The decision of the power organs about not-giving the refugee status was acknowledged to be illegal

We want to present a resolution of the town court of Vinnitsa, which, in our opinion, will be useful to our readers, especially to those, who deal with the protection of refugees’ rights.

«PL» editorial board

Case No. 2-3086/03

RESOLUTION

IN THE NAME OF UKRAINE

21 July 2003

Leninskiy district court of Vinnitsa

Composition: chairman – I. Vishar

Secretary – N. Gudemchuk

The court considered the civil case after the complaints of Somali citizens A., B. and S. against the decision of the department in charge of the questions of nationalities and migration of the Vinnitsa oblast administration and issued the following

RESOLUTION:

Somali citizens A., B. and S. turned to the court with the claim against the decision of the department in charge of the questions of nationalities and migration of the Vinnitsa oblast administration.

The complainers informed that on 26 June 2003 they turned to the department in charge of the questions of nationalities and migration of the Vinnitsa oblast administration with the appeal about giving them the status of refugees, and the department refused to give them such status, about what the corresponding decision was issued. The reason of the refusal was the violation by the declarants of the procedure of giving the status of refugees. The complainers believe that the refusal was illegitimate, since the defendant did not take into account the fact that in the beginning of 2003 they illegally left Somali in order to avoid persecutions and violation of human rights, which they could undergo in their native country. On 22 January 2003 the car, in which the Somali citizens were transported, was stopped in the Vinnitsa oblast by the officers of road militia. After this the illegal immigrants were detained and sent to the oblast distribution center. They do not know either Ukrainian, or Russian, or English languages, so they could not learn about the procedure of getting the refugee status. In the end of June representatives of Vinnitsa human rights protecting group visited them and told about the procedure.

At the court sitting the representative of the claimants supported the complaint referring to the circumstances stated in the complaint.

The representative of the defendant did not recognize the lawfulness of the complaint and told that the Somali citizens had been detained on 22 January 2003 in the Vinnitsa oblast. On 26 June 2003 they turned to the department with the appeals about the refugee status. Yet, the appeals were rejected, because of the expiration of the legal term for handing such appeals.

The court listened to the explanations of the parties, studied the case materials and came to the conclusion that the complaint was well-grounded and had to be satisfied on the basis of the following reasons.

According to the explanations given by Somali citizens A., B. and S. at the court sitting, in 2003 they illegally left Somali by sea in order to avoid persecutions and violations of human rights, which they underwent in the country of their origin. The people, who transported them, did not say to which country they were going.

On 22 January 2003 the officers of road militia stopped the car, in which the above-mentioned persons were transported. It became known later that this happened on the territory of the Vinnitsa oblast of Ukraine. After this the Somali citizens were detained and placed to the distribution center of the Vinnitsa oblast. Nobody of them knew Ukrainian or Russian languages. During the entire term of their stay in the distribution center nobody, neither militia officers nor other visitors, explained them the procedure of turning to the competent organs for getting the refugee status.

In June 2003 the Somali citizens were visited by representatives of Vinnitsa human rights protecting group, who were the executive partners of the Directorate of the UNO Supreme Commissar in the Vinnitsa oblast. On 24 June 2003 the representatives of Vinnitsa human rights protecting group explained to the citizens A., B. and S. the procedure of handing the appeal to the oblast department in charge of the questions of nationalities and migration. On 26 June such appeals were handed to the department.

However, on 26 June 2003 the claimants got the notification about the rejection of their appeals. The reason of the rejection was the violation, without the significant reasons, of the procedure of handing the appeal about the refugee status. The officials referred to part 8 Article 9 of the Law of Ukraine «On refugees». Yet, the court acknowledged these arguments to be invalid, because the appeals on the refugee status, which are handed after the expiration of the legally stipulated term, must be accepted in the cases, where the applicant could not turn with the appeal within the legal term because of the serious reasons, for example the detention for establishing the identity.

Provisions of Article 13 of the Convention on the protection of human rights and fundamental freedoms demand from the organs of state power to conduct the unbiased and thorough analysis of the appeals in order to prevent the violation of Article 3 of the Convention. The department in charge of the questions of nationalities and migration of the Vinnitsa oblast administration did not conduct such analysis, since the notification about the rejection of the appeal contained only formal reasons for the rejection.

Solving the conflict per se the court took into consideration the practices of the European Court of human rights, in particular, the case Djabari vs. Turkey of 27 July 2000 connected with deportation, prohibition of torture, right for effective defense in court and irreversibility of the damage endangering the claimant. The European Court considered this case and acknowledged that Turkey was guilty of the violation of Article 3 of the Convention on the protection of human rights and fundamental freedoms consisting in the attempt to deport the person seeking refuge from Turkey to Iran on the basis of exceeding the 5-day term of giving the appeal about refugee status.

According to Article 14 of the Law of Ukraine «On refugees», a person, which got the notification about the refusal to give the refugee status and did not exercise the right for the appeal against this refusal, must leave Ukraine within the term stipulated by law.

The fulfillment of the demands of this article may result in deportation of the complainers to their country. However, the return to Somali endangers their life and health, creates the opportunity of persecution and discrimination. So, the decision of the department in charge of the questions of nationalities and migration of the Vinnitsa oblast violates the rights of the claimants for the protection against torture, inhumane or degrading treatment or punishment, which right is proclaimed in Article 3 of the Convention on the protection of human rights and fundamental freedoms.

The court reckons that the mechanical application of the norm about the 5-day term of handing the appeal about the refuge contradicts the policy directed at the protection of fundamental rights stipulated by Article 3 of the Convention on the protection of human rights and fundamental freedoms.

Article 23 of the Law of Ukraine «On refugees» reads that Ukraine cooperates with the Directorate of the UNO Supreme Commissar in charge of refugees and with other international organizations with the purpose to liquidate the reasons of the problems of refugees, to improve their material state and legal status.

Besides, according to Article 1 of the Convention  «On refugee status», a person is regarded as a refugee, it there exists the well-grounded fear of persecutions because of race, religion, citizenship, belonging to some social group or political views, if this person stays outside the country, a citizen of which he/she is, cannot resort to the protection of this country or does not want to resort to such protection because of this fear.

The Convention «On refugee status» does not stipulate that a person, who did not turn to state organs with the appeal about the refuge within a certain term, is deprived of the right to be protected by the Convention.

Article 33 of the Convention «On refugee status» reads that the countries, which ratified this Convention, may not exile the refugees or to return them to the frontier, where a danger for their life or freedom exists.

On the basis of the above-stated arguments the court reckons that the department in charge of the questions of nationalities and migration of the Vinnitsa oblast violated the Convention  «On refugee status», since Article 2 part 2 of the Law of Ukraine «On refugees» reads that in the cases, where an international agreement signed by Ukraine stipulates the rules, which does not conform with the rules contained in this Law, then the international rules must be applied.

So, on the basis of Article 3 of the Convention on the protection of human rights and fundamental freedoms, Articles 1, 3 and 33 of the Convention  «On refugee status» of 28 July 1951, Articles 2, 9, 14 and 23 of the Law of Ukraine «On refugees», Articles 15, 30, 62 and 248-1 of the Civil-Procedural Code of Ukraine, the court

DECIDED:

To satisfy the claim.

To acknowledge the actions of the department in charge of the questions of nationalities and migration of the Vinnitsa oblast, which rejected the appeals of Somali citizens A., B. and S. about giving them the refugee status, as illegitimate.

To abolish the decision of the department in charge of the questions of nationalities and migration of the Vinnitsa oblast of 26 June 2003 about the rejection of the appeals of Somali citizens A., B. and S. about giving them the refugee status.

To oblige the department in charge of the questions of nationalities and migration of the Vinnitsa oblast to accept the appeals of Somali citizens A., B. and S. about giving them the refugee status.

The appeal against the court decision may be handed to the appeal court of the Vinnitsa oblast within one month.