European Court of Human Rights

 

 

FIFTH SECTION

CASE OF A.A. v. UKRAINE

(Application no. 79750/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

15 December 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of A.A. v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Mārtiņš Mits, President,
          María Elósegui,
          Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 79750/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 December 2016 by a Tajikistani national, Mr A.A. (“the applicant”), who was born in 1994 and lives in the Netherlands and who was represented by Mr V. Melnychuk, a lawyer practising in Kharkiv and currently residing in Berlin;

the decision to give notice of the complaints set out in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;

the decision to indicate an interim measure to the Government under Rule 39 of the Rules of Court, which was subsequently lifted;

the decision not to have the applicant’s name disclosed;

the Government’s objection to the examination of the case by a Committee, which has not been upheld;

the parties’ observations;

Having deliberated in private on 24 November 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicant’s complaint under Article 3 of the Convention that he faced a risk of ill-treatment if he were to be returned from Ukraine to Tajikistan and that his detention in the context of expulsion proceedings against him was in breach of Article 5 of the Convention. The applicant also submitted complaints under Article 34 of the Convention and Article 2 of Protocol No. 4 and argued, under Article 13 of the Convention, that he had no effective domestic remedies in respect of his complaints under Article 3 of the Convention and Article 2 of Protocol No. 4.

I.           Expulsion proceedings

2.  In June 2016 the applicant arrived in Ukraine from Istanbul. As a citizen of Tajikistan he had the right to stay in Ukraine without a visa for ninety days, until 23 September 2016.

3.  On 15 July 2016 the immigration authorities, on the basis of intelligence information according to which the applicant had arrived in Ukraine in order to enter western Europe illegally, decided that the period of his stay in Ukraine had to end by 17 July 2016.

4.  On 21 July 2016 the Kharkiv Dzerzhynskyy District Court ordered the applicant’s forcible removal from Ukraine.

5.  On 9 October 2017 the Kharkiv Circuit Administrative Court quashed the decision of 15 July 2016, finding that intelligence information could not serve as legal grounds for such decisions.

II.        Detention

6.  On 22 July 2016 the Migration Service decided to place the applicant in a centre for the temporary accommodation of foreigners and stateless persons whose status was irregular (“the detention centre”).

7.  On 19 September 2016 the prosecutor’s office informed the governor of the detention centre that under Article 183-7 of the Code of Administrative Justice (as worded from 18 June 2016), only courts had the power to authorise detention with a view to the execution of expulsion orders. The governor was accordingly instructed to regularise the applicant’s situation.

8.  On 21 September 2016 the Ripky District Court of the Chernihiv Region (“the Ripky Court”), relying in particular on the legal provision referred to by the prosecutor’s office, ordered the applicant’s detention until 20 March 2017, pending his expulsion. The decision was pronounced in the presence of the applicant and an interpreter, and it included a statement that it could be appealed against to the Kyiv Administrative Court of Appeal.

9.  On 24 March 2017 the applicant was released.

10.  On 24 July 2017 the Ripky Court, having found the applicant’s detention from 21 to 24 March 2017 to be unlawful, awarded him compensation.

III.     Asylum proceedings

11.  On 30 August 2016 the applicant made an application for asylum. He alleged that he faced a risk of persecution as a member of the organisation “Group 24”, which was opposed to the Tajikistani government.

12.  The Migration Service held interviews with the applicant and on 19 September 2016 rejected his application as inadmissible. The service found that the applicant’s account of events was not credible, that he had failed to substantiate that he was a member of “Group 24” and that his personal situation did not suggest that he ran a risk of persecution in Tajikistan.

13.  On 28 September 2016 the applicant appealed against that decision. This and subsequent appeals were typewritten in Ukrainian and contained detailed factual and legal arguments based on domestic and international law.

14.  In a final decision, on 4 July 2019 the Supreme Court upheld the Migration Service’s decision.

15.  In 2020 the applicant submitted a new asylum application. The migration authorities rejected it as inadmissible. The lower courts upheld that decision but on 7 February 2022 the Supreme Court quashed their decisions and remitted the case to the first-instance court.

IV.     Extradition proceedings and subsequent events

16.  In September 2019 the Tajik authorities requested the applicant’s extradition from Ukraine on charges of “illegal participation in an armed conflict abroad”. According to the charges, in 2016 the applicant had travelled to Türkiye to join the ISIS terrorist organisation in Syria but had been apprehended by the Turkish authorities and deported to Ukraine.

17.  The extradition proceedings have been suspended pending the decision in the asylum proceedings.

18.  On 15 March 2022 the applicant’s lawyer informed the Court that “the applicant has left Ukraine because of the Russian war and he is now in a refugee shelter in the Netherlands.”

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATIONS OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION

19.  In view of the information that the applicant moved to the Netherlands, the Court considers that he is no longer at risk of removal to Tajikistan by the Ukrainian authorities and can no longer claim to be a victim of a potential violation of his rights under Article 3 of the Convention by Ukraine. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

20.  Given that the Court has found that the applicant can no longer claim to be a victim of a violation of his rights under Article 3, he has no arguable claim for the purposes of Article 13 of the Convention in this respect (see, for example, Osmayev v. Ukraine (dec.), no. 50609/12, § 57, 30 June 2015). As far as the applicant’s complaint under Article 13 in respect of the period when he was under threat of removal from Ukraine to Tajikistan is concerned, it is also inadmissible, for the following reasons.

21.  In respect of that complaint the applicant mainly submitted that the authorities had failed to conduct an adequate examination of the risks he faced in Tajikistan in the expulsion proceedings (see paragraph 4 above).

22.  However, in Ukrainian law the appropriate forum for the examination of the claims of potential risks the applicant allegedly faced in Tajikistan was the asylum procedure (compare, for example, S.A. v. Ukraine [Committee], no. 7445/21, 24 February 2022). Concerning that procedure, the applicant complained that he had not been provided with translations of the Migration Service’s submissions and judicial decisions in a language he could understand. This assertion, however, is unsubstantiated and is belied by the applicant’s detailed and well-argued appeals, apparently prepared for the applicant by a Ukrainian lawyer or other specialist knowledgeable in the Ukrainian language and the relevant law (see paragraph 13 above), which demonstrate precise knowledge and understanding of the relevant submissions and decisions.

 

24.  It follows that the applicant’s complaint under Article 13 in conjunction with Article 3 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II.        ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

25.  The applicant complained that his detention had been in breach of Article 5 of the Convention

(i)  from 22 July to 21 September 2016 because it had not been ordered by a court, contrary to the requirements of domestic law; and

(ii)  from 21 September 2016 to 20 March 2017 because under domestic law, the domestic courts had had no authority to issue a detention order in his case.

26.  The Government submitted that this complaint was inadmissible for failure to exhaust domestic remedies since the applicant had failed to appeal to the administrative courts against the detention decision issued by the Migration Service and had also failed to appeal to the higher courts against the first-instance court’s detention order (see paragraphs 6 and 8 above). They also submitted that the complaint was manifestly ill-founded.

27.  As to exhaustion of domestic remedies, the applicant submitted that he had not been given copies of the relevant decisions or their translations, that the procedure for appealing against decisions had not been explained to him and that he had not been provided with legal aid or an interpreter.

A.    22 July to 21 September 2016

28.  As to the Government’s non-exhaustion objection, the Court finds no indication in the file that the Migration Service’s decision to place the applicant in detention was served on him, let alone that he was served with the decision in a language he could understand. The relevant decision was in Ukrainian and the applicant spoke only Tajik and some Russian. There is also no indication that at that time he had access to a lawyer or that his right to legal aid or the procedure for appealing was explained to him.

29.  In many cases where detainees had not been informed of the reasons why they were deprived of their liberty, the Court has found that their right to appeal against their detention was deprived of all effective substance (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 132, 15 December 2016, with further references). This is equally relevant in assessing whether the appeal procedure was available to the applicant in practice for the purposes of assessing compliance with the rule of exhaustion of domestic remedies (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

30.  Accordingly, the Court dismisses the Government’s non-exhaustion objection and considers that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

31.  The domestic court agreed with the argument of the prosecutor’s office that under domestic law as it stood at the relevant time, detention for the purpose of execution of an expulsion order could only be based on a court decision (see paragraphs 7 and 8 above).

32.  This is sufficient for the Court to conclude that the deprivation of the applicant’s liberty was not “in accordance with a procedure prescribed by law”.

33.  There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 22 July to 21 September 2016.

B.    21 September 2016 to 20 March 2017

34.  In contrast to the position in relation to the earlier period of detention, the Court is not convinced that there were circumstances releasing the applicant from the obligation to exhaust effective domestic remedies in respect of the later period of detention by appealing against the court’s detention order of 21 September 2016 (see paragraph 8 above).

35.  In contrast to his actions in relation to the earlier period of detention, the applicant’s sophisticated submissions in the context of the asylum proceedings indicate that at that time he had access to legal advice (see paragraph 13 above).

36.  The decision of 21 September 2016 itself indicated the procedure for appeal and it was pronounced in the presence of the applicant and the interpreter.

37.  Accordingly, this part of the applicant’s complaint under Article 5 § 1 must be declared inadmissible and rejected, pursuant to Article 35 § 4 of the Convention, for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.

III.     REMAINING COMPLAINTS

38.  The applicant also raised other complaints under various provisions of the Convention (see paragraph 1 above). The Court has examined those parts of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

39.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,360 in respect of costs and expenses incurred in the domestic proceedings and before the Court.

41.  The Government contested those claims.

42.  The Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.

43.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 5 § 1 of the Convention in respect of the applicant’s detention from 22 July to 21 September 2016 admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 22 July to 21 September 2016;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                                     Mārtiņš Mits
          Deputy Registrar                                                      President