Cyprus - Supreme Court, Nessim v Republic of Cyprus, 24 August 2016, No 66/2016

Country of Decision:
Country of Applicant:
Date of Decision:
24-08-2016
Citation:
Malak Shawkik Farak Nessim v Republic of Cyprus, Application No 66/2016
Court Name:
Supreme Court of Cyprus
Keywords:
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Cyprus - Article 18ΠΣΤ Cypriot Aliens Law
Cyprus - Article 11(2) Cypriot Constitution
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Headnote: 

An order renewing detention for the purpose of removal must be given in writing and provide reasons for prolonging detention, notwithstanding whether the maximum time limit under the Return Directive has been reached or not at the time of the decision.

Facts: 

The applicant, an Egyptian national, arrived in Cyprus on 18 February 2011 with a work permit, and applied for asylum on 31 October 2011. His application was rejected on 14 February 2012 for failure to appear before the authorities, and on the same day he successfully requested his case to be re-opened. The request was again rejected, and an administrative appeal was also dismissed on 19 April 2016 by the Refugee Reviewing Authority.

From the moment of his arrest, on 2 March 2016, the applicant’s detention was prolonged on 28 April 2016 by a decision of the Ministry of Interior concerning 31 individuals, and subsequently on 30 June 2016 i.e. three days following the complaint before the Supreme Court. The applicant contended that the decision of 28 April 2016 did not contain reasons for the prolongation of his detention. The Republic of Cyprus submitted that the 6-month maximum time limit for detention had not lapsed at the time.

Decision & Reasoning: 

The Supreme Court recalled that detention for the purpose of removal must be as short as possible and should be applied only insofar as return proceedings are carried out with due diligence. Every detention order must be made in writing and state reasons for detention in fact and law. The Court explained that the time limit provided by the Return Directive does not aim to restrict the rights enshrined in Article 5(1)(f) ECHR, but only to specify the time periods for which a person could be held in detention. The Court recalled that both the CJEU and Cypriot case law have ruled on cases where detention did not exceed the maximum time limit.

On the facts, the decision prolonging detention did not concretely refer to the individual case of the applicant; on the contrary, according to written instructions provided in April 2016, the applicant’s removal was suspended due to allegations of abuse against him by police officials. Accordingly, since detention was prolonged without due motivation and for reasons unrelated to the execution of removal, the order was not justified under Article 18ΠΣΤ of the Cypriot Aliens Law.

Outcome: 

Application granted.

Immediate release ordered.

Other sources cited: 

Council of Europe Twenty Guiding Principles on the expulsion of aliens, 4 May 2005

Council of Europe Resolution 1707 (2010): Detention of asylum seekers and irregular migrants in Europe

Case Law Cited: 

Cyprus - Fasel, Application 236/2015, 31 March 2016

Cyprus - Habib Pour Fasel, Application 92/2015, 3 August 2015

Cyprus - Santos Koho Malisawa, Application 32/2015, 9 April 2015

Cyprus - Matry, Application 139/2013, 30 July 2013

Cyprus - Ajith Priyantha Jediowita Liyanage, Application 58/2013, 19 April 2013

Cyprus - Naser Ibrahim Abou (2012) 1 ΑΑΔ 2764

Cyprus - Guo Shuying (2012) 1 ΑΑΔ 2725

Cyprus - Hussam Mustfa (2012) 1 ΑΑΔ 1623

UK - Court of Appeal of England and Wales: R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804

UK - Lumba v Secretary of State for the Home Department [2011] UKSC 12

R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704

ECtHR - Al Nashif v. Bulgaria, Application No. 50963/99