Turdikhojaev v Ukraine: The ECtHR rules, inter alia, the detention in Ukraine of refugee recognised in Sweden, as unlawful

Thursday, March 18, 2021

On 18 March 2021, the European Court of Human Rights published its judgment in Turdikhojaev v Ukraine (application no. 72510/12).

In June 2012, the applicant, a national of Uzbekistan, was arrested in Ukraine after being placed on an international “wanted” list at the request of the Uzbek authorities. He was placed in detention for the duration of the extradition proceedings. Following the rejection of his asylum application at first instance, the General Prosecutor’s Office (GPO) decided to extradite the applicant. This was upheld on appeal to the Kyiv City Court of Appeal (CoA) where the applicant was held in a metal cage during the hearing. On 10 April 2013 the applicant was granted refugee status in Sweden. On 12 April 2013, the GPO was informed of this by a letter from UNHCR which included a copy of communication from the Swedish Migration Board confirming the outcome of the applicant’s case. Subsequently, the GPO requested more information from the Swedish Embassy and the applicant appeared before the Kyiv City CoA in a metal cage once again. The applicant was released on 7 June 2013.

In relation to the applicant’s complaint under Article 3 ECHR, the ECtHR first considered the conditions of detention. It pointed out that for much of the applicant’s detention, he was placed in cells where he was afforded less than 2 sq.m of personal space. Relying on Muršić v. Croatia, the ECtHR reiterated that where the personal space available to a detainee falls below 3 sq.m, a strong presumption of a violation of Article 3 ECHR arises. It further noted that holding a person in a metal cage during a court hearing constituted an affront to human dignity in breach of Article 3 ECHR. The Court emphasised that the practice is inherently degrading in nature and incompatible with the standards of behaviour found in a democratic society.

The ECtHR considered that the Ukrainian authorities had been duly informed of the applicant’s refugee status by 16 May 2013, at the latest, and therefore, the applicant’s detention after 16 May 2013 until 7 June 2013 could no longer be justified and violated Article 5(1) ECHR. The ECtHR also pointed to numerous other decisions concerning Ukraine where a right to compensation under Article 5(5) ECHR was not ensured in the domestic legal system. Similarly in this case, the ECtHR found no reasons to reach a different conclusion and found a violation of Article 5(5) ECHR.

Photo: Outlandos [ym], February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Inhuman or degrading treatment or punishment