ECtHR - M.A. v Cyprus, Application No. 41872/10

Article 13 in conjunction with Articles 2 and 3:

The European Court of Human Rights indicated that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39.

The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. The Court pointed out that the deportation and detention orders were obviously based on a mistake committed by the authorities and that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention.

The Court found a violation of Article 13 of the Convention due to the lack of remedy with automatic suspensive effect against a deportation order. The orders against the applicant continued to remain in force for more than two months during which the re-examination of his asylum claim was still taking place. No effective domestic judicial remedy was available to counter this error. Moreover, the Court noted in this respect the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time.

Article 5 § 1:

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.

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.

Article 5 § 4:

The Court reiterated that under Article 5 § 4 of the Convention domestic remedies must be sufficiently certain and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings.

The Court found that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention, and concluded that there has been a violation of Article 5 § 4 of the Convention.