ECtHR – Kebe and others v. Ukraine, Application no. 12552/12, 12 January 2017

First, the ECtHR decided to strike the case out of its list in so far as it concerns the second and third applicants. The second applicant died during the course of the proceedings and, in the absence of close relatives wishing to pursue the case and in view of the similarity of his complaint with that of the first applicant, the Court decided to remove his complaint out of its list. The Court reached the same conclusion with regard to the third applicant, with whom the lawyer lost contact. Therefore, the ECtHR proceeded with its judgment on the complaints brought by the first applicant only.

Secondly, the Court dealt with the issue of jurisdiction under Article 1 ECHR. The Ukrainian government had argued that the applicant had not been within Ukraine’s jurisdiction when he had been on board the vessel flying the flag of Malta. The applicant, on the other hand, argued that he had been under the continuous and exclusive de facto control of the Ukrainian authorities during that time. He also relied upon various provisions of international maritime law (e.g. the UNHCR Note on Stowaway Asylum-Seekers). The ECtHR found that it did not have to decide whether and how those provisions applied in the present case since the subject in question concerned Ukraine’s exercise of its sovereign powers to control the entry of aliens into its territory. In other words, the applicant had been subject to a border control and was, thus, within Ukraine’s jurisdiction for the purposes of Article 1 ECHR.

The ECtHR also considered the Ukrainian government’s argument that the complaint was inadmissible since the applicant could not be regarded as a “victim” of a violation of his rights, since his asylum application was still pending on appeal. The ECtHR relied upon its jurisprudence on the matter and recalled that where the enforcement of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts, the applicant cannot claim to be a “victim”. According to the Court, this was the case with regard to the applicant’s complaint under Article 3 ECHR.

However, the ECtHR reiterated that eventual loss of victim status under Article 3 ECHR cannot automatically and retrospectively dispense a Contracting State from its obligations under Article 12 ECHR, in particular where it can be demonstrated that an applicant had an “arguable” claim under Article 3 at a time he or she was under an imminent threat of removal (e.g. A.D. and others v. Turkey).

In the Court’s opinion, at the material time various reports by international sources demonstrated that the situation in Eritrea posed widespread problems of insecurity and that Saudi Arabia had a record of returning asylum seekers without a careful analysis of their claims. Therefore, since the applicant’s complaint under Article 3 ECHR was “arguable” for the purposes of Article 13 ECHR, the Ukrainian authorities were under an obligation to furnish effective guarantees to protect him against arbitrary removal directly or indirectly back to his country of origin. On the contrary, the border guards at first rejected his disembarkation and informed him he could not apply for asylum on board the vessel.

In conclusion, the ECtHR found that the border-control procedure did not provide adequate safeguards capable of protecting the applicant from arbitrary removal in a situation where the risk of being brought back to his country of origin, where he would arguably face treatment contrary to Article 3 ECHR, was real, imminent and foreseeable. Accordingly, the Court found a violation of Article 13 ECHR read in conjunction with Article 3 ECHR.