Problems of judicial protection of the rights of asylum seekers and migrants in Ukraine

Despite Ukraine’s international obligations, the rights and freedoms of asylum seekers in our country are still formal in nature. Even when appealing to the judicial branch of government in the interests of foreigners, human rights defenders often encounter bias and injustice of the court in cases of restoration of violated rights of asylum seekers and migrants.

If at the legislative level the regulation of migration processes in Ukraine is undergoing gradual, albeit not entirely perfect, but still certain changes, then the implementation of international standards in the field of protection of the rights of asylum seekers and migrants in practice is not an easy task. Firstly, this is due to the inability to completely overcome the remnants of Soviet beliefs in the minds of representatives of the authorities; secondly, the lack of certain knowledge and desire of the representatives of the judiciary to implement and use international standards in their work.

The practical protection of the rights of asylum seekers and migrants is primarily in the hands of the judicial branch of government. Human rights activists are constantly faced with cases of gross violations by the administrative courts of Ukraine of the substantive and procedural norms of the current legislation in cases involving foreign citizens. In particular, the main problem remains the formal approach of the court to cases of this category. The bias and impartiality of the court is a violation of the guiding principles of judicial proceedings enshrined in the norms of procedural legislation.

What factors indicate a formal approach of the court in resolving cases? A vivid example is the presentation of decisions and rulings in cases concerning unregulated migrants by analogy. Some young judges simply copy the content of each other’s rulings from different cases, changing only the names of the acting persons. The rulings themselves often do not contain any facts on the case under consideration, do not indicate the explanations of the parties, or in general the decisions are based only on the explanation of one party, usually a representative of the authorities (migration or border services, the Ministry of Internal Affairs).

It is also necessary to emphasize another problem – the failure of judges to comply with the rules of court proceedings. Thus, increasingly often judges limit the procedural rights of foreigners and their representatives, sometimes to the point of absurdity: limiting the time of debates, refusing to attach documents, written evidence, photos to the case materials, refusing to satisfy petitions, applications, etc.

There are repeated cases of failure to notify foreigners and their representatives of the time and place of consideration of cases. At the same time, the other party to the case was properly sent the corresponding summons and the decision on assigning the case for consideration. Fraudulent sending of court rulings after they have entered into legal force is also often observed. When the resolution is sent by simple letter, and in case of problems, the court refers to the poor work of the post office. After that, human rights defenders experience certain difficulties in resolving the issue of renewal of the violated deadlines.

An acute problem remains administrative cases regarding the imposition of a fine for illegal stay of a person on the territory of Ukraine, the application of administrative arrest to foreigners for the same reasons, placement in temporary residence points for foreigners, forced expulsion, etc. According to our observations, in this category of cases, the rights and freedoms of migrants are most often violated both during the resolution of these issues in court and during the pre-trial investigation. According to the legislation, when persons who have violated the rules of stay on the territory of Ukraine are detained, the state body carrying out the detention must explain to the migrant his rights, provide assistance of an interpreter, a qualified lawyer, if desired. Instead, the internal affairs bodies, border guards, take advantage of the fact that the detained persons do not speak the state language, do not know the laws, and are under psychological pressure. Using these factors to their advantage, representatives of the authorities illegally force unregulated migrants to sign documents, the content of which they, accordingly, cannot understand. In the future, such actions cause a number of other violations of human rights and freedoms. In particular, these are guaranteed human rights to a fair, objective trial, the right to appeal decisions of government bodies, court decisions. Thus, according to the norms of current procedural legislation, a person has the right, and sometimes the obligation, to take direct part in the trial of a case concerning him.

There are cases when persons of foreign origin unknowingly, under pressure or deception, sign a document, where they allegedly ask the court to consider the case in their absence. It is also a common practice to hold trials with the participation of a foreigner, but without inviting an interpreter or lawyer. It is interesting how, during the consideration of relevant cases, the judge clarifies the rights and obligations of the parties, resolves the issue of the trustworthiness of the court composition, etc.

Sometimes the court’s motivations reach the point of absurdity, for example, when in the court’s decision the absence of the defendant is explained by the following wording: “The defendant, through the representative of the plaintiff, submitted a request to consider the case in his absence.”

Another unfortunate problem remains the acceptance by the courts of claims from persons who do not have the appropriate procedural capacity, and the violation of jurisdiction by the courts. According to the CAS of Ukraine, district administrative courts are competent for administrative cases in which one of the parties is a state authority. The legislation stipulates that local general courts, as administrative courts, are competent for all cases except those that are competent for district administrative courts. Thus, cases on claims by employees of the Ministry of Internal Affairs, the Border Guard Service, and the Migration Service must be considered by the relevant district administrative courts. But, unfortunately, this norm is often violated.

All of the above almost completely crosses out the content and idea of ​​numerous legislative acts of Ukraine aimed at protecting and observing human and citizen rights regardless of origin and citizenship. Thus, the Code of Administrative Procedure of Ukraine emphasizes that foreigners, stateless persons and foreign legal entities enjoy the same right to judicial protection in Ukraine as citizens and legal entities of Ukraine, all citizens are equal before the law. In turn, the Constitution of Ukraine determines that there can be no privileges or restrictions on the grounds of race, skin color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, language or other grounds. But we have to conclude about the formality and ineffectiveness of Ukrainian legislation in the part concerning the rights and freedoms of foreign citizens, and also to emphasize the nominal nature of the obligations that Ukraine has assumed by ratifying international agreements in the field of migration processes and protection of the right to asylum.

But, with the joint efforts of human rights organizations, recently the above problems have tended to undergo minor but positive changes. Thus, in December 2011, the appeal of lawyers of the Chernihiv Public Committee for the Protection of Human Rights in the Interests of Citizens of Afghanistan to the Zhytomyr Administrative Court of Appeal with an appeal against the absurd in its content resolution of the Popilnyanskyi District Court of the Zhytomyr region on the detention of these persons and their placement in the Temporary Residence Point (PTPI) “Rozsudy” of the Chernihiv region for forced deportation ended in victory. Foreigners (mother and son), having arrived as a family in Ukraine, tried from the first minutes to seek help in obtaining asylum in Ukraine, which by law exempts a person from liability for illegally crossing the state border. But after contacting local law enforcement agencies, the individuals were not only detained, but also fraudulently, by an illegal court decision, placed in the Chernihiv PTPI “Rozsudiv”.

With its rulings, the Zhytomyr Administrative Court of Appeal proved that the independence of the court is not a myth. As a result, by the decision of the Zhytomyr Administrative Court of Appeal, the foreigners were released from the Chernihiv PTPI and were able to reunite with their families in Kyiv. The most important and key point of the case is the adoption by the appellate court of a decision that can truly be called objective and fair, made with a full clarification of the circumstances of the case and in compliance with the norms of current legislation.

Nadiya Ediyeva, Chernihiv Public Committee for the Protection of Human Rights