Author
The process of the review of the detention is initiated by the authority at whose request the foreigner was detained, i.e., SMS, SBGS, SSU. The relevant authority shall file an administrative claim for the extension of the detention period no later than five days before its expiry every six months. The claim shall specify the actions or measures taken by the authority to identify a foreigner, to enforce a decision on forced expulsion or readmission, or to consider an application for recognition as a refugee or a person in need of complementary protection in Ukraine. The conditions under which it is impossible to identify a foreigner and ensure their forced expulsion or readmission are:
- lack of cooperation from the foreigner during the procedure of his/her identification;
- failure to receive information from the country of the foreigner’s citizenship or documents required for identification.
Thus, detention may be imposed for a period of up to six months, although shorter terms, such as three months, may also be ordered by the court. In practice, the maximum six-month period is typically applied. This term may be extended twice by court order, though the extensions are not necessarily for the full six months. Prior to the expiration of the detention period, the authority responsible for initiating the detention submits a formal request for an extension, should additional detention time be required.[1]
Consideration of the mentioned issues is carried out by the court with the mandatory participation of the parties and legal representatives in cases prescribed by law, including through videoconferencing. Administrative cases shall be considered by the court on the day of filing the relevant statement of claim.[2]
Article 289 of the Code of Administrative Judicial Procedure sets forth that the appeal to the decision of the first instance court regarding the placement of a person to MCC should be filed within 10 days after the proclamation of the respective decision. The appellate court shall consider the case within ten days after the expiry of the time limit for appeal, with notice to the parties to the case.[3]
The court practice of the Kivertsi District Court of the Volyn Region shows that almost none of the cases regarding the detention of foreigners in MCC were processed with a qualified interpreter. There have been instances when defendants detained in the Volyn MCC participated in the hearings did not understand the language of the proceedings, and were not provided with an interpreter. There have been cases when the applicant provided translation of the language of the proceedings by one interpreter into English, and by another interpreter from English into a language understood by the foreign defendant. However, no reliable information was provided to the court that the second interpreter was translating into the language understood by the defendant, which may cast doubt on the validity of any decision in the administrative case.[4]
In the Communication from Ukraine concerning the group of cases of Kebe and Others v. Ukraine to the Council of Europe, Ukraine provided the following statistics on the number of people detained in the MCC and the length of their detention after the full-scale invasion:
In February 2022, 313 individuals were detained in the MCC, including 255 for up to 6 months, 29 for more than 6 months, 9 for more than 9 months, 6 for more than 12 months, and 14 for more than 15 months. In December 2022, 93 individuals were detained in the MCC, including 72 for up to 6 months, 18 for more than 6 months, 0 for more than 9 months, 2 for more than 12 months, and 1 for more than 15 months.
In December 2023, 159 individuals were detained in the MCC, including 111 for up to 6 months, 24 for more than 6 months, 10 for more than 9 months, 8 for more than 12 months, and 6 for more than 15 months. In April 2024, 122 individuals were detained in the MCC, including 82 for up to 6 months, 16 for more than 6 months, 14 for more than 9 months, 8 for more than 12 months and 2 for more than 15 months.[5]
[1] R2P.
[2] Article 289(12-15) Code of Administrative Judicial Procedure.
[3] Article 289(16-17) Code of Administrative Judicial Procedure.
[4] Analysis provided by the Head of the Kivertsi District Court of Volyn Region.
[5] Committee of Ministers, 1507th meeting (September 2024) (DH) – Action plan (02/07/2024) – Communication from Ukraine concerning the group of cases of Kebe and Others v. Ukraine, 11 July 2024, DH-DD(2024)779, available here.