Publication

Rights of political refugees in Ukraine

«Rights of political refugees in Ukraine» – approximately in this way, in the most general words, the theme of my report, previously approved with organizers, was formulated. But in these recent days when I have been mentally coming back to my future speech at forum I was completely unable to get rid of importunate reflections about total suppression of political refugees’ rights. That’s why the theme, apparently, must have been formulated otherwise: “Suppression of political refugees’ rights in Ukraine”.

So, even the two fact of collective deportation (or, tacking into account a huge amount of most blatant violations that accompanied with these events, they would rather be called a secret extradition) of 10 Uzbek in 2006 and 11 Tamil in 2008 are absolutely enough to confirm the starting thesis on the complete total suppression of political refugees’ rights in Ukraine. Not paying any attention to the human rights advocates’ active protests and the official addresses of Kiev Office of United Nations High Commission for Refugees to suspend the deportation until the termination of the complete procedure of the apprehended persons’ applications on the refugee status granting examination, in both cases the State demonstratively outraged the very legal foundations of the asylum seekers civilized treatment. Having never checked the information about physical violence application to the apprehended persons by Ukrainian force authorities officers, having no access to the legal assistance and justice, ignoring the prohibition of foreigners’ collective deportation, two groups of Uzbekistan and Sri-Lanka citizens were sent back to the countries of their origin, protection from which they had been trying to find in Ukraine.

Talking about complete suppression of political refugees’ rights, it’s impossible not to recall Belarusian refugees Igor Koktysh, Viktor Kreidich, Ekateryna Dubovik and others, languishing today in Ukrainian prisons, to whom Ukrainian migration authorities are simply “unwilling” to present the refugee status. This status is already granted to some of them by court decision but they are still kept in isolation. Ukraine, being a state-member of European Convention, with obscure stubbornness continues insisting that political prisoner I. Koktysh, recognized by authoritative international human right organizations, can be deported to Belarus where a death penalty under fabricated charge of murder menaces him.

And the happy end of Chechen refugee Lema Susarov’s story doesn’t change anything in this because nobody did sustain and will sustain a sentence for:

– his secret arrest in the center of Kyiv by special divisions in June 16th 2007 was accompanied by unjustified violence in presence (I don’t rule out that under guidance) of neighboring country special divisions’ representatives;

– conveyance to the court for “sanctions” was realized only at the 6th day instead of constitutionally defined 3 days maximum.

– during 40 days not only an advocate had never been given to secretly detained in Kiev remand prison Lema Susarov, but also the General Prosecutor’s Office had been raising difficulties to the advocate who had already been hired by human rights activists regarding his admission to the client for more that 10 days.

The whole world stood up for Lema and he was defended, talking metaphorically, not due to legal mechanisms but in defiance of them. As our domestic Prosecutor’s Office, how it had formed historically, has never been imbued with constitutional function of supervision on human’s and citizen’s rights and liberties observance. On contrary, being the only plenipotentiary state agent responsible for the State liabilities representation in criminal cases cooperation, the Prosecutor’s Office in all extradition-deportation cases, without any exclusion, presents not the position of law and right but the unclearly motivated realization of an order received from unknown place on a crime against asylum seekers.

Some people do not share my personal negative appraisal of the refugee rights’ situation in Ukraine, they object arguing that not everything is so definitely bad and also, according to their opinion, the deported-extradited themselves are not without sin: they have been staying illegally in the territory of Ukraine (illegal immigrants), the other haven’t addressed for the refugee status granting in terms (order) set by the law, and yet some others are generally scoundrels who don’t deserve any allowance as, for example, the representatives of Russian National Bolsheviks …

But there’s one case without detailed description of which it’s impossible to understand the profoundness of suppression of asylum seekers’ rights in Ukraine as well as other realities that, without any exaggeration, rule in this sphere, terrifying by their outright legal cynicism.

On 28th March 2006 the authorities of Ukraine represented by the State Committee on Nationalities and Religions of Ukraine granted the refugee status to the citizens of Republic of Kazakhstan Zhumabay and Esentay Baisakov. Having carefully studied all data regarding that case, the State Committee on Nationalities and Religions has also been guided by numerous addresses of Kazakh opposition representatives on behalf of brothers Baysakov, which had been authoritatively stating that “all the course of investigation and juridical examinations conduct doesn’t leave any doubts in hidden political motives of the persecutions”.

Then, in “postpomarancheviy” year 2005 the presidium members of democratic movement “For Fair Kazakhstan”, co-chairmen of party “Real Akzhol” Bulat Abylov and Altinbek Sarsynbaev, Head of Public party’s “Alga DVK” Political Council Asylbek Kozhakhmetov, Secretary of Central Committee of Kazakhstan Communist party Tolen Tohtasynov signed the collective addresses to the central executive authority of Ukraine in the sphere of migration politics. The most famous political prisoner of Republic of Kazakhstan Galymzhan Zhakiyanov whose liberation had been repeatedly demanded by such human rights movements’ Grands as Human Rights Watch, Amnesty International, International League for Human Rights, International Helsinki Federation, … State Department of the USA, governments of numerous European democratic countries, European Parliament made his personal address. European Parliament even nominated G.Zhakiyanov for A.Saharov Prize in 2004. In his appeal G.Zhakiyanov stated that “the Baysakovs are the founders of the independent Pavlodar TV channel “Irbis” that was closed by the authorities in summer 2002 because of the telecasts with participation of democratic opposition and reporting on the trial over me. The political character of their persecutions and the direct connection of these persecutions with my civic position are evident as for me so for the whole Kazakh community. That’s why I appeal to you asking you to protect these people“.

One year and a half later, on November 15th 2007 Deputy of the General Prosecutor Shinalsky is addressing to the Head of the State Committee on Nationalities and Religions with such “please”: “tacking into account that Baysakov Esentay received the refugee status and the General Prosecutor’s Office is deprived of possibility to satisfy the request of the colleagues from Kazakhstan, I ask to investigate the possibility to reconsiderate the decision # 275 from 28.03.2006 on refugee status granting to him”. The logics of the high “inspector” regarding conservation of human and citizen’s rights and liberties amazes by its simplicity. Because he doesn’t mention in this letter even as a matter of form that the decision he is asking to cancel is at least somehow “illegal or illegitimate“. Just: “There’s an extradition request, I cannot fulfill it, I ask to review”, and that’s all.

On 24th January 2008 the Head of the State Committee on Nationalities and Religions using three sheets with small type, answers the “please” of the Deputy of the General Prosecutor that there aren’t any reasons discovered to review the case of Esentay Baysakov. In order to prove his refusal the State Committee on Nationalities and Religions draws the attention of the General Prosecutor’s Office to the fact that two of three members of supposedly organized by E.Baysakov criminal group who had committed the contract murder, were completely acquitted as to this part of charge. The murder executer, as to Kazakhstan investigative agencies’ version, was completely acquitted by courts of Russia, and there’s a final decision of Supreme Court of Russian Federation from 22.01.04. It was also mentioned that in April 2007 the leaders of “Block of Democratic Forces “For Fair Kazakhstan” repeatedly addressed to the State Committee on Nationalities and Religions on behalf of the Baysakov brothers mentioning additionally one more tragic event that expressively proved the fact of continuing political repressions: in February 2006 a political murder of one of people who had signed the previous letter, co-chairman of “real Akzhol” party Sarsynbaev Altinbek and his assistants was committed.

Having never received the desired result, the General Prosecutor’s Office don’t write any more letters, but brings in the prosecutor’s reaction measures. On May 19th 2008 from the depths of the main supervisory authority, the Prosecutor’s Protest was born. The other Deputy of the General Prosecutor, Kornyakova, by this time is not asking but requiring from the Head of the migration authority to cancel the Decision on Baysakov Esentay Daribaevich from 28.03.2008 #257. Such fact as that in this half-page document, in its descriptive part, there isn’t any attempt to answer per se any objection of the State Committee on Nationalities and Religions, draws our attention. And it’s especially strange that that time the GPO attacks also another brother – Zhumabay Baysakov, requiring to cancel also the decision regarding him. According to the version of requesting party, only one of the Baysakovs in charged with grave crimes; the GPO is demanding to deprive of the refugee status the another brother as well, though recently they have never talked about that.

After having examined the protests, the Head of the State Committee on Nationalities and Religions on 30th May 2008 makes a decision: to decline the protests. Even so in 6 page document the General Prosecutor’s Office is being informed about the circumstances because of which the Bysakov brothers had to leave the country of origin, about their comrades, family and friends who had experienced the authorities’ repression in the country of origin. Once again the juridical facts in consummated pleas of Russia and Kazakhstan proving the artificiality of the criminal prosecution are given. The regulations of Minsk Convention, the participants of which Ukraine, Russia and Kazakhstan are, according to which a person acquitted in any member-state should be recognized innocent in all other countries, are quoted… Once again one more judicial decision is quoted, the decision on legal regulation of Pechersk Regional Court from 10th July 2007 under which the respondent represented by the Ministry of Internal Affairs of Ukraine was obliged to exclude citizens of Republic of Kazakhstan the Baysakovs from the list of wanted people and was ordered to abstain from any other actions aimed at their search or arrest. One more time there’s an appeal to the reason of “men of law” in prosecutor’s uniform, explaining the human rigts copy-book maxims on presumption of innocence, international liabilities of Ukraine, etc. In vain!

Despite the existing procedural obstacle in limitation period that had expired long ago, in June 17th 2008 the third Deputy of the General Prosecutor of Ukraine, Kudriavtsev, applies to the State District Court in Kyiv against the State Committee on Nationalities and Religions with administrative actions demanding to recognize as illegal and to cancel the respondent‘s decisions #256,257 from 28.03.06. Moreover, at the same time the GPO files an administrative complaint on the decision of Pechersk Court from 16.07.07. explaining the reason of the period missing with the fact that they say they weren’t a Party and they learned about the decision under complaint only in September 2008. And all that besides the fact that the General Prosecutor’s Office was informed about this decision by the State Committee on Nationalities and Religions as far back as in January of the same year, while answering the first petition “on revision”.

On 24.11.2008 Kyiv District Administrative Court disallowed completely a claim of the GPO, thus leaving in the effect the decision of the State Committee on Nationalities and Religions of the refugee status granting to the Baysakov brothers.

On 26.11.2008 Kyiv Appellation Administrative Court dismissed a complaint of the GPO thus leaving the decision of Pechersk Court from 16.07.07. without any changes.

It seemed like it was a right time to triumph. But which one? Once again intermediate, or this time final? It’s hard to believe. Thereupon I cannot forget the case of RF citizen Oleg Kuznetsov, whom on March 05th of the current year the State Committee on Nationalities and Religions gave the refugee status and who possibly was also happy and was celebrating his victory. Especially after Kyiv Regional Administrative Court on 21.07.08 made a decision refusing to sustain the claim of the General Prosecutor’s Office regarding the presented status canceling. On the night of 28/29 July 2008, under the personal instruction of the General Prosecutor of Ukraine Medvedko, Oleg Kuznetsov, to whom Ukraine had granted the refugee status that had never been cancel by anybody, was passed to the place where there was a well-founded apprehension to become the victim of tortures, bad treatment and other violations of human rights. That’s why, in order to avoid the same scenario of the events succession, leading advocate of Kharhov Human Rights Group Arkadiy Buschenko had made a petition to European Court of Human Rights regarding application of urgent measures in order of rule 39 of the Court Rules that was satisfied already on November 13th. The government of Ukraine once again was shown its “place”: “the applicants mustn’t be sent back to Kazakhstan until the Court has a possibility to continue the legal investigation”.

All that happens while the applicants have been the recognized refugees in Ukraine for several years and all juridical authorities of the country repeatedly confirm the lawfulness and legality of the political refugee status granting to them. Probably, the case with Kuznetsov is mastered by the judges of ECHR: in Ukraine even the recognized refugees don’t have any rights, there’s always a risk of forced return.

But how can we explain all that theatre of the Absurd performed by the General Prosecutor’s Office of Ukraine? Definitely, not by absence of professional qualification of our prosecutor staff. The answer to the question is evident. Cui prodest? the ancients said.

In its time some oppositional politicians of Kazakhstan dared to sign several appeals to the Ukrainian authorities asking to give them political asylum as at Motherland they had been persecuted because of political motifs therefore they shouldn’t have expected fair justice at home. Now it seems like the whole “Baysakov case” is used by Kazakh force authorities for termination of the reprisal at their home. On the 1st of December MIA of Kazakhstan accused three “signers” – Bulat Abylov, Asylbek Kozhakhmetov and Tolen Tohtasynov – of the “misprision of crime” case. I fear to think that in the 3d millennium people are nailed on charge only because they dared to solicit for their neighbors.

What is the role of prosecution authorities of Ukraine in this story? Because it’s impossible to find in all described above any professional benefit of the person supervising over the prosecutor’s office legality. I cannot name it otherwise but legal obscurantism. All the behavior of the prosecutor’s office, despite absence of any reasons, in its persistent attempts to deprive the refugees of their status is the evidence not even of its political commitment. When the General Prosecutor writes letters addressed to the President and the Prime-minister asking to assist in the refugees’ status deprivation, it is the evidence only of the barefaced execution of the “political order” received from Kazakhstan.

One conclusion suggests itself: Ukraine has stopped being a safe country for seekers of asylum because of political persecutions. At least it’s completely fair for the citizens of CIS. The State, in the first place represented the GPO, but not in the last one – by the State Committee of Nationalities and Religions, cannot (doesn’t want) to perform the obligations it had undertaken in connection with ratified by itself Convention against Torture, European Convention for Human Rights, Convention on Refugee Status. And actually there isn’t anybody to perform the internal legislation, its own Constitution and its own legal texts that are more than enough. The General Prosecutor won’t institute proceedings against himself for a legally wild act on O.Kuznetsov extradition, will he?

What’s left? As usual. To use everybody. To scream the head off. To start urgent actions. To appeal for ECHR for the urgent measures application, for other organizations (Amnesty International, UNHCR, OSCE, EC) imploring for immediate participation in destinies of so far alive people who can be helped and protected as from persecution of their countries so from lawlessness of the refuge countries. Unfortunately, Ukraine has again joined the ranks of the last ones, where the refuges are shamelessly betrayed and extradited to their persecutors. And what is worse, they are often banally sold in the very direct meaning of the word.

As for the possibilities of the situation’s radical improvement with legal measures, it looks like it’s impossible to go without criminalization of the officers’ actions in connection with illegal extradition. I admit that the separation of the special components of malfeasance would diminish the desire of the most “zealous” people to neglect the refugees’ rights in our country.

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