ECtHR Thuo v. Cyprus (no. 3869/07)

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Country of Applicant: 
Kenya
Date of Decision: 
04-04-2017
Citation: 
ECtHR, Thuo v. Cyprus (no. 3869/07), 4 April 2017
Court Name: 
European Court of Human Rights (Third Section)
Relevant Legislative Provisions: 
Headnote: 

Lack of prompt investigation of ill-treatment complaints may amount to a procedural violation of Article 3 ECHR. Detention conditions should follow certain standards and individuals should be kept in suitable establishments with enough allocated space.

Facts: 

The Applicant is a Kenyan national who entered Cyprus irregularly and was subsequently arrested while attempting to fly with a forged passport to London. After being placed in immigration detention and deported, Mr. Thuo lodged complaints with the domestic authorities describing in detail the ill-treatment inflicted on him during deportation and complaining about the detention’s conditions.

After substantial delays in the investigation, independent authorities dismissed the complaints holding that the use of force by the officers did not exceed the levels of necessity for the aforementioned purposes; therefore no criminal or disciplinary action was taken against them. As a result, Mr. Thuo complained before the ECtHR that the conditions of his detention, the ill-treatment during deportation and the inefficiency of the Government to investigate his allegations in good time amounted to a violation of Article 3 ECHR.

Decision & Reasoning: 

The Court held that there had been a violation of Article 3 ECHR under its procedural limb due to the ineffective investigation of the Applicant’s complaint of ill-treatment by the authorities. Responding to the Government’s assertion that the applicant did not submit a timely complaint, the Court accepted that such a delay could have a negative impact on the investigation but concluded that there is no evidence that the delay hindered the establishment of the truth. In addition, the authorities did not raise any issue with regard to the delay being an obstacle to the investigation. The Government’s argument that the investigation was complicated due to practical difficulties relating to the applicant being aboard was also dismissed, as the Court found that this did not absolve the State’s responsibility to conduct a prompt investigation whereas internal failures of communication could not justify the delay of the procedure.

However, the Court held that there had been no violation of Article 3 ECHR under its substantive limb during the deportation procedure because of lack of evidence able to prove ill-treatment beyond reasonable doubt owing to the authorities’ failure to investigate effectively the Applicant’s complaint. Furthermore, even though the Court did not question the originality of the medical report provided by the applicant it was found deficient in substantiating every allegation.

Lastly, the Court held that there had been a violation of Article 3 ECHR triggered by the conditions of the Applicant’s detention in Nicosia Central Prisons. Taking into consideration the Ombudsman’s report on the inherent unsuitability of the detention facilities and the particular circumstances of the Applicant’s detention, the Court found that the space allocated to him along with the detention’s duration amounted to degrading treatment. In this context, the Court stressed that derogations regarding space allocated to the detainees may amount to a violation of Article 3 ECHR and can only be permitted if they are temporary and freedom of movement outside the cell is granted.

 

Outcome: 

Application partially granted.

Lack of prompt investigation triggered violation of Article 3 under its procedural limb. No violation of Article 3 ECHR during the deportation process. Immigration detention conditions amounted to violation of Article 3 ECHR

 

Observations/Comments: 

The Court criticized the investigation’s deficiencies pointing out in particular that the investigator did not bring both parties in contact in order to elucidate the ill-treatment allegation, no explanation of the dissimilitude of the officer’s statements in the preliminary and main investigation was given and no attempt to clarify the details of the ill-treatment was made either. Additionally, the Court found that even though the officers’ statements were blurry and sometimes even untrue the investigation authority completely relied on their testimony and concluded that the applicant was a self-serving person with ulterior motives, whereas the use of force was deemed necessary without any proportionality assessment.

This case summary was completed by Odyssefs Platonas, LLM Student at Queen Mary University.

Case Law Cited: 

Muršić v. Croatia [GC], no. 7334/13, 20 October 2016

Kleutin v. Ukraine, no. 5911/05, 23 June 2016

Seagal v. Cyprus, no. 50756/13, 26 April 2016

Aleksandr Smirnov v. Ukraine, no. 38683/06, 15 July 2010

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

ECtHR - Bouyid v. Belgium, Application no. 23380/09

ECtHR - Efremidze v. Greece, Application No. 33225/08

ECtHR - Gäfgen v Germany (2008) (Application no. 22978/05)
Other sources cited: 

2005 Ombudsman’s report

2008 CPT’s report

2012 CPT’s report

Independent Authority for the Investigation of Allegation and Complaints against the Police - investigation

 

Authentic Language: 
English
State Party: 
Cyprus
National / Other Legislative Provisions: 
Cypriot Aliens and Immigration Law section 14
Cypriot Aliens and Immigration Law section 6(1)(d)
Cypriot Aliens and Immigration Law Regulation 19
Law 9(I)/2006
Law 100 (I) 2007 sections 3(1) (2)
5(1) (2) (b) (3)
14(1)(3)
15(4) (5)(6) (8)
16(1)(b)(i)-(iv)