ECtHR - H.S. and Others v. Cyprus (Application no. 41753/10), 21 July 2015

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Country of Applicant: 
Syria
Date of Decision: 
21-07-2015
Citation: 
H.S. and Others v. Cyprus (Application no. 41753/10), 21 July 2015
Court Name: 
European Court of Human Rights Fourth Section
Headnote: 

The case follows on from litigation presented in M.A. v Cyprus and focuses in on the legal grounds for detention in Cyprus for an applicant who is subject to removal as well as an individual’s right to speedy judicial review of the lawfulness of detention. 

Facts: 

The case originates in fourteen separate applications for asylum lodged in Cyprus by Syrian nationals of Kurdish origin and two stateless Kurds. In all of the cases the Cypriot Asylum Service found the accounts to be either unsubstantiated, lacking credibility or, on the respective facts, insufficient to establish a real risk of persecution. Where appeals were submitted to the Reviewing Authority they were all dismissed with the exception of several applications whereby the negative response of the Asylum Service was not communicated to the applicants and thus the appeal deadlines were not complied with.

In 2010 a group of Kurds from Syria, including the applicants to the present case, demonstrated close to governmental buildings concerning the restrictive asylum policies of the Cypriot Government. Following complaints of the insalubrious conditions within the protestors’ encampment the Cypriot government removed all protesters, detained them, subsequently arresting the applicants and issuing them with deportation orders. The grounds for deportation in each of the orders related to illegal entry and illegal stay. The applicants claimed that they had not received these orders but were in fact informed orally of their deportation. Following the lifting of a stay on removal, which was previously granted by a Rule 39 request, the applicants were deported back to Syria and in the majority of cases subject to imprisonment, torture and ill-treatment upon return.

In all of the cases the applicants complained of a violation of Article 3, Article 13 read in conjunction with Article 3 as well as Article 5 para 1, 2 and 4 and Article 4 of Protocol 4. 

Decision & Reasoning: 

Article 3 and Article 13 read in conjunction with Article 3

Turning first to the issue of an alleged violation of Article 3 and 13 read in conjunction with 3 the Court split the applicants into two groups confirming that the first group had not exhausted all effective domestic remedies [258]. Noting that the asylum procedures in Cyprus allow for an appeal to the Reviewing Authority, which is suspensive, the Court highlighted that the applicants had either not attended scheduled interviews with the Asylum Service, or had not filed an appeal against the rejected decisions to the Reviewing Authority.  

With regards to the second group of applicants the Court focuses specifically on the alleged violation of Article 3 in the event of expulsion, advancing that there is no need to examine the exhaustion of domestic remedies and the lack of an effective remedy as the threshold of Article 3 had, in effect, not been met [267]. The Court, referencing Hilal v. the United Kingdom - notably that the treatment complained of must reach a minimum level of severity - went on to find that “at the relevant time there was no indication that the general situation in Syria for Kurds was so serious that the return of the applicants would constitute, in itself, a violation of Article 3 of the Convention” [275]. In contrast to Sufi and Elmi, then, the general situation, including the discrimination of Kurds in Syria, was not sufficient in its nature or intensity to reach a violation of Article 3.  Additionally and with reference to the Cypriot authorities reasoning in its decisions, the Court noted that the applicants’ claims were carefully examined by the Asylum Service and Reviewing Authority. Indeed, the applicants had failed to establish that there were substantial grounds for believing that they would be exposed to a real risk of treatment contrary to Article 3 ECHR. The Court therefore found that claims under Article 3 and 13 of the ECHR were manifestly ill-founded [281-283].

Article 5 para 1

With regards to Article 5 para 1 of the Convention the Court noted that given the analogous factual situation with the present case and M.A v Cyprus a violation of this provision had similarly occurred in the applicants transfer and stay in the ERU headquarters, principally because this stay amounted to a de facto deprivation of liberty without the clear legal basis which Article 5 para 1 requires.  With regards to the detention based on the given deportation orders the Court again split the applicants into two groups finding that in the first case, there had been a legal base in domestic law for the applicants’ detention and that the detention period did not exceed what was reasonably required. Indeed, despite the stay on removal granted by the Rule 39 interim measure the Court found that following its lifting the applicants were promptly deported (in September) without any unjustified delays or inaction on the part of the Cypriot authorities [313-316]. Thus Article 5 para 1 had not been violated on these specific grounds for these particular litigants. However,  the Court found that the second group of applicants who were deported in December 2010 had been subject to detention for an unjustified prolonged period in which the authorities had not demonstrated the requisite due diligence in order to end the detention as reasonably as possible [320-323]. Conversely to the first group, then, the Court found a violation of Article 5 para 1.

Article 5 para 2 and 4 and Article 4 Protocol 4

Lastly, with regards to Article 5 para 4 the Court found that the facts and arguments were identical to those raised in MA v Cyprus in which the Court agreed that a violation of the provision had occurred. Conversely with regards to Article 5 para 2 and Article 4 Protocol 4 the Court, as in MA v Cyprus, declined to accede to the litigants’ arguments, rejecting that a violation had occurred on these grounds. 

Outcome: 

Violation of Article 5 para 4, Article 5 of 1 of the Convention in so far as the applicants’ arrest and detention on 11 June 2010 following their transfer to and stay at the ERU headquarters is concerned and violation of Article 5 para 1 for those applicants who were not deported to Syria until December. 

Observations/Comments: 

On the same day as this case was handed down the Court gave judgment in A.H. and J.K. v. Cyprus and K.F. v. Cyprus which raised identical facts and argumentation. The Court in both cases found the same violations of Article 5 para 1 and 4 and rejected the other grounds, also advanced in this case.

Case Law Cited: 

ECtHR - Mannai v. Italy, Application no. 9961/10

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Hilal v United Kingdom, Application no. 45276/99

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)

ECtHR - Raza v. Bulgaria, Application No. 31465/08

ECtHR - Boyle and Rice v. the United Kingdom, Application Nos. 9659/82 and 9658/82

ECtHR - N. v. Finland, Application No. 38885/02

ECtHR - M.E. v. Denmark, Application no. 58363/10

ECtHR - Matsiukhina and Matsiukhin v. Sweden, Application No. 31260/04

ECtHR - Keshmiri v. Turkey (no. 2), Application No. 22426/10 (UP)

Vučković and others v. Serbia (no. 17153/11)

ECtHR - IS.P. v. Belgium, Application No 12572/08

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09

A and M. v. the Netherlands, Application no. 50386/12
Other sources cited: 

United Kingdom Border Agency’s Country of Origin Information Report on Syria of 3 September 2010.

Human Rights Watch, “A Wasted Decade: Human Rights in Syria during Basharal-Asad’s First Ten Years in Power.

Landinfo published on 16 June 2010 “Kurds in Syria: Groups at risk and reactions against political activists

 Austrian Red Cross and the Danish Immigration Service on human rights issues concerning Kurds in Syria published in May 2010

Information and Refugee Board of Canada, 1 May 2008, “the Syrian government’s attitude towards, and its treatment of, citizens who have made refugee or asylum claims, particularly when the claim was made in Canada or the United States

Danish Immigration Service published in April 2007 “Syria: Kurds -Honour killings and illegal departure”.

Chatham House of January 2006 “The Syrian Kurds: A People Discovered

Canadian section of Amnesty International in January 2004, dealing with the risk on return to Syria

Human Rights Watch: “Syria: the Silenced Kurds”, dated 1 October 1996.

 

Authentic Language: 
English
State Party: 
Cyprus
National / Other Legislative Provisions: 
Cyprus - Refugee Law 6 (I)/2000
Cyprus - 16 A of the Refugee Law (Amending Law 9(I)/2004