MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-41

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-41 Kebe and Others group v. Ukraine (Application No. 12552/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)771, DH-DD(2021)1001, CM/Del/Dec(2018)1331/H46-32

 

Application	Case	Judgment of	Final on	Indicator for the classification
12552/12	KEBE AND OTHERS	12/01/2017	12/04/2017	Complex problem
42779/12	NUR AHMED AND OTHERS	18/06/2020	18/06/2020
77647/11	NUR AND OTHERS	16/07/2020	16/07/2020
17189/11	M.S. [1]	11/06/2020	11/09/2020

Case description

This group of cases concerns various deficiencies in the procedures related to different aspects of the treatment of asylum-seekers in Ukraine at different times in 2011-2012:

-        Deficiencies in the border-control procedure leading to the refusal to the applicant, a stowaway asylum-seeker, to enter Ukraine: immediate enforceability of the decision refusing entry and absence of an effective remedy with automatic suspensive effect against the border guards’ decisions, which left the applicant subject to removal from Ukraine at any time, without having had his claim of the risk of
ill-treatment examined (violation of Article 13 in conjunction with Article 3 of the Convention). Only after the Court had indicated interim measures under Rule 39 was the applicant allowed to enter Ukraine and to lodge an asylum application (Kebe and Others).

-        Failure by the authorities to carry out an adequate assessment of the applicant’s claim that he would be at real risk of ill-treatment in Afghanistan before returning him there (procedural violation of Article 3 - M.S.). The Court noted however that shortcomings were of a procedural nature and that the applicant, who finally had recourse to internal relocation in Afghanistan, had not actually suffered any ill-treatment up until now.

-        Various problems in detention of persons present in Ukraine in an irregular manner, in violation of Article 5 § 1 (f)): undocumented arrest and failure to promptly bring the applicants before the court; applicants’ detention with a view to their expulsion in a “centre for temporary accommodation of foreigners and stateless persons who are present in Ukraine illegally but in the absence of a prior expulsion order and failure to release them when expulsion became impossible as they were granted protection (Nur Ahmed and Others); failure to release other applicants from a border guard temporary holding facility after the expiry of the ten-day period allowed by law and to release a minor from a “centre for temporary accommodation …” (Nur and Others);

lack of possibility of speedy review of the lawfulness of detention (violation of Article 5 § 4 - Nur Ahmed and Others, Nur and Others); failure to inform the applicant, in a language he understood, of the legal reasons for his detention and of the proceedings concerning his detention; lack of interpreter and lawyer in the expulsion proceedings (violations of Article 5 §§ 2 and 4 - M.S.).

Status of execution

The authorities submitted an updated and consolidated action plan (DH-DD(2021)771) on 3 August 2021 and an addendum to it (DH-DD(2021)1001) on 4 October 2021. The main points are summarised below.

Individual measures

At the 1331^st meeting (December 2018) (DH), the Committee considered that no individual measures were necessary in Kebe and Others.

In Nur Ahmed and Others, the Court did not award any just satisfaction; the applicants are no longer detained.

In Nur and Others, the authorities paid the just satisfaction to one of the two applicants. The authorities note that the whereabouts of another applicant remain unknown despite their efforts to contact him, including through his representative before the Court, and that the awarded sum is at his disposal at the Ministry of Justice special bank account. The applicants are no longer detained.

In M.S., as the applicant has been in Afghanistan since 2011, the authorities explored the ways to pay the just satisfaction, however, for the time being, they have not been successful. In view of the risks the applicant might face, the Ukrainian authorities do not consider that it would be reasonable to contact the authorities of Afghanistan; the applicant's representatives before the European Court confirmed that they had lost contact with him and are not aware of his whereabouts. As to other possible measures, the authorities note that the applicant did not return to Ukraine and did not apply for any form of protection. They note that the Court did not find that the applicant would be at risk in Afghanistan but that the authorities had failed to properly assess the risks. The Court also noted that the applicant had not suffered any risk in Afghanistan since his return over ten years ago.

General measures

1.            Measures to respond to the violations of Articles 3 and 13 related to the access to the asylum procedure and risk-assessment in cases of expulsion (Kebe and Others and M.S.)

a) Access to the asylum procedure

The authorities set out the regulatory framework (the 2011 Law “On Refugees and Persons in Need of Complimentary or Temporary Protection” (‘Law on Refugees’), amended in 2016, as well as sub-legislation), which contains procedures for lodging applications for refugee status or other type of protection (“asylum”) by persons in regular and irregular situations, including those crossing the Ukrainian border illegally.

The State Border Control Service (SBCS) is tasked with initial receipt of asylum claims from persons crossing the Ukrainian border in an irregular manner and their urgent (within 24 hours) transfer to the State Migration Service (SMS) for decision-making, as well as explanations of the procedures to the person. A similar procedure exists for applications from persons detained in the SBCS facilities. 

The administration of “centres for temporary accommodation of foreigners and stateless persons who are present in Ukraine illegally” (‘accommodation centres’) is also required to accept asylum claims and to transfer them urgently to the SMS. Computers with internet connection are available at the centres, so detainees can lodge their applications online.

The authorities submitted statistics as to the numbers of asylum claims submitted in different situations.

b) Availability of the necessary information in a language that individuals understand 

At its 1331^st meeting, in the case Kebe and Others the Committee strongly encouraged the authorities to take all necessary steps to ensure that adequate safeguards are in place during the border control procedure so that the individuals concerned receive in a language they understand the information, application forms and advice to enable them to apply for international protection. The authorities underline that information on the procedure to claim asylum in Ukraine is available at border crossing points and in the accommodation centres in numerous languages, as well as translated asylum application forms. As internet connection is available in the centres, detainees can access the information on the SMS and the UNHCR websites.

c) Asylum procedure and assessment of risks in case of return

The Law on Refugees defines the terms ‘refugee’, ‘person in need of complementary protection’, ‘person in need of temporary protection’, with account to the risks in the country of origin and along with Ministry of Interior rules of 2011 sets out details for consideration of asylum claims.

In the examination of the applications, the SMS officials are bound by the 1951 Convention Relating to the Status of Refugees. Moreover, they work according to the EU Qualification Directive 2011/95/EU[2] and the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection. To assess the risks in each individual situation, the officials use country of origin information, including the sources run by the UNHCR, US Department of State, IOM, Human Rights Watch, Amnesty International. 

The decisions related to all forms of protection can be appealed to courts. The above-mentioned rules require the SMS officials to explain the right to appeal when notifying of the decisions. 

By law, an asylum-seeker has the right to be assisted by an interpreter and is entitled to free legal aid.

d) Risk assessment in expulsion and forcible return decisions

The Law on Refugees prohibits expulsion or forcible return of individuals with refugee status or under other forms of protection. A person must not be removed from Ukraine pending the outcome of the asylum-decision procedure. The Law on Legal Status of Foreigners and Stateless Persons prohibits expulsion, forcible return, surrender or transfer of individuals in case of certain risks, including risk to life or freedom due to race, religion, social or political allegiance etc., death penalty or ill-treatment.

A Joint Regulation of the Ministry of Interior, SBCS Administration and the State Security Service on forcible return and expulsion reiterates these prohibitions. It sets out that forcible return or expulsion shall be stayed for up to ten days in case of an official request of the UNHCR, and the decision shall be cancelled if circumstances are revealed prohibiting return or expulsion in accordance with the Law on Refugees.

The authorities provided examples of domestic courts’ decisions, in two cases refusing to order expulsion (due to the risks in the country of origin or due to impossibility to verify that there is no risk) and in one case quashing the SMS’ decision on forcible return as the person applied for asylum.

Any decision on expulsion is subject to appeal, this is explained to the persons concerned and, should they intend to appeal, legal aid is provided. The appeal has automatic suspensive effect.

The authorities submitted statistics on forcible return (3,954 in 2020) and expulsion (208) decisions, as well as on denial of entry (13,000).

2.            Measures to respond to the violation of Article 13 on account of the absence of a remedy against the decision of border guards (Kebe and Others)

The authorities are considering the introduction of a remedy with automatic suspensive effect to allow individuals to remain in Ukraine pending appeal against border guards’ decisions. In the meantime, courts can order stay of implementation of a challenged administrative decision, on their own motion, or upon a party’s motion. The authorities provided such an example.

3.            Measures to respond to the violations of Article 5

a) Article 5§1(f) (Nur Ahmed and Others and Nur and Others)

·                     Grounds for detention

The authorities set out the circumstances when migrants in an irregular situation can be detained, such as administrative arrest (up to 15 days) as a sanction for irregular crossing of the border, imposable by courts and subject to appeal; detention by the SBCS, migration bodies and police for up to three hours to draw the record and for up to three days to identify the individual or to clarify the circumstances; detention by the SBCS for transfer to a bordering state border service; detention with a view of expulsion for up to six months (can be extended to up to 18 months, if the person cannot be identified, expulsion cannot be organised or there is no possibility to decide on the asylum application). In the latter case, there is also a possibility to apply bail or personal guarantees; authorities provided examples of courts’ decisions applying this kind of measures.

All forms of detention are recorded, in line with detailed regulations in this respect. The authorities submitted statistics of detention in the accommodation centres and the SBCS facilities.

·                     Release

Detainees are released from the SBCS’ holding facilities upon expiration of the term, in case of transfer, or when there are no grounds for the detention anymore, upon a decision of a court or another body.

Detainees are released from the accommodation centres by an order of the head of the centre upon expiration of the maximum term allowed, upon a court’s decision (no later than three hours from the moment the decision is received at the centre), when the refugee status or complementary protection in Ukraine is granted (the SMS shall inform the centre administration in writing on the day the decision is taken) or there is the SMS’s conclusion that the person cannot be expelled (to be sent to the centre not later than one month before the expiration of the maximum term for detention).

·                     Supervision

Apart from internal inspections by the SBCS command of their facilities, the Ombudsperson’s representatives and prosecutors inspect these facilities and the accommodation centres. Working groups comprising representatives of the Ombudsperson and NGOs conduct visits providing recommendations and reporting the deficiencies identified. The authorities provided statistics of visits and two examples of foreigners unlawfully detained in accommodation centres, who were released upon prosecutors’ intervention in 2020-2021.

b) Article 5 § 2 (M.S.)

The Code of Administrative Offences provides for the right to interpretation; regulations of the National Police and the SBCS detail the obligation to engage interpreters. The Regulation on Forcible Return and Expulsion provides that a decision on return or expulsion shall be announced in presence of an interpreter and/or a lawyer if the person concerned requests so. The SBCS engages state-funded interpreters, in case of urgency, by phone. Courts are obliged to provide interpretation and failure to do it leads to quashing of the decision. The authorities provided examples of courts’ rulings to engage interpreters in cases on detention of foreigners.

c) Article 5 § 4 (Nur Ahmed and Others, Nur and Others, M.S.)

Courts’ decisions on placing a foreigner in detention are subject to appeal. The time-limit for appeal is ten days, the appeal courts shall consider the cases within ten days after the expiry of this time-limit. The authorities provided appeal court’s decisions quashing the detention order, as there was no expulsion decision, or upholding the first instance court’s decision refusing detention, as the SMS had failed to prove the necessity of the measure. 

d) Unaccompanied minors (Nur and Others)

In 2016, the Cabinet of Ministers adopted a procedure for cooperation between different agencies in case of detection of unaccompanied non-citizen children. It sets out an explanation of the available rights, access to the asylum procedure, interpretation, legal representation, medical assistance, placement with a foster family or in a special institution. 

If a minor is placed in a SBСS holding facility, appropriate conditions are to be ensured. It is prohibited to place unaccompanied minors in accommodation centres. The government confirms that there have been no cases of unaccompanied minors at the centres since 2020.   

Forcible return cannot be applied to unaccompanied minors.

A person without documents to prove their age is dealt with according to the announced age until established otherwise.

4.            Free legal aid

Legal advice is available free of charge to anyone under the jurisdiction of Ukraine. Anybody detained, including in the accommodation centres, has a right to representation and preparation of procedural documents. Free legal aid (‘FLA’) granted to foreigners in 2020-2021 included defence in expulsion proceedings.

All three accommodation centres signed memoranda of cooperation with FLA centres to organise legal assistance to detainees. Consultation points are organised in the SMS and at the accommodation centres. Booklets are available in the accommodation centres explaining the right to legal aid.

Non-governmental organisations, including the UNHCR partners also provide legal aid. Lawyers are allowed confidential meetings with the detainees on a one-off basis, and certain NGOs who conduct regular visits obtain multiple permissions.

5.         Co-operation with the UNHCR

a) Access of the UNHCR to asylum-seekers

In accordance with the 1999 Agreement between Ukraine and the UNHCR, the latter’s representatives have free access to persons under the organisation’s mandate. This covers the SBCS holding facilities and accommodation centres and allows the access to the UNHCR partner NGOs, too. The SBCS grants access to transit zones of airports and other border-crossing points to UNHCR and its partners upon their request. 

b) Cooperation between the State Migration Service and UNHCR 

UNHCR conducts regular assessments and shares its findings and recommendations with the authorities. It prepares summaries of migration-related statistics and other reports. UNHCR actively works with authorities to develop amendments to the legislation and to ensure the access to asylum-seekers. It regularly organises capacity-building activities for the SMS officials. 

6.         Draft legislation

A draft Law on Granting Protection to Foreigners and Stateless Persons was registered at the Parliament in April 2020, to replace the current Law on Refugees. It clarifies the procedures related to different forms of protection bringing them closer to the EU regulations. It includes procedures for applying for asylum while in detention and at border-crossing points.

A draft Law registered in February 2021 suggests a procedure for the FLA centres to involve interpreters.

The Ministry of Justice developed a draft Law on Dual System of Regular Penitentiary Inspections, which should cover the SBCS facilities and the accommodation centres.

7.         Capacity-building and awareness-raising measures

The authorities set out capacity-building and awareness-raising activities for the SBCS, SMS, FLA and other lawyers, judges. The judgments in these cases were translated, published, and included in the training curricula for SBCS, SMS and police.

Rule 9 submission from the UNHCR

On 2 November 2018, UNHCR made a submission under Rule 9.3 (see DH-DD(2018)1110 for full details). UNHCR notes that the legal framework on persons seeking protection at the borders before being formally admitted to Ukraine remains unchanged since the events of Kebe and Others. There is still no effective remedy with suspensive effect. There are also practical obstacles for individuals trying to seek asylum on arrival at borders. UNHCR recommends that the authorities take effective measures to inform all persons who may need protection about the procedures for requesting it. UNHCR emphasises the need for interpretation during the application procedure at the border, as the application must be submitted in Ukrainian. UNHCR further suggests that the authorities should allow UNHCR and its partners, as well as lawyers, including those providing FLA, prompt access to ports and transit zones.

In a response submitted by the authorities on 14 November 2018, they reiterated that a refugee or asylum-seeker has the right to involve an interpreter at any time. UNHCR and the FLA system concluded a Memorandum of Understanding. A decision to deny entry can be challenged in under the law “On Applications of Citizens”, and/or with the Ombudsperson.

Analysis by the Secretariat

Individual measures

Whilst a matter of deep regret, it does not appear that further measures can now be taken in M.S. concerning the just satisfaction. It is essential that the authorities ensure that the sums awarded are at the disposal of both applicants (M.S. and one of the applicants in Nur and Others) if they appear to claim them, even after the one-year period provided for in Ukrainian legislation. It is regrettable that the sums awarded in just satisfaction are kept on the special account of the Ministry of Justice for one year only and then the funds, if unclaimed, are returned to the State budget and can only be reclaimed through a complex process.

No other individual measures appear necessary in the present group.

General measures

Access to the asylum procedure

While the legislative framework was amended after the events of the cases, the authorities have not provided an analysis of the impact of these changes on the practical possibility to apply for asylum at the border-crossing points, especially in case of denial of entry by the border guards.

Already at the time of the events, the legislation provided for the SBCS’ duty to accept asylum applications and to transfer them within 24 hours to the migration authorities. The SBCS officers, however, tried to discourage the applicant in Kebe and Others from applying for protection and wrongly told him that they could not accept such applications. Both the Court and the Committee emphasised the lack of a realistic and practical opportunity to submit the claim.

In addition to the 2018 submission of the UNHCR, more recent reports confirm that access to the procedure at airports remains problematic, and some persons wishing to apply for asylum are denied entry to Ukraine.[3]

It is also notable that the statistics suggest that only seven persons applied for asylum via the SBCS during an illegal entry attempt in 2020, and 14 in 2019, while 13,000 and 22,000 persons respectively were denied entry, including, for example, about 200 Syrians in 2020 and even more in 2019.[4] 

It is thus key that the authorities continue their work to guarantee that the access is ensured in practice and provide further information in this respect.

Risk assessment as a part of various domestic procedures

. It is positive that the regulatory framework referred to by the authorities obliges officials including judges to assess the risks, and that there is domestic case-law as to expulsion or forcible return. The UNHCR also reports that “[t]he quality of the Refugee Determination Procedure (RSD) has improved, albeit slowly, over the last few years”.[5]

Nevertheless, it would be important to receive up to date comprehensive information as to the incorporation of the risk assessment elements in the procedures of asylum, expulsion and forced return before the SMS, SBCS and courts and any capacity building measures in this respect.

Detention

It is positive that the regulatory framework for the detention of foreigners includes the relevant safeguards, such as the recording of arrests and access to FLA The regulation concerning the detention in the SBCS holding facilities was adopted after the facts of the cases, but the authorities do not explain the practical impact of these changes.

It is positive that there is domestic courts’ case-law as to the grounds of detention, however, more evidence of stable judicial practice would be welcome. It is also positive that there is external monitoring of the detention places, including with the participation of the civil society and that in certain cases alternatives to detention became possible and domestic courts apply such measures. However, there are reports that the alternative measures are rarely used.[6]

The authorities should also be invited to submit information as to the delays in the review of the lawfulness of detention (Nur Ahmed and Others, Nur and Others), especially taking into account the general problem of the length of judicial proceedings in Ukraine.[7]

Unaccompanied children

It is positive that a special procedure has been adopted to treat unaccompanied children and that there were no recent cases of detention of such persons. The authorities should confirm this trend in their next update.

Interpretation and free legal laid

Practical availability of interpretation and FLA are essential safeguards to prevent violations similar to those in the present group of cases. While it is positive that the relevant rights are enshrined in the legislation, there are indications that there are still practical deficiencies on the ground.

Within the context of the violations of Articles 5 §§ 2 and 4, information is expected, in particular, as to the notification of the FLA lawyers about foreigners detained and their access to detainees. For instance, in 2019, there were reports from the FLA centres that the detaining authorities were narrowly interpreting the obligation to notify the FLA system about any detention cases. As a result, they failed to notify the FLA centres about foreigners detained with a view of identification and expulsion.[8] The FLA centres discussed this issue with the SMS and SBCS in different regions to solve the problem. It would thus be relevant to receive updates in this respect.

The same concerns the interpretation. It is positive that there are practical arrangements, such as the registers of interpreters and the funding, however, there are reports that despite these measures, “the system of providing interpretation does not function smoothly in practice”.[9]

Cooperation with the UNHCR 

It is positive that SMS, SBCS and other state bodies develop cooperation, including access of the representatives of UNHCR and its partner NGOs to asylum-seekers. The Committee may wish to encourage the authorities to strengthen the cooperation ensuring prompt access to persons potentially under the UNHCR mandate at the border-crossing points and detention facilities.

Remedy with automatic suspensive effect

It is a matter of concern that after almost ten years since the facts of the Kebe and Others case and despite the Committee’s previous call, there is still no progress in the creation of such remedy. While the use by the courts of the possibility to stay the denial of entry is positive, one example can hardly be regarded as evidence of steady and well-established judicial practice.

Draft legislation

The draft law on Granting Protection to Foreigners and Stateless Persons appears to contain issues which might adversely affect the execution of these judgments. For instance, the proposal to introduce unconditional detention for the whole duration of the procedure in respect to all asylum-seekers having crossed the border in irregular manner or those who are within Ukraine in breach of the migration rules raises serious concerns under the Convention.[10]

UNHCR recommended revising this provision, which is likely to result in lengthy (up to 18 months) detention of the majority of asylum-seekers. [11] Moreover, the draft law lowers the safeguards related to the motivated notification of a negative asylum decision in comparison with the current Law. [12] The authorities should be encouraged to reconsider this draft law in light of the concerns identified.

Financing assured: YES