FIFTH SECTION
Application no. 77647/11
Abdikadir AHMED NOOR and others
against Ukraine
lodged on 19 December 2011
STATEMENT OF FACTS
The application was lodged on behalf of nine applicants by Mr O. Koval, a lawyer from the Kyiv Legal Protection Service Program implemented by the Hebrew Immigrant Aid Society (“the HIAS”) under a contract with the Office of the United Nations High Commissioner for Refugees (“the UNHCR”). The lawyer provided the authority forms completed and signed by the applicants in December 2011.
Subsequently, Mr O. Koval was replaced by Ms H. Bocheva, a lawyer practicing in Kyiv.
The applicants’ personal information and other details are set out in the appendix below.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants’ alleged persecution in their countries of origin
In 2011 the applicants fled from their home countries where they allegedly faced persecution mainly for their ethnic origin, religion, political beliefs and expression.
In particular, the first, second, third and fifth applicants allege that al-Shabaab insurgents tried to force them to fight on their side under the threat of death. The applicants refused and left the Somali Republic. The first applicant also alleges that his mother and two brothers were killed by al-Shabaab insurgents. Prior to their departure from the Somali Republic, the first and fifth applicants used to live in Afgooye.
The fourth and ninth applicants belong to the Gabooye minority clan in the Somali Republic. The forth applicant alleges that he was beaten by his classmates on that ground and had to leave the Somali Republic as no protection from such ill-treatment was available to him in that country. The ninth applicant used to live with his family in Mogadishu. He left the Somali Republic after his parents had been killed by a bomb explosion which destroyed their house.
The sixth applicant left Mogadishu fearing persecution by al-Shabaab insurgents for unspecified articles, critical of al-Shabaab, which she published at a news website.
The seventh applicant was imprisoned in the State of Eritrea on the ground of his belonging to the Protestantism. He managed to escape from the prison and left that country illegally. The seventh applicant fears that if he is returned to the State of Eritrea he will be punished for the illegal departure from that country and will be forced to serve in the national armed forces.
The eighth applicant claims to be a victim of gender-based violence in the Republic of Guinea, as she left her first husband to marry another man.
2. The applicants’ detention in Ukraine
On various dates in 2011 the applicants entered the territory of Ukraine illegally. They planned to leave Ukraine for one of the European Union member States in order to apply for asylum there.
In November 2011 the applicants were arrested by the Ukrainian border guards when the applicants were attempting to cross the Ukrainian-Slovakian and the Ukrainian-Hungarian border. They were detained in the Temporary Holding Facility (“the THF”) in Chop.
The border guards lodged with the Zakarpattya District Administrative Court separate requests for the applicants’ detention “in order to ensure the possibility of their further expulsion”.
Relying on Article 183-5 of the Code of Administrative Justice and Section 32 of the Legal Status of Foreigners and Stateless Persons Act of 1994, the court allowed the requests (see the appended table for the dates of the court decisions). It held that the applicants might “fail to leave voluntarily the territory of Ukraine”, as they had no documents allowing them to leave Ukraine and they had tried to cross its border illegally. As regards the first, third, fourth and fifth applicants, the court further noted that they had no relatives in Ukraine. In respect of the third applicant the court also noted that he had no dwelling in Ukraine. The court ordered the applicants to be detained in “the facility for temporary detention of foreigners and stateless persons who stay illegally in Ukraine” (“the FTD”) for up to twelve months.
In the court decisions the first applicant was allegedly erroneously identified as Obdikader Ahmed Mur, while the ninth applicant was allegedly erroneously identified as Abdirahman Mohamed Ahmed born on 18 May 1994. The names and dates of birth of the remaining applicants were accurately noted in the decisions.
The applicants were present at the court hearings concerning their detention. An official from the Chop Child Care Service also took part in the hearings as the applicants’ representative for the reason that the applicants claimed to be minors (pursuant to paragraph 7 of Section 29 of the Refugees and Persons in Need of Complementary or Temporary Protection Act (see below)).
According to the applicants, the representative did not meet with them prior to the hearings; nor did he discuss with them any matters relating to the case during the hearings as the representative did not speak a language they understood.
An interpreter took part in the hearings and, according to the applicants, provided interpretation from Ukrainian into English, which only the fifth applicant could understand.
According to the court records, during the hearings the first, second, third, fifth and seventh applicants acknowledged that they were staying on the territory of Ukraine illegally and that they had no documents allowing them to return to their home countries. The first and third applicants expressed the wish to remain in Ukraine.
The applicants allege that documents concerning their arrest and court proceedings have not been translated into a language they understood.
According to the applicants, in spite of repeated requests from the International Fund for Health, Well-being and Environment al Protection “Carpathian Region” (NEEKA), a non-governmental organisation assisting refugees and asylum seekers in the Zakarpattya Region under a contract with the UNHCR, the representative from the Chop Child Care Service refused to challenge on appeal the decisions concerning the applicants’ detention. The reason for the refusal was the representative’s agreement with the applicants’ age-assessment results (see below).
In November-December 2011 the applicants were transferred to the FTD in Zhuravichy and Rozduliv villages, where they are currently being detained together with adults.
In May and June 2012 the lawyers from the NEEKA and the HIAS organisations challenged on the applicants’ behalf the lawfulness of the decisions on their detention before the Lviv Administrative Court of Appeal. The lawyers requested extension of the time allowed for lodging appeals, stating that the applicants could not timely lodge them due to language barriers and lack of access to legal assistance.
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 in respect of the fourth and sixth applicants also contained complaints about the lack of access to legal assistance and about insufficient interpretation during the first instance proceedings.
According to the applicants, on 10 and 11 July 2012 the Court of Appeal found that the detention of the sixth, seventh and ninth applicants was unlawful and ordered their release. Those applicants have not received the appeal decisions yet.
There is no information about the outcome of the appeals concerning the detention of other applicants.
All the applicants remain in detention.
3. The applicants’ age assessment in Ukraine
Between 4 and 8 November 2011 the third, fifth and sixth applicants were allegedly forced to undergo an age-assessment procedure at the State Agency for Forensic Examination. The procedure included the applicants’ examination by a dentist and an X-ray examination of their hands and feet. On 14 November 2011 the agency issued certificates stating that the applicants were 18-19 years old. Similar certificates were issued in respect of the remaining six applicants, though, according to the applicants, they did not undergo such examinations.
The applicants allege that they have not been able to challenge the age assessment results as the authorities have not provided them with a representative who would officially act on their behalf.
4. The applicants’ requests for asylum in Ukraine
The applicants allege that they had no possibility to apply for asylum when they were arrested by the Ukrainian border guards. The applicants were not provided with any information concerning the asylum procedure and could not contact an interpreter or a lawyer.
During the court hearings concerning their detention in November 2011 the fifth and seventh applicants expressed the wish to apply for asylum in Ukraine, which was noted in the court records. According to the third applicant, he also informed the court that he wished to apply for asylum in Ukraine. The three applicants maintain that during the hearings they put forward the argument that they risked ill-treatment in their home countries.
The other applicants allegedly could not raise similar arguments because of the lack of legal advice and adequate interpretation at the court hearings.
On 9 November 2011 the applicants were visited in detention by several lawyers from the non-governmental organisation Caritas Ukraine, one of the UNHCR’s implementing partners in Ukraine. The applicants signed the forms in French (the eighth applicant) and in English (the other eight applicants) provided by the lawyers, according to which the applicants expressed the wish to apply for asylum in Ukraine and to be legally represented in the proceedings concerning their possible expulsion. The applicants were also provided with documents in English and in French explaining inter alia the rules governing the entry and presence on the territory of Ukraine, the asylum procedure and the conditions for receiving free legal assistance from the UNHCR’s partners in Ukraine.
The applicants allege that the FTD administration initially refused to accept and forward their applications for asylum to the migration authorities. After the applicants and several Somali nationals detained in one of the FTD announced that they would go on hunger strike on 10 January 2012, the asylum applications of the applicants were accepted by the FTD administration and forwarded to the migration authorities (for the exact dates see the appendix below). In their requests the applicants stated that they were minors. The third, fifth, six, and ninth applicants provided copies of their birth certificates.
On 27 and 30 January 2012 respectively the fourth and eighth applicants’ applications for asylum were rejected by decisions of the Chernihiv Migration Service on the ground that the applicants provided false information that they were minors.
Some time later the eighth applicant submitted to the Migration Service a copy of her birth certificate issued in French, which she had received from her relatives in the Republic of Guinea. Although the Migration Service initially refused to accept that document without a translation into Ukrainian, certified by a notary in Ukraine, eventually the Migration Service has agreed to reconsider the applicant’s asylum request. No decision has been taken yet.
On 7 February 2012 the fourth applicant lodged with the State Migration Service (the principal migration authority) a complaint against the decision of the Chernihiv Migration Service, which has not been examined yet.
As regards the asylum applications of the other applicants, the Volyn Migration Service decided to examine them on the merits, though the examination has not been completed yet.
5. The eighth applicant’s medical situation in Ukraine
On 4 November 2011, while in the THF in Chop, the eighth applicant, who was pregnant at the time, had a vaginal haemorrhage. She was transferred to a hospital where she miscarried.
On 8 November 2011 the eighth applicant was transferred back to the THF in Chop.
The eighth applicant claims to be in a state of psychological distress because of the incident on 4 November 2011. She has not been provided with any assistance in that respect.
6. The alleged “extreme material poverty” of the ninth applicant in Ukraine
Prior to his arrest by the Ukrainian border guards, between July and October 2011 the ninth applicant was temporarily sheltered by his fellow Somalis in Vinnytsya and had to look for new dwelling every other day. With the help of a lawyer from a non-governmental organisation, on 9 August 2011 the ninth applicant submitted an application to the local migration and child care authorities stating that he was an unaccompanied minor whose parents had been killed in the Somali Republic, that he had no place to live in Ukraine, and that he wished to apply for asylum. The ninth applicant requested the authorities to appoint him a representative who would help him with the application for asylum, to schedule an interview with a migration officers at which the applicant could lodge such an application, and to allow him to stay in the centre for temporary accommodation of refugees. The authorities informed the applicant that he had to undergo age assessment at the local clinic, as he did not provide identification documents.
According to the applicant, at the local clinic he was informed that the age assessment procedure was not being performed there.
Having not received any assistance from the authorities, the applicant left Vinnytsya for Chop, where he attempted to cross the Ukrainian-Slovakian border on 4 November 2011 (see above).
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 United Nations Convention Relating to the Status of Refugees, 1951
Ukraine acceded to the Convention on 10 January 2002. The relevant extracts from the Convention provide as follows:
Article 1
“For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Article 32
“1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...”
Article 33
“1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
3. The Code on Administrative Offences, 1984
According to Article 263 of the Code, a person who violated the border regulations may be detained for up to three hours with a view to drawing up an official report on such a violation. If it is necessary to establish the offender’s identity and to verify the circumstances of the offence, he or she may be detained for up to three days. A written notice must be given to the prosecutors within twenty-four hours of the arrest.
4. 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. Generally, they must attain the age of eighteen in order to exercise the procedural rights individually.
Article 56 provides that minors’ parents, guardians or official representatives act on their behalf before the administrative courts. Under the same provision a party to the proceedings may be represented before the courts by any person who has the procedural capacity in accordance with Article 48.
The persons taking part in the proceedings, who do not have sufficient command of the official language, may be assisted by an interpreter. Article 68 places an obligation on the court to ensure that an interpreter’s assistance is provided to the persons unable to pay for such services, if otherwise they are “deprived of judicial protection”.
Article 183-5 sets the particularities of the consideration of cases concerning expulsion of foreigners and stateless persons, including the authorities’ requests for foreigners’ and stateless persons’ detention in connection with their expulsion. It provides for the compulsory presence of the parties during the court hearings and for the immediate consideration of the requests for detention. The courts’ decisions in such cases may be challenged on appeal within five days of their delivery and may be further challenged before the court of cassation.
5. 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 the compulsory 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. The 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. A 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 the 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 the 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 could be subjected to torture, cruel, inhuman or degrading treatment or punishment.
6. The Legal Status of Foreigners and Stateless Persons Act, 2011 (entered into force on 25 December 2011)
Section 26 provides for the procedure of forcible return of foreigners and stateless persons to the country of origin or to a third country. In particular, 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 whose actions are violating the regulations on their legal status or are contrary to the interests of national security of Ukraine or of public order, or if it is necessary for the protection of health, rights and lawful interests of Ukrainian citizens. A 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 (it shall not exceed thirty days), and specify the procedure of appeal (the decision may be appealed to the courts) and the consequences for 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 forcible 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 may be challenged on appeal. For the purposes of enforcement of the expulsion decision, the foreigners and the stateless persons may be detained at “the 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 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 the 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 the widespread violence in the situation of an international or internal armed conflict or 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 the countries in which such circumstances may emerge. The same provision bans collective forcible expulsion of foreigners and stateless persons.
7. 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 child separated from the family is a person who is “below eighteen years of age, has entered or is entering the territory of Ukraine not being accompanied by his or her parent, grandfather or grandmother, full age brother or sister, guardian appointed according to the legislation of the country of origin, or by other full age persons who voluntarily or customarily have taken the responsibility for the child’s upbringing prior to entering Ukraine” (paragraph 1 (2) 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).
Section 5 (paragraphs 2 and 4) requires that the person, who has illegally entered the territory of Ukraine with the aim to be recognised as a refugee in that country, lodge with the Migration Service an application for refugee status or for the status of a person in need of complementary protection without delay. In such a case the person will not be held liable for the illegal entry and stay on the territory of Ukraine.
The above requirement is not applicable where applications for refugee status or for the status of a person in need of complementary protection are being lodged by the official representatives of children separated from their families (paragraph 7 of Section 5). If a child separated from his or her family, who has crossed or is crossing the Ukrainian border, expresses the wish to be recognised as a refugee or a person in need of complementary protection, such information must be immediately forwarded by the officials of the State Border Control Service to the Migration Service and to the relevant State guardianship agency (paragraph 3 of Section 5).
Pursuant to paragraph 6 of Section 5, the Migration Service may refuse to accept applications by persons who submit false identity information or whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. An appeal may be lodged with “the central executive authority responsible for migration matters” and/or with the courts within five days of the notification (Section 12).
Section 8 lays down the procedure of preliminary consideration of the applications, which must be completed within fifteen days. In particular, the Migration Service shall hold interviews with the applicants, consider the information contained in the applications and relevant documents, and take a decision on the admissibility of the applications, namely it must decide whether “documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection are to be prepared”. The Migration Service shall refuse to prepare such documents in respect of applications which are manifestly ill-founded (do not concern the circumstances specified in paragraph 1 (1) and (13) of Section 1), constitute an abuse of the right of application (the applicant submits false identity information), or are submitted by persons, whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. Within three working days a written notice of the refusal decision, indicating the reasons on which it is based and the procedure of appeal, shall be given to the applicants or to their official representatives. An appeal may be lodged with “the central executive authority responsible for migration matters” and/or with the courts within five days of the notification (Section 12). Applicants, who fail to appeal against the refusal decisions or whose appeals have been rejected, are required to leave the territory of Ukraine within the time-limit set by the authorities, provided applicants have no lawful grounds to stay in Ukraine.
The preparation of documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection is to be carried out in accordance with the procedure provided for in Section 7. That provision requires foreigners and stateless persons to submit applications for refugee status or for the status of a person in need of complementary protection to the Migration Service personally or through their official representatives. In case of illiteracy or physical disability, applicants may seek other persons’ assistance to prepare an application.
According to Section 7, the Migration Service shall explain to foreigners and stateless persons the procedure of consideration of applications and the procedure for receiving legal assistance free of charge. If necessary, it may invite them to undergo age assessment in accordance with the procedure designed by “the central executive authority responsible for health protection” (paragraph 12 of Section 7, paragraph 5 of Section 9, and paragraph 5 of Section 29).
Sections 9 and 10 provide for the procedure of consideration of applications on the merits. In particular, the Migration Service has two months, with possible extension to three months, to interview applicants, to check the relevant information, and to draw up an internal report proposing either to grant or to refuse the requested status. Once the report is ready, “the central executive authority responsible for migration matters” has a month, with possible extension to three months, to take a formal decision, which must be sent to the Migration Service within three days. The Migration Service must provide, within seven days of receipt of the decision refusing to grant refugee status or the status of a person in need of complimentary protection, a copy thereof to the applicant concerned, who has five days to challenge it before the courts. Applicants, who do not challenge the refusal decisions on appeal, must leave the territory of Ukraine within the time-limit set by the authorities, provided they have no lawful grounds to stay in Ukraine.
During both the preliminary consideration and the examination on the merits, applicants must be provided with the assistance of a lawyer “if this is necessary”. During the interviews the Migration Service must provide applicants who don’t have command of the Ukrainian or the Russian languages with an interpreter.
Applicants have the right to receive the free of charge legal assistance during the consideration of their appeals against the decisions of the Migration Service and/or “the central executive authority responsible for migration matters” (paragraph 7 of Section 12, paragraph 1 of Section 13 and paragraph 2 of Section 17).
Applications for refugee status or for the status of a person in need of complementary protection lodged by the official representatives of children separated from the families are not subjected to the procedure of preliminary consideration (paragraph 1 of Section 8). If the child’s age and maturity so allows, an interview with him or her shall be held in the presence of the official representative, a psychologist and a teacher. Otherwise, the child’s official representative is interviewed (paragraph 3 of Section 9). Paragraph 4 of Section 9 provides for the compulsory participation of a lawyer in the consideration of this type of applications.
According to Section 29, the State guardianship (including child care) agencies shall act as official representatives of children separated from their families. The agencies are required to ensure children’s admission to the relevant child care facilities or to a foster family; to take part in the proceedings concerning children’s requests for refugee status; and to assist children in the “enjoyment of their rights”.
The same provision requires the State Border Control Service to accept and subsequently transfer to the Migration Service applications for refugee status of or for the status of a person in need of complementary protection from the persons arrested for (attempted) illegal crossing of the State border.
8. The Free of Charge Legal Assistance Act, 2011
On 2 June 2011 the Verkhovna Rada adopted the Act with the aim to determine the right to the free of charge legal assistance and the procedure of its realisation.
According to the glossary of terms, provided for in Section 1 of the Act, the free of charge legal assistance is “the legal assistance which is guaranteed by the State and is to be provided fully or partly at the expense of the State Budget of Ukraine, the local authorities’ budgets or other sources”.
The Act distinguishes primary and secondary legal assistance. Primary legal assistance comprises the provision of legal information; the advising on legal matters; the preparation of applications, complaints, and other documents of legal character; and assistance in the access to secondary legal assistance and mediation. It is to be provided by the authorities directly in the framework of their communication with the recipient of the assistance or through the specialised institutions entrusted with the legal assistance function, or by private persons and organisations acting under contract with the authorities (Sections 7, 9 and 12). If the authorities note that a person needs to be provided with secondary legal assistance, they must inform him or her how to request it (Sections 10 and 11).
Secondary legal assistance is put in place to guarantee equal access to justice. It includes the defending against a criminal accusation; the representation of the recipients of legal aid before the courts, other authorities and persons; and the preparation of procedural documents (Section 13).
While the right to primary legal assistance is guaranteed to everyone within Ukraine’s jurisdiction (Section 8), secondary legal assistance may only be given to the persons listed in Section 14. The list includes those who are within Ukraine’s jurisdiction and whose monthly household income is lower than “the minimum wage fixed for the principle social and demographic groups of the population in accordance with the Minimum Wage Act”.
Secondary legal assistance is to be provided by lawyers acting under contract with specialised centres within the structure of the Ministry of Justice (Sections 21 and 22). The centres examine applications for such legal assistance and decide whether it is to be provided in each individual case (Sections 18-20).
The authorities’ refusal to provide a person with free legal assistance and other actions or inactivity in the context of this Act may be challenged before the courts (Sections 30 and 31).
According to Section 16 and the transitional provisions, the Ministry of Justice must create specialised centres for legal assistance in every oblast and in the cities of Kyiv and Sevastopol, taking into account “the needs of a particular administrative-territorial unit”, by 1 January 2013. The provisions concerning secondary legal assistance enter into force once the centres become operational.
9. The standard regulations on the facility for temporary detention of foreigners and stateless persons who stay illegally in Ukraine, enacted by the Cabinet of Ministers
The regulations were enacted by the Cabinet of Ministers on 17 July 2003 (decree no. 1110). They were subsequently amended on a number of occasions.
According to the regulations, as in force during the period from 7 September 2011 to 8 March 2012, the facilities for temporary detention of foreigners and stateless persons who stay illegally in Ukraine were subject to the control of the Ministry of Interior. The facilities were to accommodate foreigners and stateless persons who were staying illegally in Ukraine and who were to be forcibly expelled on the basis of an administrative court’s decision. Foreigners could be released from the facilities if their expulsion could not be carried out during the period fixed for that purpose. Foreigners could also be released from the facilities if there was a decision taken to prepare documents for the consideration of the question of granting them refugee status, if the decision was taken to grant them such status, or pursuant to a court’s decision.
On 8 February 2012 the new version of the regulations was enacted (decree no. 70), according to which the State Migration Service have taken control over the facilities. They are to accommodate foreigners and stateless persons who have not complied or arguably will not comply with the decision on their forcible return, or in whose respect the administrative court took a decision on forcible expulsion from Ukraine, or who entered Ukraine pursuant to an international treaty on readmission, or who don’t have lawful grounds to stay in Ukraine and who are to be forcibly removed.
Foreigners and stateless persons may be released from the facility if the authority, that previously took a decision placing them in detention, informs the administration of the facility about the impossibility to enforce the removal either before or after the twelve-month period of detention expires. Foreigners and stateless persons may also be released if they “have received refugee status or the status of a person in need of complementary protection, or if they have been legalised in Ukraine, or pursuant to the enforceable court’s decision granting their release or refusing their forcible expulsion from Ukraine”.
The new regulations also provide that foreigners may meet with human rights defenders, lawyers, representatives of diplomatic missions, international and human rights organisations; they may send and receive correspondence.
Both the previous and the current version of the regulations have provided that children separated from their families could not be detained at the facilities. Instead, they should be placed in the orphanages operated by the State Service for Minors.
10. The standard regulations on the facility for temporary detention of foreigners and stateless persons who stay illegally in Ukraine, enacted by the Ministry of Interior
On 16 October 2007 the Ministry of Interior adopted the regulations on the facilities for temporary detention of foreigners and stateless persons who stay illegally in Ukraine (decree no. 390). The regulations, which have remained in force so far, provide that foreigners must be released from the facility if they have applied for refugee status. Other grounds for their release include the preparation of documents for the consideration of the question of granting them refugee status; the decision to grant them such status; a court’s finding that they have not committed an administrative offence; their legalisation in Ukraine; and the failure to enforce their removal and to establish their identity during the period of detention.
According to the regulations, foreigners must be provided with free of charge medical assistance, including regular health check-ups by medical staff of the detention facility. Special conditions of detention may be created for pregnant foreigners or those who have psychological dysfunctions. If necessary, foreigners “may be” transferred to local health institutions to receive medical assistance.
11. The regulations on administrative detention of persons arrested by the State Border Control Service
The regulations, which were enacted by the State Border Control Service on 30 June 2004, provide inter alia that persons arrested pursuant to Article 263 of the Code on Administrative Offences shall be detained in temporary holding facilities (пункти тимчасового тримання затриманих) or in specially designed premises (спеціально обладнані приміщення) for a period of up to three days. Once that period expires arrested persons must be released from the temporary holding facilities or specially designed premises.
12. 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 when the applicants in the present case were arrested and placed in detention in November 2011 had been adopted by the Plenary Higher Administrative Court on 25 June 2009 and 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 administrative courts dealing with migration-related cases may order age assessment of the foreigners and stateless persons concerned in order to determine whether they have the procedural capacity in accordance with Article 48 of the Code of Administrative Justice. The age assessment must take into account physical, social, ethnical, cultural and other factors related to the person’s development. The Plenary Court has acknowledged the high risk of error in the assessment of age and instructed that any doubts as to the accuracy of the expert’s report should benefit the person concerned.
Foreigners and stateless persons, who do not have command of the language used in court and who do not have sufficient means to pay for the assistance of an interpreter, must be provided with such assistance free of charge.
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 the national authorities and of the international organisations, including the UNHCR, and also obtained from the 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 of 1950 the former Convention takes precedence over the provisions of Article 33 of the United Nations Convention Relating to the Status of Refugees of 1951 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 (and, according to the 2012 Resolution, detention) of foreigners or stateless persons who state that they fear persecution in the country of origin, the administrative courts must check 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 check 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 check whether there are lawful grounds for such expulsion.
The Plenary Court explained that there were two preconditions for a decision on forcible removal under Section 32 of the Legal Status of Foreigners and Stateless Persons Act of 1994: (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. In the 2012 Resolution the Plenary Court states that a request for a foreigner’s or a stateless person’s detention may not be examined before a decision on that person’s forced expulsion is taken.
COMPLAINTS
Relying on Article 3 of the Convention, the applicants complain that they have been detained in spite of their “extreme vulnerability” as unaccompanied minor immigrants seeking asylum; that their detention has been contrary to the law; that the length of their detention has been excessive; that they were not given the opportunity to apply for asylum or to have their asylum applications examined on the merits; and that they have had feelings of fear in view of their possible deportation to their countries of origin where they are at risk of persecution involving ill-treatment.
Under the same provision the eighth applicant also complains that in detention she has not been provided with psychological assistance in respect of her spontaneous abortion. The ninth applicant complains about the authorities’ inaction in his situation of “extreme material poverty”. The third, fifth and sixth applicants allege that they were forced to undergo age assessment, including X-ray examinations, which had no legal basis. They also state that the X-ray examinations were harmful to their health.
Relying on Article 13, the applicants complain that no remedies in respect of their grievances under Article 3 are available to them in Ukraine, as the authorities, on whom the applicants remain fully dependent, have not provided them with a representative who would officially act on their behalf in Ukraine. The applicants also complain that the free of charge legal assistance has not been available to them in that country.
The applicants complain under Article 5 § 1 of the Convention that their detention in Ukraine has been unlawful and arbitrary. In particular, the applicants argue that, given that they have been minors, there have been no exceptional circumstances justifying their detention; that when deciding to detain the applicants the domestic court have not given paramount consideration to the applicants’ best interests and have not explored alternative measures to detention; that the applicants were detained in the THF for more than six weeks, in spite of the fact that the facility was designed for short term detention (up to three days); and that in accordance with the regulations on the FTD enacted by the Ministry of Interior the applicants should have been released from detention after they submitted their applications for asylum. The applicants further argue that their detention serves no legitimate purpose, as there has been no practical possibility to expel undocumented persons to the Somali Republic.
Relying on Article 5 § 2 of the Convention the applicants complain that they were not informed of the reasons of their detention promptly in a language they understood. The applicants further allege that when transferred to the FTD they were not informed of the purpose or term of their detention or of a possibility to appeal against the court decisions on their detention.
The applicants finally complain under Article 5 § 4 of the Convention that the authorities have not provided them with assistance to challenge on appeal the court decisions on their detention.
QUESTIONS TO THE PARTIES
1. What was the age of the applicants when they were arrested by the Ukrainian border guards in November 2011?
2. Have the applicants been in the situation of particular vulnerability (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 251 and 263, ECHR 2011)?
3. Have the applicants complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of their complaints, the notice of which is being given to the Government? Have such remedies been available to them in theory and in practice?
4. Would the applicants face a real risk of being subjected to treatment contrary to Article 3 of the Convention if they were to be removed to the Somali Republic (all the applicants, except the seventh and eighth applicants), to the State of Eritrea (the seventh applicant) and to the Republic of Guinea (the eighth applicant)?
5. Have the applicants been given the opportunity to raise the claims under Article 3 of the Convention relating to their possible removal before the Ukrainian authorities? Have these claims been examined in accordance with the requirements of Article 13 of the Convention taken in conjunction with Article 3 (see M.S.S., cited above, § 293)? Will the Ukrainian authorities examine the applicants’ claims before deciding on their removal?
6. Has the eighth applicant been provided with adequate assistance for her health problems during detention, as required by Article 3 of the Convention?
7. Has the ninth applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaint about the authorities’ inaction in respect of his requests for accommodation and other assistance?
8. Have the applicants been deprived of their liberty in breach of Article 5 § 1 of the Convention? Did the deprivation of liberty prior to the time when the Zakarpattya District Administrative Court ordered the applicants’ detention fall within paragraph (f) of this provision?
9. Were the applicants informed promptly, in a language which they understood, of the reasons for their arrest and detention, as required by Article 5 § 2 of the Convention?
10. Have the applicants had at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention? In particular, were they provided with necessary facilities and assistance to challenge on appeal the Zakarpattya District Administrative Court’s decisions on their detention?
11. Was there an interference with the right of the third, fifth and sixth applicants to respect for their private life, within the meaning of Article 8 § 1 of the Convention, on account of their allegations that they were forced to undergo the age assessment procedure, including X-ray examination of their hands and feet? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? What was the legal basis for the application of the age assessment procedure in the applicants’ respect?
Appendix
No.
First name LAST NAME
Date of birth
Country of origin
Date of arrest
Date of the court’s decision
Date of the applicant’s transfer to the FTD
Date of introduction of a request for asylum
1.
Abdikadir Ahmed NOOR
01/03/1994
Somali Republic
02/11/2011
04/11/2011
17/11/2011
24/01/2012
2.
Ali MUhaMmed IBRAGIN
16/01/1995
Somali Republic
02/11/2011
04/11/2011
17/11/2011
24/01/2012
3.
Abukar MUMAMED ABDILAHI
05/03/1996
Somali Republic
06/11/2011
07/11/2011
17/12/2011
20/02/2012
4.
Abdiladif ALDIDILAHI
06/06/1996
Somali Republic
06/11/2011
09/11/2011
28/12/2011
18/01/2012
5.
Favsi Dahir MUHAMUD
25/05/1994
Somali Republic
06/11/2011
09/11/2011
17/12/2011
21/02/2012
6.
Aragsan Varsame ISSA
19/08/1995
Somali Republic
unspecified
09/11/2011
17/12/2011
21/02/2012
7.
Tomas BriHanE MANGUSTU
02/04/1994
State of Eritrea
04/11/2011
08/11/2011
17/12/2011
29/02/2012
8.
Oumou Hawa KANTE
22/01/1994
Republic of Guinea
unspecified
18/11/2011
28/12/2011
17/01/2012
9.
Ayanle Mohamed AHMED
05/01/1994
Somali Republic
04/11/2011
07/11/2011
17/11/2011
24/02/2012
Full & Egal Universal Law Academy