Nur and others v Ukraine: Arrest and detention of asylum applicants by Ukrainian authorities amounted to violation of Article 5 ECHR

Thursday, July 16, 2020

On 16 July 2020, the European Court of Human Rights published its judgment in Nur and Others v Ukraine (Application No. 77647/11) concerning the arrest and detention of minor applicants after attempting to cross the Hungary and Slovakia border.

The Court lost contact with all but the second and eighth applicants, of Somali and Guinean nationality respectively. They were arrested by Ukrainian authorities after attempting to leave the territory unlawfully in November 2011. They claimed to be minors but were unable to provide identity documents at the time and were subsequently transferred to a temporary holding facility 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 later 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, inter alia, 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.

The Court first noted, inter alia, that there is no indication that the detention conditions contributed to the applicant’s miscarriage and that she had received extensive medical and psychological assistance in the temporary holding facility. It concluded that the conditions of detention were not so serious as to give rise to a violation of Article 3 ECHR.

The Court observed, inter alia, 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. The Court 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.

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.