I correctly predicted that there was a violation of human rights in A.A. v. UKRAINE.

Information

  • Judgment date: 2022-12-15
  • Communication date: 2017-04-07
  • Application number(s): 79750/16
  • Country:   UKR
  • Relevant ECHR article(s): 3, 5, 5-1, 5-1-f, 5-2, 5-3, 5-4, 13, P4-2, P4-2-1
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.822933
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant is a Tajikistani national, who was born in 1994.
The Court decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4).
The applicant is represented before the Court by Mr V.I.
Melnychuk, a lawyer practising in Kyiv.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2012 the applicant moved from Tajikistan to Russia (Saint Petersburg) to work there.
In Russia the applicant allegedly joined the organisation “Group 24” (“Группа 24”) which is opposing to the Government of Tajikistan.
On 9 October 2014 the Supreme Court of Tajikistan declared that organisation extremist.
In June 2016 the applicant arrived in Ukraine.
He lived in Kharkiv.
1.
Expulsion proceedings On 15 July 2016 the domestic authorities decided that the period of the applicant’s stay in Ukraine should be limited by 17 July 2016.
The applicant was not served a copy that decision.
On 18 July 2016 the Dzerzhynskyy District Police of Kharkiv found that the applicant had no legal grounds to stay in Ukraine and that he therefore had to be removed “to the country of [his] origin”.
By the same decision the applicant was obliged to leave Ukraine by 19 July 2016 and he was banned from entering Ukraine for three years.
Further to the above decision, the General Directorate of State Migration Service in Kharkiv Region initiated court proceedings for the applicant to be forcibly removed from Ukraine.
On 21 July 2016 the Dzerzhynskyy District Court of Kharkiv allowed the claims of the migration authorities and ordered that the applicant should be forcibly removed “outside Ukraine”.
In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days of the day of the receipt of its copy.
The hearing was held in the presence of the applicant who was assisted by an interpreter.
According to the applicant, on 21 July 2016 the judge pronounced an introductory and operative parts of the decision and the applicant’s lawyer became aware of the full text of the decision much later, on 6 December 2016, following which on 15 December 2016 the applicant lodged an appeal.
No information has been provided as to the outcome of examination of the applicant’s appeal.
On 22 July 2016 the General Directorate of State Migration Service in Kharkiv Region decided that in order to ensure the applicant’s removal from Ukraine he should be placed in a facility for temporary detention of foreigners and stateless persons (“the detention facility”).
On 31 August 2016 the General Directorate of State Migration Service in Kharkiv Region requested its headquarters to assist in purchasing a ticket to Tajikistan in order to enforce the court’s decision on the applicant’s removal.
On 19 September 2016 the Office of the Prosecutor General requested the governor of the detention facility to ensure that the applicant’s detention be lawful.
The Office of the Prosecutor General stated that it was exclusively within the competence of the administrative courts to decide on the temporary detention of foreigners with a view to their expulsion.
On 21 September 2016 the Ripky District Court of Chernihiv Region ordered the applicant’s detention until 20 March 2017, pending his removal from Ukraine.
2.
Asylum procedure On 30 August 2016 the applicant made an application for asylum in Ukraine.
The applicant alleged that he was a member of the organisation “Group 24” opposing to the current Government of Tajikistan.
The other members of that organisation were subjected to persecution, abduction, forcible transfers to Tajikistan.
Allegedly, the Tajikistani police approached the applicant’s family suggesting that they convince the applicant to stop his membership in “Group 24”.
The migration authorities made a number of interviews with the applicant in order to establish the circumstances of his application.
On 19 September 2016 the Directorate of State Migration Service in Chernihiv Region refused his application as containing no valid reasons.
The directorate found that the applicant failed to substantiate that he was indeed a member of “Group 24” and his personal situation did not suggest that he ran a risk of being persecuted in Tajikistan.
The applicant challenged that decision before the court.
On 18 October 2016 the Chernihiv Circuit Administrative Court upheld the directorate’s decision of 19 September 2016.
The court found that the applicant had failed to prove existence of personal risk of being persecuted in Tajikistan, his membership in “Group 24” had not been established and there was no evidence of his activities within that organisation.
The applicant appealed against that decision.
On 22 December 2016 the Kyiv Administartive Court of Appeal upheld the decision of the first-instance court considering that the applicant’s asylum request had been unfounded.
On 5 January 2017 the applicant appealed on points of law against the decision of the Kyiv Administrative Court of Appeal of 22 December 2016.
On 13 January 2017 the Higher Administrative Court opened the proceedings.
There is no information as to the outcome of those proceedings.
3.
Proceedings before the Court On 27 December 2016 the applicant’s lawyer requested under Rule 39 of the Rules of Court that the applicant’s removal from Ukraine be suspended.
On 28 December 2016, the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Ukrainian Government, under Rule 39, that the applicant should not be removed from Ukraine for the duration of the proceedings before the Court.
The Government were invited, among other issues, to clarify whether the authorities had determined the country to which the applicant would be removed.
On 11 January 2017 the State Migration Service informed the Office of the Government Agent before the Court that in accordance with the well-established practice the foreigners were expelled to the country of their nationality or the country of their permanent residence.
The State Migration Service specified that they had not determined the destination country in the applicant’s case.
On 10 March 2017 the Court maintained the interim measure until further notice.
B.
Relevant domestic law and practice The relevant domestic law and practice can be found in the judgment in the case of Abuhmaid v. Ukraine (no.
31183/13, 12 January 2017, not final).
C. International Reports on Tajikistan The relevant reports on human rights situation in Tajikistan can be found in the judgment in the case of Sidikovy v. Russia (no.
73455/11, §§ 117-121, 20 June 2013).
1.
Amnesty International The Annual Report 2015/16 The State of the World’s Human Rights reads, in so far as relevant: “TAJIKISTAN ...
Authorities continued to impose sweeping restrictions on freedom of expression.
Several prominent human rights NGOs were targeted for “inspections” by various authorities, and some were “advised” to close down.
Members of opposition groups faced increasing harassment, violence and even death, both in Tajikistan and in exile.
Some political opposition activists and those accused of religious extremism were abducted and forcibly returned from several former Soviet countries.
Lawyers representing opposition activists or those charged with anti-state offences were themselves at risk of harassment, intimidation and punitive arrest.
Torture and other ill-treatment remained widespread, and lawyers were repeatedly denied access to their clients.
... REPRESSION OF DISSENT Members of opposition groups, including Group 24 (banned by the Supreme Court as “extremist” in October 2014) and the Islamic Renaissance Party of Tajikistan (IRPT), faced increasing harassment and violence.
... On 5 March, Umarali Kuvvatov, an exiled founding member of Group 24, was shot dead by unknown men in Istanbul, Turkey.
He had earlier expressed concerns that the authorities had ordered his assassination.
...” 2.
Human Rights Watch The World Report 2016 reads, in so far as relevant: “Tajikistan Tajikistan’s already poor rights record dramatically worsened in 2015, as authorities declared the country’s leading opposition party a terrorist organization and banned it, imprisoned approximately 200 opposition activists, extradited and kidnapped government critics abroad, arrested several lawyers and at least one journalist, and harassed workers at nongovernmental organizations (NGOs) with onerous checks.
As in previous years, the government regularly blocked numerous Internet sites and continued a campaign to enforce severe restrictions on religious practice.
NGOs reported several cases of torture and ill-treatment in pretrial custody and prisons.
Domestic violence against women also continues to be a serious problem.
Government Opposition and Detention of Activists Abroad ... On March 5, assailants shot and killed opposition figure Umarali Kuvvatov in Istanbul.
Kuvvatov headed Group 24, an opposition group that called for democratic reforms and accused President Emomali Rahmon and the ruling elite of corruption.
Three Tajik citizens are on trial in Turkey for Kuvvatov’s murder.
The circumstances of the shooting, and previous efforts by Tajik authorities to detain Kuvvatov in various countries, led many observers to suggest Kuvvatov’s killers may have been acting on orders from or with the approval of Dushanbe.
Since October 2014, authorities have actively sought to arrest anyone associated with Group 24, convicting several people in Tajikistan on vague charges of extremism and seeking the extradition of activists for the group who live in Russia, Belarus, and Moldova.
...
In another case, on July 15, Belarusian authorities detained peaceful Tajik activist Shabnam Khudoydodova as she was crossing the Russian-Belarusian border.
A member of Group 24 who lived in St. Petersburg, Khudoydodova publicly called for reforms in Tajikistan.
After learning that security services might be preparing to forcibly return her to Tajikistan, Khudoydodova fled to Belarus, where she sought refugee status.
At time of writing, Tajik authorities were seeking her extradition on extremism charges.
Sobir Valiev, deputy head of the opposition group the Congress of Constructive Forces, and Group 24, was detained in August for several weeks by Moldovan migration police in the Moldovan capital of Chisinau.
The Moldovan police detained him on a request from the Tajik government, which sought his extradition on similar extremism charges.
... ” COMPLAINTS 1.
The applicant complains that his expulsion to Tajikistan would be in violation of Article 3 of the Convention.
2.
The applicant complains under Article 2 of Protocol No.
4 that the domestic authorities’ decision of 15 July 2016 on limitation of his stay in Ukraine by 17 July 2016 was unlawful and disproportionate.
3.
The applicant complains under Article 13 taken in conjunction with Article 3 of the Convention that the domestic authorities failed to ensure effective examination of his claim that his expulsion would put him at risk of ill-treatment.
The applicant further complains under Article 13 of the Convention taken in conjunction with Article 2 of Protocol No.
4 that he did not have an effective remedy to challenge the decision of 15 July 2016 on limitation of his stay in Ukraine by 17 July 2016.
4.
The applicant complains under Article 5 § 1 (f) of the Convention that his detention between 22 July and 21 September 2016 on the basis of decision of the migration authorities was unlawful.
Furthermore, he complains that the whole period of his detention starting from 22 July 2016 has not been compatible with the purpose of Article 5 § 1 (f) of the Convention, insisting that his stay in Ukraine was lawful.

Judgment

FIFTH SECTION
CASE OF A.A. v. UKRAINE
(Application no.
79750/16)

JUDGMENT
STRASBOURG
15 December 2022

This judgment is final but it may be subject to editorial revision.
In the case of A.A. v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, María Elósegui, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no.
79750/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 December 2016 by a Tajikistani national, Mr A.A. (“the applicant”), who was born in 1994 and lives in the Netherlands and who was represented by Mr V. Melnychuk, a lawyer practising in Kharkiv and currently residing in Berlin;
the decision to give notice of the complaints set out in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;
the decision to indicate an interim measure to the Government under Rule 39 of the Rules of Court, which was subsequently lifted;
the decision not to have the applicant’s name disclosed;
the Government’s objection to the examination of the case by a Committee, which has not been upheld;
the parties’ observations;
Having deliberated in private on 24 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case mainly concerns the applicant’s complaint under Article 3 of the Convention that he faced a risk of ill-treatment if he were to be returned from Ukraine to Tajikistan and that his detention in the context of expulsion proceedings against him was in breach of Article 5 of the Convention. The applicant also submitted complaints under Article 34 of the Convention and Article 2 of Protocol No. 4 and argued, under Article 13 of the Convention, that he had no effective domestic remedies in respect of his complaints under Article 3 of the Convention and Article 2 of Protocol No. 4. 2. In June 2016 the applicant arrived in Ukraine from Istanbul. As a citizen of Tajikistan he had the right to stay in Ukraine without a visa for ninety days, until 23 September 2016. 3. On 15 July 2016 the immigration authorities, on the basis of intelligence information according to which the applicant had arrived in Ukraine in order to enter western Europe illegally, decided that the period of his stay in Ukraine had to end by 17 July 2016. 4. On 21 July 2016 the Kharkiv Dzerzhynskyy District Court ordered the applicant’s forcible removal from Ukraine. 5. On 9 October 2017 the Kharkiv Circuit Administrative Court quashed the decision of 15 July 2016, finding that intelligence information could not serve as legal grounds for such decisions. 6. On 22 July 2016 the Migration Service decided to place the applicant in a centre for the temporary accommodation of foreigners and stateless persons whose status was irregular (“the detention centre”). 7. On 19 September 2016 the prosecutor’s office informed the governor of the detention centre that under Article 183-7 of the Code of Administrative Justice (as worded from 18 June 2016), only courts had the power to authorise detention with a view to the execution of expulsion orders. The governor was accordingly instructed to regularise the applicant’s situation. 8. On 21 September 2016 the Ripky District Court of the Chernihiv Region (“the Ripky Court”), relying in particular on the legal provision referred to by the prosecutor’s office, ordered the applicant’s detention until 20 March 2017, pending his expulsion. The decision was pronounced in the presence of the applicant and an interpreter, and it included a statement that it could be appealed against to the Kyiv Administrative Court of Appeal. 9. On 24 March 2017 the applicant was released. 10. On 24 July 2017 the Ripky Court, having found the applicant’s detention from 21 to 24 March 2017 to be unlawful, awarded him compensation. 11. On 30 August 2016 the applicant made an application for asylum. He alleged that he faced a risk of persecution as a member of the organisation “Group 24”, which was opposed to the Tajikistani government. 12. The Migration Service held interviews with the applicant and on 19 September 2016 rejected his application as inadmissible. The service found that the applicant’s account of events was not credible, that he had failed to substantiate that he was a member of “Group 24” and that his personal situation did not suggest that he ran a risk of persecution in Tajikistan. 13. On 28 September 2016 the applicant appealed against that decision. This and subsequent appeals were typewritten in Ukrainian and contained detailed factual and legal arguments based on domestic and international law. 14. In a final decision, on 4 July 2019 the Supreme Court upheld the Migration Service’s decision. 15. In 2020 the applicant submitted a new asylum application. The migration authorities rejected it as inadmissible. The lower courts upheld that decision but on 7 February 2022 the Supreme Court quashed their decisions and remitted the case to the first-instance court. 16. In September 2019 the Tajik authorities requested the applicant’s extradition from Ukraine on charges of “illegal participation in an armed conflict abroad”. According to the charges, in 2016 the applicant had travelled to Türkiye to join the ISIS terrorist organisation in Syria but had been apprehended by the Turkish authorities and deported to Ukraine. 17. The extradition proceedings have been suspended pending the decision in the asylum proceedings. 18. On 15 March 2022 the applicant’s lawyer informed the Court that “the applicant has left Ukraine because of the Russian war and he is now in a refugee shelter in the Netherlands.”
THE COURT’S ASSESSMENT
19.
In view of the information that the applicant moved to the Netherlands, the Court considers that he is no longer at risk of removal to Tajikistan by the Ukrainian authorities and can no longer claim to be a victim of a potential violation of his rights under Article 3 of the Convention by Ukraine. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 20. Given that the Court has found that the applicant can no longer claim to be a victim of a violation of his rights under Article 3, he has no arguable claim for the purposes of Article 13 of the Convention in this respect (see, for example, Osmayev v. Ukraine (dec.), no. 50609/12, § 57, 30 June 2015). As far as the applicant’s complaint under Article 13 in respect of the period when he was under threat of removal from Ukraine to Tajikistan is concerned, it is also inadmissible, for the following reasons. 21. In respect of that complaint the applicant mainly submitted that the authorities had failed to conduct an adequate examination of the risks he faced in Tajikistan in the expulsion proceedings (see paragraph 4 above). 22. However, in Ukrainian law the appropriate forum for the examination of the claims of potential risks the applicant allegedly faced in Tajikistan was the asylum procedure (compare, for example, S.A. v. Ukraine [Committee], no. 7445/21, 24 February 2022). Concerning that procedure, the applicant complained that he had not been provided with translations of the Migration Service’s submissions and judicial decisions in a language he could understand. This assertion, however, is unsubstantiated and is belied by the applicant’s detailed and well-argued appeals, apparently prepared for the applicant by a Ukrainian lawyer or other specialist knowledgeable in the Ukrainian language and the relevant law (see paragraph 13 above), which demonstrate precise knowledge and understanding of the relevant submissions and decisions. 23. The effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Hilal v. the United Kingdom, no. 45276/99, § 78, ECHR 2001-II). The mere fact that the domestic courts ultimately decided against him does not indicate of itself a lack of effectiveness of the proceedings within the meaning of Article 13 (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 101, ECHR 2002‐II). 24. It follows that the applicant’s complaint under Article 13 in conjunction with Article 3 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 25. The applicant complained that his detention had been in breach of Article 5 of the Convention
(i) from 22 July to 21 September 2016 because it had not been ordered by a court, contrary to the requirements of domestic law; and
(ii) from 21 September 2016 to 20 March 2017 because under domestic law, the domestic courts had had no authority to issue a detention order in his case.
26. The Government submitted that this complaint was inadmissible for failure to exhaust domestic remedies since the applicant had failed to appeal to the administrative courts against the detention decision issued by the Migration Service and had also failed to appeal to the higher courts against the first-instance court’s detention order (see paragraphs 6 and 8 above). They also submitted that the complaint was manifestly ill-founded. 27. As to exhaustion of domestic remedies, the applicant submitted that he had not been given copies of the relevant decisions or their translations, that the procedure for appealing against decisions had not been explained to him and that he had not been provided with legal aid or an interpreter. 28. As to the Government’s non-exhaustion objection, the Court finds no indication in the file that the Migration Service’s decision to place the applicant in detention was served on him, let alone that he was served with the decision in a language he could understand. The relevant decision was in Ukrainian and the applicant spoke only Tajik and some Russian. There is also no indication that at that time he had access to a lawyer or that his right to legal aid or the procedure for appealing was explained to him. 29. In many cases where detainees had not been informed of the reasons why they were deprived of their liberty, the Court has found that their right to appeal against their detention was deprived of all effective substance (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 132, 15 December 2016, with further references). This is equally relevant in assessing whether the appeal procedure was available to the applicant in practice for the purposes of assessing compliance with the rule of exhaustion of domestic remedies (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 30. Accordingly, the Court dismisses the Government’s non-exhaustion objection and considers that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 31. The domestic court agreed with the argument of the prosecutor’s office that under domestic law as it stood at the relevant time, detention for the purpose of execution of an expulsion order could only be based on a court decision (see paragraphs 7 and 8 above). 32. This is sufficient for the Court to conclude that the deprivation of the applicant’s liberty was not “in accordance with a procedure prescribed by law”. 33. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 22 July to 21 September 2016. 34. In contrast to the position in relation to the earlier period of detention, the Court is not convinced that there were circumstances releasing the applicant from the obligation to exhaust effective domestic remedies in respect of the later period of detention by appealing against the court’s detention order of 21 September 2016 (see paragraph 8 above). 35. In contrast to his actions in relation to the earlier period of detention, the applicant’s sophisticated submissions in the context of the asylum proceedings indicate that at that time he had access to legal advice (see paragraph 13 above). 36. The decision of 21 September 2016 itself indicated the procedure for appeal and it was pronounced in the presence of the applicant and the interpreter. 37. Accordingly, this part of the applicant’s complaint under Article 5 § 1 must be declared inadmissible and rejected, pursuant to Article 35 § 4 of the Convention, for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. 38. The applicant also raised other complaints under various provisions of the Convention (see paragraph 1 above). The Court has examined those parts of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 39. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.
The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,360 in respect of costs and expenses incurred in the domestic proceedings and before the Court. 41. The Government contested those claims. 42. The Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable. 43. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs under all heads. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits Deputy Registrar President

FIFTH SECTION
CASE OF A.A. v. UKRAINE
(Application no.
79750/16)

JUDGMENT
STRASBOURG
15 December 2022

This judgment is final but it may be subject to editorial revision.
In the case of A.A. v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, María Elósegui, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no.
79750/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 December 2016 by a Tajikistani national, Mr A.A. (“the applicant”), who was born in 1994 and lives in the Netherlands and who was represented by Mr V. Melnychuk, a lawyer practising in Kharkiv and currently residing in Berlin;
the decision to give notice of the complaints set out in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;
the decision to indicate an interim measure to the Government under Rule 39 of the Rules of Court, which was subsequently lifted;
the decision not to have the applicant’s name disclosed;
the Government’s objection to the examination of the case by a Committee, which has not been upheld;
the parties’ observations;
Having deliberated in private on 24 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case mainly concerns the applicant’s complaint under Article 3 of the Convention that he faced a risk of ill-treatment if he were to be returned from Ukraine to Tajikistan and that his detention in the context of expulsion proceedings against him was in breach of Article 5 of the Convention. The applicant also submitted complaints under Article 34 of the Convention and Article 2 of Protocol No. 4 and argued, under Article 13 of the Convention, that he had no effective domestic remedies in respect of his complaints under Article 3 of the Convention and Article 2 of Protocol No. 4. 2. In June 2016 the applicant arrived in Ukraine from Istanbul. As a citizen of Tajikistan he had the right to stay in Ukraine without a visa for ninety days, until 23 September 2016. 3. On 15 July 2016 the immigration authorities, on the basis of intelligence information according to which the applicant had arrived in Ukraine in order to enter western Europe illegally, decided that the period of his stay in Ukraine had to end by 17 July 2016. 4. On 21 July 2016 the Kharkiv Dzerzhynskyy District Court ordered the applicant’s forcible removal from Ukraine. 5. On 9 October 2017 the Kharkiv Circuit Administrative Court quashed the decision of 15 July 2016, finding that intelligence information could not serve as legal grounds for such decisions. 6. On 22 July 2016 the Migration Service decided to place the applicant in a centre for the temporary accommodation of foreigners and stateless persons whose status was irregular (“the detention centre”). 7. On 19 September 2016 the prosecutor’s office informed the governor of the detention centre that under Article 183-7 of the Code of Administrative Justice (as worded from 18 June 2016), only courts had the power to authorise detention with a view to the execution of expulsion orders. The governor was accordingly instructed to regularise the applicant’s situation. 8. On 21 September 2016 the Ripky District Court of the Chernihiv Region (“the Ripky Court”), relying in particular on the legal provision referred to by the prosecutor’s office, ordered the applicant’s detention until 20 March 2017, pending his expulsion. The decision was pronounced in the presence of the applicant and an interpreter, and it included a statement that it could be appealed against to the Kyiv Administrative Court of Appeal. 9. On 24 March 2017 the applicant was released. 10. On 24 July 2017 the Ripky Court, having found the applicant’s detention from 21 to 24 March 2017 to be unlawful, awarded him compensation. 11. On 30 August 2016 the applicant made an application for asylum. He alleged that he faced a risk of persecution as a member of the organisation “Group 24”, which was opposed to the Tajikistani government. 12. The Migration Service held interviews with the applicant and on 19 September 2016 rejected his application as inadmissible. The service found that the applicant’s account of events was not credible, that he had failed to substantiate that he was a member of “Group 24” and that his personal situation did not suggest that he ran a risk of persecution in Tajikistan. 13. On 28 September 2016 the applicant appealed against that decision. This and subsequent appeals were typewritten in Ukrainian and contained detailed factual and legal arguments based on domestic and international law. 14. In a final decision, on 4 July 2019 the Supreme Court upheld the Migration Service’s decision. 15. In 2020 the applicant submitted a new asylum application. The migration authorities rejected it as inadmissible. The lower courts upheld that decision but on 7 February 2022 the Supreme Court quashed their decisions and remitted the case to the first-instance court. 16. In September 2019 the Tajik authorities requested the applicant’s extradition from Ukraine on charges of “illegal participation in an armed conflict abroad”. According to the charges, in 2016 the applicant had travelled to Türkiye to join the ISIS terrorist organisation in Syria but had been apprehended by the Turkish authorities and deported to Ukraine. 17. The extradition proceedings have been suspended pending the decision in the asylum proceedings. 18. On 15 March 2022 the applicant’s lawyer informed the Court that “the applicant has left Ukraine because of the Russian war and he is now in a refugee shelter in the Netherlands.”
THE COURT’S ASSESSMENT
19.
In view of the information that the applicant moved to the Netherlands, the Court considers that he is no longer at risk of removal to Tajikistan by the Ukrainian authorities and can no longer claim to be a victim of a potential violation of his rights under Article 3 of the Convention by Ukraine. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 20. Given that the Court has found that the applicant can no longer claim to be a victim of a violation of his rights under Article 3, he has no arguable claim for the purposes of Article 13 of the Convention in this respect (see, for example, Osmayev v. Ukraine (dec.), no. 50609/12, § 57, 30 June 2015). As far as the applicant’s complaint under Article 13 in respect of the period when he was under threat of removal from Ukraine to Tajikistan is concerned, it is also inadmissible, for the following reasons. 21. In respect of that complaint the applicant mainly submitted that the authorities had failed to conduct an adequate examination of the risks he faced in Tajikistan in the expulsion proceedings (see paragraph 4 above). 22. However, in Ukrainian law the appropriate forum for the examination of the claims of potential risks the applicant allegedly faced in Tajikistan was the asylum procedure (compare, for example, S.A. v. Ukraine [Committee], no. 7445/21, 24 February 2022). Concerning that procedure, the applicant complained that he had not been provided with translations of the Migration Service’s submissions and judicial decisions in a language he could understand. This assertion, however, is unsubstantiated and is belied by the applicant’s detailed and well-argued appeals, apparently prepared for the applicant by a Ukrainian lawyer or other specialist knowledgeable in the Ukrainian language and the relevant law (see paragraph 13 above), which demonstrate precise knowledge and understanding of the relevant submissions and decisions. 23. The effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Hilal v. the United Kingdom, no. 45276/99, § 78, ECHR 2001-II). The mere fact that the domestic courts ultimately decided against him does not indicate of itself a lack of effectiveness of the proceedings within the meaning of Article 13 (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 101, ECHR 2002‐II). 24. It follows that the applicant’s complaint under Article 13 in conjunction with Article 3 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 25. The applicant complained that his detention had been in breach of Article 5 of the Convention
(i) from 22 July to 21 September 2016 because it had not been ordered by a court, contrary to the requirements of domestic law; and
(ii) from 21 September 2016 to 20 March 2017 because under domestic law, the domestic courts had had no authority to issue a detention order in his case.
26. The Government submitted that this complaint was inadmissible for failure to exhaust domestic remedies since the applicant had failed to appeal to the administrative courts against the detention decision issued by the Migration Service and had also failed to appeal to the higher courts against the first-instance court’s detention order (see paragraphs 6 and 8 above). They also submitted that the complaint was manifestly ill-founded. 27. As to exhaustion of domestic remedies, the applicant submitted that he had not been given copies of the relevant decisions or their translations, that the procedure for appealing against decisions had not been explained to him and that he had not been provided with legal aid or an interpreter. 28. As to the Government’s non-exhaustion objection, the Court finds no indication in the file that the Migration Service’s decision to place the applicant in detention was served on him, let alone that he was served with the decision in a language he could understand. The relevant decision was in Ukrainian and the applicant spoke only Tajik and some Russian. There is also no indication that at that time he had access to a lawyer or that his right to legal aid or the procedure for appealing was explained to him. 29. In many cases where detainees had not been informed of the reasons why they were deprived of their liberty, the Court has found that their right to appeal against their detention was deprived of all effective substance (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 132, 15 December 2016, with further references). This is equally relevant in assessing whether the appeal procedure was available to the applicant in practice for the purposes of assessing compliance with the rule of exhaustion of domestic remedies (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 30. Accordingly, the Court dismisses the Government’s non-exhaustion objection and considers that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 31. The domestic court agreed with the argument of the prosecutor’s office that under domestic law as it stood at the relevant time, detention for the purpose of execution of an expulsion order could only be based on a court decision (see paragraphs 7 and 8 above). 32. This is sufficient for the Court to conclude that the deprivation of the applicant’s liberty was not “in accordance with a procedure prescribed by law”. 33. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 22 July to 21 September 2016. 34. In contrast to the position in relation to the earlier period of detention, the Court is not convinced that there were circumstances releasing the applicant from the obligation to exhaust effective domestic remedies in respect of the later period of detention by appealing against the court’s detention order of 21 September 2016 (see paragraph 8 above). 35. In contrast to his actions in relation to the earlier period of detention, the applicant’s sophisticated submissions in the context of the asylum proceedings indicate that at that time he had access to legal advice (see paragraph 13 above). 36. The decision of 21 September 2016 itself indicated the procedure for appeal and it was pronounced in the presence of the applicant and the interpreter. 37. Accordingly, this part of the applicant’s complaint under Article 5 § 1 must be declared inadmissible and rejected, pursuant to Article 35 § 4 of the Convention, for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. 38. The applicant also raised other complaints under various provisions of the Convention (see paragraph 1 above). The Court has examined those parts of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 39. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.
The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,360 in respect of costs and expenses incurred in the domestic proceedings and before the Court. 41. The Government contested those claims. 42. The Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable. 43. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs under all heads. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits Deputy Registrar President