Ukraine’s Ministry of Justice considers the deportation of Uzbek nationals illegal

The Ministry of Justice of Ukraine

Ukraine, 01001, Kyiv, Horodetsky Street, 13

Tel / Fax: (38-044) 278-37-23

03.05.2006  No ……

[Address of the recipient]

The Ministry of Justice has considered your letter from 21 March 2006 regarding the detention, holding in custody and deportation of citizens of Uzbekistan, and would inform you of the following.

Ukraine has, since 2002, been a signatory to the UN Convention relating to the Status of Refugees of 1951 and the Protocol to the Convention from 1967.  The legal status of refugees in Ukraine, the procedure for granting, losing or depriving them of this status, as well as state guarantees to protect refugees are set out in the Law of Ukraine “On Refugees” (hereafter “the Law”). In addition, Ukraine is a signatory to the UN Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “the European Convention”), the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter “the UN Convention against Torture”), which contain an absolute prohibition on torture, this being an imperative norm of international law.

The Department of the Immigration Service in the Autonomous Republic of the Crimea refused to allow the applicants to register documents to resolve the issue of whether they be granted refugee status on the basis of Article 12 § 6 of the Law due to the “obvious lack of grounds” for the applications from citizens of Uzbekistan. They were claiming that there were grounds foreseen in Article 1 § 2 of this Law (“extremely well-founded fear of becoming a victim of persecution on the grounds of race, beliefs, nationality, citizenship, membership of a particular social group or political opinion”).  In this respect, the Ministry of Justice considers that the nature of the events of 12 – 13 May 2005 in the city of Adijan (Uzbekistan) which resulted in the death of people through violent measures applied by the military and security service of Uzbekistan is generally recognized. The events were described as a grave violation of human rights by the international community.

In its report from 12 July 2005 the UN High Commissioner for Human Rights stated that “the Uzbekistan military and security forces committed grave violations of human rights, largely the right to life”. In their reports, the UN Special Rapporteur on Torture has on many occasions identified Uzbekistan as a country where systematic torture is applied.  The Special Rapporteur  has stated that torture is applied on a mass scale to individuals accused of serious crimes against the interests of the state. Concern regarding the observance of human rights in Uzbekistan has also been expressed by the Council of the European Union, the UN High Commissioner for Refugees and other international institutions.

With regard to the assertion that the applicants turned down their right to appeal the decision of the body of the Immigration Service, the following should be noted.

In accordance with Article 16 of the Law an individual has the right to make an appeal against a decision by a body of the Immigration Service to register his or her documents to the State Committee for National Minorities and Immigration within seven days of receiving the relevant notification, as well as to the courts.

The individuals in question were not provided with legal aid, that is, they did not have the possibility to receive the qualified assistance of a lawyer, nor were representatives of the Office of the UN High Commissioner on Refugees or human rights organizations allowed to see them.

According to Article 55  § 2 of the Constitution of Ukraine Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers.  In accordance with Article 3 of the Civil Procedure Code of Ukraine a rejection of the right to seek defence from the court has no validity.

Article 10 of the Law allows for a person to be refused refugee status if he or she committed a serious crime of a non-political nature beyond Ukraine’s borders before arriving in Ukraine with the intention of seeking refugee status, as long as such an action is classified by the Criminal Code of Ukraine as a serious crime, A person may also be refused such status if he or she is guilty of actions which run counter to the aim and principles of the United Nations Organization. Such crimes and actions also include terrorism.

However the mere fact of receiving a request for extradition from the bodies of the Prosecutor of Uzbekistan on the grounds that the person is wanted for committing terrorist acts does not constitute sufficient grounds for forcibly deporting a refugee without the appropriate review of the individual’s application asserting persecution on political grounds.

Furthermore, Ukraine, in fulfilling its international commitments under the UN Convention against Torture, the European Convention on Human Rights, and in observing the norms of ordinary international law, must adhere also to the principle of non-refoulment  expressed in particular in the prohibition on the deportation of refugees or their forced repatriation to the country from which they have arrived and where their life or liberty may be threatened on the grounds of their race, religion, nationality, membership of a particular social group or political opinion (Article 33 of the UN Convention relating to the Status of Refugees, and Article 3 of the Law). Analogous norms are also contained in the UN Convention against Torture, and this principle is enshrined in the case law of the European Court of Human Rights.

Yours sincerely,

Deputy Minister, D. M. Kotlyar