The repatriation of a foreigner who did not substantiate his allegations did not violate the ECHR. Violation due to insufficient research and no granting of an interpreter.
M.S v. Slovenia and Ukraine 11.06.2020 (no. 17189/11)
Asylum applicant, rights of legal representation in a language understood by the applicant, procedural obligations of the State.
The applicant, passing through Ukraine illegally, was arrested at the Slovak border. Return to Ukraine as the head of the first host country, where he applied for asylum, claiming that his country of origin was Afghanistan, and that there was a strong risk of persecution. The application was rejected and kept in a closed hosting structure for foreigners until he was deported. He filed a complaint alleging violations of Articles 3 and 5 of the Convention, claiming that his request had not been properly considered and that the facts that he was a minor had not been taken into account by the authorities.
With regard to the rejection of the applicant’s claim of being a minor, the Court held that he had not provided convincing evidence of his age.
With regard to Slovakia, as the state in which the applicant was arrested, the ECtHR found that the applicant had been granted an interpreter throughout the repatriation process. The applicant did not apply for asylum in Slovakia, so the ECtHR ruled that the authorities had legally reinstated him in Ukraine. The ECtHR also found that he was illegally entering Slovakia and knew the reason for his arrest. It therefore found that Article 3 and 5§2 of the Slovak Convention had not been violated.
On the other hand, the ECtHR found a number of violations by Ukraine, namely: his participation, as he was not represented by a lawyer, and was not provided by an interpreter to present his allegations, therefore the ECtHR ruled that the procedural part of Articles 5§2 and 4 had been violated.
The ECtHR, on the other hand, rejected the applicant’s complaint of inadequate detention in Ukraine because he had not provided evidence to substantiate his allegations. No violation of Article 3 on the conditions of detention.
The case concerned an Afghan migrant’s complaint about his arrest in Slovakia and return to
Ukraine, then Afghanistan, with limited access to legal advice and interpreters.
The applicant, Mr M.S., is an Afghan national. His date of birth was in dispute: the applicant alleged
that he was born in 1993 or 1994, while the authorities in Slovakia and Ukraine recorded the date of
According to the applicant, he left Afghanistan in May 2010, after his father, who used to work for
the National Security Department of Afghanistan, had been killed in 2005 and a member of his
family had received a threatening letter.
He entered Ukraine in early July 2010. On 23 September 2010 he was arrested by the Slovakian
border police while crossing into Slovakia illegally. He was interviewed, interpreting being provided
from Slovak to English and then, by a fellow Afghan migrant, from English to Pashto. According to
the record of the interview, he stated that his intention was not to apply for asylum in Slovakia, but
to travel to western Europe.
A decision was taken to expel him to Ukraine and he was handed over to the Ukrainian authorities
the next day and placed in a temporary holding facility. In October 2010 a court ordered his
expulsion from Ukraine and his detention pending expulsion. He was transferred to temporary
accommodation for foreign nationals and stateless persons before eventually being expelled to
Kabul in March 2011.
In the meantime, he had lodged an asylum request with the Ukrainian migration authorities,
submitting that he feared persecution if returned to Afghanistan. However, the authorities had
rejected his request because they had found that he did not meet the definition of a refugee under
domestic law and the Refugee Convention.
He maintained that throughout these procedures he had tried to bring to the attention of both the
Slovakian and Ukrainian authorities the fact that he was a minor, without any action being taken.
He is currently living in Afghanistan, and alleged that he was forced to change his place of residence
frequently for fear of the people who had killed his father.
The applicant made several complaints under in particular Article 3 (prohibition of inhuman or
degrading treatment) and Article 5 §§ 2 and 4 (right to be informed promptly of reasons for
arrest/right to have lawfulness of detention decided speedily by a court), alleging, inter alia, that he
had been expelled to Afghanistan without proper examination of his asylum claim and the risks he
faced, and that he had not been informed of the reasons for his detention in Ukraine.
He also submitted, under Article 34 (right to individual petition), that an NGO representative had
been denied access to him in Ukraine, preventing him from lodging an application for an interim
measure with the European Court of Human Rights.
THE DECISION OF THE COURT…
ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION BY SLOVAKIA
Establishment of facts concerning the applicant’s age
The parties disagreed on the applicant’s age. The applicant alleged that he had been born in 1993 or 1994 and so had been, at most, seventeen years of age in September 2010 when he had been detained in Slovakia and returned to Ukraine . The Court notes that the domestic authorities in both Slovakia and Ukraine, and well as the Embassy of Afghanistan in Kyiv, consistently recorded the applicant’s date of birth as 14 January 1992
The applicant did not explain this or attempt to dispel the Government’s doubts. Nor did he allege that any specific circumstances prevented him from providing a more legible copy of that or another document attesting to his age.
The Slovakian Government provided the Court with a transcript of the interview which the border police had conducted with the applicant . According to the transcript, interpretation was provided from Slovak into English; and interpretation was then provided from English into Pashto, apparently by another Afghan migrant arrested with the applicant. While the applicant criticised the adequacy of interpretation arrangements, there is no indication that, in the circumstances, they were so inadequate as to deny the applicant access to the asylum procedure had he wished to access it.
According to the records, the applicant provided information to the Slovakian authorities about his journey from Afghanistan to Slovakia, and his intention to travel to western Europe. He stated that he had not intended to ask for asylum in Slovakia. In that respect, the Slovakian authorities’ records are consistent with the applicant’s subsequent statements to the Ukrainian authorities and in the application form lodged with this Court, to the effect that he and his brother-in-law had intended to travel to western Europe, which the brother-in-law in fact did just days after the applicant had reached Slovakia. The Slovakian authorities’ records are also consistent with the applicant’s conduct at the border: it is uncontested that he had attempted to pass through Slovakia in a clandestine manner, rather than present himself openly at the border post to ask for asylum
Moreover, there was no reason for the Slovakian authorities to be on alert concerning any situation of systematic violation of migrants’ rights to which the applicant could fall victim in Ukraine .
The UNCHR did not submit that its 2007 report expressing reservations about returns to Ukraine remained valid in 2010. Moreover, that report concerned asylum‑seekers. For the Reasons stated above, the Slovakian authorities did not consider that the applicant fell into that category. Since he had not applied for asylum, the authorities were under no obligation to verify whether he would have effective access to the Ukrainian asylum system.
Finally, the Slovakian authorities did not expose the applicant to any heightened risk by inducing him to return to Ukraine illegally, but rather handed him over to the Ukrainian authorities within the framework of an orderly readmission process.
In view also of its conclusion above concerning the applicant’s age, the Court is not convinced that the applicant, whose credibility was also an issue, has laid a basis for an arguable claim that there has been a breach of Article 3 by Slovakia.
In the absence of an arguable complaint under Article 3, the applicant’s complaint under Article 13 must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 3.
ΑLLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION BY SLOVAKIA
Paragraph 2 of Article 5 lays down an elementary safeguard: any person who has been arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: any person who has been arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his deprivation of liberty, so as to be able to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest.
The Court sees no reason to doubt that the applicant was aware that he had entered Slovakia unlawfully and, therefore, that he was also aware of the factual grounds for his detention in Slovakia.
The Court reiterates that Article 5 § 2 does not require that reasons be given to a detained person in writing or some other particular form.. Therefore, this part of the application is manifestly ill-founded
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF CONDITIONS OF DETENTION IN UKRAINE
In his application form the applicant complained that the conditions of his detention in Ukraine had been inadequate, in breach of Article 3 of the Convention.
The Court reiterates that information regarding the physical conditions of detention falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their.
The applicant failed to provide a detailed account of the conditions of his detention at the Chop facility. The gaps in the applicant’s account cannot be supplemented by relevant international reports, which do not contain any conclusive information on this point . Therefore, this part of the application is manifestly ill-founded and must be rejected .
ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION BY UKRAINE IN RESPECT OF THE ASSESSMENT OF THE RISK OF THE APPLICANT’S RETURN TO AFGHANISTAN
The applicant complained that, by failing adequately to assess the risk that he might be exposed to ill-treatment in Afghanistan and by expelling him there, Ukraine had breached Articles 3 and 13 of the Convention.
The Court notes at the outset that in the circumstances of the present case, the central question to be answered is not whether the applicant faced a real risk of ill-treatment in Afghanistan, but whether before returning him there, the Ukrainian authorities carried out an adequate assessment of his claim that he would be at such a risk.
The applicant claimed that he belonged to a group, namely family members of government officials who, according to the relevant country information could be at risk in Afghanistan. Accordingly, the Ukrainian authorities were under an obligation to examine his allegations and ascertain whether his expulsion to Afghanistan would expose him to a serious risk.
However, instead of making a substantive analysis of the applicant’s alleged fear of persecution, the Regional Migration Service focused on formal grounds for rejecting his asylum request. It concluded that he did not meet the definition of a refugee under domestic law and the Refugee Convention.
To the extent that the issue of potential risk in the country of origin was examined by the domestic court that ordered the applicant’s expulsion, and came to the irrational conclusion that no crimes against the person were being committed in Afghanistan . While this assessment predated examination of the applicant’s asylum application, it appears to have been the only attempted analysis in substance of the risk he alleged.
These shortcomings were of a procedural nature. Had an appropriate examination of the applicant’s asylum claim been conducted by the Ukrainian authorities, they may well have concluded that his account of risk of ill-treatment in Afghanistan was not convincing, for example because he had not argued that internal relocation, to which he has successfully had recourse, was not available to him or because his account was deemed to lack credibility. There has, therefore, been a procedural violation of Article 3 of the Convention by Ukraine on account of the Ukrainian authorities’ failure to examine, in a manner compatible with the requirements of the Court’s case‑law, the applicant’s claim of fear of persecution in Afghanistan before returning him there.
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION BY UKRAINE
The applicant submitted that the authorities had failed to consider alternatives to detention and had not pursued the proceedings for his deportation with requisite diligence: his identification by the Embassy of Afghanistan had not been carried out until 20 February 2011, months after his placement in detention. . The Court is not convinced by the applicant’s arguments. Before ordering the applicant’s detention, the domestic court did consider factors specific to his case and concluded that his detention was necessary . Likewise, there is no indication that there were such delays in the proceedings as to show that the authorities did not pursue the applicant’s expulsion with requisite diligence. Therefore, this part of the application is manifestly ill-founded .
ALLEGED VIOLATIONS OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION BY UKRAINE
The applicant further complained that he had not been informed of the reasons for his detention in Ukraine, in breach of Article 5 § 2 of the Convention, and that the proceedings for his detention had been in breach of Article 5 § 4 of the Convention. The only domestic document made available to the Court – the court decision of 13 October 2010 ordering the applicant’s expulsion and detention – tends to corroborate those allegations. The court noted that the applicant had waived his right to appear and ordered his expulsion and detention, but its decision contains no reference to the participation of an interpreter or a lawyer in the proceedings. Nor does it contain any indication that the applicant’s rights had been explained to him in a language he understood.
It is also relevant that the applicant’s allegations are corroborated by the CPT report concerning limited access to legal advice and interpretation at the Border Guard detention facilities where the applicant was held at the time .
There has, accordingly, been a violation of Article 5 §§ 2 and 4 of the Convention by Ukraine.
ALLEGED INTERFERENCE BY UKRAINE WITH THE APPLICANT’S RIGHT OF INDIVIDUAL APPLICATION
The applicant complained that the Ukrainian authorities had denied an NGO representative access to the applicant, thus preventing him from lodging a request for an interim measure with the Court . The Court notes that the applicant’s allegations in this respect are not supported by any evidence and are couched in rather vague terms. Accordingly, the Court finds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention.
Complaints against Slovakia declared inadmissible
Violation of Article 3 (investigation) by Ukraine
Violation of Article 5 §§ 2 and 4 by Ukraine
No violation of Article 34 by Ukraine
Just satisfaction: EUR 2,300 (non-pecuniary damage)