In mid-March 2021, the European Court of Human Rights (ECtHR) ruled in case “TURDIKHOJAEV v. UKRAINE” (application no. 72510/12). The Court found that Ukraine had violated Article 3 and parts one and five of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the prohibition of inhuman treatment and the right to liberty and security of person.
The case concerned a complaint of a citizen of Uzbekistan regarding his extradition detention in Ukraine after being recognized as a refugee by the Swedish government, as well as the conditions of his detention in the Kyiv Remand Prison inside the metal cell in the courtroom.
The applicant was detained after arriving at Boryspil Airport in June 2012 as he was on the international wanted list at the request of Uzbekistan, and the Boryspil Court remanded him in custody for 30 days. Following his arrest, the applicant applied for refugee status.
In July 2012, Uzbekistan sent an extradition request, accusing this man of a membership in an extremist (fundamentalist) organization, distributing “subversive” literature, and attempting to overthrow the constitutional order in Uzbekistan. The Shevchenkivsky District Court applied an extradition arrest to the applicant for the duration of the extradition proceedings, but not more than 18 months.
In December 2012 the State Migration Service of Ukraine (SMSU) refused to recognize the applicant as a refugee. The court reviewed and extended the extradition arrest several times in 2012 and 2013. In January 2013 the Prosecutor General’s Office of Ukraine decided to extradite the applicant to Uzbekistan. In February 2013, the Shevchenko court upheld the decision.
In March 2013 the District Administrative Court upheld the SMSU decision to deny the applicant refugee status. When the extradition case was heard in the Court of Appeal, the applicant was kept in a metal cage, although he begged not to do so, as he had not committed any violent crime and should have been presumed innocent in accordance with the constitutional principle of the presumption of innocence.
In April 2013 the applicant was recognized as a refugee by the Swedish Government and was allowed to settle in Sweden. The Office of the United Nations High Commissioner for Refugees (UNHCR) immediately informed the Prosecutor General’s Office of Ukraine (PGOU) about this decision. The Swedish embassy in Ukraine also notified the PGOU about this fact. In accordance with the provisions of the Criminal Procedure Code of Ukraine, the recognition of the applicant as a refugee makes it impossible to extradite such a person.
However, the prosecutors did not pay attention to these circumstances and continued to defend their extradition decision, despite the fact that in mid-May 2013 they even received a copy of the decision to recognize the applicant as a refugee from the Swedish embassy.
At the end of May the Kyiv Administrative Court of Appeal upheld the SMSU decision to deny the applicant refugee status.
In early June 2013 the Kyiv City Court of Appeal quashed the Migration Service decision to extradite the applicant. The next day after the applicant’s decision he was released. Later, he moved to Sweden, where he lives to this day.
From the end of June 2012 to the beginning of June 2013 the applicant was held in the Kyiv remand prison in various cells: for 7 days he was held in a 31.6 square meters cell together with 28 other detainees, for 45 days in a 34 square meters cell with 30 cellmates, 5 months in a cell with an area of 39.2 square meters together with 22 people and another 5 months in a cell with an area of 53.3 square meters with 33 cellmates. All these cells did not have ventilation, the conditions were unbearable. The applicant was defended in national courts by the ECtHR by the lawyers of the Charitable Fund “Right to Protection” (R2P).
The ECtHR found a violation of Article 3 of the ECHR concerning the conditions of the applicant’s detention in a Kyiv pre-trial detention center and his placement in a metal cage during court hearings, a violation of Article 5 § 1 concerning the applicant’s extradition arrest until the moment of actual release (one and a half months), and violation of the fifth part of Article 5 regarding the lack of an effective legal mechanism for obtaining compensation for illegal detention at the national level.
The fair satisfaction awarded by the court in this case amounted to EUR 9,000, which the applicant shall receive from Ukraine within three months.
Although there have been no cases of recognized refugees detention for the purpose of extraditing since the events took place, violations of the rights of asylum seekers during the extradition procedure still exist. Thus, there is a conflict between the requirements of the Law of Ukraine “On Refugees and Persons in Need of Additional or Temporary Protection“, which requires a personal application for refugee status, while at the same time the law on detention does not allow to apply for such a status from the sites of imprisonment.
- Charitable Fund “Right to Protection” (R2P) Proposals to the draft Law on Amendments to the Code of Administrative Offenses for improving the Migration legislation
- What is a Migrant Accommodation Centre (MAC) in Ukraine?
- Analysis of the draft law on Internees № 4327 dated 05.11.2020
- R2P developed the Handbook for human rights activists working with refugees and stateless
- Can Ukraine extradite an asylum seeker?