On 10 December 2019, in Kyiv, a discussion was held on the topic: “How to protect political refugees from illegal extraditions and misuse of interstate legal assistance?“. The event was held as part of the 4th National Human Rights Non-Conference. The Open Dialogue Foundation, the Right to Protection Charitable Foundation, the Kharkov Institute of Social Studies, and the Human Rights Agenda Coalition were among the organisers of the event.
More than 30 people took part in the discussion in a filled room. They included human rights activists, experts, lawyers, journalists, activists, as well as refugees and asylum seekers from Russia, Kazakhstan and Tajikistan. As regards the authorities, the event was attended only by an ombudsman office employee. Meanwhile, representatives of the General Prosecutor’s Office, the Ministry of Justice and the Migration Service did not respond to invitations.
The opening remarks were made by experts Kateryna Savchenko, an analyst with the Open Dialogue Foundation, and Alexandra Zhurko, the lawyer of the Right to Protection Charitable Foundation. The event was moderated by the advocacy officer of the Open Dialogue Foundation, Katarzyna Szczypska.
The misuse of INTERPOL: launching an illegal extradition procedure
The event discussed the topic of how authoritarian states, hunting refugees and political opponents, misuse the mechanisms of INTERPOL, extradition and legal assistance in criminal cases. For more than six years, human rights defenders, the EU and PACE bodies have been working on this problem.
First, the experts identified cases in which international human rights agreements prohibit extradition: the case when prosecution has political overtones; the case when there is a threat of torture in an unfair trial; the case when a person with refugee status faces potential extradition to his homeland; and the case when an asylum seeker’s application is still being processed.
Kateryna Savchenko noted that the misuse of INTERPOL begins the illegal extradition procedure. Article 3 of the Constitution of INTERPOL prohibits the organisation from interfering in politically motivated cases. The expert reported the first results of a reform carried out by INTERPOL.
Subsequently, the speakers focused on the examples of abuses of extradition procedures and international legal assistance on the part of Ukraine. Thus, Ukraine renders assistance to authoritarian countries, such as: Russia, Turkey, Kazakhstan, Azerbaijan and Tajikistan in carrying out their politically motivated prosecution.
Prosecutorial bias of Ukrainian prosecutors and courts in extradition cases
Attorney Dmitriy Morgun recalled that extradition in Ukraine is handled by two bodies: the General Prosecutor’s Office and the Ministry of Justice (the latter has the authority to extradite convicted persons). However, in practice, the Ministry of Justice passes relevant instructions to the General Prosecutor’s Office. At the same time, the lawyer emphasised that the unreformed prosecutor’s office is inclined to grant extradition requests.
“Within the framework of extradition procedures, the Ukrainian Prosecutor’s Office and the courts often ‘automatically’ issue decisions on arrest. At the same time, the Prosecutor’s Office is trying to justify its actions by citing the authority of INTERPOL. However, INTERPOL’s request is not a ‘warrant of arrest’. The state in whose territory the person was found decides independently on the measure of restraint and whether to extradite the person or not,” Kateryna Savchenko explained.
Extradition arrest decisions are issued even when there is obvious evidence of fabrication or political motivation of the charges. Attorney Dmitriy Morgun stated that, in practice, the Ukrainian court verifies only compliance with formal requirements for extradition requests.
Mikhail Savva, the head of the civil society organisation “The Sova Expert Group”, who has been granted refugee status in Ukraine, emphasised the need to consolidate the political expertise tool at the legislative level. Thus, the migration service and judges will need to attach this expert opinion to the case file and take into account additional documentary information about the case or country of origin.
Political masterminds behind extradition cases and abduction of asylum seekers
Lawyer Morgun noted that the movement of extradition documents is carried out through diplomatic channels, and expressed the opinion that there is an element of political pressure in every extradition case. “If there is a political mastermind behind the case, the procedure is going to be carried out regardless of any human rights obligations,” the lawyer emphasised.
As an example, he cited the cases of Alovsat Aliyev and Kemal Kutan. Ukraine tried to extradite them at the request of Azerbaijan and Turkey, respectively, although they had been granted refugee status in Germany. Kateryna Savchenko spoke about another similar case, namely, the case of journalist Fikrat Guseynov. He has been granted refugee status and citizenship in The Netherlands, but still found himself on the verge of extradition from Ukraine to Azerbaijan.
“The cases when asylum seekers are abducted or extra-procedurally expelled from Ukraine, are egregious. This is carried out secretly, without observing legal procedures, as a result of collaboration between law enforcement agencies and special services of both states. This is especially characteristic of the post-Soviet member states of the Minsk Convention on Legal Assistance,” Kateryna Savchenko emphasised. In particular, the cases of Aminat Babayeva, Vladimir Yegorov, Alexander Frantskevich, Yusuf Inan and Salikh Zegi Igit have become well-known.
The expert of the Kharkov Institute of Social Studies, Andrey Chernousov, added that over the years, the long-lasting informal ties of members of the Minsk Convention have led to many violations. Frequently, human rights activists learn about the case only after the person has been illegally expelled. Experts also tackled the problems of the close collaboration between Ukraine and Russia. At the same time, Russia is carrying out military aggression and persecuting Ukrainian citizens through misuse of INTERPOL. Representative of the Ombudsman’s Office, Andrey Mamalyga recalled the case of his colleague, a participant in the military actions in the ATO zone, Igor Mazur. In November 2019, he was detained in Poland based on a request filed with INTERPOL by Russia, and he was successfully saved from extradition. Andrey Mamalyga expressed the opinion that it is necessary, within the framework of bilateral international contacts, to send warnings about mutual non-fulfilment of requests from states that systematically misuse INTERPOL.
Violations of the rights of asylum seekers by the Migration Service
In addition, those gathered at the event discussed an important aspect as to why, following their arrival in Ukraine, political refugees are not relieved of their problems; instead, they have to face new ones. Moreover, the problems begin as early as at the moment of their arrival at Ukrainian airports.
Alexandra Zhurko, an attorney for the Right to Protection Charity Foundation spoke about asylum seekers who are detained in transit zones of Ukrainian airports without any decision by the competent authorities. The Migration Service refuses to accept their asylum application, after which they are expelled. The representative of the Ombudsman’s office, Andrey Mamalyga, believes that persons detained at airports should receive support from free legal aid centres.
According to Alexandra Zhurko, in 90% of cases, the Migration Service of Ukraine refuses to grant asylum or additional protection. Subsequently, the asylum seeker has to go through a lengthy appeal procedure in the courts, which may last as long as several years. All this time, the person has with him only a certificate of having contacted the Migration Service for protection; a document that does not even prove his or her identity. “With this document, a person cannot get a job, register children, get married, or open a bank account; the person can do nothing but try to survive and hope that their problem will be resolved sometime,” Alexandra Zhurko concluded.
When illustrating the groundlessness of the decisions by the Migration Service, Kateryna Savchenko reported that Russian activists who have been persecuted for supporting Euromaidan (Petr Lyubchenkov, Sergey Anisiforov, Alexey Vetrov and Sergey Sakharchuk) had been denied asylum. “The Ukrainian Migration Service explained its decisions by the fact that, according to Russian law, Russia is a ‘democratic state abiding by the rule of law’, where ‘no torture is exerted”, Savchenko stated, expressing her surprise at the quoted statement.
Alexandra Zhurko spoke in more detail about another case, namely, the case of Zhanara Akhmetova, a journalist and activist of the opposition movement “Democratic Choice of Kazakhstan”. The Migration Service has twice denied her asylum, despite the fact that the Ukrainian courts found these decisions ungrounded and demanded that they be reconsidered. Zhurko noted that this problem is also characteristic of other cases.
Zhanara Akhmetova spoke about Kazakhstan’s intelligence agencies, which are shadowing her in Ukraine, and suggested that the Migration Service may be providing intelligence bodies with information about her. The opposition activist from Tajikistan, Makhmadsobir Saygoziyev, spoke about Tajik special services, which threatened him and informed him that he would be denied asylum in Ukraine. Immediately after that, he found out that the Migration Service, indeed, did so.
Kateryna Savchenko listed several recommendations of the Open Dialogue Foundation for the Ukrainian government and other Council of Europe states, and also called on colleagues to jointly promote them:
- Involve independent experts on questions of extradition, international law, and human rights in the process of assessing an extradition case, in particular with respect to its political component.
- As part of the extradition procedure, attach recommendations and conclusions of international organisations as well as documents of the PACE, the European Parliament, and the European Commission about the human rights situation in the requesting state.
- When issuing decisions with respect to a request for extradition and/or international legal cooperation, take account of the history of abuses of these mechanisms on the part of the requesting state.
- Adhere to the ban on arrest, extradition or international legal assistance at the request of the state in respect of which the person received refugee status, as well as in politically motivated cases.
- It is imperative to give preference to other kinds of restrictive measures besides detention. During the time of extradition procedures, violation of reasonable time periods for detention (according to the practice of the ECHR) is impermissible.
- Optimise the system for providing asylum or subsidiary protection based on UNHCR recommendations. In particular, it is necessary to involve the office of the ombudsman in resolving the issue of granting asylum or subsidiary protection, and to make use of the expertise of human rights organisations.
- Expand the scope of the Global Magnitsky Human Rights Accountability Act in relation to persons involved in instances of abuse of extraditions and interstate legal assistance that have had serious consequences, such as the torture, politically motivated imprisonment, or death of the person being persecuted.