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XVII. Rights of foreigners and stateless persons in Ukraine

[1]

1. Legislative drafting and regulatory enforcement in 2014

Due to the Revolution of Dignity, occupation of the AR of Crimea by the Russian Federation and the anti-terrorist operation (ATO) in Donetsk and Luhansk regions the process of legislative drafting in migration sphere, which became substantially slower during the last year[2], in 2014 almost came to a halt.

However, regardless of the state’s priority in migration sphere reasonably consisting in resolution of urgent problems of hundreds of thousands of the internally displaced persons who moved from the temporarily occupied territories and districts of the ATO, on May 13, 2014 the Law of Ukraine was adopted “On amendments to article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection” No. 1251-VII with effect from May 30, 2014.

To a certain extent, this Law extends the list of grounds for granting subsidiary or temporary protection to foreigners and stateless persons (SPs) in the territory of Ukraine as compared to the previous version of article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection”. It also eliminates certain inherent contradictions that were present in the previous version of this article.

Thus, with effect from May 30, 2014, in accordance with subclauses 4 and 13, article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection”, a foreigner or a stateless person requesting protection in Ukraine must be given this “subsidiary protection” if such person “is not a refugee as defined in the UN 1951 Convention relating to the Status of Refugees or 1967 Protocol and this Law, but needs protection, since such person was forced to come to Ukraine and stay in Ukraine due to danger to life, safety or freedom in the country of their descent or due to fear of death penalty or execution of verdict of death penalty or tortures, inhuman or degrading treatment or punishment or widely-spread violence in situations of international or internal armed conflict or repeated violations of human rights, and cannot or does not want to return to such country due to the said fears”.

Besides, the Law of Ukraine “On amendments to article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection” No. 1251-VII removes restriction regarding provision of temporary protection to asylum seekers by geographical criteria (subclauses 14 and 21, article 1 of the Law “On refugees and persons in need of subsidiary or temporary protection”). These amendments are aimed at harmonization of national legislation with provisions of article 2(f) and article 17 of the Directive 2011/95/EU of the European Parliament and of the Council on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.

At the same time, the precedents of application by national executive and judicial bodies of subclauses 4 and 13, article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection” in 2014 demonstrated certain difficulties in interpretation of the term “inhuman or degrading treatment or punishment” by authorities of the State Migration Service (SMS) and domestic courts, since the national legislation provides no definition for this term.

It must be noted that, unfortunately, the SMS of Ukraine ceased publishing statistical data regarding the number of persons who seek protection in Ukraine as well as persons recognized as refugees or subject to subsidiary protection, which is a violation of legislative requirements on access to public information. However, precedents of human rights groups in conjunction with the UNHCR evidence that percentage of immigrants from Syria who received this or that form of international protection in Ukraine during 2014, is substantially higher as compared to the previous years’ figures. Increase in the number of persons who are granted protection in the territory of Ukraine due to the evident risks of persecution or cruel treatment in the countries of their descent, including due to the relevant changes introduced in 2014, by all means, is a positive tendency demonstrating improvement of the national refuge system.

Under the pressure of requirements of Action Action Plan on Liberalization of EU Visa Regime for Ukraine, in the I half of 2014 legislators made a series of some other amendments to the national legislation.

Thus, at the Government’s initiative, on April 17, 2014, the Verkhovna Rada approved the Law “On amendments to the Laws of Ukraine “On fundamental principles of social protection of homeless persons and neglected children” and “On employment of population” No. 1221-VII, which cancels the requirement of charging a fee for issuance to potential employers of refuge seekers of a special permit for use of their labour.

Also, by its resolution No. 121 dated March 19, 2014, the Cabinet of Ministers approved the new Procedure for providing medical aid to foreigners and stateless persons permanently residing or temporarily staying in the territory of Ukraine, thus consolidating a free access to urgent medical aid for foreigners.

The Law of Ukraine “On amendments to the Law of Ukraine “On legal status of foreigners and stateless persons” regarding eligibility of stay of foreigners and stateless persons in the territory of Ukraine” No. 1539-VII dated June 19, 2014 somewhat extended the range of foreigners and SPs eligible for obtaining temporary permit for residence in Ukraine by including thereto professional athletes as well as those foreigners and SPs who do not need a work permit.

2. Major problems regarding the rights of foreigners
and SPs in Ukraine

Article 8 of ECHR does not only establish the obligation for the Convention Member States to not deport foreigners and stateless persons whose deportation shall constitute inadequate interference with their family or even private life[3] but also stipulates that refusal to document a person (to grant the right of residence in the territory of the Convention Member State), who may not be deported from the territory of the ECHR Member State and by virtue of the Convention provisions (regardless of requirements of the national legislation) is entitled to stay in the territory of such country, is in itself the Convention-prohibited inadequate interference of the state with the person’s right to respect of their privacy[4].

In other words, ECHR established the following principle: “if you can’t deport a foreigner, then document his or her right to reside on your territory”. This means that ECHR makes intolerable the existence of so called “stranded migrants”.

However, the effective national legislation does not dispose of any proper instruments for regulation of status of such persons. Today, in Ukraine there are many foreigners and SPs, most of whom immigrated from the Russian Federation and who may not be deported from the territory of Ukraine due to certain objective reasons, including due to close family or personal relations with Ukraine, but at the same time they cannot obtain a permit for legal stay/residence in the territory of Ukraine.

Due to flaws of the national legislation, these people, on the one hand, are deprived of access to realization of necessities of their lives (registering marriages, giving birth to children, purchasing real estate, buying a train ticket) or the possibility of regulating their legal status in the territory of Ukraine, and on the other hand, they disappear from radars of the public tranquillity control authorities. This problem is highly topical for persons who due to conflict of laws related to collapse of the USSR appeared to be in a stateless situation.

Also, it is not infrequent that a person de jure is not a SP but, for example, due to their parents’ violation of legislative provisions on citizenship of the country of descent de facto is a SP, since such person may not be protected by the country of descent due to lack of documents certifying their relation to the country of descent, and cannot hope for obtaining them in the future, since without an identification document the person will not be able to visit the country of descent. The said persons often do not also have any money for going to the country of their descent and staying there for the time required for establishing their citizenship.

Another legal instrument intended for documentation of the right to stay in Ukraine for foreigners and SPs who cannot be expelled from the territory of Ukraine, consists in the right of obtaining by persons, whose expulsion prior to expiration of the time limit for detention at the Point of Temporary Stay for Foreigners (PTSF) was impossible, of a permit for temporary stay in the territory of Ukraine for the period of up to 1 year, which is stipulated by part 17, article 4 of the Law of Ukraine “On legal status of foreigners and stateless persons”. However, this instrument may not be regarded as an adequate approach to regulation of the “stranded migrants” issue if for no other reason than detention of foreigners at PTSF as an instrument for ensuring their expulsion contradicts requirements of Article 5 of the ECHR.

In compliance with requirements of Article 8 of the ECHR regarding documentation of foreigners and stateless persons, who cannot be deported, including due to close family or personal relations with the Convention Member State, legislation of the European countries provides for the so-called “humanitarian status” or “discretionary leave” as it is called in the UK.

However, the Ukrainian legislation does not provide for such special status, and thus damages the lives of people and their families who often happened to be in such a difficult situation not by choice; this also constitutes grounds for Ukraine’s violation of its conventional duties, removes such people from the field of vision of the law enforcement authorities as well as excludes their incomes from the legal economic turnover. Besides, the Law of Ukraine “On the status of foreigners and stateless persons”, the Law of Ukraine “On citizenship of Ukraine” and bylaws approved for their implementation, in fact, do not stipulate any procedure for establishing the SP status.

A certificate of stateless person to travel abroad, which is stipulated in clause 7 of the Regulations on SP certificate to travel abroad approved by resolution of the Cabinet of Ministers of Ukraine No. 610 dated August 07, 1995, may be executed only for those SPs, who are eligible to stay in Ukraine, which practically means that such person must have some identification documents. Since SPs have no citizenship or nationality, they a priori cannot have any up-to-date documents confirming their identity. If one is fortunate, one may still have a birth certificate which does not give any lawful grounds for staying in the territory of Ukraine.

Thus, SPs who by the twist of fate happened to be in the territory of Ukraine are trapped inside a vicious circle: they do not have any identification documents, therefore, they are not eligible for staying in the territory of Ukraine, consequently, they cannot be recognized as SPs in Ukraine.

International legislation in the SPs matters effective in Ukraine consists of the UN 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Both Conventions came into effect in Ukraine in June, 2013. According to provisions of article 33 of the Convention relating to the Status of Stateless Persons, the Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. Namely, they must do everything they can to accelerate procedures of naturalization and possible reduction of the associated charges and costs. However, these provisions of article 33 of the said Convention have never been implemented in Ukraine.

3. Arrest and imprisonment of foreigners and SPs

The Law of Ukraine “On the status of foreigners and stateless persons” and the bylaws approved for its implementation provide for no measures of enforcing decisions on the forced expulsion, which would be an alternative to the detention and confinement in the points of temporary stay for foreigners and SPs. Thus, the case law is limited to legislative compulsion to automatically confine a foreigner for the period of up to 12 months for the purpose of their expulsion from the territory of Ukraine regardless of the personal circumstances of such person, him or her having a family in the territory of Ukraine etc.

And this is in conflict with article 5 of the ECHR[5] as well as article 29 of the Constitution of Ukraine stipulating that liberty and security of person is a special value and that no one shall be deprived of his liberty otherwise than by a substantiated court decision. Given there is no law-provided choice, the arrest procedure of such persons is an automatic measure deprived of any guarantees.

This also contradicts provisions of article 15 of the Directive 2008/115/EU[6] stating that the Member States can keep in detention a third-country national in order to prepare the return of the latter unless other sufficient but less coercive measures can be applied effectively in a specific case. Similarly, the principle 6.1 contained in the Twenty major principles regarding the compulsive return dated May 04, 2005 stipulates that a person may be detained for further removal if such a removal process complies with the procedure established by law and in case when after thorough examination of the necessity of such detention in each individual case the authorities of the receiving country came to the conclusion that the decision on removal may not be efficiently ensured by applying measures unrelated to imprisonment, such as supervision and control system, caution bail etc.

Moreover, the imprisonment method itself does not comply with the Constitution of Ukraine. Thus, article 29 of the Constitution states that a person may be imprisoned pursuant to a court decision only. However, a person is arrested and detained pursuant to the administrative decision of the migration authority since according to legislation courts have no competence in this matter[7].

Another issue of concern is that there is no legislative procedure for reconsideration of lawfulness or duration of the persons’ detention. Thus, persons are detained for 12 months and have no right for reconsideration of lawfulness of their detention, which directly violates part 4, article 5 of the ECHR[8].

In the context of detaining third-country nationals or stateless persons there in a problem of legal vacuum with respect to detention at the border checkpoints of persons who were not admitted to the territory of Ukraine.

The Ukrainian legislation has never had nor currently has the required procedural guarantees of ensuring the major human rights with respect to that category of persons who were banned to enter the territory of Ukraine, and does not regulate the legal status of those who were detained in order to prevent an unauthorized entry.

The only article of legislation mentioning such persons is part 2, article 14 of the Law of Ukraine “On the legal status of foreigners and stateless persons”, which stipulates the following: “In case of unlawful crossing of the state border of Ukraine outside points of entry at the state border of Ukraine, foreigners and stateless persons shall be detained, and in case their violation of the Ukrainian legislation does not provide for criminal liability, they shall be returned to the country of their previous stay in accordance with the established procedure”.

However, the said provision does not regulate the procedure for detention of such persons, place of their detention, guarantees of rights of such persons, maximum term of their detention etc. Therefore, there is a gap in the legislation in this respect.

At the same time, their detention is not consolidated in any procedure whatsoever, and according to precedents a person is detained without execution of any documents or approval of any decisions, which means that such detention at the point of entry is arbitrary and illegal in the context of part 1, article 5 of the ECHR[9].

4. Rights of asylum seekers

There is a certain conflict between provisions of clause 3, part 1, article 1 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection”, according to which the certificate of protection request in Ukraine (Certificate) is a document certifying lawfulness of a person’s stay in the territory of Ukraine in the period commencing from the moment of the person’s filing a proper application to be qualified as a refugee or person in need of subsidiary protection (Application), and remains valid to exercise rights and fulfil obligations stipulated in this Law and other laws of Ukraine till the final determination of status of such person or his or her departure from the territory of Ukraine, and provisions of part 1, article 13 of the Law of Ukraine “On the Unified State Demographic Register and documents certifying the Ukrainian citizenship, identity of a person or their special status”, which sets forth an exhaustive list of identification documents with no Certificate mentioned therein.

At the same time, account must be taken of the existing practice of the SMS bodies of Ukraine, which take away the national passport of an asylum seeker when accepting his Application, and this single procedure entails a series of complications: after filing an Application, it will be difficult for a person to get it back during its validity term, for example, for the purposes to register vital statistics acts; and after expiration of the national passport’s validity term, an asylum seeker cannot renew its validity at the embassy of the country of their descent; de facto a person with asylum seeker status is deprived of the opportunity to fully exercise his rights.

Besides, the Law stipulates an illogical and upfront bureaucratic procedure for the Certificate issuance and renewal of its validity term. Thus, for example, in case of denial to accept his Application, an asylum seeker will obtain the Certificate only in case of him appealing such denial. First of all, far not all asylum seekers (particularly those who cannot speak either Ukrainian or Russian) understand the very possibility of filing an appeal against such denial. Secondly, the denial may be appealed only within 5 days; an asylum seeker obtains only the notification of denial to grant protection but not the order of a local body of the SMS of Ukraine on such denial; during these 5 days an asylum seeker must find a lawyer who will help him execute and lodge an administrative action, in fact, having no clue about the reason of such denial.

Further on, the validity term of the Certificate will be renewed for the period of appeal provided that an asylum seeker presented evidences of the judicial consideration of the case (writs of summons, court resolutions or rulings, appeals of cassation appeals with evidences of their submission to the court), at the same time, the evidences of participation of employees of this very SMS body in the court sessions, and also the information they have about the case status. Besides, the validity term of the Certificate is prolonged for only 1 month, which is obviously not enough for judicial consideration of the case and, thus, an asylum seeker must appear before the local SMS body every month in order to prolong their Certificate.

At the same time, for example, Department for Refugees Affairs of the Main Department of the SMS of Ukraine in the City of Kyiv (where asylum seekers file their applications, their cases are kept on file, interviews are held, Certificates are issued and prolonged) and the Main Department of the SMS of Ukraine itself (where a seal is kept, which must affixed onto all documents — notifications, copies of orders and, the most important, inscription about the Certificate prolongation) are located at a different address, and that is why asylum seekers often have to wait for 1–2 days to have their Certificates renewed and living all this time with no documents whatsoever.

In case the Application is approved, an asylum seeker is issued the Certificate with a validity period of 1 month, during which a decision must be made regarding either approval or denial to execute documents under his Application. If in future the SMS body approves an order on denial in execution of documents, a refuge seeker will also have the right to appeal it during 5 days following the same procedure with the above described flaws. in case the decision is approved on execution of documents, an asylum seeker will have his Certificate renewed on a monthly basis, while in actual practice the procedure of documents execution and approval of decision on recognizing a person as a refugee or person in need of subsidiary protection, or decision on denial thereof, takes from 6 months up to 1 year. This means that de facto an asylum seeker is forced to appeal to the SMS body every two months with a request to renew his Certificate.

Another issue of concern if integration of asylum seekers into life of the receiving country. Thus, the effective national legislation, regardless of the fact that an asylum seekers constitute a particularly vulnerable category of population who need special social protection not only does provide for no social assistance on part of the state but actually deprives them of access to legal employment which could allow asylum seekers to independently support at least their basic needs and even make a contribution into development of the Ukrainian economy through payment of taxes by limiting their access to the labour market with the requirement of employer’s obtaining a permit to use foreign labour.

Besides, it is practically impossible for asylum seekers to obtain an identification code which is required for carrying out any economic activities in the territory of Ukraine since, as it was already emphasized above, the Certificate with which all asylum seekers are documented in Ukraine, is not recognized as an identification document, therefore, it cannot constitute grounds for issuance of the identification code, while passport documents are handed in to the relevant local SMS bodies for the whole period of consideration of their status, and the national legislation provides for no possibility to issue asylum seekers their passports even for the purpose of obtaining an identification code or registration documents etc. As it was specified above, most time while their applications are under consideration asylum seekers in Ukraine have in possession only one document which is valid for a month only[10].

At the same time, in order to employ an asylum seeker and to legally obtain the necessary permit, an employer must at least 15 days prior to applying for a permit to use labour of foreigners and stateless persons, submit to the local body of the State Employment Service information about the labour demand (vacancies), pursuant to which such body shall facilitate in employment of the Ukrainian citizens. Upon the employer’s filing an application for a relevant permit, some time must pass for it to be executed which taking into consideration the certificate’s validity term of 1 month, makes it practically impossible to legally employ asylum seekers.

Besides the abovementioned problems, there is also another significant problem related to the Certificate as well as to the refugee certificate and certificate of a person in need of subsidiary protection.

Provisions of part 1, article 6 of the Law of Ukraine “On the freedom of movement and free choice of the place of residence in Ukraine” oblige asylum seekers as well as the recognized refugees to register at the new address within 10 days from change of the place of residence in accordance with the procedure established by law. The problem is that according to provisions of part 2, article 6 of this Law such persons will have to submit documents confirming their right to reside in certain housing facilities. In reality, such persons are forced to rent dwelling concluding no relevant agreements, not to mention the dwelling’s owner giving their consent to registration of a foreigner at their premises. If an asylum seeker or refugee has underage children or the prospect for their appearance, the dwelling’s owner will in no way give his consent to registration of their place of residence in order to avoid the risk of application of provisions of the Law of Ukraine “On childhood protection”, which guarantee the child’s right to housing.

Thus, it is an artificially created situation that the majority of asylum seekers or even recognized refugees cannot register their place of residence due to excessive bureaucratization of the general procedure and biased attitude of lessors, which results in foreigners bearing administrative liability under article 203 of the Administrative Offences Code of Ukraine.

At the same time, provisions of clause 2.4. “Freedom of movement within the territory of Ukraine” of Block 4 “External relations and fundamental rights” of the Action plan on liberalization of visa regime between Ukraine and the EU require revision of legislative and regulatory principles for implementing procedures of registering and deregistering citizens of Ukraine, foreigners and stateless persons who are eligible to stay in the territory of Ukraine, in order to avoid unreasonable restrictions or obligations with respect to their freedom of movement within the territory of Ukraine, namely with respect to conditions of legal residence without registration of place of residence or measures used in the case when a person failed to comply with the registration requirements, and also with respect to liability of persons renting a dwelling.

Another problem is non-compliance of practices of the SMS bodies with provisions of article 14 of the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection”, according to which a refugee status gives a person the same rights and obligations as the Ukrainian citizens have as well as the right of permanent residence in Ukraine, and also with provisions of part 11, article 10 of the said law stipulating that a refugee certificate is issued once in 5 years and provisions of clause 7 of the Regulations on a refugee certificate approved by Resolution of the CM of Ukraine No. 202 dated March 14, 2012, according to which the certificate is issued by a local body for the period of five years. In reality, the SMS bodies unlawfully make recognized refugees renew their certificates every year.

From our point of view, one-year validity term of the refugee certificate stipulated in the previous statutory instruments as well as the five-year validity term are both unsubstantiated and prejudiced since a passport of the citizen of Ukraine has only logically relevant peculiarities of unlimited validity term — pasting photographs at the age of 25 and 45.

5. Conclusions

To bring the national legislation and case law to compliance with the international standards, Ukraine must immediately take the following measures for protection of rights of foreigners and SPs:

1. Make amendments to the Law of Ukraine “On the status of refugees and stateless persons” by supplementing it with provisions on the special “humanitarian status” of those foreigners and SPs who stay in the territory of Ukraine though ineligibly but due to their having a firm relation with Ukraine or impossibility of their deportation to the country of their descent provided there are no grounds for recognizing them as refugees or persons in need of subsidiary or temporary protection in order to document their stay in the territory of Ukraine for protection of their rights as well as for the efficient state control.

2. Make amendments to the Law of Ukraine “On citizenship of Ukraine” regarding admittance to the Ukrainian citizenship of SPs who have been residing in the territory of Ukraine for more than 1 calendar year under simplified procedure by allowing SPs to confirm their residence in the territory of Ukraine by any means they have at their disposal, including but not limited to: testimony of witnesses, certificates from enterprises, institutions or organisations of all forms of ownership, non-governmental organisations, payment documents etc.

3. Through relevant statutory instruments regulate the procedure for recognition of the SP status;

4. Through relevant statutory instruments regulate the procedure, terms and conditions for detention and imprisonment of foreigners and SPs for the purpose of their removal with due consideration of requirements of special legislation regarding asylum seekers in Ukraine.

5. Provide for application to foreigners and SPs detained for the purpose of their removal of measures for enforcement of decisions on removal other than the measure of imprisonment.

6. Sntroduce a procedure for periodical reconsideration of decisions on detention and imprisonment of foreigners and SPs for their removal.

7. Through the relevant statutory instruments regulate the procedure, terms and conditions of detention and imprisonment of foreigners and SPs who were not admitted to the territory of Ukraine.

8. Through the relevant statutory instruments regulate the procedure and terms of transferring by the State Border Guard Service of Ukraine of those foreigners and SPs who were not admitted to the territory of Ukraine but who declared about their seeking international protection in Ukraine and expressed the intention to file a relevant application to the local body of the SMS of Ukraine.

9. Include the certificate of requesting protection in Ukraine to the list of identification documents, which is set forth in part 1, article 13 of the Law of Ukraine “On the Unified State Demographic Register and documents certifying the Ukrainian citizenship, identity of a person or their special status”. Establish the certificate’s validity term of 6 months with the possibility of its prolongation for the same period.

10. Cancel the requirement where an employer is required to obtain a permit to employ asylum seekers in Ukraine.

11. Exclude from the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection” such stages of consideration of applications as denial to accept applications for recognition of refugee status or person in need of subsidiary protection and the denial to execute documents based on application for recognition of refugee status or person in need of subsidiary protection. Applications for recognition of refugee status must be automatically accepted and pursuant to it all the required documents must be executed for approval of a lawful and substantiated decision on recognition of refugee status or person in need of subsidiary protection or on denial in such recognition.

12. Cancel administrative liability under article 203 of the Administrative Offences Code of Ukraine for failure to register or late registration of the place of residence in the territory of Ukraine. Make amendments to the Law of Ukraine “On freedom of movement and free choice of a place of residence in Ukraine” with respect to declarative nature of registration of the place of residence (according to oral information provided by holder of the identification document) by excluding the obligation to submit documents certifying the right to use a dwelling and, at the same time, excluding from the effective national legislation all relations of registration of the place of residence to property rights, at least for asylum seekers and recognized refugees.

13. Make amendments to the Law of Ukraine “On refugees and persons in need of subsidiary or temporary protection” and the relevant bylaws approved for implementation of its provisions regarding a five-year validity term of the refugee certificate by making such validity period unlimited as it is with passport of the citizen of Ukraine on condition of pasting photographs at the age of 25 and 45.

14. Make amendments to the Law of Ukraine “On free-of-charge legal assistance” and introduce provision of free-of-charge legal assistance to asylum seekers in Ukraine and the recognized refugees with effect from January 01, 2015. At the same time, make amendments to qualification requirements for employees of departments of the SMS of Ukraine for refugees’ affairs by adding the mandatory requirement of speaking foreign languages, first of all, English and French as languages of international communication.

[1] The report is prepared by the All-Ukrainian Charitable Foundation “The Right to Protection”.

[2] The report of Human Rights in Ukraine for 2013 is in the public domain of the UHHRU official website at the link: http://helsinki.org.ua/index.php?id=1398062575

[3] See inter alia decision of the ECHR: dated August 02, 2001 in the case of Boultif v. Switzerland, application No. 54273/00; dated June 23, 2008 in the case of Maslov v. Austria, application No. 1638/03, dated September 02, 2012 in the case of Kaushal and Others v. Bulgaria, application No. 1537/08; dated February 15, 2011 in the case of Geleri v. Romania, application No. 33118/05.

[4] See inter alia decision of the ECHR: dated January 15, 2007 in the case of Sisojeva and others v. Lithuania, application No. 60654/00; dated June 26, 2012 in the case of Kuric and Others v. Slovenia, application No. 26828/06.

[5] See decision of the ECHR dated April 04, 2000 in the case of Vitold Litva v. Poland, application No. 26629/95 and decision of the ECHR dated April 05, 2011 in the case of Rahimi v. Greece, application No. 8867/08: “Detention of a person is such a serious measure [of imprisonment] that can only be justified in the situation, when other, less severe measures were considered and recognized as insufficient for protection of individual or social interests, which could want for such person to be imprisoned. It is necessary that imprisonment is applied not only in accordance with the national legislation but also in view of guarantees of article 5 of the Convention”.

[6] See Directive 200/15/EU dated December 16, 2008 “On general standards and procedures to be applied in Member States for returning third-country nationals”.

[7] See informational letter of the Higher Administrative Court of Ukraine dated July 16, 2013 under No. 986/12/13-13 “…since the legislation does not establish the right of public bodies to appeal to court with a request to arrest a foreigner or a stateless person, and the administrative court has no competence to resolve such matters, then in case of filing such action the administrative court shall in accordance with clause 1, part 1, article 109 of the Code of Administrative Court Procedure of Ukraine refuse to open proceedings in the administrative case or in accordance with clause 1, part 1, article 157 of the Code of Administrative Court Procedure of Ukraine — close proceedings in such case”.

[8] See decision of the ECHR dated October 28, 2010 in the case of Molodorych v. Ukraine: “Possibility of initiating the procedure on revision of lawfulness of detention must be granted soon after the person is detained and, if necessary, in a reasonable period of time thereafter”.

[9] See §95 of decision of the ECHR dated February 12, 2009 in the case of Nolan and K. v. Russia, application No. 2512/04, and §45 of decision of the ECHR dated November 27, 2003 in the case of Shamsa v. Poland, applications No. 45355/99 and 45357/99.

[10] See Order of the MIA of Ukraine No. 649 dated September 07, 2011 “On approval of Rules for consideration of requests and execution of documents required for resolution of the issue of recognizing a person as a refugee or as a person in need of subsidiary protection, loss and deprivation of the status of a refugee and subsidiary protection, and annulment of decision on recognizing a person as a refugee or as a person in need of subsidiary protection”.