Publication date: 04.07.2024
Protection of migrants' rights during detention in Ukraine
Introduction
The detention of migrants is a serious measure that is used in case of violation of the rules of stay in the country or in cases where a migrant poses a threat to national security or public order. In such cases, it is important to ensure that migrants' rights are respected and that they are provided with the necessary legal assistance. In this article, we will look at the main aspects of legal regulation of the protection of migrants' rights during detention in Ukraine, including the legal framework, the rights of detainees, the detention procedure and mechanisms for protecting their rights.
Legislative framework
TheConstitution of Ukraine: The fundamental law of the state that guarantees the rights and freedoms of all citizens, foreigners and stateless persons on the territory of Ukraine. Article 29 of the Constitution of Ukraine guarantees everyone the right to liberty and security of person, provides for the procedure of detention and guarantees of protection of the rights of detainees.
TheLaw of Ukraine "On the Legal Status of Foreigners and Stateless Persons": The main legal act regulating the legal status of foreigners and stateless persons in Ukraine, their rights and obligations, grounds for detention and the detention procedure.
Code of Ukraine on Administrative Offences (CUAO): Defines administrative liability for violations of the rules of stay of foreigners in Ukraine and the procedure for applying administrative measures, including detention.
Criminal Procedure Code of Ukraine (CPC): Regulates the procedure for detention of persons suspected of committing crimes, including foreigners and stateless persons.
International treaties: Ukraine is a party to a number of international treaties governing the protection of migrants' rights, including the European Convention on Human Rights, the UN Convention relating to the Status of Refugees and others.
Migrants' rights in case of detention
Theright to information: Detained migrants have the right to be informed about the grounds for detention, their rights and obligations, as well as the procedure and conditions of detention.
Right to legal assistance: Detained migrants have the right to legal assistance, including the right to a lawyer or representative to defend their interests. This right includes the possibility to have a lawyer during interrogations and other procedural actions.
Theright to notify the consulate: Detained migrants have the right to notify their home consulate of their detention. The consulate may provide legal and other assistance to the detained citizen.
Right to medical care: Migrant detainees have the right to medical care, including access to necessary treatment and medical services during detention.
Right to humane treatment: Migrant detainees have the right to humane treatment by law enforcement authorities, including protection from violence, ill-treatment, discrimination and other human rights violations.
Procedure for detention of migrants
Grounds for detention
а. Violation of migration legislation: Detention can be applied in cases where a migrant has violated the rules of stay in Ukraine, such as overstaying, illegal entry or exit, staying without valid documents, etc.
б. Threat to national security: Detention may be applied in cases where a migrant poses a threat to national security, public order or public health.
в. Suspicion of committing a crime: Detention may be applied in cases where a migrant is suspected of committing a crime on the territory of Ukraine.
Detention procedure
а. Registration of detention: Law enforcement agencies must formalise the detention in accordance with the requirements of the law, including drawing up a detention protocol, which indicates the grounds for detention, time and place of detention, personal data of the detainee and other necessary information.
б. Notification ofdetention: Law enforcement authorities are obliged to immediately inform the detainee of the grounds for detention, his/her rights and obligations, as well as the possibility of notifying his/her consulate.
в. Detention: Detained migrants may be held in custody in specially designated places that meet the requirements for detention conditions, sanitary and hygienic standards.
Procedural actions
а. Interrogation of adetainee: The interrogation of a detainee must be conducted in the presence of a lawyer or representative, if the detainee requests their participation. The interrogation must be formalised in accordance with the requirements of the law.
б. Appeal against detention: A detainee has the right to appeal against detention in court. The statement of claim must contain information about the circumstances of the detention, the grounds for appeal and the plaintiff's claims.
Mechanisms for protecting migrants' rights during detention
Out-of-court mechanisms
а. Appealto the State Migration Service of Ukraine (SMS): Detained migrants can file complaints and statements with the SMS about violations of their rights during detention. The SMS conducts inspections, issues remedial orders and provides necessary assistance.
б. Appeal to NGOs: Detained migrants can apply to NGOs that provide legal assistance, social support and protection of migrants' rights. Such organisations can represent migrants' interests before state authorities, courts and other institutions.
Judicial mechanisms
а. Filing alawsuit: Detained migrants have the right to file a lawsuit in court to challenge their detention and protect their rights. The statement of claim must contain information on the circumstances of the detention, the grounds for appeal and the plaintiff's claims.
б. Courtproceedings: The court considers cases of violation of the rights of detained migrants with the participation of the parties, hears explanations, examines evidence, hears witnesses and experts. The court may decide to release the detainee, award damages, compensate for non-pecuniary damage, etc.
Appeals to international organisations
а. European Court of Human Rights (ECHR): Detained migrants have the right to apply to the ECtHR in cases of violation of their rights guaranteed by the European Convention on Human Rights.
б. United Nations HighCommissioner for Refugees (UNHCR): Detained migrants who have refugee status or who are in need of complementary protection can apply to UNHCR for assistance and protection.
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