ECtHR - Kahadawa Arachchige and Others v. Cyprus (Application nos. 16870/11, 16874/11 and 16879/11), 19 June 2018
| Country of applicant: | Sri Lanka |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 19-06-2018 |
| Citation: | Kahadawa Arachchige and Others v. Cyprus (Application nos. 16870/11, 16874/11 and 16879/11), 19 June 2018 |
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:
The detention of three Sri Lankan nationals on grounds of public order before their removal from Cyprus was found to be lawful by the Court. However, the Court found that the applicants did not have at their disposal an effective remedy by which they could challenge the lawfulness of their detention, in violation of Article 5(4) ECHR.
Facts:
This case concerned three Sri Lankan nationals who were deported from Cyprus in January 2011 after being detained for taking part in clashes with a group of other Sri Lankans. They denied taking part in the disturbance. They were held in detention for five to seven days before being deported.
The applicants complained that their detention with a view to their deportation had been unlawful and therefore in breach of Article 5(1) and that they did not have an effective remedy to challenge their detention, in violation of Article 13 of the Convention.
Furthermore, the first applicant complained of a violation of the right to respect for his private and family life under Article 8, and the lack of an effective remedy under Article 13 in this respect.
Lastly, the first and second applicants alleged that they had been deported without being informed about the deportation decision and without any procedural safeguards, in breach of Article 1 of Protocol No. 7.
Decision & reasoning:
First, the Court noted that Cypriot law allows for the possibility of detention with a view to deportation on the grounds of public order and unlawful stay, as was the case of the applicants. Based on the facts of this case, the ECtHR ruled that the applicants’ detention had a legal basis in domestic law and was ordered in accordance with that procedure. There was no indication of a lack of diligence from the part of the national authorities or concerns regarding the detention conditions. Therefore, the ECtHR found that there has been no violation of Article 5(1) ECHR.
Second, the Cypriot government accepted that, in the light of the ECtHR’s judgment in M.A. v. Cyprus, recourse proceedings under Article 146 of the Cypriot Constitution were ineffective for the purposes of Article 5(4) ECHR, as they did not comply with the requirement of “speediness”. Therefore, the Court found that the applicants did not have at their disposal an effective remedy by which they could challenge the lawfulness of their detention, in violation of Article 5(4) ECHR.
Finally, the ECtHR ruled the applicants’ complaint under Article 1 of Protocol No. 7 inadmissible ratione materiae, as they were no longer “lawfully resident” in Cyprus at the time of the decision.
Outcome:
The Court declared the complaints concerning Article 5 (1) and (4) admissible, and the remainder of the applications inadmissible.
It found that there had been no violation of Article 5 (1 ) but that there was a violation of Article 5(4).
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Boultif v Switzerland, Application No. 54273/00 |
| ECtHR - Bajsultanov v Austria, Application No. 54131/10 |
| ECtHR - Olsson v. Sweden (no 1), Application No. 10465/83 |
| ECtHR - Boyle and Rice v. the United Kingdom, Application Nos. 9659/82 and 9658/82 |
| ECtHR - M.A. v Cyprus, Application No. 41872/10 |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| ECtHR - Nikolova v. Bulgaria [GC], Application No. 31195/96 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Hatton v UK [GC], Application No. 36022/97 |
| ECtHR - Nacic and others v Sweden, Application no. 16567/10 |
| ECtHR- Nunez v. Norway, Application No. 55597/09 |
| ECtHR- A. and others v. the United Kingdom, Application no. 3455/05, 19 February 2009 |
| ECtHR - Udeh v. Switzerland, no12020/09 |
| ECtHR - Čonka v Belgium, Application no. 51564/99, 5 February 2002 |
| ECtHR - Chahal v. The United Kingdom, Application No. 22414/93, 15 November 1996 |
| ECtHR - Berdzenishvili and Others v. Russia, nos 14594/07 |
| ECtHR - Georgia v Russia, Application no 13255/07, 3 July 2014 |
| ECtHR - Silver and Others v United Kingdom (application no. 6205/73), 25 March 1983, Series A no. 61 |
| ECtHR - Sunday Times v the United Kingdom, 6 November 1980, Series A no. 38 |
| ECtHR – Z.H. and R.H. v. Switzerland, Application No. 60119/12, 8 March 2016 |
| ECtHR - Kurić and Others v. Slovenia [GC], Application no. 26828/06, 31 May 2007 |
| ECtHR - Abbasi v. Cyprus (dec.), no. 21713/06, 5 July 2007 |
| ECtHR - Mawaka v. the Netherlands, no. 29031/04, 1 June 2010 |
| ECtHR - F.A.K. v. the Netherlands (dec.), no. 30112/09, 23 October 2012 |
| ECtHR - El Morabit v. the Netherlands (dec.), no. 46897/07, 18 May 2010 |
| ECtHR - Athanassoglou and Others v. Switzerland [GC], no. 27644/95, ECHR 2000-IV |
| ECtHR - Nowak v. Ukraine, no. 60846/10, § 79, 31 March 2011 |
| ECtHR - Sharma v. Latvia, no. 28026/05, 24 March 2016 |
Other sources:
Cyprus - Qureshi Aqeel Ahmed v. the Republic (2006) 3 C.L.R. 537
Cyrpus - Maria-Bella A. Mabello v. the Republic of Cyprus (2003) 4 C.L.R. 344
The Explanatory Report to Protocol No. 7 (ETS No. 117) defines the scope of application of Article 1 of Protocol No. 7.