ECtHR: O.M. and D.S. v. Ukraine: The Court found a violation of Article 3 ECHR due to the ill-treatment of the Kyrgyz asylum-seekers in Kyiv Airport

On 15 September 2022, the European Court of Human Rights (ECtHR) gave its judgment on the case of O.M. and D.S. v. Ukraine (application no. 18603/12). The case concerned a journalist and political figure persecuted in Kyrgyzstan and her son, who travelled with her to Ukraine in order to apply for international protection. Upon arrival in Kyiv, the applicants were taken by the border guards to the airport transit zone as the first applicant was using a false identity and the second applicant did not have the appropriate documents to cross the Ukrainian border. The border guards seized their documents and allegedly refused to deal with their asylum requests. The applicants were offered to either voluntarily return to Kazakhstan or to leave to a third country of choice under the threat of being returned to Kyrgyzstan. After refusing to leave Ukraine, they were informed that they would be removed to Georgia. The second applicant received a decision refusing leave to enter, which could be appealed against, but without suspensive effect. While in the aircraft before heading to Georgia, the applicant was informed by UNHCR that the Court had granted them an interim measure under Rule 39 of the Rules of Court; however, the applicants were not allowed to leave the aircraft.

The applicants indicated that they were mistreated by the Ukrainian authorities while in the transit zone of an international airport and complained about their eventual removal from Ukraine without any examination of their allegations of risk of ill-treatment or refoulement. The Court decided that the procedural obligation under Article 3 of the Convention was breached given that the authorities of Ukraine failed to assess the alleged risks of treatment contrary to that provision before removing the first applicant from Ukraine. The Court noted that the first applicant’s detailed, specific and consistent account of the relevant events in Ukraine demonstrates that the border guards denied her an opportunity to claim asylum and that she was removed from Ukraine against her will.

With regards to the alleged violation of Article 5 of the Convention, the Court finds that the impugned measures of control and surveillance to which the applicants were subjected while in Ukraine did not amount to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention as there is nothing to suggest that the duration, degree or intensity of the impugned measures exceeded what was strictly necessary for the Ukrainian border guards to comply with relevant formalities.

Referring to the violation of Article 34 of the Convention due to the failure of Ukrainian authorities to comply with the interim measures indicated by the Court under Rule 39, the Court decided that Ukrainian authorities did not provide sufficient justification or objective explanation for their failure to comply with the Court’s decision and thus the state failed to comply with their obligations under Article 34 ECHR.