ECHR 151 (2020)
Tuesday 9 June 2020
Drašković v. Montenegro (application no. 40597/17)
The applicant, Dragica Drašković, is a national of Bosnia and Herzegovina who was born in 1945 and lives in Trebinje (Bosnia and Herzegovina).
The case concerns her wish to have her husband’s remains removed from Montenegro to Bosnia and Herzegovina.
Ms Drašković’s husband died in Belgrade in 1995. Owing to the war in the former Yugoslavia, he was buried in a family plot in Montenegro owned by his nephew. In June 2014 Ms Drašković asked the nephew for permission to move her husband’s remains to a grave in Trebinje, which she owns, but the nephew refused.
The applicant began court proceedings but in February 2015 the Court of First Instance in Herceg Novi rejected her claim. It found that she had no legal interest in lodging such a claim as she had no right to her husband’s remains or any rights arising from their place of burial. In April 2015 the High Court in Podgorica upheld the first-instance decision.
In June 2015 the applicant lodged a constitutional appeal, arguing that the basis for her claim had been to obtain the nephew’s consent as without it she could not get official permission for an exhumation or a transfer. She had no other way to exercise her right except through the courts, but by rejecting her claim they had left her subject to the will of the respondent party. She had therefore been deprived of her right to fair trial and the right to family life in a broader sense. The Constitutional Court dismissed her appeal in February 2017.
In August 2019 the sanitary inspectorate informed the applicant by letter that the sanitary inspector was in charge of issuing exhumation and transfer permits. It stated that the inspectorate did not know who had the authority to resolve disputes but assumed that it was the courts.
Relying on Article 8 (right to respect for private and family life) and Article 6 § 1 (access to court), the applicants complains about the courts’ refusal to rule on her claim on the merits.
Nešić v. Montenegro (no. 12131/18)
The applicant, Ilija Nešić, is a Serbian national who was born in 1931 and lives in Tivat (Montenegro).
The case concerns the applicant’s complaint about being deprived of land he owned on the coast without compensation.
In 1980 Mr Nešić bought two plots of land from a private owner and was registered as the owner.
However, in 2006 the State instituted civil proceedings against the applicant, seeking that it be recognised as the owner. In 2014 the courts ruled in favour of the State, finding that, under the relevant legislation, the coastal zone, including its seashore, was a natural resource, which could only be the property of the State. As it had been established during the proceedings that the plots of land at issue were on the seashore, the applicant’s right to the land had ceased. All the applicant’s subsequent appeals were unsuccessful, and the State was registered as the sole owner of the land.
Following further proceedings, the applicant was registered as the user of the land until such time as he was dispossessed.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, Mr Nešić complains about being deprived of his property without any prior individual decision or any compensation.
Erlich and Kastro v. Romania (nos. 23735/16 and 23740/16)
The applicants, Nehemia Erlich and Charli Kastro, are two Israeli nationals who were born in 1965. They are detained in Giurgiu (Romania).
The applicants in this case complain of an infringement of their freedom of religion, alleging a failure on the part of the Rahova Prison authorities (Romania) to provide them with meals complying with the precepts of their religion. They rely on various articles of the Convention. The Court will consider their complaint under Article 9 (right to freedom of thought, conscience and religion).
Arsimikov and Arsemikov v. Russia (no. 41890/12)
The applicants, Mr Mayrbek Imranovich Arsimikov and Mr Ruslan Imranovich Arsemikov, are Russian nationals who were born in 1969 and 1965 respectively. They are brothers and live in Grozny (Chechen Republic). The case concerns the demolition of property belonging to the applicants, who allege that the local authorities expropriated their houses, buildings and land.
In 1994 Mr Arsimikov and Mr Arsemikov purchased, by notarial deed, two individual houses and the appurtenant land in the same street in Grozny. On an unspecified date (before 2004), the houses were damaged during anti-terrorist operations carried out in the framework of the Chechen campaigns. Following the enactment of Government Decree No. 404 of 4 July 2003 on the award of compensation for loss of housing, they applied to the administrative board set up for the purpose. On different dates in 2004 and 2008 they obtained awards in compensation.
As regards the first applicant’s property, on 6 May 2004 Mr Arsimikov sought compensation for the loss of his housing under the Government Decree of 4 July 2003. The administrative board acceded to the request, and the award was paid out shortly afterwards.
On 4 June 2010 a multidisciplinary board of Grozny Municipality officially decided that Mr Arsimikov’s house posed an immediate danger and had to be demolished. The Grozny Municipal Housing Board decided to allocate him an apartment in a tenement house in another part of the city, to replace the house which was to be demolished. On 23 November 2011 Mr Arsimikov wrote to the State Prosecutor of Chechnya to complain that the apartment allocated to him by the authorities had no gas, electricity, water mains connections, inside doors or floors, and was consequently uninhabitable. By judgment of 29 March 2012 the Leninski District Court in Grozny, acting at the prosecutor’s request in the interests of the first applicant, declared the apartment insalubrious and terminated the social housing tenancy.
On 12 October 2011 Mr Arsimikov brought a court action against Grozny Municipality complaining that the local authorities had demolished his property and expropriated his land. By judgment of 10 May 2012 the Leninski District Court in Grozny dismissed Mr Arsimikov’s action on the grounds that he had not provided concrete evidence to prove that Grozny Municipality had been involved in the alleged acts.
Mr Arsimikov appealed against that judgment to the Supreme Court of Chechnya, which dismissed the appeal.
On 20 October 2015 the representative of the President of the Russian Federation noted that according to the documents supplied by Grozny Municipality, the house had been demolished first of all because of the immediate danger it had posed, and secondly as part of the effort to rebuild the city.
Between 25 July 2011 and 16 October 2017 the authorities refused on eleven occasions to initiate a criminal investigation for deliberate destruction of property and abuse of authority.
As regards the second applicant’s property, according to a certificate issued by the Bureau of Technical Inventory, 69% of Mr Arsemikov’s house, including its roof, had been destroyed in 2006. On 23 March 2004 Mr Arsemikov claimed lump-sum compensation for the loss of his home. On 20 November 2008 the administrative board decided to award him that compensation.
On 12 November 2008 Mr Arsemikov sent a letter to the public prosecutor of the Leninski District in Grozny arguing that his house, which had been partially destroyed during the second Chechen campaign, could have been rebuilt and complaining that instead, it had been completely demolished two days previously. On 2 February 2012 Mr Arsemikov brought a court action against Grozny Municipality. As he had done in the dispute with the first applicant, the municipal representative replied that the municipality “had not expropriated the applicant ... and had caused him no damage”.
By judgment of 14 May 2012, the Leninski District Court dismissed Mr Arsemikov’s action. The court followed a line of reasoning similar to that of the judgment delivered on 10 May in the case of the first applicant. On 7 August 2012 the Supreme Court of Chechnya upheld the judgment on appeal.
Relying on Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicants complain of a violation of their right to the peaceful enjoyment of their property. They submit that in 2011 and 2008 respectively the authorities demolished their real property, in their view arbitrarily and without providing compensation, and took possession of their land in the framework of the reconstruction of the city of Grozny.
Pshibiyev and Berov v. Russia (no. 63748/13)
The applicants, Mr Pshibiyev and Mr Berov, are Russian nationals who were born in 1978 and 1981 respectively. They are detained in Kemerovo and Sverdlovsk. The case concerns the fact that the applicants were unable to receive either short visits under properly substantiated procedures or long visits from members of their families.
On 15 October 2005 a group of armed men attacked several State institutions in the city of Nalchik in the Kabardino-Balkarian Republic. In the framework of the investigation into these incidents, Mr Pshibiyev and Mr Berov were arrested and remanded in custody.
On 22 October and 24 October 2005 Mr Pshibiyev and Mr Berov were moved to remand prison no. IZ-7/1 in Nalchik. During their detention on remand they received a number of short visits from members of their families in the remand prison.
On 12 September 2011 Mr Pshibiyev and Mr Berov submitted requests to the Supreme Court of the Kabardino-Balkarian Republic for long visits from members of their families. The Supreme Court of the Kabardino-Balkarian Republic rejected the requests. Pursuant to section 18(3) of Law no. 103-FZ of 15 July 1995 on the pre-trial detention of persons suspected or accused of criminal offences, individuals held in a remand prison were only eligible for short family visits lasting no longer than three hours, under the supervision of a prison guard.
In July 2012 Mr Pshibiyev and Mr Berov submitted fresh requests. The Supreme Court of the Kabardino-Balkarian Republic once again rejected the requests on the same grounds.
On 14 September 2012 Mr Pshibiyev and Mr Berov appealed to the Constitutional Court of the Russian Federation. On 7 February 2013 the Constitutional Court dismissed the complaint.
On 23 December 2014 the Supreme Court of the Kabardino-Balkarian Republic sentenced Mr Pshibiyev and Mr Berov to 17 and 15 years’ imprisonment respectively.
Relying on Article 8 (right to respect for private and family life), the applicants complain of the fact that they were unable to receive long visits from members of their families during their period of detention in the remand prison. They also criticise the practical arrangements for the short visits which they did receive.
Thursday 11 June 2020
Vujnović v. Croatia (no. 32349/16)
The applicant, Dušan Vujnović, is a Croatian national who was born in 1963 and lives in Zagreb.
The case concerns the death of the applicant’s parents in 1993 during the war when the Croatian army conducted a military operation to regain control from the Serbian forces over territory known as the “Medak Pocket”.
Several years later investigations were carried out into the role of the Croatian army generals in the Medak Pocket military operation during which 51 people had been killed. The International Criminal Tribunal for the former Yugoslavia (“the ICTY”) indicted several generals and passed the cases to the Croatian authorities for prosecution.
In particular, a Croatian general, R.A., was indicted in 2001 by the ICTY and then in 2006 by the Croatian authorities with crimes against humanity and violations of the laws and customs of war in the course of “Operation Pocket-93”, notably for failing to prevent the massacring of civilians of Serbian ethnicity. Both indictments listed the applicants’ parents among the victims. The Croatian courts acquitted General R.A. of the charges in 2008, which decision became final in 2009.
In 2008 the applicant brought a civil claim against the State seeking damages for the killing of his parents by Croatian soldiers. The courts ultimately ruled against him in 2015. In particular the Supreme Court held that the applicant had had an objective possibility to learn about the death of his parents in 2001 when the ICTY indictment against General R.A. had listed both of them among the victims and that the five-year statutory limitation period should therefore have run from this point. As he had brought his claim in 2008, it was statute-barred.
Relying on Article 2 (right to life), the applicant complains that the investigation into the death of his parents was ineffective as it failed to identify those responsible.
Also relying on Article 6 § 1 (right to a fair trial/access to court), he complains about the civil proceedings for damages, alleging that the practice of the Supreme Court as to the manner of calculating the statutory limitation period was inconsistent, and that the manner in which it was applied in his case deprived him of his right of access to a court.
Baldassi and Others v. France (nos. 15271/16, 15280/16, 15282/16, 15286/16, 15724/16, 15842/16, and 16207/16)
The eleven applicants are: Mr Jean-Michel Baldassi, Mr Henri Eichholtzer, Ms Aline Parmentier, Ms Sylviane Mure, Mr Nohammad Akbar, Mr Maxime Roll, Ms Laila Assakali, Mr Yahya Assakali, Mr Jacques Ballouey, Ms Habiba El Jarroudi, and Ms Farida Sarr-Trichine. The applicants are all French nationals, apart from Mr Nohammad Akbar and Ms Habiba El Jarroudi, who are Afghan and Moroccan nationals respectively. Mr Eichholtzer and Ms Parmentier live in Habsheim and Zillisheim respectively. Mr Jacques Ballouey lived in Mulhouse, as did the other applicants.
The cases concern the complaint by activists in the Palestinian cause about their criminal conviction for incitement to economic discrimination, on account of their participation in actions for boycotting products imported from Israel as part of the campaign “BDS : Boycott, Divestment and Sanctions”.
The applicants are members of the “Collectif Palestine 68”, which is a local relay for the international campaign “Boycott, Divestment and Sanctions” (BDS). This campaign was launched on 9 July 2005 with an appeal from Palestinian non-governmental organisations, one year after the opinion issued by the International Court of Justice which states that “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law”.
On 26 September 2009 five of the applicants took part in an action inside the [C.] hypermarket in Illzach, calling for a boycott of Israeli products, organised by the “Collectif Palestine 68”. They displayed the articles which they considered to be of Israeli origin in three trolleys so that they could be seen by customers, and handed out leaflets.
A similar event was organised by the “Collectif Palestine 68” on 22 May 2010 in the same hypermarket. Eight of the applicants were involved. They also presented a petition to be signed by hypermarket customers, inviting the hypermarket to stop selling products imported from Israel.
The Colmar public prosecutor summoned the applicants to appear before Mulhouse Criminal Court for, inter alia, incitement to discrimination, which offence is provided for in section 24(8) of the Law of 29 July 1881.
By two judgments of 15 December 2011, Mulhouse Criminal Court acquitted the applicants. By two judgments delivered on 27 November 2013, Colmar Court of Appeal set aside the former judgments inasmuch as they acquitted the applicants. It found the applicants guilty of the offence of incitement to discrimination.
As regards the incidents on 26 September 2009, the Court of Appeal imposed on each of the five accused a suspended fine of EUR 1,000 and ordered them to jointly pay each of the four admissible civil parties (the International League against Racism and Antisemitism, the Lawyers without Borders association, the “Alliance France-Israël” association and the “Bureau national de vigilance contre l’antisémitisme”) EUR 1,000 in respect of non-pecuniary damage and EUR 3,000 on the basis of Article 475-1 of the Code of Criminal Procedure (civil party expenses not defrayed by the State).
Concerning the incidents of 22 May 2010, the Court of Appeal imposed on each of the nine accused a suspended fine of EUR 1,000 and ordered them to jointly pay three of the civil parties (the International League against Racism and Antisemitism, the Lawyers without Borders association, the “Alliance France-Israël” association), each, EUR 1,000 in respect of non-pecuniary damage and EUR 3,000 on the basis of Article 475-1 of the Code of Criminal Procedure (civil party expenses not defrayed by the State).
By two judgments of 20 October 2015 the Criminal Division of the Court of Cassation dismissed the appeals on points of law lodged by the applicants, who had alleged, in particular, a violation of Articles 7 and 10 of the Convention. It found inter alia that the Court of Appeal had justified its decision since it had rightly noted that the constituent elements of the offence laid down in section 24 (8) of the Law of 29 July 1881 had been made out and that the exercise of freedom of expression, set out in Article 10 of the Convention could, pursuant to paragraph 2 of that provision, could be subject to restrictions or sanctions which were, as in the present case, measures necessary in a democratic society for the prevention of disorder and the protection of the rights of others.
Relying on Article 7 (no punishment without law) of the Convention, the applicants complain that they were convicted on the basis of section 24(8) of the Law of 29 July 1881 on freedom of the press of incitement to economic discrimination, whereas that text did not cover economic discrimination. Relying on Article 10 (freedom of expression), they complain of their criminal conviction on account of their participation, in the context of the BDS campaign, in actions calling for a boycott of articles produced in Israel.
P.N. v. Germany (no. 74440/17)
The applicant, Mr P.N., is a German national who was born in 1961 and lives in Dresden (Germany).
The case concerns a police order to collect information to identify the applicant, such as photographs of his face and body, including possible tattoos, as well as finger and palm prints.
In August 2011 the Dresden police, relying on the Code of Criminal Procedure, ordered the gathering of the identification data as criminal proceedings had been opened against the applicant for receiving and handling stolen goods. He also had a previous criminal record and in the police’s view the identification measures would help in the investigation of any future offences.
The applicant appealed against the order but in May 2012 the Dresden police dismissed the appeal, while in March 2015 the Dresden Administrative Court dismissed a further appeal. Referring to his previous record, the court found that under the Code of Criminal Procedure it was legal to collect someone’s data if there was a possibility that it might be needed for a future investigation. That was the case even if the proceedings for the handling of stolen goods had been discontinued, as they had been in June 2012.
In May 2017 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant. The police had already collected the data in question, in March 2017.
The applicant complains that the police order to collect identification data from him violated his rights protected by Article 8 (right to respect for private and family life, the home and correspondence).
Kandarakis v. Greece (nos. 48345/12, 48348/12, and 67463/12)
The applicants, Alexandros Kandarakis and Michail Kandarakis, are Greek nationals who were born in 1938 and 1979 respectively and live in Athens.
The case concerns court decisions on the payment of lawyers’ fees in expropriation proceedings.
The applicants, lawyers registered with the Athens Bar Association, represented clients who won compensation proceedings for expropriated property. The first set of proceedings was held in the town of Kalavryta, the second in Korinthos, and the third in Athens.
Under the applicable law, the courts had to set costs in such expropriation cases, including lawyers’ fees. The fees were then to be deposited with the Consignment Deposits and Loans Fund, which passed them on to the lawyers’ bar association, which then paid them to the lawyers, minus a fee.
In the applicants’ case, the ERGOSE AE company, which had been the defendant in the first two cases, deposited the fees with the Consignment Deposits and Loans Fund for the benefit of the bar associations of Kalavryta and Korinthos after judgments issued in 2007. In the third case, in which the compensation judgment was issued in 2002, the fees were deposited with the Fund by the defendant, the Ministry for the Environment, Regional Development and Public Works, to the benefit of the Athens Bar Association, but the Fund declined to pass the money on.
The applicants brought proceedings related to the first two cases to have the money deposited to the benefit of the Athens Bar Association. Their requests were declined on the grounds that they lacked standing as the bar association itself had to bring the actions, which it duly did.
In the first case, an appeal court in 2017 referred the case to the competent court and a final decision is still pending. In the second case, the final court decision found in 2018 that the Korinthos Bar Association had already paid over half of the amount awarded as lawyers’ fees to the Athens Bar Association and that the claim related to the other half had become time-barred.
In the third case, the applicant challenged the Fund’s refusal to pay the fees to the Athens Bar Association, but his case was again ultimately unsuccessful on the grounds that only the association
could initiate proceedings. It began such an action in November 2013, which eventually led to the Fund paying over the required amount.
The applicants complain that the dismissal of their actions against the Consignment Deposits and Loans Fund to have the amounts fixed as lawyers’ fees deposited to the benefit of the Bar Association on the grounds that they lacked standing violated their rights under Article 6 § 1 (access to court). They also raise a complaint about the dismissal of their court actions under Article 1 of Protocol No. 1 (protection of property).
Carl Jóhann Lilliendahl v. Iceland (no. 29297/18)
The applicant, Carl Jóhann Lilliendahl, is an Icelandic national, who was born in 1946 and lives in Reykjavik.
The case concerns the applicant’s conviction and fine for homophobic comments he had made in response to an online article.
In April 2015, the local authorities of Hafnarfjörður, a town in Iceland, approved a proposal to strengthen education in elementary and secondary schools on lesbian, gay, bisexual or transgender matters. This was to be done in cooperation with the national LGBT association, Samtökin ‘78.
The decision led to substantial public discussion, on the radio and Internet, which the applicant became involved in. In particular he wrote comments in response to an online article, expressing his disgust and using derogatory words for homosexuality, namely kynvilla (sexual deviation) and kynvillingar (sexual deviants).
Samtökin ’78 reported the applicant’s comments to the police. Following an investigation, he was indicted in November 2016 under Article 233 (a) of the General Penal Code which penalises publicly mocking, defaming, denigrating or threatening a person or group of persons for certain characteristics, including their sexual orientation or gender identity.
The applicant was acquitted at first instance, but in December 2017, the Supreme Court overturned the court’s judgment and convicted him, fining him 100,000 Icelandic krónur (approximately 800 euros at the time). The Supreme Court found that the applicant’s comments were “serious, severely hurtful and prejudicial”, and weighing up the competing rights at play in the case, ruled that it had been justified and necessary to curb the applicant’s freedom of expression in order to counteract prejudice, hatred and contempt and protect the rights of social groups which have historically been subjected to discrimination.
Relying on Article 10 (freedom of expression) and Article 14 (prohibition of discrimination), the applicant alleges that his conviction breached his right to freedom of expression.
Markus v. Latvia (no. 17483/10)
The applicant, Dainis Markus, is a Latvian national who was born in 1953.
The case concerns the imposition of the criminal penalty of confiscation of property.
Mr Markus was convicted in 2008 of asking for a bribe and he was sentenced to four years’ imprisonment with an ancillary penalty of confiscation of property, the particular property to be confiscated not being specified. Under domestic law, the measure applied to the entirety of the convicted person’s property.
The investigator in the case had earlier registered a restriction against the title to 11 properties belonging to the applicant. At least eight of those properties were eventually transferred to the State. The judgment was upheld on appeal and Mr Markus subsequently lodged a constitutional complaint.
In January 2011 the Constitutional Court discontinued the proceedings but made various findings about the criminal-law provisions on confiscation of property as a penalty. It noted among other things that the law did not specify what property could not be confiscated and so the measure could infringe the rights of a convicted person’s family members. There was also no connection with how a property had been acquired, meaning that if a property had been inherited, received as a gift or purchased using the convicted person’s salary it could still be confiscated.
Furthermore, the scope of the measure was also unclear, with domestic courts differing as to whether they had discretion to adapt the penalty to individual circumstances, and whether they could order partial confiscation of property or had to confiscate everything.
Amendments to the Criminal Law related to property confiscation took effect in April 2013, giving the courts greater discretion when applying the penalty and obliging them to specify which property would be confiscated.
Mr Markus complains under Article 1 of Protocol No. 1 (protection of property) that the criminal penalty of confiscation of property, which led to the confiscation of his legally acquired property, was disproportionate. He also relies on Article 6 (right to a fair trial) with respect to the reasoning and conclusions of the Constitutional Court.
Zirnīte v. Latvia (no. 69019/11)
The applicant, Ilona Zirnīte, is a Latvian national who was born in 1977 and lives in Riga.
The case concerns her complaints that a key witness against her was not called during appeal proceedings, preventing the applicant from pointing out contradictions in that witness’s pre-trial and trial testimonies, and that the criminal punishment of property confiscation was disproportionate.
In October 2005 the applicant agreed to sell a limited liability company, SIA Raiņa bulvāra nams, whose only asset was an apartment building, to a woman, M.R. Shortly before the deal was signed the applicant arranged for the company to take a loan from a bank, which would then lend it further to the applicant. Accordingly, 208,000 euros (EUR) was transferred to the applicant’s private account upon the sale of the company.
Ms Zirnīte was charged in 2007 with large-scale misappropriation of funds and money laundering. The court heard the applicant and 11 witnesses, including M.R. The applicant was acquitted at first instance: the court considered that the factual basis of the charges had been established, but it could not be established beyond reasonable doubt that she had intended to misappropriate the funds.
On appeal, the Criminal Chamber of the Supreme Court quashed the first-instance judgment in November 2010 and convicted the applicant of both charges, finding an intent to misappropriate the funds. The court refused a request by the applicant's lawyer to call three witnesses back to the stand, including M.R., whom the lawyer wanted to question again about pre-trial testimony which the appeal court had not reviewed. The court refused the recall request, finding in particular that the testimony in question at first instance had been complete.
The applicant received a suspended prison sentence of six years with a confiscation order for a property called Bramberģes pils. In May 2011 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant.
Relying on Article 6 §§ 1 and 3 (d), the applicant complains that the appellate court which convicted her following an acquittal at first instance court did not examine M.R., who the applicant argued was the principal witness in the case, preventing the defence from referring to M.R.’s pre-trial statements.
She also complains that the criminal sanction of confiscation of her manor violated Article 1 of Protocol No. 1 to the Convention.
She in addition raises complaints about the criminal proceedings under Article 6 § 1, Article 6 § 2, and Article 6 § 3 (c) of the Convention and Article 2 § 1 of Protocol No. 7 to the Convention.
M.S. v. Slovakia and Ukraine (no. 17189/11)
The case concerns an Afghan migrant’s complaint about his arrest in Slovakia and return to Ukraine, then Afghanistan, with limited access to legal advice and interpreters.
The applicant, Mr M.S., is an Afghan national. His date of birth is in dispute: the applicant alleges that he was born in 1993 or 1994, while the authorities in Slovakia and Ukraine recorded the date of January 1992.
According to the applicant, he left Afghanistan in May 2010, after his father, who used to work for the National Security Department of Afghanistan, had been killed in 2005 and a member of his family had received a threatening letter.
He entered Ukraine in early July 2010. On 23 September 2010 he was arrested by the Slovakian border police while crossing into Slovakia illegally. He was interviewed, interpreting being provided from Slovak to English and then, by a fellow Afghan migrant, from English to Pashto. According to the record of the interview, he stated that his intention was not to apply for asylum in Slovakia, but to travel to western Europe.
A decision was taken to expel him to Ukraine and he was handed over to the Ukrainian authorities the next day and placed in a temporary holding facility. In October 2010 a court ordered his expulsion from Ukraine and his detention pending expulsion. He was transferred to temporary accommodation for foreign nationals and stateless persons before eventually being expelled to Kabul in March 2011.
In the meantime, he had lodged an asylum request with the Ukrainian migration authorities, submitting that he feared persecution if returned to Afghanistan. However, the authorities had rejected his request because they had found that he did not meet the definition of a refugee under domestic law and the Refugee Convention.
He maintains that throughout these procedures he had tried to bring to the attention of both the Slovakian and Ukrainian authorities the fact that he was a minor, without any action being taken.
He is currently living in Afghanistan, and alleges that he is forced to change his place of residence frequently for fear of the people who had killed his father.
The applicant makes several complaints under Article 3 (prohibition of inhuman or degrading treatment), Article 5 §§ 1, 2 and 4 (right to liberty and security/right to be informed promptly of reasons for arrest/right to have lawfulness of detention decided speedily by a court) and Article 13 (right to an effective remedy), alleging that he: was not allowed access to the Slovakian asylum system, the authorities there failing to provide him with adequate interpreting and legal assistance; was returned to Ukraine without examination of the risk of chain refoulement to Afghanistan; was detained in Ukraine in degrading conditions, notably because of overcrowding, and without procedural safeguards; and was then, without proper examination of his asylum claim and the risks he faced, expelled to Afghanistan.
He also alleges, under Article 34 (right to individual petition), that an NGO representative was denied access to him in Ukraine, preventing him from lodging an application for an interim measure with the European Court of Human Rights.