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The applicant, M.S., is an Afghan national who left Afghanistan in May 2010, after his father, who worked for the National Security Department of Afghanistan, was killed and his family received a threatening letter.
In July 2010 he entered Ukraine and on 23 September 2010 he was arrested while crossing into Slovakia illegally. His interview record stated that he did not want to apply for asylum in Slovakia. He had received interpretation services from Slovak to English and from English to Pashto, the latter provided by a fellow migrant. He was handed over to Ukrainian authorities and placed in detention. He applied for asylum in Ukraine as he feared persecution if returned to Afghanistan. He allegedly tried to bring to the attention of authorities the fact that he was a minor but no measures were taken in relation to this aspect. His application was rejected and his expulsion was ordered in 2010. He was expelled in 2011.
The complaints raised against Slovakia were declared inadmissible.
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that the applicant had legal representation and an opportunity to challenge the expulsion decision; and had examined an outdated country of origin information report.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.
Under Article 5 (2) and (4) of the Convention, the Court found no evidence that the applicant had been informed, in a language that the applicant understood, of the reasons for his detention. There was also no evidence that the applicant had been provided with a lawyer and an interpreter during the proceedings pending expulsion. The Court concluded that there was a violation of Article 5 (2) and (4) of the Convention.
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