Communicated on 15 January 2016

FIFTH SECTION

Application no. 17189/11 M.S. against Ukraine and Slovakia lodged on 16 March 2011

STATEMENT OF FACTS

The applicant is an Afghan national who was, to his knowledge, born in 1993 or 1994 and lives in Afghanistan. He is represented before the Court by Mr A. Maksymov , a lawyer practising in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s journey to Slovakia

According to the applicant, his father used to work with the National Department of Security of Afghanistan. Having arrested some drug smugglers, he was killed in about 2005 by unknown people, possibly associated with the Taliban, in Kunduz province. In 2010 the applicant ’ s maternal uncle received a threatening letter. The applicant was unaware of its precise contents, but his uncle deduced that the applicant also faced a risk related to the killing of his father and arranged for him to leave the country.

In May 2010 smugglers took the applicant by car to Tajikistan, where he crossed the border with his passport. Subsequently, his passport was taken away by the smugglers. Then he travelled onward to Kyrgyzstan, Kazakhstan and Russia. He stayed in Moscow for one month and then entered Ukraine in early July 2010. The smugglers took him to a room in Kyiv, where he stayed for three months. Then they took him to the border with Slovakia. During his journey to Ukraine, the applicant had been accompanied by his brother-in-law (his sister ’ s husband). In Ukraine they separated and his brother-in-law subsequently managed to cross into Slovakia and eventually applied for asylum in Spain.

On 23 September 2010 the applicant attempted to cross into Slovakia with a group of other Afghan nationals. However, he was stopped by Slovakian border guards. He did not receive interpretation services or information about the asylum procedure in Slovakia and had no access to a lawyer. As he spoke no European language, he tried to ask for asylum with the help of a fellow Afghan who spoke some French. However, the Slovakian border guards did not react. Despite his efforts to talk with the border guards and to tell them that he was a minor, the border guards wrote down his date of birth as 14 January 1992.

The Slovakian border guards did not provide the applicant with any written decision concerning his return to Ukraine and did not explain any possible avenues of appeal to him.

2. Return to Ukraine and detention there

On 24 September 2010 the applicant was transferred to the custody of the Ukrainian border guards, within the framework of the accelerated readmission procedure provided for by the Agreement between the European Community and Ukraine on the Readmission of Persons .

Upon his return to Ukraine, the applicant was placed in a temporary holding facility in Chop. He alleges that through other Afghan detainees who spoke Russian he had informed one of the guards whom he took to be the supervisor that he was fourteen years old. He also told a representative of Caritas, an NGO, that he was a minor and wished to apply for asylum. The Caritas representative relayed this information to the border guards at Chop. No action appears to have been taken.

According to the applicant, the Chop facility was overcrowded, with thirty detainees held in one room. The detainees “had to make noise in order to be allowed their one-hour walk”.

On an unspecified date the Chop border unit of the State Border Control Service of Ukraine (“the SBCS”) issued an order directing the applicant to leave the territory of Ukraine voluntarily.

On an unspecified date the SBCS applied to the Zakarpattya District Administrative Court seeking the applicant ’ s forcible expulsion from Ukraine and his placement in detention pending expulsion.

On 13 October 2010 the court allowed the application and ordered the applicant ’ s expulsion from Ukraine and his detention pending expulsion. The court stated that the applicant had been born on 14 January 1992. It held that he had entered the territory of Ukraine illegally, had no means to return voluntarily, no relatives in Ukraine, and had crossed the border illegally. For the court, this showed that he was unlikely to comply with the order to leave the territory voluntarily. The court also found that the applicant had committed two serious breaches of Ukrainian legislation concerning foreigners: first, he had entered Ukraine illegally; and secondly, he had tried to enter Slovakia illegally.

The court also referred to a 2008 collection of the country of origin information published by the United Nations High Commissioner for Refugees (“the UNHCR”), which, according to the court, indicated that Afghanistan was not a country where crimes against the person occurred. In the event of return to Afghanistan the applicant ’ s life would therefore not be at risk. The court observed that the applicant had not lodged an application for asylum and did not wish to apply for asylum in Ukraine.

In its decision the court also stated that on 1 October 2010 the SBCS and the applicant had applied to the court for examination of the case in their absence by way of a written procedure and to allow immediate enforcement of the court ’ s decision. The applicant had also agreed with the SBCS ’ s request.

According to the applicant, 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. The court ’ s decision was not served on him and no information was provided to him on how to appeal. He, therefore, missed the ten-day time-limit for appeal.

On 14 October 2010 the applicant was transferred to a facility for temporary placement of foreigners and stateless persons in the Volyn Region. He alleges that on his arrival there he told the duty officer that he was fourteen years old. The officer allegedly informed the management of the facility but no action was taken.

O n 20 February 2011 the Embassy of Afghanistan in Ukraine conducted a telephone interview with the applicant and on 22 February 2011 issued a travel document for him, indicating his date of birth as 14 January 1992.

3. Asylum application

On 23 February 2011 the applicant lodged an application for asylum in Ukraine. By way of reasoning he stated that he would be “immediately killed” if he were returned to Afghanistan.

On 2 March 2011 an officer of the Volyn Regional Department of the Migration Service (“the Migration Department”) interviewed the applicant concerning his asylum application. The applicant stated that in Afghanistan he used to live in Kunduz, was studying and was supported by his maternal uncle. When asked what had led him to leave Afghanistan, he stated that his father had been killed by the Taliban four years earlier and the Taliban had then started threatening him. His uncle had received a piece of paper, the contents of which were unknown to the applicant, and had said that the applicant had to leave the country. Afterwards, his uncle had obtained travel documents for him with which he had had no trouble leaving Afghanistan. The applicant was then asked what was his country of destination and responded that he wished to get to London where his sister resided. He explained that he had travelled from Afghanistan to Tajikistan with his passport and an entry visa, but then the smugglers had taken them away. He also stated that he had arrived in Ukraine from Russia and had travelled to the border with Slovakia through Kyiv. He had not sought help in Ukraine because the smugglers had promised to get him to London where his sister was living.

On 9 March 2011 the Migration Department refused to institute asylum proceedings in respect of the applicant, having found that his application was manifestly inadmissible. The Department noted that the applicant was not a member of any political, social or military organisation , had not been connected with any violent incidents associated with race, ethnicity, religion or political views and for those reasons could not be qualified as a refugee. The fact that the country of origin had issued the applicant with a travel document demonstrated that the applicant had benefited from protection in his country of origin. The applicant had not applied for asylum in Tajikistan, Russia or Ukraine and had done so only after his return from Slovakia to Ukraine. This showed that the applicant had not intended to seek asylum in Ukraine and had meant to reach the United Kingdom, where his sister was living. Since he had no identity documents, it was not possible to identify him or his country of origin.

4. Expulsion to Afghanistan

According to the applicant, on 11 March 2011 in preparation for his expulsion to Afghanistan, he was transferred to Mukacheve , Ukraine, where he was notified about the Migration Department ’ s decision of 9 March 2011. The applicant alleges that since the expulsion procedure had already begun, he had had no opportunity to obtain legal assistance and lodge an appeal.

According to the applicant, on 12 March 2011, a Saturday, an NGO partner of the UNHCR attempted to contact the applicant and other Afghan nationals facing expulsion to provide them with legal advice, but was denied access to them. On the same day the applicant was put on a train to Kyiv.

On 14 March 2011 the applicant boarded a plane from Kyiv to Kabul via Dubai. He was unaccompanied on the flight and no arrangements were made for his family to meet him in Kabul.

The applicant alleges that approximately three weeks after his expulsion to Afghanistan some unknown people looked for him at his home and left a threatening letter for him. His mother arranged for him to leave Kunduz for Mazar -e Sharif and Kabul. He alleges that since that time he has been forced to change his place of residence frequently for fear of the people who killed his father, and travels frequently between Mazar -e Sharif and Kabul.

B. Relevant international and Ukrainian domestic law

1. Agreement between the European Community and Ukraine on the Readmission of Persons, which entered into force on 1 January 2010

The Agreement reads in the relevant parts as follows:

“The European Community ... and Ukraine ,

...

Acknowledging the necessity of observing human rights and freedoms, and emphasising that this Agreement shall be without prejudice to the rights and obligations of the Community, the Member States of the European Union and Ukraine arising from the Universal Declaration of Human Rights of 10 December 1948 and from international law, in particular, from the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, the Convention of 28 July 1951 and the Protocol of 31 January 1967 on the Status of Refugees, the international Covenant on Civil and Political Rights of 19 December 1966 and international instruments on extradition,

...

Article 3

Readmission of third-country nationals and stateless persons

“1. The requested State, upon application by the requesting State and without further formalities other than those provided for by this Agreement, shall readmit to its territory third-country nationals or stateless persons which do not, or no longer, fulfill the conditions in force for entry to or stay on the territory of the requesting State provided that ... such persons:

...

(a) illegally entered the territory of the Member States coming directly from the territory of Ukraine or illegally entered the territory of Ukraine coming directly from the territory of the Member States;

... ”

Article 5

Readmission application

“1. Subject to paragraph 2, any transfer of a person to be readmitted on the basis of one of the obligations contained in Articles 2 and 3 shall require the submission of a readmission application to the competent authority of the requested State.

...

3. Without prejudice to paragraph 2, if a person has been apprehended in the border region of the requesting State within 48 hours from illegally crossing of the State border of that person (including seaports and airports) directly from the territory of the requested State, the requesting State may submit a readmission application within two days following this persons apprehension (accelerated procedure).

... ”

Article 8

Time limits

“1. The application for readmission must be submitted to the competent authority of the requested State within a maximum of one year after the requesting State ’ s competent authority has gained knowledge that a third-country national or a stateless person does not, or does no longer, fulfil the conditions in force for entry, presence or residence.

...

3. In the case of a readmission application submitted under the accelerated procedure (Article 5(3)), a reply has to be given within two working days after the date of receipt of such application. If necessary, upon duly motivated request by the requested State and after approval by the requesting State, the time limit for a reply to the application may be extended by one working day.

...”

2. Refugees Act of 21 June 2001, as worded at the material time

Section 1

Definitions

“... a refugee is a person who is not a citizen of Ukraine and who, due to a well ‑ founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country or, due to such fear, is unwilling to avail himself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or unwilling to return to it because of the said fear ...”

3. Legal Status of Foreigners and Stateless Persons Act of 4 February 1994 (repealed on 25 December 2011), as worded at the material time

Section 32 of the Act laid down the procedure for expulsion of foreigners and stateless persons from the territory of Ukraine. It listed the grounds for compulsory expulsion, which included a serious breach of the legislation concerning foreigners and stateless persons.

The removal decision was to be taken by the police, the border guards or the State Security Service. Notice of the decision had to be given to a prosecutor within twenty-four hours. The decision was amenable to appeal before the courts.

The decision could indicate that the foreigner or stateless person concerned had up to thirty days to leave the territory of Ukraine. If the person concerned did not comply with the order to leave or if there were grounds to believe that the person would not comply with the order, he or she could be forcibly expelled, pursuant to a decision by the administrative court.

Foreigners present in Ukraine illegally could be detained at temporary holding facilities for the period needed to organise their removal, which was not to exceed six months.

4. Code of Administrative Procedure

Under Article 122 of the Code any party to the proceedings may request that the case be heard in his or her absence. If all parties make such requests, the case is examined in a written procedure based on the materials in the case file .

Article 186 of the Code provides that an appeal must be lodged within ten days of the pronouncement of the judgment. If the court decides to prepare a full text of the judgment after pronouncing only its operative part or if the judgment is delivered in writing, an appeal must be lodged within ten days of receipt by the applicant of a copy of the judgment.

C. Relevant international materials concerning the situation in Slovakia and Ukraine

1. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The report on the 2007 CPT visit to Ukraine (CPT/ Inf (2009) 15) reads in the relevant parts as follows:

“5. Safeguards for persons detained under aliens legislation

...

39. Turning to access to a lawyer, it was limited to visits by pro-bono lawyers from NGOs, who helped foreign nationals file asylum applications and provided them with information on the relevant legal procedures. However, the delegation was concerned to learn that at Chop, the NGO lawyers had limited access to detained persons (i.e. they could only meet persons whose names they already knew). It should also be noted that the provision of legal consultations was hampered by the lack of proper interpretation at the Border Guard detention facilities (see also paragraph 41).

The delegation was informed that a draft Law on free legal aid (which apparently included asylum seekers and refugees as beneficiaries) was under consideration, but could not receive information of its expected date of adoption.

40. The delegation noted that many foreign nationals lacked information on their legal status, the procedure applicable to them and their rights (including the right to lodge complaints). The internal regulations which were posted in the detention areas were, as a rule, available only in Ukrainian. Some other information materials (e.g. the Law on refugees) were also available, but only in French or Russian; Border Guard staff indicated that they had run out of materials in other languages. A positive aspect was the involvement of NGOs in the provision of assistance and information to foreign nationals, on the basis of agreements with the State Border Service. However, the fact that outside bodies were helping foreign detainees does not discharge the State from its responsibility to provide information and assistance to such detainees.

The major complaint of foreign nationals detained was the lack of knowledge of what was happening in their case and how long they would spend in custody. This uncertainty greatly exacerbated the experience of confinement and led to tensions. The observations made during the visit suggest that Border Guard staff need to be more attentive to these problems.

41. As regards the provision of interpretation, a number of detained foreign nationals complained that, following their apprehension, they had been asked to sign documents in Ukrainian without understanding their content. Even when interpretation had been available, the information provided was allegedly not always comprehensible. The delegation learned that there was a shortage of local interpreters speaking the less common languages; to overcome the problem, plans were being made to set up facilities for distance interpretation at the main border units.”

2. UNHCR

The UNHCR Position on the Situation of Asylum in Ukraine in the Context of Return of Asylum-Seekers, October 2007, reads, in so far as relevant, as follows:

“ 52. ... UNHCR advises States, to refrain from returning third country asylum-seekers to Ukraine as at present no assurances can be given that the persons in question: a) would be readmitted, b) would have access to a fair and efficient refugee status determination procedure, c) would be treated in accordance with international refugee standards or d) that there would be effective protection against refoulement .”

3. Human Rights Watch

In a 124-page report published in December 2010 and entitled “ Buffeted in the Borderland: The Treatment of Migrants and Asylum Seekers in Ukraine ”, Human Rights Watch (“HRW”) described the results of their research on the experience of migrants and asylum seekers returned to Ukraine from Hungary and Slovakia.

According to the report, most of the fifty people who were interviewed and who had been returned to Ukraine from Slovakia or Hungary said they had asked for asylum upon arrival in Slovakia or Hungary, but that their pleas had been ignored and they had been swiftly expelled back to Ukraine.

The report deplores the fact that in December 2009, before the coming into force of the EU readmission agreement with Ukraine, the Slovakian Ministry of the Interior abrogated an agreement with UNHCR and the Slovak Human Rights League which since 2007 had permitted NGO lawyers to monitor return procedures at the border. Reportedly, subsequently to this change the NGOs had access only to migrants who could not be immediately returned under the accelerated procedure and who were transferred to detention centres .

Concerning the detention of asylum seekers in Ukraine, the report notes that many of the concerns previously noted by HRW have been addressed. In particular, the material conditions at the centres have improved, all of the facilities visited by the HRW in 2010 looked clean and well-ordered and none were overcrowded. Most of the detainees interviewed in most locations had no complaints regarding lack of hygiene or overcrowding. However, former detainees of the temporary detention facility at Chop indicated that the institution was sometimes overcrowded. The most frequent complaints were about the food, both quality and quantity, and lack of access to lawyers, telephones, the Internet and television. HRW also observed that certain other problems persisted: particularly, access to the asylum procedure; detention of children; mixing of children with adults; corruption; and the disproportionate use of migrant detention in general.

According to the report, migration detainees in Ukraine had no consistent, predictable access to a judge or other authority. Nor did they have access to legal representation to enable them to challenge their detention. Furthermore, there was generally no individualised assessment of the necessity of detaining migrants or asylum seekers.

D. Relevant international materials concerning the situation in Afghanistan

In the introduction to its “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan” of 17 December 2010, UNHCR observed:

“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include ( i ) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari ’ a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.

In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar , and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.”

In chapter 7 on “Children with specific needs”, UNHCR goes on to state:

“Among the most vulnerable groups in Afghanistan, children bear the brunt of the ongoing armed conflict. The Taliban and other anti-Government armed groups are reportedly responsible for the vast majority of the human rights violations against children. UNHCR considers that children with the specific profiles outlined below, including child soldiers, school-age children, particularly girls, as well as children victims of sexual and gender-based violence, may be at risk on the ground of membership of a particular social group, religion and/or (imputed) political opinion depending on the individual circumstances of the case. Asylum claims made by children, including any examination of exclusion considerations for former child soldiers, need to be assessed carefully and in accordance with the UNHCR Guidelines on child asylum claims.”

COMPLAINTS

I. COMPLAINTS DIRECTED AGAINST SLOVAKIA

The applicant complains, under Article 3 of the Convention, that the Slovakian authorities returned him to Ukraine despite the risk that he would be subjected to degrading conditions of detention and the threat of indirect refoulement to Afghanistan, where, in turn, he faced a real risk of serious harm.

The applicant further complains of a violation of Article 13 in conjunction with Article 3, in that he did not have an effective remedy against his removal to Ukraine and in respect of the risk of indirect refoulement to Afghanistan.

The applicant complains under Article 5 § 2 that he was not informed, in a language he understood, of the reasons for his detention in Slovakia.

II. COMPLAINTS DIRECTED AGAINST UKRAINE

The applicant complains under Article 3 of the Convention:

1. t hat he faced a real risk of serious harm in Afghanistan and was, nevertheless, expelled there;

2. t hat, in ordering his expulsion to Afghanistan, the Ukrainian authorities did not consider his best interests as a child and did not make sure that appropriate arrangements were in place in Afghanistan to accept him;

3. t hat the conditions of detention in the temporary holding facility in Chop and in the f acility for temporary placement of foreigners and stateless persons in the Volyn Region were inadequate.

The applicant complains that the Ukrainian authorities failed to examine his claim that he risked serious harm if he were returned to Afghanistan, in breach of the requirements of Article 13 taken in conjunction with Article 3.

The applicant complains under Article 5 § 2 that he was not informed, in a language he understood, of the reasons for his detention in Ukraine.

Under Article 5 § 4 the applicant complains that he had no meaningful opportunity to bring proceedings by which the legality of his detention in Ukraine would be decided.

Under Article 34 the applicant complains that an NGO representative was denied access to him, which prevented him from lodging an application for an interim measure with the Court in time to prevent his expulsion to Afghanistan.

QUESTIONS TO THE PARTIES

I. Questions to the Slovakian and the Ukrainian Governments

1. What was the age of the applicant at the material time? How was his age determined?

2. Has the applicant complied with the requirement of the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of his complaints, notice of which is being given to the respective Governments? Have such remedies been available to him in theory and in practice?

3. Was the applicant informed promptly, and in a language which he understood, of the reasons for his detention, in Slovakia and Ukraine respectively, as required by Article 5 § 2 of the Convention?

II. Questions to the Slovakian Government

1. Did the applicant ’ s return to Ukraine give rise to a breach of Article 3 of the Convention?

2. Did the applicant have an arguable claim under Article 3 of the Convention for the purposes of his complaint under Article 13 of the Convention against Slovakia? Was the applicant given the opportunity to raise his claims concerning the risk of ill-treatment in the event of return to Ukraine and subsequent expulsion to Afghanistan before the Slovakian authorities, as required by Article 13 taken in conjunction with Article 3 of the Convention (see Sharifi and Others v. Italy and Greece , no. 16643/09, §§ 241-43, 21 October 2014)?

III. Questions to the Ukrainian Government

1. Did the applicant ’ s expulsion to Afghanistan give rise to a breach of Article 3 of the Convention?

2. Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints about the conditions of detention at the temporary holding facility in Chop and at the f acility for temporary placement of foreigners and stateless persons in the Volyn Region ?

3. Was the applicant ’ s deprivation of liberty in breach of Article 5 § 1 of the Convention? In particular, was the deprivation of liberty in accordance with the requirements of sub-paragraph (f) of that provision (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Rahimi v. Greece , no. 8687/08, §§ 108 and 109, 5 April 2011)?

4. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

5. Did the applicant have an arguable claim under Article 3 of the Convention for the purposes of his complaint under Article 13 of the Convention against Ukraine? Were the applicant ’ s allegations of the risk of ill-treatment in Afghanistan examined by the Ukrainian authorities in accordance with the requirements of Article 13 taken in conjunction with Article 3 of the Convention (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 286-93, ECHR 2011)?

6. Has there been any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of application, ensured by Article 34 of the Convention, on account of the allegation that an NGO representative was denied access to the applicant prior to his expulsion to Afghanistan?