European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

M.A. v. Cyprus - 41872/10

Judgment 23.7.2013 See: [2013] ECHR 717 [Section IV]

Article 5

Article 5-1

Deprivation of liberty

Transfer and stay at police headquarters of a group of immigrants with a view to identifying and deporting unlawful residents: violation

 

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. Early one morning 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.

Law - Articles 2 and 3: The applicant had been granted refugee status and was no longer at risk of deportation to Syria and could therefore not claim to be a victim of violations of his rights under those Articles.

Conclusion: inadmissible (incompatible ratione personae).

Article 13 in conjunction with Articles 2 and 3: The applicant’s complaints under Articles 2 and 3 had been arguable, so he could rely on Article 13. Although the decision to grant him refugee status had removed the risk that he would be deported, it had not acknowledged and afforded redress for his claim that the judicial-review proceedings were ineffective. He could therefore still claim to be a “victim” in respect of that complaint.

Where a complaint suggested that an applicant’s expulsion might expose him or her to a real risk of treatment contrary to Articles 2 or 3, an effective remedy had to be such as to prevent the execution of measures that were contrary to the Convention and whose effects were potentially irreversible; this required close scrutiny by a national authority, a particularly prompt response and automatic suspensive effect. At the time the deportation and detention orders were issued, the applicant’s file was under consideration by the asylum service and such proceedings were, under the domestic law, suspensive in nature. The applicant had thus been lawfully in Cyprus and should not have been subject to deportation. Nonetheless the deportation order had remained in place for several months while the asylum proceedings were still pending, and the only reason he had not been deported to Syria was because Rule 39 had been applied. As admitted by the Government, that situation had arisen as a result of an error by the authorities. No effective domestic judicial remedy had been available to counter that error. Moreover, there had been a lack of effective safeguards to protect the applicant from wrongful deportation. In particular, recourse to the Supreme Court for annulment of a deportation order and an application for a provisional order to suspend deportation did not have automatic suspensive effect. In so far as the Government had argued that the latter remedy was suspensive “in practice”, the requirements of Article 13 and other provisions of the Convention took the form of guarantees and not mere statements of intent or practical arrangements. In sum, the applicant had not had an effective remedy in relation to his complaint under Articles 2 and 3.

Conclusion: violation (unanimously).

(See in this connection Gebremedhin [Gaberamadhien] v. France, no. 25389/05, 26 April 2007, Information Note 96; and De Souza Ribeiro v. France [GC], no. 22689/07, 13 December 2012, Information Note 158)

Article 5 § 1: In order to evaluate the lawfulness of the applicant’s detention, the Court identified three distinct stages.

First, regarding his transfer to the police headquarters, the protesters had been left with little choice but to board the buses and remain at the headquarters. 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.

Second, 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.

Conclusion: violation (unanimously).

(See Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, 15 March 2012, Information Note 150; and Medvedyev and Others v. France [GC], no. 3394/03, 29 March 2010, Information Note 128).

Article 4 of Protocol No. 4: All the persons concerned had had an individual examination of their personal circumstances. In particular, their asylum applications had been dealt with on an individual basis over a period of more than five years. Those who had appealed had had their appeals individually examined and dismissed. Separate letters had been sent by the asylum authorities to the persons concerned informing them of the relevant decisions. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders had been issued in respect of each person. Individual letters had also been prepared informing the persons detained of the authorities’ decision to detain and deport them. The fact that the protesters, including the applicant, had been taken together to the police headquarters, that some had been deported in groups, or that deportation orders and letters had been phrased in similar terms and therefore had not specifically referred to the asylum decisions, was not itself indicative of a collective measure within the meaning attributed to that term by the Court’s case-law. Although a mistake had been made in relation to the status of some of the persons concerned, including the applicant, that fact, while unfortunate, could not be taken as showing that there had been a collective expulsion.

Conclusion: no violation (unanimously).

The Court also found no violation of Article 5 § 2 and a violation of Article 5 § 4 (speediness of review).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

 

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