2010 23/10
Aндрэй Елісееў

Andrey Eliseev

As contrasted with other European nations Belarusian citizens can’t complain about their government to European Human Rights Court – Belarus isn’t member of Council of Europe and didn’t sign European Convention on Human Rights. But Belarusians can seek for justice in Strasburg court if their rights are violated by state agencies of any of 47 countries of European Council.

European Court on Human Rights (further – European Court, Court, ECHR or Strasburg court) has investigated more than 20 complaints of Belarusians against the governments of different countries from the Council of Europe: Ukraine, Russia, Sweden, Finland and others. Some complaints (five to be exact) concern challenging the decisions of deportation to Belarus. The following article observes these cases.

In every investigated complaint legal foundation is Article 3 of European Convention on Human Rights. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The given article of the Convention foresees liabilities not to send a person to a country if it is reasonable to presume that in this country a person will be faced a great danger and he can be tortured and treated inhuman.
“S. against Finland” 1

In December 2006 one S., filed a lawsuit in Strasburg court about Finish migration services’ plans to deport him out of the country. Finish Immigration Directory denied him asylum referring to incomplete information.

Except Article 3 of the Convention, S. complained about Finland’s violation of Article 6 – denial a fair trial in the asylum proceedings. S. complained that Finish migration and court agencies didn’t interview him which negatively influenced declared facts.

On 10 February 2003 S. arrived to Finland and applied for asylum. He stated that from 1985 to 1995 he worked as a security officer for the KGB. In September 1995 he resigned for political reasons since he felt unable to work for President Lukashenko’s regime. He joined the opposition party, the United Civic Party. He also joined the Belarusian Helsinki Committee on Human Rights and the Belarusian Republican Club of Voters. For security reasons, the applicant’s membership was not officially registered and his activities were secret. He became responsible for security and confidentiality issues and he gathered and disseminated information about the acts of the Lukashenko regime.

In February 2000 the activities of the applicant were uncovered, whereupon he was arrested by the police. He was questioned for 24 hours, humiliated and tortured both physically and mentally. His detention was not recorded. Every time he was released with a warning to stop his activity.

He decided against instituting proceedings on account of the detention and torture. A friend, a former judge, considered that that course of action was inadvisable since it would only escalate the action taken against him. Subsequently, the assets of the applicant’s company, whose income was used for his political activity, were confiscated as a result of which its activities ceased. No written decision on the confiscation was issued.

The next day after the second detention he escaped an assassination attempt and fled to Moscow. Subsequently he moved on to Minsk, where he went into hiding.

In December 2002, the applicant again noticed that he was being followed. He decided to go to Finland.

Migration services considered his documents not complete. They noted that he had not submitted any documents in support of his arrests and the confiscation of his assets. Nor had he produced any medical certificates of the alleged assaults. It also noted that he had not applied for asylum during his stays in the Netherlands and the USA in 2000 although his problems in Belarus had begun before visiting these countries. Having regard also to the perceived insignificant nature of his activities within the opposition party, they did not find it credible that the authorities would take a special interest in him based on those activities.

Nevertheless, until the S’s complaint is considered, Finish agencies in European court provided him with a state of refugee and gave him temporary residence permit which was reported to the court in December 2007. In connection with this the circumstances of the appeal’s consideration disappeared and European court deleted the complaint from its ad referendum calendar.

“V.B. against France” 2

One V.B., a Belarusian native, as noted has left the country on the reason of pursuit on the side of authorities for his political activity. After arriving to France applicant addressed for providing him a refugee status. But in May 2006 French committee on refugee and stateless persons’ defense (OFPRA) dismissed the petition.

In January 2007 Refugee review board left the decree of OFPRA in virtue. In February V.B. was ordered to leave the territory of France in the course of a month.

The rebid to migration agencies about reconsidering the appeal was also decided against. Then in October 2007, in the last day of the deadline term V.B. filed a complaint to European court.

Except Article 3, in his complaint V.B. referred to violation of Convention’s Article 8 (right to respect for one’s private and family life) and Article 10 (right to freedom of expression). Violation of Article 8 meant separation from his wife and daughter who lived in France. Article 10 meant the impediments for political activity in Belarus.

In April 2008 competent authorities of France revoked the decision of migration agencies and provided V.B. refugee status. As a result, in September 2008 European court decided to strike V.B.’s application out of its list of cases.

“Mostachiov and others against Sweden” 3

The applicants entered Sweden on 22 July 2003 and applied for asylum. They were: Mr Dmitrij Aleksandrevich Mostachjov, a national of Belarus who was born in 1968, Mrs Tatjana Nikolajevna Mostachjova, his wife, a Russian national who was also born in 1968 and Mr Dimitrij (Dima) Dmitrijevich Mostachjov, their son a national of Belarus who was born in 1990. In their appeal the family stated that they had also received threats against all family members from Russian and Belarus officials. (they lived in Russia before moving to Sweden). The first applicant was a member of the BNF stated that due to his political involvement, he had been asked to quit his job. In May 2003, the first applicant had gone to Belarus, hoping to solve the situation. However, there he had been arrested and beaten up by the police and had received further threats against himself and his family. Following his release from detention, he had been assaulted by two men, who had threatened to kill him if he continued with his activities.

Tatjana and her son had left for Belarus in June 2003 where the whole family had contacted a human rights organization which had advised them to leave the country.

In November 2003 the Migration Board (Migrationsverket) rejected the applicants’ application for asylum. It considered, inter alia, that the first applicant had not held a prominent position within the BNF and that they had not exhausted the possibilities of getting protection in Russia, where they were unlikely to be persecuted.

The applicants appealed to the Aliens Appeals Board (Utlännings-nämnden). They maintained what they had previously stated and added, inter alia, that the mental health of the third applicant, the son, had deteriorated dramatically since the Migration Board’s decision. He had stopped communicating and eating and had become apathetic. He had tried to commit suicide twice. Also Tatjana had serious mental problems and had been admitted to compulsory psychiatric care between March and May 2004.

On 15 October 2004 the Appeals Board rejected the applicants’ appeal. It agreed with the Migration Board as to the political grounds and further found that the second and third applicants’ mental problems were not of such a serious nature that the family was entitled to residence permits on humanitarian grounds.

In December 2004 the applicants lodged a new application for residence permits with the Aliens Appeals Board. They submitted medical certificates issued by chief physicians who stated that the second applicant had been diagnosed with depression and was in need of extensive care and that the third applicant was in a serious mental state and could not be deported from Sweden in the foreseeable future.

Following the Court’s indication of 20 December 2004, under Rule 39 of the Rules of Court, the Migration Board stayed the enforcement of the deportation order concerning the applicants.

On 28 April 2005 the Aliens Appeals Board revoked the deportation order and granted the applicants permanent residence permits. The Board referred to the opinion of a specialist in psychiatry. In conclusion, there were serious medical obstacles to deportation of the third applicant.

On the basis of this medical opinion, the Board found that it would go against the demands of humanity to enforce the deportation order. The European court decided to strike the application out of its list of cases.

“Vasilina Matsiukhina and Aliaksandr Matsiukhin against Sweden” 4: unreliability of evidences

The applicants, Mrs Vasilina Matsiukhina and Mr Aliaksandr Matsiukhin, are nationals of Belarus who were born in 1973 and 1964. They were not agree with the deportation order and in August 2004 complained against Swedish government. The family presented a story which was considered by Swedish government and European court ill-founded and fictitious.

Vasilina Matsiukhina stated that in June 2001 she joined the Belarus Patriotic Youth Union (the “BPSN”), an organization closely connected to President Lukashenko. At the same time, she was employed by the regional branch of the BPSN in Vitebsk, dealing with the documentation of the organization of local branches. She soon discovered that the BPSN engaged in illegal economic activities, including money laundering. Many Government officials were involved and large amounts of money were transferred to the accounts of President Lukashenko. Furthermore, medicine, food and clothes received by the BPSN from abroad as humanitarian aid were sold in ordinary shops rather than being distributed among those in need of the aid.

After she appealed the GUVD in Minsk (“the Chief Administration for Internal Affairs of the Executive Committee of the City of Minsk”) in November 2001. She also submitted copies of documents as evidence of the illegal activities. In December she started to receive threats, including death threats, by telephone. By a letter in January 2002 she was informed by the GUVD that the investigation had been discontinued, as there was no indication of illegal activities. Convinced that no proper investigation had been made, she appealed against this decision to the public prosecutor’s office in Minsk in January.

Vasilina also gave a speech before a large crowd at a public meeting organised by the BNF, an opposition party. She revealed details about the BPSN and its activities.

Later she was given a decision by a court executor which stated that she had been admonished and ordered to pay a fine for having spread anti-Government propaganda. She also was dismissed from her job. She then had a nervous breakdown and was hospitalised.

She remained in Minsk, staying at a hotel, as she was afraid of returning to Vitebsk due to the threatening telephone calls. During one night unknown men broke into her hotel room. They assaulted her, searched the room and then disappeared. Her injuries were examined at the department for forensic medicine the following day.

Finding that she could not return to Vitebsk, she and her husband rented a flat in Minsk.

On 13 April 2002 two unknown men came to the flat in Minsk. They assaulted and threatened Vasilina, asked for documentation about the BPSN and questioned her whether she had more information about the union. She started to scream that, if they killed her, documents about the BPSN would be sent to the Russian and foreign media. The men then left, stating that they would come back. She was again examined at the department for forensic medicine the following day. Believing that she would be killed, she and her husband decided to leave the country.

In support of her application she submitted copies of a certificate of BPSN membership, an extract from an employment book, the report to the GUVD, the reply from the GUVD, the appeal to the public prosecutor, the speech given by her at the BNF meeting, court notifications and two forensic medical certificates.

The second applicant – Vasilina’s husband – stated that his company, which sold shoes, had encountered problems when his wife had reported the illegal activities of the BPSN to the police. The tax authorities frequently appeared unannounced to check his bookkeeping and a whole consignment of shoes was confiscated. The telephone threats were directed at both him and his wife.
In September 2003 the Migration Board rejected the applicants’ applications and ordered that they be expelled from Sweden. While acknowledging that the political situation in Belarus was authoritarian and that political dissidents had been arrested at meetings and demonstrations, it considered that the general conditions in Belarus did not constitute a ground for asylum.

She had not kept any copies of the documents which showed illegal activities of BPSM. The forensic medical evidence did not show that she had sustained any serious injuries. The Board further stated that, whether the applicants’ story was credible or not, they could not be considered as refugees on the basis of the information they had given.

For clarification of authenticity of Matsiukhin’s documents Swedish embassy in Moscow on request of Swedish government hired a lawyer in Minsk. It appeared that most of the documents were falsified. GUVD officials and representatives of court with last names mentioned in the documents happened never to work there. Or they worked there but their signatures didn’t coincide. Some of the documents had stamps of quite the different competence. And some of the documents mentioned links for Belarusian legal norms which didn’t really exist.

In August 2004 Appellation Board agreed with evaluation made before and kept deportation order in force. The Matsiukhins filed the appeal to European Human Rights Court which in its turn on September 2 ordered Sweden to freeze carrying out the order of deportation.

“Very important facts are discovered. They show falsification of the documents filed”, – was written in the next decision of Strasburg court of August 2005. The significant fact for the judges was that the applicants instead of concrete argumentation on questions about unreliable evidences suggested only general explanation that the conclusions of Swedish government are based on disinformation from Belarusian state agencies. As a result European Court on Human Rights decided unanimously that the complaint isn’t acceptable for the next consideration because the facts provided there are fictitious.

“Y.P. and L.P. against France” 5: prohibition on deportation of political opponent

On September 2, 2010 verdict on the case “Y.P. and L.P. against France” was published. The member of BNF Yury Pchelnikau and his wife except Article 3 of the Convention complained against living conditions 2in France and the local authorities’ rejection of asylum according to several articles (## 1, 2, 6, 13 and 14 of Convention and ## 1 and 2 of Protocol #7).

The Pchelnikaus with two underage kids left Belarus in the end of 2004, escaping from authorities’ pursuit for Yury’s political activity. During 1999 – 2004 he has been arrested several times and assaulted by Belarusian enforcement agencies. Some of them were mentioned in mass media and report extracts of Human right centre “Viasna”. His son born in 1990 was a member of “Malady Front” and was also arrested and intimidated not once. He was arrested and assaulted by militia in Department of internal affairs for participation in picketing of May 1, 2004. Medics diagnosed traumatic brain injury and cerebral commotion.

In February 2005 after coming to France the family applied for asylum to French committee on refugee and stateless persons’ defense (OFPRA). French agencies rejected the appeal having considered it groundless. Yury testified assault marks and his wife – depressive state connected with psycho trauma which she got in Belarus. But the Refugee Commission left the decision of OFPRA in force.

Duplicative requests weren’t success. In March 2008 French agencies issued another deportation order. The family appealed to European Court and the court ordered freeze deportation procedure.

Strasburg court considered acceptable to investigate the complaint in the light of possible violation of Article 3. Therefore judges examined the human rights situation in Belarus and evaluated authenticity and content of the applicant’s personal information.
In a certain section of the court’s verdict Strasburg Court has analyzed extracts from Belarusian Criminal Code, Resolution of Parliamentary Assembly of Council of Europe 1671 (2009), Recommendation of PACE 1874 (2009), Report on the Situation in Belarus of PACE Reporter, reports of international human rights organizations and governments of USA, Great Britain and Canada.
The analysis of those reports on Belarus showed that pursuit and intimidation still take place in the country towards political opponents and that “membership of an opposition organization could be enough to provide asylum according to Article 3”.
The Court has also considered truthful Yury Pchelnikau’s concerns about possible treatment contrary to Article 3 of the Convention in case of deportation back to Belarus, because in the past being the member of opposition party he had been arrested and assaulted many times by Belarusian enforcement agencies.

Referring to international legal norms the Court left open the idea that Yury’s wife as a wife of political opponent could be threatened and assaulted in case of coming back to Belarus.
As a result, the Court decided unanimously that deportation of the applicants to Belarus would be a violation of Article 3 of European Convention. But no compensation for financial and moral damage has been adjudged.

Therethrough, European human Rights Court in three cases decided to strike applications out of its list of cases because applicants received asylum in the mentioned countries (“Zmitser Mostachiov and others against Sweden”; “S. against Finland” and “V.B. against France”). One more complaint was considered by the Court unacceptable under authorities of strong reasons to consider the information filed by the applicants untruthful (“Vasilina Matsiukhina and Aleksandr Matsiukhina against Sweden”). The complaint “Y.P. and L.P. against France” was the only complaint of Belarusian citizens from all the mentioned which was essentially studied by European Court. By its verdict the Court has set an important precedent of cancelling deportation of political opponent back to Belarus according to Article 3 of the European Human Rights Convention.

Andrey Eliseev,

Master of International and European Laws

(Riga law high school)

Belarusian Legal Portal

by.prava-by.info

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