FIFTH SECTION
Application no. 12552/12
Salomon Alemu KEBE and others
against Ukraine
lodged on 2 March 2012
STATEMENT OF FACTS
The applicants are two nationals of the State of Eritrea, Mr Solomon Alemu Kebe who was born in 1984 (the first applicant) and Mr Efrem Tadese Girma who was born in 1988 (the second applicant), and a national of the Federal Democratic Republic of Ethiopia, Mr Tesfaye Welde Adane who was born in 1987 (the third applicant).
The application was lodged on their behalf by Ms L. Zhdanova, a lawyer from a non-governmental organisation “Faith, Hope, Love”, that is based in Odesa and assists refugees and asylum seekers under a contract with the Office of the United Nations High Commissioner for Refugees (“the UNHCR”). The lawyer provided authority forms completed and signed by the applicants on 2 March 2012.
A. The circumstances of the case
The facts of the case, as submitted by the applicants and partly commented on by the Government of Ukraine, may be summarised as follows.
1. The applicants’ fears of persecution in their countries of origin
The first applicant is an Orthodox Christian. When he was fifteen years old he was forcibly recruited to military service in Eritrea. He deserted after having served for two months and left for Djibouti.
The second applicant is a Protestant Christian. Initially, he left Eritrea for Ethiopia together with his family. After the outbreak of armed conflict between Ethiopia and Eritrea, the applicant’s family moved back to Eritrea, though the applicant remained in Ethiopia as he feared persecution for his religion and forcible military service in Eritrea. As he could have been expelled by the Ethiopian authorities to Eritrea, the applicant left for Djibouti in 2007.
Both applicants stayed in Djibouti illegally for several years. In that country the applicants were repeatedly arrested by the authorities allegedly in connection with the armed conflict between Djibouti and Eritrea in June 2008.
The third applicant left Ethiopia for Djibouti in 2005 for unspecified reasons. From 2008 he was employed by an Ethiopian transport company operating in Djibouti. The third applicant submits that as he was a member of “Medre[k] political party” he was dismissed by the employer after that party lost 2010 Ethiopian election to “Ehadeg party”. The third applicant’s identification card issued by the Ethiopian authorities was retained by the former employer and thus the third applicant remained illegally in Djibouti. The third applicant was under the risk of possible removal by the Djiboutian authorities to his country of origin, Ethiopia, where he would be persecuted “as a traitor of the Ehadeg political regime”.
2. The applicants’ departure from Djibouti
On 18 January 2012, with the intention to seek asylum in any country other than Djibouti or their countries of origin, the applicants covertly boarded on a commercial vessel flying the flag of the Republic of Malta. The vessel was leaving the port of Djibouti and heading to Tuzla, Turkey.
The next day the applicants were discovered by the vessel crew. The vessel’s owner and insurer were informed accordingly.
When the vessel was passing through the Suez Canal, the insurer tried to arrange with the Egyptian authorities that the applicants could disembark in Egypt, but the authorities did not allow that to happen.
Upon the vessel’s arrival in Tuzla on 3 February 2012 the Turkish authorities and a representative of the UNHCR office in Turkey met with the applicants on board the vessel. The applicants were not allowed to disembark. The applicants’ allegations of persecution in their home countries written in Amharic and Tigre languages were passed by the vessel’s insurer to the representative of the UNHCR office in Turkey.
On 21 February 2012 the vessel left Tuzla and on 24 February 2012 anchored in Mykolayiv port in Ukraine.
3. Events in Ukraine
On 25 February 2012 Ukrainian border guards embarked the vessel and met with the applicants. According to the information provided by the Government, the applicants did not submit any requests to the border guards.
Later on that day, Ms L. Zhdanova, who received information about the applicants from the UNHCR office in Turkey and who later started representing the applicants before the Court, came to see the applicants. She was allowed to discuss the situation with the applicants and to explain to them the asylum procedures in Ukraine. The discussion was in English in the presence of three border guards and two security officers of the port. As only the first applicant could speak English, he interpreted the discussion into Amharic, which two other applicants could understand.
According to the applicants’ lawyer, during the discussion they expressed the wish to seek asylum in Ukraine and started filling in asylum applications with the help of one of the border guards who had knowledge of English. That border guard was an official interpreter at the border control service. However, some time later the border guards stated that they could not accept asylum applications from the applicants, as the applicants were on a vessel flying the flag of a foreign State. Such applications had to be submitted to the vessel’s captain. On the same ground the border guards refused to allow the applicants to disembark. The border guards asked the lawyer to leave the vessel. The lawyer claims that she was not given sufficient time and interpretation facilities to provide assistance to the applicants in respect of their asylum claims.
According to the Government, during that meeting the applicants did not submit applications for asylum. According to the reports of the border guards present at that meeting, it lasted for five hours and the applicants stated that they needed time to decide whether they wished to request asylum in Ukraine. The lawyer left the vessel without raising any complaints.
On 28 February 2012 the applicants, allegedly having been misled by the vessel’s captain who was acting on the instructions of the Ukrainian border guards, signed type-written statements in English, according to which they had boarded on the vessel with the aim to get to Sweden “in search of better living conditions” and that they did not “need the status of refugee, addition[nal] [or] temporary protection in Ukraine”. According to the documents submitted by the applicants’ lawyer, the captain confirmed that the statements had been prepared and brought on board by the Ukrainian border guards.
On 2 March 2012 the applicants’ lawyer lodged with the Court a request for interim measures under Rule 39 of the Rules of Court. The lawyer stated that the applicants could be removed to Saudi Arabia, to which the vessel was scheduled to depart on 3 March 2012, and then forcibly returned to their countries of origin where they would be subjected to ill-treatment. The lawyer argued that in Saudi Arabia asylum seekers were granted no form of protection and were exposed to the risk of being repatriated. She essentially requested the Court to indicate to the Government of Ukraine that the applicants should be allowed to leave the vessel and should be granted access to a lawyer and to the asylum procedure.
On the same day the request was granted.
On 3 March 2012 the applicants were allowed to leave the vessel and lodged asylum applications with the migration authorities.
On 16 March 2012 the applicants were questioned by the migration authorities concerning their asylum applications. According to the applicants’ lawyer, during the questioning no adequate translation or explanation of the relevant regulations was provided to the applicants. Nor were the applicants provided with legal assistance.
The examination of the asylum applications has not been completed so far.
The applicants are currently staying in the Temporary Refugee Centre in Odessa.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they were exposed to the risk of ill-treatment in their countries of origin and in Saudi Arabia on account of the refusal of the Ukrainian authorities to allow them to disembark in Ukraine, to accept and examine their asylum claims, and to prevent their possible removal to Saudi Arabia.
Relying on Article 13 of the Convention, the applicants complain that no effective remedies in respect of their grievances under Article 3 of the Convention have been available to them in Ukraine. In particular, they argue that in the situation where the Ukrainian authorities refused to allow the applicants to disembark and to accept their asylum applications, they could not make use of any domestic procedure to challenge the actions of the border guards and to have the claims of risk of ill-treatment examined. The applicants also argue that domestic law does not provide for a procedure capable of preventing or suspending, on account of their allegations of risk of ill-treatment, the applicants’ removal from Ukraine. They further complain that the authorities have not provided them with legal assistance, interpretation and explanation concerning the asylum procedures in Ukraine.
QUESTIONs TO THE PARTIES
1. Were the applicants within the jurisdiction of Ukraine from 24 February 2012 onwards, while they were on board the vessel that had taken them to Ukraine?
2. Did the Ukrainian authorities refuse to allow the applicants to disembark in Ukraine?
3. 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 Saudi Arabia and/or to the State of Eritrea (the first and second applicants) and the Federal Democratic Republic of Ethiopia (the third applicant)?
4. Have the applicants been given the opportunity to raise their claims under Article 3 of the Convention 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. v. Belgium and Greece [GC], no. 30696/09, §§ 286-293, ECHR 2011)? Will the Ukrainian authorities examine the applicants’ claims before deciding on the applicants’ stay in Ukraine?
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