Communicated on 26 September 2016
THIRD SECTION
Application no. 24917/15
ZABI ASADY AND OTHERS and others
against Slovakia
lodged on 17 May 2015
STATEMENT OF FACTS
1. The applicants are nineteen Afghani nationals. A list of them is set out in the appendix. The applicants are represented by Ms Z. Števulová, a lawyer at the Human Rights League in Bratislava.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 17 November 2014 at 1.30 a.m. the Slovak Border and Foreigners Police (“the border police”) apprehended the nineteen applicants and twelve other foreign nationals near the Ukrainian border. The applicants were taken to the border police station in Petrovce for the purpose of checking their identity.
1. Police interviews
(a) Course of events as described in the police transcripts
4. The applicants presented the transcripts of interviews conducted by the police which indicated that all of them had been interviewed at the border police station. According to these transcripts, between 9.10 a.m. and 12.30 p.m. each applicant had undergone two interviews. Each interview had lasted exactly ten minutes and had been conducted by two police officers in the presence of an interpreter. The times of some interviews overlapped, for example between 9.20 a.m. and 9.30 a.m. two police officers were recorded as present at three different interviews at the same time. The signature of the same interpreter appears on all these interview transcripts. During the interviews, the police had primarily been seeking information about the irregular entry of the applicants from the territory of Ukraine. The questions were standardised and most of the applicants’ answers had been identical. According to the police transcripts, all the applicants had answered in the negative when asked whether they had suffered persecution in their country of origin and whether they wished to seek asylum in Slovakia.
(b) Course of events as described by the applicants
5. The applicants maintained that the border police had interviewed only a few of them and that the others had been handed documents for signature without being interviewed at all. They maintained that the police had not properly identified all the applicants, that the names of some applicants had been misspelled and in three cases the date of birth had been indicated only by a year. Applicant number 10, who was fifteen years old at the time, had been misidentified as an adult.
6. Furthermore, the applicants stated that there had been only one interpreter who had been present at the police station for only a few hours. Judged objectively, the interpreter could not have been present at all the interviews recorded in the transcripts because he would have to have been in different places at the same time. The applicants maintained that the interpreter had come into the cell and told them that they would be transferred to a refugee camp and had then asked them to sign documents of unknown content in the Slovak language, which he had not translated. The applicants had signed the documents as they thought they were related to their asylum requests.
7. The applicants had been given no information about the asylum procedure in Slovakia. They maintained that they had repeatedly approached police officers with their requests for asylum but the police had ignored their requests. Some of the applicants had asked for legal assistance and had requested contact with the UNHCR but had received no response from the police.
2. Decisions on administrative expulsion
8. On 17 November 2014, the same date as their apprehension, the border police issued nineteen separate administrative expulsion decisions. They all included a three-year ban on re-entering Slovak territory. The basis for the expulsions was irregular border crossing and the applicants were to be returned to Ukraine. None of the decisions included a period for voluntary departure pursuant to section 83 of the Aliens Act (Law no. 404/2011 Coll., as amended). In all the decisions the suspensive effect of possible appeal was excluded on the grounds of urgent public interest pursuant to section 55(2) of the Administrative Proceedings Act (Law no. 71/1967 Coll., as amended). The texts of the decisions were almost identical, the only difference being in the amounts of money the applicants had had in their possession.
9. The same day at around 10.30 p.m. all the applicants were expelled to Ukraine.
10. The applicants maintained that they had not been given copies of the administrative expulsion decisions whilst still on Slovak territory. They had obtained copies of these decisions only later by authorising their current legal representative to inspect the files.
3. Developments after expulsion to Ukraine
11. In Ukraine, the applicants were placed in the temporary detention facility in Chop. On 25 November 2015, applicants 1 to 4 instructed a lawyer and lodged an appeal against the administrative expulsion decisions. On 7 January 2015, the Slovak border police dismissed their appeals.
12. The rest of the applicants were not able to contact a lawyer until their transfer to the Volynskiy detention centre on 10 and 25 December 2014 respectively. No appeals were lodged.
B. Relevant domestic law and practice
1. Police Corps Act 1993 (Law no. 171/1993 Coll., as amended)
13. Pursuant to sections 18(3) and (4), the police can take a person to a police station for the purposes of verifying his or her identity if that person is unable credibly to prove his or her name and surname, date of birth and place of residence. Section 17(1) authorises the police to seek explanations, where required, from anyone who can contribute to the clarification of facts that are of importance in uncovering a misdemeanour or administrative offence and its perpetrator, or facts of importance in tracking down missing or wanted persons or items.
2. Asylum Act (Law no. 480/2002 Coll., as amended)
14. According to section 3(1) asylum proceedings are commenced by a declaration by the individual concerned to the competent police department that he or she is applying for asylum or subsidiary protection on the territory of the Slovak Republic. If a foreigner requests asylum after entering the territory of the Slovak Republic, the authority competent to receive the asylum request is the police department established at the asylum facility (section 3(2)(b)). If the foreigner applies for asylum at a police department not competent to receive the asylum request, that police department is obliged to inform the applicant of the competent police department and provide the applicant with a travel document valid for twenty-four hours or, alternatively, may decide that he or she should be detained (section 3(8)).
3. Aliens Act (Law no. 404/2011 Coll., as amended)
15. The border police can authorise the administrative expulsion of a third‑country national if he or she has irregularly crossed the external border, or if he or she intentionally avoids or refuses to undergo the border control when crossing the external border (section 82(1)(a)).
16. A third-country national regarding whom an administrative expulsion decision has been made is obliged to leave the territory before the period for voluntary departure set out in the expulsion decision, which should fall between seven and thirty days later. If it is deemed likely that the person in question might escape or otherwise obstruct or hinder the exercise of administrative expulsion, and in particular if the person’s identity cannot be verified, the police need not establish any period for voluntary departure (section 83 (1) and (2)(a)).
4. Administrative Proceedings Act (Law no. 71/1967 Coll., as amended)
17. An appeal can be lodged against an administrative expulsion decision within fifteen days of notification thereof (sections 53 and 54(2)).
18. An appeal lodged against an administrative decision before expiry of the time-limit has suspensive effect unless provided otherwise. The administrative authority may exclude the suspensive effect if urgent public interest so requires, or if there is a risk that by suspending enforcement of the decision a party to the proceedings or a third person might suffer irreparable damage. The basis for such urgency must be properly reasoned (section 55(2)).
C. Relevant international documents
19. The relevant international documents are listed in Sharifi and Others v. Italy and Greece, no. 16643/09, §§ 49 53, 21 October 2014.
20. In a 124-page report published in December 2010 and entitled “Buffeted in the Borderland. The Treatment of Asylum Seekers and Migrants in Ukraine”, Human Rights Watch described the results of their research into the experience of migrants and asylum seekers who had been returned to Ukraine from Hungary and Slovakia. The report states that “according to the bilateral agreements, migrants caught entering Poland, Slovakia, and Hungary without permission can be summarily returned if caught within 48 hours of crossing. The launching of an appeal in Slovakia and Hungary does not suspend the return and returnees do not have access to minimal information on arrest and return. In practice, Human Rights Watch found that migrants were often tricked into believing they would not be returned, were asked to sign papers they did not understand, and were not always given an opportunity to contact a lawyer, NGOs, or UNHCR.” Specifically with regard to Slovakia, Human Rights Watch stated that “the most common complaint heard from migrants who had been returned from Slovakia was that their asylum claims were ignored and that they were treated in summary fashion, quickly sent back within hours of apprehension in Slovakia with little opportunity to make any claim to remain.”
COMPLAINTS
1. The applicants complain under Article 4 of Protocol No. 4 that their expulsion to Ukraine was collective in nature. In particular, they allege that the State authorities did not carry out individual assessment and examination of their cases and that they were denied access to the asylum procedure.
2. Relying on Article 13 in connection with Article 4 of Protocol No. 4 to the Convention, the applicants complain that they had no effective remedy through which to challenge their expulsion to Ukraine.
QUESTIONS TO THE PARTIES
1. Have the applicants complied with the requirement of the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of their complaints? Were such remedies available to them in theory and in practice?
2. Were the applicants expelled collectively, in breach of Article 4 of Protocol No. 4? In particular, was the expulsion based on a reasonable and objective examination of the particular case of each applicant and was each applicant given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 183- 184, ECHR 2012, with further references)? Did the applicants have effective access to the asylum procedure (Sharifi and Others v. Italy and Greece, no. 16643/09, §§ 241‑243, 21 October 2014)?
3. Did the applicants have at their disposal an effective domestic remedy in respect of their expulsion to Ukraine, as required by Article 13 in conjunction with Article 4 of Protocol No. 4 of the Convention (see Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002‑I)?
REQUEST FOR INFORMATION
The Court requests that the Government submit all documents regarding the detention and expulsion of the applicants on 17 November 2014, in particular the documents relating to the identification of the applicants, assessment of the applicants’ cases, staff present at the police station and the presence of the interpreter, a detailed time‑line of applicants’ presence on Slovak territory and any further relevant documents.
APPENDIX
Application no. 24917/15
List of applicants
\* MERGEFORMAT
Zabi ASADY, who was born in 1995 Nasir AHANGARZADA, who was born in 1988 Ali AHMADI, who was born in 1995 Farid Ahmad AHMADI, who was born in 1995 Ali Ahmad ALIZADA, who was born in 1983 Mohamed AZAM, who was born in 1984 Mohamad Farid EKHLAS, who was born in 1989 Samiuddin FAIZY, who was born in 1980 Salman FAKIRI , who was born in 1988Sohrab FAKIRI, who was born in 1999Abobaker JAMIL , who was born in 1992Abdul Hamid NASRI, who was born in 1991Bezhan RAHIMI, who was born in 1993Rahim RAHIMI, who was born in 1995Mohamed SHAKIB, who was born in 1989Sher Badov SHINWARI, who was born in 1995Miramza SIDIQI, who was born in 1987Edris YUSUFI, who was born in 1995Zabiullah ZAZAI, who was born in 1995
Full & Egal Universal Law Academy