FIFTH SECTION
Application no. 31183/13
Hesham A.S. ABUHMAID
against Ukraine
lodged on 14 May 2013
STATEMENT OF FACTS
The applicant is a Palestinian national, who was born in 1970 in Rafah, Gaza Strip. As indicated in the application form, the applicant’s full name in English is Mr Hesham Ahmad Saddidin Abuhmaid. In several other documents, including some of the applicant’s identification documents, his surname is spelled Abuhmeid. The applicant currently lives in Kyiv. He is represented before the Court by Ms G. N. Bocheva, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
Between 1977 and 1988 the applicant studied at a high school in Rafah.
In 1989 he went to Tel-Aviv looking for a job. The applicant claims he was arrested by the Israeli authorities and questioned concerning possible links with Hamas, the Islamic Resistance Movement, or any other actions directed against Israel. During the questioning the applicant was allegedly tortured. After his release, the applicant went back to Gaza Strip.
Later in 1989 he joined Fatah, the Palestinian National Liberation Movement. As a member of Fatah the applicant was responsible for distributing leaflets “encouraging organised fighting for Palestinian liberation” and instructing other members on how to behave in case of arrest or interrogation.
In 1992 the applicant’s brother was allegedly arrested, beaten up and detained for five months for having thrown stones at Israeli soldiers. The applicant was questioned by the Israeli authorities concerning the incident; the applicant was not arrested as he had not been involved in it.
In 1993 the applicant went to Ukraine to study. In the same year he entered Kyiv Polytechnic University. In 1999 the applicant completed his studies at the University and obtained a master’s degree in biomedical electronics. In 2001 the applicant enrolled in a postgraduate course at the same University. In 2003 he withdrew from the course as he had no money to pursue his studies. The applicant claims that since 2003 he has worked as a translator/interpreter for the Embassy of Libya in Kyiv and for various private companies (the applicant fluently speaks Arabic, English, Russian and Ukrainian).
In 1998 the applicant married a Ukrainian national. In 2007 they divorced. In 2011 the applicant married another Ukrainian national, but they are currently not living together.
The applicant visited Gaza twice in 2000. According to the applicant, one of the visits was due to his father’s death. From December 2000 onwards the applicant has remained in Ukraine without leaving its territory.
In 2001 the applicant was issued a registration card by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“the UNRWA”). The card bears the name “Hicham Ahmad Sadiddin Hmeid”. The applicant attributes the difference in the spelling of his name to varying transliteration of Arabic names.
Similar cards were issued to the applicant’s mother and sister who currently reside in Rafah.
2. Legal basis for the applicant’s stay in Ukraine
Prior to 16 September 2011 the applicant was staying in Ukraine on the basis of passports of limited duration, issued by the Palestinian Authority, and temporary residence permits, which were regularly extended by the Ukrainian police. In 2008-2011 the extension of the applicant’s residence permit was requested by the Embassy of Palestine and granted by the Ukrainian authorities on account of the closed entry to Palestine.
In 2003 the applicant started preparing documents to apply for a permanent residence permit on account of his marriage with a Ukrainian national. He could not complete his application because his then brother‑in‑law opposed to the applicant’s registration at the flat in which the applicant, his then wife and brother-in-law resided at the time.
On 9 March 2010 the applicant applied to the migration unit within the Golosiyivkyy District Police Department in Kyiv for an extension of his residence permit. The police noted that the applicant’s residence permit had expired in November 2009 and that since then the applicant had stayed in Ukraine in violation of migration regulations.
On 10 March 2010, upon a request of the police, the Golosiyivskyy District Court in Kyiv, relying on Article 203 § 1 of the Code on Administrative Offences, ordered the applicant to pay a fine of 340 Ukrainian hryvnias (“UAH”) for violation of migration regulations.
The applicant’s identification documents were kept by the Golosiyivkyy District Police Department pending the outcome of the applicant’s request for an extension of his residence permit. The request was eventually granted about a week later, the applicant’s residence permit having been extended for three months.
Meanwhile, on 11 March 2010 the applicant was stopped by officers of the Solomyanskyy District Police Department in Kyiv for an identity check. As he had no identification documents, the applicant was arrested and taken to the police station. The applicant states that his explanation that the documents were kept at another police department was not taken into account. On 12 March 2010 the applicant was taken to the Solomyanskyy District Court in Kyiv, which, having examined the material submitted by the police, fined the applicant with UAH 340 for failure to carry identification and foreigner’s registration documents.
On 28 April 2010 the applicant was stopped by officers of the Desnyanskyy District Police Department in Kyiv for an identity check. Having noted that the applicant resided in a flat in Kyiv without a rent contract and official registration, the officers requested the Desnyanskyy District Court in Kyiv to fine the applicant. By decision of 28 April 2010, the court ordered the applicant to pay UAH 680 for violating the migration regulations.
The applicant did not appeal against the court decisions convicting him of administrative offences.
On 16 September 2011 the applicant went to the migration unit of the Chief Police Department in Kyiv to submit a request for an extension of his residence permit. On his way he was stopped by officers of the migration unit of the Solomyanskyy Police Department in Kyiv who informed the applicant that there was a decision ordering him to leave Ukraine. The officers seized the applicant’s documents which he had with him in order to apply for an extension of his residence permit, including his passport and marriage certificate. The documents have not been returned to the applicant.
Subsequently, the applicant contacted a lawyer who helped him to obtain copies of the decisions concerning his expulsion and to lodge an appeal against them (see below).
3. Expulsion proceedings
On 17 March 2010 the Solomyanskyy District Police Department in Kyiv ordered the applicant’s expulsion from Ukraine for violation of migration regulations and banned his entry to the country until 12 March 2015 pursuant to Article 32 §§ 1 and 2 of the Legal Status of Foreigners and Stateless Persons Act of 1994. In the decision it was noted that the applicant had come to Ukraine in 2005 for a private visit; that after the expiry of his residence permit he had remained in Ukraine illegally; that he had not requested an extension of the residence permit; that he did not have relatives in Ukraine; that he had not had a work permit; that he had earned his life working at a market in Kyiv; and that he had been “within the eyesight of the police”.
The applicant claims that he was not informed about that decision and that he was not aware that subsequently, in May 2010, the police initiated court proceedings for his forcible removal from Ukraine.
In their written submissions made in the course of those proceedings, the police reiterated the findings in the expulsion decision and requested the Kyiv Administrative Court to order the applicant’s immediate forcible removal and his placement in a facility for temporary detention of foreigners and stateless persons for the period necessary to prepare the removal. In the latter regard, the police argued that there were reasons to believe that the applicant would try to remain illegally in Ukraine.
On 18 May 2010 the Kyiv Administrative Court heard the case in the absence of the parties, having noted that the applicant had submitted a written statement that he had not wished to be present and that he had agreed with the expulsion decision, and that the police had not been able to attend the hearing because of its high workload. The court relied on the findings in the decision of 17 March 2010 and allowed the claims of the police. In its decision, the court noted that it was to be enforced immediately and that it could be appealed against within ten days pursuant to Articles 185-187 of the Code of Administrative Justice. If no appeal was lodged against the decision, it would enter into force after the expiry of the ten-day period.
On 25 November 2011 the applicant was informed of the decision of 18 May 2010. On 29 November 2011 a lawyer submitted an appeal on the applicant’s behalf, together with a request for renewal of the ten-day time‑limit, to the Kyiv Administrative Court for further transfer to the Kyiv Administrative Court of Appeal.
In the appeal, the applicant argued that he had studied in Ukraine between 1993 and 1999. In December 2000 he had returned from Palestine to Ukraine fearing persecution by the Israeli authorities. Without providing any further details, the applicant stated that he had been arrested and tortured by the Israeli authorities with the aim to obtain his confession of cooperation with Hamas. The applicant further noted that he was married to a Ukrainian national, that he had been officially allowed to stay in Ukraine until 16 September 2011 and that on the latter day the police had seized his identification documents and had told him to leave Ukraine. The applicant also expressed the wish to apply for asylum as soon as the Migration Service resumed accepting asylum applications according to the new regulations.
The applicant complained that the first-instance court had failed to examine all the facts pertinent to the case and to hear him. According to the appeal, the applicant had not been informed of the expulsion decision of 17 March 2010 and had not requested the court to hear the case in his absence. The written statement in that regard had been allegedly forged by the police.
Moreover, the first-instance court had not checked whether it was safe for the applicant to return to Palestine and had not been informed of the circumstances essential for the outcome of his case. In particular, the applicant argued that the Ukrainian police had withheld the information that the applicant had had a valid residence permit and that he had been married to a Ukrainian national. The applicant complained that the expulsion decision of 17 March 2010 had been taken in violation of Articles 2, 3 and 5 of the Convention, given the human rights situation in Palestine, and in violation of the domestic procedure.
On 14 November 2012 the Kyiv Administrative Court of Appeal heard the case in the absence of the parties. It is unknown whether the applicant or his lawyer intended to take part in the hearing and, if so, whether they informed the Court of Appeal accordingly.
The appeal was rejected as unsubstantiated. In particular, the Court of Appeal relied fully on the findings of the first-instance court and noted that “the claimant, having been removed from Ukraine, had crossed the Ukrainian border despite the existing entry ban”. The decision entered into force immediately.
On 6 December 2012 the applicant lodged with the Higher Administrative Court a cassation appeal challenging the factual and legal findings of the lower courts. The applicant also complained that his expulsion from Ukraine would be contrary to Article 8 of the Convention given his personal and family ties with that country. On 7 December 2012 a judge of the Higher Administrative Court ruled to open cassation proceedings in the case and to invite the Kyiv Administrative Court to submit to the cassation court the complete case file. So far, no decision has been taken on the merits of the cassation appeal.
4. The applicant’s request for asylum
On 25 January 2012 the applicant lodged an asylum application with the State Migration Service. According to the applicant, in his application he stated that he feared persecution by Hamas if returned to Gaza Strip, as he had been a member of Fatah.
According to the applicant, during the inquiry in his asylum case migration officers questioned him on two occasions. They asked formal questions, not relating to the substance of his allegations.
On 1 August 2012 the applicant received a written notice dated 21 June 2012 that his asylum application had been rejected by decision of the State Migration Service of 17 May 2012 and that he could challenge it before the courts. No copy of the decision was given to the applicant.
On 3 August 2012 the applicant challenged the refusal of his asylum application before the Kyiv Administrative Court. In particular, the applicant argued that he had not been informed of the reasons for such a decision which prevented him from effectively appealing against it. The applicant also argued that the examination of his application had not been thorough and objective, as his questioning had been formalistic and no additional information concerning the general situation in Palestine or the applicant’s personal circumstances had been requested either from other State authorities, like, for instance, the State Security Service, or from the applicant himself to check the reliability of his submissions. The applicant stated that he had not been given access to the material of the inquiry. He maintained his allegations of risk of persecution by Hamas and also argued that, if returned to Gaza Strip, being a male Palestinian he ran a real risk of ill-treatment by the Israeli authorities, even though he did not support Hamas. In that regard, he referred to the reports of Amnesty International and Human Rights Watch concerning the human rights situation in Palestine in 2012. The applicant also contended that the Migration Service had disregarded that, as a Palestinian refugee registered with UNRWA, being outside its field of operation, he was entitled to the same protection in Ukraine as refugees under the United Nations Convention Relating to the Status of Refugees of 1951.
On 20 September 2012 the court rejected the applicant’s case, finding that the Migration Service had examined the matter thoroughly and fully and that the applicant’s arguments were unsubstantiated. In particular, the court noted that the material relating to the applicant’s asylum proceedings demonstrated that he did not run an individual and real risk of persecution by the Palestinian authorities, as Hamas and Fatah had entered into negotiations concerning a transitional government for Palestinian territories; he was not subjected to such persecution at the time; the applicant had not provided any evidence that he would not be able to avail himself of the protection of his country of origin; he had been freely travelling to and from Palestine; all his family lived there; and he did not face criminal prosecution there. The court also noted that the applicant appeared to have left his country of origin voluntarily for economic and personal reasons; he had had his residence permit in Ukraine repeatedly extended for personal reasons; and he had requested asylum only after he had not been able to legalise his further stay in Ukraine. Relying on the latter ground, the court found that the applicant had missed the time-limit for lodging an asylum application pursuant to Article 5 of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011. On the whole, the court found that it had been for the applicant to provide documents or persuasive arguments demonstrating that he had run a real and personal risk of persecution, which he had failed to do.
On 25 October 2012 the applicant lodged an appeal with the Kyiv Administrative Court of Appeal. In particular, he stated that his allegations of risk of persecution by Hamas and by the Israeli authorities were inter alia supported by the fact that his passport had been issued by the Palestinian Authority associated with Fatah, by his registration card issued by the UNRWA and by various international reports, which neither the Migration Service nor the court of first instance had sought to obtain or had examined. According to the applicant, the court’s review of his case had not been full or thorough, thus falling short of the requirements of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as interpreted by the Plenary Higher Administrative Court.
On 4 December 2012 the Court of Appeal rejected the applicant’s appeal, having agreed with the first-instance court in that the applicant had failed to substantiate his asylum application as required by the national law and pertinent international documents, including the European Union Council Directive of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status and the Guidelines on procedures and criteria for determining refugee status under the 1951 Geneva Convention, issued by the UNHCR in 2011.
The applicant appealed in cassation, stating that the lower courts had not fully examined the material pertinent to his case, which had resulted in a wrong dismissal of his asylum request, in violation of Articles 3, 8 and 13 of the Convention. As to Article 8, the applicant noted that he had studied in Ukraine between 1993 and 1999, that since 2000 he was permanently residing on its territory and was married to a Ukrainian national.
On 7 February 2013 the Higher Administrative Court rejected the applicant’s cassation appeal, having found no elements demonstrating that the lower courts had erred in the application of substantive or procedural law or that review of the case material was required.
B. Relevant domestic law and practice
1. Constitution of Ukraine, 1996
The relevant extracts from the Constitution provide as follows:
Article 26
“Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party.
Foreigners and stateless persons may be granted asylum under the procedure established by law.”
Article 55
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers.
...After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
Article 59
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.
In Ukraine, the bar acts to ensure the right to defence against accusation and to provide legal assistance in cases dealt with by the courts and other State bodies.”
2. The Code of Administrative Justice, 2005
Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts.
Pursuant to Article 48, foreigners and stateless persons enjoy the same procedural capacity as the citizens of Ukraine and, pursuant to Articles 16 and 56, are entitled to be legally assisted and represented in the proceedings.
Article 49 provides for the parties’ right to be informed of the date, time and place of court hearings and to take part in them. Pursuant to Article 122, the first-instance court must examine the case at an open hearing to which the parties are invited, unless they express the wish to have the case examined by means of a written procedure. The parties may take part in hearings before the courts of appeal and of cassation. The parties should inform those courts accordingly (Articles 187 § 3 and 213 § 3). The courts of appeal and of cassation may decide to examine cases by means of a written procedure (Articles 196, 197, 221 and 222).
Under Article 227 § 2, the court of cassation has the power to quash the decisions of the lower courts and to order reconsideration of the case, if it finds that there were procedural violations, which “impeded the establishment of facts decisive for the correct determination of the case”.
On 22 September 2011 Article 183-5 was added to the Code and entered into force on 15 October 2011. It provides particular rules for the consideration of cases concerning expulsion of foreigners and stateless persons. It provides for the compulsory presence of the parties during hearings before the court of first instance. The court’s decision in such cases may be challenged on appeal within five days of its delivery and may be further challenged before the court of cassation.
3. The Legal Status of Foreigners and Stateless Persons Act, 1994 (repealed on 25 December 2011), as worded at the material time
Section 32 of the Act laid down the procedure for removal of foreigners and stateless persons from the territory of Ukraine.
It listed the grounds for removal, which included the commission of a crime, the failure to comply with the conditions of temporary stay, and the danger to the national security or the public order. Compulsory removal was also to be ordered if there were grounds for refusal of entry specified in Section 25 of the Act (the submission of false information, the breach of entry or customs regulations etc.). Foreigners and stateless persons could also be removed if they performed activities detrimental to Ukraine’s relations with another country, repeatedly committed administrative offences, or did not have legally obtained means of living sufficient for their stay in and departure from Ukraine.
The removal decision was to be taken by the police, the border guards or the State Security Service. Notice of the decision had to be given to the prosecutors within twenty-four hours. An appeal against the decision could be lodged with the courts.
A period of up to five days could be indicated in the decision for the foreigner or stateless person concerned to leave the territory of Ukraine.
If the person concerned did not comply with the decision, he or she had to be forcibly expelled pursuant to an administrative court’s decision. At the request of the police, the border guards or the State Security Service, the administrative court was also empowered to order the person’s detention for the period necessary for the preparation of his or her expulsion, not exceeding twelve months, at a facility for temporary detention of foreigners and stateless persons who stay illegally in Ukraine, if there were “reasonable grounds suggesting that [the person] would fail to leave” the territory of Ukraine.
According to Section 32-1, foreigners or stateless persons were not to be removed to a country where they risked to be subjected to torture, cruel, inhuman or degrading treatment or punishment.
4. The Legal Status of Foreigners and Stateless Persons Act, 2011 (entered into force on 25 December 2011)
The 2011 Act also provides for a two-stage procedure of forcible removal of foreigners or stateless persons from Ukraine. Where there are grounds for such a removal (see below), the authorities take a decision oredering foreigners or stateless persons to leave Ukraine. If the foreigners or stateless persons concered fail to comply with such an order, they may be forcibly removed (expelled) pursuant to a decision of an administrative court.
In particular, Section 26 provides that the State Security Service, the border guards, or “the central executive authority ensuring the implementation of the State policy in the sphere of migration” may take a decision ordering the forcible return of foreigners and stateless persons to the country of origin or to a third country if their conduct violate the regulations on their legal status or is contrary to the interests of national security of Ukraine or of public order, or if their return is necessary for the protection of health, rights and lawful interests of Ukrainian citizens. Notice of the decision shall be given to the prosecutors within twenty-four hours and a copy of the decision shall be given to the foreigner or the stateless person concerned. The decision shall contain the reasons on which it is based, indicate a period during which the foreigner or the stateless person concerned must leave Ukraine (which shall not exceed thirty days), and specify the procedure of appeal (the decision may be appealed to the courts) and the consequences of failure to comply with it. Foreigners and stateless persons who are below eighteen years of age or in whose respect the Refugees and Persons in Need of Complementary or Temporary Protection Act applies shall not be subjected to forcible return.
According to Section 30, if foreigners or stateless persons fail to comply with the decision on their compulsory return within the set time-limit or if there are reasonable grounds suggesting that they will evade complying with such a decision, the State Security Service, the border guards, or “the central executive authority ensuring the implementation of the State policy in the sphere of migration” may expel the foreigners or the stateless persons from Ukraine on the basis of an administrative court’s decision. The court’s decision may be taken on the request of the said authorities and is subject to appeal. For the purposes of enforcement of the expulsion decision, foreigners and stateless persons may be detained at a facility for temporary detention of foreigners and stateless persons who stay illegally in Ukraine for a period of up to twelve months. The prosecutors must be informed of such a detention within twenty-four hours. Foreigners and stateless persons in whose respect the Refugees and Persons in Need of Complementary or Temporary Protection Act applies shall not be subjected to forced expulsion.
Section 31 prohibits forcible return or expulsion of foreigners and stateless persons to countries (i) where their life or freedom is endangered for reasons of race, religion, origin, nationality, membership of a particular social group or political opinion; (ii) where they risk to be subjected to death penalty or execution, torture or cruel, inhuman or degrading treatment or punishment; (iii) where their life, health, security or freedom is endangered due to widespread violence in the situation of an international or internal armed conflict or in the situation of the systematic violations of human rights, due to the natural disasters or anthropogenic hazards, or due to the absence of the medical treatment or assistance sufficient to maintain life; or (iv) where they risk expulsion or forced return to countries in which such circumstances may emerge. The same provision bans collective forcible expulsions of foreigners and stateless persons.
5. The Refugees and Persons in Need of Complementary or Temporary Protection Act, 2011
According to the glossary of terms, provided for in Section 1 of the Act, a refugee is “a person, who is not a citizen of Ukraine and, due to the well‑founded fear of becoming a victim of persecutions for reasons of race, religion, origin, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable to avail him- or herself of the protection of that country or, due to such fear, is unwilling to avail him- or herself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or is unwilling to return to it because of the said fear” (paragraph 1 (1) of Section 1).
A person in need of complementary protection is a person, who is not a refugee, though “needs protection because he or she had to come or to stay in Ukraine in view of a threat to his or her life, security or freedom in the country of origin, as the person fears that he or she may be subjected to the death penalty, execution of the death sentence, torture, inhuman or degrading treatment or punishment” (paragraph 1 (13) of Section 1).
6. Resolution of the Plenary Higher Administrative Court on the judicial practice of consideration of disputes concerning refugee status, removal of a foreigner or a stateless person from Ukraine, and disputes connected with a foreigner’s or stateless person’s stay in Ukraine
The resolution in force at the time (March 2010) when the authorities decided to expel the applicant in the present case had been adopted by the Plenary Higher Administrative Court on 25 June 2009. It was amended on 20 June 2011.
On 16 March 2012 a new version of the Resolution was adopted by the Plenary Court.
Both the previous and the current versions of the Resolution have provided that any decision, action or inactivity of the authorities relating to foreigners’ and stateless persons’ entry or stay, including detention, in Ukraine could be challenged before the administrative courts. The cases concerning foreigners’ or stateless persons’ liability for administrative offences have been excluded from the administrative courts’ jurisdiction.
The Plenary Court has noted that the burden of proof in the administrative cases rests with the authorities which are required to provide the courts with all the documents and material which may be used as evidence in the proceedings. The administrative courts may also use information published on the official Internet sites of national authorities and of international organisations, including the UNHCR, and also obtained from domestic or international non-governmental organisations and from the mass media.
The Plenary Court has underlined that the administrative courts must take into account the provisions of the relevant international treaties, including the European Convention on Human Rights of 1950 and the United Nations Convention Relating to the Status of Refugees of 1951. In its 2012 Resolution, it notes that Article 3 of the European Convention on Human Rights takes precedence over the provisions of Article 33 of the United Nations Convention Relating to the Status of Refugees which provide for the possibility of expulsion or return of refugees for the reason of danger to the national security.
When dealing with cases concerning forcible removal of foreigners or stateless persons who state that they fear persecution in the country of origin, the administrative courts must examine whether those persons were provided with information, in a language they understood, concerning the right to request refugee status or the status of a person in need of complementary protection in Ukraine. If necessary, the courts must ensure their access to the relevant procedure before the migration authorities. The 2012 Resolution indicates that the courts must also examine whether the persons concerned were provided with free of charge legal assistance pursuant to Sections 7, 8, 9 and 11 of the Free of Charge Legal Assistance Act of 2011. A decision refusing to grant refugee status or the status of a person in need of complementary protection may not serve as a ground for forcible expulsion of a foreigner or a stateless person. The administrative courts must examine whether there are lawful grounds for such expulsion.
C. Explanatory report to Protocol No. 7 to the Convention (ETS No. 117)
The relevant extracts from the Explanatory report to Protocol No. 7, detailing the guarantees of Article 1, provide as follows:
“...11. Paragraph 1 of this article provides first that the person concerned may be expelled only "in pursuance of a decision reached in accordance with law". No exceptions may be made to this rule. However, again, "law" refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.
12. Sub-paragraphs a, b and c of this same paragraph go on to set out three guarantees. Unlike the wording of Article 13 of the United Nations Covenant, the three guarantees have been clearly distinguished in three separate sub-paragraphs.
13.1. The first guarantee is the right of the person concerned to submit reasons against his expulsion. The conditions governing the exercise of this right are a matter for domestic legislation. By including this guarantee in a separate sub-paragraph, the intention is to indicate clearly that an alien can exercise it even before being able to have his case reviewed.
13.2. The second guarantee is the right of the person concerned to have his case reviewed. This does not necessarily require a two-stage procedure before different authorities, but only that the competent authority should review the case in the light of the reasons against expulsion submitted by the person concerned. Subject to this and to sub-paragraph c, the form which the review should take is left to domestic law. In some States, an alien has the possibility of introducing an appeal against the decision taken following the review of his case. The present article does not relate to that stage of proceedings and does not therefore require that the person concerned should be permitted to remain in the territory of the State pending the outcome of the appeal introduced against the decision taken following the review of his case.
13.3. Sub-paragraph c requires that the person concerned shall have the right to have his case presented on his behalf to the competent authority or a person or persons designated by that authority. The "competent authority" may be administrative or judicial. Moreover, the "competent authority" for the purpose of reviewing the case need not be the authority with whom the final decision on the question of expulsion rests. Thus, a procedure under which a court, which had reviewed the case in accordance with sub-paragraph b, made a recommendation of expulsion to an administrative authority with whom the final decision lay would satisfy the article. Nor would it be inconsistent with the requirements of this article or of Article 14 of the Convention for the domestic law to establish different procedures and designate different authorities for certain categories of cases, provided that the guarantees contained in the article are otherwise respected.
14. The article does not imply a right for the person concerned or his representative to be physically present when his case is considered. The whole procedure may be a written procedure. There need not be an oral hearing.
...”
COMPLAINTS
The applicant complains that his expulsion would be contrary to Article 3 of the Convention, as if removed to the Hamas-controlled Gaza Strip he would risk ill-treatment by Hamas on account of his involvement in the activities of Fatah and by the Israeli authorities on account of his Palestinian origin. He would also be exposed to sufferings and hardships caused by the humanitarian crisis in Gaza Strip, including the lack of food and medical assistance and sanitation problems.
The applicant further claims that his removal from Ukraine would be contrary to Article 8 of the Convention, as he has lived in Ukraine since 1993 and has established close personal links with this country. The applicant states that the domestic authorities, including the courts, dealing with his expulsion and asylum cases did not examine whether his removal would be justified given his personal situation and disregarded the information from the Palestinian Embassy in Ukraine that it was impossible for the applicant to return to Gaza Strip due to its actual blockade. According to the applicant, the authorities acted in bad faith, having sanctioned him for violation of migration regulations on 11 March 2010.
Relying on Article 13, the applicant alleges that the authorities did not perform independent and rigorous scrutiny of his allegations under Articles 3 and 8 of the Convention and that the domestic procedures to which he had recourse in his case did not comply with the requirements of an effective remedy within the meaning of the Convention. In particular, the applicant argued that, as the Kyiv Administrative Court ordered the immediate enforcement of its decision of 18 May 2010, the applicant’s appeal against that decision had no suspensive effect. Nor had the applicant’s cassation appeal such an effect under the domestic law. The applicant also argued that the examination of his cassation appeal lasted excessively long, given the interests at stake.
The applicant complains that the decision ordering his expulsion was contrary to Article 1 of Protocol No. 7 and that the domestic law did not provide for the procedural safeguards required by that provision. The decisions of 17 March and 18 May 2010 on his expulsion were taken in his absence and without giving him a possibility to submit any arguments in his defence. The applicant also complains that he was ordered to be removed from Ukraine despite the fact that at the time he had a valid residence permit.
QUESTIONS TO THE PARTIES
1. Would there be an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, if he were to be removed from Ukraine pursuant to the expulsion decision in his case? If so, would that interference be in accordance with the law and necessary in terms of Article 8 § 2?
2. Has the applicant been given the opportunity to raise his complaint of possible violation of Article 8 of the Convention in case of his removal from Ukraine in the course of the proceedings concerning his expulsion? Was that complaint examined by the Ukrainian authorities in accordance with the requirements of Article 13 of the Convention taken in conjunction with Article 8? Will the Higher Administrative Court, currently dealing with the applicant’s cassation appeal against the expulsion decision, examine that complaint?
3. Did the decision to expel the applicant, who claims that he was at the time an alien lawfully in the territory of Ukraine, comply with the requirements of Article 1 § 1 of Protocol No. 7? In particular, was the applicant given the opportunity to submit reasons against his expulsion in accordance with Article 1 § 1 (a) of Protocol No. 7? Has he been given the opportunity to have his case reviewed in accordance with Article 1 § 1 (b) of Protocol No. 7?
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