M.S. v. Slovakia and Ukraine: Procedural shortcoming in applicant’s return to Afghanistan

Thursday, June 11, 2020

On 11 June 2020, the European Court of Human Rights published its judgment in M.S. v. Slovakia and Ukraine (Application No. 17189/11) concerning expulsion to Afghanistan and detention pending expulsion.

The applicant, an Afghan national whose date of birth is in dispute, left his country of origin after his father was killed and another family member received threats. He entered Ukraine in 2010 and was arrested after irregularly attempting to cross the Slovakian border. It is alleged that an interpreter was available to translate from Slovak to English, but another Afghan migrant helped translate to Pashto. A decision was later taken to expel the applicant to Ukraine, and a subsequent decision was then made by the Ukrainian authorities to expel the applicant to Afghanistan and place him in detention pending expulsion. In the meantime, he lodged an asylum request due to the fear of persecution in Afghanistan. The applicant complains that his expulsion order was made without a proper examination of his asylum claim and the risk he faced contrary to Article 3 and 13 ECHR, and that he had not been informed of the reasons for his detention pending expulsion contrary to Article 5(2) and (4) ECHR.

The Court first noted that the applicant’s complaints in respect of Article 3, 13 and 5(2) against Slovakia were manifestly ill-founded. Regarding the alleged violations of Articles 3 and 13, the Court noted that the Ukrainian authorities had, inter alia, failed to assess the real-risk of ill-treatment in the event of the applicant’s return to Afghanistan; failed to ensure that the applicant had legal representation and an opportunity to challenge the expulsion decision; and had examined an outdated country of origin information report. As such, the Court noted that these shortcomings in the Ukrainian authorities’ assessment amounted to a procedural violation of Article 3 ECHR.

In regard to the applicant’s detention pending expulsion, the Court noted, inter alia, that the Ukrainian authorities had failed to submit evidence disproving his account of events and to support the claim that he had been informed, in a language he understood, of the legal reasons for his detention. Moreover, there was no evidence that the applicant had access to legal advice or support and the assistance of an interpreter during these proceedings. It therefore concluded that the applicant’s detention pending expulsion amounted to a violation of Article 5 (2) and (4) ECHR.

Photo: Outlandos [ym], February 2016, 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 published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Assessment of facts and circumstances
Country of origin information
Effective remedy (right to)