Asady and Others v Slovakia: Removal of Afghan nationals did not amount to collective expulsion

Tuesday, March 24, 2020

On 24 March 2020, the European Court of Human Rights published its judgment in the case of Asady and Others v Slovakia (Application No. 24917/15) concerning the removal of Afghan nationals from Slovakia to Ukraine.

The applicants were found in a truck by Slovak Borders and Foreigners Police in November 2014. Individual decisions on their administrative expulsion were subsequently issued, as well as a 3-year ban on re-entry for each applicant. The applicants complained that their removal to Ukraine amounted to a violation under Article 4 of Protocol No. 4 and Article 13 ECHR.

Referring to its previous case law, the Court noted that Article 4 Protocol 4 is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of their return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk. In the present case it was not disputed that the removal of the applicants amounted to expulsion, although the Court was satisfied that the State had provided them access to means of legal entry through the appropriate border procedure.

The Court was therefore required to assess the collective nature of this expulsion, as well as whether the applicants had an effective possibility of submitting arguments against their removal and whether there were sufficient guarantees demonstrating that their personal circumstances had been genuinely and individually taken into account. The Court observed, inter alia, that the domestic authorities had conducted individual interviews in which the applicants had not referred to a risk of treatment contrary to Article 3 ECHR in the event of their return. There was no evidence that the transcripts of the interviews did not correspond to the applicants’ statements or were translated incorrectly, nor evidence to suggest the requests for asylum were ignored. The Court observed that the interviews were short (around 10 minutes) and that standardised questions had been used to establish the reasons for why the applicants had left Afghanistan. However, the existence of any possible obstacles (under Articles 3 and 8 of the Convention) to the administrative expulsion of the applicants was nevertheless subject to examination by the police authority, and regard was paid to the fact that the applicants did not risk any forced return to their country. The Court concluded that the applicants were not deprived of the opportunity to draw attention to the circumstances that would entitle them to remain in Slovakia and therefore found no violation of Article 4 Protocol 4 and the complaints under Article 13 ECHR were found to be manifestly ill founded.

Judges Keller, Lemmens, and Schembri Orland issued a joint dissenting opinion in this case. They concluded, inter alia, that the significant overlap of the applicants’ interviews; the presence of a single interpreter for all applicants; and that the short duration of the interviews meant it was not possible to conclude that the examination of the applicants’ respective cases had been reasonable. Furthermore, on the question of conduct, the Judges noted that this case differed from the principles established in the Grand Chamber ruling of N.D and N.T.: that the applicants did not take advantage of the use of force, had not caused disruption or endangerment to public safety, and the State had not provided sufficient access to means of legal entry. It follows that the Court’s previous findings do not prevent the Court from finding of a violation of Article 4 Protocol 4.

An extended EDAL summary can be found here. Photo: eyedj, January 2015, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                                              



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Inhuman or degrading treatment or punishment