CASE OF KEBE AND OTHERS v. UKRAINE
Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
5. The applicants were born in 1984, 1988 and 1987 respectively. The first applicant currently lives in Odessa. The third applicant left Ukraine for Ethiopia on 23 November 2014. His current whereabouts are unknown. The second applicant died on 6 March 2015. According to the applicants’ representative, the second applicant died of a “natural cause”. No further details were given in this regard. The Court was not informed of anyone wishing to pursue the application on his behalf. 6. The following is a summary of the events that led the applicants to seek asylum outside their countries of origin, as submitted by the applicants. 7. The first applicant is an Orthodox Christian. When he was fifteen years old he was forcibly recruited to the army in Eritrea. After having served for two months he deserted and left for Djibouti. In the meantime, his father went missing after he had been arrested by the Eritrean authorities for having complained about the first applicant’s forcible military service. The first applicant believed that his father had been tortured and murdered by the authorities. 8. The second applicant was a Protestant Christian. Initially, he left Eritrea for Ethiopia together with his family. After the outbreak of armed conflict between Ethiopia and Eritrea, the second applicant’s family moved back to Eritrea, though the second applicant remained in Ethiopia as he feared persecution for his religion and forcible military service in Eritrea. As he could have been expelled by the Ethiopian authorities to Eritrea, the second applicant left for Djibouti in 2007. 9. The first and second applicants stayed in Djibouti illegally for several years. In that country both applicants were repeatedly arrested by the authorities allegedly in connection with the armed conflict between Djibouti and Eritrea in June 2008. 10. The third applicant left Ethiopia for Djibouti in 2005 for unspecified reasons. From 2008 to 2010 he was employed by an Ethiopian transport company operating in Djibouti. The third applicant submitted that as he had been a member of the “Medre[k] political party”, he had been dismissed by his employer after that party had lost the 2010 election in Ethiopia to the “Ehadeg party”. The third applicant’s identity card issued by the Ethiopian authorities was retained by his former employer. Thus the third applicant remained in Djibouti illegally and was at risk of possible deportation by the Djiboutian authorities to his country of origin, Ethiopia, where he risked persecution “as a traitor to the Ehadeg political regime”. 11. The Government did not comment on those submissions. 12. On 18 January 2012, with the intention of seeking asylum in any country other than Djibouti or their countries of origin, the applicants covertly boarded a commercial vessel flying the flag of the Republic of Malta. The vessel was leaving the port of Djibouti and heading for Tuzla, Turkey. 13. The next day the applicants were discovered by the vessel crew. The vessel’s owner and insurer were informed accordingly. 14. When the vessel was passing through the Suez Canal, the insurer tried to arrange with the Egyptian authorities that the applicants could disembark in Egypt, but the authorities refused the request. 15. Following the vessel’s arrival in Tuzla on 3 February 2012 the Turkish authorities and a representative of the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey met with the applicants on board the vessel. The applicants were not allowed to disembark. Their allegations of persecution in their home countries written in the Amharic and Tigre languages were passed by the vessel’s insurer to the representative of the UNHCR office in Turkey. 16. On 21 February 2012 the vessel left Tuzla in the direction of the port of Mykolayiv in Ukraine. 17. On 24 February 2012, sometime before the vessel anchored in the port of Mykolayiv, a non-governmental organisation “Faith, Hope, Love”, which at the time was based in Odesa and assisted refugees and asylumseekers under a contract with the UNHCR, contacted the head of the Border Control Service in the Southern Region of Ukraine informing him that there were two nationals of Eritrea and a national of Ethiopia on board the vessel and that, according to the UNHCR, they might require international protection. The organisation requested leave for their lawyer, Z., to meet with the applicants. 18. On 25 February 2012 Ukrainian border guards embarked the vessel and met with the applicants. According to information provided by the Government, the applicants did not submit any requests to the border guards. 19. Later on that day, Z. went to Mykolayiv port to see the applicants. She was allowed to embark the vessel and meet with the applicants. She discussed their situation with them and informed them of the asylum procedures in Ukraine. The discussion was in English in the presence of three border guards and two port security officers. As only the first applicant could speak English, he interpreted the discussion into Amharic, which the other two applicants could understand. 20. According to the applicants, during the discussion they expressed the wish to seek asylum in Ukraine and started filling in asylum applications with the help of one of the border guards who had knowledge of English. That border guard was an official interpreter at the State Border Control Service. However, sometime later the border guards stated that they could not accept the asylum applications from the applicants, as the applicants were on board a vessel flying the flag of a foreign State. Such applications had to be submitted to the vessel’s captain. On the same grounds the border guards refused to allow the applicants to disembark. The border guards asked Z. to leave the vessel. Allegedly, Z. was not given sufficient time and interpretation facilities to provide assistance to the applicants in respect of their asylum claims. 21. According to the Government, during that meeting the applicants did not submit applications for asylum; nor did they express a wish to do so. As the applicants had no identity documents, the head of the border-guard unit decided to refuse them leave to enter Ukraine. No copy of that decision was provided to the Court. The Government submitted copies of reports drawn up by the border guards who had been present at that meeting, which indicated that the meeting had lasted for five hours and that the applicants had stated that they needed time to decide whether they wished to request asylum in Ukraine. Z. left the vessel without raising any complaints. The head of the border-guard unit stated in her report that she had explained to the applicants that “in the circumstances the border guards had not been able to accept asylum applications from them”. 22. On 28 February 2012 the applicants, allegedly having been misled by the vessel’s captain who was acting on the instructions of the Ukrainian border guards, signed type-written statements in English, according to which they had boarded the vessel with the aim of reaching Sweden “in search of better living conditions” and that they did not “need the status of refugee, addition[al] [or] temporary protection in Ukraine”. In a letter he sent to the UNHCR on 6 March 2012, the captain stated that the abovementioned type-written statements had been prepared and brought on board by Ukrainian border guards on 28 February 2012. 23. The Government submitted that the applicants themselves had asked the captain to help them to prepare the above-mentioned type-written statements. The Government relied on the captain’s statements obtained on 3 March 2012 when he had been questioned by the migration authorities. In particular, the captain stated that he and the first applicant had prepared the statements and had given them to the other applicants to sign. 24. On 2 March 2012 Z., acting on the applicants’ behalf, lodged with the Court a request for interim measures to be imposed under Rule 39 of the Rules of Court. She stated that the applicants risked removal to Saudi Arabia, for which the vessel was scheduled to depart on 3 March 2012. In their submissions before the Court, the Government did not contest this statement. Z. further argued that in Saudi Arabia asylum-seekers were granted no form of protection and were exposed to the risk of being repatriated. According to her, there was a real risk that the authorities of Saudi Arabia would forcibly return the applicants to their countries of origin where they would be subjected to ill-treatment. She essentially requested the Court to indicate to the Government of Ukraine that the applicants should be allowed to leave the vessel and should be granted access to a lawyer and to the asylum procedure. 25. On the same day the Court granted the request. 26. On 3 March 2012 the border guards accompanied by an officer from the State Migration Service embarked the vessel and met with the applicants. According to the Government, it was during that meeting that the applicants requested asylum in Ukraine. They were allowed to disembark and to cross the State border. 27. On 16 March 2012 the applicants were questioned by the migration authorities concerning their asylum applications. According to the applicants, during the questioning they were not provided with adequate translation or any explanation of the relevant regulations. Nor were they provided with legal assistance. 28. The parties have not informed the Court about the outcome of the applicants’ asylum applications lodged in March 2012; nor have they provided any further details as regards their examination by the migration authorities. 29. It appears from their submissions that in 2014 the applicants lodged new asylum applications with the authorities. 30. On 19 August 2014 the Odesa Regional Department of the Migration Service (the “ORDMS”) rejected the third applicant’s asylum application, finding that it was manifestly ill-founded. The third applicant did not challenge that decision on appeal. On 23 November 2014 he decided to leave Ukraine for Ethiopia. The UNHCR helped him to organise the travel arrangements. The applicants’ representative did not provide any further information as regards the third applicant, as since the third applicant’s departure from Ukraine the representative has lost contact with him. 31. On 9 December 2014 the ORDMS refused the second applicant’s application, finding that his submissions were contradictory and did not concern a situation in which refugee status or complementary protection could be granted. He appealed to the Odesa Administrative Court. The proceedings were eventually terminated as the second applicant died on 6 March 2015. 32. On 12 August 2015 the ORDMS refused the first applicant’s application, principally for the same reasons as in the case of the second applicant. The first applicant appealed to the Odesa Administrative Court, which has not yet decided on the matter.