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Detention of asylum seekers pending extradition: how lawful is it?

Posted by: Gherson Immigration

The European Court of Human Rights (“ECtHR”) has recently found Ukraine to be in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), which establishes the right to liberty and security. The decision confirmed the Court’s position on the detention of asylum seekers pending extradition.

The case before the Court was of a Turkish national who was granted asylum in Ukraine in 2011. In October 2012, the Ukrainian authorities received an extradition request for the individual from Turkey, with the request specifying that the criminal charge was to become time-barred on 15 August 2013. 

Within several weeks, the individual’s refugee status was revoked on the basis that the applicant provided false information regarding the details of his persecution in Turkey, and he was subsequently detained with a view to his extradition. The individual appealed the revocation of his refugee status and also applied for subsidiary protection in March 2013. Both applications remained pending when the applicant was eventually released by court order on 30 August 2013, as the limitation period in respect of the criminal offences of which he was accused had expired.

The individual’s submissions to the ECtHR were that his detention had been contrary to Article 5 of the ECHR, as his appeal and application for subsidiary protection were pending during detention and because his prosecution in Turkey became time-barred on 15 August 2013. 

The Court considered that pending applications could not preclude detention in this particular case due to this being permitted under Ukrainian law. Although the ongoing proceedings did preclude extradition, if and when those proceedings ended unfavourably for the applicant, his extradition would become an immediate possibility – which is why his detention with a view to extradition was justified under domestic law. 

However, the Court supported the applicant’s view that his detention became unlawful after 15 August 2013, as after that date his extradition was barred under the European Convention on Extradition. The conclusion, therefore, was that the applicant spent 15 days in detention unlawfully (from 15 to 30 August) and the court held that he should be compensated for this period of time.

The Court’s position was consistent with decisions it has made previously. Historically, the ECtHR always looks at the provisions of national law to establish whether detention pending an application for international protection is allowed in the country in question. What was unusual about this case was that Ukrainian domestic law does permit detention in these circumstances, unlike in some other countries (cases against which have previously been considered by ECtHR), for example, Greece. The ECtHR therefore confirmed its previous position and the existing case-law – even where the domestic law in question was prejudicial to the applicant.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

Elena Vaina 

  Elena Vaina

  Paralegal in our Complex Case Team

 

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