FIFTH SECTION
Application no. 18603/12
Oksana Aleksandrovna MALEVANAYA
and Danat Medetovich SADYRKULOV
against Ukraine
lodged on 29 March 2012
STATEMENT OF FACTS
The applicants, Ms Oksana Aleksandrovna Malevanaya (the first applicant) and her son, Mr Danat Medetovich Sadyrkulov (the second applicant), are Kyrgyz nationals, who were born in 1968 and 2007 respectively. They currently live in Tbilisi, Georgia, and are represented before the Court by Mr A. Koval, a lawyer working for 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”).
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Events in the Kyrgyz Republic
The first applicant is an ethnic Ukrainian. She was born in Frunze (currently Bishkek), the capital of the Kirghiz Soviet Socialist Republic (currently the Kyrgyz Republic). She was married to Mr Medet Sadyrkulov with whom she had a daughter and a son, the second applicant. In March 2009 Mr Medet Sadyrkulov was allegedly murdered when he decided to join the opposition to the government led by the then President Kurmanbek Bakiyev.
The first applicant was a journalist and a prominent political figure in the Kyrgyz Republic (Kyrgyzstan). She used to hold managing posts at several television companies between 1992 and 2000 and was a member of the Parliament between 2000 and 2009. In 2009 she was appointed to the post of the Head of the Kyrgyz Presidential Administration. She was mainly responsible for the President’s public relations and communication with media.
In the course of the civil unrest which broke out in Talas on 6 April 2010 and rapidly spread to other cities of Kyrgyzstan a number of people were injured and died as a result of clashes with the police and security forces. In particular, over 70 people were killed and over 300 were injured on 7 April 2010 in Bishkek where the government forces opened fire at protesters. On 15 April 2010 the then President Bakiyev flew to neighbouring Kazakhstan fearing reprisal. He later withdrew from the post of the President.
An interim government was set up under the leadership of former Foreign Minister Roza Otunbayeva. The interim government launched criminal investigations into the events on 7 April 2010. The first applicant was questioned concerning those events. On 3 May 2010 she was arrested on suspicion of abuse of power, in particular for failing to prevent the use of force against the protesters in Bishkek on 7 April 2010. She was detained in a single confinement cell at the investigative detention centre in Bishkek pursuant to a decision of a local court. On 17 May 2010 she was placed under house arrest.
In October 2010 the first applicant along with over twenty other former public officials were charged with several counts of aggravated murder and abuse of power in relation to the events on 7 April 2010 in Bishkek.
The trial hearings were held in a hall at the Palace of Sport in Bishkek and were attended by a large number of people who threatened the first applicant, her co-defendants and their lawyers and asked for their execution. During one of the hearings in November 2010 some of the first applicant’s co-defendants were injured by the crowd who managed to penetrate into the stage where the trial was held. As a result, the defence lawyers refused to take part in the proceedings.
2. The applicants’ departure for the Republic of Kazakhstan
In November 2010 the first applicant, fearing that she would be arrested and subjected to ill-treatment, covertly left Kyrgyzstan for the Republic of Kazakhstan (Kazakhstan). She took the second applicant and her father, Mr Malevanyy, who is ethnically Ukrainian, with her. The first applicant’s daughter stayed in Kyrgyzstan.
Until March 2012 the applicants and Mr Malevanyy lived in a rented apartment in Almaty. In order not to disclose their presence the first applicant did not leave the apartment except for visits to the UNHCR office in that city. During those visits the first applicant was advised by the UNHCR staff to apply for asylum in Kazakhstan. However, she was subsequently told to wait with her asylum application because the UNHCR could not obtain guarantees of non-refoulement from the Kazakh authorities. The first applicant also learned that the Kyrgyz authorities knew about her presence in Kazakhstan and had requested her extradition. Fearing possible removal to Kyrgyzstan, the first applicant decided to try to seek asylum in another country.
With the assistance of a friend in Ukraine, in September-December 2011 the first applicant submitted letters to the Ukrainian authorities, including the President of Ukraine and the Ombudsman, and the UNHCR office in Kyiv asking for protection because of the danger to her life and liberty in Kyrgyzstan. In the meantime, the first applicant tried to arrange her travel to Kyiv, for which she unofficially contacted a Kazakh security agent.
In October 2011 the first applicant learned from her sources in the Kazakh and Ukrainian security services that she would not be allowed to leave Kazakhstan or to enter Ukraine.
In December 2001 she was informed by her contact in the Ukrainian Government that the Kazakh authorities agreed that she and her family could leave Kazakhstan and that “the Ukrainian intelligence service would grant them leave to enter Ukraine”. The first applicant was also advised to have in her possession documents entitling her to cross State borders when entering Ukraine.
As the applicants did not have their Kyrgyz passports with them, the first applicant decided to obtain false identity documents. Thus, in March 2012 the first applicant obtained a false passport with her photograph in the name of Darya Podolskaya and the second applicant received a false birth certificate with his photograph in the name of Danat Podolskiy. Subsequently, the first applicant informed the Ukrainian State Migration Service (“the UMS”) that she was prepared to travel to Ukraine. She received an electronic message (“e-mail”) from a migration official confirming that representatives of the UMS and the UNHCR office in Kyiv would meet her immediately upon arrival in Boryspil Airport in Ukraine.
On 28 March 2012 the first applicant bought airplane tickets for an Almaty – Kyiv flight on 29 March 2012 for herself and the second applicant, using false identity information (see above), and for her father, using his original passport. She informed her contact at the UMS about her flight by an e-mail and by a mobile phone text message (“sms”).
On 29 March 2012 the applicants and Mr Malevany boarded the airplane in Almaty and at about 10.15 a.m. (here and below Kyiv time is indicated) on the same day the airplane landed in Boryspil Airport. The applicants had asylum application and accompanying documents prepared in advance. While on the airplane the first applicant sent an sms to her contact at the UMS informing of her arrival.
3. Events in Ukraine
When leaving the airplane the applicants and Mr Malevanyy were met by the Ukrainian border guards who transmitted the personal details in the first applicant’s false passport, in particular the name and date of birth, via a portable radio transmitter. The applicants and Mr Malevanyy were taken to the Boryspil Airport’s transit zone, where the first applicant informed the border guards that she used forged identity documents for herself and the second applicant and that Mr Malevanyy was her father. The first applicant stated that her true name was Oksana Malevanaya, that she and her family wished to apply for asylum in Ukraine, and that the UMS was aware of her arrival and her need for protection.
The border guards seized the applicants’ documents, refused to deal with the applicants’ asylum requests and took the applicants to one of the offices at the Airport.
The border guards allegedly attempted to seize the first applicant’s mobile phone, but the first applicant kept it and managed to make a call to her contact at the UMS informing that she was detained at the Boryspil Airport’s transit zone and that she wished to apply for asylum in Ukraine. After that call she could not make any calls from her phone, as she had used up the pre-charged balance on the subscriber identity module (“SIM card”) which was issued by a Kazakh mobile operator. The first applicant was not allowed to use border guards’ phones to make calls to the UNHCR or the UMS.
Some time later the border guards’ shift supervisor entered the office and stated that the second applicant did not have appropriate documents to cross the Ukrainian border; he invited the first applicant to sign a form enabling her to travel back to Kazakhstan. The first applicant told the officer that she was Oksana Malevanaya and that she had come to Ukraine to seek asylum. She tried to give him her asylum application together with accompanying documents. The officer refused to take the application or documents, stating that the first applicant was not allowed to make such an application in Ukraine as she had not crossed its border and that such an application should have been submitted to the UMS.
Concerned that Mr Malevanyy would stay alone without any support in Ukraine, the first applicant gave 1,000 United State dollars (USD) to an unspecified border guard, asking him to pass the money to her father. The latter eventually received only USD 500. The first applicant believes that the remaining sum was stolen by the border guards. The first applicant also asked the border guards to pass special drugs which her father allegedly needed for his health problems (in her submissions before the Court the first applicant refers to “ulcer”, without giving further details); the border guards refused.
While the applicants were moved several times to different offices mainly within the Airport’s transit zone, they remained under the permanent surveillance of border guards and were not allowed to leave the offices. Drinking water and sandwiches were provided to the applicants.
At about 4.00 p.m. the first applicant was informed that there was a meeting taking place in the Airport premises, at which representatives of the State Security Service, the State Border Control Service and the Ministry of Interior of Ukraine were discussing the applicants’ situation.
A senior border guard and a security officer, who came to meet the applicants later during the day, tried to make the first applicant agree to leave Ukraine for any other country she would choose. They threatened to send her back to Kyrgyzstan or to transfer her under control of the Kyrgyz Consul who came to the Airport premises. They noted that the first applicant was wanted by the Kyrgyz authorities for serious crimes. The first applicant refused insisting that she would like to receive asylum in Ukraine.
At about 7.00 p.m. the senior border guard and the security officer told the first applicant that she and the second applicant would be removed to Tbilisi. The first applicant was given an official decision refusing leave to enter to the second applicant, while referring to him as to Mr Danat Podolskiy, on the ground that he did not have a passport, which was required by the relevant intergovernmental treaty between Ukraine and Kyrgyzstan. The decision provided that it was to be enforced immediately. While it could be appealed to the chief of the border guards’ unit at the Boryspil Airport, the appeal procedure did not have suspensive effect.
At about 8.30 p.m. the applicants were taken to an airplane. Accompanied by two people in plain clothes whom the first applicant believed to be Ukrainian security officers or border guards, the applicants embarked the airplane. Mr Malevany was also taken on board the same airplane. He brought a SIM card issued by a Ukrainian mobile operator, which the first applicant inserted in her phone.
While on board, the first applicant received a mobile phone call from a representative of the UNHCR office in Kyiv who told her to leave the airplane because the Court had decided to apply Rule 39 of the Rules of Court in her case (see below). The applicants could not leave the airplane as one of the accompanying people was standing next to their seats, while a border guard was standing in the airplane’s exist door. Some time later the first applicant received a mobile phone call from someone from the Ministry of Justice of Ukraine who asked her to pass the phone to the airplane’s captain. A flight attendant brought the applicant’s phone to the cockpit. When the flight attendant was coming back with the phone, the first applicant saw a border guard leaving the cockpit.
At 9.17 p.m. (8.17 p.m. Strasbourg time) the airplane took off. It landed in Tbilisi Airport, where the applicants were met by the Georgian migration authorities and were allowed to lodge asylum applications.
4. Events in Georgia
On an unspecified date the Kyrgyz authorities requested the Georgian authorities to extradite the first applicant to Kyrgyzstan. So far, there has been no decision taken on the request.
On 24 May 2012 the Georgian migration service rejected the applicants’ asylum applications. The applicants appealed to the courts, before which the matter is still pending.
5. Requests aimed at preventing the applicants’ removal from Ukraine
On 29 March 2012 representatives of the UNHCR office in Kyiv informed the Ukrainian Border Control Service, Migration Service and Ombudsman that the first applicant arrived in Ukraine, that she was detained in the Borsypil Airport’s transit zone and that she wished to apply for asylum. Relying on the Country Agreement between the UNHCR and the Government of Ukraine of 23 September 1996, the UNHCR representatives requested the State Border Control Service to allow them to meet with the first applicant as soon as practical. The first applicant’s real identity information was referred to in the communications with the authorities.
On the same day the Ombudsman also contacted the State Border Control Service requesting access to the first applicant. There is no information if a reply was given to that request.
At about 6.00 p.m. on the same day representatives from the UNHCR office in Kyiv and from the office of the Ombudsman, along with a lawyer from the HIAS, went to the Borspil Airport where they met with border guards and asked them to grant them access to the transit zone in order that they could meet with the first applicant. Border guards confirmed that the first applicant was detained in the transit zone, but refused to allow the representatives to meet with her without permission of the border guards’ superior. Eventually, no such permission was given. The representatives sought the assistance of the General Prosecutor and the State Security Service as regards their request, but to no avail.
In the meantime the applicants’ lawyer lodged with the Court a request under Rule 39 of the Rules of Court seeking to prevent the applicants’ expulsion from Ukraine.
The acting President of the Court’s Fifth Section granted the request on the same day. In particular, the acting President of the Fifth Section decided to indicate to the Government of Ukraine to stop the expulsion of the applicants until further notice. The Government were also invited to submit information on the assessment made of the potential risk to which the first applicant could be exposed in Kyrgyzstan if expelled.
At about 7.05 (6.05 p.m. Strasbourg time) on 29 March 2012 the Government Agent before the Court was informed of the decision under Rule 39 by phone. At about 7.45 p.m. (6.45 p.m. Strasbourg time) a letter informing of that decision was sent to the Government by fax.
On 2 April 2012 the Government submitted a copy of a letter from the Head of the State Border Control Service dated 30 March 2012. The relevant extracts of the letter read as follows:
“... [A] Kyrgyz national, Mr Danat Podolskiy ... who arrived in Boryspil Airport on 29 March 2012 and who was accompanied by his mother, Ms Darya Podolska ... was not allowed to enter the territory of Ukraine as he did not have documents entitling him to cross the Ukrainian border...
Ms Darya Podolska, a Kyrgyz national, was informed that she could either enter the territory of Ukraine alone or return together with her son to the [Airport of] departure of the airplane [by which they had travelled to Ukraine]. Having received explanations [from the border guards], after some period of time Ms Darya Podolska voluntarily expressed the wish to fly to Tbilisi.
Ms Darya Podolska, a Kyrgyz national, did not address the border guards with any claims of political persecution in Kyrgyzstan or with applications for refugee status in Ukraine. [W]hen asked about her possible relation to Ms Oksana Malyovana, a Kyrgyz national, [Ms Darya Podolska] denied any such relation on several occasions.
Before the departure Ms Darya Podolska and her son remained in the Boryspil Airport’s transit zone and were provided with all the necessary facilities, including hot food. They were also provided with assistance to obtain airplane tickets.
Therefore, the right of Ms Darya Podolska, a Kyrgyz national, to freedom of movement was not restricted by the Ukrainian border guards.
As regards information concerning Ms Oksana Malyovana, the State Border Control Service of Ukraine is complying with the instructions of the State Security Service of Ukraine, according to which the entry to Ukraine is prohibited to Ms Oksana Oleksiivna Malyovana, a Kyrgyz national who was born on 16 May 1968. There have been no registered instances where that person was not allowed to cross the Ukrainian border.
The State Border Control Service of Ukraine did not receive any requests from the State Migration Service to meet with any of the passengers on the [Almaty-Kyiv] flight.
None of the passengers on that flight was expelled (returned) to Kazakhstan or Kyrgyzstan.”
6. The first applicant’s complaints to the Ukrainian authorities
In May 2012 the first applicant submitted complaints to the General Prosecutor Office and the State Security Service of Ukraine, alleging that the Ukrainian border guards had abused the office in her case. She has not received a reply to her complaints.
B. Relevant domestic law
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.”
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 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. 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.
Under Article 117 the court may, of its own motion or upon a request by the claimant, apply interim measures to secure the claim if (i) there exists evident danger of harm to the claimant’s rights, freedoms or interests before a court decision is adopted in the case; (ii) without the application of interim measures the protection of the rights, freedoms or interests becomes impossible or their restoration becomes costly and burdensome; or (iii) illegal features of the contested decision or action are evident. In particular, the court may issue a ruling suspending the contested decision or prohibiting the public authority to take certain action. The ruling shall be sent immediately to the authority concerned and shall be complied with.
5. The State Border Control Act, 2009 (as worded at the material time)
Section 8 (paragraph 1) sets out the conditions for granting foreigners and stateless persons leave to cross the border of Ukraine, which among other circumstances, include the traveller’s possession of a valid passport and the absence of an official ban on his or her entry to Ukraine. Foreigners or stateless persons who do not comply with any of those conditions shall be refused leave to enter Ukraine in accordance with the procedure set out in Section 14 (see below). Noncompliance with the conditions shall not hinder the consideration of a question of granting the foreigner or stateless person concerned asylum or refugee status in Ukraine. Foreigners or stateless persons not complying with the above conditions may be granted leave to enter Ukraine by the Head of the State Border Control Service (i) for humanitarian reasons, (ii) in order to ensure the protection of national interests or (iii) in connection with the fulfilment of Ukraine’s international undertakings (paragraph 2 of Section 8).
Pursuant to Section 14, a decision refusing leave to enter Ukraine shall be issued by an official of the Border Control Service and shall contain reasons. A copy must be given to the foreigner or stateless person concerned. The decision becomes enforceable immediately and may be appealed to a higher official of the Border Control Service or to a court. Lodging an appeal against the decision does not suspend it. Under the decision, the border guards shall ensure that the foreigner or stateless person concerned do not cross the Ukrainian border. If the foreigner or stateless person came to Ukraine with the assistance of a transport operator, the border guards shall order the operator to remove the foreigner or stateless person to the country of departure or to the country that issued them passports, or to find another way of removing the persons concerned from the territory of Ukraine.
6. The Legal Status of Foreigners and Stateless Persons Act, 2011
Under Section 9 foreigners or stateless persons shall enter Ukraine on the basis of a passport, as required by the Act or Ukraine’s international treaty, and a duly obtained visa, if otherwise is not provided by the legislation or Ukraine’s international treaties. This rule does not apply to foreigners or stateless persons who cross the Ukrainian border with the aim of receiving asylum, refugee status or the status of a person in need of complementary protection.
Sections 13 and 14 set out the procedure and reasons to ban a foreigner’s or stateless person’s entry to Ukraine. The reasons include the protection of national security, public order and citizens’ health and rights; an application for leave to enter with false personal information or with forged documents; and violation of border control regulations. Entry bans may be issued by “the central executive authority ensuring the implementation of the State policy in the sphere of migration”, the State Security Service or the State Border Control Service. The foreigner or stateless person concerned shall not be allowed to cross the border and shall be returned, within the shortest possible time, to the country of departure or to the country that issued the passport. If the foreigner’s or stateless person’s immediate return is not possible, they shall remain within the border control checkpoint before their return.
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 a 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).
Sections 5 (paragraph 2) and 29 (paragraph 1) require officials of the State Border Control Service to transfer, within twenty-four hours, to the representatives of the Migration Service people who cross or attempt to cross illegally the Ukrainian border and make an application to be recognised as a refugee or as a person in need of complementary protection in Ukraine. Applications for refugee status should be also transferred to the Migration Service. Before the transfer applicants should give the border guards reasons for illegal crossing of the border and, if relevant, for travelling without identity documents or using false documents. If necessary, applicants must be provided with the assistance of an interpreter.
Those who have illegally crossed the Ukrainian border and entered the territory of Ukraine with the aim to be recognised as a refugee or as a person in need of complementary protection in that country, must lodge such an application with the Migration Service. In such a case they will not be held liable for the illegal crossing of the border and/or illegal stay on the territory of Ukraine (paragraph 4 of Section 5).
Sections 8-13 provide for the procedures in the framework of which applications for refugee status are to be examined by the Migration Service as to their admissibility (preliminary consideration) and on the merits. Those procedures must be attended by a number of guarantees, including the right to free legal assistance and interpretation. The regulations require the Migration Service to explain the procedures to applicants, to hold interviews with them and to consider the information contained in applications and relevant documents. The regulations also provide for the possibility of judicial review of any decision taken in the course of those procedures.
8. The regulations on compliance of the State Border Control Service with the instructions issued by the law-enforcement and intelligence authorities concerning the people crossing the border of Ukraine
The regulations, which were enacted by the Cabinet of Ministers on 22 January 2001, provide inter alia that the State Security Service may instruct the State Border Control Service not to allow a foreigner or stateless person to enter Ukraine. The State Border Control may not enforce instructions if their enforcement may lead to the violation of the legislation and human rights.
When applying restrictions on the entry to Ukraine, officials of the State Border Control Service shall provide to the people concerned reasons for their application and explain the procedure of appeal. Upon a request, such information shall be provided in writing.
C. The Country Reports on Human Rights Practices of the United States Department of State for 2010
In its Country Reports on Human Rights Practices for 2010, released on 8 April 2011, the United States Department of State noted with respect to Kyrgyzstan:
“...
On November 17, the trial of 28 persons accused of complicity in the shooting deaths of protestors on April 7 opened in a Bishkek sports palace. Several persons were tried in absentia, including former president Bakiyev, his brother Janysh Bakiyev, the former head of the Presidential Guard Service, and former prime minister Daniyar Usenov. Other defendants included Oksana Malevanaya, the former head of the Presidential Secretariat, and several special GKNB operations officers. Human rights activists claimed that the charges against the defendants were arbitrary and that they were not allowed to see all of the evidence against them, as is required by law. During the first session of the trial, members of the audience surged onto the stage, threatening defendants and their attorneys, who subsequently refused to participate in the trial unless the government ensured their security. At year’s end, following the explosion of a bomb outside the trial site, the trial was on hold while authorities looked for a more secure venue.
Prisoners arrested in connection with political activity received the same protections as other prisoners.
...
On September 15, a Jalalabad court sentenced human rights activist Azimjon Askarov to life imprisonment, following his arrest on June 13 for the alleged killing of a police officer and inciting ethnic hatred. Four other codefendants received life sentences, two received 20-year sentences, and one received a nine-year sentence. On November 10, an appeals court upheld the sentences. Human rights organizations reported that Askarov was tortured while in custody and that trial sessions were marked by threats and abuse against defendants and assaults against their attorneys. At year’s end authorities had moved Askarov to a prison hospital in Bishkek, and the Supreme Court had agreed to hear an appeal of the case.
...”
D. Report of the Independent International Commission of Inquiry into the Events in Southern Kyrgyzstan in June 2010
The International Commission (“the KIC”) was formed, at the Kyrgyz Government’s request, in the aftermath of the violent clashes between two main ethnic groups in Kyrgyzstan – the Kyrgyz and Uzbeks – which had taken place in southern Kyrgyzstan in June 2010 and which had claimed lives of aver 400 people and had left some 300,000 people internally displaced. The KIC was composed of seven members and was chaired by Dr K. Kiljunen, a Special Representative of the OSCE Parliamentary Assembly for Central Asia. The principle tasks of the KIC were to investigate and to report on the events.
In May 2011 the KIC published a report, in which it was inter alia noted:
“...
8. In addition to the documented international and domestic criminal acts, the KIC has found that there have been and still are serious violations of international human rights law committed by the State in the aftermath of the events. There is a consistent and reliable body of material which tends to show that acts of torture were committed in detention centres by the authorities of Kyrgyzstan in the aftermath of the June events. Of particular concern to the KIC is that such acts of torture are ongoing and that the response of the authorities to allegations of torture has been grossly inadequate.
9. Criminal investigations and trials which have resulted from the June events have been marked by breaches of the ICCPR fair trial rights. Large scale sweep operations conducted in Uzbek mahallas on 21 to 23 June and the smaller scale search operations which then followed have involved ill-treatment and arbitrary arrest and detention. There has been selective prosecution targeting the ethnic Uzbek minority. Defence lawyers representing ethnic Uzbek defendants have been subject to improper interference and intimidation.
...
295. [Kyrgyz] authorities have also failed to prevent the public from verbally abusing both lawyers and defendants. In one trial the public shouted racial insults at a lawyer speaking in Russian, namely “speak Kyrgyz, sart”. In another case a defendant, whose murder charges were remitted for further investigation due to the absence of a corpse, was subject to public chanting of the word “killers”. Further, relatives and witnesses of defendants have been threatened and sometimes prevented from entering court rooms, sometimes by organised groups of Kyrgyz women. The failure of a trial court to control the hostile atmosphere and pressure created by the public in a court room, if it impacts upon the proper presentation of a defence, may well in and of itself amount to a violation of the right to a fair trial.
...”
COMPLAINTS
The first applicant submits that she and her son have been in an extremely vulnerable situation as asylum seekers fearing ill-treatment in Kyrgyzstan. She claims to be a victim of political persecution in Kyrgyzstan who risks ill-treatment, arbitrary detention and unfair trial if she is removed to that country. Because of her ethnic origin she would not have protection in Kyrgyzstan. The first applicant refers to the report of the Independent International Commission of Inquiry into the Events in Southern Kyrgyzstan in June 2010 in so far as it concerns the acts of torture and arbitrary prosecution targeting representatives of the Uzbek minority.
To describe her and her son’s vulnerable situation the first applicant also refers to the alleged murder of her husband, to the alleged ill-treatment and biased trial of her co-defendants and of Mr Azimjan Askarov in Kyrgyzstan, to the threats of the Ukrainian border guards to remove the applicants to that country, to the situation of uncertainty concerning the applicants’ asylum requests in Georgia. The first applicant states that she is an unaccompanied woman with a four years old child and that she is concerned about the safety and security of her family.
The first applicant complains about a violation of Article 3 of the Convention in that she was threatened by the Ukrainian border guards that she would be removed to Kyrgyzstan or otherwise transferred under the control of the Kyrgyz authorities. In the first applicant’s vulnerable situation the threats amounted to degrading treatment.
The first applicant also complains that her expulsion to Georgia without consideration of the risk of ill-treatment, arbitrary arrest and unfair trial she was facing in Kyrgyzstan and in the absence of any guarantees against arbitrary removal to that country from the Georgian authorities was contrary to Article 3 of the Convention. She argues that there has been a real risk that the applicants can be “left unprotected” in Georgia and removed to Kyrgyzstan where they would face “real harm”.
Relying on Article 13 taken in conjunction with Article 3 of the Convention, the first applicant complains on her own behalf and on behalf of the second applicant that in the situation where the Ukrainian authorities refused to accept the applicants’ asylum applications, detained them in the airport’s transit zone and did not allow them to meet with a lawyer or a representative from the UNHCR, they could not make use of any domestic procedure to challenge the actions of border guards and to have the claims of risk of ill-treatment in Kyrgyzstan examined. The first applicant further refers to the fact that the authorities did not issue an official decision refusing her leave to enter the Ukrainian territory. Although such a decision was issued in respect of the second applicant, there was no practical possibility to challenge it, as it was immediately enforced. As the decision contained the second applicant’s false identity information and the applicants had no real identity documents with them, the first applicant could not lodge an appeal on the second applicant’s behalf. Even if the applicants could have lodged, either with the State Border Control Service or the courts, an appeal against the decision refusing entry into Ukraine, under the domestic law this would not have suspended their removal from Ukraine. The first applicant also alleges that domestic law does not provide for an urgent procedure of examination of such appeals by the courts. As to possible appeal to the State Border Control Service, she had no trust that it would have been considered impartially, as the agents of the service were involved in the making of the decision to refuse the applicants leave to enter Ukraine.
The applicants complain under Article 5 § 1 of the Convention that their detention by the Ukrainian border guards on 29 March 2012 was unlawful and arbitrary. In particular, there was no decision authorising their detention, their detention was contrary to the domestic law and did not serve any legitimate purpose.
Without relying on any particular provision of the Convention, the applicants complain that the second applicant’s detention for eleven hours in a locked room with no appropriate food was unacceptable.
Relying on Article 5 § 2 of the Convention the applicants complain that they were not informed of the reasons of their detention. In particular, the applicants allege that the authorities gave them contradictory information concerning their situation – according to some border guards the applicants were not allowed to enter Ukraine as the second applicant did not have the required documents, while according to other border guards the applicants could not enter Ukraine as the first applicant was wanted by the Kyrgyz authorities.
The applicants complain under Article 5 § 4 of the Convention that because of the absence of any decision on their detention they could not challenge its lawfulness.
The applicants finally complain about a violation of Article 34 of the Convention on account of Ukraine’s failure to comply with the interim measures indicated by the Court in the present case.
QUESTIONS TO THE PARTIES
1. Was the first applicant compelled to leave Ukraine?
If so, did this situation give rise to a breach of Article 3 of the Convention in particular having regard to the first applicant’s allegations of risk of treatment contrary to that provision in the Kyrgyz Republic (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 359-360, ECHR 2011)?
2. Was the first applicant given the opportunity to raise the above allegations of risk of ill-treatment before she left Ukraine for Georgia? Were those allegations examined by the Ukrainian authorities in accordance with the requirements of Article 13 of the Convention taken in conjunction with Article 3 (see M.S.S., cited above, §§ 286-293)?
3. Were the applicants deprived of their liberty within the meaning of Article 5 § 1 of the Convention while in Ukraine?
(a) If so, what was the purpose and legal basis for the applicants’ deprivation of liberty? Was it in compliance with Article 5 § 1 of the Convention?
(b) Were the applicants informed of the reasons for their deprivation of liberty, as required by Article 5 § 2 of the Convention?
(c) Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention?
4. Did the Ukrainian authorities comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, as required by Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 102-129, ECHR 2005‑I)?
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