Cyprus - Supreme Court, Nessim v Republic of Cyprus, 24 August 2016, No 66/2016
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
An order renewing detention for the purpose of removal must be given in writing and provide reasons for prolonging detention, notwithstanding whether the maximum time limit under the Return Directive has been reached or not at the time of the decision.
Facts:
The applicant, an Egyptian national, arrived in Cyprus on 18 February 2011 with a work permit, and applied for asylum on 31 October 2011. His application was rejected on 14 February 2012 for failure to appear before the authorities, and on the same day he successfully requested his case to be re-opened. The request was again rejected, and an administrative appeal was also dismissed on 19 April 2016 by the Refugee Reviewing Authority.
From the moment of his arrest, on 2 March 2016, the applicant’s detention was prolonged on 28 April 2016 by a decision of the Ministry of Interior concerning 31 individuals, and subsequently on 30 June 2016 i.e. three days following the complaint before the Supreme Court. The applicant contended that the decision of 28 April 2016 did not contain reasons for the prolongation of his detention. The Republic of Cyprus submitted that the 6-month maximum time limit for detention had not lapsed at the time.
Decision & reasoning:
The Supreme Court recalled that detention for the purpose of removal must be as short as possible and should be applied only insofar as return proceedings are carried out with due diligence. Every detention order must be made in writing and state reasons for detention in fact and law. The Court explained that the time limit provided by the Return Directive does not aim to restrict the rights enshrined in Article 5(1)(f) ECHR, but only to specify the time periods for which a person could be held in detention. The Court recalled that both the CJEU and Cypriot case law have ruled on cases where detention did not exceed the maximum time limit.
On the facts, the decision prolonging detention did not concretely refer to the individual case of the applicant; on the contrary, according to written instructions provided in April 2016, the applicant’s removal was suspended due to allegations of abuse against him by police officials. Accordingly, since detention was prolonged without due motivation and for reasons unrelated to the execution of removal, the order was not justified under Article 18ΠΣΤ of the Cypriot Aliens Law.
Outcome:
Application granted.
Immediate release ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Cyprus - Article 18ΠΣΤ Cypriot Aliens Law |
| Cyprus - Article 11(2) Cypriot Constitution |
Cited Cases:
| Cited Cases |
| CJEU - C-534/11 Mehmet Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie |
| ECtHR - Al Nashif v. Bulgaria, Application No. 50963/99 |
| ECtHR – J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016 |
| Cyprus - Fasel, Application 236/2015, 31 March 2016 |
Other sources:
Council of Europe Twenty Guiding Principles on the expulsion of aliens, 4 May 2005
Council of Europe Resolution 1707 (2010): Detention of asylum seekers and irregular migrants in Europe