CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 juillet 2020

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color:#0069d6 }       FIFTH SECTION   CASE OF NUR AND OTHERS v. UKRAINE (Application no. 77647/11)           JUDGMENT                 STRASBOURG 16 July 2020   This judgment is final but it may be subject to editorial revision. In the case of Nur and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Mārtiņš Mits, President,   Ganna Yudkivska,   Lәtif Hüseynov, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having regard to: the application against Ukraine lodged with the Court on 19   December 2011 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Somali, Eritrean and Guinean nationals (“the applicants”), whose personal details, as declared by them, are indicated in the Appendix; the decision to give notice of the application to the Ukrainian Government (“the Government”); the parties’ observations; Having deliberated in private on 23 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case mainly concerns the applicants’ complaints, under Article   5 of the Convention, that their arrest and detention as migrants in an irregular situation were unlawful, and that they were not informed of the reasons for their arrest and had no effective access to the procedure to challenge the lawfulness of their arrest and detention. It also concerns the eighth applicant’s complaint under Article 3 that she, a minor at the time, was not provided with adequate care in detention in connection with her pregnancy and the miscarriage she suffered. THE FACTS 2.     The applicants alleged that they had been born on the dates set out in the Appendix. They were represented by Mr O. Koval and, at the time when the application form and observations were submitted, Ms H.   Bocheva, who at the material time were lawyers practising in Kyiv and worked for the Right to Protection Program implemented by the Hebrew Immigrant Aid Society (HIAS) in Kyiv. 3.     The Government were represented by their Agent, Mr   I.   Lishchyna. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Information concerning all applicants 5.     All the applicants alleged that they had suffered various hardships and had faced various risks in their countries of origin. They had left those countries with the aim of reaching Western Europe. In early November   2011 they were arrested by Ukrainian border guards while attempting to cross Ukraine’s border with Hungary or Slovakia. They were eventually granted asylum or subsidiary protection in Ukraine, and those applicants whose applications were refused failed to pursue appeals. 6 .     By November 2015, the date of the last communication from the representatives to the Court on this subject, the representatives had lost contact with all the applicants other than the second and the eighth (Mr   Ibrahim and Ms   Kante respectively). For the reasons set out in paragraphs 73 to 76 below, the description of the facts below concerns only the second and the eighth applicants. The applicants’ arrest and detention 7.     Both applicants were arrested by Ukrainian border guards. They were placed in the temporary holding facility (“the THF”) in Chop, in particular so that their identity could be checked, as they had no identity documents. 8 .     On 2 November 2011 the second applicant was arrested while trying to illegally cross Ukraine’s border with either Hungary or Slovakia. The report on his arrest was signed by border guards, the applicant and a Ukrainian-to-English and English-to-Ukrainian interpreter. 9 .     On 16 November 2011 the eighth applicant was arrested while trying to cross into Slovakia. According to the report on her arrest, she had no identification documents and explained, in English, that she had tried to enter Slovakia in search of a better life. The report was signed by border guards, the applicant and a Ukrainian-to-English and English-to-Ukrainian interpreter. A document submitted by the eighth applicant indicates that her cousin was among the people who were arrested with her, and her cousin was held with her at the Chop facility (see paragraph 47 below). 10 .     Both arrest reports contained references to a number of provisions of domestic law, in particular Article 263 of the Code of Administrative Offences (paragraph 48 below). They also listed the rights of defendants in administrative-offence cases, including the right to a lawyer and an interpreter, and the right to lodge complaints and appeal against decisions in their cases. Finally, they listed the applicants’ names, dates of birth and nationalities as set out in the Appendix, but indicated that this information was based on the applicants’ own statements, since they had no identity documents. 11 .     Two-page documents in English summarising the legal regime of detention in the THF were served on the applicants. They described the rules to be observed at the THF and the duties and rights of detainees, including the right to complain about their detention to a prosecutor, and the right to address complaints and letters to State authorities, NGOs, the Parliamentary Commissioner for Human Rights and the European Court of Human Rights. 12.     The border guards lodged applications for the applicants’ detention with the Zakarpattya Circuit Administrative Court, “in order to ensure the possibility of their expulsion”. 13.     Relying on section 32 of the 1994 Aliens Act (see paragraph   55 below), the court allowed the applications in respect of the second and the eighth applicants on 4 and 18 November 2011 respectively. It held that the applicants might “fail to leave the territory of Ukraine voluntarily”, as they had no documents allowing them to leave Ukraine and they had tried to cross its border illegally. The court ordered that the applicants should be detained in “temporary accommodation centres for foreigners and stateless individuals who [were] present in Ukraine illegally” for up to twelve   months. The detention orders stated the applicants’ age as declared by them and set out in the Appendix. 14.     The applicants were present at the court hearings concerning their detention. An official from the Chop Childcare Service also took part in the hearings as their representative, because they claimed to be minors. 15.     According to the applicants, the representative did not meet with them prior to the hearings or discuss with them any matters relating to the case during the hearings, as the representative did not speak a language which they understood. 16 .     According to the court transcripts, during the hearings the second applicant acknowledged that he was in Ukraine illegally and had no documents allowing him to return to his home country. The eighth applicant informed the court that she was pregnant. She confirmed that she had tried to cross the Ukrainian-Slovakian border illegally. She also stated that she wished to stay in Ukraine, although she had nowhere to live. 17.     According to the applicants, documents concerning their arrest and the relevant court proceedings were not translated into a language which they understood. Interpretation was provided, but into English, which they did not understand sufficiently. 18 .     On 30 November 2011 the International Fund for Health, Well-being and Environment Protection “Carpathian Region” (NEEKA), an NGO assisting refugees and asylum-seekers in the Zakarpattya Region under a contract with the UNHCR, wrote to the Chop Childcare Service, urging the service to cooperate in lodging appeals against the court orders for the applicants’ detention. The NGO indicated that it provided legal assistance to migrants, that the applicants had appealed to it for free legal assistance, and that it had approved their requests and stood ready to assist them. However, it considered that since the applicants were minors, only the Childcare Service could lodge appeals on their behalf. 19.     According to the applicants, the Childcare Service refused to appeal, as it agreed with their age-assessment results, which showed that they were adults (see paragraph 32 below). 20 .     On 17 November 2011 the second applicant was transferred to the temporary accommodation centre (“the TAC”) in Zhuravychi in the Volyn Region. 21 .     On 28 December 2011 the eighth applicant was transferred to the TAC located in Rozsudiv in the Chernigiv Region. 22.     On 7 May 2012 lawyers representing the second and eighth applicants lodged appeals against the detention orders with the Lviv Administrative Court of Appeal. The lawyers requested an extension of the time-limit allowed for lodging appeals, stating that the applicants could not lodge appeals in time, owing to language barriers and a lack of access to legal assistance. 23.     The appeals were mainly based on the arguments: that the applicants’ detention had no legal basis, as there was no decision on their expulsion; that the first-instance court had failed to assess the alleged risk to the applicants’ life and safety in their home countries; and that it was contrary to the law to place unaccompanied minors in detention. The appeals also contained complaints of a lack of access to legal assistance and insufficient interpretation during the first-instance proceedings. In the eighth applicant’s appeal, it was stated that she had not been able to understand all that had been translated during the court hearing in November 2011, as she understood little English. 24 .     On 12 September 2012 the Court of Appeal scheduled a hearing on the second applicant’s appeal for 31 October 2012. 25 .     On 21 September 2012 the Court of Appeal scheduled a hearing on the eighth applicant’s appeal for 11 October 2012. 26.     In both cases, the Court of Appeal ruled that the appeals had not been lodged out of time. 27.     The parties provided no information as to whether the appeals had actually been examined. 28 .     On 8 October 2012 the eighth applicant was released and transferred to a centre for female victims of violence in Odessa. 29 .     On 9 October 2012 the second applicant was released following a decision of the Migration Service of 10 August 2012 granting him subsidiary protection (see paragraph 36 below). The applicants’ age assessment 30 .     On 4 and 17 November 2011 a prosecutor directed that the second and eighth applicants should undergo an age-assessment procedure. 31.     On 7 November and 23 November 2011 the second and eighth applicants respectively underwent age-assessment medical examinations at the Zakarpattya Regional Agency for Forensic Examination. In the context of that age-assessment procedure, a dentist examined the applicants, and there were X-ray examinations of their hands and feet. 32 .     On 14 November 2011 it was determined that the second applicant was nineteen to twenty years old, and on 30 November 2011 it was determined that the eighth applicant was eighteen to nineteen years old. Asylum proceedings and grant of protection 33 .     On 9 January 2012 the second applicant applied for asylum in Ukraine, and the eighth applicant did the same on 16 January 2012. 34.     On 30 January 2012 the Migration Service declared the eighth applicant’s asylum application inadmissible, on the grounds that the applicant had falsely claimed to be a minor. 35 .     On 11 April 2012, noting that the eighth applicant had submitted her birth certificate indicating that she was a minor, the Migration Service revoked its decision of 30 January 2012 and decided to examine the applicant’s asylum application on the merits. 36 .     On 10 August 2012 the Migration Service decided to grant the second applicant subsidiary protection, finding that he would run a real risk of ill-treatment if returned to Somalia. 37.     On 5 November 2012 the Migration Service decided to grant the eighth applicant subsidiary protection. It was found that her fears of ill-treatment in the event of her return to Guinea had some basis, having regard in particular to her allegations that she had been the victim of domestic violence in Guinea, and to various international reports pointing to the systemic problems of spousal rape and domestic violence there. The eighth applicant’s medical situation 38.     After her arrest on 16 November 2011 the eighth applicant, who was nine weeks pregnant at the time, was taken to the THF in Chop. There, she was medically examined, and no health-related issues were noted. It is not known whether the eighth applicant informed those who examined her that she was pregnant. 39 .     On the night of 5 December 2011, while in the THF, the eighth applicant had a vaginal haemorrhage. She was urgently transferred to a hospital, where doctors examined her and noted that she had been in the first nine weeks of pregnancy, but had miscarried. The eighth applicant underwent dilation and curettage. Subsequently, she was prescribed certain types of medication, mainly anti-inflammatories and sedatives. 40 .     According to the applicant, at the hospital she had to wait for several hours before a doctor treated her. 41.     On 8 December 2011 the eighth applicant was transferred back to the THF, as the hospital doctors noted that she was in a “satisfactory condition”. While in the THF, the applicant received the medication she had been prescribed, and was also examined by a gynaecologist. 42.     At some point between 11 and 15 December 2011 and on 3 February 2012 two child psychologists who had apparently been engaged within the framework of a project operated by the Danish Refugee Council, an NGO, paid a couple of visits to the applicant. According to reports produced by the psychologists, the applicant was in a “situation of psychophysical stress” in connection with the gender-based violence which she had suffered in Guinea. 43 .     According to a psychologist’s report drawn up at some point between 11 and 15 December 2011, the applicant had spoken French in the course of a counselling session. She had completed eleven years of school in Guinea, understood English and spoke it a little. The applicant had told the psychologist in detail about abuse, humiliation and beatings to which she had been subjected by her husband in Guinea, as a result of which she had miscarried on a previous occasion back in that country. This situation had led her to leave Guinea. In the counselling session, the applicant had also reported to the psychologist that prior to the most recent miscarriage she had had a consultation with a doctor at the Chop THF, and when she had started bleeding she had been taken to a hospital where, in her assessment, the doctors had done everything correctly ( врачи по ее словам сделали все правильно ). At the time of the counselling session the applicant had been doing well, but the psychologist noted that she would visit her again on 16 December. 44.     On 3 March 2012 another counselling session with a psychologist was held. Her report confirmed the information on the eighth applicant’s background, linguistic abilities and history in Guinea which was contained in the psychologist’s report of December 2011 (see paragraph 43 above). 45.     According to the Government, the applicant did not request any further psychological assistance. 46 .     According to the records provided by the Government, after the eighth applicant’s transfer to the TAC in the Chernigiv Region on 28   December 2011 (see paragraph 21 above) she received the following assistance (medical and otherwise) in the course of her stay in that institution: (i)   a consultation with a general practitioner on 30 December 2011 and with a gynaecologist on 4 January 2012, in the course of which the applicant presented no complaints; (ii)   four consultations with doctors between January and April 2012 in connection with digestive tract problems, and two in connection with flu on 21 and 28 September 2012. The applicant was prescribed outpatient treatment in that connection, which she received; (iii)   consultations with a psychologist on 23 and 24 May 2012; (iv)   twenty-five legal and psychological assistance sessions with representatives from an NGO (the Chernigiv Committee for Human Rights) between January and August 2012; (v)   a consultation with an UNHCR legal specialist on 1 October 2012. Post-release interview with the eighth applicant 47 .     On 11 December 2012 the eighth applicant was interviewed in Odessa by a lawyer employed by the South Ukrainian Young Lawyers’ Centre. In support of her application to the Court, the applicant submitted the record of her discussion with the lawyer, in English. The record of that interview contains the following passages (reproduced verbatim): “ Had they ever informed you that you have a right to refuse a medical expertise? [1] Had they ever said you that you could say that you don’t want to take such examinations? No. When they were sending people to Lutsk, I said them I will not go there. I was behaving really badly. I was crying and shouting. They didn’t send me and I stayed there in Chop and after one week they said that I will go to Chenigov. [2] They said that that is a good place. You can use telephone and it is nice there. I believed them and went. ... I was stopped by the [border guards] for 2 times. When I was stopped for a first time they made some medical examination and they knew that I am pregnant after nearly two weeks they let me go. Next time after some time I tried to cross border with my cousin Adrea Silla (Adrea Silva according to his ‘spravka’). They cached us and I said them that I am pregnant, but they said that it doesn’t matter I will stay there ... Did someone explain you prior to the [age assessment] examination how it will be carried out, for which it is held, who will carry it out and where before or after you was taken to the hospital? No, never. We had no translation. They didn’t ask us, they decided everything by themselves. They just said quickly go, there were a lot of people there.   When we were in a court, when judge gave us 12 months, they brought translator with Caritas lawyer and they brought translator from Ukrainian to English.   I am not good in English.   That is why my cousin was translating to me in Peula.   We didn’t understand it, it was very quickly and when we had examination, it was like 20 people, but they said to us that all we are 18-19 years, how it is possible? Did you feel fear or discomfort in connection with the examination, when you were transported to the examination or at any before or after examination?   Had you ever felt discomfort or some fear because there were no person who could explain you what was happening in language that you understand? When we came there we were sitting there, 9 or 8 people.   Two girls were there, me and one girl from Somalia.   They took boys and chained their hand one to another, but girls were free.   There were nearly 5 [Border Guards].   There were different people from different countries, but we were speaking English.   We were asking each other do you know why I am here.   But no one knew.   Previously, I thought that I asked them to take me to hospital, because of my pregnancy, I thought maybe they will check me.   But they didn’t check these things.   Everyone was afraid, but we could do nothing.   When we came back there were some Somalians in Chop.   They asked us did you go to court.   We said that we were in hospital and they explained that it [was] for medical check of our age.   Only then we understood why we went to hospital. Did you have translator in Chop before you went to hospital or in the hospital? We didn’t have translator.   Only when I had a scandal in detention, because I didn’t want to go to Lutsk, [3] Caritas came with some black boy and he was speaking French.” RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic material The 1984 Code of Administrative Offences 48 .     Under Article 263, a person who has violated border regulations may be arrested for up to three hours so that an official report may be prepared charging him or her with the violation. If it is necessary to establish the identity of the person concerned and verify the circumstances of the offence, he or she may be detained for up to three days. Written notice must be given to a prosecutor within twenty-four hours of the arrest. 49 .     Article 267 of the Code provides that an arrestee can challenge arrest in connection with an administrative offence before the arresting official’s superiors, a prosecutor or the courts. The appeal does not have suspensive effect. The 2005 Code of Administrative Justice 50.     The Code of Administrative Justice was enacted in 2005 and was entirely revised by Law no. 2147-VIII of 3 October 2017, with effect from 15   December 2017. The references below concern the Articles of the Code in the 2005 version, as worded at the material time. 51.     At the relevant time, Article 56 of the Code provided that minors’ parents, guardians or official representatives acted on their behalf before the administrative courts. 52.     In accordance with Article 162 of the Code, should an administrative court find an administrative claim substantiated, it could (amongst other things) declare the impugned action, omission or decision unlawful, invalidate the decision in question, and/or oblige the defendant to undertake certain actions or abstain from taking such actions. It could also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision. 53.     Article 183-5 regulated the particularities of the procedure whereby cases concerning the expulsion of foreigners and stateless persons, including authorities’ applications for foreigners and stateless persons to be detained in connection with their expulsion, were considered. It provided for the compulsory presence of the parties during court hearings, and for the immediate consideration of applications for detention. The courts’ decisions in such cases could be challenged on appeal within five days of being delivered, and could be further challenged before the court of cassation. The 1994 and 2011 Legal Status of Foreign Nationals and Stateless Persons Acts (“the 1994 Aliens Act” and “the 2011   Aliens Act” respectively) 54.     The 1994 Aliens Act was in effect prior to 25 December 2011, and on that date it was replaced by the 2011 Aliens Act. The 1994 Aliens Act 55 .     At the relevant time (until 24 December 2011) section 32 of the 1994 Act, as amended by the Law of 5 April 2011, provided: “Aliens arrested for being illegally present in Ukraine (contrary to a ban on [their] entry, [or] in the absence of legal grounds for [their] presence provided for by domestic law or international treaties ..., including where [a] forged, damaged or non-matching visa, permit or passport has been used), or those allowed into Ukraine under readmission treaties ... shall, pursuant to an order of an administrative court, be placed in centres for temporary accommodation ... for the period necessary for preparing their expulsion from Ukraine, [a period] not to exceed twelve months.” The 2011 Aliens Act 56 .     Section 14(2) of the 2011 Act provides that: “2. Aliens who have crossed Ukraine’s border illegally, outside of an authorised port of entry, shall be arrested [ затримуються ] and, provided that they have not committed a criminal offence, shall be returned, pursuant to the procedure established by law, to the country where they were previously present [ повертаються до країни попереднього перебування у встановленому порядку ].” 57.     Section 26 lays down the procedure for the compulsory return ( примусове повернення ) of aliens to their country of origin or a third country. In particular, the State Security Service, border guards or immigration authorities can order the return of an alien whose actions have violated the regulations concerning the legal status of aliens. Such a decision must include reasons and indicate the period of time within which the alien must leave Ukraine (a period not exceeding thirty days). 58 .     At the relevant time, the relevant parts of section 30 read as follows: Section 30. Compulsory expulsion [ примусове видворення ] of aliens “1. [Migration authorities, border guards and the Security Service] may, solely on the basis of a decision of an administrative court, expel from Ukraine an alien who has failed to comply with a return decision, or [who is in a situation] where there are grounds to believe that the alien would not comply [with such a decision] ... 2. Appeals can be lodged against a court’s decision on the forcible expulsion of aliens, pursuant to the procedure provided for by law. 3. On the basis of the respective decision, [migration authorities or border guards] shall place [ на підставі відповідного рішення розміщує ] the aliens referred to in subsection 1 of this section in temporary accommodation centres for aliens... 4. Aliens shall remain [ перебувають ] in temporary accommodation centres for the period necessary for enforcing the judicial decision on forcible expulsion, but not for more than twelve months.” Regulations concerning temporary accommodation centres for foreigners and stateless individuals who are present in Ukraine illegally ( пункти тимчасового перебування іноземців та осіб без громадянства, які незаконно перебувають в Україні ) 59 .     Regulations governing TACs were enacted by resolution no.   1110 of the Cabinet of Ministers of 17 July 2003 and were in force at the relevant time. Section 3 of the regulations provided that unaccompanied children could not be held in centres and had to be transferred to shelters run by the child welfare services. However, children ten years and older who were accompanied by close family members could be held in centres, with their consent. 60 .     At the material time the centres were under the authority of the Ministry of the Interior, which, by order no. 390 of 16 October 2007, had enacted regulations governing them. Those regulations were in effect at the relevant time, and were repealed on 29 February 2016. Section 6.1 of the regulations conferred on centre directors the authority to release foreigners. Section 6.2 provided that an undocumented foreigner could be released if the authority which had ordered his placement in the centre informed the centre that, despite its best efforts, the identity of the foreigner could not be established. Section 6.5 provided that release had to be formalised by a decision of the centre’s director. Section 6.8 of the regulations read as follows: “6.8. A foreigner shall also be released ( звільняється ) from the centre: а) in the event of an application for asylum being submitted ( у разі подання заяви про надання статусу біженця ); б) when his application for asylum is declared admissible (при оформленні документів для вирішення питання щодо надання йому статусу біженця ); в) in the event of asylum being granted; г) on the basis of a court decision acquitting the foreigner of an administrative offence; ґ) in the event of the foreigner acquiring a legal basis for his stay in Ukraine ( у разі легалізації іноземця в інший передбачений законодавством спосіб )” Regulations concerning temporary holding facilities run by the State Border Control Service 61 .     The regulations, which were enacted by the State Border Control Service on 30   June 2004 and were in force at the material time, provided, inter alia , that persons arrested pursuant to Article   263 of the Code on Administrative Offences for violations of border regulations (see paragraph   48 above) had to be detained in temporary holding facilities ( пункти тимчасового тримання затриманих ) for a period of up to three days, or for up to ten days with a prosecutor’s permission. 62.     Detainees had to be detained in cells with natural and artificial light, ventilation, sanitary facilities, furniture and individual beds fixed to the floor or walls. Cells had to be designed to provide each detainee with 4   square metres of individual space (4.5 square metres for pregnant women), excluding the space needed for sanitary facilities. Unaccompanied children were to be detained separately from adults. 63.     Detainees had to be informed about their rights and obligations in a language which they understood. They were entitled to communicate with the migration authorities, NGOs and the UNHCR, among others. Resolution of the Plenary High Administrative Court on judicial practice as regards the disputes concerning refugee status, the removal of aliens from Ukraine, and their stay in Ukraine 64.     The resolution, which was in force at the time when the applicants in the present case were arrested and placed in detention, was adopted by the Plenary High Administrative Court on 25 June 2009 and amended on 20   June 2011. 65 .     In section 27 of the resolution, the Plenary Court explained that there were two preconditions for a court issuing a decision on forcible removal under section 32 of the 1994 Aliens Act: (i) the existence of a decision ordering the person’s removal; and (ii) the person’s failure to comply with that decision, or the existence of reasonable grounds suggesting that the person would fail to leave Ukraine. Relevant EUROPEAN AND international material Conditions in the facilities where the applicants were detained 66.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published two reports on its visits to Ukraine covering the above issue. 67 .     The relevant parts of the CPT report on its visit to Ukraine in December 2007 (CPT/Inf (2009) 15), published on 19 May 2009, read: [4] “ A. Establishments under the authority of the State Border Service 1.   Preliminary remarks 10. The legal provisions applicable to foreign nationals held under aliens legislation have remained basically unchanged since the 2005 visit. Pursuant to Section 263 of the Code of Administrative Offences, persons who have violated the border crossing regulations may be detained by the State Border Service: i) for up to 3 hours, while a protocol of administrative violation is being drawn up; ii) for up to 72 hours, with the public prosecutor being notified within 24 hours of the moment of detention, if it is necessary to clarify the person’s identity and the circumstances of the violation; iii) for up to 10 days with the public prosecutor’s prior authorisation, if the person is not in possession of identity documents. ... 12. As regards detention under Section 32 of the Law on the Legal Status of Foreigners and Stateless Person ... it is to be served in temporary holding centres for foreigners and stateless persons illegally residing in Ukraine. [T]he Ministry of Internal Affairs has been entrusted with the setting-up and running of such centres ...   During the 2007 visit, the delegation was informed that the Ministry of Internal Affairs was in the process of completing the construction of two centres, in Volyn’ (with 180 places) and Chernigiv (with 240 places), which were expected to open at the end of 2007/early 2008... ... 14. According to the regulations in force, foreign nationals under the age of 18 who are separated from their families should be placed in special facilities for minors. However, during the visit to the Pavshino Centre, it transpired from the documentation that there were at least two juveniles (aged 14 and 16) in detention. They were accommodated together with adult compatriots with whom they had been apprehended. When asked for an explanation, staff said that ‘they had probably lied about their age’. ... 3.   Conditions of detention .. 27. The temporary holding facility (PTT) at Chop Border Guard Command was opened in 2006. With an official capacity of 44 (of which 12 in principle set aside for women and children), it was accommodating 35 persons (including one woman) on the day of the delegation’s visit. Material conditions in this new facility were a distinct improvement on what had been seen by the CPT in the past in Border Guard detention facilities, and were in general acceptable for the intended length of stay of up to 10 days. However ... foreign nationals were on occasion being held there for up to one month.   The PTT comprised two sections: one reserved for women and children, the other for men. The women’s section consisted of three rooms (each measuring approximately 13 m² and equipped with beds and some additional furniture), a playroom for the children, a kitchen where meals were taken and additional food could be prepared, a toilet and shower facility (also equipped with a washing machine), and a spacious exercise yard. ...” 68 .     The relevant parts of the CPT report on its visit to Ukraine in September 2009 (CPT/Inf (2011) 29), published on 23 November 2011, read: [5] “B. Foreign nationals detained under aliens legislation 1. Preliminary remarks 47. ... [T]he Ministry of Internal Affairs runs Temporary accommodation centres (PTPs) designed for the detention of foreign nationals for up to six months. Two new PTPs entered into service in Rozsudiv (Chernigiv region) in July 2008 and in Zhuravichi (Volyn’ region) in September 2008... 48. It is noteworthy that some detained foreign nationals were kept in Border Service facilities for prolonged periods of time: stays of up to 24 days were noted at the Boryspil Airport SP and stays of up to two months at the Chernigiv PTT. The CPT reiterates its recommendation that steps be taken to ensure that the legal provisions governing detention by the State Border Service are fully respected in practice. ... 4. Conditions of detention a. Internal Affairs Temporary accommodation centre (PTP) in Rozsudiv 60. With an official capacity of 235 places, at the time of the visit, Rozsudiv PTP was holding 92 foreign nationals, including five women and three children aged from 3 to 20 months. Detained foreign nationals were being held in five separate sections, one of which was accommodating the women and children. 61. The delegation was impressed by the material conditions offered to detained foreign nationals. The bedrooms, which were designed to hold from three to eight persons and measured from 16 to 34 m², were well lit and ventilated, adequately equipped (with beds, table, chairs and wardrobes) and clean. Each section had a sanitary facility with toilets and showers, and detainees were provided with a set of personal hygiene items. Further, there were plans to build a laundry; pending that, clothes and bedding were washed outside the centre.   The delegation received hardly any complaints about food. There were special dietary arrangements for 53 detainees at the time of the visit. 62. As regards the regime , there was an open-door policy and detained foreign nationals had access throughout the day to a spacious outdoor exercise yard, fitted with sports equipment. That said, the CPT recommends that the outdoor exercise areas be equipped with shelters against inclement weather and means of rest. Major efforts had been made to ensure that a range of leisure-time activities is available to detainees (table tennis, TV with many foreign channels, radio, books, board games, etc.). However, there was a lack of structured activities (e.g. language classes, organised sports activities, work, etc.). As indicated in previous visit reports, the longer the period for which persons are detained, the more developed should be the activities which are offered to them. The CPT invites the Ukrainian authorities to further develop the range of activities offered to detained foreign nationals at the Rozsudiv PTP, as well as in other PTPs in Ukraine.” Birth records and identity documents from Somalia 69 .     The Immigration and Refugee Board of Canada, in its publication of 26 June 2013 entitled “Somalia: Birth registration, including the issuance of birth certificates; the registration of children attending school; title deeds (2009-June 2013)”, stated: “In their mission report, the Norwegian Country of Origin Information Centre and the Danish Immigration Service note that, according to the United Nations High Commissioner for Refugees (UNHCR) in Somalia, there is no official birth registration system in Somalia. According to the Elman Peace and Human Rights Centre in Mogadishu, only hospitals are registering births (Norway and Denmark May 2013, 57).” [6] In its 29 July 2004 publication entitled “Somalia: Identity documents and travel documents (January 2000-June 2004)”, the Immigration and Refugee Board of Canada also stated: “In May 2004, the Home Office of the United Kingdom (UK) issued an ‘Operational Guidance Note’ on Somalia, in which it stated that it is impossible to verify the authenticity of any documents presented by Somalis who apply for asylum in the UK because there is no central government or authority in Somalia that keeps official records of the population or of the issuance of such documents to enable verification (Sec. 5.3.1). Additionally, the official records that had been kept prior to the collapse of the government were destroyed during the civil war... While the UK Home Office acknowledged that ‘[s]ome local administrations such as Somaliland and the TNG [Transitional National Government] authorities issue documents (birth certificates, passports etc.), [it also pointed out that] these are not issued under any internationally recognised authority and are not verifiable’ (ibid.). ... In its report, [United Nations Integrated Regional Information Networks] also indicated that, generally, persons wishing to acquire an unofficial passport would do so unofficially by going to the Bakaara market and paying a fee (IRIN 4 Sept. 2002). Similarly, in May 2004, the UK Home Office declared that ‘[a] range of Somali documents, including passports, can be easily obtained both in Somalia and in many other countries in the region through unofficial channels. [S]uch documentation is often openly on sale in markets. Little weight can therefore be attached to any claimed Somali document and they should not be accepted as sole proof of identity or nationality (UK May 2004, Sec. 5.3.3).’” [7] 70 .     A publication of the Resource Information Centre of the United States Bureau of Citizenship and Immigration Services of 9 May 2000 entitled “Somalia: Birth Certificates” reads: “A professor at California State University, Chico, states that because there has been no official national government structure in Somalia since the deposition of Barre in 1991, it is difficult to know whether birth certificates are currently issued to the citizens of what was once Somalia, but it is not probable (23 March, 26 May 2000).   Prior to 1991, birth certificates were only issued in urban areas in Somalia (Professor 23 March 2000; Researcher 27 March 2000). A researcher at CERI in France states that people often resort to buying documents ‘on the market place through private traders’ because ‘there is no alternative’ and they must show documents in order to travel (27 March, 4 April 2000).   In the absence of an official government in Somalia, it is very easy to obtain documents in Somali marketplaces such as Bakara, Karan, and Monopolio in Mogadishu, and Bosaso and Hargeysa, but these documents are for purposes such as international travel and are worthless in Somalia (Professor 23 March 2000; Researcher 27 March, 4   April 2000).” [8] THE LAW PRELIMINARY ISSUES Decision to strike out parts of the application The first, third to seventh and ninth applicants 71.