"RUSSIA: COUNTRY OF ORIGIN INFORMATION AND HOW TO LOOK FOR IT IN GENERAL” – LAWYER OF BARRISTERS JSC IRYNA KUZINA
In cases of refugee status or status of a person in need of additional protection ("refugee cases"), as well as in criminal extradition proceedings ("extradition cases"), the Country of Origin Information (COI) must be examined and provided to the court. Since 2014, information on the Russian Federation has been particularly relevant. However, efforts are needed to obtain COI on Russia that meets the requirements of relevance, balance and accuracy.
Why should we look for COI?
In accordance with subparagraph 2, item (b) of paragraph 4.1 of the Rules for Examination of Applications and Processing of Documents Required to Resolve on Recognition of a Refugee or Person in Need of Additional Protection, Loss and Deprivation of Refugee Status and Additional Protection and Cancellation of Resolution on Recognition of a Person as Refugee or Person in Need of Additional Protection, approved by the Order of the Ministry of Interior of Ukraine dated 07.09.2011 No. 649 (hereinafter referred to as "Rules"), the conclusion (which is the basis for the decision of the SMS territorial body based of preliminary consideration of applications) shall make explicit reference to the applicant's country of origin information used, including pages, names of information reports, years and names of the institutions or organizations that prepared it, a link to the email address if the reports were published on the Internet, and their relation to the content of the application and information, obtained during an interview with the applicant or his legal representative. This conclusion should include references to accurate, up-to-date information from several sources.
In fact, the responsibility for finding such information lies with the authorized official of the SMS territorial body. However, as practice has shown, such duty is often not properly performed by the authority, requiring the lawyer to search for it accordingly.
It may be impracticable to provide the appropriate COI to an authorized official of a SMS territorial body during the preliminary consideration. However, in the case of an appeal against an order for refusal in an administrative court, COI search is included in the list of actions of a lawyer to prepare the case for trial.
Pursuant to paragraph 10 of the Resolution of the Plenum of the Higher Administrative Court of Ukraine as of June 25, 2009 No. 1 “On Judicial Practice of Considering Disputes Concerning the Refugee Status, Expulsion of a Foreigner or Stateless Person from Ukraine and Disputes Related to the Stay of a Foreigner and Stateless Person in Ukraine”, as amended by the Resolution of the Plenum of the Higher Administrative Court of Ukraine No. 3 as of June 20, 2011, when considering these cases the courts should take into account that the confirmation of reasonableness of the persecution fears (through information on possibility of such persecution in the country of origin of the refugee) can be obtained from the person seeking the refugee status and independently from various reliable sources of information, for example, from UN Security Council resolutions, documents and communications of the Ministry of Foreign Affairs of Ukraine, information collected and analyzed by the State Migration Service of Ukraine, the Office of the United Nations High Commissioner for Refugees, the Rules for Examination of Applications and Processing of Documents Required to Resolve on Recognition of a Refugee or Person in Need of Additional Protection, Loss and Deprivation of Refugee Status and Additional Protection and Cancellation of Resolution on Recognition of a Person as Refugee or Person in Need of Additional Protection, approved by the order of the Ministry of Interior of Ukraine as of September 7, 2011 No. 649, other international, state and non-governmental organizations, from publications in the media. As a rule, more than one source of country of origin information should be used to fully establish the circumstances of such cases.
Courts may use information on countries of origin posted on the official website of the State Migration Service of Ukraine, the Office of the United Nations High Commissioner for Refugees, as well as on information media distributed by the Office of the United Nations High Commissioner for Refugees in Belarus, Moldova and Ukraine, and other media.
When considering cases of refugee status and a person in need of additional protection, forced expulsion of a foreigner or stateless person from Ukraine and disputes related to the stay of a foreigner and stateless person in Ukraine, it should be borne in mind that country of origin information belongs to the information in public domain. Pursuant to the second paragraph of Article 72 of the CAS of Ukraine, circumstances recognized by the court as in public domain well- need not be proved.
Not only in "refugee" but also in "extradition" cases, COI can be useful. Thus, it may become one of the proofs for the application of Article 589 (1) (5) of the CCP of Ukraine and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
How to search for COI?
Unfortunately, in the Russian-speaking segment of the Internet, there is a lack of information about human rights in the Russian Federation and its compliance with international treaties in this area. Yes, if you go to the official website of the Ombudsman in the Russian Federation, it would appear that this country is completely prosperous and that human rights violations are rare. Not surprisingly, the state will not fund the translation of Russian reports of international organizations that contradict the official position. In addition, the country has the State Committee of the Russian Federation for Communications and Informatization, which ensures effective control of the state over the Internet environment.
The statistics of claims against Russia filed with the European Court of Human Rights (more than 14% as of the end of 2018) make one doubt such a good state of affairs and seek other, impartial sources of information. And most of them will be in English and not in Russian.
The fastest way to find COI in Russia is to consult information resources, including the main ones:
https://www.refworld.org/ – web resource of the UN Refugee Agency (UNHCR);
https://www.ecoi.net/ – European Country of Origin Information Network
Some of them even have search filters – not only by country, but also by issues covered by relevant reports and by type of sources.
However, using these resources, unfortunately, COI search is not limited. For example, United Nations documents can be found more on the official website https://www.un.org , although it is not so simple. It is advisable to look for UN documents, given that some of them have been translated into Russian as one of the working languages of the organization, and overall confidence in this source is high.
Here is the list of additional useful websites:
https://www.easo.europa.eu/ – European Asylum Support Office;
https://www.amnesty.org/en/ – Amnesty International;
https://www.coe.int/en/web/portal/home – Council of Europe;
https://www.hrw.org/ – Human Rights Watch;
https://freedomhouse.org/ – Freedom House;
https://www.state.gov/ – The United States Department of State.
Thus, we have come to the issue of a specific COI in the Russian Federation, which is currently available and which has recently been used in the cases in my proceedings.
Reports on the Russian Federation
Published on 19.03.2018, document code A/HRC/WG.6/30/RUS/2 (17 sheets).
In particular, sheet 4 of this Report states:
“24. The Human Rights Committee remains concerned about reports of widespread use of torture and ill-treatment, including with the aim of obtaining confessions ... 30. The Special Rapporteur expressed concern at reports that the preventive measure in the form of an opinion custody pending trial is appointed by the judges rather as a rule than as an exception."
Published on 28.04.2015, document code CCPR/C/RUS/CO/7 (15 sheets).
In particular, sheet 7 of this document states:
"… The Committee remains concerned at reports that torture and ill-treatment continue to be widespread in the country, including in order to obtain recognition ... The State party should take effective measures to eradicate torture and ill-treatment...".
Further, sheets 8-9 of this document state:
"The Committee… is also concerned by reports of the lack of independence and impartiality of the appointed lawyers… The State party should… d) put in place effective remedies. Defenses to ensure the impartiality of the appointed attorneys, including the mechanism for handling the complaints of the accused, challenging the impartial nature of the activities of such lawyers... "
United States Department of Human Rights Report 2018 (60 sheets).
In particular, the Report states:
Page 2: "There have been numerous reports that the government or its agents have committed arbitrary or unlawful murders."
Page 3: "There are numerous reports that in some correctional colonies the authorities systematically tortured prisoners (see section 1.c.), which in some cases led to death."
Page 4: "According to a report by the UN Working Group on Enforced or Involuntary Disappearances, there were 808 uncommon cases of enforced or involuntary enforced disappearance in the country in 2017".
Pages 5-6: "Although the constitution prohibits such practices, numerous credible reports indicate that law enforcement officers are involved in torture, abuse and violence, forcing suspects to admit guilt, and the authorities only rarely bring such law enforcement officers to liability for such actions. There were reports of deaths as a result of torture (see section 1.a.). Physical violence against suspected police officers was systemic and usually occurred within the first few days of arrest in pretrial detention facilities. Reports from human rights groups and former police officers indicated that the police most frequently used electric shock, strangulation, stretching or pressure on joints and ligaments as these methods were considered to leave visible traces. The problem was particularly acute in the North Caucasus. There have been many reports that the FSS has used torture against young anarchists and anti-fascist activists who have allegedly been involved in several terrorism and extremism cases."
Page 7: "There were numerous reports that the authorities had detained the defendants for psychiatric examination for 30 days or longer to pressure them, or sent the defendants to psychiatric treatment as punishment. Starting from July 19, new amendments to the Administrative Procedure Code have made it possible for prosecutors to require suspects to be placed in compulsory psychiatric clinics; the Law previously allowed only certified medical professionals to make such requests, although human rights activists noted that in practice prosecutors already had this possibility. "
Page 8: "Conditions in detention facilities and prisons were different but often harsh and life-threatening. In prisons, prisons and other places of detention, overcrowding, violence by guards and other prisoners, limited access to medical care, food restrictions and inadequate sanitation were common. "
Page 10: "Although the law prohibits arbitrary arrests and detentions, the authorities are certainly engaged in this practice. The law provides for the right of any person to challenge the lawfulness of his arrest or detention, but successful cases have been rare. "
Page 11: "Although there were mechanisms in place to investigate abuse, the government did not investigate or punish law enforcement violence at all, and impunity was widespread."
Page 12: "By law, a detainee can challenge the lawfulness of detention before a court. Given the problems with the independence of judges (see section 1.e), judges generally agreed with the investigator and rejected the complaints of the accused."
In particular, sheet 10 of this Report states (hereinafter - the author's translation):
“D3. Is there academic freedom, and is the educational system free from great political indoctrination? 1/4
The higher education system and the Academy of Sciences are hampered by bureaucratic interference by the state-imposed international isolation and increased pressure from the Kremlin on politically sensitive topics, although some scholars continue to express their views. In August 2018, the authorities renewed their license to provide education services to the European University in St. Petersburg, which was previously suspended in March 2017. This decision made the independent institute, known for its qualitative training in the social sciences and humanities, cancel classes for the whole year and question its future. In June 2018, the state regulator of education revoked the teaching license of the Moscow School of Social and Economic Sciences (Shaninka), another important private college, claiming that its courses and instructors did not meet quality standards.
Historians who have explored the Stalin époque have come under pressure from the regime. Sergii Koltyrin and Yurii Dmitriev, who conducted investigations at a site in Karelia where many victims of Stalin's persecution are buried, faced unrelated criminal charges in 2018 that seemed to be motivated by their work."
Further, sheet 7 of this Report states:
“F2. Does due process prevail in civil and criminal cases? 0/4
Guarantees of protection against arbitrary arrest and other guarantees of due process are regularly violated, especially for those who oppose or perceive themselves as a threat to the interests of the political leadership and its allies...
As of October 2018, Memorial recognized 195 people as political prisoners in Russia, compared to 117 the previous year. The list included human rights activists, journalists, citizens of Ukraine who opposed the Russian occupation of Crimea, as well as people imprisoned for religious beliefs."
Further, sheet 7-8 of this Report states:
“F3. Is there protection from the unlawful use of physical force and freedom from war and insurgencies? 0/4
The use of undue force by the police is common, and human rights organizations say that law enforcement agencies who commit such abuse intentionally used electric shock, strangulation and stretching of the detainee's body to avoid visible injuries. The prisons are overcrowded and unsanitary; prisoners do not have access to medical care and are subject to violence by guards. In August 2018, Nova Gazeta posted videos featuring security guards organizing the beating of prisoners in Yaroslavl. Authorities have arrested at least 12 prison guards after a public outcry, but Public Verdict NGO reported systematic violence in other prison in the region in December..."
Human Rights Watch report on the Russian Federation – Annual Report on the Human Rights Situation in 2018 (8 sheets).
In particular, sheet 1 of this Report states:
“Torture and Cruel and Degrading Treatment.
In July, Novaya Gazeta published a leaked video of penitentiary staff in Yaroslavl viciously beating a prisoner. Responding to public indignation, Russia’s criminal investigation agency arrested 15 suspects by November. One suspect testified that staff recorded the video to demonstrate that they had carried out an order by senior officials to punish the prisoner…
In August, Meduza, an independent online media outlet, published data on more than 50 other publicly reported torture cases in 2018. Authorities opened only a few criminal investigations into the allegations, and only one case advanced to trial.”
Further, sheet 4 of this Report states:
“Attacks on Human Rights Defenders.
… In April, the court acquitted Yurii Dmitriev, the head of Karelia Branch of Memorial, in the false accusations of child pornography concerning his adopted daughter. However, police re-arrested him in June on criminal charges of child sexual abuse. Memorial argued that Dmitriev's accusation was politically motivated as part of a broad campaign against the organization."
Report of the European Refugee Support Office "Country of origin information. Russian Federation. Law enforcement agencies" (148 sheets).
In particular, sheets 87-88 of this Report state:
"According to the SOVA, the authorities use the provisions on extremism in the Criminal Code of Russia (par. 280, 280.1 and 282) to wrongfully prosecute persons who have criticized the authorities either on the Internet or in other institutions. This includes members of the following groups: nationalists, religious activists, political activists, and in some cases union activists and environmentalists).
HRW and the Russian NGO Agora explained that if a prosecutor succeeds in bringing such a case to a court, the likelihood of a conviction is high. Agora claims that people criticizing the government and members of the opposition usually do not win court cases because of their political stance. According to HRW, however, such cases are often closed due to the absence of a crime.
Usually, persons convicted of such offences appeal the case to a higher court. SOVA told the Norwegian COI Center Landinfo that there were only a few acquittals in such cases, and the appeals on the part of the convicts were rarely successful. Extremism-related crimes had been a high priority for the police and there is pressure from the authorities to solve such crimes. According to SOVA reports, the courts usually support the prosecutor, and the courts of appeal usually support the resolutions of courts of lower instance.
Agora adds that the government has launched, for example, an anti-extremist campaign, an anti-corruption campaign and a n anti-drug campaign. There is strong political pressure to convict the accused in such cases, which negatively affects the independence of the judgments."
Thus, in the public domain there is sufficient information about the country of origin – the Russian Federation, which may refute the allegations made by SMS representatives that there is no justification for the applicants' concerns about returning to Russia.
I would like to express my sincere gratitude to the organizers of the School on Migration Law 2019, CFF and to the United Nations Refugee Agency (UNHCR), as well as to Candidate of Law and Scientific Adviser of Barristers JSC Pashkovskyi Mykola Ivanovych for useful practical pieces of advice, many of which were also used in the preparation of this material.
(с) Iryna Kuzina, lawyer 07/03/2019
Source: white collar blog
Author: LAWYER OF BARRISTERS JSC IRYNA KUZINASource: