ECtHR – Haghilo v. Cyprus, Application No. 47920/12, 26 March 2019
| Country of applicant: | Iran |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 26-03-2019 |
| Citation: | Haghilo v. Cyprus, Application No. 47920/12, 26 June 2019 |
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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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:
Detention in police stations, places that by their very nature are designed to accommodate people for very short durations, may amount to degrading and inhuman conditions under Art. 3 ECHR if protracted for a long time.
Detention of a person with a view to deportation is contrary to Art. 5 § 1 (f) if unlawful under the Convention or domestic law.
Facts:
The case concerns the Iranian citizen M. Haghilo, who was held in immigration detention from April 2011 to October 2012 by Cypriot authorities with a view to his deportation under domestic Aliens and Immigration law.
In April 2011, while in detention, the applicant applied for asylum. His application was ultimately dismissed in October 2011. In November 2011, the applicant lodged a habeas corpus application with the Supreme Court challenging the lawfulness of his detention owing to the length of his duration. At the end of the same month, pending the habeas corpus proceedings, the Aliens and Immigration Law was amended in transposition of Directive 2008/115 (the Return Directive). The revised national piece of legislation foresaw the possibility of extending detention beyond six months for a period that does not exceed a further twelve months if there was a lack of cooperation on the part of a third-country national.
In November 2011 the Minister of the Interior extended the applicant’s detention for up to eighteen months on the basis of the new Law. In December 2011, the Supreme Court ruled in favour of the applicant affirming that the detention exceeding the first six months had been unlawful under the EU Return Directive, which at that time had direct effect in domestic law. Following the domestic judgment in his favour, the applicant was immediately released, but he was then rearrested a few minutes later on the basis of new detention and deportation orders issued against him on the same grounds as the first ones.
The applicant brought an action before the Supreme Court (as first instance revisional jurisdiction) challenging the lawfulness of the new detention and deportation orders on the basis of which he had been arrested. His action was dismissed. In October 2012, the Ministry of the Interior decided to annul the deportation and detention orders as the applicant’s deportation had not been carried out within the above-mentioned eighteen-month time-limit. Therefore, the applicant was released. Over the total 18-months period of detention imposed in view of his intended deportation, the applicant was kept over 15 months at three different police stations.
Decision & reasoning:
Art. 3 ECHR - detention conditions
Admissibility
The Court rejected the Government’s objection that the applicant did not raise a complaint regarding the detention conditions before the Supreme Court. The procedures proposed by Cyprus could not be regarded as an effective remedy, as the domestic court’s jurisdiction is limited to duration-related complaints. The Court also rejected the preliminary objection that the applicant’s complaints regarding his detention at Famagusta Police station, the first place of detention, had been lodged out of the six-months limit under Art. 35 § 1 of the Convention, as that limit started from the cessation of detention at the last location, since all detention facilities were similar (police stations) and the conditions did not differ either.
Merits
The Court reiterated that in the context of deprivation of liberty, in order for it to fall under Article 3, the suffering and humiliation involved must, in any event, go beyond that inevitable element of suffering and humiliation connected with detention. Police stations and other similar establishments are by their nature designed to accommodate people for very short duration, making them inappropriate for the detention of people who are waiting for the application of an administrative measure, such as deportation.
Moreover, the Court emphasised that, according to reports, the existing police detention facilities in Cyprus were only suitable for accommodating detained persons for a maximum period of a few days. It noted in particular the lack of possibility for outdoor exercise, limited personal space in cells, as well as lack of natural light and fresh air. In view of these conditions and the significant duration of detention, the Court found the applicant was subject to degrading treatment prohibited by Art. 3 of the Convention.
Art. 5 § 1 (f) ECHR - lawfulness of detention
Admissibility
The Court rejected the objection that the applicant’s complaints were inadmissible for failure to exhaust domestic remedies as far as they concerned the period of detention subsequent to the Supreme Court’s ruling in his favour. The Court pointed out that the applicant's successful habeas corpus application had been rendered ineffective since he was rearrested immediately after the release ordered by the judicial authority. The applicant could not be expected to lodge another identical habeas corpus application; the applicant’s choice to bring an action against the lawfulness of the new detention and deportation orders was reasonable and was the only avilable remedy at the time.
Merits
According to Art. 5 § 1 (f) of the Convention a person may be deprived of his liberty with a view to deportation. Nevertheless, the Court reiterated that any detention legitimate under Art. 5 of the Convention must be lawful, namely in conformity with the Convention and with national law. The domestic judicial authority (the Supreme Court) had already ruled that the period of detention exceeding the six-months limit was unlawful. The Court also remarked that the applicant was released following the ruling in his favour, but was immediately rearrested on the same legal grounds cited in the first detention order, namely with a view to his deportation. The Government itself admitted that there was no legal basis to do so. The Court found that this act violated Artilcle 5 (1) f ECHR.
Outcome:
Violation of Article 3 and 5 § 1 of the Convention.
Observations/comments:
This summary was written by Pietro Derossi, Italian lawyer working as researcher, reporter and editor for Migrantes Foundation on 'Vie di Fuga', a permanent observatory on refugees in Europe.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Aerts v Belgium (1998) 5 BHRC 382 |
| ECtHR - Winterwerp v. the Netherlands, Application No. 6301/73 |
| ECtHR - Kane v. Cyprus, Application No. 33655/06 |
| ECtHR - M.A. v Cyprus, Application No. 41872/10 |
| ECtHR - Scordino v. Italy (no. 1) [GC], Application No. 36813/97 |
| ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08 |
| ECtHR - Bozano v. France, Application No. 9990/82 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR- A. and others v. the United Kingdom, Application no. 3455/05, 19 February 2009 |
| ECtHR - Čonka v Belgium, Application no. 51564/99, 5 February 2002 |
| ECtHR - Vlasov v. Russia, No. 78146/01 12 June 2008 |
| ECtHR - A.H. and J.K. v. Cyprus, nos. 41903/10 and 41911/10, 21 July 2015 |
| ECtHR – J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016 |
| ECtHR - Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015 |
| ECtHR - Abdi Mahamud v Malta, Application no. 56796/13, 3 May 2016 |
| ECtHR - Alimov v. Turkey, Application no. 14344/13, 6 September 2016 |
| ECtHR - I.D. v. Moldova (no. 47203/06, §§ 27-31, 30 November 2010) |
| ECtHR - S.Z. v. Greece, Application no. 66702/13, 21 June 2018 |
| Seagal v. Cyprus, no. 50756/13, 26 April 2016 |
| Muršić v. Croatia [GC], no. 7334/13, 20 October 2016 |
| ECtHR Thuo v. Cyprus (no. 3869/07) |
| ECtHR - Khlaifia and Others v. Italy (GC), no. 16483/12, 15 December 2016 |
| ECtHR - Micallef v. Malta [GC], no 17056/06, 15 October 2009 |
Other sources:
Domestic case law
- Refaat Barquwi, habeas corpus application no. 131/2003 (2004) 1 CLR 2004, judgment of 12 January 2004
- Essa Murad Khlaief, habeas corpus application no. 91/2003, (2003) 1 (C) CLR 1402
- Mohammad Khosh Soruor, habeas corpus application no. 132/2011 (2011) 1 CLR 2170, 21 December 2011
- Yuxian Wang, habeas corpus application no. 13/2012, (2012) 1 CLR 406, judgment of 15 March 2012
- Zoran Todorovic, habeas corpus application no. 197/2013 (2013) 1 CLR 2578, 19 December 2013
- Zoran Todorovic, habeas corpus application no. 2/2014, 2 February 2014
Reports
- The 2012 and 2014 Reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
- The Amnesty International Report concerning the detention of migrants and asylum-seekers in Cyprus, June 2012
- The Report of the Ombudsman on her visit to Farmagusa police station, 3 October 2011
- The Report of the Ombudsman on her visit to Paphos police station, 2 March 2015