Cyprus – District Court of Famagusta, 14 November 2016, Case No: 2073/2016

Country of Decision:
Country of Applicant:
Date of Decision:
14-11-2016
Citation:
Police Chief of Famagusta v.Seyed Ramtin Salehi, 2073/2016, 14/11/2016
Court Name:
District Court of Famagusta (Meeting in Paralimni) (Before: A.Pantazi, Ε.Δ.)
Keywords:
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008
National / Other Legislative Provisions:
Cyprus - Aliens and Immigration Law
Cyprus - Aliens and Immigration Law - § 6(1)(k)
Cyprus - Constitution of the Republic of Cyprus - Art. 146
Cyprus - Constitution of the Republic of Cyprus - Art. 188(3)
Cyprus – Refugee Law N.6(I)/2000 – Art. 7
Cyprus - Regulation 19 of the Aliens and Immigration Regulations of 1972 (ΚΔΠ 242/1972)
Cyprus – Refugee Law N.6(I)/2000 – Art. 8
Cyprus – Refugee Law N.6(I)/2000 – Art. 3
Printer-friendly versionPrinter-friendly version
Headnote: 

The Defendant faced two charges, that of a ‘prohibited immigrant’ and of illegally entering the Republic of Cyprus, whilst at the same time he had applied for asylum. With the aid of effective legal representation, he was found not guilty on both charges. 

Facts: 

The Defendant, Mr Salehi, was born on 15/02/1994 and was a citizen of the Islamic Republic of Iran. In 2004, the Defendant, then 11 years old, reached Cyprus together with his family (his father, mother and younger sister) legally as a visitor. Two days later, his father filed for asylum, which was later refused on 29/04/2005. His father then appealed the decision at the Authority for Reviews & Appeals, which was dismissed on 27/06/2006. The father was informed of the unsuccessful appeal and received an explanatory letter issued on the same date. The family never left Cyprus and was spotted around December 2012 residing in the Larnaca area. The father was arrested and Detention and Expulsion orders were issued for the whole family, pursuant to art. 14 of the Aliens and Immigration Law, Chapter 105, and art. 188(3) of the Constitution. The father was removed on 25/01/2013 and the rest of the family on 18/01/2013.

The Defendant returned to the occupied area of Cyprus in July 2016, and on 10/08/2016 he reached the free areas, where he presented himself to the Aliens and Immigration Service of Famagusta, requesting for permission to stay. The Defendant was then informed by an employee (the only witness called by the Prosecution) that he was registered in the system as a ‘prohibited immigrant’ on account of his previous expulsion and was arrested on scene. On 12/08/2016, he applied for asylum whilst in detention.

The charges faced by the Defendant before the District Court of Famagusta were:

1)  Prohibited immigrant in violation of articles 2, 4, 6(1)(θ)(ι), 18 and 19(2) of the Aliens and Immigration Law, Chapter 105, as amended by Law 50/88, and 14(I)/98, and Κ.Δ.Π. 242/72 and Law 66(I)/2003.

2) Entry to the Republic of Cyprus without the permission of the Director of the Department of Immigration in violation of art. 12(2)(5) of the Aliens and Immigration Law, Chapter 105, Law 50/88 and Law 43/74 and Law 166/87 and Law 66(I)/2003.

For Mr. Salehi’s defence, his defence lawyer relied on the legal basis of the Convention on the Status of Refugees 1951 (Geneva Convention) (particularly art. 1, para 2 and art. 31), the Refugee Law, N.6 (I)/2000 (particularly art. 3 and 7), the Directive 2008/115/EC, as incorporated into the Cypriot legal system by the Aliens and Immigration Law, Chapter 105, as amended (art. 18ΟΔ, 18ΟΘ, 18ΠΓ, 18ΠΔ), and art. 3 of the European Convention on Human Rights, and case-law of the EU Court of Justice.

Decision & Reasoning: 

Since this is a criminal case, the burden of proof is entirely borne by the Prosecution. In order to obtain the conviction of the Defendant, the Prosecution has to prove his guilt beyond all reasonable doubt. References to events and facts without supporting evidence are vulnerable to be dismissed, however legitimate these references may be (Loizou v. Police (1989) 2ΑΑΔ 363).

In regards to the first charge, of the prohibited immigrant, after the Court examined the evidence presented by the Prosecution, it was proven that the Defendant had indeed been the subject of expulsion in the past. Nevertheless, the Expulsion orders did not specify the duration of the ban of entry and it remains unknown whether the Defendant had signed the Orders related to him, or if he was even aware that he was listed as a prohibited immigrant in the ‘Stoplist’ system. The Court determined that the Prosecution did not prove that the Defendant had been informed in the past of the decision to list him as a prohibited immigrant and of the specific duration of his ban of entry (see art. 18ΟΘ of the Aliens and Immigration Law, Chapter 105, for the «appropriate duration»). The Court highlighted that a previous decision of the Authority for Reviews & Appeals (Court refers here to the father’s unsuccessful appeal) to reject an asylum seeker’s appeal does not in itself constitute a decision to declare that person a prohibited immigrant(art. 18ΟΔ of the Aliens and Immigration Law, Chapter 105). It merely relates to that Authority’s decision to dismiss an appeal for an asylum claim, which only marks the beginning of that person’s illegal stay in Cyprus. The Court was not satisfied beyond all reasonable doubt that the Defendant was aware of his status as a prohibited immigrant when he returned to Cyprus.

In regards to the second charge, of illegal entry, the Court examined art. 7 of Refugee Law N. 6(1)/2000 (that incorporates art. 31 of the Geneva Convention 1951), which was relied on by the defence lawyer, as the legal basis for Mr. Salehi’s defence. Art. 7(1) reads as follows: «An asylum seeker, who enters or has entered the Republic illegally, is not liable to punishment on account of his illegal entry or stay, provided that he presents himself without undue delay to the authorities and explains his reasons for his illegal entry or stay»(see Nepana Wilesinge (2004) 2 ΑΑΔ 560).The Court then explained that the Defendant is not required, at this stage, to prove beyond all reasonable doubt that he satisfies the requirements of refugee status. Since his asylum claim is still pending, he is merely required to show to the Court that he has adequate reasons and evidence to support his claim that he falls within the definition of a refugee as defined in art. 1 of the Geneva Convention 1951. In the above statement presented by the Defendant, he explains that he filed for asylum two days after he willfully presented himself to the authorities. He describes how, before his removal, he had lived a significant part of his life in Cyprus and had become an active member of the Cypriot society. Additionally, he claims to have adopted Christianity very soon after his arrival, and that he spoke very good Greek since he only had Cypriot friends and had studied from primary school till high school in Greek institutions. His knowledge of Farsi/Persian was limited and was not able to read the language at all. His removal to Iran in 2013 was particularly challenging not simply because he did not have strong ties to the Iranian community, but also because he was constantly the victim of persecution on account of his new religion from professors and other students at school, from the police, and even in the street. The Defendant reminded the Court in his written statement that it is widely known that in Iran, people who change religion, from being Muslim to being Christian, face persecution from authorities since the change of religion is considered a criminal offence, which is sometimes punished with the death penalty. For the aforementioned reasons, the Defendant filed for asylum.

The Defendant was then tested in the Greek language through reading specific passages, but since there was not even a need to request a Greek-to-Iranian interpreter of the court proceedings, the Court was entirely satisfied with the credibility of the Defendant’s assertions in his statement (testimony). It was determined that the evidence provided by the Defendant was adequate and the burden of proof now switched to the Prosecution to prove beyond all reasonable doubt that the Defendant is not a refugee (Regina v. Koshi Pitshou Mateta etc [2013] EWCA Crim 1372). The Prosecution did not refute the Defendant’s allegations.

Finally, the Court re-examined the written statement (particularly the part relating to the Defendant’s travel from Iran to Cyprus without in-between, long stays in another country, and the fact that he presented himself to the authorities promptly after his arrival), an extract of a UNHCR publication (that the defence lawyer read to the Court), and the publication The Cost of Faith, Persecution of Christian Protestants and Convents in Iran. It was then concluded that the Defendant satisfies the conditions of art. 7 of Refugee Law (and art. 31 of the Geneva Convention) and is not liable to punishment on account of his illegal entry in the Republic of Cyprus. The Court then stated that even if the first charge, relating to his status as a prohibited immigrant, were to have a valid base at a second instance, this particular Court would still not find it right nor just to impose penalties on an asylum seeker that satisfies the conditions of art. 7. 

Outcome: 

The Defendant was found not guilty on both charges.

Observations/Comments: 

This case is important as it constitutes a very good example of the application of art. 7 Refugee Law N. 6(1)/2000 (incorporating art. 31 of Geneva Convention 1951), which states that an asylum seeker should not be punished on account of his illegal entry or stay, with the condition that he presents himself promptly to the authorities and provides a justification for that illegal entry or stay. More specifically, Seyed Ramtin Salehi had been listed as a ‘prohibited immigrant’ on account of his previous expulsion, which entails that pursuant to art. 19(2) of the Alien and Immigration Law, Chapter 105, he is guilty of a criminal offence and is subject to imprisonment for a period that does not exceed 3 years or to a fine which does not exceed 5,000 pounds or to both imprisonment and a fine. The significant differing fact of this particular case is that in addition to Mr. Salehi being listed as a prohibited immigrant, he lodged an asylum claim, and therefore satisfied the conditions of art. 7. With the aid of effective legal representation, he managed to use art. 7 as the legal basis for his defence.

This case summary was written by Nafsika Vasileiadou, a LLM student at Queen Mary University, London.

This case summary was proof read by Hermione Barelier, MBA and GDL graduate, BPP University Law School.

Other sources cited: 

Art. 2(5) of the Schengen Borders Code

International Campaign for Human Rights in Iran, The Cost of Faith, Persecution of Christian Protestants and Convents in Iran.

Case Law Cited: 

UK - R v. Afshaw [2006] EWCA Crim 707

Cyprus - Youssef v. Δημοκρατίας (1993) 2 Α.Α.Δ. 289

UK - R v Uxbridge MC ex p Adimi [2001] QB 667

Cyprus - Αgathokleous Haralambos and other v. Police (2001) 2 Α.Α.Δ. 316

Cyprus - Theoharous v. Republic of Cyprus (2008) 2 Α.Α.Δ. 22

Cyprus - Vrakas & Another v. Republic of Cyrpus(1973) 2 C.L.R. 139

Cyprus - Anastasiades v. Republic of Cyprus (1977) 2 C.L.R. 97

Cyprus - Ioannou κ.ά. v. Republic of Cyprus (2001) 2 Α.Α.Δ. 195

Cyprus - Dimosthenous and other v. Police (1998) 2 Α.Α.Δ. 129

Cyprus - Mavrikiou v. Police (2007) 2 Α.Α.Δ. 359

Cyprus - Georgiou v. Republic of Cyprus (2010) 2 Α.Α.Δ. 354

Cyprus - Loizou v. Police (1989) 2 ΑΑΔ 363

Cyprus - Faisal Madadal v. Δημοκρατίας, Υπόθεση αρ. 534/2005, 24/01/2007

UK - Regina v. Koshi Pitshou Mateta etc [2013] EWCA Crim 1372

Cyprus - Criminal case number αρ. 9921/2010, Pafos Chief of Ploce v. Cristian Aruxandei

Cyprus - Appeal number αρ. 77/15, MD YOUSUF ALI v. Republic of Cyprus, through social worker for immigration of the Interior Ministry, case number . 2052/06 Vakhtang Odikadze v. Republic of Cyprus, 08/08.2008

Cyprus - Theano Themistokleous and others vRepublic of Cyprus (2007) 3 ΑΑΔ 415

Cyprus - Theano Themistokleous and others vRepublic of Cyprus (2007) 3 ΑΑΔ 415

Cyprus - Case number. 555/15 Matondo Adam v. Director of Population and Migration Database

Cyprus - Soufi Karim, 28/04/2011, Asghar v.Republic of Cyprus,case number. 762/2011, 20/06/2011

Cyprus - Nalani Ranasignhe Rupassarage v.Republic of Cyprus, through the Director of Population and Migration Database

Cyprus - Civil Appeal 236/15, Habibi Pour Ali Fasel v Republic of Cyprus through 1. Chief of Police and 2. Ministry of Interior

Cyprus - Asad Mohammed Rahal v Republic of Cyprus and others (2004) 3 Α.Α.Δ. 741

Cyprus - Napana Wilesinge (2004) 2 Α.Α.Δ. 560