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05.08.2008

UHHRU position on the extradition of a refugee by Ukraine’s Prosecutor General

   

On 30 July 2008 the Ukrainian Helsinki Human Rights Union (UHHRU) issued an open appeal over the flagrant violation by the Prosecutor General of domestic and international law in extraditing a refugee to his country of origin.

On the same day the Press Service of the Prosecutor General’s Office [GPU]] published an official statement giving its grounds for the extradition of Oleg Kuznetsov who had been granted refugee status by the Ukrainian authorities.

The GPU official statement contains arguments which arouse concern as to the level of legal awareness of the Prosecutor General who is called upon by the Constitution to oversee observance of human rights and civil liberties and adherence to the law on these issues by the authorities, bodies of local self-government and their officials.  In view of this, UHHRU feels it necessary to state the following.

  1. We consider that the references by the Prosecutor General to any circumstances linked with the accusations against a refugee in his country of origin are of no relevance to the legal assessment of the extradition of a refugee. They replace legal argumentation with considerations of expediency and are simply intended to detract the public’s attention away from the Prosecutor General’s flagrant violation of the law.
  2. We are deeply concerned that in endeavouring to justify his actions, the Prosecutor General presents arguments regarding the legitimacy of the granting of refugee status. Saying that “the given decision directly contravenes Article 10 of the Law “On refuges”, the Prosecutor General forbore to mention that this decision was the subject of judicial examination by the District Administrative Court in Kyiv which in its ruling of 21 July 2008 stated:

“The State Committee of Ukraine on Nationalities and Religions” (the Committee) “fully and objectively studied the material of the case of O.G. Kuznetsov and within its jurisdiction as stipulated in law adopted Decision No. 91-08 on 05.03.08 granting Russian Federation national O,G. Kuznetsov refugee status in Ukraine. This was in accordance with Article 1 § 2 of the Law of Ukraine “On refugees” as a person with an entirely well-founded fear of becoming a victim of persecution for belonging to a certain social group.”

Taken together with Kuznetsov’s extradition to Russia, such a stand from the Prosecutor General demonstrates total contempt for any court ruling which runs counter to his ideas of law and legality

  1. We are also startled to find that the statement officially names the extradited refugee a criminal in advance of a fair court examination of the charges against him. The Prosecutor General resorted to this shocking infringement of the assumption of Oleg Kuznetsov’s innocence despite the ruling of the District Administrative Court in Kyiv of 21 July which states: “In accordance with Article 62 of the Constitution of Ukraine, as well as Article 2 § 2 of the Criminal Code, a person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty” In the case of O.G.Kuznetsov there is no court conviction, and he cannot therefore be considered a person who has committed a crime.

Disregarding the conclusion of the court, the Prosecutor General officially states that “neither international agreements nor domestic legislation establish the demand of mandatory confirmation through a guilty verdict from a court of the fact of a person’s having committed a serious crime as the grounds for refusing to grant them refugee status.”

  1. In the official statement, the Prosecutor General attempts to create the impression that the Prosecutor’s protest and application to the court suspend the force of the appealed act. This conclusion does not comply with current Ukrainian legislation. The procedure for suspending the act being appealed is regulated by the Code of Administrative Justice which envisages that the “submission of an administrative as well as the initiation of proceedings in an administrative case do not suspend the force of the ruling appealed of a body in authority, however the court in providing for the administrative case may issue the relevant decision to suspend a decision by a body in authority or the particular provisions [of the act] being appealed”. , Therefore Article 21 of the Law “On the Prosecutor’s Office” in this situation cannot be applied. Prior to the extradition, the Prosecutor General’s Office understood this and therefore lodged an appeal against the decision in question, however the court in its ruling of 9 July 2008 refused to suspend the force of the decision granting refugee status.
  2. The circumstances of the case indicate that at the moment of extradition, the decision to grant Oleg Kuznetsov refugee status was in force, this following from the ruling of 9 July. However even if the decision granting refugee status had been suspended, Kuznetsov’s extradition should have still been impossible since there had been no decision to refuse him refugee status. In any case he would have been within the procedure for deciding on whether to grant refugee status which would not have cancelled the prohibition on extraditing him.
  3. The principle of “non-refoulement” of refugees and asylum seekers to their country of origin is a jus cogence, principle which is valid even for countries that have not become parties to any international agreement. Mr Medvedko, using the power vested in the Prosecutor General of Ukraine violated this principle.

UHHRU considers it unacceptable for the post of Prosecutor General to be held by a person who:

–  demonstrates open contempt for universally recognized principles of international law;

–  gives preference to considerations of expediency over the law;

–  officially fails to recognize the Constitution of Ukraine, Ukraine’ Criminal Code, the Convention on the Status of Refugees and legislation which the Prosecutor’s Office should be governed by;

–  usurps the powers; which only the courts have and flouts court rulings which are not to his pleasing;

–  considers it possible to publicly name a person a criminal without a court verdict;

–  considers it acceptable to apply two contradictory interpretations of the law on the same case during the space of two weeks.

 

UHHRU reiterates all demands made in the open appeal from 30 July 2008 and awaits the reaction of the President and Verkhovna Rada to the flagrant violations of the law by the Prosecutor General of Ukraine.

 

Head of the UHHRU Board

Arkady Bushchenko

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