CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s9E304268 { width:190.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FIFTH SECTION             CASE OF ABUHMAID v. UKRAINE   (Application no. 31183/13)               JUDGMENT         STRASBOURG     12 January 2017   FINAL   12/04/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Abuhmaid v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Khanlar Hajiyev,   Ganna Yudkivska,   André Potocki,   Faris Vehabović,   Yonko Grozev,   Carlo Ranzoni, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 29 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31183/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr   Hesham Ahmad Saddidin Abuhmaid, who holds a passport issued by the Palestinian Authority, (“the applicant”), on 14 May 2013. 2.     The applicant was represented by Ms G. Bocheva and Ms   K.   Halenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice. 3.     The applicant initially alleged that his possible removal from Ukraine would be contrary to Articles 8 and 13 of the Convention and that the domestic examination of his expulsion case fell short of the requirements of Article 1 of Protocol No. 7. Subsequently, the applicant complained under Articles 8 and 13 of the Convention of uncertainty of his further stay and status in Ukraine. 4.     On 5 September 2013 the applicant’s complaints under Articles 8 and   13 of the Convention and under Article   1 of Protocol No.   7 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5.     On 17 November 2014 the President of the Section decided to invite the parties to submit further observations regarding the factual developments which took place after the communication of the case. The applicant and the Government each submitted further observations and comments. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1970 in Rafah, Gaza. He currently lives in Kyiv. A.     Background information 7.     Between 1977 and 1993 the applicant lived mainly in Rafah. He claimed to have been involved in the activities of Fatah, the Palestinian political organisation. 8.     In 1993 the applicant went to Ukraine to study. The same year he entered Kyiv Polytechnic University. In 1999 the applicant finished his studies at the University and obtained a master’s degree in biomedical electronics. In 2001 the applicant enrolled in a postgraduate course at the same University. In 2003 he withdrew from the course as he had no money to pursue his studies. The applicant claims that since 2003 he has been working as a freelance translator/interpreter for the Embassy of Libya in Kyiv and for various private companies (the applicant speaks fluent Arabic, English and Russian, and understands Ukrainian). 9.     In 1998 the applicant married a Ukrainian national. In 2007 they divorced. In 2011 the applicant married another Ukrainian national; their marriage lasted for less than two months. In March 2013 the applicant entered into a relationship with another Ukrainian national. In January 2014 they married and currently live together as a family. 10.     The applicant visited Gaza twice in 2000. According to the applicant, one of the visits was due to his father’s death. Since December 2000 the applicant has remained in Ukraine without leaving its territory. 11.     In 2001 the applicant was issued with a registration card by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). The card bears the name “Hicham Ahmad Sadiddin Hmeid”. The applicant attributes the difference in the spelling of his name to varying transliterations of Arabic names. Similar cards were issued to the applicant’s mother and sister, who currently reside in Rafah. B.     The legal basis for the applicant’s stay in Ukraine prior to expulsion order 12.     Prior to November 2009 the applicant was staying in Ukraine on the basis of passports of limited duration, issued by the Palestinian Authority, and temporary residence permits, which were regularly extended by the Ukrainian police. In 2008-09 an extension of the applicant’s residence permit was requested by the Embassy of Palestine and granted by the Ukrainian authorities, as at the time access to the Palestinian territories was problematic. 13.     In 2003 the applicant started preparing documents to apply for a permanent residence permit on the basis of his marriage to a Ukrainian national. He could not complete his application because his then brother-in-law was opposed to the applicant being registered as resident in the flat in which the applicant, his then wife and brother-in-law resided at the time. 14.     On 9 March 2010 the applicant applied to the migration unit within the Golosiyivkyy District Police Department in Kyiv for an extension of his residence permit. The police noted that the applicant’s residence permit had expired in November 2009 and that since then the applicant had been in Ukraine in violation of migration regulations. 15.     On 10 March 2010, at the request of the police, the Golosiyivskyy District Court in Kyiv, relying on Article 203   §   1 of the Code on Administrative Offences, ordered the applicant to pay a fine for violating migration regulations. 16.     The applicant’s identification documents were kept by the Golosiyivkyy District Police Department pending the outcome of the applicant’s request for an extension of his residence permit. 17.     According to the applicant, about a week later his residence permit was extended until 15 September 2011. The Government contested that submission, stating that no extension had been granted. 18.     In the meantime, on 11 March 2010 the applicant was stopped by officers of the Solomyanskyy District Police Department in Kyiv for an identity check. As he had no identification documents, the applicant was arrested and taken to the police station. The applicant stated that his explanation that his documents were being kept at another police department had not been taken into account. On 12 March 2010 the applicant was taken to the Solomyanskyy District Court in Kyiv, which, having examined the material submitted by the police, fined the applicant for failure to carry identification and foreigner’s registration documents. 19.     On 28 April 2010 the applicant was stopped by officers of the Desnyanskyy District Police Department in Kyiv for an identity check. Having noted that the applicant was living in a flat in Kyiv without a rent contract or official registration, the officers asked the Desnyanskyy District Court in Kyiv to fine the applicant. By a decision of 28 April 2010, the court ordered the applicant to pay a fine for violating migration regulations. 20.     The applicant did not appeal against the court decisions convicting him of administrative offences, as he had no legal representation and took the view that those decisions would not have any consequences for his stay in Ukraine. 21.     On 16 September 2011 the applicant went to the migration unit of the Chief Police Department in Kyiv to apply for an extension of his residence permit. On the way he was stopped by officers of the migration unit of the Solomyanskyy Police Department in Kyiv, who informed the applicant that there had been an order deporting him from Ukraine. The officers seized the documents the applicant had with him for his application for an extension of his residence permit, including his passport and marriage certificate. The documents have not been returned to the applicant. The applicant claimed that for that reason he could not provide a copy of his most recent residence permit. 22.     Subsequently the applicant contacted a lawyer, who helped him to obtain copies of the decisions concerning his expulsion and to lodge an appeal against them (see paragraph 28 below). C.     Expulsion proceedings 23.     On 17 March 2010 the Solomyanskyy District Police Department in Kyiv issued a decision stating that the applicant should be removed from Ukraine for violation of migration regulations and banning him from entry to the country until 12 March 2015 under section 32 of the Legal Status of Foreigners and Stateless Persons Act 1994 (see paragraphs 64-67 below). In the decision, it was noted that the applicant had come to Ukraine in 2005 for a private visit; that after the expiry of his residence permit he had remained in Ukraine illegally; that he had not requested an extension of his residence permit; that he had no relatives in Ukraine; that he had no work permit; that he had earned his life working at a market in Kyiv; and that he was “known to the police”. 24.     According to the Government, the applicant was informed of the decision of 17 March 2010 on the same day and asked for a court hearing on his expulsion case (see paragraph 27 below) in his absence. In support, they provided copies of written statements allegedly signed by the applicant and by a translator. 25.     The applicant claimed that he had not been informed of that decision and that the written statements in that regard had been forged by the police. The applicant also argued that he had not been aware that subsequently, in May 2010, the police had initiated court proceedings for him to be forcibly removed from Ukraine. 26.     In their written submissions made in the course of those proceedings, the police reiterated the findings in the decision of 17 March 2010 and requested the Kyiv Administrative Court to order the applicant’s immediate forcible removal and his placement in a facility for temporary detention of foreigners and stateless persons for the period necessary to prepare the removal. In the latter regard, the police argued that there were reasons to believe that the applicant would try to remain illegally in Ukraine. 27.     On 18 May 2010 the Kyiv Administrative Court heard the case in the absence of the parties, having noted that the applicant had submitted a written statement that he did not wish to be present and that he agreed with the expulsion decision, and also that the police were not able to attend the hearing because of their high workload. The court relied on the findings in the decision of 17 March 2010 and allowed the claims of the police. In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days under Articles 185-187 of the Code of Administrative Justice. If no appeal was lodged against the decision it would enter into force after the expiry of the ten-day period. 28.     According to the applicant, he was informed of the decision of 18   May 2010 on 25 November 2011. On 29 November 2011 a lawyer submitted an appeal on the applicant’s behalf, together with a request for renewal of the ten-day time-limit, to the Kyiv Administrative Court for further transfer to the Kyiv Administrative Court of Appeal. 29.     In the appeal, the applicant argued that he had been studying in Ukraine between 1993 and 1999. In December 2000 he had returned from Palestine to Ukraine fearing persecution by the Israeli authorities. Without providing any further details, the applicant stated that he had been arrested and tortured by the Israeli authorities with the aim of obtaining his confession of cooperation with Hamas. The applicant further noted that he was married to a Ukrainian national, that he had been officially allowed to stay in Ukraine until 16   September 2011, and that on that day the police had seized his identification documents and ordered him to leave Ukraine. The applicant also expressed the wish to apply for asylum once the Migration Service started accepting asylum applications according to the new regulations (see paragraphs 75-79 below). 30.     The applicant complained that the first-instance court had failed to examine all the facts pertinent to the case and to hear him. According to the appeal, the applicant had not been informed of the decision of 17   March 2010 and had not asked the court to hear the case in his absence. 31.     He also argued that the first-instance court had not checked whether it was safe for the applicant to return to Palestine and had not been informed of the circumstances essential for the outcome of his case. In particular, the applicant argued that the Ukrainian police had withheld the information that he had a valid residence permit and that he had used to be married to a Ukrainian national. The applicant complained that the expulsion decision of 17   March 2010 had been taken in violation of Articles 2, 3 and 5 of the Convention, given the human rights situation in Palestine, and in violation of the domestic procedure. 32.     On 14 November 2012 the Kyiv Administrative Court of Appeal heard the case in the absence of the parties. It is unknown whether the applicant or his lawyer intended to take part in the hearing and, if so, whether they informed the Court of Appeal accordingly. 33.     The appeal was rejected as unsubstantiated. In particular, the Court of Appeal relied fully on the findings of the first-instance court and noted that “the claimant, having been removed from Ukraine, had crossed the Ukrainian border despite the existing entry ban”. The decision entered into force immediately. 34.     On 6 December 2012 the applicant lodged with the Higher Administrative Court a cassation appeal challenging the factual and legal findings of the lower courts. The applicant also complained that his expulsion from Ukraine would be contrary to Article 8 of the Convention given his personal and family ties with that country. 35.     On 3 October 2013 the Higher Administrative Court overturned the lower courts’ decisions on the ground that they had failed to examine whether there were grounds preventing the applicant’s expulsion under Ukrainian law. The Higher Administrative Court also noted that the lower courts had not given due consideration to the applicant’s private and family life interests in Ukraine. The case was thus sent for re-examination to the first-instance court. 36.     After another round of examination by the courts at the first and appeal levels of jurisdiction resulting in a decision ordering the applicant’s forcible removal from Ukraine, in February 2014 the case was sent back to the start again by the Higher Administrative Court, for the same reasons as in its decision of 3   October 2013. 37.     On 29 October 2014 the Desnyanskyy District Court, to which the case was eventually remitted, refused the application for the applicant’s forcible expulsion. 38.     The court held that the applicant’s forcible removal from Ukraine would be in violation of his right to respect of family life as guaranteed by Article   8 of the Convention, having regard in particular to the fact that the applicant was married to a Ukrainian national. It also found that, in the event of his removal to Palestine, the applicant’s life and security would be endangered, given the armed conflict on that territory, which would entail a violation of Ukraine’s commitments under Articles   3 and 5 of the Convention. The court took the view that the applicant had grounds to be given the status of refugee or of a person in need of complementary protection. The court also noted that, by operation of the statutory one-year time-limit (see paragraph 58 below), the applicant could no longer be considered as having committed the administrative offences of which he had been convicted in 2010 (see paragraphs 15, 18 and 19 above). 39.     That decision was not appealed against and became final. D.     The applicant’s initial application for asylum 40.     On 25 January 2012 the applicant lodged an asylum application with the State Migration Service. According to the applicant, in his application he stated that he feared persecution by Hamas if returned to Gaza, as he had been a member of Fatah. 41.     According to the applicant, during the assessment of his asylum case migration officers questioned him on two occasions. They asked formal questions not related to the substance of his allegations. 42.     On 1 August 2012 the applicant received a written notice dated 21   June 2012 that his asylum application had been refused by a decision of the State Migration Service of 17 May 2012 and that he could challenge it before the courts. No copy of the decision was given to the applicant. 43.     On 3 August 2012 the applicant challenged the refusal of his asylum application before the Kyiv Administrative Court. In particular, the applicant argued that he had not been informed of the reasons for that decision, and that this prevented him from effectively appealing against it. The applicant also argued that the examination of his application had not been thorough and objective, as his questioning had been formalistic and no additional information had been sought concerning the general situation in Palestine or the applicant’s personal circumstances from other State authorities, such as the State Security Service, or from the applicant himself, to check the reliability of his submissions. The applicant stated that he had not been given access to the evidence in the inquiry. He maintained his allegation that he was at risk of persecution by Hamas, and also argued that if returned to Gaza, as a male Palestinian he ran a real risk of ill-treatment by the Israeli authorities, even though he did not support Hamas. In that regard, he referred to the reports of Amnesty International and Human Rights Watch concerning the human rights situation in Palestine in 2012. The applicant also contended that the Migration Service had disregarded that, as a Palestinian refugee registered with UNRWA and outside its field of operation he was entitled to the same protection in Ukraine as refugees under the United Nations Convention Relating to the Status of Refugees of 1951. 44.     On 20 September 2012 the court rejected the applicant’s case, finding that the Migration Service had examined the matter thoroughly and fully and that the applicant’s arguments were unsubstantiated. In particular, the court noted that the material relating to the applicant’s asylum proceedings demonstrated that he did not run an individual and real risk of persecution by the Palestinian authorities, as Hamas and Fatah had entered into negotiations concerning a transitional government for Palestinian territories; he had not been subjected to such persecution at any time; the applicant had not provided any evidence that he would not be able to avail himself of the protection of his country of origin; he had travelled freely to and from Palestine; all his family lived there; and he did not face criminal prosecution there. The court also noted that the applicant had left his country of origin voluntarily for economic and personal reasons; he had had his residence permit in Ukraine repeatedly extended for personal reasons; and he had requested asylum only after he had not been able to legalise his further stay in Ukraine. Relying on the latter ground, the court found that the applicant had missed the time-limit for lodging an asylum application pursuant to Article 5 of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011. On the whole, the court found that it had been for the applicant to provide documents or persuasive arguments demonstrating that he had run a real and personal risk of persecution, which he had failed to do. 45.     On 25 October 2012 the applicant lodged an appeal with the Kyiv Administrative Court of Appeal. In particular, he stated that his allegations of risk of persecution by Hamas and by the Israeli authorities were, inter alia, supported by the fact that his passport had been issued by the Palestinian Authority associated with Fatah, by his registration card issued by the UNRWA, and by various international reports, which neither the Migration Service nor the court of first instance had sought to obtain or examine. According to the applicant, the court’s review of his case had not been full or thorough, thus falling short of the requirements of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as interpreted by the Plenary Higher Administrative Court (see   paragraphs 80-86 below). 46.     On 4 December 2012 the Court of Appeal rejected the applicant’s appeal, having agreed with the first-instance court in that the applicant had failed to substantiate his asylum application as required by the national law and pertinent international documents, including the European Union Council Directive of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status and the Guidelines on procedures and criteria for determining refugee status under the 1951 Geneva Convention, issued by the UNHCR in 2011. 47.     The applicant appealed in cassation, stating that the lower courts had not fully examined the material pertinent to his case, which had resulted in a wrong dismissal of his asylum request, in violation of Articles   3, 8 and 13 of the Convention. As to Article 8, the applicant noted that he had studied in Ukraine between 1993 and 1999, that since 2000 he was permanently resident on its territory, and that he was married to a Ukrainian national. 48.     On 7 February 2013 the Higher Administrative Court rejected the applicant’s cassation appeal, having found no elements demonstrating that the lower courts had erred in the application of substantive or procedural law or that review of the evidence in the case was required. E.     The applicant’s second application for asylum 49.     In November 2014 the applicant lodged a new asylum application with the State Migration Service. 50.     On 24 December 2014 the Kyiv Department of the State Migration Service refused to examine the application, finding that it was wholly unsubstantiated. 51.     On 20 July 2015 the Kyiv Administrative Court overturned that decision, having found that the State Migration Service had failed to thoroughly examine the matter. The court in particular found that, although the arguments on which the applicant’s new application for asylum had been based were the same as in the applicant’s initial application, the new application needed to be reconsidered in the light of the decision of the Desnyanskyy District Court of 29 October 2014 and on the basis of the new Act on the Legal Status of Foreigners and Stateless Persons, which had entered into force on 25 December 2011. It therefore ordered the State Migration Service to reconsider the applicant’s new asylum application. 52.     The reconsideration of the applicant’s new asylum application is currently pending. According to the Government, by operation of section 1 of the Refugees and Persons in Need of Complementary or Temporary Protection Act (see paragraph 79 below), this gives the applicant a lawful ground to stay in Ukraine for the duration of the said reconsideration. F.     The applicant’s further attempts to regularise his residence in Ukraine 53.     As he could not obtain asylum in Ukraine and in order to use all possible opportunities to legalise his stay in Ukraine in order to evade expulsion, in 2014 the applicant applied for leave to immigrate, principally relying on the fact that he was married to a Ukrainian citizen. The Migration Service refused to examine his application as there were inconsistences in the spelling of his name in the applicant’s asylum seeker’s certificate and in his passport and marriage certificate. The applicant’s requests for the relevant changes to be made in the documents were allegedly ignored by the authorities. 54.     The applicant further claimed that an official from the Migration Service told him that he would have to leave Ukraine and to apply for leave to immigrate from abroad in order to obtain leave to enter Ukraine lawfully. 55.     According to the applicant, he could not leave Ukraine as he had nowhere to go. In Palestine his life and health would be endangered and he had not maintained close links with the place where he lived before he had moved to Ukraine. In his view, he could not apply for leave to immigrate into Ukraine, as he could not be considered as staying on its territory “on lawful grounds”, which was required by the Immigration Act (see paragraph   74 below). According to the Government, the applicant could not apply for leave to immigrate while his asylum application was being examined. Furthermore, pursuant to Article 4   §   3 (1) of the Immigration Act leave to immigrate could be granted to an alien who had been married to a Ukrainian citizen for over two years (see paragraph 74 below). At the time, the applicant’s marriage had lasted for less than two years. Thus, no leave to immigrate could be granted to him on that ground. 56.     The parties did not inform the Court of any further developments in that regard. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of Ukraine, 1996 57.     The relevant extracts from the Constitution provide as follows: Article 26 “Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party. Foreigners and stateless persons may be granted asylum under the procedure established by law.” Article 55 “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers. ...After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” B.     The Code of Administrative Offences, 1984 58.     Article 39 of the Code provides that persons convicted of an administrative offence shall be considered as having no convictions, provided they commit no administrative offence for one year following the date of the sanction for the initial offence. C.     The Code of Administrative Justice, 2005 59.     Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials, and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts. 60.     Pursuant to Article 48, foreigners and stateless persons enjoy the same capacity to have recourse to legal procedure as the citizens of Ukraine and, pursuant to Articles 16 and 56, are entitled to be legally assisted and represented in proceedings. 61.     Article 49 provides for parties’ right to be informed of the date, time and place of court hearings and to take part in them. Pursuant to Article 122, the first-instance court must examine the case at an open hearing to which the parties are invited, unless they express the wish to have the case examined by means of a written procedure. The parties may take part in hearings before the courts of appeal and of cassation. The parties should inform those courts accordingly (Articles 187 § 3 and 213   §   3). The courts of appeal and of cassation may decide to examine cases by means of a written procedure (Articles 196, 197 and 222). 62.     Under Article 227 § 2 the court of cassation has the power to quash decisions of the lower courts and to order reconsideration of the case if it finds that there have been procedural violations which have “impeded the establishment of facts decisive for the correct determination of the case”. 63.     On 22 September 2011 Article 183-5 was added to the Code and entered into force on 15 October 2011. It provided particular rules for the consideration of cases concerning expulsion of foreigners and stateless persons. It provided for the compulsory presence of the parties during hearings before the court of first instance. The court’s decision in such cases could be challenged on appeal within five days of its delivery and could be further challenged before the court of cassation. In May 2016 Article   183-5 was repealed. The rules for the consideration of cases concerning expulsion of foreigners and stateless persons are currently set out by Article 183-7. D.     The Legal Status of Foreigners and Stateless Persons Act, 1994 (repealed on 25 December 2011), as worded at the material time 64.     Section 32 of the Act laid down the procedure for removal of foreigners and stateless persons from the territory of Ukraine. 65.     It listed the grounds for removal, which included the commission of a crime, the failure to comply with the conditions of temporary stay, and danger to national security or public order. Compulsory removal was also to be ordered if there were grounds for refusal of entry specified in section 25 of the Act (such as submission of false information, breach of entry or customs regulations). Foreigners and stateless persons could also be removed if they engaged in activities detrimental to Ukraine’s relations with another country, repeatedly committed administrative offences, or did not have legally obtained means sufficient to support their stay in and departure from Ukraine. 66.     A removal decision was to be taken by the police, the border guards or the State Security Service. Notice of the decision had to be given to prosecutors within twenty-four hours. An appeal against the decision could be lodged with the courts. 67.     A period of up to five days could be indicated in a decision that a foreigner or stateless person must leave the territory of Ukraine. 68.     If the person concerned did not comply with the decision, he or she had to be forcibly expelled in accordance with an order of an administrative court. At the request of the police, the border guards or the State Security Service, the administrative court was also empowered to order the person’s detention for the period necessary for the preparation of his or her expulsion, not exceeding twelve months, at a facility for temporary detention of foreigners and stateless persons illegally in Ukraine, if there were “reasonable grounds suggesting that [the person] would fail to leave” the territory of Ukraine. 69.     According to section 32-1, foreigners or stateless persons were not to be removed to a country where they risked being subjected to torture or cruel, inhuman or degrading treatment or punishment. E.     The Legal Status of Foreigners and Stateless Persons Act, 2011 (entered into force on 25 December 2011) 70.     The 2011 Act sets out the grounds on which foreigners and stateless persons can stay in Ukraine. In particular, according to sections 4 and 5, permanent or temporary residence permits can be issued to foreigners and stateless persons who fulfil the conditions set out in the Immigration Act of 2001, (see paragraph 74 below), who have been granted the status of refugee or of a person in need of complementary protection, who have come to study, who have been granted work permit, who have come to work at local offices of foreign or international companies, banks, religious and public organisations, who serve in the Ukrainian Army pursuant to a contract, or who have been granted leave to enter Ukraine on other lawful grounds. Those, who have been released from a facility for temporary detention of foreigners and stateless persons who are illegally in Ukraine (see paragraph 72 below) on the ground that the decision on their removal from Ukraine or on their detention was annulled or that the maximum duration of such detention expired, and who cannot be removed from Ukraine due to circumstances beyond their control, can also obtain a temporary residence permit. 71.     Like the Act in force before 25 December 2011, the 2011 Act provides for a two-stage procedure of forcible removal of foreigners or stateless persons from Ukraine. Where there are grounds for such a removal (see below), the authorities take a decision ordering foreigners or stateless persons to leave Ukraine. If the foreigners or stateless persons concerned fail to comply with such an order, they may be forcibly removed (expelled) pursuant to a decision of an administrative court. In particular, section 26 provides that the State Security Service, the border guards, or “the central executive authority ensuring the implementation of State policy in the sphere of migration” may take a decision ordering the (forcible) return of foreigners and stateless persons to the country of origin or to a third country if their conduct violates the regulations on their legal status or is contrary to the interests of national security of Ukraine or of public order, or if their return is necessary for the protection of the health, rights and lawful interests of Ukrainian citizens. Notice of the decision shall be given to prosecutors within twenty-four hours and a copy of the decision shall be given to the foreigner or stateless person concerned. The decision shall contain the reasons on which it is based, indicate a period during which the foreigner or the stateless person concerned must leave Ukraine (which shall not exceed thirty days), and specify the procedure for appeal (the decision may be appealed against to the courts) and the consequences of failure to comply with it. Foreigners and stateless persons who are below eighteen years of age or in whose respect the Refugees and Persons in Need of Complementary or Temporary Protection Act applies shall not be subjected to forcible return. 72.     According to section 30, if foreigners or stateless persons fail to comply with the decision ordering their return within the set time-limit or if there are reasonable grounds suggesting that they will evade complying with such a decision, the State Security Service, the border guards, or “the central executive authority ensuring the implementation of the State policy in the sphere of migration” may expel the foreigners or the stateless persons from Ukraine on the basis of an administrative court’s decision. The court’s decision may be taken at the request of the said authorities, and is subject to appeal. For the purposes of foreigners’ and stateless persons’ “identification” and enforcement of the court’s decision, they may be detained at a facility for temporary detention of foreigners and stateless persons who are illegally in Ukraine for a period of up to eighteen months. The prosecutors must be informed of such detention within twenty-four hours. Foreigners and stateless persons to whom the Refugees and Persons in Need of Complementary or Temporary Protection Act applies shall not be subjected to forcible expulsion. 73.     Section 31 prohibits forcible return or expulsion of foreigners and stateless persons to countries (i) where their life or freedom is endangered for reasons of race, religion, origin, nationality, membership of a particular social group or political opinion; (ii) where they risk being subjected to the death penalty or execution, torture or cruel, inhuman or degrading treatment or punishment; (iii) where their life, health, security or freedom are endangered by widespread violence in the situation of an international or internal armed conflict or where there are systematic violations of human rights, natural disasters or anthropogenic hazards, or where the medical treatment or assistance sufficient to maintain life are not available; or (iv) where they risk expulsion or forced return to countries in which such circumstances may emerge. This provision also bans collective forcible expulsions of foreigners and stateless persons. F.     The Immigration Act, 2001 74.     The Immigration Act sets out the conditions and procedures for foreigners and stateless persons seeking leave to permanently reside in Ukraine. It applies both to those living abroad and to those staying in Ukraine on lawful grounds. In order to be given a permanent residence permit, immigrants have to obtain, in the first place, the authorities’ decision granting them leave to immigrate. Section 4 of the Immigration Act provides that such leave can be granted, according to immigration quotas set by the Cabinet of Ministers, to notable scientists or artists; highly qualified professionals of which Ukraine’s economy is in need; persons who invest a substantial amount of money into its economy; close relatives (siblings, grandparents and grandchildren) of Ukrainian nationals; former Ukrainian nationals; immigrants’ parents, spouses and minor children; persons who have resided on the territory of Ukraine for at least three years after they have been recognised as victims of human trafficking; and persons who served in the Ukrainian Army for at least three years. The following categories of immigrants are entitled to be granted leave to immigrate, to which the aforementioned quotas do not apply: those who have been married to Ukrainian nationals for over two years; those whose parents or children are Ukrainian nationals; guardians of Ukrainian nationals; those whose guardians are Ukrainian nationals; those who have the right to claim Ukrainian nationality according to their place of birth; those whose immigration would be in the national interest; and those who are of Ukrainian origin or descent and are living abroad, as well as their spouses and children who come with them to live in Ukraine. G.     The Refugees and Persons in Need of Complementary or Temporary Protection Act, 2011 75.     According to the glossary of terms set out in section 1 of the Act, a refugee is “a person who is not a citizen of Ukraine and who, because of well-founded fear of becoming a victim of persecution for reasons of race, religion, origin, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable to avail him or herself of the protection of that country or, because of such fear, is unwilling to avail him or herself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or is unwilling to return to it because of the said fear” (paragraph 1 (1) of section 1). 76.     A person in need of complementary protection is a person who is not a refugee but who “needs protection because he or she had to come to or remain in Ukraine because of a threat to his or her life, security or freedom in the country of origin, as the person fears that he or she may be subjected to the death penalty, execution of the death sentence, torture, inhuman or degrading treatment or punishment, or owing to widespread violence resulting from a situation of international or internal armed conflict or systematic violations of human rights” (paragraph 1 (13) of section 1). 77.     As amended on 13 May 2014, sub-paragraphs 14 and 21 of paragraph 1 of section   1 provide for temporary protection, as an exceptional measure limited in time, to those coming to Ukraine en masse and who are unable to return to their country of permanent residence as a result of foreign aggression, occupation of its territory, civil war, ethnic conflicts, natural disasters or industrial catastrophes, or other events disrupting public order in that country or part of it. 78.     Those who have crossed the Ukrainian border illegally and entered the territory of Ukraine with the intention of being recognised as a refugee or as a person in need of complementary protection in that country must lodge an application with the Migration Service. In that event they will not be held liable for the illegal crossing of the border and/or illegal stay on the territory of Ukraine (paragraph 4 of Section 5). 79.     The Migration Service, dealing with an application for refugee status or for the status of a person in need of complementary protection, issues a document confirming that an asylum seeker has requested protection in Ukraine (paragraph 1 of Section 8). Such a document gives lawful ground for the asylum seeker’s stay in Ukraine until his or her status is finally determined or until he or she leaves its territory (paragraph 1 (3) of Section   1). H.     Resolution of the Plenary Higher Administrative Court on the judicial practice of consideration of disputes concerning refugee status, removal of a foreigner or a stateless person from Ukraine, and disputes connected with a foreigner’s or stateless person’s stay in Ukraine 80.     The resolution in force at the time (March 2010) when the authorities decided to expel the applicant in the present case had been adopted by the Plenary Higher Administrative Court on 25 June 2009. It was amended on 20 June 2011. 81.     On 16 March 2012 a new version of the Resolution was adopted by the Plenary Court. 82.     Both the previous and the current versions of the Resolution provide that any decision, action or omission of the authorities relating to foreigners’ and stateless persons’ entry or stay, including detention, in Ukraine may be challenged before the administrative courts. Cases concerning foreigners’ or stateless persons’ liability for administrative offences have been excluded from the administrative courts’ jurisdiction. 83.     The Plenary Court has noted that the burden of proof in administrative cases rests with the authorities, who are required to provide the courts with all the documents and material which may be used as evidence in the proceedings. The administrative courts may also use information published on the official Internet sites of national authorities and of international organisations, including the UNHCR, and also obtained from domestic or international non-governmental organisations and from the mass media. 84.     The Plenary Court has underlined that the administrative courts must take into account the provisions of the relevant international treaties, including the European Convention on Human Rights of 1950 and the United Nations Convention Relating to the Status of Refugees of 1951. In its 2012 Resolution, it notes that Article   3 of the European Convention on Human Rights takes precedence over the provisions of Article 33   of the United Nations Convention Relating to the Status of Refugees, which provide for the possibility of expulsion or return of refugees for the reason of threat to national security. 85.     When dealing with cases concerning forcible removal of foreigners or stateless persons who state that they fear persecution in the country of origin, the administrative courts must examine whether those persons were provided with information, in a language they understood, concerning the right to request refugee status or the status of a person in need of complementary protection in Ukraine. If necessary, the courts must ensure that they have access to the relevant procedure before the migration authorities. 86.     The 2012 Resolution indicates that the courts must also examine whether the persons concerned were provided with free of charge legal assistance pursuant to Sections 7, 8, 9 and 11 of the Free of Charge Legal Assistance Act of 2011. A decision refusing to grant refugee status or the status of a person in need of complementary protection may not serve as a ground for forcible expulsion of a foreigner or a stateless person. The administrative courts must examine whether there are lawful grounds for such expulsion. III.     the Committee of Ministers’ Recommendation Rec(2000)15 concerning the security of residence of long-term migrants 87.     On 13 September 2000 the Committee of Ministers adopted Recommendation Rec(2000)15 concerning the security of residence of long-term migrants, which states, inter alia : “...     1.     As regards the acquisition of a secure residence status for long-term immigrants (a)     Each member state should recognise as a "long-term immigrant" an alien who: (i)     has resided lawfully and habitually for a period of at least five years and for a maximum of ten years on its territory otherwise than exclusively as a student throughout that period; or (ii)     has been authorised to reside on its territory permanently or for a period of at least five years; or ... Each member state should have the option to add further conditions to those mentioned under sub-paragraph (i) above. Each member state should also have the option to extend the definition of a "long-term immigrant" to other categories of aliens. (b)     A long-term immigrant as defined in paragraph (a) above should be entitled to a secure residence status in the member state concerned and, in particular, to the renewal of the relevant documents. ... 3.     As regards the conditions for losing a secure residence status (a)     The residence permit of a long-term immigrant may only be withdrawn if: (i)     a residence permit has been acquired by means of proven fraudulent con