ECtHR - M.S. v. Slovakia and Ukraine, Application no. 17189/11, 11 June 2020
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights |
| Date of decision: | 11-06-2020 |
| Citation: | ECtHR - M.S. v. Slovakia and Ukraine, Application no. 17189/11, 11 June 2020 |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Slovakian authorities provided information and interpretation and there are no indications that these were inadequate to the extent of impairing the individual’s access to asylum. The applicant’s return to Ukraine was conducted in the context of a readmission framework and there was no reason for Slovakian authorities to be particularly alert regarding potential human rights violations in Ukraine.
However, there has been a procedural violation of Article 3 of the Convention by Ukraine on account of the Ukrainian authorities’ failure to examine the applicant’s claims of fear of persecution in Afghanistan properly before returning him there. Moreover, there has been a violation of Article 5 §§ 2 and 4 of the Convention by Ukraine.
Facts:
The applicant’s father was killed in about 2005 by unknown people, possibly associated with the Taliban. In July 2010, the applicant entered Ukraine. In September of the same year, the applicant was arrested by the Slovakian border police while crossing into Slovakia illegally with three other Afghan nationals. He had no identity papers. A decision to expel the applicant was issued, and the applicant was handed over to the Ukrainian authorities.
The applicant was placed in the Border Guard’s temporary holding facility in Chop. He alleged that he had informed a guard that he was fourteen years old. He also alleged that he had told a representative of Caritas, an NGO, that he was a minor and wished to apply for asylum. He was not aware of the proceedings; he did not have legal representation and did not understand his rights in the proceedings before the Court.
On March 2011 the Regional Migration Service rejected the applicant’s asylum application as inadmissible
Decision & reasoning:
The Court declared some of the complaints against Ukraine admissible and the remainder of the application inadmissible.
The Court noted that, regarding the establishment of facts concerning the applicant’s age, the applicant was contradictory in his declaration and has not provided the Court with cogent elements.
Regarding the claims against Slovakia, the Court analysed that they provided interpretation and translation of decisions to the applicant, meaning that there was no indication that they were so inadequate as to deny the applicant access to the asylum procedure had he wished to access it. 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. Finally, the Slovakian authorities did not expose the applicant to any heightened risk by returning him to Ukraine illegally but instead handed him over to the Ukrainian authorities within the framework of an orderly readmission process.
Regarding the claims against Ukraine, the Court first noted that the applicant failed to provide a detailed account of the conditions of his detention at the Chop facility. Even though the Court admits that information regarding the physical conditions of detention falls within the knowledge of the domestic authorities, the applicant should have been able to provide more detailed information than he did.
Finally, regarding the complaint 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 declared it admissible. The Court also holds that there has been a procedural violation of Article 3 of the Convention by Ukraine on account of the Ukrainian authorities’ failure to examine the applicant’s claims of fear of persecution in Afghanistan properly before returning him there. Moreover, there has been a violation of Article 5 §§ 2 and 4 of the Convention by Ukraine.
Outcome:
- Declares the complaints against Slovakia inadmissible;
- Declares the complaints against Ukraine under Article 3 and 13 of the Convention in respect of the applicant’s return to Afghanistan and under Article 5 §§ 2 and 4 admissible and the remainder of the complaints against Ukraine inadmissible;
- Holds that there has been a procedural violation of Article 3 of the Convention by Ukraine on account of the Ukrainian authorities’ failure to examine in an appropriate fashion the applicant’s claims of fear of persecution in Afghanistan before returning him there;
- Holds that there is no need to examine separately the applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 3 against Ukraine;
- Holds that there has been a violation of Article 5 §§ 2 and 4 of the Convention by Ukraine;
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
- European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
- UNHCR Position on the Situation of Asylum in Ukraine in the Context of Return of Asylum-Seekers
- Buffeted in the Borderland: The Treatment of Migrants and Asylum Seekers in Ukraine”, Human Rights Watch (“HRW”)
- UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan