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Cite as: [2011] ECHR 1460
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
33655/06
by Osman KANE
against Cyprus
The European Court of Human Rights (First Section), sitting on 13 September 2011 as a Chamber composed of:
Nina
Vajić,
President,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
judges,
Costas
Pamballis, ad
hoc judge,
and
Søren Nielsen, Section
Registrar,
George Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Costas Pamballis to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time).
Having regard to the above application lodged on 29 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Osman Kane, was born in 1972 and submitted that he was a Sierra Leonean national. He was initially represented before the Court by Mr G. Seraphim, a lawyer practising in Nicosia. On 1 February 2010 the applicant appointed Ms N. Charalambidou, a lawyer practising in Nicosia, to represent him in the remaining proceedings before the Court. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
The applicant entered the “Turkish Republic of Northern Cyprus” (“TRNC”) unlawfully in December 2000 and served a sentence of six months’ imprisonment there after being convicted for possessing a false Dutch passport.
While in prison, the applicant applied to the office of the United Nations High Commissioner for Refugees in Cyprus (“UNHCR”) for asylum.
On 26 March 2001 the applicant’s asylum application was dismissed, apparently because he was not a Sierra Leonean but a Malian national.
The applicant lodged an appeal.
The applicant entered the Republic of Cyprus unlawfully on an unspecified date early in June 2001. He was found by the police on 11 June 2001. The applicant did not have a passport on him but only a paper stamped by the “TRNC” and dated 25 May 2001 on which his personal details were written. The Government submitted that the applicant alleged that he did not know where his passport was. The applicant was arrested and after being convicted on 18 June 2001 by the Larnaca District Court for entering the Republic illegally he was sentenced to three months’ imprisonment. He was detained in Nicosia Central Prisons (“the Central Prisons”).
On 4 July 2001, while the applicant was serving his prison sentence, detention and deportation orders were issued by the Director of the Civil Registry and Migration Department under section 6 (1) (d) of the Aliens and Immigration Law (Cap. 105 as amended) on the ground that the applicant was a prohibited immigrant. The applicant was to be deported to Sierra Leone. The applicant submitted that he had never received notification of these orders or of any/the available remedies against them.
By a letter dated 16 July 2001 the Immigration Department of the Ministry of the Interior informed the Attorney-General of the Republic that the applicant could not be deported as he did not have a passport or any other travel document and did not have a ticket or any money for the purchase of a ticket. He noted that efforts were being made to resolve the matter.
By a letter dated 20 August 2001 the Department of Immigration of the Ministry of the Interior informed the Ministry of Foreign Affairs that the applicant was going to be released on 23 August 2001 but could not be deported as he did not have a passport or any other travel document. It requested the Ministry of Foreign Affairs to take the necessary steps to secure a Sierra Leone travel document as a Cypriot travel document would not be accepted by the airlines travelling to Sierra Leone or the transit countries.
2. First arrest and detention with a view to deportation
The Government submitted that on 23 August 2001 the applicant was released after having received a pardon but was, however, re-arrested on the basis of the detention and deportation orders which had been issued against him on 4 July 2001. The applicant was transferred to the immigration detention facilities in the Central Prisons (Block 10), where he was detained with a view to his deportation.
The applicant submitted that he had never been released on pardon and that after serving his sentence he continued to be detained on the basis of the detention and deportation orders that had been issued in the meantime.
In a letter dated 24 August 2001 the Ministry of Foreign Affairs informed the Immigration Department that it was impossible to obtain a Sierra Leone travel document for a number of reasons, such as the absence of Cypriot diplomatic missions in Sierra Leone and the difficulties in proving to the Sierra Leone authorities that the applicant was indeed a Sierra Leonean national. It was noted that a travel document could be issued by the Cypriot authorities once an airline’s consent had been obtained to such a document, to send the applicant back to his country.
In a letter dated 6 September 2001 the UNHCR informed the Immigration Department of the applicant’s asylum application, requested that deportation proceedings against the applicant be suspended, that the appropriate measures be taken for his release and that the applicant be allowed to remain in Cyprus pending the decision on his asylum claim.
The applicant was released on 20 September 2001 pending the examination of his asylum application and was granted a temporary residence permit until 6 December 2001.
3. Second arrest and detention with a view to deportation
In a letter dated 25 October 2001, the UNHCR requested, that the applicant’s residence permit be renewed for another six months pending the examination of his asylum claim. The residence permit was renewed until 25 April 2002.
The UNHCR dismissed the applicant’s appeal on 23 January 2002. It appears from this decision that although the applicant had initially claimed that he was a citizen of Sierra Leone, in his interview with UNHCR officials on 23 January 2001 he had changed his mind when an official had informed him that Sierra Leonean citizens were sent back to Sierra Leone. The applicant had been unable to reply to basic questions concerning Sierra Leone and had stated that he was in fact from Mali. Upon reviewing the case the UNHCR accordingly considered that the applicant’s submission did not warrant a change of the original decision of 26 March 2001.
On 15 October 2002 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6 (1)(k) of the Aliens and Immigration Law, on the ground that he was a prohibited immigrant. The applicant was to be deported to Mali.
The applicant was arrested on the same day on the basis of these orders and was taken to the immigration detention facilities in the Central Prisons (Block 10).
On 21 November 2002 the applicant filed a habeas corpus application before the Supreme Court (first instance – application no. 124/2002).
On 2 December 2002 the applicant withdrew the application following the authorities’ decision to release him in order to enable him to file a new asylum application. The applicant was released on the above date.
4. Third arrest and detention with a view to deportation
On 21 January 2003 the applicant submitted a new asylum application to the Asylum Service.
On 31 January 2003 the applicant filed an application for a temporary residence permit. In his application he gave the address of the hotel in Nicosia in which he was staying.
On 18 April 2003 a residence permit was issued for as long as the applicant had asylum seeker status.
In a letter dated 8 December 2003 the Asylum Service informed the applicant that an interview had been arranged for 28 January 2004. However, the authorities were not able to serve the applicant with the letter as he could not be found at the address he had given them. The applicant did not attend the interview.
The applicant submitted that the hotel where he had been staying and which had been used as a residence for asylum seekers by the Welfare Services of the Ministry of Labour and Social Insurance, had closed down in September 2003 following a fire, and that the authorities had been aware of this. He claimed that the authorities had had his telephone number.
It appears from the case file that the applicant declared his change of address to the authorities on 17 June 2004.
In a letter dated 14 April 2004, the Asylum Service informed the applicant that, having examined his file, it had decided to close it and suspend the examination of the asylum application by virtue of section 16 (A) (1) (a) of the Refugee Law of 2000 (Law 6 (I) of 2000, as amended). It was noted that the applicant had not complied with the obligation deriving from section 8 of the Refugee Laws of 2000-2004, according to which, in the event of a change of address, the applicant had to inform the Asylum Service either directly or through the district Immigration Police Departments. The applicant was requested to make arrangements to leave the Republic within 14 days of receipt of the letter. The letter was sent to the address the applicant had given in his asylum application.
The applicant was arrested on 21 February 2005 by members of the Aliens and Immigration service. The Government submitted that the officers had entered the room with a search warrant in the course of an investigation concerning drug-related offences. Although no drugs had been found, upon verifying the applicant’s personal details they realised he was in the Republic illegally. He was arrested as an illegal alien and taken to the detention facilities in the Central Prisons. The applicant submitted that such raids were common practice in hotels and residences where it was known that asylum seekers and immigrants were staying. Upon arresting him, the police had accused him of trying to hide from the Cypriot authorities and of changing address without informing them, which the applicant denied. He submitted that it was at this point that he had become aware of the Asylum Service’s decision to close his file. Lastly, the applicant claimed that the police had not allowed him to take any of his belongings, including the passport which he had in the meantime secured from Sierra Leone through his family. His passport had thus been lost.
On 22 February 2005 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6 (1)(k) of the Aliens and Immigration Law, on the ground that he was a prohibited immigrant. He was to be deported to Sierra Leone. A letter was also addressed to the applicant on the same date informing him of the orders and giving reasons. The Government submitted that the applicant had been informed of the orders on the same day. The applicant submitted that the information had not reached him until about ten to twelve days after his arrest, when he had sought help from a non-governmental organisation.
On 15 March 2005 the same non-governmental organisation lodged an appeal on behalf of the applicant with the Review Authority for Refugees against the Asylum Service’s decision to close his file. This was dismissed on 6 December 2005. The applicant was served with the decision on 8 December 2005.
The applicant did not bring a recourse against this decision before the Supreme Court.
5. Recourse no. 379/05 (Kane Osman v. the Republic of Cyprus – Minister of the Interior and Director of the Civil Registry and Migration Department)
In the meantime, on 7 April 2005 the applicant brought a recourse before the Supreme Court (revisional jurisdiction) under Article 146 of the Constitution challenging the detention and deportation orders of 22 February 2005. In this it was stated that the applicant was a Sierra Leonean national. The applicant claimed that in Sierra Leone he had worked as the driver of the wife of the leader of one of the warring parties and for this reason he had been tortured and persecuted during the civil war in Sierra Leone. After having fled to Senegal and then Lebanon, he had unlawfully entered the “TRNC” and then the Republic of Cyprus. In his written address in the proceedings before the Supreme Court the applicant stated that he had been informed by the police on 22 February 2005 that deportation and detention orders had been issued against him, but had never been informed of the reasons for the orders in question or about the cancellation of his temporary residence permit. Nor had he been given the opportunity to be represented in relation to the orders.
On 21 September 2006 the Supreme Court (full bench) dismissed the recourse. The court noted that the applicant had left his place of residence without informing the authorities and had transgressed the conditions of his residence in Cyprus despite having already served a prison sentence for unlawful entry into the Republic. The authorities had found him subsequently by chance, whilst carrying out certain investigations concerning another case. As the applicant had been living in Cyprus unlawfully, the detention and deportation orders had been correctly issued against him on the basis of the Aliens and Immigration Law. The court therefore concluded that the decisions to close his file and to issue the aforementioned orders had been lawful.
6. Measures taken by the authorities for the applicant’s removal
On 14 December 2005 the applicant was taken to Larnaca airport for deportation. He was deported with a Cypriot travel document issued by the authorities and a photocopy of his passport. Two policemen escorted him. Upon his arrival in Ghana, the last stop before Sierra Leone, the authorities there refused to allow the applicant to depart to Sierra Leone on the grounds that his escorts did not have a visa and tickets for Sierra Leone. As a result the applicant and the policemen all returned to Cyprus.
The applicant was initially detained in Larnaca airport detention facilities, then he was taken to Block 10 of the Central Prisons, where he was held until 8 March 2006.
On 17 December 2005 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6 (1)(k) of the Aliens and Immigration Law.
On 8 March 2006 the applicant was transferred to Limassol police station detention centre, but on 15 March 2006 he was taken back to Block 10 at the Central Prisons.
The Government submitted that a number of efforts had been made subsequently by the authorities to obtain a Sierra Leonean travel document for the applicant and to verify his true identity. The Sierra Leone Consul had visited the applicant at the police station in an attempt to establish his identity. Additional efforts had been made by the Cypriot and Sierra Leone Consuls in London with a view to issuing a travel document.
In July 2006 another attempt was made to deport the applicant. The flight to Sierra Leone was via Belgium but the Belgian Embassy in Cyprus refused to issue a transit visa for the applicant.
On 24 August 2006 the applicant was taken to Larnaca airport to be deported to Sierra Leone on a Cyprus Airways flight via Bahrain and Kenya. The applicant was escorted by two members of the immigration services. The applicant resisted boarding and as a result the airline did not allow him to board the aircraft. The applicant claimed that he had resisted boarding because of a genuine fear of persecution if he was sent back to Sierra Leone and because of his poor psychological state after his lengthy detention. The applicant was then transferred to Aradippou police detention centre, where he was held until 5 December 2006, on which date he was transferred back Block 10 at the Central Prisons.
Letters dated 17 April 2008 were sent by the Ministry of the Interior seeking the assistance of the Belgian and German Governments to allow transit. The Government submitted that the replies of the above Governments were received on 18 May 2008, but did not provide any information as to their content. The applicant’s deportation to Sierra Leone on a flight via Frankfurt and Brussels was then arranged for 23 May 2008. The applicant was escorted by two members of the Immigration Service. However, the Belgian airline refused to allow the applicant to board the aircraft. The applicant submitted that he had not refused to board.
The applicant maintained that he had been detained at Larnaca airport from 20 May 2008 until 23 May 2008.
On 23 May 2008, given the failed attempt to deport the applicant, the detention and deportation orders of 22 February 2005 were cancelled and the applicant was released on the former date under the condition that he presented himself twice a day for a period of 15 days at the Nicosia Police Station. The applicant submitted that following the expiry of the 15-day period he still had to report to the police every day.
7. The conditions of the applicant’s detention in Block 10 at the Central Prisons between 4 July 2001 and 20 September 2001; 15 October 2002 and 2 December 2002; 21 February 2005 and 8 March 2006; 15 March 2006 and 24 August 2006; and 5 December 2006 and 20 May 2008.
(a) The applicant’s description of the conditions of his detention
The applicant was held, together with another detainee, in a cell that measured 5.5 square metres. The cell had no heating or air conditioning system. Although there were heating and cooling units in the common areas, these did not suffice to heat and cool the individual cells. The cell had a window which was not insulated and as a result the applicant had to cover the sides of the window with newspapers to protect himself from draughts. Apart from a bunk bed, there had been no other furniture in the cell. Because of the structure of the bunk beds, it was impossible to sit up straight on the lower bunk; the only alternative was to sit on the floor.
(b) The Government’s description of the conditions of the applicant’s detention
According to the Government all the cells in Block 10 measured 270 by 205 cm and could accommodate two detainees. No records were kept as to whether two detainees actually shared a cell. It was quite possible that the applicant had shared a cell with another detainee during his detention.
All the cells had one window which was properly insulated against draughts.
The cells were open 24 hours a day, with access to open spaces on both the lower and upper floors of Block 10. Common rooms and entertainment rooms were situated in these spaces. Detainees were therefore able to move freely between their cells and these spaces.
Furthermore, there was central heating and air conditioning in the open areas and the power of the units was sufficient to heat or cool every cell. The average temperature in each cell was fixed by the detainees themselves.
8. The conditions of the applicant’s detention in other detention centres
In his observations of 14 December 2010 the applicant provided a description of the conditions of his detention in the Limassol Police Station detention centre, Aradippou Police detention centre and Larnaca airport.
(a) Limassol police station detention centre
The applicant was held in Limassol police station detention centre from 8 to 15 March 2006.
He was held in a cell measuring approximately 2.5 square metres, with no heating or air conditioning. The cell had a small window which could not be reached and which let air in. For a bed it had a concrete block with a mattress. No blankets were provided. During the applicant’s stay, from morning to evening and depending on the time the next officer on duty turned up for his shift, the detainees were given a choice between being locked up in their cells or being in the overcrowded communal space, where there were no chairs, recreational facilities or sunlight. Following a hunger strike, the applicant was transferred from Limassol Police Station Detention Centre back to Block 10 at the Central Prisons.
(b) Aradippou police station detention centre
The applicant was held in Aradippou police detention centre between 24 August 2006 and 5 December 2006.
His cell was smaller than that in Block 10 and the Limassol Police Station detention centre and he shared it with another detainee. He had no freedom of movement outside the cell. The cell had a very low ceiling, approximately 2 metres high. Although there was heating and air conditioning in the cell it was not switched on on a regular basis. The lighting was also insufficient and the applicant submitted that as a result he had developed problems with his eyesight. Lastly, the cell window had been properly insulated against draughts.
(c) Larnaca airport detention facilities
The applicant was held in Larnaca airport detention facilities between 20 May 2008 and 23 May 2008.
There he was held in a large, overcrowded cell with many beds and no heating or cooling system. The toilet was inside the cell. The cell had one window, which was insulated. The detainees were not allowed to leave the cell.
9. Complaint to the Cypriot Ombudsman (complaint no. 1455/2006)
On 28 March 2006 the applicant filed a complaint with the Commissioner for Administration of the Republic of Cyprus (hereinafter “the Ombudsman”) concerning his continuing detention, the Asylum Service’s decision to close his file and his intended deportation.
On 21 June 2006 the Ombudsman acknowledged receipt of the complaint and informed the applicant that an investigation into his complaint had already begun.
In his observations of 16 April 2009 the applicant submitted that the Ombudsman had not yet published a report. No further information has been provided as to the outcome of the applicant’s complaint.
10. Subsequent developments
In a letter dated 14 December 2010, the applicant’s representative, Ms Charalambidou, informed the Court that the applicant had been arrested on 22 November 2010 by the Aliens and Immigration Police for working without a work permit. The applicant is currently in detention pending the trial of the case by the domestic courts.
B. Relevant domestic law and practice
1. Relevant Constitutional provisions
(a) Human Rights
Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant:
Article 11
“1. Every person has the right to liberty and security of person.
2. No person shall be deprived of his liberty save in the following cases when and as provided by law:
...
(b) the arrest or detention of a person for non-compliance with the lawful order of a court;
(c) the arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
(f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition.
...
4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.
..
7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.
Article 8 of the Constitution prohibits torture, inhuman or degrading treatment or punishment. Moreover, under Article 35 the legislative, executive and judicial authorities are required to secure, within the limits of their respective competences, the effective application of the provisions of the Constitution. In the case of Takis Yiallourou v. Evgenios Nicolaou ((2001) 1 (A) CLR 558), which concerned the violation of the plaintiff’s right to respect for his private life and correspondence, the Supreme Court, sitting as a full bench, held that claims in respect of human rights violations were actionable rights that could be pursued in the civil courts against those responsible for the violation, inter alia with a view to recovering from them just and reasonable compensation for the damage suffered as a result. The Supreme Court pointed out that the provisions of Article 13 of the Convention formed part of the domestic law and safeguarded the right to an effective remedy for a violation of rights guaranteed by the Convention. In the case of Andreas Tsouloupa v. the Attorney-General of the Republic ((2002) 1 (Β) CLR 1263) the plaintiff brought a civil action against the Government for unlawful arrest and unlawful detention and relied on Article 5 of the Convention and Article 11 of the Constitution in his appeal before the Supreme Court. It was held, however, that his detention had been lawful.
Lastly, Article 32 of the Constitution provides that the provisions of Part II of the Constitution do not preclude the Republic from regulating by law any matter relating to aliens in accordance with international law.
(b) Writ of habeas corpus
Under Article 155 of the Constitution the Supreme Court has exclusive jurisdiction, to issue, inter alia, orders in the nature of habeas corpus.
2. Admission, residence and deportation of aliens
(a) The Aliens and Immigration Law of 1959
The entry, residence and expulsion of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).
Under section 6(1) of the above Law a person is not permitted to enter the Republic if he or she is a “prohibited immigrant”. This category includes, inter alia, any person who, without having received pardon, has been convicted of murder or a criminal offence for which a prison sentence has been imposed for any term and who, because of the relevant circumstances, is considered by the Director of the Civil Registry and Migration Department to be an undesirable immigrant (section 6 (1)(d)); and any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted under the Law (section 6(1)(k)). A “prohibited immigrant” may be ordered to leave the Republic under section 13 of the same Law.
Under the Law, the deportation and, in the meantime, the detention, of any alien who is considered “a prohibited immigrant” can be ordered (section 14). Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for the decision, unless this is not desirable on public-security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. Pursuant to section 14(2) an alien against whom a deportation order has been issued shall be deported to the country to which he belongs or, with the consent of the Council of Ministers, to another country, provided that both he or she and the Government of the country in question consent.
The Law is supplemented by the Aliens and Immigration Regulations of 1972 (as amended). Regulation 19 provides that when the Director of the Civil Registry and Migration Department decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule to the Regulations.
(b) Recourse under Article 146 of the Constitution
Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 § 1 of the Constitution of the Republic of Cyprus. This provision provides as follows:
“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”
Such recourse must be made within 75 days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 § 3). Upon such a recourse, the Supreme Court may (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed (Article 146 § 4).
The jurisdiction of the Supreme Court is limited to the review of the legality of the act in question on the basis of the situation that existed at the time the act was issued; the Supreme Court will not examine the merits of the decision under review and replace the decision of the administrative organ with its own decision.
Article 146 (6) provides for compensation as follows:
“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”.
(c) Relevant case-law
(i) Challenging the lawfulness of deportation and detention orders
In the case of Refaat Barqawi (habeas corpus application no. 105/2003, (2003) 1 (C) CLR 1417), on 23 October 2003 the Supreme Court, at first instance (Nicolaou J), held that the lawfulness of deportation and detention orders could not be examined in the habeas corpus procedure but only by the Supreme Court in its judicial review capacity under Article 146 of the Constitution. Where the deportation order had not been annulled its validity was presumed, and until such annulment by the Supreme Court took place, then detention was justified whether it inherently derived from the deportation order itself or was based on a separate detention order, also issued by the administrative authorities and which appears to be lawful; Article 11 (2) (f) of the Constitution provided for this possibility. The court therefore held that it did not have jurisdiction to examine the application. It appears that the applicant in this case did not complain that his detention had been protracted and therefore unlawful because of its length.
In the case of Elena Bondar (appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075), the applicant challenged the lawfulness of her detention with a view to deportation. The applicant had also brought a recourse under Article 146 of the Constitution before the Supreme Court which was still pending at the time of the examination of her habeas corpus application (recourse no. 1156/2004). In a judgment dated 30 December 2004, the Supreme Court, sitting as a full bench, held that the lawfulness of deportation and detention orders could only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application. The Supreme Court noted that only in the event of the annulment of the deportation and detention orders was an obligation created for the administration to comply and to release the applicant. If the authorities then omitted, or failed, to comply, a habeas corpus application could be brought. It further dismissed the applicant’s claim that the court had jurisdiction in a habeas corpus application because the procedure under Article 146 was time-consuming and could not lead to an immediate order to release the applicant. The applicant in this case did not complain that her detention had been protracted and therefore unlawful because of its length.
(ii) Problems in executing the expulsion decision and challenging the lawfulness of protracted/continuing detention based on deportation and detention orders
(a) The relevant case-law at the material time
On 5 December 1997, in the case of Hawillo v. the Republic (1997, I (C) CLR 1615), the Supreme Court, at first instance (Chrisostomis J), in line with the Commission’s report in the case of Samie Ali v. Switzerland (no. 24881/94, Commission’s report of 26 February 1997), issued a habeas corpus order in favour of the applicant as the authorities’ efforts to deport him had not succeeded. The applicant in this case had been sentenced to fifteen years imprisonment for a bomb attack and had been released on pardon, after serving eight years of that sentence. He had then been detained for the purpose of his deportation but the authorities had not been able to deport him as they had not been able to find a receiving State. The Attorney-General withdrew his initial objection to the application and declared that, in accordance with the Commission’s report in the case of Samie Ali v. Switzerland, the continued detention of the applicant was not justified. The Supreme Court considered that further detention of the applicant was in violation of Article 5 (1) (f) of the Convention and Article 11 (2) (f) of the Constitution.
In the case of Essa Murad Khlaief (habeas corpus application 91/2003, (2003) 1 (C) CLR 1402) the applicant brought a habeas corpus application claiming, inter alia, that detention for the purposes of deportation could not be indefinite and that the Supreme Court could, within the context of a habeas corpus application, examine its lawfulness if it had exceeded a reasonable time. The applicant had also brought a recourse challenging the deportation and detention orders issued against him which was still pending at the time of examination of his habeas corpus application (recourse no. 802/2003). On 14 October 2003 the Supreme Court, at first instance (Hadjihambis J), held that a detainee could challenge the lawfulness of his or her protracted detention for the purpose of deportation through a habeas corpus application. In such an application, the Supreme Court would not examine the lawfulness of the decisions ordering deportation and detention but whether the detention which was initially lawful subsequently became unlawful by exceeding a reasonably permissible length. In deciding whether the detention was excessively long the court would take the specific facts of the case into account. The Supreme Court further held that detention under Article 11 (2) of the Constitution for the purpose of deportation could not possibly be unlimited but was restricted to a reasonable period, taking into account all the circumstances of the deportation execution process. If deportation was not completed within a reasonable time, the grounds for detention would cease to exist. On the facts of the case, the Supreme Court noted that the administration had encountered difficulties in ascertaining the applicant’s identity and the country to which he should be deported. Considering all the circumstances of the case, it held that the applicant’s detention had not been unreasonably lengthy at that stage.
Subsequently, the applicant in the above case brought a second habeas corpus application (Essa Murad Khlaief, habeas corpus application no. 106/2003, (2003) 1 (C) CLR 1521). On 30 October 2003 the Supreme Court, at first instance (Kallis J), dismissed the application on the ground that it did not have jurisdiction to determine the lawfulness of the applicant’s detention through the habeas corpus procedure. The court did not consider it necessary to examine whether it had jurisdiction to examine the lawfulness of the applicant’s protracted detention with a view to deportation as the application would in any event fail, as the authorities had been unable to deport the applicant on account of his refusal to co-operate with them.
In the case of Refaat Barqawi (habeas corpus application no. 131/2003, (2004) 1 (Α) 1), on 12 January 2004 the Supreme Court, at first instance (Artemis J), dismissed the application on jurisdictional and res judicata grounds; res judicata obtaining from successive habeas corpus applications which were based on the same facts without new intervening factors or which raised questions that could have been relied on in the first habeas corpus claim but had not been. The applicant had brought a habeas corpus application earlier (see habeas corpus application no. 105/2003 above). He claimed, however, that he had spent an additional six months in detention since that application had been made. Notwithstanding its findings, the court observed that even if it followed the approach adopted in the case of Essa Murad Khlaief (see habeas corpus application 91/2003 above) the delay in the applicant’s deportation was justified as during that period his asylum application before the UNHCR had been pending. As it had now been rejected, the necessary measures would be taken by the authorities to deport him.
In the case of Emmanuel Oktru (habeas corpus application no. 19/2004, (2004) 1 (Α) 608) the applicant, whose asylum application had been rejected and who had been detained for the purposes of deportation, filed a habeas corpus application seeking his release. He claimed that as the authorities were not able to deport him without a passport or other travel document, the duration of his detention had been excessive and therefore unlawful. In its judgment dated 2 March 2004 the Supreme Court, at first instance (Kallis J), reaffirmed that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders through habeas corpus. It therefore dismissed the application. Notwithstanding the question of jurisdiction, the Supreme Court observed that prolonged detention for the purposes of deportation was reprehensible only when it was attributable to the authorities. In the case in point the authorities had not been responsible. They had not been able to deport the applicant because he did not have a passport or a travel document. The applicant himself was therefore responsible and should not be allowed to benefit from his own failings or omissions. The application could therefore not be accepted.
In the case of Asad Mohammed Rahal (habeas corpus application no. 169/2004, (2004) 3 CLR 741), the applicant sought his release as the examination of his asylum application was still pending. On 26 October 2004 the Supreme Court, at first instance (Kallis J), dismissed the application on the grounds of jurisdiction. Although the question of protracted detention did not arise in the case, the Supreme Court, on appeal, in its judgment given in the recourse brought by the applicant under Article 146 of the Constitution (appeal no. 1023/2004), when referring to the grounds for the dismissal of the applicant’s habeas corpus application, observed that it had been obvious that the length of the applicant’s detention – about two months – had not exceeded what was reasonable and therefore the question of whether there was habeas corpus jurisdiction in that regard could not have arisen in the habeas corpus proceedings.
In the case of Morteza Mollazeinal (habeas corpus application no. 52/2005, (2005) 1 (Β) 994), the applicant claimed, inter alia, that his detention had been unlawful. On 20 July 2005 the Supreme Court, at first instance (Nicolatos J), relying on the full bench’s judgment in the case of Elena Bondar, held that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders. It further noted that the applicant had brought a recourse under Article 146 of the Constitution which was still pending and that judgment had been reserved. The court held that in these circumstances the habeas corpus application constituted an abuse of judicial procedure. As it did not have jurisdiction to consider the validity of the above-mentioned orders and, therefore, the lawfulness of his detention pending deportation, it did not proceed to examine the substance of the application. The court nevertheless observed that the continuing detention of the applicant was due to the fact that there was a recourse pending against the deportation order and that he did not have the necessary travel documents.
A subsequent application, by the same applicant (Morteza Mollazeinal, habeas corpus application 36/2006, (2006) 1 (Α) 641) was also dismissed on 17 July 2006. The Supreme Court, at first instance (Kronides J), reaffirmed that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders. However, with regard to the applicant’s claim concerning the unlawfulness of the allegedly excessive length of his detention, the Supreme Court, taking into account the judgment in the case of Essa Murad Khlaief (see habeas corpus application no. 91/2003 above), held that on the basis of the evidence before it the delay in the deportation had been attributable solely to the applicant, as he had deliberately refused to co-operate with the authorities of his own country in obtaining travel documents. In the circumstances of the case, the Supreme Court concluded that it could not be said that the length of his detention had exceeded what was reasonable.
In the case of Rahim Zadeh Majid Mohammad (habeas corpus application no. 74/2006, (2006) 1 (Β) 1280) the applicant, who had also brought an administrative recourse against the deportation and detention orders issued against him, filed a habeas corpus application seeking his release. He claimed, inter alia, that his detention, which had already lasted over seven months, had become illegal and arbitrary. In a judgment dated 30 November 2006 the Supreme Court, at first instance (Kronides J), dismissed the application. Relying on the judgment in the case of Elena Bondar, it ruled that it did not have jurisdiction to examine the application despite the fact that the recourse procedure was lengthy.
In the case of Karimi Hamed (habeas corpus application no. 11/2007, (2007) 1 (Α) 317), the applicant challenged the lawfulness of his detention owing to the fact that his deportation had not been possible for more than two years following his arrest. The applicant had not brought a recourse against the lawfulness of the deportation and detention orders issued against him. On 9 March 2007, the Supreme Court, at first instance (Kramvis J), dismissed the application. Relying on the judgment in the case of Elena Bondar, it held that the detention order for the purposes of deportation constituted the legal basis for the applicant’s – admittedly lengthy – detention. The order was, however, an act which fell within the ambit of public law. This being so, it could clearly not be examined in the context of the habeas corpus procedure, which came within the sphere of private law. The issuance of a deportation order and a detention order constituted independent administrative acts the lawfulness of which could be examined by the Supreme Court in the context of an administrative recourse brought under Article 146 of the Constitution. The applicant had not, however, brought such a recourse. The court then pointed out that the applicant’s deportation had not been possible because of his refusal to co-operate with the embassy of his country. It was up to the applicant to resolve the problem, either by co-operating with the authorities of his country in order to render his deportation possible or by seeking an annulment of the deportation and detention orders. The case was therefore distinguishable from that of Hawillo.
(b) Subsequent case-law relied on by the applicant
In the case of Shady Al Karazza (habeas corpus application no. 28/2009, (2009) 1 (Α) 549) the applicant sought a habeas corpus order claiming that he was lawfully in Cyprus. The applicant had also filed a recourse against the deportation and detention orders issued against him which was still pending at the time of examination of his habeas corpus application. On 18 May 2009, the Supreme Court, at first instance (Clerides J), dismissed the application. It held that if it could be established that an applicant had not been notified of the detention and deportation orders, his detention would be unlawful and the Supreme Court would have jurisdiction to issue a habeas corpus order. The applicant in this case, however, had been notified of the orders and brought a recourse against them. The Supreme Court did not, therefore, have jurisdiction to deal with the application. The court also considered that in view of the use by the applicant of the remedy provided under Article 146, the filing of the habeas corpus application constituted an abuse of process. Finally, in so far as the arguments of the applicant concerned the excessive duration of his detention, the court observed that his deportation had not been possible because the applicant had not provided the authorities with a passport.
On 2 July 2010, in the case of Mohanna Abbas Moussa (habeas corpus application no. 61/2010), the Supreme Court, at first instance (Clerides J), dismissed the applicant’s habeas corpus application on the ground that it did not have jurisdiction, in view of the judgments in the cases of Refaat Barqawi (see habeas corpus application no. 105/2003 above) and Elena Bondar, to examine the lawfulness of the applicant’s detention as he had been detained pursuant to deportation and detention orders which had not been annulled. It does not appear in this case that the applicant had alleged that his detention had been protracted and therefore unlawful.
In the case of Majid Eazadi (habeas corpus application no. 100/2010), the applicant had been held at the time for a period of about two years and eleven months for the purpose of his deportation, which however, could not take place. The applicant did not have travel documents and refused to co-operate with the embassy of his country so that these could be issued. The applicant claimed that he had been unlawfully detained, relying, in particular, on the conditions of his detention. On 11 October 2010 the Supreme Court, at first instance (Kramvis J), dismissed the application, which it held to be unsubstantiated. It further confirmed its lack of jurisdiction as the applicant was held on the basis of detention and deportation orders.
In the case of Mahsa Hossanzadeh (habeas corpus application no. 103/2010) the applicant succeeded in obtaining a habeas corpus order from the Supreme Court (first instance, Nicolatos J) after establishing that she had not been notified of the deportation and detention orders (judgment of 25 October 2010). No issue of protracted detention was raised in the case.
3. Asylum
The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002 by establishing an Asylum Service within the Migration Department of the Ministry of the Interior. Prior to that, the UNHCR dealt with such claims. Asylum seekers can appeal against decisions of the Asylum Service to the Review Authority for Refugees, which was established by the Refugee Law of 2000 (Law 6 (I) of 2000, as amended).
The decision of the Review Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution of the Republic of Cyprus (see above).
Section 7 of the Refugee Law of 2000, which incorporates Article 31 of the 1951 Convention Relating to the Status of Refugees, states that an asylum seeker shall not be punished solely by reason of his unlawful entry or stay, provided that he presents himself, without unjustified delay, to the authorities and gives reasons for his unlawful entry or stay. According to section 8 (3) of the above law, an asylum seeker who has been granted a temporary residence permit is under obligation to inform the district Immigration Police Departments, within three days, of any change of address. The departments concerned must then inform the Asylum Service and the Director of the Civil Registry and Migration Department of the change. In the event of non-compliance, the file can be closed and the examination of the application discontinued (section 16 (A) (1) (a)).
4. The Civil Wrongs Law (Cap. 148, as amended)
The law of tort provides, inter alia, for actions for damages in respect of false imprisonment, unlawful detention and assault (sections 26, 27, 29, 30 and 44 of the Civil Wrongs Law).
5. Conditions of detention: the Law on the Rights of Persons who are Arrested and Detained
The Law on the Rights of Persons who are Arrested and Detained (Law 163 (I)/2005) introduced a number of provisions regulating the rights and treatment of detainees.
Section 2 of this Law defines as “detained” a person who is arrested by a member of the police and held in a police detention facility when the deprivation of liberty is provided for in sub-paragraphs (b), (c) and (f) of paragraph 2 of Article 11 of the Constitution. The definition includes an accused person and a person detained for the purpose of imposing a sentence.
Section 19 sets out the rights of detainees concerning the treatment they receive in custody and the conditions of their detention. It provides as follows:
“(1) Every detainee has the right:
(a) not to be subjected to torture or inhuman or degrading treatment or punishment or any other physical or psychological or mental violence;
(b) to decent treatment, behaviour and living conditions;
(c) to reside in a cell of reasonable size which provides the basic facilities and conditions of hygiene, sufficient light and ventilation and proper resting equipment;
(2) The State is under obligation to safeguard the rights referred to in paragraph (1).
(3) All persons responsible for a detention facility shall ensure the adequate and appropriate nutrition, physical and mental health, hygiene, safety and physical integrity of the detainees”.
Section 36 (1) gives an actionable right to compensation to those whose rights provided for in the above Law are violated. It provides as follows:
“A person whose right provided for in the present law is violated has an actionable right to damages for the said violation against the State and any member of the police or prison staff or the person in charge of the police detention facility who is responsible for the violation, and has the right to just compensation, irrespective of whether he or she has sustained any actual injury or damage or any pecuniary or other loss resulting from the violation.”
COMPLAINTS
A. Complaints submitted by the applicant in his application form of 15 September 2006
The applicant complained under Articles 2, 3, 5, 7 and 8 of the Convention and Articles 4 of Protocol No. 4 and 1 of Protocol No. 12. He also invoked all the remaining Protocols to the Convention.
In particular, the applicant complained under the above provisions:
(a) about the authorities’ attempts to deport him even though he should have been granted a long-term residence permit;
(b) about his arrest and detention. In this connection the applicant mainly complained that he had not been informed promptly of the reasons for his arrest, and about the protracted length of his detention;
(c) that his detention had deprived him of access to his movable property and contact with his family;
(d) that he had been treated unfairly by the authorities, who he claimed had lied about his not having notified them of his new address, and that he had been subjected to discriminatory treatment; and, lastly,
(e) about the negative psychological effects the whole situation had had on him.
B. Complaints submitted by the applicant in subsequent correspondence
In two letters dated 16 January and 26 February 2007, the applicant complained about the conditions of his detention in Block 10 at the Central Prisons.
C. Complaints submitted by the applicant in his observations of 16 April 2009
The applicant complained under Article 5 § 1 (f) that his detention had been unlawful under domestic law. He alleged that the deportation and detention orders issued against him on 22 February 2005 had been contrary to the provisions of the Refugee Law of 2000 because at all relevant times he had been an asylum seeker.
The applicant further complained under Articles 5 § 4 and 13 of the Convention that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention in a speedy manner. In this connection, he claimed that judicial review proceedings were not speedy enough and that the review of deportation and detention orders provided in these proceedings was insufficient.
Lastly, the applicant complained of a lack of an effective remedy within the meaning of Article 13 in respect of his complaint concerning his deportation.
THE LAW
A. The applicant’s complaint concerning the conditions of his detention
In two letters dated 16 January and 26 February 2007 the applicant complained about the conditions of his detention in Block 10 of the immigration detention facilities at the Central Prisons. The Court communicated this complaint under Article 3 of the Convention to the respondent Government on 7 June 2010, pursuant to Rule 54 § 2 (c) of the Rules of Court. Further, the Court communicated of its own motion a complaint under Article 13 of the Convention concerning the remedies available in domestic law in respect of complaints concerning conditions of detention.
The Government pleaded non-exhaustion as the applicant had not made use of the remedy of a compensatory nature provided for under Section 36 (1) of Law 163 (I)/2005) taken together with Section 19 (1) of that law. In any event, they submitted that the conditions of the applicant’s detention in the Central Prisons had been compatible with Article 3 of the Convention.
In his observations of 14 December 2010, however, the applicant stated that his intention had been to raise his claim concerning his conditions of detention in the context of his complaint under Article 5 § 1 (f) about the lawfulness of his detention. Similarly, the submissions he made in the above observations concerning the effectiveness of the remedy provided for under Law 163(I)/2005 were directed at the alleged ineffectiveness of that remedy as regards the lawfulness of his detention. He therefore submitted that the Court should find a violation of Article 5 § 1 (f) of the Convention taken in conjunction with Article 13.
The Court notes that it is clear from the applicant’s observations of 14 December 2010 that he does not wish to complain about the conditions of his detention as such under Article 3 of the Convention but that he raises this matter in the context of his complaint about the legality of his detention under Article 5 § 1 (f). Therefore, in view of the applicant’s position on this issue, the Court will examine his complaint regarding the conditions of his detention in the context of his complaint under the latter provision. Consequently, the examination of the complaint communicated by the Court under Article 13 in conjunction with Article 3 is not warranted.
B. The applicant’s complaints concerning his arrest and detention
1. The various periods of detention
The Court first observes that the applicant was detained for three separate periods with a view to his deportation:
(i) the first period commenced on 23 August 2001, when the applicant was detained pending deportation after serving his sentence, on the basis of the detention and deportation orders issued against him on 4 July 2001 under section 6(1)(d) of the Aliens and Immigration Law on the ground that he was a prohibited immigrant. It ended on 20 September 2001 when the applicant was released pending the examination of his asylum application.
(ii) the second period commenced on 15 October 2002, when the applicant was detained on the basis of new detention and deportation orders issued against him under section 6(1)(k) of the Aliens and Immigration Law, and ended on 2 December 2002 when the authorities released him to enable him to file a new asylum application.
(iii) the third period of detention commenced with the applicant’s arrest on 21 February 2005. On 22 February 2005 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicant was a prohibited immigrant. The period ended on 23 May 2008 when the authorities revoked the orders and released him.
2. The first and second periods of detention
To the extent that the applicant’s complaints may be taken to relate to the first two periods of detention, the Court observes that they ended with the applicant’s release on 20 September 2001 and 2 December 2002 respectively. As the present application was lodged with the Court on 29 July 2006, these complaints were introduced out of time under the six-month rule laid down in Article 35 § 1 of the Convention and should therefore be declared inadmissible pursuant to Article 35 § 4 of the Convention.
3. The third period of detention
At the outset the Court notes that it has not been contested by the parties that the applicant was detained on the basis of deportation and detention orders issued under the Aliens and Immigration Law, with a view to his deportation. His complaints concerning this period of detention therefore fall to be examined under Article 5 § 1 (f) of the Convention as the applicant was detained “with a view to deportation” within the meaning of that provision. This provision reads as follows, in so far as relevant:
Article 5 §§ 1 (f) (right to liberty and security)
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
(a) The applicant’s complaints concerning the lawfulness of his detention under domestic law - Articles 5 §§ 1 (f), 5 § 4 and 13 of the Convention
The Court notes that the applicant, in his observations of 16 April 2009, introduced a new complaint as to the lawfulness of his detention under domestic law. In particular he claimed that the deportation and detention orders of 22 February 2005 had been contrary to the Refugee Law of 2000. In this connection, he also claimed that a recourse before the Supreme Court under Article 146 of the Constitution was not an effective remedy for challenging the lawfulness of detention with a view to deportation in accordance with Articles 5 § 4 and 13 of the Convention.
The Court observes that the above complaints were first submitted by the applicant in his observations of 16 April 2009, more than one year and eight months after the conclusion of the judicial review proceedings in his case before the Supreme Court and, in any event, nearly one year after his release.
Accordingly, the Court finds that these complaints were not submitted within the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4.
(b) The applicant’s complaint concerning the protracted length of his detention - Article 5 §§ 1 (f)
The applicant complained about the protracted length of his detention pending deportation.
(i) The parties’ submissions
The Government submitted that the applicant’s complaint under this head was inadmissible for non-exhaustion of domestic remedies.
First of all, the Government argued that the applicant should have filed a habeas corpus application with the Supreme Court challenging the lawfulness of his continuing detention. Relying on the Supreme Court’s judgment of 14 October 2003 in the case of Essa Murad Khlaief (see habeas corpus application no. 91/2003 above), they pointed out that the Supreme Court had jurisdiction, in the context of a habeas corpus application, to examine and rule on the lawfulness of a person’s prolonged detention with a view to deportation. In addition, the Supreme Court had the competence to examine habeas corpus applications based on new facts, such as the prolongation of detention. In this connection they referred to the Supreme Court’s judgment in Refaat Barqawi (see habeas corpus application no. 105/2003 above), explaining that although the lawfulness of detention and deportation orders as such could, in view of the Supreme Court’s judgment in the Elena Bondar case, be challenged only by way of a recourse under Article 146 of the Constitution, in the context of habeas corpus proceedings the lawfulness of the detention in terms of its duration could be reviewed and a complainant could secure an order for release. The judgment in the case of Elena Bondar had not in any way overruled or otherwise affected the ruling in the Essa Murad Khlaief case. The case-law relied on by the applicant merely confirmed that the lawfulness of deportation and detention orders per se could be challenged in proceedings brought under Article 146. The Government also referred the Court to a number of first-instance judgments of the Supreme Court in the cases of Emmanuel Oktru (habeas corpus application no. 19/2004), Morteza Mollazeinal, (habeas corpus application no. 36/2006), Rahim Zadeh Majid Mohammad (habeas corpus application no. 74/2006) and Karimi Hamed (habeas corpus application no. 11/2007), all given subsequent to that in the Essa Murad Khlaief case, as well as the earlier judgment in the case of Hawillo v. the Republic (1997, I (C) CLR 1615).
Secondly, the Government argued that the applicant could have contested the lawfulness of his arrest and detention by instituting proceedings against the Republic under the Civil Wrongs Law for false imprisonment. In the context of such an action he could have claimed that his continued deprivation of liberty had been contrary to the Aliens and Immigration Law and in violation of both his Constitutional and his Convention rights. The Government relied on the judgments in the cases of Takis Yiallourou v. Evgenios Nicolaou and Andreas Tsouloupa v. the Attorney-General of the Republic in this connection. With regard to the former case, it emphasised that the judgment of the Supreme Court was not of limited scope and that there was nothing to indicate that it did not apply to complaints of a violation of human rights by the administration.
In the alternative, the Government contended that the complaint was manifestly ill-founded. The applicant had been detained under detention and deportation orders in accordance with the provisions of the Aliens and Immigration Law, the Constitution and the Convention. Although the authorities had been diligent throughout the deportation procedure, they had been prevented from executing the deportation orders by the applicant’s own conduct, namely his refusal to cooperate with the authorities for the purpose of having a travel document issued. The applicant did not have a passport or any other travel document that would allow him to travel. The authorities had made four attempts to deport the applicant but to no avail. All attempts to cooperate and even negotiate with the applicant had failed. Relying on the Court’s decision in the case of Ntumba Kabongo v. Belgium ((dec.), no. 52467/99, 2 June 2005), the Government argued that the applicant could not complain of a situation which he had largely caused. If, indeed, the applicant had had a passport, as he claimed, the authorities would not have needed to make all these efforts to secure his deportation and incur the corresponding expenses. Further, in so far as the judicial review proceedings were concerned, these had lasted for about one year and five months without any periods of inactivity and very few extensions having been granted. Taking into account all the circumstances of the case, including all the obstacles to the applicant’s deportation, and the reasonable length of the proceedings in the recourse, the Government considered that the overall period of detention had been in conformity with Article 5 § 1 (f) of the Convention.
The applicant disagreed with the Government’s admissibility objections. With regard to the question of exhaustion, he claimed that he had exhausted the only remedy which had been available to him by bringing a recourse against the detention and deportation orders issued against him. The Supreme Court, however, had dismissed his recourse and as it had been a judgment by the full bench, no appeal had been possible. The applicant maintained that the other remedies put forward by the Government could not be considered effective remedies for the purpose of Article 35 of the Convention.
First of all, relying on the Supreme Court’s judgment in the case of Elena Bondar, the applicant argued that habeas corpus applications could not be brought in deportation and detention cases. He maintained that this judgment had set aside the judgment in the case of Essa Murad Khlaief (see habeas corpus application no. 91/2003 above). He further relied on the Supreme Court’s judgments in the cases of Morteza Mollazeinal (see habeas corpus application no. 52/2005) and Karimi Hamed. The judgments relied on by the Government in the cases of Hawillo, Essa Murad Khlaief, Refaat Barqawi and Emmanuel Oktru had been given by the Supreme Court before it had decided on the Elena Bondar case. Consequently, it was the applicant’s position that the only remedy available in such cases was a recourse under Article 146 of the Constitution. In any event, it was clear from the approach adopted in the Essa Murad Khlaief case and subsequently in the cases of Morteza Mollazeinal (see habeas corpus application no. 36/2006) and Karimi Hamed that the period of detention would not be examined where deportation could not materialise as a result of an applicant’s unwillingness to co-operate with the authorities. Further, the Attorney-General’s stance in habeas corpus applications relating to detention on the basis of deportation and detention orders had changed since the Hawillo case. The Attorney-General now raised a preliminary objection as to the jurisdiction of the Supreme Court in the proceedings. In addition, relying on the more recent judgments of the Supreme Court in the cases of Shady Al Karazza, Majid Eazadi, Mohanna Abbas Moussa and Mahsa Hossanzadeh, the applicant submitted that the Supreme Court would only accept to examine the lawfulness of detention for the purpose of deportation where it had been established that the deportation and detention orders had not been properly communicated to the applicant.
Moreover, although a civil action for false imprisonment was possible in theory, such an action would not be effective, as the Government would have an acceptable defence that the applicant was detained in accordance with the law, that is, on the basis of the detention and deportation orders. The judgment in the case of Takis Yiallourou v. Evgenios Nicolaou had to be read in the light of the provisions of Article 146 of the Constitution. It only concerned human rights violations which did not relate to an act, decision or omission of the administration. It could only constitute a possible remedy in cases where the Supreme Court had declared the act of the administration void and the victim had not been satisfied with the measures taken by the administration to comply with the judgment annulling the act.
In so far as the well-foundedness of his complaint was concerned, the applicant submitted that his detention had not been in accordance with domestic law. In particular, the deportation and detention orders that had been issued against him on 22 February 2005, had been contrary to the provisions of the Refugee Law of 2000 because at all relevant times the applicant had been an asylum seeker. He emphasised that the substance of his asylum claim had never been examined. Even assuming, however, that his detention had been compatible with the domestic law, it had ceased to be so because of its excessive duration. The applicant considered that, unlike in the case of Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996 V), the length of detention in his case could not be justified on the basis of any exceptional circumstances and had never been linked to judicial review proceedings at regular intervals. The authorities had not shown due diligence as they had continued to attempt to deport the applicant even though he did not have travel documents. The authorities had had other means to deal with the applicant. For example, as he could not be deported, they could have granted him temporary residence status on humanitarian grounds pursuant to the Refugee Law. His case was clearly distinguishable from that of Ntumba Kabongo (cited above) relied on by the Government. In the instant case the authorities had acted in bad faith because of the applicant’s only failure to report his change of address immediately to the immigration police. They had also tried to deport him whilst aware that they could not do so in the absence of travel documents.
Lastly, the applicant emphasised that when examining the lawfulness of his detention between 21 February 2005 and 23 May 2008 in the various police detention facilities, the Court should take into account the conditions in which he had been kept. In this connection, he submitted that he had been detained in inhuman and degrading conditions in facilities designed for detention amounting to a few days and not for such a long period of time.
(ii) The Court’s assessment
In view of the Government’s plea of non-exhaustion of domestic remedies, the Court will first examine this question.
The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid.). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV, and Aksoy v. Turkey, 18 December 1996, § 51, Reports 1996-VI).
Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Dalia v. France, 19 February 1998, § 38, Reports 1998-I). In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX). The issue whether domestic remedies have been exhausted shall normally be determined by reference to the date when the application was lodged with the Court. This rule is however subject to exceptions which might be justified by the specific circumstances of each case (see, for example, Baumann v. France, no. 33592/96, § 47, 22 May 2001; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; and Mariën v. Belgium (dec.), no. 46046/99, 24 June 2004).
Turning to the case before it, the Court observes that at the time the applicant introduced his application before the Court (2006) and until his release from detention on 23 May 2008, the question whether the remedy of habeas corpus could be sought by a detainee challenging the lawfulness of his or her detention for the purpose of deportation because of its protracted length had not been decided by the Supreme Court on appeal. The issue did not arise in the case of Elena Bondar, in which the claimant had challenged the lawfulness of her detention with a view to deportation as such and not on the grounds of protracted length. Therefore, the Supreme Court’s ruling in that case appears, as the Government maintain, to have been confined to the finding that the lawfulness of detention and deportation orders per se could be examined by the Supreme Court only in the context of a recourse brought under Article 146 of the Constitution, notwithstanding the time-consuming nature of such a recourse. All the relevant judgments concerning the matter were taken at first instance, no appeal ever having been lodged in the case, and they do not convincingly show that there was a uniform approach on the matter of habeas corpus jurisdiction in such cases, particularly in the interpretation of the judgment in the Elena Bondar case. The subsequent judgments relied on by the applicant are also of first instance and not conclusive. As to whether the detention was rendered unlawful because of its length, it is evident from the case-law that this is a question to be examined on a case-by-case basis taking into account the particular circumstances of the case.
While, given the above, there was no certainty that a habeas corpus application would have succeeded at the material time, the Convention’s case-law establishes that where there is doubt as to the prospects of success in a particular case, it should be submitted to the domestic courts for resolution. This is particularly so in a common-law system since, where the courts extend and develop principles through case-law, it is generally incumbent on an aggrieved individual to allow the domestic courts the opportunity to develop existing rights by way of interpretation (see, for example, Upton v. the United Kingdom, (dec.), no. 29800/004, 11 April 2006; Martin v. the United Kingdom, (dec.), no. 63608/00, 27 March 2003; Chiori v. the United Kingdom (dec.), no. 44926/98, 4 May 1999; and Earl Spencer and Countess Spencer v. the United Kingdom, nos. 28851/95 and 28852/95, Commission decision of 16 January 1998).
The Court therefore, bearing in mind the information before it, considers that it was open to the applicant at the material time to lodge a habeas corpus application challenging the lawfulness of his continuing detention in terms of its length. Although doubts remain as to the outcome of such an application in view of the case-law at the time, these are not in the Court’s opinion such as to warrant the conclusion that such an application would have been ineffective or insufficient, but rather that the matter should have been put before the Supreme Court for consideration, both at first instance and, if necessary, on appeal. It is not for the Court to speculate what the outcome of a habeas corpus application would have been in the applicant’s case.
Lastly, the Court notes that the applicant has not pointed to any special circumstances absolving him from the requirement to have availed himself of this remedy.
In the light of the above, the Court finds that it is not necessary to consider the effectiveness of the remaining remedy advanced by the Government.
Accordingly, the Court concludes that this part of the application must be rejected under Article 35 §§ 1 and 35 § 4 of the Convention for non-exhaustion of domestic remedies.
(c) The applicant’s complaint concerning the reasons for his arrest and detention - Article 5 § 2 of the Convention
The applicant argued that he had not been informed promptly of the reasons for his arrest and detention.
The Court notes that the applicant’s complaint falls to be examined under Article 5 § 2 of the Convention, which provides as follows:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly” (in French: “dans le plus court délai”), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, mutatis mutandis, Murray v. the United Kingdom, 28 October 1994, § 72, Series A no. 300-A). Further, as regards the manner of communicating to a person the reasons for his arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form (see X v. Germany, no. 8098/77, Commission decision of 13 December 1978, Decisions and Reports (DR) 16, p. 111). When a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, §§ 143-144, 19 November 2009, with further references; Ryabikin v. Russia (dec.), no. 8320/04, 10 April 2007; and K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230).
In the present case the applicant was arrested on 21 February 2005. The Government submitted that the applicant had been arrested on account of his illegal presence in Cyprus, after verification of his personal details. The applicant claimed that the police had accused him of trying to hide from the Cypriot authorities and of changing address without informing them, and that it was only upon his arrest that he had become aware of the fact that his asylum file had been closed. The Court, in these circumstances, has no reason to doubt that the applicant was informed at the time that he had been arrested for being unlawfully present in Cyprus or that he at least understood that the reason for his arrest and detention related to immigration irregularities. The deportation and detention orders were issued against him on 22 February 2005, that is the day following his arrest, and, although before this Court he argues otherwise, in his written address before the Supreme Court the applicant accepted that he had been informed on that date by the police of those orders.
In such circumstances, the Court is satisfied that the requirements of Article 5 § 2 of the Convention were complied with. It follows that the applicant’s complaint under this provision is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected in accordance with Article 35 § 4.
C. The remainder of the applicant’s complaints
The applicant submitted a number of complaints under Articles 2, 3, 7, 8 and 13 of the Convention and Articles 4 of Protocol No. 4 and 1 of Protocol No. 12. He also invoked all the remaining Protocols to the Convention.
First of all, in so far as the applicant complains about the fact that the authorities have not granted him a long-term residence permit and have refused to grant him asylum, it is the Court’s well-established position that Contracting States have the right to control the entry, residence and expulsion of aliens. The right to asylum is not protected in either the Convention or its Protocols. Furthermore, the Convention does not, as such, guarantee the right of a foreign national to enter or reside in a given country.
Accordingly, these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.
Secondly, in so far as the applicant can be taken to invoke Articles 2 and 3 of the Convention with regard to his intended deportation on the basis of the deportation orders issued on 22 February 2005, the Court observes first and foremost that the applicant has not complained before this Court that his deportation would expose him to any danger in Sierra Leone. Although he had raised this argument before the Asylum Service, his file had been closed and his appeal to have it reopened dismissed. The applicant did not bring a recourse against those decisions. The Court further takes note of the UNHCR’s conclusion in the applicant’s earlier asylum application to that organisation and the fact that his appeal against that decision had also been rejected on the ground that, although in his interview the applicant had claimed initially that he was a national of Sierra Leone, he subsequently stated that he was a Malian national. In any event, the applicant has not submitted any evidence before this Court showing that there are substantial grounds for believing that he would be exposed to a real risk of being ill-treated or killed, contrary to Articles 2 or 3 of the Convention, if he were to be deported to Sierra Leone.
It follows that this complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected in accordance with Article 35 § 4.
In the absence of an arguable complaint that his rights under Articles 2 and 3 have been breached, the applicant’s complaint under Article 13 in this regard must also be rejected as being manifestly ill-founded in application of Articles 35 §§ 3 (a) and 4.
Thirdly, the Court notes that the applicant’s complaint concerning the alleged unfairness of the decisions of the domestic authorities on his asylum application and his deportation fall to be examined under Article 6 of the Convention. The Court notes, however, that proceedings and decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations, or of a criminal charge, within the meaning of that provision (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 82, ECHR 2005 I, and Maaouia v. France [GC], no 39652/98, § 40, ECHR 2000-X).
Consequently, Article 6 is not applicable and this complaint is incompatible ratione materiae with the provisions of the Convention.
Lastly, the Court finds, after careful examination of the file, that the applicant’s remaining complaints under the Convention and its Protocols do not disclose any appearance of a violation of the rights or freedoms set out therein.
It follows that this part of the applications is manifestly ill-founded and must be rejected pursuant to Articles 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina Vajić
Registrar President