ECtHR - Kahadawa Arachchige and Others v. Cyprus (Application nos. 16870/11, 16874/11 and 16879/11), 19 June 2018

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Country of Applicant: 
Sri Lanka
Date of Decision: 
19-06-2018
Citation: 
Kahadawa Arachchige and Others v. Cyprus (Application nos. 16870/11, 16874/11 and 16879/11), 19 June 2018
Court Name: 
European Court of Human Rights (Third Section)
Keywords: 
Headnote: 

The detention of three Sri Lankan nationals on grounds of public order before their removal from Cyprus was found to be lawful by the Court. However, the Court found that the applicants did not have at their disposal an effective remedy by which they could challenge the lawfulness of their detention, in violation of Article 5(4) ECHR.

Facts: 

This case concerned three Sri Lankan nationals who were deported from Cyprus in January 2011 after being detained for taking part in clashes with a group of other Sri Lankans. They denied taking part in the disturbance. They were held in detention for five to seven days before being deported.

The applicants complained that their detention with a view to their deportation had been unlawful and therefore in breach of Article 5(1) and that they did not have an effective remedy to challenge their detention, in violation of Article 13 of the Convention.

Furthermore, the first applicant complained of a violation of the right to respect for his private and family life under Article 8, and the lack of an effective remedy under Article 13 in this respect.

Lastly, the first and second applicants alleged that they had been deported without being informed about the deportation decision and without any procedural safeguards, in breach of Article 1 of Protocol No. 7.

Decision & Reasoning: 

First, the Court noted that Cypriot law allows for the possibility of detention with a view to deportation on the grounds of public order and unlawful stay, as was the case of the applicants. Based on the facts of this case, the ECtHR ruled that the applicants’ detention had a legal basis in domestic law and was ordered in accordance with that procedure. There was no indication of a lack of diligence from the part of the national authorities or concerns regarding the detention conditions. Therefore, the ECtHR found that there has been no violation of Article 5(1) ECHR.

Second, the Cypriot government accepted that, in the light of the ECtHR’s judgment in M.A. v. Cyprus, recourse proceedings under Article 146 of the Cypriot Constitution were ineffective for the purposes of Article 5(4) ECHR, as they did not comply with the requirement of “speediness”. Therefore, the Court found that the applicants did not have at their disposal an effective remedy by which they could challenge the lawfulness of their detention, in violation of Article 5(4) ECHR.

Finally, the ECtHR ruled the applicants’ complaint under Article 1 of Protocol No. 7 inadmissible ratione materiae, as they were no longer “lawfully resident” in Cyprus at the time of the decision.

Outcome: 

The Court declared the complaints concerning Article 5 (1) and (4) admissible, and the remainder of the applications inadmissible.

It found that there had been no violation of Article 5 (1 ) but that there was a violation of Article 5(4).

Case Law Cited: 

ECtHR - Sharma v. Latvia, no. 28026/05, 24 March 2016

ECtHR - Udeh v. Switzerland, no12020/09

ECtHR - Boultif v Switzerland, Application No. 54273/00

ECtHR - Bajsultanov v Austria, Application No. 54131/10

ECtHR - Olsson v. Sweden (no 1), Application No. 10465/83

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

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - Nikolova v. Bulgaria [GC], Application No. 31195/96

ECtHR - Hatton v UK [GC], Application No. 36022/97

ECtHR - Nacic and others v Sweden, Application no. 16567/10

ECtHR- Nunez v. Norway, Application No. 55597/09

ECtHR - Nowak v. Ukraine, no. 60846/10, § 79, 31 March 2011

ECtHR - Berdzenishvili and Others v. Russia, nos 14594/07

ECtHR - Silver and Others v United Kingdom (application no. 6205/73), 25 March 1983, Series A no. 61

ECtHR - Sunday Times v the United Kingdom, 6 November 1980, Series A no. 38

ECtHR - Kurić and Others v. Slovenia [GC], Application no. 26828/06, 31 May 2007

ECtHR - Abbasi v. Cyprus (dec.), no. 21713/06, 5 July 2007

ECtHR - Mawaka v. the Netherlands, no. 29031/04, 1 June 2010

ECtHR - F.A.K. v. the Netherlands (dec.), no. 30112/09, 23 October 2012

ECtHR - El Morabit v. the Netherlands (dec.), no. 46897/07, 18 May 2010

ECtHR - Athanassoglou and Others v. Switzerland [GC], no. 27644/95, ECHR 2000-IV

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)
Other sources cited: 

Cyprus - Qureshi Aqeel Ahmed v. the Republic (2006) 3 C.L.R. 537

Cyrpus - Maria-Bella A. Mabello v. the Republic of Cyprus (2003) 4 C.L.R. 344

The Explanatory Report to Protocol No. 7 (ETS No. 117) defines the scope of application of Article 1 of Protocol No. 7.

 

 

Authentic Language: 
English
State Party: 
Cyprus
National / Other Legislative Provisions: 
Cyprus - The Aliens and Immigration Law (Cap. 105): section 6(1)
section 6(2)
section 6(3)
section 13
section 14
Section 18
Section 19
Cyprus - Aliens and Immigration Regulations of 1972: Regulations 9(4)
Regulation 19
Cyprus - Constitution of the Republic of Cyprus: Article 146(1)