECHR, as each deportee puts forward his arguments and his case is examined individually.
Asady and others v. Slovakia 24.03.2020 (no. 24917/15)
Collective expulsion of aliens. Examination by the authorities individually of each case. Non-violation of the ECHR.
Deportation of Afghans to Ukraine by Slovak police. The Court examined only 7 of the 19 appeals. It found, in particular, that despite the short duration of the applicants’ interviews with the police, they had been given the opportunity to develop their arguments in order to avoid deportation and to exercise their right to remain in Slovakia. At the same time, they made no arguments to refute their statements that they had not been persecuted in Afghanistan or were facing the death penalty there. Therefore, their expulsion was not carried out without an assessment of their personal cases.
Non-infringement of Article 4 of the 4th Protocol to the ECHR (prohibition of collective deportation of aliens).
Article 4 of the 4th Protocol
The applicants are 19 Afghan nationals born on various dates between 1980 and 1999.
In November 2014 the applicants were found hidden in a truck by the Slovak Border and Foreigners
Police near the border with Ukraine. The applicants were part of a group of 32 people who were
subsequently taken to the border police station in Petrovce to establish their identities.
The police subsequently issued individual decisions on the administrative expulsion of each applicant
with a three-year ban on re-entry. They were removed to Ukraine late in the evening of the same
day they had been apprehended and were placed in temporary detention in the town of Chop.
Twelve of the people apprehended at the same time as the applicants asked for asylum and were
transferred to an asylum-seekers’ reception centre.
The first four applicants appealed against the Slovakian administrative expulsion decisions, alleging
violations of Article 13 (right to an effective remedy) of the European Convention on Human Rights,
taken in conjunction with Article 3 (prohibition of torture and inhuman and degrading treatment)
and Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the Convention. The
Slovak border police directorate dismissed their appeals in January 2015.
THE DECISION OF THE COURT…
The Court first decided by a majority to strike out of the list the case as it far it concerned 12 of the
applicants and, unanimously, to not strike out of its list the case concerning applicants 4 to 8, and
applicants 10 and 12. Those applicants had provided sufficient information to show that they still
wished to pursue the proceedings, including contact on Facebook with their legal representative.
These applicants were respectively Sher Badov Shinwari, residing in Austria as an asylum-seeker;
Abdul Hamid Nasri, living in Denmark as an asylum-seeker; Mohammad Azam, residing in Kabul;
Samiuddin Faizy, currently in France as an asylum-seeker; Mohammad Shakib, residing in Odessa;
Zabiullah Zazai, living in Mazar-e-Sharif, Afghanistan; and Abobaker Jamil, residing in Afghanistan.
Article 4 of Protocol No. 4
The Court found that the applicants’ removal had amounted to an expulsion within the meaning of
the Convention. The question was whether it had been collective in nature. It thus had to determine
whether they had been given the opportunity to submit arguments against their removal and
whether their personal circumstances had been genuinely and individually taken into account.
The Court noted that the parties disagreed as to whether proper interviews had been carried out or
whether the applicants had said they intended to seek asylum.
According to the official transcripts, the applicants’ interviews had lasted 10 minutes each and had
been conducted by two police officers in the presence of an interpreter. Some of the times of the
interviews had overlapped, but that was not by itself sufficient to find that the applicants had not
had individual interviews. In any case, the Convention did not guarantee a right to an individual
interview. The Court reiterated that what mattered was whether the applicants had been able to
present their arguments against expulsion in an effective manner.
The Court accepted that the applicants had been asked standardised questions and had given similar
answers, although that was possibly because of the similarity of their experiences. However, the
sums of money mentioned as being in their possession were different, which suggested an
individualised approach. Moreover, the short length of the interviews could have been due to the
fact that they had not stated anything which had required a more thorough examination.
Nor had the applicants put forward any arguments to refute their statements as recorded in the
interviews that they had not suffered persecution in Afghanistan or had faced the death penalty
there; rather they had left that country for economic reasons and had wished to travel on to
Germany without seeking asylum in Slovakia.
The Court did not have any proof that the transcripts were not a genuine record, that they had been
wrongly translated, or that requests for asylum by the applicants had been ignored. It had to be
noted that no personal reasons to support requests for asylum had been mentioned in their
conversations with their Ukrainian lawyer or in their expulsion appeals.
Furthermore, it was significant that 12 peopled detained at the same time as the applicants in
Slovakia had expressed a wish to claim asylum and had not been returned to Ukraine.
Lastly, the applicants did not dispute the fact that an interpreter had been present at the police
station at least during the time of their interviews. The Court also did not doubt that, as affirmed by
documents which they and the interpreter had signed, they had been informed of their right to legal
aid and to comment on the case file and adduce evidence.
In conclusion the Court did not find that the applicants had been deprived of the possibility to draw
the attention of the national authorities to any circumstance which might have affected their status
and entitled them to remain in Slovakia, or that their removal to Ukraine had been carried out
without any form of examination of their individual situation.
The Court held by a majority that had therefore been no violation of Article 4 of Protocol No. 4.
The Court noted that it had not been persuaded that the applicants’ expulsion had been collective.
Nor had they raised any separate complaints under Article 2 (right to life) or Article 3 (prohibition of
torture or inhuman or degrading treatment) of the Convention. The Court thus found that the
applicants did not have an arguable claim under Article 13. It therefore by a majority rejected the
complaint under that provision as being manifestly ill-founded and thus inadmissible.
Judge Keller expressed a dissenting opinion. Judges Lemmens, Keller and Schembri Orland expressed
a joint dissenting opinion.