ECtHR - M.A. v Cyprus, Application No. 41872/10

Facts:

The applicant, a Syrian national of Kurdish origin, fled Syria in 2005 and made an unsuccessful claim for asylum in Cyprus. His file was reopened by the asylum service in 2008 because new information had been received. In 2010, while the re-opened asylum proceedings were still pending, the applicant joined a round-the-clock protest that was being staged against the Government’s asylum policy. The authorities decided to remove the protestors, citing unsanitary conditions, the illegal use of electricity and complaints from members of the public. In June 2010 250 police officers descended on the encampment, escorted the protesters to waiting buses and took them to police headquarters with a view to determining their immigration status. Those who were found to be refugees or bona fide asylum-seekers were allowed to leave. Those whose presence in the country was found to be unlawful were detained with a view to deportation. 22 protestors were deported on the same day and 44 others, including the applicant, were charged with unlawful stay and transferred to detention centres in Cyprus. The applicant was considered by the authorities to be unlawfully staying in the Republic and deportation and detention orders were issued against him despite the pending asylum proceedings. The next day, the applicant and 43 other people of Kurdish origin submitted a request to the European Court for interim measures under Rule 39. The Court indicated to the Cypriot Government that they should not be deported until the Court had had the opportunity to receive and examine all documents pertaining to their claims. In August 2010 the Minister of the Interior declared the applicant an irregular immigrant on public order grounds, relying on allegations that he had received money from prospective Kurdish immigrants in exchange for residence and work permits in Cyprus. New deportation and detention orders were issued on that basis and the previous ones cancelled. The Rule 39 interim measure in respect of the applicant was reviewed by the European Court in September 2010 and maintained. The applicant brought habeas corpus proceedings before the domestic courts to complain of his detention. Ultimately, in 2012, his appeal to the Supreme Court was dismissed as, in the meantime, in May 2011, he had been released after being granted refugee status.

Decision & reasoning:

Article 13 in conjunction with Articles 2 and 3:

The European Court of Human Rights indicated that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39.

The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. The Court pointed out that the deportation and detention orders were obviously based on a mistake committed by the authorities and that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention.

The Court found a violation of Article 13 of the Convention due to the lack of remedy with automatic suspensive effect against a deportation order. The orders against the applicant continued to remain in force for more than two months during which the re-examination of his asylum claim was still taking place. No effective domestic judicial remedy was available to counter this error. Moreover, the Court noted in this respect the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time.

Article 5 § 1:

Given the coercive nature, scale and aim of the police operation, including the fact that it had been carried out so early in the morning, there had been a de facto deprivation of liberty. As to the legal basis for that deprivation of liberty, the Government had relied on the police’s statutory powers and duties of arrest and to preserve order on the public highway and regulate movement. However, they had not claimed that any of those powers had actually been used to effect the applicant’s arrest. It was clear that the aim of the operation had also been to identify those protesters who were unlawfully on the territory with a view to deporting them. The authorities had considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction and so had taken the protesters to police headquarters. While the Court was conscious of the difficult situation in which the Cypriot authorities had found themselves that could not justify measures giving rise to a deprivation of liberty without any clear legal basis. The applicant’s deprivation of liberty during that period had, therefore, been contrary to Article 5 § 1.

The applicant’s detention on the basis of the deportation and detention orders issued in June 2010 had been unlawful, as the orders were issued by mistake at a time when he had lawful resident status because the re-examination of his asylum application was still pending.

Finally, the procedure prescribed by law had not been followed in respect of the applicant’s detention from August 2010 until his release in May 2011, as he had not been given notice of the new deportation and detention orders in accordance with the domestic law.

Overall, the applicant’s entire period of detention namely, from June 2010 until May 2011, had been in breach of Article 5 § 1.

Article 5 § 4:

The Court reiterated that under Article 5 § 4 of the Convention domestic remedies must be sufficiently certain and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings.

The Court found that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention, and concluded that there has been a violation of Article 5 § 4 of the Convention.

Outcome:

• A violation of Article 13 of the Convention taken together with Articles 2 and 3;
• A violation of Article 5 § 4 of the Convention;
• A violation of Article 5 § 1 of the Convention;
• No violations of Article 5 § 2 of the Convention;
• No violation of Article 4 of Protocol No. 4 to the Convention;
• EUR 10,000 awarded in respect of non-pecuniary damage.

Subsequent proceedings:

Following on from the ECtHR’s decision the applicant was granted refugee status and released from detention in April and May 2011 respectively. An action plan was submitted to the Committee of Ministers of the Council of Europe in July 2014. Delays have however been experienced in correctly executing the Court’s judgment given the need to amend the Constitution itself. Therefore, an ongoing examination into the Supreme Court Regulations is underway so as to ensure that a deportation order is suspended pending an individual’s challenge or until the Supreme Court decides that an allegation is unfounded.

With regards to Article 5 para 4, amendments to the Refugee Law have been drafted which provide for a review of the lawfulness of detention by the Supreme Court as soon as possible but up to a maximum of four weeks. However, with regards to Article 5 para 1 the Cypriot authorities have communicated to the Committee of Ministers that MA v Cyprus was an individual error remedied by the dissemination of the decision to the relevant authorities. Alongside this, a letter authored by the Minister of Justice to the Migration Department and the Director of Police Aliens and Immigration Unit reminds both authorities of their obligation to serve copies of detention and deportation orders on the persons against whom they are issued.

Observations/comments:

Application of Rule 39 (interim measures), 41 (priority), 47 § 3 (anonymity) of the Rules of Court.