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10.03.2006 | Yevhen Zakharov, Kharkiv Human Rights Protection Group

“Only you are unfailing, betrayal …”

   

This line from an old poem from 1974 by Natalya Gorbanevskaya emerged from the past and took hold, probably because it so totally conveys the feeling one has with regard to the recent case where ten Uzbek citizens were handed over by the Ukrainian authorities to Uzbekistan. Betrayal because these people had sought refuge and shelter in Ukraine, and they were handed over to face torture, ill-treatment and years of torment in Uzbek camps.  Betrayal because the authorities speak of their commitment to democracy, about human rights, about the European choice, and they themselves shamelessly abandoned these values. Betrayal because a significant part of Ukrainian society justifies such actions, because the argument goes, one needs to make compromises in the name of Ukraine’s national interests. And we could continue with “because”. As a result the country has landed headfirst in a stinking bog, has still not noticed and is not even thinking of trying to wash itself clean!

Let us, however, consider everything in order

On 7 February at around 6 a.m. a group of armed and masked spetsnaz [special forces] officers burst into an Uzbek café at the Nizhnegorsk Market and forcibly detained four Uzbeks. Another two employees of the café were detained while getting onto a train for Kyiv where they were intending to apply for political asylum.

On the same day, at about 2 p.m., five Uzbeks working in an Uzbek café at Belogorsk were detained as they were returning from an interview in the local immigration office. On 9 February armed Special Forces officers from Simferopol carried out a search of a home in Belogorsk where a small bakery was held. According to the owner of the café letting out the building, all the bags containing flour were ripped open, and the mattresses in the room where people slept were slit.

Those detained were held in custody in Simferopol. 9 of the 11 Uzbeks had from 1 – 6 February applied for political asylum to the Crimean Department of the State Committee for National Minorities and Immigration (hereafter the State Committee), as well as to the Kyiv Office of the UN High Commissioner on Refugees. The other two Uzbeks made their applications while in custody.

Relatives and friends of the detained men immediately turned to the UNHCR who on that same day, 7 February, submitted a note to the State Committee which said that the extradition to Uzbekistan of those detained would be a violation by Ukraine of its international commitments. The Head of the State Committee responded that there could be no question of deportation before procedures were concluded.

On 14 February the UNHCR again sent a note to the State Committee in which it expressed its concerned and received an answer that the issue was being studied in accordance with legislation. However, as it later transpired, on 13 February all those detained had been issued with a resolution from the Crimean Immigration Service turning down their applications for asylum.  On 14 February they were secretly transported to the Kyivsky District Court in Simferopol which supposedly took the decision to deport 10 of the 11 Uzbeks from the territory of Ukraine. The detained allegedly presented the court with written statements consenting to be returned to Uzbekistan. In the night between 14 and 15 February, they were taken by plane from Simferopol to Tashkent.

The fate of the 11th person detained is still not known. Apparently he escaped deportation and was released because he had a close relative in Ukraine. However there has no contact with him since this.

The UNHCR Kyiv found out about the Uzbeks’ deportation from the newspapers. The Head of the State Committee, Serhiy Rudyk, also claims that they heard the same way.

The Security Service of Ukraine (SSU) Press Centre informed Interfax that “as part of the struggle against illegal immigration, the SSU, as part of a joint operation with the Ministry of Internal Affairs of Ukraine on 7 February detained 10 citizens of Uzbekistan. “In connection with the fact that these individuals were illegally staying on Ukrainian territory, on 14 February the Kyivsky District Court in Simferopol ruled to have them deported”.

The Society of Uzbek Political Refugees in Ukraine asserts that Uzbekistan’s request for extradition stated that those detained had been involved in the Andijon events of 13 May 2005, when government forces opened fire and killed hundreds of civilians (different estimates range from 180 to 700 people killed). At the same time only three of the ten were witnesses of the events in Andijon, and the others had actually arrived in Ukraine in February and March last year.

In 2001, four political asylum seekers were deported from Ukraine to Uzbekistan. They were tortured and are still being held in prisons now. In August 2005, 18 members of the party “Byrlyk” were deported from Ukraine.  There have been reports that these people were subjected to torture. And now we have a new deportation.

The actions of the Ukrainian authorities were heavily criticized by such interstate institutions as the UNHCR and the Organization for Security and Cooperation in Europe (OSCE), the US State Department, the world-recognized international human rights organizations Human Rights Watch and Amnesty Internation, many Ukrainian and Russian human rights Organizations, including the Ukrainian Helsinki Human Rights Union, “Memorial”, the Moscow Helsinki Group and the Institute for Human Rights. All of them pointed to violations of the procedure when considering applications for political asylum set out in the UN Convention on the Status of Refugees and of the prohibition on extraditing people to countries where torture and cruel treatment are practiced imposed by the UN Convention on the Status of Refugees, the  UN Convention against Torture and Cruel Treatment and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The German human rights organization specifically concerned with the rights of refugees, Pro Asyl, called on the European Union and the Government of Germany to immediately suspend cooperation with Ukraine in this area.

The entire world community is aware of the nature of the dictatorial regime in Uzbekistan which has become even more repressive since the bloody events of 12 – 13 May in Andijon.  The mass use of torture and extra-judicial executions, the lack of an independent judiciary in the country have been commented upon by the UN High Commissioner for Human Rights, Louise Arbour, and the UN High Commissioner on Refugees, Antonio Guterres, Amnesty International and Human Rights Watch.  Last year a number of human rights organizations and independent media outlets, including the BBC, radio “Svoboda” [Radio “Liberty” and Freedom House were closed down. At the beginning of 2006 the prominent Uzbek human rights activist, Saidzakhon Zainabitdinov, was given a 7-year prison sentence. It was thanks to him that much of the information we have about the tragedy in Andijon was made known.

According to the Chairperson of the Democratic of the Democratic Forum of Uzbekistan, Izmail Dididzhanov, the attitude to Uzbeks in Ukraine has changed since the meeting on 30 January between the Presidents of Ukraine and Uzbekistan.  In his opinion, “Viktor Yushchenko traded the Uzbeks for gas”. According to information he holds, representatives of the Uzbek secret service came to Kyiv with a list of 51 names of people whom Uzbekistan wanted extradited.  And now the extradition of the first group of people from this list has been carried out.

The fierce criticism from western countries and from human rights activists forced an official response from Kyiv, but this was done extremely clumsily. The Head of the Press Service of the Ministry of Foreign Affairs, Vasyl Filipchuk on 21 February stated that the Uzbeks had been in Ukraine without organizing their legal status and had infringed the rules for being in the country.  He said that they had been refused political asylum since their applications had been unfounded, and that they had turned down their right to appeal the decision through the courts in writing.  He added that the Uzbeks were not covered by the Convention on the Status of Refugees since the latter only applied to people having refugee status, whereas the given case had involved the extradition of Uzbek citizens and a justified refusal to grant political asylum.  The last argument was repeated almost verbatim by the First Deputy of the Head of the President’s Secretariat, Anatoly Matviyenko. This argument is patent nonsense since according to the same Convention a person who has applied for political asylum has the same rights as those holding political refugee status, and remains under the protection of the UNHCR throughout the entire period that the application is under review. Procedure stipulates a 7-day period in which appeals may be lodged with the State Committee for National Minorities and Immigration against a refusal by a local immigration office to grant refugee status, then where a rejection is received from the State Committee, a year is allowed to appeal the decision in the courts. The waiving of their right to appeal and consent to being deported to Uzbekistan which Filipchuk refers to cannot be considered as having any legal force and does not cancel out the flagrant violation of procedure set down in the Constitution.

On 28 February a new explanation was presented for the deportation. It now appeared that the Uzbeks were members of an organization called the “Islamic Movement of Uzbekistan” (IMU), which is classified as a terrorist organization by the UN.  This version, without any proof whatsoever, was given on TV Channel 5 by the Press Secretary of the Security Service, Marina Ostapenko. It would appear at very least far-fetched given that the IMU is considered to have been crushed during the US-led military operation in Afghanistan.

Looking at the whole situation, one can conclude that this was a planned illegal extradition, carried out jointly by the Security Service of Ukraine, the Ministry of Internal Affairs, the State Committee for National Minorities and Immigration, the court and other departments. The Ukrainian authorities have at every step of this story allowed flagrant violations of domestic legislation and Ukraine’s international commitments.

It was illegal to hold the Uzbeks in custody in a temporary detention cell. All of those detained had passports on them, while 9 of the 11 were also carrying documents from the UNHCR Kyiv with photos and “green” papers from the immigration office, this meaning that their identity was not in question and there were therefore no grounds for holding them in such temporary detention units.  The remaining two applied for asylum after being detained, and the police submitted these applications to the immigration office which issued them too with the “green” papers. These people can therefore in no way be considered to have been illegal immigrants who were infringing the rules regarding foreign nationals living in Ukraine, There were no grounds for their detention which was illegal and carried out without court sanction.

It remains entirely unclear what happened to the detained Uzbeks in the temporary detention unit and how written consent to being returned to Uzbekistan was extracted. They had after all gone through a lot in order to escape persecution in their own country. They were seeking asylum in another country and could not have agreed of their own free will to return and face new torture and suffering. This suggests that they were forced to sign the documents, possibly with the use of physical violence.  In connection with this, one is disturbed by the strange release and subsequent disappearance of the eleventh Uzbek detained. It is still not known where he is. Therefore the possibility that he died under torture while refusing to sign a document consenting to being returned to Uzbekistan cannot be excluded, and must be thoroughly investigated. It is, in any case, necessary to carry out an official investigation into all the circumstances involving the detention and holding in custody of these people, to establish the role played by the SSU and the MIA and to determine whether there are any grounds for bringing criminal charges over the illegal actions of the enforcement bodies.

It is also crucial to establish what part in this was played by the State Committee for National Minorities and Immigration. It seems clear that this state committee tricked the UNHCR, and itself prepared the extradition. In any case it bears responsibility for the grave infringements of the procedure for gaining refugee status. The role of the court is unclear, including what ruling it actually passed in this case, and whether the Uzbeks were ensured the right to defence and other standards of a just legal system. In other words a check must be made of the court ruling, and for this to begin access must be obtained to the court ruling and the protocol records of the court hearing.

One of the factors which enable illegal actions is the absence in law of a procedure for court review of a question involving extradition or other forcible deportation of individuals to another state, with a stay placed on implementing any decision of an executive body under the ruling of the court has come into force. A law providing this procedure needs to be drawn up and submitted to parliament.

However, it is first of all vital to stop hiding our heads in the sand and to acknowledge that grave violations of human rights have been committed and to make the appropriate assessment of the actions of Ukrainian bodies of power. The haste with which the decision on extradition was taken, the unlawfulness of this decision, the fact that it was not possible to appeal it in contravention of international agreements are clear to everybody and must be recognized at the highest level. This is also crucial in order to prevent such cases occurring in the future. The vague commentary from the President in response to a request from journalists to explain the deportation of the Uzbeks (“Undoubtedly there needs to be a review of Ukraine’s foreign and domestic policy. Ukraine still needs to understand the democratic values obtained during the “orange revolution”. This is a road which needs to be taken”) can in no way be considered such an acknowledgement.

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