United Kingdom - VB and Another (draft evaders and prison conditions) Ukraine Country Guidance, 1 March 2017

Country of Decision:
Country of Applicant:
Date of Decision:
01-03-2017
Citation:
[2017] UKUT 79 (IAC)
Court Name:
Upper Tribunal, Immigration and Asylum Chamber
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Headnote: 

It is not reasonably likely that a draft-evader would face criminal/administrative proceedings in Ukraine but there is a real risk that a person sentenced to imprisonment in Ukraine would be detained on arrival there and that detention conditions would breach Article 3 ECHR.

Facts: 

VB and IS both entered the UK from Ukraine in an irregular manner and were convicted in their absence for failing to do military service. Both were refused asylum, had their appeals dismissed by the First-tier Tribunal and appealed to the Upper Tribunal. 

Decision & Reasoning: 
  1. At the current time it is not reasonably likely that a draft-evader would face criminal or administrative proceedings in Ukraine although the Criminal Code of Ukraine does provide for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of the developing evidence, whether there were aggravating matters which might lead to the imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
  2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival although anyone convicted in his/her absence would probably be entitled to a retrial.
  3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person to a breach of Article 3 ECHR.
  4. There has been no significant or durable change in the conditions of detention since PS (prison conditions; military service) Ukraine Country Guidance [2006] UKAIT 00016. The Upper Tribunal relied upon a number of reports, the fact that Ukraine denied the United Nations Subcommittee on Prevention of Torture access to detention facilities in May 2016, and information put into the public domain by the Ukrainian Parliamentary Commissioner for Human Rights (the Ombudsman), Ms Valeriya Lutkovska, in September 2016. It noted that detention prior to sentence is mainly in a set of establishments known as SIZOs. In the SIZOs, the required Article 3 ECHR compliant standard of basic space (3 square metres per detainee in multi-occupancy accommodation) is regularly not met: the Ukrainian national standard is 2.5 square metres and even this is not being met. Further issues are: no windows, damp, dangerous electrical fittings, insufficient ventilation, lack of sanitation and access to drinking water, no night-lighting so lighting kept on continually, overcrowding, inadequate numbers of health care professionals, lack of meaningful out-of-cell activity for remand prisoners, and a high death rate. The combined evidence of a lack of space, poor material conditions and lack of meaningful out-of-cell activity poses a real risk of inhuman and degrading treatment. Furthermore, there is evidence that, in the SIZOs, the authorities use inmates (‘duty prisoners’) to ill-treat other inmates and the lack of sustained evidence of corrective action in relation to these allegations poses a real risk of ill-treatment. 
Outcome: 

Decisions of the First-tier Tribunal set aside on the basis of an error of law and remade, allowing both appeals on Article 3 ECHR grounds. Anonymity order made.

Observations/Comments: 

This case summary was written by Alice Winstanley, an LLM student at Queen Mary University, London. 

Other sources cited: 

Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269)

Article 210 Administrative Code of Ukraine

Articles 69, 335, 336, 337 and 409 Criminal Code of Ukraine

Article 412 Criminal Procedure Code of Ukraine

Australian Refugee Tribunal Country Advice on Ukraine, 11 December 2009

Council of Europe Annual Penal Statistics Survey 2014, 23 December 2015

Council of Europe, European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment (CPT): report to the Ukrainian government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2013, 29 April 2014

Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT): report to the Ukrainian government on the visit to Ukraine carried out by the CPT from 9 to 16 September 2014, 29 April 2015

Foreign and Commonwealth Office letter, 20 September 2016

Home Office Country Information and Guidance Ukraine: Military Service, September 2016

Home Office Country Information and Guidance Ukraine: Prison Conditions, January 2016

Professor William Bowring’s Expert’s Report

The Guardian, ‘Ukraine: Draft Dodgers face jail as Kiev struggles to find new fighters’, 10 February 2015

Ukrainian Helsinki Human Rights Union ‘Prisoner’s Rights’ (sic) report, 25 April 2016

UNHCR International Protection Considerations related to developments in Ukraine – Update II, January 2015

UNHCR International Protection Considerations related to developments in Ukraine – Update III, September 2015

UN Human Rights Commissioner’s Report on the human rights situation in Ukraine 16 May to 15 August 2016, 15 September 2016

US State Department Report- Human Rights Practices for 2015, April 2016

Case Law Cited: 

ECtHR - Yarovenko v Ukraine, Application No 24710/06, 6 October 2016

ECtHR - Andrey Yakovenko v Ukraine, Application No 63727/11, 13 March 2014

ECtHR - Yakovenko v Ukraine, Application No 15825/06, 25 October 2007

ECtHR - Truten v Ukraine, Application No 18041/08, 23 June 2016

ECtHR - Poltoratskiy v Ukraine, Application No 38812/97, 29 April 2003

Mursic v Croatia, Application No 7334/13, 20 October 2016

ECtHR - Jones v UK, Application No 30900/02, 9 September 2003

UK - PS (prison conditions; military service) Ukraine Country Guidance [2006] UKAIT 00016

UK - Igor Lutsyuk v Government of Ukraine [2013] EWHC 189