UNHCR welcomes the legislative initiative to improve procedures related to detention of foreigners in Ukraine.
UNHCR is pleased that the draft legislation currently under consideration would bring Ukrainian practices related to migrant detention into line with international and European standards, and encourages lawmakers to positively consider the proposed improvements. In practice, a significant proportion of persons detained for migration-related offenses choose to seek asylum, and therefore are persons of concern to UNHCR.
When foreigners are detained for the purposes of deportation, this detention does not service the usual purposes of detention, neither punishment nor deterrence. Punishments for administrative violations, like attempting to cross the border without valid documentation, are available in law, and are usually short (e.g., 15 days administrative detention).
When individuals are detained for purposes of deportation, with lengthy periods of detention up to 12 months, the only purpose of that detention is to gather the information and documentation necessary to implement the deportation. Legislation relating to this detention needs to contain procedural safeguards to ensure that this detention serves its purpose, and that the deportation order is actually lawful and enforceable.
The draft legislation under consideration would introduce the improvements required to protect foreigners? rights in the context of deportation:
- The draft legislation would ensure that a court authorizes the detention of foreigners for the purpose of deportation. Current legislation allows for administrative bodies, such as the State Border Guard Service, to authorize the detention of foreigners, apprehended within controlled border districts during an attempt or after illegal state border crossing at the MCCs , without the guarantee of a speedy judicial review of that decision. This arrangement appears to violate the Ukrainian Constitution, which guarantees that any detention longer than 72 hours must be authorized by a court. It also falls short of the standards of the European Convention on Human Rights, which states that persons deprived of liberty must be entitled to have the lawfulness of their detention ?decided speedily by a court and their release ordered if the detention is not lawful.? This standard is also now part of the European Union?s asylum acquis, with a recently adopted recast directive noting that ?Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted.?
- In a further improvement, the draft legislation introduces periodic judicial review? every month after the initial two months of detention?of the ongoing need to detain individuals for the purposes of deportation. In 2012, periodic judicial review was introduced for certain categories of detention under the Code of Criminal Procedure, and this provision would extend the same protections to foreigners under administrative detention. This provision means that every two months the administrative body responsible for the individual?s deportation would have to provide evidence to the courts that reasonable steps are being taken to implement the deportation. Likewise, detained foreigners would have the opportunity to bring forth reasons why their deportation is unlawful or unenforceable. This would make the entire system of deportation fairer and more efficient. At present, many foreigners are detained for a full twelve months?at public expense?without any efforts being made to actually implement their deportation. Besides being a questionable use of scarce resources, this situation also violates the provisions of the European Convention on Human Rights, which stipulates that if deportation of an individual is not being implemented by the authorities with due diligence, the detention of that individual becomes unlawful.
- The introduction of free legal aid in Ukraine at the beginning of 2013 has been a welcome development, providing legal advice and improved protection to citizens who could otherwise not afford it. The existing legislation on free legal aid extends this protection to foreigners only if they come from countries that have signed agreements with Ukraine agreeing to provide that assistance to one another?s citizens on a basis of reciprocity. This means that while foreigners from some states, such as CIS countries, may receive free legal aid when faced with administrative charges related to migration, including when they appear in court for purposes of deportation. Meanwhile, other foreigners from more distant regions have no access to free legal aid. This discriminatory provision is not proportionate. All foreigners?but particularly those who do not speak local languages or understand the Ukrainian legal system?have a need for legal assistance when facing charges for administrative violations and particularly in deportation proceedings. These individuals can face administrative detention for up to twelve months?a serious interference with their personal liberty?and without legal advice and representation, they are not able to put forward their arguments as to why their deportation would be unlawful or unenforceable. This gap exposes asylum-seekers to a particular risk, since their fears of torture or ill-treatment upon deportation are not properly examined. The draft legislation would eliminate discrimination in the provision of free legal aid to foreigners facing administrative charges and deportation. This will bring Ukraine?s legislation into line with European standards.
- The draft legislation introduces other provisions to protect foreigners? rights in these proceedings. Considering the serious issues at stake for a foreigner ? who may be challenging forcible expulsion to a country where he faces serious risks, as well as a lengthy detention ? the draft legislation stipulates that courts shall consider deportation cases within five days from the moment of adoption of decision on the case admissibility (not from the moment of submission of the law-suit as currently provided for). Moreover the appellate courts shall consider deportation cases within five days from the moment of the delivery of the first instance court decision?s to the individual (not from the moment of the decision?s announcement as currently provided for), giving the foreigner a more reasonable period to access legal aid, interpretation services and formulate legal arguments. These small adjustments will remedies for foreigners more accessible, and ensure equality of arms in these proceedings. Furthermore, the draft legislation re-introduces a provision that was previously available in Ukrainian law whereby an individual can have a power of attorney with a lawyer endorsed by court order, rather than by a notary. This detail is crucial for foreigners without identity documents, as they are unable to obtain notary services.
The draft legislation would be a major breakthrough in the protection of foreigners, including asylum-seekers, in Ukraine. It is hoped that legislators will give it due consideration in light of the country?s human rights commitments.
26 June 2013
 Draft law ?On introducing changes to several legal acts of Ukraine regarding the improvement of the conditions of judicial protection of foreigners and stateless persons,? No. 2743, 5 April 2013.
 European Convention on Human Rights, Art. 5(4).
 EC Directive, Reception of applicants for international protection, 14654/1/12, Art. 9.3.
 See, for example, ECtHR, Singh v. the Czech Republic, No. 60538/00, 25 January 2005.
 EC Directive, Reception of applicants for international protection, 14654/1/12, Art. 9.4 and 9.6.