ECtHR – Kebe and others v. Ukraine, Application no. 12552/12, 12 January 2017

Facts:

The case concerns three Eritrean nationals who fled Eritrea for different reasons: the first applicant is an Orthodox Christian who was forcibly recruited to the army in Eritrea at the age of fifteen and who believed his father had been tortured and murdered by Eritrean authorities; the second applicant was a Protestant Christian who feared persecution for his religion and forcible military service in Eritrea; the third applicant feared persecution on grounds of his political opinion.

On 18 January 2012, all three applicants covertly boarded a commercial vessel leaving the port of Djibouti. The vessel flew a Maltese flag.

Following the vessel’s arrival in Turkey, the applicants were not allowed to disembark. Weeks later, the vessel anchored in the port of Mykolayiv, in Ukraine. On 25 February 2012, Ukrainian border guards embarked the vessel and met with the applicants. According to the government, the applicants did not submit any requests to the border guards at that point. Later on that day, a lawyer from a Ukrainian NGO was allowed to embark the vessel and meet the applicants. According to them, during the discussion with the lawyer they expressed the wish to seek asylum in Ukraine. However, the border guards stated that they could not accept the asylum applications since they were on board a vessel flying the flag of a foreign State. They were also refused to disembark.

On 2 March 2012, the lawyer lodged a request for interim measures before the ECtHR stating that the applicants risked removal to Saudi Arabia (next destination of the vessel) and from there to their country of origin where they would be subjected to ill-treatment. The ECtHR granted the request for interim measures and, on the following day, the border guards allowed the applicants to disembark and to cross the State border. All three applicants applied for asylum in Ukraine upon disembarkation.

The first applicant had his asylum application rejected. His appeal before the Odesa Administrative Court was still pending at the time of the ECtHR’s ruling.

The asylum application of the second applicant was also refused. He appealed against the decision before the Odesa Administrative Court but the proceedings were terminated as the applicant died of a “natural cause”.

The third applicant’s asylum application was rejected and he did not challenge that decision on appeal. He later decided to leave Ukraine for Ethiopia and lost contact with the lawyer.

The applicants complained before the ECtHR that the Ukrainian authorities had exposed them to a real risk of ill-treatment in Saudi Arabia and in their home countries and that they had not had effective means to remedy the situation (Article 3 ECHR and Article 13 ECHR read in conjunction with Article 3 ECHR).

Decision & reasoning:

First, the ECtHR decided to strike the case out of its list in so far as it concerns the second and third applicants. The second applicant died during the course of the proceedings and, in the absence of close relatives wishing to pursue the case and in view of the similarity of his complaint with that of the first applicant, the Court decided to remove his complaint out of its list. The Court reached the same conclusion with regard to the third applicant, with whom the lawyer lost contact. Therefore, the ECtHR proceeded with its judgment on the complaints brought by the first applicant only.

Secondly, the Court dealt with the issue of jurisdiction under Article 1 ECHR. The Ukrainian government had argued that the applicant had not been within Ukraine’s jurisdiction when he had been on board the vessel flying the flag of Malta. The applicant, on the other hand, argued that he had been under the continuous and exclusive de facto control of the Ukrainian authorities during that time. He also relied upon various provisions of international maritime law (e.g. the UNHCR Note on Stowaway Asylum-Seekers). The ECtHR found that it did not have to decide whether and how those provisions applied in the present case since the subject in question concerned Ukraine’s exercise of its sovereign powers to control the entry of aliens into its territory. In other words, the applicant had been subject to a border control and was, thus, within Ukraine’s jurisdiction for the purposes of Article 1 ECHR.

The ECtHR also considered the Ukrainian government’s argument that the complaint was inadmissible since the applicant could not be regarded as a “victim” of a violation of his rights, since his asylum application was still pending on appeal. The ECtHR relied upon its jurisprudence on the matter and recalled that where the enforcement of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts, the applicant cannot claim to be a “victim”. According to the Court, this was the case with regard to the applicant’s complaint under Article 3 ECHR.

However, the ECtHR reiterated that eventual loss of victim status under Article 3 ECHR cannot automatically and retrospectively dispense a Contracting State from its obligations under Article 12 ECHR, in particular where it can be demonstrated that an applicant had an “arguable” claim under Article 3 at a time he or she was under an imminent threat of removal (e.g. A.D. and others v. Turkey).

In the Court’s opinion, at the material time various reports by international sources demonstrated that the situation in Eritrea posed widespread problems of insecurity and that Saudi Arabia had a record of returning asylum seekers without a careful analysis of their claims. Therefore, since the applicant’s complaint under Article 3 ECHR was “arguable” for the purposes of Article 13 ECHR, the Ukrainian authorities were under an obligation to furnish effective guarantees to protect him against arbitrary removal directly or indirectly back to his country of origin. On the contrary, the border guards at first rejected his disembarkation and informed him he could not apply for asylum on board the vessel.

In conclusion, the ECtHR found that the border-control procedure did not provide adequate safeguards capable of protecting the applicant from arbitrary removal in a situation where the risk of being brought back to his country of origin, where he would arguably face treatment contrary to Article 3 ECHR, was real, imminent and foreseeable. Accordingly, the Court found a violation of Article 13 ECHR read in conjunction with Article 3 ECHR.

Outcome:

The ECtHR held that there had been a violation of Article 13 ECHR taken in conjunction with Article 3 ECHR. It also ruled that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 

Other sources:

United Nations Convention on the Law of the Sea, 1982

International Maritime Organization Convention on Facilitation of International Maritime Traffic (FAL), 1965, as amended.

UNHCR, Note on Stowaway Asylum Seekers

UNHCR observations on the situation of asylum-seekers and refugees in Ukraine

UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea, 20 April 2011