EXTRADITION AND INTERNATIONAL REFUGEE PROTECTION

1. EXTRADITION AND INTERNATIONAL REFUGEE PROTECTION Analysis of Ukraine’s law and practice. Seminar on International and European standards and the case law of the ECtHR concerning extradition and expulsion. 15 October 2008, Kyiv.

2. INTERPLAY OF TWO PROCEDURES: GENERAL PRINCIPLES

3. The principle of non-refoulement • No person shall be returned to a situation in which he/she fears persecution, where his/her life may be at risk or he/she may be at risk of torture. • The principle is provided for under international law, national law, is customary international law and considered as jus cogens. The authorities must therefore ensure compliance with international refugee law and international human rights law in making decisions about extradition.

4. The principle of non-refoulement • Fully applicable to both asylum seekers and to refugees • Article 3 Law on Refugees • But not all authorities apply the principle to asylum seekers in practice in Ukraine. • Exception to the principle of non-refoulement under Article 33(2), exclusion of undeserving under Article 1F, and possibility for those protected under human rights law to be prosecuted in the requested state • Article 3 and 15 Law on Refugees • Article 3 ECHR, Article 3 CAT and the Law on International Agreements • No provision for prosecution in Ukraine for those crimes committed abroad and for which extradition requested – Article 10 Criminal Code

5. The principle of non-refoulement • Where there is a conflict of obligations (refugee protection vs. extradition agreement), the principle acts as a bar to extradition • Article 3 Law on Refugees, Article 3 ECHR, Law of Ukraine on International Agreements and the Constitution • In practice the degree of understanding varies among officials in Ukraine. This principle was still debated in 2007 at the UPIC conference in Kyiv • UNHCR recommends as good practice the incorporation in national law of an express provision to refuse extradition where the person is a refugee or would be at risk of torture if extradited

6. Diplomatic assurances • In the case of a recognised refugee, diplomatic assurances from the country of origin should be given no weight. Those given by another State should be assessed for suitability and reliability. • No express provision under Ukrainian law • There are indications that this would be the approach of MoJ. • UNHCR recommends including express clause in law, and providing guidance to prosecutors and to judges on the interpretation of diplomatic assurances to prevent ad hoc approach

7. Diplomatic assurances • In the case of an asylum seeker, diplomatic assurances from the country of origin will not alter the principle that pending full and final determination of the asylum claim, extradition is not to be implemented. • UNHCR is concerned that a/s have been deported and extradited while at appeal stage • UNHCR recommends an express instruction or guidance to all MOI, OPG and court personnel

8. INTERPLAY OF TWO PROCEDURES: PROCEDURAL ASPECTS

9. Confidentiality • Information about the person’s refugee status should not be shared, nor even the fact that an asylum application is submitted unless he/she expressly consents (right to privacy, risk to the individual/family members). Exception may be risk of terrorism. • Article 32 Constitution • Article 11 Law on Refugees • Article 57, para 3 Minsk Convention requires information about grounds for refusal • In practice information about the asylum status seems to have been shared with requesting state, and it was again subject of debate at the UPIC conference in 2007.

10. Refugee recognition prior to consideration of extradition • Refugee status determined by the asylum authority ought to be binding on institutions dealing with extradition (although could consider Article 33(2)) • No specific provision or safeguards: does the dual role of the OPG create a conflict of interests? (see later also on cancellation) • Where status does not bind the authorities that decide on extradition then they must check extradition is consistent with non-refoulement obligations • From practice, it is unclear how this check is carried out in Ukraine by the authorities – how is country of origin information assessed?

11. Refugee recognition in a third country • Determination by a State party to the 1951 Refugee Convention has extra-territorial effect (EXCOM Concl. No.12 (XXIX) 1978) and may be questioned only exceptionally • No specific provision under Ukrainian law • Limited experience in Ukraine – indications are that the practice may not fully comply with the standard

12. Refugee is recognised under UNHCR mandate • UNHCR mandate status should be respected based upon Article 35 1951 Convention • Article 32 Law on Refugees and UNHCR – Ukraine Country Agreement Article 3 • In practice, UNHCR recognition may influence the authorities enough to suspend extradition, but the role has been regularly questioned. Thus its role in extradition proceedings will be subject of a separate presentation today.

13. Asylum seekers sought for extradition • Extradition and RSD should be separate but parallel procedures, since information may assist both decisions • Ukrainian law provides for separate procedures (nb. Concern arising from potential conflict of interests)

14. Asylum seekers sought for extradition • If request from country of origin then a final decision on refugee status must be made before decision on extradition – full procedural safeguards including right of appeal must be guaranteed (Note EXCOM concl. 8 (XXVIII) 1977 on asylum process – suspensive effect of appeals) • Not articulated under national law: neither refugee law nor code for administrative justice provide for suspensive effect of appeals. • In practice extradition authorities have sometimes waited for a decision on refugee status. However, some have been extradited from Ukraine before a final appeal hearing. • UNHCR recommends express provision to be included. In practice, it may be necessary also for expedited (yet quality) decision-making by the asylum authorities.

15. Asylum seekers sought for extradition • Extradition request should not preclude access to the asylum procedure • Article 9 Law on Refugees requires application without delay, but says nothing about applying for asylum after a request for extradition is made • Later application for asylum does not mean it is manifestly unfounded. • In practice, an asylum application that is submitted after the extradition request is lodged is viewed suspiciously by the authorities: legitimate reasons for later application are not considered.

16. ELIGIBILITY FOR REFUGEE STATUS AND EXTRADITION

17. Inclusion and exclusion • Asylum authorities should consider if it is a case of prosecution or persecution • Extradition also triggers an exclusion assessment, but is not itself a reason for rejection • Articles 3,10 Law on Refugees • Training provided in past, however the analysis in decisions/recommendations has been limited in the few cases reviewed by UNHCR. UNHCR recommends additional in-depth training and appointing of focal points/specialised specialists • To what extent do RMS/SCNR staff have access to extradition files?

18. Assessing diplomatic assurances • Relevant to the assessment of an asylum claim made by the asylum authorities. Must consider if suitable and reliable. • UNHCR is not aware of any guidance within the asylum authorities on how to examine diplomatic assurances and recommends focal points, guidance, and training

19. Cancellation of refugee status • Extradition request may result in cancellation: a decision to invalidate refugee status which should not have been granted in the first place (for decisions that are already final), with effect from time of initial incorrect decision • There must be proper procedural safeguards, incl. right to appeal/review decision. • Law on Refugees does not provide for full and distinct cancellation procedures (Art 15 Law on Refugees) • Recent example of extradition of a recognised refugee appears to amount to cancellation of status but in absence of any clearly elaborated cancellation procedures, responsibilities, or safeguards. • UNHCR recommends a review of cancellation practice and procedures and development of clear procedures with necessary safeguards.

20. Revocation of refugee status • Extradition may lead to revocation: a decision to withdraw status (earlier decision was correct) because the refugee later was responsible for acts falling under Article 1F(a) or 1F(c) • As with cancellation, there are not any clearly elaborated revocation procedures – see Art 15 Law on Refugees (although apparently so far no experience either)

21. Thank you for your attention! Any questions?