Quelle: ECHR 011 (2017)
Kebe and Others v. Ukraine (application no. 12552/12)
The case concerned the applicants’ attempts to obtain asylum in Ukraine.
The applicants, Mr Solomon Alemu Kebe and Mr Efrem Tadese Girma, nationals of the State of Eritrea, and Mr Tesfaye Welde Adane, a national of the Federal Democratic Republic of Ethiopia, were born in 1984, 1988 and 1987 respectively. Mr Kebe currently lives in Odesa. Mr Adane left Ukraine for Ethiopia on 23 November 2014. His current whereabouts are unknown. Mr Girma died on 6 March 2015.
In or around the 2000s, all three of the applicants fled Ethiopia or Eritrea for Djibouti. According to the applicants, they lived in Djibouti illegally, and feared being returned to their home countries to face persecution. Therefore in January 2012, they stowed themselves away on a commercial vessel flying the Maltese flag. Their intention was to seek asylum in any country other than Djibouti or their countries of origin.
In February 2012, the vessel anchored in the port of Mykolayiv in Ukraine. Ukrainian border guards and a lawyer from a local NGO embarked the vessel to meet with the applicants. According to the applicants, they told the border guards that they wished to seek asylum in Ukraine, and started filling in asylum applications: but that the border guards stated that they could not accept the claims, as the vessel the applicants had arrived on was flying the flag of a foreign state. The border guards allegedly relied on the same reason to prevent the applicants from leaving the vessel, and the NGO lawyer was purportedly asked to disembark. According to the Government, the applicants did not submit any claims for asylum, and expressed no wish to do so.
The vessel was scheduled to depart for Saudi Arabia on 3 March 2012. One day before the departure, the NGO lawyer submitted an application to the European Court of Human Rights. She requested interim measures under Rule 39, by which the Court would indicate to the Government that the applicants should be allowed to leave the vessel, and be granted access to a lawyer and legal assistance. The lawyer argued that, if the applicants were made to return to Saudi Arabia, there was a real risk that the authorities would forcibly return them to their countries of origin, where they would be subjected to ill-treatment. The application was granted later that day, and on 3 March 2012 the applicants were permitted to leave the vessel and enter Ukraine.
The applicants lodged asylum claims at this time, but the parties have not informed the court what happened to these. It appears that the applicants also submitted new asylum claims in 2014. However, all of these were rejected by the Odesa Regional Department of the Migration Service. Mr Adane did not appeal the decision relating to his case, and left for Ethiopia in November 2014. Mr Girma did appeal his decision, but the proceedings were discontinued after he died in March 2015. Mr Kebe also appealed, and the proceedings are still pending before the Odesa Administrative Court.
Complaints, procedure and composition of the Court
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the Convention, the applicants complained that they had been exposed to a risk of ill-treatment in their countries of origin and in Saudi Arabia, on account of the initial refusal of the Ukrainian authorities to allow them to disembark in Ukraine, to accept and examine their asylum claims, and to prevent their possible removal. Relying on Article 13 (right to an effective remedy) taken in conjunction with Article 3, they complained that no effective remedies in respect of their grievances under Article 3 had been available in Ukraine.
The application was lodged with the European Court of Human Rights on 2 March 2012.
Decision of the Court
The Court struck out the case of Mr Girma because he had died in March 2015, and no relative had informed the court that they wished to continue the application. The Court also struck out the case of Mr Adane, finding that he did not intend to pursue his application, given that he had ended contact with his lawyer after leaving Ukraine in 2014.
Therefore, the Court only examined the application of Mr Kebe on the merits.
Jurisdiction (Article 1)
The Government argued that Mr Kebe had not been within Ukraine’s jurisdiction at the relevant time, because he had been on board a vessel flying the flag of Malta. The Court dismissed this objection. It held that Mr Kebe was within Ukraine’s jurisdiction for the purposes of Article 1, as the border control carried out by the Ukrainian authorities related to him, to the extent that the matter concerned his possible entry to Ukraine and the exercise of Convention rights.
Article 3 (prohibition of ill-treatment)
Mr Kebe had originally complained of ill-treatment under Article 3, on the grounds that the Ukrainian authorities had not allowed him to disembark in Ukraine or lodge an asylum application, and that he had faced the threat of ill-treatment due to his imminent departure to Saudi Arabia. However, after the Court had indicated interim measures under Rule 39, Mr Kebe was allowed to disembark the vessel to Ukraine and lodge his asylum claim. Though that claim has not been finally resolved (because it is still under appeal), Mr Kebe does not face any immediate threat of expulsion. Given these developments, he is no longer a “victim” in relation to his complaint of ill-treatment under Article 3. The Court therefore rejected this part of his claim.
Article 13 (right to an effective remedy) taken in conjunction with Article 3
Though Mr Kebe was eventually provided with access to an asylum procedure, this was not the case prior to the Court’s interim measure. The Court held that the border guards gave Mr Kebe no proper opportunity to submit an asylum claim whilst he was on board the vessel. In particular, the guards gave Mr Kebe no information about Ukrainian asylum procedures, failed to take into consideration his need for international protection, and told him that they could not accept asylum applications. Furthermore, the guards’ decision to prevent him from entering Ukraine had been enforceable immediately, making Mr Kebe liable to be removed at any time – without having his claim of potential ill-treatment examined by the authorities. This meant that he had not been provided with an effective remedy in relation to complaints about the threat to remove him from Ukraine, in violation of Article 13 in conjunction with Article 3.
The European Court of Human Rights has decided: violation of Article 13 in conjunction with Article 3.
Just satisfaction (Article 41)
The Court found that the finding of a violation was sufficient just satisfaction in the case.