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The Prosecutor General has overstepped domestic and international law. What next?

30.07.2008   

Open Appeal from the Ukrainian Helsinki Human Rights Union

During the night of 28-29 July 2008 a Russian national Oleg Kuznetsov was, in enforcement of a decision by the Prosecutor General Oleksandr Medvedko extradited to Russia.  Mr Kuznetsov had been granted refugee status in Ukraine, yet was handed over to the country which he fled from due to well-founded fear that he could be subjected to torture and ill-treatment, as well as other human rights violations.

Oleg Kuznetsov had been detained by Ukrainian law enforcement officers in Kyiv a year ago, on 19 July 2007. The following day, the Shevchenkivsky District Court in Kyiv remanded him in custody. Soon afterwards, Kuznetsov applied for refugee status but remanded in custody from that time on. .

On 5 March 2008 the State Committee on Nationalities and Religions granted Kuznetsov refugee status, finding his fears of flagrant violations of his basic rights in the Russian Federation to be well-founded. On 21 April he received his refugee identification card.

Despite this, Oleg Kuznetsov remained in custody pending extradition, although in accordance with Article 3 of Ukraine’s Law “On refugees”, such extradition was impossible.

The Prosecutor General’s Office considered remand in custody of a refugee to be lawful arguing that it had first protested against the decision of the State Committee, and after this protest was rejected, had lodged an appeal against the decision with the court.

All efforts by Kuznetsov’s lawyers to have him released by a court order were in vain.  However, on 21 July the Prosecutor’s Office lost the case with the court upholding the lawfulness and valid grounds for granting Kuznetsov refugee status.

It remains unclear under what circumstances on the night leading into 29 July Oleg Kuznetsov was taken across the border and handed to the Russian law enforcement agencies. According to our information, he is presently being held in a remand centre [SIZO] in Moscow.  The Prosecutor General has thus demonstrated that he considers his wishes to be above the law, his duties and outweighing the internal and international reputation of the country.

We would note that Ukraine has on several occasions violated its duty before refugees. In February 2006, 11 Uzbek nationals were sent back to Uzbekistan. Then in March of this year 11 Tamils were returned to Sri Lanka. All such cases have involved grave infringements of Ukraine’s international commitments.

The extradition of Oleg Kuznetsov can, however, be viewed as the most shameful of all violations of the rights of refugees and asylum seekers.  Having lost in the courts, the Prosecutor General has simply brushed that aside demonstrating how he deals with court rulings not to his taste.

The Ukrainian Helsinki Human Rights Union considers that Mr Medvedko has discredited the office of the Prosecutor General of Ukraine and the prosecutor’s office, and has dealt a devastating blow to the country’s international standing. Called upon to oversee observance of the law in Ukraine, by demonstrating his open contempt for a court ruling, Mr Medvedko is creating the conditions for the spread of lawlessness and disrespect for the principles of the rule of law.

The Ukrainian Helsinki Human Rights Union calls on:

The President of Ukraine

To take all possible measures to secure the return of this refugee treacherously extradited to a country where he faces danger;

To make a submission to the Verkhovna Rada to have Oleksandr Medvedko removed from the office of Prosecutor General of Ukraine

the Verkhovna Rada:

to pass a vote of no confidence in the Prosecutor General in accordance with Article 85;

to set up a special commission to investigate the circumstances against the violation by the Prosecutor General of the law and to bring him to answer;

to draw up and pass as a matter of urgency amendments to legislation which will establish exclusively court procedure for determining any question of extradition and regulate the procedure for remand in custody, the periods for such remand and judicial procedure for its appeal;

- the European Community t

to suspend the force of the Agreement between Ukraine and the EU on Readmission until Ukraine’s legislation and practice are brought into line with the principle of non-refoulement;

- the governments of countries with whom Ukraine has agreements on mutual legal assistance

to bear in mind when considering whether to pass any persons over to Ukraine that Ukraine cannot be considered a safe third country in accordance with international agreements on the rights of refugees since the Ukrainian government:

is not observing international standards on the rights of rights of refugees and asylum seekers.

does not have appropriate legislation on refugees and asylum seekers;

is not providing effective court defence against arbitrary expulsion.

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