CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 septembre 2022

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padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s35008A5F { width:18.55pt; display:inline-block } .s90B2F37D { width:135.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   FIFTH SECTION CASE OF O.M. AND D.S. v. UKRAINE (Application no. 18603/12)     JUDGMENT   Art 3 (procedural) • Expulsion • Removal of mother and her minor son to a third country without examination by Ukrainian border control authorities at international airport transit zone of risk of ill-treatment and/or refoulement of first applicant Art 34 • Hinder the exercise of the right of application • State failure to comply with interim measure indicated by the Court under Rule 39 not to remove applicants from Ukraine Art 5 § 1 • Ratione materiae • Control and surveillance measures by border guards at airport for about eleven hours not amounting to a deprivation of liberty   STRASBOURG 15 September 2022   FINAL   15/12/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of O.M. and D.S. v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Yonko Grozev,   Ganna Yudkivska,   Carlo Ranzoni,   Arnfinn Bårdsen,   Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   18603/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Kyrgyz nationals, Ms   O.M. (“the first applicant”) and Mr   D.S. (“the second applicant”), on 29   March 2012; the decision to give notice to the Ukrainian Government (“the Government”) of the application; the decision to grant the applicants anonymity under Rule 47 § 4 of the Rules of Court; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the Office of the United Nations High Commissioner for Refugees (“the UNHCR”), who were granted leave to intervene by the President of the Section; Having deliberated in private on 26 April 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns alleged violations of Articles 3, 5 and 13 of the Convention on account of the applicants’ treatment by the Ukrainian authorities while in the transit zone of an international airport and their eventual removal from Ukraine without any examination of their allegations of a risk of ill-treatment and/or refoulement depending on the State to which they would be sent. The applicants also complained under Article 34 of the Convention that Ukraine had failed to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court in the present case. THE FACTS 2.     The applicants were born in 1968 and 2007 respectively. According to the most recent information from the applicants, since November 2012 they have been living in the Netherlands. The applicants were represented, most recently, by Mr   D.   Dvornyk, a lawyer practising in Kyiv. 3.     The Government were represented by their Agent, most recently Mr   I.   Lishchyna of the Ministry of Justice. 4.     The relevant facts are described mainly in chronological order. The description is based on the parties’ written pleadings and the information contained in various documents copies of which they submitted to the Court. Where there is no discernible disagreement between the parties as to the relevant facts, no reference to the source of the information is made. Where there is actually or potentially such a disagreement, this has been indicated in the text to the extent possible. Events in Kyrgyzstan 5 .     The first applicant describes herself as an ethnic Ukrainian. She was born in Frunze (currently Bishkek), the capital of the then Kirghiz Soviet Socialist Republic (currently the Kyrgyz Republic). She was married to S. with whom she had a daughter and a son, the second applicant. In March 2009 S. died in circumstances allegedly linked to his political activities. 6.     The first applicant was a journalist and a prominent political figure in Kyrgyzstan. Between 1992 and 2000 she held management posts at several television companies and was a member of parliament between 2000 and 2009. In 2009 she was appointed to the post of Head of the Kyrgyz Presidential Administration. She was mainly responsible for the President’s public relations and communication with the media. 7.     On 6 April 2010 civil unrest broke out in Talas and rapidly spread to other cities of Kyrgyzstan. A number of people were injured and died as a result of clashes with the police and security forces. In particular, on 7   April 2010 more than seventy people were killed and more than 300 injured in Bishkek when government forces opened fire at protesters. On 15 April 2010 the then President Bakiyev fled to neighbouring Kazakhstan fearing reprisals. He later withdrew from the post of President. 8.     An interim government was set up under the leadership of the former Foreign Minister, Roza Otunbayeva. The interim government launched criminal investigations into the events of 7   April   2010. The first applicant was questioned about those events. On 3   May   2010 she was arrested on suspicion of abuse of power, in particular for failing to prevent the use of force against the protesters in Bishkek on 7 April 2010. She was detained in a solitary confinement cell at the investigative detention centre in Bishkek pursuant to a decision of a local court. On 17 May 2010 she was placed under house arrest. 9.     In October 2010 the first applicant along with more than twenty other former public officials were charged with several counts of aggravated murder and abuse of power in relation to the events of 7   April   2010 in Bishkek. 10 .     The trial hearings were held in a hall at the Palace of Sport in Bishkek. They were attended by a large number of people who threatened the first applicant, her co-defendants and their lawyers and called for their execution. During one of the hearings in November 2010 some of the first applicant’s co-defendants were injured by the crowd who managed to penetrate onto the stage where the trial was being held (see paragraph 61 below). As a result, the defence lawyers refused to continue to take part in the proceedings. The applicants’ departure for Kazakhstan 11.     In November 2010 the first applicant, fearing that she would be detained again and subjected to ill-treatment, covertly left Kyrgyzstan for Kazakhstan. She took the second applicant and her father, M., whom she described as an ethnic Ukrainian, with her. The first applicant’s daughter stayed in Kyrgyzstan. 12.     Until March 2012 the applicants and M. lived in a rented apartment in Almaty. In order not to disclose their presence the first applicant did not leave the apartment except for visits to the office of the UNHCR in that city. During those visits the UNHCR staff advised her to apply for asylum in Kazakhstan. However, she was subsequently told to delay her asylum application because the UNHCR could not obtain guarantees of non-refoulement from the Kazakh authorities. The first applicant also learned that the Kyrgyz authorities knew about her presence in Kazakhstan and had requested her extradition. Fearing possible removal to Kyrgyzstan, the first applicant decided to try to seek asylum in another country. 13 .     With the assistance of a friend in Ukraine, between September and December   2011 the first applicant submitted letters to the Ukrainian authorities, including the President of Ukraine, the Ukrainian Parliament Commissioner for Human Rights and the UNHCR office in Kyiv, asking for protection because her life and liberty were in danger in Kyrgyzstan. The first applicant also transmitted, through a friend, an asylum application to the Ukrainian State Migration Service (“the UMS”). 14.     In the meantime, the first applicant tried to arrange her travel to Kyiv, for which she unofficially contacted a Kazakh security agent. 15 .     The first applicant stated that in December   2011 she had been “informally informed by a Ukrainian governmental official” that the Kazakh authorities had agreed that she and her family could leave Kazakhstan andthat “the Ukrainian intelligence service would grant them leave to enter Ukraine”. She was also advised to have in her possession documents entitling her to cross State borders when entering Ukraine. 16 .     As the applicants did not have their Kyrgyz passports with them, the first applicant decided to obtain false identity documents. Thus, in March   2012 the first applicant obtained a false Kyrgyz passport with her photograph in the name of Darya Podolskaya and the second applicant received a false birth certificate with his photograph in the name of Danat Podolskiy. 17 .     Subsequently, the first applicant informed the UMS that she and the second applicant were prepared to travel to Ukraine and that they would use false identity documents. She received an email from a migration official confirming that representatives of the UMS and the UNHCR office in Kyiv would meet her immediately upon arrival at Boryspil Airport in Ukraine. The first applicant submitted copies of her email exchange with the representatives of the UMS and the UNHCR. 18 .     On 28   March   2012 the first applicant bought tickets for an Almaty ‑ Kyiv flight on 29   March 2012 for herself and the second applicant using false identity information (see above), and for her father using his original passport. She informed her contact at the UMS about her flight by email and by mobile phone text message (“sms”). 19 .     On 29 March 2012 the applicants and M. boarded the flight in Almaty and at about 10.15 a.m. (here and below Kyiv time is indicated, unless specified otherwise) on the same day the aircraft landed at Boryspil Airport. The applicants had had an asylum-application and accompanying documents prepared in advance. During the flight the first applicant sent an sms informing her contact at the UMS of her arrival. Events in Ukraine The applicants’ account of the events 20 .     The applicants submitted the following account of the events while they had been in Ukraine. 21.     When the applicants and M. left the aircraft they were met by Ukrainian border guards, who transmitted the personal details in the first applicant’s false passport, in particular the name and date of birth, via a portable radio. The applicants and M. were taken to the transit zone of Boryspil Airport, where the first applicant informed the border guards that she was using false identity documents for herself and the second applicant, and that M. was in fact her father. She stated that her true name was O.M., that she and her family wished to apply for asylum in Ukraine, and that the UMS was aware of her arrival and of her need for protection. 22.     The border guards seized the applicants’ documents, refused to deal with their asylum requests and took them to one of their offices at the airport. 23 .     The border guards allegedly attempted to seize the first applicant’s mobile phone, but she kept it and managed to make a call to inform her contact at the UMS that she had been detained at the Boryspil Airport transit zone and that she wished to apply for asylum in Ukraine. After that call she could not make any more calls from her phone, as she had used up the pre ‑ charged credit on the subscriber identity module (“SIM card”) which had been issued by a Kazakh mobile phone company. She was not allowed to use the border guards’ phones to make calls to the UNHCR or the UMS. 24.     Sometime later the border guards’ shift supervisor entered the office and stated that the second applicant did not have appropriate documents to cross the Ukrainian border; he invited the first applicant to sign a form enabling her to travel back to Kazakhstan. The first applicant told the officer that she was O.M. and that she had come to Ukraine to seek asylum. She tried to give him her asylum application together with the accompanying documents. The officer refused to take the application or documents, stating that the first applicant was not allowed to make such an application as she had not crossed the Ukrainian border, and that the application should have been submitted to the UMS. 25.     Although the applicants were moved several times to different offices, mainly within the airport transit zone, they remained under the permanent surveillance of border guards and were not allowed to leave the offices. Drinking water and sandwiches were provided to them. 26.     At about 4 p.m. the first applicant was informed that a meeting was taking place on the airport premises, at which representatives of the State Security Service, the State Border Control Service and the Ministry of the Interior of Ukraine were discussing the applicants’ situation. 27 .     A senior border guard and a security officer who came to meet the applicants later during the day tried to make the first applicant agree to leave Ukraine for another country of her choice. According to the first applicant, they threatened to send her back to Kyrgyzstan or to transfer her under the control of the Kyrgyz Consul who, according to them, had also come to the airport. They noted that the first applicant was wanted by the Kyrgyz authorities for serious crimes. The first applicant refused, insisting that she would like to receive asylum in Ukraine. 28.     At about 7 p.m. the senior border guard and the security officer told the first applicant that she and the second applicant would be removed to Tbilisi. The first applicant was given an official decision refusing the second applicant leave to enter, on the ground that he did not have a passport, which was required by the relevant intergovernmental treaty between Ukraine and Kyrgyzstan. They referred to him as Mr   Danat Podolskiy. The decision stipulated that it was to be enforced immediately. Although it could be appealed against to the chief of the border guards’ unit at Boryspil Airport, the appeal procedure did not have suspensive effect. A copy of that decision was provided to the Court. 29.     At about 8.30   p.m. the applicants were taken to an aircraft. Accompanied by two persons in plain clothes whom the first applicant believed to be Ukrainian security officers or border guards, the applicants boarded the aircraft. M. was also taken on board the same aircraft. He brought a SIM card issued by a Ukrainian mobile operator, which the first applicant inserted in her phone. 30.     While on board, the first applicant received a phone call from a representative of the UNHCR office in Kyiv who told her to leave the aircraft because the Court had decided to apply Rule   39 of the Rules of Court in her case (see paragraphs 43 and 44 below). However, the applicants could not leave the aircraft as one of the accompanying persons was standing next to their seats, while a border guard was standing at the exit. Sometime later the first applicant received a mobile phone call from someone from the Ministry of Justice of Ukraine who asked her to pass the phone to the captain of the aircraft. A flight attendant took the applicant’s phone to the cockpit. As the flight attendant was coming back with the phone, the first applicant saw a border guard leaving the cockpit. 31 .     At 9.17 p.m. (8.17 p.m. Strasbourg time) the aircraft took off. It landed in Tbilisi Airport, where the applicants were met by the Georgian migration authorities and were allowed to lodge asylum applications. Information provided by the Government 32.     The Government’s submissions in respect of the applicant’s account of the facts may be summarised as follows. 33.     The first applicant did not inform the Ukrainian border guards that she had used false identity documents for herself and the second applicant; nor did she inform them about their true identity. The first applicant did not request asylum; nor did she inform the border guards of any risk of ill ‑ treatment in Kyrgyzstan. The second applicant was refused leave to enter Ukraine as he had no document entitling him to cross the Ukrainian border, and did not have his birth certificate with him. That was why the first applicant decided to leave Ukraine, together with the second applicant, and go to Georgia on the same day, and purchased plane tickets with the help of the border guards. 34 .     The Government submitted a copy of a letter from the head of the Ukrainian Border Control Service dated 30   March   2012, which was addressed to the then Government Agent. The relevant extracts of the letter read as follows: “... [A] Kyrgyz national, Mr Danat Podolskiy ... who arrived at Boryspil Airport on 29 March 2012 and who was accompanied by his mother, Ms Darya Podolska ... was not allowed to enter the territory of Ukraine as he did not have documents entitling him to cross the Ukrainian border ... Ms Darya Podolska, a Kyrgyz national, was informed that she could either enter the territory of Ukraine alone or return together with her son to the aircraft [on which they had travelled to Ukraine]. Having received explanations [from the border guards], after some period of time Ms   Darya Podolska voluntarily expressed the wish to fly to Tbilisi. Ms   Darya Podolska, a Kyrgyz national, did not address the border guards with any claims of political persecution in Kyrgyzstan or with applications for refugee status in Ukraine. [W]hen asked about her possible relation to [O.M.], a Kyrgyz national, [Ms   Darya Podolska] denied any such relation on several occasions. Before their departure Ms   Darya   Podolska and her son remained in the Boryspil Airport transit zone and were provided with all the necessary facilities, including hot food. They were also provided with assistance to obtain airline tickets. Therefore, the right of Ms   Darya   Podolska, a Kyrgyz national, to freedom of movement was not restricted by the Ukrainian border guards. As regards information concerning [O.M.], the State Border Control Service of Ukraine is complying with the instructions of the State Security Service of Ukraine, according to which entry to Ukraine is prohibited to [O.M.], a Kyrgyz national who was born on 16 May 1968. There have been no registered instances where that person was not allowed to cross the Ukrainian border. The State Border Control Service of Ukraine did not receive any requests from the State Migration Service to meet with any of the passengers on the [Almaty-Kyiv] flight. None of the passengers on that flight was expelled (returned) to Kazakhstan or Kyrgyzstan.” 35 .     The Government also submitted a copy of a letter from the head of the Ukrainian Border Control Service dated 4   March   2013, in which it was reiterated that at no time had Ms Darya Podolska told the Ukrainian border guards that she or her son had different names. It was also stated that the Border Control Service had been informed of the Court’s decision under Rule   39 of the Rules of Court regarding the applicants (see paragraph 43 below) by facsimile from the then Government Agent at 8.40   p.m. (apparently, Kyiv time) on 29   March 2012. Events after the applicants left Ukraine 36.     While the applicants were in Georgia, the Kyrgyz authorities requested that the Georgian authorities extradite the first applicant to Kyrgyzstan. The date of the request is not specified. No decision has been taken on the request. The first applicant stated that it was only due to the assistance of the UNHCR that she had not been extradited to Kyrgyzstan. In this regard, she referred to an interview with a member of the Kyrgyz Parliament, published in a Kyrgyz newspaper on 17   May   2012, in which he had stated that the Georgian highest public officials had promised to facilitate the first applicant’s extradition to Kyrgyzstan. 37.     On 23   May   2012 the Georgian migration authorities rejected the applicants’ asylum applications, having questioned the first applicant and addressed her principal arguments regarding the alleged risk of ill-treatment in Kyrgyzstan. The Georgian migration authorities considered that it was unreasonable to grant the applicants refugee status or humanitarian protection. The decision was amenable to appeal before the courts. The applicants claimed that they had lodged such an appeal with the Georgian courts, but did not inform the Court of its outcome or any developments in that regard. 38 .     On 19 November 2012 the applicants left Georgia for the Netherlands, where they were granted asylum allegedly on account of their fears of ill ‑ treatment, arbitrary detention and unfair trial in Kyrgyzstan. In the document issued by the Deputy Minister of Security and Justice of the Netherlands dated 19 November 2012, a copy of which the first applicant provided, it is stated that she had been admitted to the Netherlands as an invited refugee within the framework of the UNHCR resettlement policy. Requests aimed at preventing the applicants’ removal from Ukraine 39 .     By letters dated 29 March 2012, copies of which were submitted to the Court by the applicants, representatives of the UNHCR office in Kyiv informed the Ukrainian Border Control Service, the UMS and the Ukrainian Parliament Commissioner for Human Rights that the first applicant had arrived in the Boryspil Airport, that she had been denied entry to Ukraine, that she was in the airport’s transit zone and that she wished to apply for asylum. Relying on the Country Agreement between the UNHCR and the Government of Ukraine of 23 September 1996, the UNHCR representatives asked the State Border Control Service to allow them to meet with the first applicant as soon as practicable. The first applicant’s real identity was referred to in the communications with the authorities. 40.     According to the applicants, on the same day the Ukrainian Parliament Commissioner for Human Rights also contacted the State Border Control Service requesting access to the first applicant. There is no information as to whether a reply was given to that request. 41 .     According to the information provided by Mr A. Koval, a lawyer who at the material time worked for the Kyiv Legal Protection Service Program implemented by the Hebrew Immigrant Aid Society (“the HIAS”) under a contract with the UNHCR, he and representatives from the UNHCR office in Kyiv went to Boryspil Airport on two occasions on 29 March 2012 – at noon and at about 6 p.m. – in order to meet with the first applicant. On the latter occasion they were joined by representatives from the office of the Ukrainian Parliament Commissioner for Human Rights. While at the airport, they met with border guards and asked them to grant them access to the transit zone in order that they could meet with the first applicant on the same day. The border guards confirmed that the first applicant had been in the transit zone, but refused to allow the representatives to meet with her without the permission of the border guards’ superior. Eventually, no such permission was given. The representatives sought the assistance of the General Prosecutor and the State Security Service as regards their request, but to no avail. 42 .     In the meantime, at around 3 p.m. on 29   March 2012, acting on the applicants’ behalf, Mr   A.   Koval lodged with the Court a request under Rule   39 of the Rules of Court seeking to prevent their expulsion from Ukraine. In those submissions to the Court, the lawyer referred to first applicant’s real identity and also to the fact that she had used a false passport with her photograph in the name of Darya Podolskaya to travel to Ukraine. The lawyer also stated that the applicants sought asylum in Ukraine in connection with the first applicant’s fears of ill-treatment in Kyrgyzstan and submitted copies of the letters which the first applicant had sent to the Ukrainian authorities between September and December 2011 (see paragraph   13 above). 43 .     The acting President of the Court’s Fifth Section granted the request on the same day, indicating to the Government of Ukraine, in particular, that they should not expel the applicants until further notice. The Government were also invited to submit information on the assessment made of the potential risk to which the first applicant could be exposed in Kyrgyzstan if expelled. Copies of the lawyer’s submissions and accompanying documents, referred to in paragraph 42 above, were sent to the Government. 44 .     At about 7.05 (6.05 p.m. Strasbourg time) on 29   March   2012 the Government Agent before the Court was informed by phone of the decision under Rule   39. At about 7.45   p.m. (6.45   p.m. Strasbourg time) a letter informing the Government of that decision was sent by fax. The first applicant’s complaints to the Ukrainian authorities 45.     In May 2012 the first applicant submitted complaints to the General Prosecutor Office and to the State Security Service of Ukraine, alleging that there had been an abuse of office on the part of the Ukrainian border guards in her case. She received no reply to her complaints. RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW AND PRACTICE The Constitution of Ukraine and the relevant legislative acts summarised in the Court’s other judgment 46 .     The relevant provisions of the Constitution of Ukraine, the Code of Administrative Justice of 2005, the State Border Control Act of 2009, the Legal Status of Foreigners and Stateless Persons Act of 2011, and the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as worded at the material time, were summarised in Kebe and Others v. Ukraine (no.   12552/12, §§   33-48, 12   January 2017). The Code of Administrative Offences of 1984, as worded at the material time 47 .     Under Article   263 of the Code, anyone who violated border control regulations could be detained for up to three hours with a view to drawing up an official report on the violation. If it was necessary to establish the offender’s identity and to verify the circumstances of the offence, he or she could be detained for up to three days. Written notice had to be given to the prosecutors within twenty-four hours of the arrest. The 2001 regulations on compliance of the State Border Control Service with the instructions issued by the law-enforcement and intelligence authorities concerning people crossing the border of Ukraine (repealed on 25 April 2013) 48.     The regulations, which were adopted by the Cabinet of Ministers on 22 January 2001, provided, inter alia, that the State Security Service could instruct the State Border Control Service not to allow a foreigner or stateless person to enter Ukraine. The State Border Control Service could refuse to give effect to the instructions if their enforcement might lead to a violation of the relevant legislation and human rights. 49 .     When applying restrictions on entry to Ukraine, officials of the State Border Control Service had to provide the people concerned with reasons for their application and explain the appeal procedure. If requested, such information had to be provided in writing. The 2004 regulations on administrative detention of persons arrested by the State Border Control Service (repealed on 30   March 2015) 50 .     The regulations, which were adopted by the State Border Control Service on 30   June 2004, provided, inter alia, that persons arrested pursuant to Article   263 of the Code of Administrative Offences were to be detained in temporary holding facilities ( пункти тимчасового тримання затриманих ) or on specially designed premises ( спеціально обладнані приміщення ) for a period of up to three days or, with the consent of a prosecutor, for up to ten days. 51.     Detainees’ close relatives had to be immediately informed of their arrest and place of detention. Border guards also had to inform the relevant diplomatic missions of foreigners’ detention, unless the foreigners requested, orally or in writing, asylum in Ukraine. 52.     Detainees had to be provided with information, in a language they understood, concerning their rights, including the right to seek asylum. They also had to be provided with the necessary facilities if they wished to submit a complaint or an application to a national or international authority. Detainees’ meetings with a lawyer and representatives of the UMS or of the UNHCR could also be authorised. 53 .     On completion of the term of detention, detainees had to be released. They could also be released if the UMS took a decision accepting their asylum application for consideration on the merits. The Resolution of the Plenary Higher Administrative Court of 2009 on the 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, as worded at the material time 54 .     The Resolution, which had been adopted by the Plenary Higher Administrative Court on 25   June   2009 and amended on 20   June   2011 and 16   March   2012, provided that any decision, action or inactivity of the authorities relating to foreigners’ and stateless persons’ entry or stay, including detention, in Ukraine could be challenged before the administrative courts. Cases concerning foreigners’ or stateless persons’ liability for administrative offences were excluded from the administrative courts’ jurisdiction. 55.     Foreigners and stateless persons without a command of the language used in court and without sufficient means to pay for the assistance of an interpreter, had to be provided with such assistance free of charge. 56.     The Plenary Court noted that the burden of proof in administrative cases rested with the authorities, which were required to provide the courts with all the documents and material which could be used as evidence in the proceedings. The administrative courts could also use information published on the official Internet sites of the national authorities and of international organisations, including the UNHCR, and that obtained from domestic or international non-governmental organisations and from the mass media. 57.     The Plenary Court underlined that the administrative courts had to 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. It noted that Article   3 of the European Convention on Human Rights of 1950 took precedence over the provisions of Article   33   of the United Nations Convention Relating to the Status of Refugees of 1951, which provided for the possibility of expulsion or return of refugees on grounds of danger to national security. 58.     When dealing with cases concerning forcible removal and detention of foreigners or stateless persons who stated that they feared persecution in the country of origin, the administrative courts had to check whether those persons had been 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 had to ensure that they had access to the relevant procedure before the UMS. The courts also had to check whether the persons concerned had been provided free of charge with legal assistance pursuant to sections 7, 8, 9 and 11 of the Legal Aid Act of 2011. A decision refusing to grant refugee status or complementary protection could not serve as grounds for forcible expulsion of a foreigner or stateless person. The administrative courts had to check whether there were lawful grounds for such expulsion. 59 .     The Plenary Court explained that there were two preconditions for a decision on forcible removal under section   32 of the Legal Status of Foreigners and Stateless Persons Act of 1994: (i) the existence of a decision ordering the person’s removal; and (ii) the person’s failure to comply with that decision or the existence of reasonable grounds suggesting that the person would fail to leave Ukraine. It was also stated that a request for a foreigner’s or a stateless person’s detention could not be examined before a decision on that person’s deportation had been taken. UNHCR Observations on the situation of asylum ‑ seekers and refugees in Ukraine 60 .     In July 2013 the UNHCR published its Observations on the Situation of Asylum-seekers and Refugees in Ukraine. The relevant parts of the observations read as follows: “... 3.     UNHCR concludes that, despite significant progress in recent years, Ukraine’s asylum system still requires fundamental improvements: it does not offer sufficient protection against refoulement , and does not provide asylum-seekers the opportunity to have their asylum claims considered in an efficient and fair procedure. Therefore, Ukraine should not be considered as a safe third country and UNHCR further urges States not to return asylum-seekers to Ukraine on this basis. ... 25.     Persons seeking international protection in Ukraine may express their wish to seek asylum upon first contact with the authorities, namely to officials of the State Border Guard Service of Ukraine (‘SBGS’) ... 26.     Ukrainian law obliges the SBGS to transfer asylum-seekers to the State Migration Service and to respect human rights in all dealings with persons at the border. In 2012, the SBGS reports receiving just five asylum applications at border entry points to Ukraine. During the same period, the SBGS denied 16,272 persons access to the territory, and while most were undoubtedly refused entry for valid reasons, this number includes some individuals from refugee-producing countries such as Syria who require enhanced attention to meet their protection needs. So far, despite some progress noted, the SBGS still needs to adopt procedures on protection-sensitive screening of persons entering the country; thus, the SBGS has limited capacity to identify persons with international protection needs, as well as other vulnerable persons, such as victims of trafficking, among the flow of migrants and to prevent their refoulement . Given the large number of border-crossing points, it is not possible for any independent institution to verify whether it is indeed the fact that only a handful of individuals applies for asylum upon arrival each year and that the obligation to refer persons to the asylum procedure is uniformly respected. Despite its repeated requests, UNHCR does not yet have predictable access to Kyiv’s Boryspil International Airport and is concerned about reports that individuals sometimes remain in the airport for several days in unsuitable conditions without access to legal assistance. As human rights commentators have noted, ‘there is no legislation currently in force that would regulate detention in transit zones of the airports’. 27.     It is challenging to measure lack of access to the territory and to seek legal redress, as these persons are often sent back across borders before having contact with UNHCR or lawyers working in Ukraine. However, in early 2012, UNHCR became increasingly concerned about asylum-seekers’ lack of access to the territory following two cases in which lawyers resorted to the European Court of Human Rights to issue interim measures under Rule 39 after the Ukrainian authorities had reportedly denied asylum-seekers access to the territory ... ... 79.     Despite active interventions by UNHCR and human rights lawyers to prevent forcible return of persons with international protection needs, UNHCR continues to document cases of refoulement from Ukraine. Comprehensive data is not available, particularly as refoulement at the border remains a largely hidden phenomenon. However, based on available information, in 2012, UNHCR counted three persons as having been refouled . This compares to 13 persons in 2011, five in 2010, 17 in 2009 and 12 in 2008. 80.     Most refoulement from Ukraine has occurred in one of the following four situations. First, given that persons with international protection needs may not receive legal aid or interpretation at border crossing-points or temporary holding facilities, they are not able to apply for asylum before their deportation and detention is ordered. They are at risk of refoulement if the authorities are able to remove them expeditiously. However, in practice, logistical and financial considerations prevent a quick removal, and persons are held in detention at Migrant Custody Centres for several months ... ... Third, UNHCR remains concerned about the rejection of asylum-seekers at the border which may result in their refoulement . As noted above, UNHCR is aware of two instances in 2012 where asylum-seekers tried to obtain access to the asylum procedure at the border and were denied; only the intervention of the European Court of Human Rights under its interim measures (Rule 39) was able to prevent their refoulement . Also, the fact that persons from at-risk countries, such as Syria, are rejected at the border, suggests indirectly that there may be a broader problem of asylum-seekers being denied access to the territory of Ukraine ...” Country Reports for 2011 and 2012 on Human Rights Practices by the United States Department of State with respect TO KYRGYZSTAN 61 .     In its Country Reports on Human Rights Practices for 2010, released on 8   April 2011, the United States Department of State noted with respect to Kyrgyzstan: “... On November 17, the trial of 28 persons accused of complicity in the shooting deaths of protestors on April 7 opened in a Bishkek sports palace. Several persons were tried in absentia, including former president Bakiyev, his brother Janysh Bakiyev, the former head of the Presidential Guard Service, and former prime minister Daniyar Usenov. Other defendants included [O.M.], the former head of the Presidential Secretariat, and several special GKNB operations officers. Human rights activists claimed that the charges against the defendants were arbitrary and that they were not allowed to see all of the evidence against them, as is required by law. During the first session of the trial, members of the audience surged onto the stage, threatening defendants and their attorneys, who subsequently refused to participate in the trial unless the government ensured their security. At year’s end, following the explosion of a bomb outside the trial site, the trial was on hold while authorities looked for a more secure venue. Prisoners arrested in connection with political activity received the same protections as other prisoners. ...” 62 .     In its Country Reports on Human Rights Practices for 2011 and 2012, released on 24 May 2012 and 19 April 2013 respectively, the United States Department of State referred to widespread instances of abuse in detention, involving women and juveniles, whereas allegations of torture “frequently [had gone] uninvestigated”. For instance, the relevant part of the 2012 report reads as follows: “According to 2011 statistics, the Prosecutor General’s Office reported that 87.3 percent of torture cases occurred in temporary detention facilities. The victims included 21 women and 12 juveniles. At least five cases of suspected torture led to death. In the first six months of the year, the Prosecutor General’s Office registered 174 complaints of torture but refused to initiate criminal proceedings in all but 11 cases. It filed 17 criminal cases involving torture; of those, 12 went to the courts for consideration. At year’s end none of the cases filed had resulted in conviction.” 63 .     In the 2012 report it was noted that the trial of those accused of complicity in the shooting deaths of protesters in 2010, including the first applicant and several other defendants in absentia , had been delayed for nearly two years and had been resumed in the end of 2012. THE LAW         SCOPE OF THE CASE 64.     The Court notes that, after the communication of the case to the respondent Government, the applicants lodged a new complaint under Article   6   § 1 of the Convention. In particular, in their submissions dated 29   May 2013 the applicants complained that because of their removal from Ukraine they had been placed at risk of flagrant denial of justice in Kyrgyzstan. 65.     In the Court’s view, the applicants’ new complaint is not an elaboration of their original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate to take that matter up in the context of the present case (see Piryanik v.   Ukraine , no.   75788/01, §   20, 19 April 2005). 66.     The Court further notes that the complaints under Articles 3 and 13 regarding the removal from Ukraine appear on their face to have been raised by both applicants. However, they essentially concern issues relating to the first applicant’s situation only – it has not been claimed, in particular, that the Ukrainian authorities should have examined whether the second applicant ran a risk of ill-treatment in Georgia or Kyrgyzstan before removing him with his mother (see paragraphs 67-68 and 71-74 below). The scope of the above ‑ mentioned complaints is therefore limited to the rights of the first applicant. ALLEGED VIOLATION OF ARTICLES   3 AND 13 OF THE CONVENTION relating to the FIRST applicant’S removal from Ukraine 67 .     The first applicant complained that her removal to Georgia without consideration of the risk of ill-treatment, arbitrary arrest and unfair trial she had been facing in Kyrgyzstan and in the absence of any guarantees against arbitrary deportation to that country by the Georgian authorities had been contrary to Article 3 of the Convention. She argued that ther