ECtHR - Nur and Others v Ukraine, Application no. 77647/11, 16 July 2020

Facts:

All applicants alleged that they had suffered various hardships and had faced various risks in their countries of origin. They had left those countries with the aim of reaching Western Europe. However, they were arrested by Ukrainian border guards in November 2011 while attempting to cross the border.

They claimed to be minors but were unable to provide identity documents at the time and were subsequently transferred to a temporary holding facility (“THF”) in the city of Chop. The eighth applicant was 9 weeks pregnant at this time and later miscarried while being held in the temporary holding facility. Age assessments later determined both applicants to be over the age of 18, although the eighth applicant later presented her birth certificate proving her to be a minor. Both applicants were granted subsidiary protection in August 2012 on the basis that they would face a risk of persecution in their countries of origin.

The applicants complained that their detention in the temporary holding facility had been unlawful and arbitrary, and that they did not have access to a procedure to challenge the decisions contrary to Article 5(1) and 5(4) ECHR. The eighth applicant also complained that her detention conditions were incompatible with Article 3 ECHR.

Decision & reasoning:

The Court lost contact with all but the second and eighth applicants and decided to strike out those parts of the application, as in accordance with Article 37§1(a) of the European Convention of Human Rights, the court found that the applicants concerned do not intend to pursue their application.

Relating to the eighth applicant, the Court first noted that there is no indication that the detention conditions contributed to the applicant’s miscarriage and considered that she had received extensive medical and psychological assistance in the temporary holding facility. As to the applicant’s argument that her detention was contrary to Article 3 because she was a minor, the Court notes that before April 2012 the authorities considered her to be an adult, on the basis of the age assessment results. While that assessment was later discarded, the authorities did indeed have grounds for treating her as an adult during her stay at Chop THF. The Court concluded that the conditions of detention were not so serious as to give rise to a violation of Article 3 ECHR.

The Court observed that domestic regulations enacted by the State Border Control Service stated that following an arrest for violations of border regulations, individuals had to be detained in temporary holding facilities for no longer than 10 days. Moreover, domestic law explicitly banned the detention of unaccompanied minors in temporary holding facilities. Indeed, both applicants were detained in the facility in Chop for longer than the maximum 10 days, and the eighth applicant was also detained as an unaccompanied minor.

The Court therefore held that the second applicant was unlawfully detained from 13-17 November 2011, and the eighth applicant was unlawfully detained from 27 November and 28 December 2011 and 11 April to 8 October 2012 contrary to Article 5(1) ECHR.

It was also found that the applicants did not have at their disposal a procedure by which the lawfulness of their detention could be speedily determined, in violation of Article 5(4) ECHR.

Outcome:

Application granted.

Observations/comments:

This summary was written by Andra Oprea, LLM Student at Queen Mary University London.

Other sources:

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, December 2007 inf (2009), July 2004 publication entitled “Somalia: Identity documents and travel documents, May 2000 “Somalia: Birth Certificates”,