ECtHR - H.S. and Others v. Cyprus (Application no. 41753/10), 21 July 2015
| Country of applicant: | Syria |
| Court name: | European Court of Human Rights Fourth Section |
| Date of decision: | 21-07-2015 |
| Citation: | H.S. and Others v. Cyprus (Application no. 41753/10), 21 July 2015 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The case follows on from litigation presented in M.A. v Cyprus and focuses in on the legal grounds for detention in Cyprus for an applicant who is subject to removal as well as an individual’s right to speedy judicial review of the lawfulness of detention.
Facts:
The case originates in fourteen separate applications for asylum lodged in Cyprus by Syrian nationals of Kurdish origin and two stateless Kurds. In all of the cases the Cypriot Asylum Service found the accounts to be either unsubstantiated, lacking credibility or, on the respective facts, insufficient to establish a real risk of persecution. Where appeals were submitted to the Reviewing Authority they were all dismissed with the exception of several applications whereby the negative response of the Asylum Service was not communicated to the applicants and thus the appeal deadlines were not complied with.
In 2010 a group of Kurds from Syria, including the applicants to the present case, demonstrated close to governmental buildings concerning the restrictive asylum policies of the Cypriot Government. Following complaints of the insalubrious conditions within the protestors’ encampment the Cypriot government removed all protesters, detained them, subsequently arresting the applicants and issuing them with deportation orders. The grounds for deportation in each of the orders related to illegal entry and illegal stay. The applicants claimed that they had not received these orders but were in fact informed orally of their deportation. Following the lifting of a stay on removal, which was previously granted by a Rule 39 request, the applicants were deported back to Syria and in the majority of cases subject to imprisonment, torture and ill-treatment upon return.
In all of the cases the applicants complained of a violation of Article 3, Article 13 read in conjunction with Article 3 as well as Article 5 para 1, 2 and 4 and Article 4 of Protocol 4.
Decision & reasoning:
Article 3 and Article 13 read in conjunction with Article 3
Turning first to the issue of an alleged violation of Article 3 and 13 read in conjunction with 3 the Court split the applicants into two groups confirming that the first group had not exhausted all effective domestic remedies [258]. Noting that the asylum procedures in Cyprus allow for an appeal to the Reviewing Authority, which is suspensive, the Court highlighted that the applicants had either not attended scheduled interviews with the Asylum Service, or had not filed an appeal against the rejected decisions to the Reviewing Authority.
With regards to the second group of applicants the Court focuses specifically on the alleged violation of Article 3 in the event of expulsion, advancing that there is no need to examine the exhaustion of domestic remedies and the lack of an effective remedy as the threshold of Article 3 had, in effect, not been met [267]. The Court, referencing Hilal v. the United Kingdom - notably that the treatment complained of must reach a minimum level of severity - went on to find that “at the relevant time there was no indication that the general situation in Syria for Kurds was so serious that the return of the applicants would constitute, in itself, a violation of Article 3 of the Convention” [275]. In contrast to Sufi and Elmi, then, the general situation, including the discrimination of Kurds in Syria, was not sufficient in its nature or intensity to reach a violation of Article 3. Additionally and with reference to the Cypriot authorities reasoning in its decisions, the Court noted that the applicants’ claims were carefully examined by the Asylum Service and Reviewing Authority. Indeed, the applicants had failed to establish that there were substantial grounds for believing that they would be exposed to a real risk of treatment contrary to Article 3 ECHR. The Court therefore found that claims under Article 3 and 13 of the ECHR were manifestly ill-founded [281-283].
Article 5 para 1
With regards to Article 5 para 1 of the Convention the Court noted that given the analogous factual situation with the present case and M.A v Cyprus a violation of this provision had similarly occurred in the applicants transfer and stay in the ERU headquarters, principally because this stay amounted to a de facto deprivation of liberty without the clear legal basis which Article 5 para 1 requires. With regards to the detention based on the given deportation orders the Court again split the applicants into two groups finding that in the first case, there had been a legal base in domestic law for the applicants’ detention and that the detention period did not exceed what was reasonably required. Indeed, despite the stay on removal granted by the Rule 39 interim measure the Court found that following its lifting the applicants were promptly deported (in September) without any unjustified delays or inaction on the part of the Cypriot authorities [313-316]. Thus Article 5 para 1 had not been violated on these specific grounds for these particular litigants. However, the Court found that the second group of applicants who were deported in December 2010 had been subject to detention for an unjustified prolonged period in which the authorities had not demonstrated the requisite due diligence in order to end the detention as reasonably as possible [320-323]. Conversely to the first group, then, the Court found a violation of Article 5 para 1.
Article 5 para 2 and 4 and Article 4 Protocol 4
Lastly, with regards to Article 5 para 4 the Court found that the facts and arguments were identical to those raised in MA v Cyprus in which the Court agreed that a violation of the provision had occurred. Conversely with regards to Article 5 para 2 and Article 4 Protocol 4 the Court, as in MA v Cyprus, declined to accede to the litigants’ arguments, rejecting that a violation had occurred on these grounds.
Outcome:
Violation of Article 5 para 4, Article 5 of 1 of the Convention in so far as the applicants’ arrest and detention on 11 June 2010 following their transfer to and stay at the ERU headquarters is concerned and violation of Article 5 para 1 for those applicants who were not deported to Syria until December.
Observations/comments:
On the same day as this case was handed down the Court gave judgment in A.H. and J.K. v. Cyprus and K.F. v. Cyprus which raised identical facts and argumentation. The Court in both cases found the same violations of Article 5 para 1 and 4 and rejected the other grounds, also advanced in this case.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Cyprus - Refugee Law 6 (I)/2000 |
| Cyprus - 16 A of the Refugee Law (Amending Law 9(I)/2004 |
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - Raza v. Bulgaria, Application No. 31465/08 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Boyle and Rice v. the United Kingdom, Application Nos. 9659/82 and 9658/82 |
| ECtHR - N. v. Finland, Application No. 38885/02 |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - M.A. v Cyprus, Application No. 41872/10 |
| ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - A. A. M. v. Sweden, Application No. 68519/10 |
| ECtHR - Keshmiri v. Turkey (no. 2), Application No. 22426/10 (UP) |
| Vučković and others v. Serbia (no. 17153/11) |
| ECtHR - IS.P. v. Belgium, Application No 12572/08 |
| ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87 |
| ECtHR- R.C. v. Sweden, Application no. 41827/07, 9 June 2010 |
| Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 |
| A and M. v. the Netherlands, Application no. 50386/12 |
| ECtHR - M.E. v. Denmark, Application no. 58363/10 |
| ECtHR - Mannai v. Italy, Application no. 9961/10 |
Other sources:
United Kingdom Border Agency’s Country of Origin Information Report on Syria of 3 September 2010.
Human Rights Watch, “A Wasted Decade: Human Rights in Syria during Basharal-Asad’s First Ten Years in Power.
Landinfo published on 16 June 2010 “Kurds in Syria: Groups at risk and reactions against political activists”
Austrian Red Cross and the Danish Immigration Service on human rights issues concerning Kurds in Syria published in May 2010
Information and Refugee Board of Canada, 1 May 2008, “the Syrian government’s attitude towards, and its treatment of, citizens who have made refugee or asylum claims, particularly when the claim was made in Canada or the United States”
Danish Immigration Service published in April 2007 “Syria: Kurds -Honour killings and illegal departure”.
Chatham House of January 2006 “The Syrian Kurds: A People Discovered”
Canadian section of Amnesty International in January 2004, dealing with the risk on return to Syria
Human Rights Watch: “Syria: the Silenced Kurds”, dated 1 October 1996.