The response “They never learn!” was probably shared by many on Friday when it became known that the Ukrainian authorities had expelled 11 asylum seekers back to Sri Lanka.  A great deal was hideously reminiscent of February 2006 when the authorities handed over 11 Uzbeks to Karimov’s henchmen.  In the following, I will outline the key elements in this latest disgrace and some thoughts on ensuring that this time becomes the last.

Details are in fact scarce, and more information will, we hope, emerge.  Better not to sit and wait, however, after all, the lack of information is one of the problems needing to be addressed now. 11 Sri Lankan nationals, all ethnic Tamils, over a period spanning August 2007 to January 2008 approached the Office of the United Nations High Commissioner for Refugees (UNHCR) in Kyiv and asked for assistance in applying for refugee status in Ukraine.  They were all registered and given the appropriate document. Only 6 of them applied for refugee status to the Migration Service.  It is not clear why the others did not. 

According to the UNHCR they were detained at the end of January because they had entered the country illegally. A letter from human rights defenders to the Prosecutor General states that this was during a joint operation against illegal immigrants by the State Security Service [SBU] and the Ministry of Internal Affairs [MIA). According to the UNHCR statement, “On several occasions, UNHCR requested that these individuals be granted effective access to an examination of the substance of their asylum claims”. Most unfortunately, UNHCR would seem to have informed its Ukrainian partners only on 28 February, which made time extremely short to take measures, and the expulsions did take place on 4 and 5 March..

There were a number of infringements both of domestic legislation and of international norms.

FAILURE 1

Why were they detained in the first place?  A mere glance at their documents from the UNHCR should have been sufficient to release them.  It was not.  

I will avoid high-flown language and stay with basics.  If a person asks for asylum in your county, and says they are afraid to return to their home country, you listen.  Regardless of the country, regardless of your suspicions that over a drink you would come to ideological (or other) blows with this person within seconds.  If a person is calling for help in any situation we hold out a hand first, ask questions later.

In the case of Sri Lanka, the situation has an added complexity. In October 2007, the European Court of Human Rights recommended that, given the very difficult human rights situation specifically for Tamils, that countries refrain at present from sending any ethnic Tamils back to their country. 

It is conceivable that some minions in the SBU or MIA knew nothing of this recommendation, nonetheless the UNHCR wrote to both bodies, as well as to the Prosecutor General and the Human Rights Ombudsperson. Nobody had any right not to know.

Despite this, on 4 and 5 March, 11 ethnic Tamils were sent back to a country where their lives could be in danger. .

FAILURE 2

Only six of the men applied to the Ukrainian migration service for refugee status. This is in itself strange, and we need to make sure that the others did not also attempt to submit applications. All six men were turned down en masse without any requests being considered on their individual merits.  In my view this raises questions as to whether the law whereby migration officers can simply refuse to even consider a claim on, for example, procedural grounds, complies with international conventions. How can one turn down an application for asylum without properly examining it?

Nobody is suggesting we do not ask questions.  The questions must be asked, and the answer may well be that the person is not considered to be a refugee.  However in any case where people say they are afraid to return, then they must have full opportunity to present their case.

No opportunity was provided to appeal against this rejection, although human rights defenders were informed of the wish to appeal.

They were not given access to a lawyer, and those representatives of the Vinnytsa Human Rights Group who arrived to provide legal assistance were turned away.

No interpreters were provided.  The only conversation we know to have taken place was between one of the asylum speakers and a representative of a human rights group speaking a language (English) foreign to both. People seeking asylum were given no opportunity to explain why they were afraid of returning.

They were held in police premises as people awaiting expulsion. The person who spoke with a human rights group representative complained that they had been beaten and not provided with food.  Since access was denied and then the men were illegally expelled, these claims cannot be checked.  Under such circumstances there can also be no grounds for simply dismissing the accusations.

There are contradictory reports and no clarity whatsoever as to when and where a court hearing was held, if in fact it was held.

One feels that the only clear thing is that all those who shamed themselves and the country two years ago are once again implicated.  This includes not only the SBU, MIA and Prosecutor’s office, but also the Human Rights Ombudsperson, called upon to defend human rights, who did nothing.

In fact, of course, something else is plain, and that is the need for a thorough investigation to ascertain all reasons for this flagrant violation of legislation and international norms. Not behind closed doors, but transparently and with honesty. This time we must not allow them to confine themselves to feeble excuses and attempts to shift the blame.

We can hope that people will be found in the SBU, MIA and Prosecutor’s office who will themselves want to understand how this could have happened so as to prevent it happening again.

We can hope, however it would be difficult to count on this, and if the representatives of these bodies prove incapable of learning these lessons, then we will have to help them do so.

  FAILURE 3

This was our failure too. Firstly, because in 2006, we demanded answers and were fobbed off. We demanded them again with no greater success. We asked again and again, until finally we got tired of demanding the truth and hearing lies. And the calls to punish those responsible became less and less audible. In short, we shut up.  Doubtless exactly what the authorities were waiting for. No lessons, no more unpleasant conversations, and no change. And here we have the repeat offence.

Not that we were naïve, and our expectations were extremely modest yet we failed to prevent disaster. It would seem we were also slow to learn lessons.

Charities and civic organizations don’t have it easy anywhere.  We depend, after all, on support from the public, often also from donors, and this can lead to a certain degree of competition, and desire to stand out.  This is probably all absolutely normal, however in emergencies, we must work together or we are failing those very people who need our support.  There is such cooperation already however a mechanism for swift response is also needed, since swamped with information as we are, we often don’t react in time.  I think we should consider a special SOS mechanism to be used in situations where emergency action is needed.  This would also need to be coordinated with international organizations – for example, the UNHCR and Amnesty International.  

More primitively, we need to make noise and a lot of it.  Noise, incidentally, not only in Ukrainian or Russian, but also at very least in English.  

On 31 December a young Russian political activist and asylum seeker was detained in Ukraine.  The noise which carried far beyond Ukraine may well have ensured his release and the assurances given by the authorities that no extradition requests can be considered until Mikhail Gangan request for political asylum has been considered.

We bellowed loudly enough then. We could have done it again.  The fact that we did not is our failure also.

If we are to prevent this happening again, we must follow all violations and avoid expressing any opinions as to who bears greatest responsibility. This is not aimed at helping anyone get away with it, quite the contrary. A serious investigation will uncover causes we had no idea about. If we already “know” who is to blame, we risk missing the faults of other players. In the present case, just as in 2006, liability is borne by the SBU, MIA, Prosecutor General, the courts and the Human Rights Ombudsperson. We can broaden this list, in fact, since in two years the government did nothing to prevent a repetition of such a disgrace.

We must ensure once and for all that several lessons are learned.  Let everybody understand that we will follow all infringements and there is no chance of them going unnoticed.  There will be no avoiding loud publicity and our voices will fall silent only when those in authority learn to act according to the rules of a law-based and civilized country.