Communicated on 20 September 2016
FIFTH SECTION
Application no. 42779/12
Mustafa NUR AHMED against Ukraine
and 5 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants arrested on 23 December 2011 are referred to collectively as the “December Group” and the applicants arrested on 30 January 2012 are referred to collectively as the “January Group”.
The applicants of the December and January Groups lodged their applications on 10 July and 17 August 2012 respectively.
The first applicant is represented by Ms N. Hurkovska and Ms G. Bocheva, lawyers practising Vinnytsya and Kyiv respectively, as well as Ms J. Gordon, a lawyer of the European Human Rights Advocacy Centre in London. The other applicants are represented by Ms Hurkovska.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants fled Somalia and on various dates entered Ukraine from Russia without any documents authorising their entry or stay.
On 17 December 2010 the first applicant was arrested. On the same day the Vinnytsya District Administrative Court (“the District Court”) ordered his expulsion and detention for six months. He did not appeal and the decision became final on 3 January 2011.
On 17 July 2011 he was released. At the time of release he was reminded of his obligation to leave Ukraine.
The applicants of the December Group (including the first applicant) and those of the January Group were arrested on 23 December 2011 and 30 January 2012 respectively.
On those dates the police and immigration authorities asked the District Court to place the applicants in detention for the period of time necessary for arranging their expulsion.
The District Court also held hearings in each of the applicants’ cases in the presence of the applicants, representatives of the police or immigration authorities and interpreters. At the close of the hearings it granted the requests. It relied on the 1994 and 2011 Aliens Acts in respect of the December and January Groups of applicants respectively and, in view of the need to arrange their expulsion, issued orders authorising their detention for up to twelve months. The orders relating to the third, fifth, seventh and eighth applicants stated that they would be detained for the period of time necessary for obtaining their travel documents from the Somali Republic Embassy in Moscow.
In its order concerning the eighth applicant the District Court gave her birth date as 23 April 1993.
On 28 December 2011 and 6 February 2012 respectively Ms Hurkovska appealed on behalf of the December and January Groups of applicants. She argued, in particular, that there had been no grounds for arresting them or ordering their detention since there had been no decisions ordering their expulsion.
On 3 January 2012 Ms Hurkovska lodged supplementary appeals on behalf of the applicants of the December Group, in which she used some of the same arguments. In her supplementary appeal concerning the eighth applicant she also argued that, according to the results of “an interview” with her, her date of birth was 18 May 1994.
On 10 January and 17 February 2012 respectively the Vinnytsya Administrative Court of Appeal upheld the detention orders concerning the December and January Groups of applicants. It held, in particular, that their detention had been lawful and based on the 1994 and 2011 Aliens Acts.
On various dates between 2 February and 13 March 2012 Ms Hurkovska lodged appeals on points of law with the Higher Administrative Court (“the HAC”) on behalf of the applicants, relying on essentially the same arguments as those raised in her previous appeals.
The first applicant was released on an unspecified date. It appears that on the date of his most recent communication to the Court, 3 November 2015, his appeal on points of law was still pending before the HAC.
The applicants of the January Group were released prior to or on 30 January 2013. On 30 November 2015, the second applicant’s appeal on points of law was still pending. On 14 May 2014 the HAC rejected the third to fifth applicants’ appeals on points of law, holding that the lower courts’ decisions were not unlawful.
The sixth to ninth applicants were released on 17 October, 23 November, 23 December and 17 October 2012 respectively and granted either refugee status or subsidiary protection. The HAC rejected their appeals on points of law on 27 January 2015, 18 June, 28 and 2 May 2013 respectively, holding that the lower courts’ decisions were not unlawful. In its decision concerning the eighth applicant, the HAC stated that, upon her arrest, she had informed the police that her date of birth was 23 April 1993. Her age had therefore been recorded correctly and she had been treated as an adult at the relevant time.
B. Relevant domestic law and practice
1. Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on Readmission 2006
The Agreement was in force at the material time and ceased to apply under the new Readmission Agreement of 22 December 2012 which came into force for Ukraine on 8 August 2013.
Article 4 of the Agreement required the requested State to readmit third‑country nationals if they illegally entered the territory of the requesting State directly from the territory of the requested State. It also laid an obligation on the requested State to provide such individuals with travel documents for the purposes of readmission in certain situations.
2. Code on Administrative Offences 1984
Under Article 263, a person who has violated border regulations may be detained for up to three hours so that an official report may be prepared concerning the violation. If it is necessary to establish the identity of the person concerned and verify the circumstances of the offence, he or she may be detained for up to three days. Written notice must be given to a prosecutor within twenty-four hours of the arrest.
Article 204 § 1 makes illegal border crossing punishable by a fine or by short-term detention (арешт) of up to fifteen days.
3. Code of Administrative Procedure 2005
Article 183 § 5 sets out the procedure for appeals by foreign nationals or stateless persons (“aliens”) against expulsion decisions and for the examination of the authorities’ requests for forcible expulsion orders. The courts’ decisions in such cases may be challenged on appeal within five days of delivery and may be further challenged on points of law before the Higher Administrative Court.
4. Legal Status of Foreign Nationals and Stateless Persons Acts 1994 and 2011 (“the 1994 Aliens Act” and “the 2011 Aliens Act” respectively)
The applicants of the December Group were detained under the 1994 Aliens Act which had been in effect prior to 25 December 2011. The applicants of the January Group were detained under the 2011 Aliens Act, which replaced the 1994 Act with effect from 25 December 2011.
(a) 1994 Act (as worded at the material time)
Section 32 of the 1994 Act laid down the procedure for the expulsion of foreign nationals and stateless persons (“aliens”) from Ukraine. In particular, an alien could be expelled if he or she had committed an offence, constituted a threat to public order, had no sufficient funds for subsistence and return home or had committed a serious breach of the legislation governing the legal status of aliens. The expulsion decision was to be taken by the police, border guards or State Security Service. Notice had to be given to a prosecutor within twenty-four hours. The decision was amenable to appeal before the courts.
The decision indicated that the person concerned had up to thirty days to leave Ukraine. If he or she did not comply with the decision or if there were grounds for believing that the person would not comply, he or she could be forcibly expelled by a decision of an administrative court.
Aliens present in Ukraine illegally could be detained at temporary holding facilities for the period needed for arranging their expulsion, which was not to exceed twelve months.
(b) 2011 Act
Section 14 of the 2011 Act authorises the arrest of aliens who have crossed Ukraine’s border outside an authorised port of entry.
Section 26 lays down the procedure for the forcible expulsion of aliens to their country of origin or a third country. In particular, the State Security Service, border guards or immigration authorities may order a person’s expulsion whose actions violate the regulations concerning their legal status or are contrary to public order, or if it is necessary for the protection of the health, rights and lawful interests of the citizens of Ukraine. Notice of the decision must be given to a prosecutor within twenty-four hours and a copy must be served on the person concerned. The decision must include reasons, indicate the period of time during which he or she must leave Ukraine (not exceeding thirty days), and specify the procedure for appeal (to a court). Minors, refugees and beneficiaries of subsidiary and temporary protection cannot be forcibly expelled.
Under Section 30, if an alien fails to comply with a forcible expulsion decision within the set time-limit, or if there are reasonable grounds for believing that he or she would not comply, he or she may be expelled by an administrative court decision issued at the request of the relevant authority. The decision may be challenged on appeal. For the purposes of enforcement of an expulsion decision, an alien may be detained at a “facility for the temporary detention of aliens” for up to twelve months. Notice of the detention order must be given to a prosecutor within twenty-four hours.
5. Resolution of the Plenary Higher Administrative Court on the judicial practice in cases concerning refugee status, stay and removal of aliens
The Resolution in force at the time of the applicants’ arrest was adopted by the Plenary Higher Administrative Court on 25 June 2009 and amended on 20 June 2011. On 16 March 2012 a new version was adopted.
It states (paragraph 27 in both versions) that the police or border guards may only detain or expel an alien where an administrative court order has been issued on the grounds set forth in the Aliens Act.
The Resolution also states (paragraphs 27 and 29 in the 2009 and 2012 versions respectively) that a request for an alien’s detention cannot be examined before a decision to expel him or her has been taken.
COMPLAINTS
The first applicant complains that his detention under the District Court’s order of 23 December 2011 was contrary to Article 5 § 1 (f) of the Convention.
The other applicants complain under Article 5 that their arrest and detention under the District Court’s orders were unlawful.
The first applicant complains that the proceedings relating to his appeal against the District Court’s order of 23 December 2011 in his case did not meet the “speediness” requirement of Article 5 § 4 and that domestic law did not provide for a periodic review of his detention.
The sixth to ninth applicants complain, relying on Article 6 § 1, that the proceedings relating to their appeals against the District Court’s orders of 23 December 2011 were excessively long.
QUESTIONS TO THE PARTIES
1. On what date was the first applicant released?
2. Was the first applicant’s detention under the order of the Vinnytsya District Administrative Court of 23 December 2011 in breach of Article 5 § 1 of the Convention? In so far as that detention may have been effected under Article 5 § 1 (f) of the Convention, was it compatible with that provision? In particular, were the proceedings for his expulsion conducted with due diligence (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996‑V)?
3. Were the second to ninth applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular:
3.1. Was the second to ninth applicants’ deprivation of liberty lawful, both prior to the orders of the Vinnytsya District Administrative Court and on the basis of those orders? In particular:
(i) What was the legal basis in domestic law for the applicants’ detention prior to the orders of that Court and how was the applicants’ arrest and detention prior to those orders recorded?
(ii) Were decisions taken to expel the applicants’ prior to that Court’s detention orders or afterwards? If so, when and in what manner were they served on the applicants?
3.2. In so far as the second to ninth applicants’ detention may have been effected under Article 5 § 1 (f) of the Convention, was their detention compatible with that provision? In particular, were the proceedings for the applicants’ expulsion conducted with due diligence (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996‑V)?
4. Did the first applicant have at his disposal a procedure whereby the lawfulness of his detention, as ordered on 23 December 2011, could be examined by a court and his release be ordered, as required by Article 5 § 4 of the Convention? In particular:
4.1. Could the first applicant take proceedings by which the lawfulness of his continued detention could be examined or was there a procedure for a periodic review of his detention?
4.2. Did the procedure for review on appeal of the detention order of 23 December 2011 satisfy the requirement of “speediness” set out in Article 5 § 4 of the Convention?
5. Did the procedure for review on appeal of the orders of 23 December 2011 authorising the detention of the sixth to ninth applicants satisfy the requirement of “speediness” set out in Article 5 § 4 of the Convention?
Appendix
No
Application no.
Name
Date of birth
Place of residence
Date of arrest
Date of release
December Group
42779/12
Mustafa NUR AHMED
10/03/1978
Odessa
23/12/2011
Unknown
January Group
56367/12
Abdullakhi ABIKAR DAKANE
01/01/1973
Odessa
30/01/2012
30/01/2013
56367/12
Mohamed ABDULLAHI ABDI
16/07/1988
Odessa
30/01/2012
30/01/2013
56367/12
Abdiwahab MAHAMED SHEKU
02/07/1987
Odessa
30/01/2012
30/01/2013
56367/12
Maslah MOHAMED ABDI
26/06/1988
Odessa
30/01/2012
30/01/2013
December Group (continued)
68309/12
Mustafa AHMED ABDI
01/02/1992
Volyn region
23/12/2011
17/10/2012
68335/12
Ahmed NASIR MOHAMMED ISMAIL
23/01/1991
Odessa
23/12/2011
23/11/2012
68344/12
Nimo MUHAMMED IBRAGIM
23/04/1993 (as recorded by the domestic authorities)
Kyiv
23/12/2011
23/12/2012
68358/12
Hasan MUHAMED YUSUF
15/12/1991
Volyn region
23/12/2011
17/10/2012
Full & Egal Universal Law Academy