CASE OF M.A. AND Z.R. v. CYPRUS

THIRD SECTION

CASE OF M.A. AND Z.R. v. CYPRUS

(Application no. 39090/20)

JUDGMENT

STRASBOURG

8 October 2024

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of M.A. and Z.R. v. Cyprus,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

 Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 39090/20) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Syrian nationals, Mr M.A. and Mr Z.R. (“the applicants”), on 7 September 2020;

the decision to give notice to the Cypriot Government (“the Government”) of the complaints concerning Articles 3, 5 §§ 1 and 4, and 13 of the Convention, as well as Article 4 of Protocol No. 4 to the Convention;

the decision not to have the applicants’ names disclosed;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the non-governmental organisations (NGOs) EuroMeds Rights, KISA and the Human Rights Centre at Ghent University which were granted leave to intervene by the President of the Section;

Having deliberated in private on 10 September 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns alleged violations of Articles 3, 5 and 13 of the Convention and of Article 4 of Protocol No. 4 to the Convention on account of the Syrian applicants’ interception at sea by the Cypriot authorities and their summary return to Lebanon.

THE FACTS

2.  The applicants are Syrian nationals who were born in 1983 in Idlib. Information dating from 20 January 2023 indicated that they were then living in Lebanon. The applicants were represented by Ms N. Charalambidou, a lawyer practising in Nicosia.

3.  The Government were represented by their Agent, Mr G. L. Savvides, Attorney General of the Republic of Cyprus.

4.  The facts are disputed. The parties’ accounts are as follows.

5.  The applicants are cousins. On 1 January 2016 they fled Idlib, Syria, because of the war, the targeting of civilians and the destruction of their homes and went to Lebanon. The first applicant was followed by his family, while the second applicant’s family remained in Syria and intended to join him only after he had reached and settled at a safe country with good living conditions.

6.  In Lebanon the applicants were accommodated in camps run by the Office of the United Nations High Commissioner for Refugees (the UNHCR) where the living conditions were highly unsatisfactory, with no access to healthcare and no prospect of obtaining employment as they had no documentation, and they were not entitled to basic rights. Throughout their stay in Lebanon, they were afraid of being returned to Syria as Lebanon had started removing Syrians following a popular outcry against refugees. The situation worsened following an explosion in Beirut on 4 August 2020.

7.  The applicants decided to seek asylum in Cyprus, where the first applicant’s brother was already living and had sought international protection. The applicants paid 2,500 United States dollars (USD) each to a smuggler to take them to Cyprus.

8.  On 6 September 2020 the applicants boarded a boat for Cyprus, along with a group of approximately thirty Syrian and Lebanese people including unaccompanied minors.

9.  On 7 September 2020 on arrival in the territorial waters of the Republic of Cyprus, their boat was intercepted by the Cypriot coastguard. There was a Syrian person on their boat who spoke Greek and an interpreter on the coastguard’s boat. The applicants were provided with some food at that point, but they were not allowed to proceed with their journey. The interpreter, having asked them where they came from, told them that no one would be allowed to enter Cyprus and that they should return to Lebanon, or the police would escort them and take them back. At that point, the applicants informed the interpreter that they wished to apply for asylum, explaining that they were Syrians, their house had been destroyed in the war and that they had children and families to take care of. The interpreter explained that there was a new law in Cyprus under which refugees were not allowed to disembark. The applicants said that everyone on the boat had informed the interpreter that they could not go back to Lebanon. Nobody asked the applicants about the reasons they wanted to go to Cyprus or why they could not return to Lebanon. Even when they shouted that they wanted asylum, they were ignored. At that point, the applicants managed to communicate with their relatives in Cyprus and informed them that they had not been allowed to enter Cyprus. The only reaction of the authorities had been to take their identity cards.

10.  On 8 September 2020 the applicants were tricked into thinking that they would be led ashore. Instead, they were forced to board another boat, on which there were police officers and other migrants who had also tried to enter Cyprus by boat and were also being returned to Lebanon.

11.  On their arrival in Lebanon, they were handed over to the Lebanese police, who arrested and interrogated them and then let them go.

12.  The applicants continue to live in Lebanon, where they are both registered with the UNHCR. The first applicant’s residence permit expired on 13 May 2021 while the second applicant’s residence permit expired on 2 August 2020. Following their removal from Cyprus to Lebanon they were unable to renew their residence permits because their documents had been withheld by the General Security Office, they had been unable to find a sponsor (such as an employer or college) and they lacked the means to pay USD 200 for the renewal of their residence permits.

13.  The applicants, who are Syrian nationals, were part of a group of about thirty individuals, including unaccompanied minors, who left Lebanon aboard a wooden boat with the aim of reaching Cyprus.

14.  In the early hours of 5 September 2020, when the boat was ten nautical miles from the southeast coast of Cyprus, the Port and Marine Police, who were on board the inflatable Astrapi 32, intercepted the applicants’ boat. A person on the applicants’ boat who spoke Greek informed the police that the persons on board had left Lebanon for Cyprus on 3 September 2020. The police responded that the passengers would not be allowed to disembark but provided them with the water, dry food and thermal protection equipment that was available on the Astrapi 32.

15.  On 6 September 2020 at 10.20 a.m. members of the Port and Marine Police and Arabic interpreters approached the applicants’ boat and gave them food. Food and water were provided twice a day. A member of the Aliens and Immigration Police, M.S., interviewed the people on the boat with the assistance of an interpreter, R.G. The migrants informed M.S. that they were going to Cyprus to find work because living conditions in Lebanon were hard. None of the persons on board had expressed a wish to seek asylum in Cyprus and they did not react when the interpreter explained that they might be returned to Lebanon.

16.  On 7 September 2020 members of the Port and Marine Police gave the applicants and the other boat passengers food and water and, in the presence of a nurse, took the measures necessary to protect life on board. Those in need of medical treatment were transferred to Famagusta General Hospital and were returned to the boat following examination.

17.  On the same day, the police performed a background check on the persons on the wooden boat and it appeared that none of them was on the list of those who were prohibited from entering Cyprus for security reasons. It was further ascertained that none of the persons on board had any sort of permit or other legal documents allowing them to enter Cyprus. Their return to Lebanon was therefore decided on the basis of a bilateral agreement between the two countries (see paragraph 30 below).

18.  Throughout this time, a larger coast patrol vessel, Onisillos, remained in the area to ensure the safety of the boat, monitor the health of the migrants, provide them with food and water and prevent them from entering the territorial waters of the Republic of Cyprus.

19.  On 8 September 2020 the Republic of Cyprus chartered a ship, the Salone, under the Cypriot flag to transfer the occupants of the intercepted boat to Lebanon. At 11.30 a.m. the Cypriot ship approached the applicants’ boat along with police officers, interpreters, and nurses. The migrants voluntarily entered the Cypriot ship. They were provided with food, water, face masks and antiseptic ointments. Their personal details, including travel documents, names, identity cards, and nationalities, were registered and they were each asked again, one by one, whether they wished to apply for asylum, but they all replied in the negative. The journey to Lebanon lasted twelve hours. The Salone was equipped with food, water, baby milk, nappies, and cleaning material. To ensure the safety of the persons on board, the Cypriot ship was accompanied by another coastal patrol vessel.

20.  On their return to the port of Lebanon, the applicants were handed over to the Lebanese authorities and the UNHCR, in the presence of medical officers.

21.  On the evening of 7 September 2020, the Court received a request under Rule 39 of the Rules of Court from Mrs Nicoletta Charalambidou, the lawyer currently representing the applicants, informing the Court that relatives of the applicants, who had managed to contact them briefly and only once at 2 p.m. (Cyprus time) that day because the mobile phone signal was very weak at sea had told her that the Cypriot authorities were refusing them entry to Cyprus and had informed them that they would be returned to Lebanon. The Court was asked to apply interim measures asking the Government not to return the applicants to Lebanon as that would be contrary to international refugee law because it would constitute returning them to a country where they might be refouled to Syria, and asking the Government to allow the applicants to enter the Republic of Cyprus so as to claim asylum.

22.  On 8 September 2020 the lawyer was informed that the request under Rule 39 had not been supported by evidence and could not be examined by a judge without, inter alia, information establishing the applicants’ identities and personal circumstances. By the time the lawyer replied, at 2.37 p.m. the same day, the applicants had boarded a boat which had already left the Cypriot port. The duty judge of the Court wished to obtain further information and adjourned the examination of the request.

23.  On 9 September 2020 the Government replied that the applicants had entered the territorial waters of Cyprus without permission on 7 September 2020; that they had not requested international protection; that they had been returned to Lebanon; and that it had not been open to them to apply for international protection at the Embassy and consulates of Cyprus in Lebanon. The above information was forwarded to the applicants who replied on 10 September 2020, when the Court decided not to indicate the interim measure sought to the Government given that the applicants had returned to Lebanon.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

24.  The entry, residence and expulsion of aliens in Cyprus are regulated by the Aliens and Immigration Law (“the Law”).

25.  According to section 6(1) of the Law, a person is not permitted to enter the Republic of Cyprus if he or she is a “prohibited immigrant”. That category includes:

(i) any person who enters or resides in the country in contravention of any prohibition, condition, restriction or limitation in the Law or in any permit granted or issued under the Law (section 6(1)(κ));

(ii) any person who has been deported from the country on the basis of either the Law or any other legislation in force at the time of his or her deportation (section 6(1)(θ)); and

(iii) any alien who wishes to enter the Republic as an immigrant but who does not have in his or her possession an immigration permit granted in accordance with the relevant regulations (section 6(1)(λ)).

26.  Section 12(1) of the Law provides that no person can enter or leave the Republic of Cyprus except through an approved port. Under section 12(2) any person entering the Republic of Cyprus by sea may not disembark without the consent of an immigration officer and a medical officer and the master of the ship must not allow any such person to disembark without the officers’ consent.

27.  Under section 14 of the Law, a Senior Immigration Officer may direct the removal of any foreigner whom he or she considers to be a prohibited immigrant.

28.  At the relevant time, section 2 of the Refugee Law provided the following definitions:

“‘applicant’ means a third country national or stateless person who has submitted an application for international protection and that status applies for the period from the date of submission of the application until a final decision is taken in relation to that application; the term ‘applicant’ includes a minor;

‘making’ in relation to an application, means the expression, to an appropriate body, of the desire of a third-country national or stateless person to apply for international protection; the term “submit” is interpreted accordingly;

‘lodging’ in relation to an application means the lodging of a written application; ...

‘appropriate officer’ means an officer of the Asylum Service who has received special training in matters of asylum and supplementary protection; ...”

29.  Section 11 of the Refugee Law is entitled “Making, registering and lodging an application” and provides, where relevant, as follows:

“(1) The application should be addressed to the Asylum Service.

(2)(α) The application should be made within the Republic of Cyprus, to the relevant immigration office ... If the applicant is not in a position to make [his/her] application in writing, [he/she] is allowed to make the application orally to the officer at the place of making the application, who will record the application on a form to be decided by the [Head of the Asylum Service]. The officer at the place where the application is made must register the application at the latest within three working days after the application is made and must refer the application to the Asylum Service for examination.

(β) If the application is made to authorities which may receive such applications but are not the appropriate authority for the place where the application is made under subsection (α) or for the registration of the application under subsection (α), those authorities must ensure that the application is registered no later than six working days after it is made.

(3) The Minister must ensure that the authorities referred to in paragraph 2(β) ... are informed of their duties and receive the level of training required to perform their duties and responsibilities, and that they are instructed to inform applicants about where and how to submit applications.

...”

30.  On 19 July 2002 Cyprus and Lebanon signed a bilateral agreement on the readmission of persons entering or remaining unlawfully in the territory of the two states (“the Bilateral Agreement”) to control the flow of irregular migrants between those countries.

31.  On 15 May 2008 the two countries signed an Additional Protocol setting out operational and technical arrangements for readmission procedures (“the Additional Protocol”).

32.  The Bilateral Agreement and the Additional Protocol were ratified by Law no. 17(I)/2009 and entered into force on 11 December 2009.

33.  Article 2 of the Bilateral Agreement, headed ‘Readmission in the case of third-country nationals who entered via the external border’, provides:

“1. The contracting party via whose external frontier a person can be proved or reasonably assumed to have entered who does not meet or who no longer meets the conditions in force for entry or residence of the territory of the requesting contracting party shall readmit the person at the request of the requesting contracting party and without any formalities.

2. ...”

34.  Article 11 of the Bilateral Agreement provides that:

“This agreement shall in no way affect the Contracting Parties’ rights and obligations arising from: (1) the Convention of 28 July 1951 on the Status of Refugees as amended by the Protocol of 31 January 1967 on the Status of Refugees; ... (3) the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms; (4) international conventions on asylum.”

35.  Article 13 of the Bilateral Agreement provides that it was concluded for an indefinite period.

36.  Article 2 of the Additional Protocol to the Bilateral Agreement provides for forms that contracting parties should use for the readmission to the other country of persons illegally entering and/or staying in their territory. The first form is headed “request for the readmission of a person (Annex I)” and the second “record of the return/readmission of a person (Annex II)”. The first form requires, inter alia, the personal details of the person to be re‑admitted, information on the circumstances of entry into the transferring State and evidence of or the grounds for presuming illegal entry, and information on any applications made to the appropriate authorities of the requesting State by the transferee, including any application for the recognition of refugee status or claim for asylum.

37.  The domestic case-law concerning civil claims for violations of human rights as submitted by the Government was summarised in Irodotou v. Cyprus, no. 16783/20, § 30-33, 23 May 2023.

38.  The Government submitted with their observations a letter dated 31 August 2017 from the Ministry of the Interior. The letter was addressed to the consulates of the Republic of Cyprus and gave revised and updated information about the suspension of the issuing of entry visas to Syrian nationals. The Ministry proposed that entry visas would be granted to the following groups:

(i) Syrians who lawfully reside in states other than Syria. It should be strictly verified that the [applicants are] beyond reasonable doubt “good faith visitors” (reason for travel to Cyprus, proof of lawful residence in a third country, place of stay in Cyprus, reservation of a return flight ticket, a bank guarantee, proof of family, business, property and other ties confirming the traveller will return, proof of sufficient financial means etc),

(ii) Syrians who ... are “family members” of EU citizens ...

(iii) Syrians who are ... “family members” of Cypriot citizens ...

(iv) Syrians who own property in Cyprus or are exercising business or investing activities in Cyprus ...

(v) Syrian businessmen wishing to visit Cyprus for business activities ...

(vi) Syrian scientists or members of missions wishing to visit Cyprus to participate in conferences ...”

The letter specified that the embassies and consulates were responsible for the consideration, approval, or rejection of applications by Syrian nationals on the basis of the applicable law, but that they could request additional information and documents when considering applications, without being restricted to those suggested in the letter.

39.  The Government also produced a second letter from the Ministry of the Interior and dated 30 September 2022 which said that following the Beirut explosion of 2020 and certain general difficulties that had been encountered, the Ministry of the Interior had decided to grant entry visas to Lebanese and Syrian nationals when they arrived in Cyprus. That letter said that this practice was applied until January 2021.

40.  In a report of 8 January 2021 on the United Nations Peacekeeping Force in Cyprus (‘UNFICYP’) entitled ‘United Nations operation in Cyprus’ the Secretary General of the United Nations made the following observations about developments between 19 June and 18 December 2020:

“32. After a lull between February and May, arrivals of irregular migrants, refugees and asylum seekers to the island resumed and increased steadily from June onwards, linked, inter alia, to the degradation of the situation in Lebanon and the Syrian Arab Republic. ...

33. At the same time, there was a notable increase in the number of boats carrying asylum seekers arriving in Cyprus, from both Lebanon and Turkey. Nine such boats made their way to the south from Lebanon between August and September, carrying a total of 202 persons. In addition, 243 persons aboard six boats who had also left Lebanon were either pushed back on the high seas by the Republic of Cyprus or, for those who had reached its shores, deported to Lebanon without having been granted access to asylum procedures. There were a further 13 failed attempts of boats trying to reach the island from Lebanon, including one instance of a boat rescued by the United Nations Interim Force in Lebanon (UNIFIL) after having spent seven days at sea. In that particular incident, despite the intervention of UNIFIL, three persons lost their lives, including, a young child, while 14 were lost at sea. ...”

41.  In a letter of 10 March 2021 to the Minister of the Interior of Cyprus, Mr Nicos Nouris, the Council of Europe Commissioner for Human Rights made the following observations:

“As Council of Europe Commissioner for Human Rights, in the framework of my monitoring of member states’ human rights obligations, I have received a number of reports indicating that boats carrying migrants, including persons who may be in need of international protection, have been prevented from disembarking in Cyprus, and summarily returned, sometimes violently, without any possibility for their passengers to access the asylum procedure. I should like to underline that when persons at the border are returned without individual identification or procedure, member states cannot establish whether they may be sending them back to human rights abuses. This may lead to violations of Article 3 of the European Convention on Human Rights (ECHR) and the UN Refugee convention. Moreover, collective expulsions of migrants are prohibited under Article 4 of Protocol 4 to the ECHR and as such, cannot be tolerated. I urge the Cypriot authorities to ensure that independent and effective investigations are carried out into allegations of push backs and of ill-treatment by members of security forces in the context of such operation...”

42.  In his reply of 16 March 2021, the Minister of the Interior of Cyprus made the following observations:

“Concerning the readmission of boat arrivals from Lebanon, which it is mentioned in your letter it should be mentioned that during the first 8 days of September 2020 Cyprus was facing a new trend regarding irregular arrivals of migrants on the island. Specifically, 10 vessels departed from Lebanon, which totally transferred 347 irregular migrants to Cyprus. Consequently, it was rapidly decided to initiate negotiations with Lebanon and was agreed that 6 out of the 10 vessels carrying Lebanese nationals should be returned to Lebanon. Taking into consideration and respecting the provisions of the relevant EU and international law, Cyprus authorities prevented the irregular entry into Cyprus of Lebanese migrants that did not request international protection and managed to return them with safety to Lebanon. It should be noted that 24 nationals of Lebanon were disembarked due to the fact that they applied for international protection.

Furthermore, it is worth mentioning that during 2020, a total of 682 Syrian and Lebanese migrants arrived irregularly on the island or were detected at the sea borders attempting to disembark irregularly. In particular 472 migrants landed on the island, out of which 400 of them were Syrian nationals and 72 Lebanese. 210 Lebanese nationals who had been detected at the sea borders, returned to Lebanon since they stated that their destination was not Cyprus, but Italy.”

43.  In “Cyprus: Asylum Seekers Summarily Returned – Pushbacks Against Surge of Arrivals by Boat from Lebanon” published on 29 September 2020, Human Rights Watch reported that Cypriot coastguard forces had summarily pushed back, abandoned, expelled or returned more than 200 migrants, refugees and asylum seekers coming from Lebanon during the first week of September 2020 without giving them the opportunity to make asylum claims.

44.  Human Rights Watch also reported interviewing fifteen Lebanese and Syrian nationals who had embarked at Tripoli in Lebanon and entered or attempted to enter Cyprus or its territorial waters on one of seven boats between 29 August and 7 September 2020, along with a survivor from another boat that had left Lebanon on 7 September 2020 and had not encountered the Cypriot authorities. United Nations peacekeepers in Lebanon had rescued them on 14 September 2020, after at least thirteen people on that boat had died or been lost at sea. It confirmed that all migrants who had had an encounter with the Cypriot authorities had said that they had pleaded not to be returned to Lebanon – and some had explicitly claimed asylum – but they had not been allowed to make asylum claims. The report added that according to the migrants the Cypriot coastguard had transferred some people onto civilian passenger vessels guarded by the marine police and taken them directly back to Lebanon.

45.  The same report cited an interview published on 13 September 2020 in the daily national newspaper Kathimerini Cyprus with Mrs Katja Saha, a UNHCR Cyprus representative, stating the following:

“UNHCR supports the efforts by Cypriot authorities to return those who are not found to be in need of international protection, but only after a formal and individual assessment of their asylum claim if they seek asylum. ... The practice of pushbacks of boats is contrary to international law, and those wishing to seek asylum must be admitted to the territory at least on a temporary basis to examine their asylum claims. ... UNHCR does not have information on the reasons that prompted those on board the recent boat arrivals to travel to Cyprus and does not know whether they were migrants or asylum seekers. An individual assessment is always necessary, and it cannot be done at high seas.”

46.  A report entitled “Country Report: Cyprus – 2020 update” was published on the Asylum Information Database (AIDA), which is coordinated by the European Council on Refugees and Exiles. The report makes the following observations concerning “pushbacks” at sea:

“In 2020, the Cypriot authorities, for the first time, carried out pushbacks of boats carrying mainly Syrians, Lebanese and Palestinians who had departed from Turkey or Lebanon. In total 9 push backs were carried with one more attempt to push-back a boat in December 2020, but due to damages the boat was eventually rescued.

...

In June 2020, the second pushback took place with a boat carrying 30 people. The boat was intercepted by the coast guard which remained in the area until the boat headed toward the north. The third pushback took place in July with a boat carrying 10 Syrians. Once again, the boat was intercepted by the coast guard and eventually it headed to the north. People from the third boat were later reported to have crossed from the north through unguarded sections of the “green-line” and were found in Pournara First Reception Centre.

In August and September 2020, 9 boats from Lebanon carrying 202 persons reached the [Republic of Cyprus]. During the same period, another 6 boats with approximately 243 persons left Lebanon and attempted to reach Cyprus. However, they were pushed back or deported to Lebanon after being taken to shore due to damages in the boats but were not given access to asylum procedures. Following the request for interim measures by the NGO KISA, the European Court of Human Rights requested information from the Cypriot government.

There were other reported attempts of boats trying to reach Cyprus from Lebanon, but these were unsuccessful. One such boat was rescued by UNFIL after being at sea for 7 days and 3 persons lost their lives, including a young child, while 14 remained missing at sea.”

47.  In its report on human rights practices in Cyprus in 2020 published on 30 March 2021, the US Department of State observed as follows:

“Refoulement: On March 20, marine police directed a boat carrying 115 Syrians to leave Republic of Cyprus territorial waters and return to Syria. Authorities cited COVID-related entry restrictions as the justification. The boat eventually capsized in waters under Turkish Cypriot administration, and Turkish Cypriot authorities deported the Syrians to Turkey. On June 4, a boat reportedly carrying 30 Syrians attempted to enter the country and was pushed back by marine police. The vessel eventually landed in the area under Turkish Cypriot administration. The Syrian passengers reportedly crossed irregularly into the government-controlled area. A third pushback of a boat reportedly carrying 10 Syrians was reported in late July. It also landed in the north and its passengers crossed irregularly into the government-controlled area. Between September 1 and 8, police pushed back six more boats arriving from Lebanon. According to UNHCR, government authorities kept two additional boats, reportedly carrying Syrian nationals, at sea for days. NGOs reported that passengers that came ashore on vessels from Lebanon were not given the opportunity to submit asylum claims. Instead, they were immediately quarantined and quickly deported. NGOs claimed some asylum seekers were tricked into boarding buses they believed were going to a hospital, only to be taken to the port and deported on government-chartered vessels.

As of September 8, authorities reportedly deported a total of 115 persons who had arrived by boat from Lebanon. On September 9, a Ministry of Interior spokesperson stated that government officials had boarded the boats and verified the passengers were not asylum seekers but economic migrants. The ministry therefore decided to send them back to Lebanon. A UNHCR spokesperson responded on September 9 that UNCHR was not given access to the passengers of the boats that were pushed back and was therefore not in a position to verify that the passengers did not ask for asylum.”

48.  A report issued on July 2020 by Refugee Rights Europe and the End Pushbacks Partnership entitled “Pushbacks and Human Rights violations at Europe’s borders: the state of play in 2020” made the following observations:

“In September 2020, two cases of pushbacks took place, both of which included unaccompanied minors. A boat with 21 individuals from Lebanon and Syria was pushed back by marine and port police after having arrived on the shore of Paralimni in the Republic of Cyprus. They eventually managed to reach the UN-controlled buffer zone, which divides the Republic of Cyprus and TRNC. A second case took place on 6 September 2020, when a boat with thirty Lebanese nationals and three Syrians were caught by the Cypriot Coast Guard. Among them were fourteen children. Six of them, as well as three women, were taken to a hospital, but then moved (along with the rest of the group) onto a private boat, led by the Coast Guard which took them back to Lebanon.

According to a report by the Cyprus News Agency, at least 108 people were returned to Lebanon on three chartered vessels over the course of three days, between 6 and 8 September 2020 while Cypriot authorities claimed they returned 230 people to Lebanon during the same period. Additionally, another six vessels were reportedly prevented from leaving Lebanese territory by the Cyprus Port and Maritime police. These repeated pushback practices have been lamented by NGOs, as well as by UNHCR’s representative for Cyprus, who confirmed that they had received “credible reports” of incidents with overcrowded boats which were denied disembarkation due to Covid-19.”

(a)   Lebanon’s Universal Periodic Review (Third Cycle Report) by the UN Human Rights Council

49.  As part of the process of the Universal Periodic Review mechanism, Lebanon produced a third national report on the action it had taken to implement recommendations previously made by the Human Rights Council. The Government submitted to the Court the document presented by the Lebanese Government to the UN Human Rights Council on 12 November 2020, entitled “National report submitted in accordance with paragraph 15(a) of the annex to Human Rights Council resolution 5/1: Lebanese Republic”. The report included the following:

“192.  The preamble to the Constitution states that Lebanon is not a country of asylum or resettlement, for a number of different reasons. Lebanon has not signed the 1951 Convention relating to the Status of Refugees or its 1967 Protocol but it does adhere to the principle of non-refoulement as stipulated in the Convention.

193.  The Directorate General of Public Security does not deport persons who believe that their lives might be in danger in their own country and it has taken steps to ensure that no displaced Syrians are deported or expelled, in compliance with the principle of non-return enshrined in the Convention against Torture.

194.  A memorandum of understanding signed in 2003 between the Directorate General of Public Security and the Office of the United Nations High Commissioner for Refugees (UNHCR) regarding the treatment of persons seeking asylum via the UNHCR office in Lebanon sets out the duties and rights of both the State and UNHCR in that connection.

...

VII. CHALLENGES

...

Repercussions of the refugee and displacement crisis: Although it is not a country of asylum or displacement, Lebanon has never failed in its humanitarian duty towards persons who come seeking safety. Nevertheless, the current situation has outstripped its ability – which was modest to start with – to meet the growing needs of refugees and displaced persons in all areas. For Lebanon, the best solution to the refugee and displacement crisis is to translate into reality the right to a safe and dignified [return to their homes], thereby alleviating the burden on host communities. In that connection, on 14 July 2020, the Council of Ministers approved a policy paper on the return of displaced Syrians.”

50.  The Office of the United Nations High Commissioner for Human Rights also compiled a report to the United Nations Human Rights Council dated 16 November 2020 for the purpose of Lebanon’s Universal Periodic Review (3rd cycle), with the following recommendation as regards migrants, refugees and asylum seekers:

“86. While acknowledging the contribution of Lebanon in hosting a large number of asylum seekers and refugees, and also commending the State party’s commitment to the principle of non-refoulement, the Human Rights Committee recommended that Lebanon strictly adhere in practice to such principle, and that it protect all asylum seekers against pushbacks at the border and deportation.”

51.  During the third cycle of the Lebanon universal periodic review, contributions were made to the compilation report of the Office of the United Nations High Commissioner for Human Rights (see paragraph 50 above) by the Office of the Special Representative of the Secretary General for Children and Armed Conflict, the United Nations Country Team in Lebanon, UNESCO and UNHCR. In its contribution dated July 2020, the UNHCR observed the following:

“Lebanon is not party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, nor the 1954 Convention relating to the Status of Stateless Persons or 1961 Convention on the Reduction of Statelessness.

Lebanon is, however, party to several human rights treaties relevant to the protection of asylum-seekers, refugees, and stateless persons, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination on All forms of Discrimination against Women (CEDAW). Moreover, the Lebanese Constitution, in its preamble, refers to Lebanon abiding by the 1948 Universal Declaration of Human Rights. Lebanon also affirmed the Global Compact on Refugees at the 73rd session of the UN General Assembly in December 2018, and provided substantive inputs during each phase of consultations.

As of 31 December 2019, there were 932,619 refugees and asylum‑seekers registered with the Office of the United Nations High Commissioner for Refugees (UNHCR) in Lebanon, including 914,648 Syrian refugees and 17,971 refugees and asylum-seekers of other nationalities. Approximately 77% of the non-Syrian refugees and asylum-seekers are from Iraq, while the rest originate from a variety of countries including Sudan, Ethiopia and Egypt. In 2015, the Government of Lebanon requested UNHCR to suspend registration for newly arrived Syrian refugees. Thus, the total number of Syrians in need of international protection in Lebanon remains unknown, however the Government estimate stands at 1.5 million, which is also the planning figure used in the Lebanon Crisis Response Plan (LCRP) 2017-2020.

Lebanon does not have a comprehensive domestic legal framework in place to protect asylum-seekers and refugees, leaving gaps and uncertainties in their protection situation. The 1962 Law Regulating Entry, Stay, and Exit from Lebanon (the 1962 Law on Entry and Exit) together with the Council of Minister’s Decree 10188 implementing the 1962 Law does not distinguish asylum-seekers and refugees from migrants.

On 23 October 2014, the Cabinet of Ministers in Lebanon adopted a Policy Paper on Syrian Refugees Displacement to Lebanon by virtue of Decision No. 38, leading to several decisions impacting the entry and stay of Syrian refugees in Lebanon. Further to these decisions, the General Directorate of General Security (GSO) revised both its entry and residency regulations to only allow admission of Syrians able to obtain a visa on one of the permissible grounds (tourism, business visit, property ownership, study, transit, medical treatment, Embassy appointment or pledge of responsibility by a Lebanese citizen (‘sponsorship’). Admission on protection grounds was subsequently made possible but narrowly defined to include only those who could fulfil specific criteria provided by the Ministry of Social Affairs for exceptional humanitarian cases. These GSO decisions also encompassed additional document requirements for residency renewal and reintroduced the USD 200 fee for Syrians aged 15 and above, who arrived in Lebanon before 2015.

In February 2018, the State Council (Administrative Court) issued a decision declaring these regulations null and void with reference to the GSO’s lack of authority to issue such decisions. The State Council decision also mentioned that any modification to the entry and stay regulations of Syrians should comply with the 1993 bilateral agreement between Lebanon and Syria and relevant Lebanese Laws. This court decision has not yet been executed.

...

II. ACHIEVEMENTS AND POSITIVE DEVELOPMENTS

...

Linked to 2nd cycle UPR recommendation no. 132.207. “Continue the cooperation with international organizations and donor countries to find solutions to the problems of the refugees (Armenia)”

The Government of Lebanon and its people have shown a tremendous solidarity with and responsiveness towards the refugees from Syria. Despite hosting more refugees per capita than any other State in the world, Lebanon has continued to provide a safe haven for refugees and contributed significantly to international solidarity and responsibility sharing, and global public good. Lebanon’s response to the influx of Syrian refugees has inspired multiple provisions in the Global Compact on Refugees, as illustrated in the compilation of Good Practices produced by UNHCR and the Government of Lebanon ahead of the Global Refugee Forum that took place in December 2019. These include the Government’s central role in developing the Lebanon Crisis Response Plan (LCRP) 2017-2020 and leading the coordination of key sectors of intervention in close collaboration with UN agencies and international and national NGOs.

III. KEY PROTECTION ISSUES, CHALLENGES AND RECOMMENDATIONS

Challenges linked to outstanding 2nd cycle UPR recommendations

Issue 1: Non-refoulement

Linked to 2nd cycle UPR recommendation no. 132.206. “Take legal and administrative measures to guarantee the principle of non-refoulement and the adequate and fair treatment for those requesting international protection (Argentina)

The Government of Lebanon has repeatedly affirmed its commitment to the principle of non-refoulement. However, in practice, the lack of due process in deportation proceedings puts individuals at risk of refoulement.

Prior to 2019, and since the introduction of stricter admission criteria in 2015, Syrians unable to obtain a visa permit, or meet the exceptional humanitarian entry criteria, were refused access to Lebanese territory. This lack of access and subsequent pushback forced many to resort to irregular means of entry, putting themselves at heightened protection risk. In January 2018, 15 Syrians died while attempting to cross irregularly into Lebanon over the snowy mountains. Nevertheless, Syrians who managed to enter the country irregularly were not deported by Lebanese authorities.

In April 2019, the Higher Defence Council (HDC) adopted Decision No. 50 on stricter measures against irregular entry. This was later followed by GSO Instruction No. 48380 providing for the deportation of Syrians apprehended for irregular entry after 24 April 2019 and their handing over to the Syrian authorities. Deportations based on these decisions started being implemented in May 2019. As of 28 August, more than 2,700 Syrians had been deported according to the GSO, and the practice has continued.

These deportations are normally executed following only a verbal confirmation from the Public Prosecution, without the judicial review required by Article 88 of the Lebanese Penal Code. Consequently, Syrians in this process are not afforded the possibility to express and have independently assessed any fears of persecution, torture, inhuman or degrading treatment or punishment upon a deportation, as required pursuant to the CAT, ICCPR and CRC. UNHCR has documented cases of Syrians who have been arrested and detained upon deportation and shared these with the relevant Lebanese authorities.

...

The United Nations, and notably UNHCR, has raised the need to apply the procedural safeguards set out in the national law in these deportation cases with the Government of Lebanon and its authorities. While fully acknowledging Lebanon’s right to manage its borders and prevent illegal migration, UNHCR has stressed the need for due process to ensure respect for the principle of non-refoulement in individual cases.

...”

(b)   US State Department Report on Human Rights Practices in Lebanon in 2019

52.  In its report on human rights practices in Lebanon in 2019 published on 11 March 2020, the US Department of State observed as follows:

“f. Protection of Refugees

As of October there were nearly 920,000 Syrian refugees in Lebanon registered with the UN High Commissioner for Refugees (UNHCR). Since the government instructed UNHCR to stop registering Syrian refugees in early 2015, this total did not include Syrian refugees who arrived after that time. There were no formal refugee camps in the country for Syrians. Most Syrian refugees resided in urban areas, many in unfinished, substandard, or non-residential buildings. Approximately 20 percent lived in informal tented settlements, often adjacent to agricultural land, according to an October UN assessment. According to a UN study, refugees often took loans to cover even their most basic needs, including rent, food, and health care, putting nearly 90 percent of them in debt and leaving them food insecure.

...

Refoulement: The government reaffirmed its commitment to the principle of nonrefoulement with respect to Syrians. Some political party representatives, however, employed antirefugee rhetoric, stating assistance to Syrian refugees in particular placed additional burden on the state already facing an economic crisis. The DGS coordinated with Syrian government officials to facilitate the voluntary return of approximately 16,000 refugees from 2017 to September 1, 2019. UNHCR did not organize these group returns but was present at departure points and found no evidence that returns were involuntary or coerced in the cases of those refugees whom they interviewed. Human rights groups including Amnesty International questioned government claims that refugee returns were entirely voluntary, calling the environment “coercive” and citing credible risk of persecution or other human rights abuses upon return to areas controlled by the Syrian regime.

An [Higher Defence Council (HDC)] decision in April required the deportation of anyone arrested and found to have entered the country illegally after April 24. As of September the DGS reported it had deported 2,731 individuals under this order. UN officials considered the government’s new deportation policy as creating a high risk of refoulement given the lack of a formal review process to assess credible fear of persecution or torture. Specifically, the HDC decision requiring the deportation of anyone arrested and found to have entered the country illegally after April 24 elevated the risk of refoulement. Human rights groups and the international community all raised concerns about the risk of turning over refugees to Syrian authorities. There were several anecdotal reports of Syrian refugees who were subsequently abused in detention after being turned over to Syrian authorities by Lebanese officials. Government officials maintained their policy only applied to illegal migrants, not refugees, although it did not appear there was sufficient due process to make such a determination. UNHCR and international donors urged the government to provide for a judicial or independent administrative review before carrying out deportations. The government maintained that while the law requires a court hearing on all deportation cases, it did not have the bandwidth to process the existing caseload.

...

Access to Asylum: The law does not provide for the granting of asylum or refugee status. Nonetheless, the country hosted an estimated 1.5 million refugees, the vast majority of them Syrian. In an effort to address the low number of refugees obtaining and renewing legal residency, since 2017 residency fees have been waived for refugees who had registered with UNHCR prior to 2015. This ruling excluded unregistered refugees or those who had renewed on the basis of Lebanese sponsorship. DGS implementation of the waiver continued to be inconsistent, and there was minimal improvement in the percentage of refugees with legal status. According to the United Nations, only 20 percent of the refugee population held legal residency as of September.

Due to the slow pace of implementation of residency determinations, the majority of Syrian refugees were unable to renew their legal documents, which significantly affected their freedom of movement owing to the possibility of arrests at checkpoints, particularly for adult men. While authorities released most detainees within a few days, some of the refugees said authorities required them to pay fines before releasing them or confiscated their identification documents (IDs). Syrian refugees faced barriers to obtaining Syrian ID documentation required to renew their residency permits in Lebanon because of the hostility of the Syrian government to the refugee population and because Syrian government embassies and consulates charge exorbitant fees. ...”

(c)   Human Rights Watch

53.  In 2019 Human Rights Watch published its “World Report 2019 – Events of 2018”, reporting as follows about conditions in Lebanon in 2018:

“More than 1 million Syrian refugees are registered with the United Nations High Commissioner for Refugees (UNHCR) in Lebanon. The government estimates the true number of Syrians in the country to be 1.5 million.

...

In 2017, Lebanese authorities stepped up calls for refugees to return to Syria and put pressure on UNHCR to organize returns despite the ongoing conflict in Syria and well‑founded fears of persecution held by many refugees.

Lebanese authorities estimated that from July to November, between 55,000 and 90,000 refugees returned to Syria under localized agreements not overseen by UNHCR. Refugees have said they are returning because of harsh policies and deteriorating conditions in Lebanon, not because they think Syria is safe.

...

In 2018, Lebanon continued to impose entry regulations on Syrians that effectively barred many asylum seekers from entering Lebanon. ...”

54.  According to Human Rights Watch’s 2 September 2019 article headed “Syrians Deported by Lebanon Arrested at Home: New Policy Forcibly Returns Thousands, No Due Process” reported that 2,731 Syrians had been removed by Lebanon’s General Security Directorate between 21 May and 28 August 2019, following a decision of 13 May 2019 to remove all Syrians who had entered Lebanon irregularly after 24 April 2019. According to the same article, the General Security Directorate had deported at least three people who had entered Lebanon before that date and at least three Syrians removed by Lebanon’s General Security Directorate had been detained by the authorities upon their return. It further observed that the removal policy is one of several government measures intended to increase the pressure on Syrian refugees to return to Syria, including the demolition of refugee shelters and enforcement against Syrians working without authorisation.

55.  The Government filed a report published in October 2021 by Human Rights Watch entitled “Our lives are like death. Syrian Refugee Returns from Lebanon and Jordan” in which it observed:

“Lebanon refuses to recognise Syrians as refugees and uses the generic words of “displaced” people in Arabic ... rather than the word refugee ... Lebanon is not a party to the 1951 Refugee Convention and does not adhere to a unified or centralized policy toward Syrian refugees, so municipalities and local authorities are free to adopt differing policies and strategies. The result has led to a host of coercive regulations and ad-hoc practices designed to ensure Syrian refugees do not integrate and eventually feel like they have no choice but to return to Syria. This coercive approach has intensified in recent years, as has the rhetoric of government leaders and political figures on returns.

...

Although the Lebanese government continues to publicly state its commitment to the principle of non-refoulement, it has deported thousands of Syrians in recent years. In May 2019, the Higher Defense Council announced that all Syrians who entered Lebanon irregularly after April 24, 2019 would be deported and directly handed over to the Syrian authorities. In a letter to Human Rights Watch, the General Security Directorate said it had “returned” 6,345 Syrians between April 25, 2019 and September 19, 2021 in implementation of the Higher Defence Council’s decision. Human Rights Watch documented that at least three Syrians deported by Lebanon were arrested in Syria.

Recently, Lebanese leaders have ramped up their anti-refugee rhetoric and promotion of refugee returns. In July 2020, the government issued a new “return plan” declaring that parts of Syria are safe and that refugees should go back. ...”

(d)   Amnesty International

56.  On 12 June 2019 Amnesty International released a public statement (Index Number MDE 18/0481/2019) noting, inter alia, the following:

“ WHY ARE REFUGEES GOING BACK TO SYRIA NOW?

Refugees in Lebanon are living in a difficult environment, ensuing from dire humanitarian conditions due to the lack of sufficient funding, coupled with unjust government policies and increased political tension.

In the past eight years, barriers to accessing services and aid have been prevalent and, in some cases, they have become increasingly difficult to overcome. The dire humanitarian conditions have become common factors pushing refugees to seek better living conditions outside Lebanon. Refugees who decided to go back to Syria told us that they want to return because services are free, and living is cheaper even if it involves risking their lives.

HOW ARE REFUGEES RETURNING TO SYRIA? ARE RETURNS TRULY VOLUNTARY?

In July 2018, the Lebanese government announced that refugees could go back to Syria under an agreement with the Syrian government and tasked General Security to facilitate these returns. According to General Security, refugees apply for return at the registration offices run by them across Lebanon or at the offices of political parties. General Security then proceeds in compiling all the names of registered refugees and organizes transportation in buses to the Syrian border. However, names of refugees received from political parties are not added to the list until General Security verifies that applicants have “voluntarily” chosen to return to Syria. Per the bilateral agreement, the Lebanese General Security sends lists of names of registered refugees to the Syrian government for pre-approval before their return to Syria.

Every four to six weeks, on a Thursday, refugees whose names were approved by the Syrian government gather at the registration offices to board the buses provided by General Security. The buses depart to several informal border crossings, including al‑Masnaa border crossing, Al-Zamrani (Arsal), Jdeidat Yabouss, al-Daboussia and al‑A’boudia.

For the return of refugees to their country of origin to be truly voluntary, it must be based on their free and informed consent. The Lebanese government is not physically forcing refugees to register their names or board buses departing to the border. Before the departure of buses, refugees have the option to opt-out of returning. However, the dire conditions in Lebanon, in particular the difficulties obtaining valid residence visas and the resulting barriers in accessing essential services, raise doubts about the ability of Syrian refugees to provide truly free consent.

International law prohibits “constructive” refoulement, which occurs when states use indirect means to coerce individuals to return to a place where they would be at real risk of serious human rights violations. Amnesty International believes that, in many cases, the Lebanese government’s unfair policies represent a fundamental factor in the decision to leave the country. In these cases, the refugee’s consent to repatriation cannot be considered free. Lebanon would therefore be in breach of its obligation not to return refugees to a place where they would be at risk of persecution or other serious human rights violations.”

(a)   Report jointly issued by the UNHCR, the United Nations Children’s Fund (UNICEF) and the World Food Programme (WFP)

57.  A report of 23 December 2019 entitled “2019 Vulnerability Assessment for Syrian Refugees in Lebanon” set out the findings of a study of the conditions of Syrian refugees in Lebanon. The study had been conducted jointly by the UNHCR, UNICEF and the WFP between 8 April and 3 May 2019. According to the report, 57% of Syrian refugee families were living in overcrowded shelters, shelters below humanitarian standards and/or shelters in danger of collapse. Close to 40% of Syrian refugee households were living in shelters that were below humanitarian standards or in a dangerous condition. Over one-third of households continued to live in overcrowded conditions of less than 4.5 sq. m per person. 69% of households lived in residential structures, 20% in non-permanent shelters and 11% in non-residential structures. According to the same report, about half of households were living in extreme poverty, despite large scale assistance programs to families. Specifically, in 2019 55% of refugees were living below the “Survival Minimum Expenditure Basket” of USD 87 per person per month, which meant they were unable to meet their survival needs for food, health and shelter, while 73% of Syrian refugees remained below the poverty line.

58.  The report “2020 Vulnerability Assessment for Syrian Refugees in Lebanon”, published on 19 February 2021, revealed that in 2020 almost half of Syrian refugees had had inadequate access to food. The share of households whose consumption level was poor quadrupled compared to 2019 and that of households with a borderline consumption level increased by 1.5 times compared to 2019. The number of meals consumed by adults in 2020 was 1.9 meals per day, compared to 2.2 meals in 2019. Food insecurity had increased by 20% compared to 2019.

(b)   Lebanon’s Universal Periodic Review (Third Cycle Report) by the UN Human Rights Council

59.  In the “National report submitted in accordance with paragraph 15(a) of the annex to Human Rights Council resolution 5/1: Lebanese Republic” (see paragraph 49 above) Lebanon made the following submissions as regards living conditions:

“203. With the arrival of displaced Syrians in such large numbers as to make Lebanon the top country in the world for number of displaced persons with respect to population size, the Lebanese State has been cooperating continuously with donors and international organisations to implement the Lebanon Crisis Response plan, the 2017‑2020 phase of which is currently under way. The Plan aims to meet the growing humanitarian needs of displaced Syrians and the development needs of host communities, with a special focus on the most vulnerable groups.

...”

60.  The Office of the United Nations High Commissioner for Human Rights presented a compilation report to the United Nations Human Rights Council for the purpose of Lebanon’s universal periodic review (3rd cycle), with the following recommendation as regards the right to an adequate standard of living:

“44. The Committee on Economic, Social and Cultural Rights noted with concern the increasing number of persons living in poverty, recommending that Lebanon adopt a rights-based approach to its poverty alleviation programme. ...

...

46. The United Nations country team noted that housing challenges had increased during the COVID-19 pandemic. The pandemic had hit Lebanon at a time of dire socioeconomic meltdown and thus the impact on the human rights situation of the two crises could not be separated. The country team also noted that the pandemic had brought to light the importance of having an adequate home as a basic human right. Vulnerable communities living in dire conditions do not have the access to decent living conditions as a means of protection from the pandemic.

...”

(c)   Amnesty International

61.  On 12 June 2019 Amnesty International published a statement (Index Number MDE 18/0481/2019) reporting that refugees in Lebanon were living in a difficult environment, with a lack of sufficient funding coupled with unjust government policies and increased political tension leading to dire humanitarian conditions. The Lebanese Government had introduced restrictive policies, such as permitting employment in only three sectors (agriculture, construction, and cleaning), with constant raids on camps and mass detentions of male refugees, in most cases because they lacked residence papers.

THE LAW

62.  Article 1 of the Convention provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

63.  The issue of jurisdiction is not in dispute between the parties. The Government accepts that the facts of the present case occurred within the jurisdiction of the Republic of Cyprus, that the applicants’ boat was intercepted by the Port and Marine Police ten nautical miles from the coast and that the applicants were then embarked onto a vessel bearing the Cypriot flag and returned to Lebanon.

64.  Accordingly, the Court concludes that the events giving rise to the alleged violations took place within the jurisdiction of the Republic of Cyprus within the meaning of Article 1 of the Convention.

65.  The applicants complained that the Cypriot authorities refused to allow them access to an asylum procedure and returned them to Lebanon without an examination of their asylum claim or of their individual circumstances, thereby exposing them to treatment prohibited by Article 3 of the Convention on account of the living conditions in Lebanon and because of the risk of indirect refoulement to Syria. The applicants further complained that they were expelled as part of a collective measure. They relied on Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention. Lastly, the applicants complained that they had not had access to an effective domestic remedy for their removal to Lebanon, as required by Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention.

The relevant Articles read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 4 of Protocol No. 4

“Collective expulsion of aliens is prohibited.”

(a)   The parties’ submissions

66.  The Government submitted that the applicants had failed to exhaust domestic remedies. According to the Government, the applicants had not expressed their intention to apply for asylum or any other form of international protection to the authorities, either during their transfer to Lebanon or prior to their transfer, despite being individually interviewed on the day of their arrival and departure (see paragraphs 15 and 19 above). In support of their claim the Government provided the Court with a letter headed “Individual application M.A. and Z.R. v. Cyprus (no. 39090/20) at the European Court of Human Rights”, dated 24 September 2022 and signed by a lieutenant of the Aliens and Immigration Police, I.S., giving a description of the events that had taken place between the applicants’ arrival and their removal. The Government further provided the Court with a brief statement, signed by M.S., a police officer of the Aliens and Immigration Police and dated 18 July 2022 (see paragraphs 13 to 20 above for a summary of the information contained in the respective statements).

67.  The Government asserted that had the applicants asked for asylum, they would have been disembarked and their allegations would have been examined on the basis of the Refugee Law, as had been the case with other operations conducted in 2020 and 2021. In support of this claim, the Government provided the Court with informal tables prepared by the police indicating the arrival of Syrians in Cyprus. The Government submitted that all twelve boats arriving in Cyprus in 2020 with a total of 524 Syrians, as well as the twenty-one boats arriving in 2021 carrying 569 Syrians had been allowed to disembark in Cyprus and the persons on board had subsequently claimed asylum. In addition, the Government submitted a letter dated 18 July 2022 and signed by the Director General of the Ministry of the Interior stating that between 2020 and 2022 the Republic of Cyprus had recognised thirty Syrians as refugees and had granted subsidiary protection to 2,458 Syrians.

(b)   The applicants

68.  The applicants insisted that they had asked for asylum orally, but their claim had been ignored (see paragraph 9 above). They stressed that the wish to apply for asylum did not have to be expressed in a particular form. According to the applicants, given their nationality, the Cypriot authorities had already had “an indication” that they might want to seek asylum and they ought therefore to have provided them with information about how to make such an application.

69.  The applicants further challenged the accuracy of the information provided by the Government. They contended that the tables provided by the Government had not contained information as to whether the persons arriving in Cyprus had claimed asylum or not. The applicants submitted that it had been evident from those tables that only on two occasions, namely on 2 December 2020 and 14 April 2021, had migrants been allowed to disembark onto the island. In addition, the applicants pointed out that the arrival of their boat had not been registered or recorded at all in the tables. The applicants further challenged the Government’s submission that they had been interviewed individually, saying that the Government had not provided the Court with any statements, records, or other evidence of their having communicated with the applicants at the time of the relevant events. The police statements accompanying the Government’s observations had been prepared by the police officers afterwards, in 2022, specifically for the purposes of the present case.

70.  The Court considers that this complaint raises issues of law and fact which cannot be determined without an examination on the merits. It therefore joins the issue of compliance with the rule of exhaustion of domestic remedies to the merits. It follows that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(a)   The applicants

71.  The applicants argued that the Government had not carried out individual assessments to ascertain whether Lebanon was a safe third country to return them to and nor had it made any proper assessment of the risk of Article 3 violations when it removed them to Lebanon. The applicants submitted that in relying solely on the Bilateral Agreement without examining other elements, the Government had violated their rights under both the procedural and the substantive aspects of Article 3. They argued that the Bilateral Agreement predated the provisions of the Refugee Law and EU Law in relation to the concept of a safe third country and had not been reviewed since 2002 and therefore did not address the issues in dispute.

72.  As regards the risk of refoulement to Syria, the applicants further submitted that the fact that they had been registered with the UNHCR had not led to any protection given that the UNHCR could not recognise them as refugees under its mandate and would not have been able to transfer them to another country because of a lack of operational capacity and a shortage of resettlement positions. The applicants argued that because Lebanon had not ratified the Refugee Convention they could not apply for recognition of their refugee status or receive protection in accordance with that Geneva Convention. The applicants asserted that Lebanon was in breach of the principle of non-refoulement as it had previously removed Syrians back to Syria and referred to the reports submitted by the third-party interveners.

73.  As regards their living conditions in Lebanon, the applicants submitted that they could not work there without a residence permit, they had had no means of subsistence and had had to take extremely exploitative temporary illegal work. The applicants submitted that they could not even meet basic living expenses and had not had access to health care. They referred to a report of the UN Special Rapporteur on extreme poverty and Human Rights in which Olivier De Schutter outlined the findings of a visit to Lebanon from 1 to 12 November 2021. They also referred to an Amnesty International Public Statement dated 12 June 2019 (see paragraph 61 above).

(b)   The Government

74.  The Government submitted that they had assessed the applicants to be economic migrants in search of employment in Cyprus because of the economic crisis in Lebanon; that the applicants had sought to enter Cyprus unlawfully and without authorisation, contrary to domestic law; that they had been refused disembarkation and entry to the Republic of Cyprus; and that their return was decided on the basis of the Bilateral Agreement with Lebanon which provides for the readmission of such persons to Lebanon without any formality.

75.  The Government submitted that alternatively, if the Court were to find the applicants to have been asylum seekers, it should also find that their claim that they had been at risk of refoulement was invalid: Cyprus had a Bilateral Agreement with Lebanon; relations between the two countries were friendly; Lebanon was a safe third country where UNHCR was present; Lebanon’s submissions to UN bodies attested to its adherence to the principle of non‑refoulement (see paragraph 49 above); and the applicants had not been removed to Syria when they were returned to Lebanon. The Government referred to a Human Rights Watch report (see paragraph 55 above) and added that the Syrian Higher Defence Council’s announcement that all Syrians who had entered Lebanon irregularly after 24 April 2019 would be removed and directly handed over to the Syrian authorities had not been applied to the applicants, who had arrived in Lebanon in 2016. It was the Government’s position that Cyprus had not engaged in indirect refoulement and there was no indication that Lebanon was an unsafe country with no mechanisms or structures to support refugee camps or to protect the applicants against refoulement.

76.  As regards the living conditions in Lebanon, the Government referred to the Lebanese national report to the United Nations Human Rights Council, demonstrating continuous cooperation with donors and international organisations to implement the Lebanon Crisis Response Plan, which aimed to meet the growing humanitarian needs of displaced Syrians (see paragraph 59 above). While the Government accepted that the living conditions of Syrians in Lebanon had been difficult, those conditions did not fall within the scope of Article 3 as they did not attain the minimum level of severity. The Government therefore argued that the applicants’ return to Lebanon had not exposed them to a risk of being subjected to treatment in breach of Article 3 of the Convention.

(c)   Third party interveners

77.  The third party interveners submitted that since March 2020 the Council of Europe’s Commissioner for Human Rights, the UN Special Rapporteur on the human rights of migrants, the UNHCR, the US State Department and several international and national NGOs had been raising concerns about systematic removals from Cyprus. In September 2020 at least 229 individuals were “pushed back” and expelled from Cypriot waters to Lebanon by the Cypriot authorities over at least five separate instances, while summary returns of Syrians from Cyprus to Lebanon continued in 2021 and 2022.

78.  The interveners submitted that Syrians in Lebanon faced risks of both direct and indirect refoulement. The interveners observed that Lebanon is not party to the 1951 Refugee Convention and has not established a domestic asylum procedure. UNHCR was responsible for processing applications for the recognition of refugee status, but was able to arrange for only 8,359 resettlement departures in 2019. UNHCR also reported in May 2015 that the Lebanese authorities had informally instructed them to suspend the registration of Syrian refugees in Lebanon. A UNHCR registration card did not regularise the stay of Syrians in Lebanon. The interveners further added that “pushed back” Syrians were at risk of indirect or “chain” refoulement because: (a) Lebanon had a general return policy for Syrians and had announced a return plan at the Damascus conference in November 2020; (b) there were no legal grounds on which Lebanon would be obliged to readmit Syrians into its territory; and (c) Lebanon had removed Syrians to Syria after they had been refused entry at other borders. With regards to the last point above, the interveners submitted that UNHCR had been closely monitoring the reception of people who had been summarily removed from Cyprus in August and September 2020 and had ensured that they would not be subjected to chain refoulement. EuroMed Rights had monitored summary returns from Cyprus to Lebanon and had however found in June 2021 that expulsions had led to chain refoulement to Syria. The risk of refoulement had been particularly high for Syrians who entered Lebanon after April 2019, but had also applied to others. According to a Human Rights Watch report, the General Security Directorate had on several occasions also removed Syrians who had entered Lebanon prior to 24 April 2019.

79.  As regards living conditions in Lebanon, the interveners submitted that Syrians in Lebanon struggled with restriction of employment rights, poor accommodation conditions and restrictions on their movement.

(a)   General principles

80.  The general principles concerning the removal of asylum-seekers to a third country without an examination of their asylum claims on their merits have been summarised in, among other authorities, Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 124-41, 21 November 2019).

81.  The Court reiterates that as a general principle of law the initial burden of proof in relation to an allegation is borne by the party which makes the allegation in question. In certain instances, however, only the Government have access to information capable of corroborating or refuting the applicant’s allegations: consequently, a rigorous application of the above principle is impossible (see, among many authorities, Baka v. Hungary [GC], no. 20261/12, § 143, 23 June 2016 and Al-Hawsawi v. Lithuania, no. 6383/17, § 137, 16 January 2024). If that is the situation and the respondent State fails to provide a satisfactory and convincing explanation in respect of events that lie wholly or in large part within the exclusive knowledge of the State authorities, the Court can draw inferences that may be unfavourable for that Government (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 97, 18 December 2012; and Al Nashiri v. Poland, no. 28761/11, § 395, 24 July 2014). Before the Court can do so however, there must be elements supporting the applicant’s allegations (see Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16 and 2 others, §§ 435-36, 30 November 2022).

(b)   Application of the above principles in the present case

82.  One of the principal disagreements between the parties in the present case is as to whether the applicants expressed their wish to seek asylum in Cyprus. The applicants submitted that they had claimed asylum orally (see paragraphs 9 and 68 above). Neither the Refugee Law (see paragraph 29 above) nor this Court’s case-law provide for a particular form in which the wish to apply for asylum should be expressed (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 180, 13 February 2020).

83.  Even though the applicants have not brought direct evidence substantiating their assertion that they expressed their wish to seek asylum in Cyprus (compare and contrast, M.A. and Others v. Lithuania, no. 59793/17, § 110, 11 December 2018), the Court cannot ignore that they had been stranded at sea for two days, under the control of the Cypriot Marine Police which patrolled the area around the boat with the Onisillos (see paragraph 18 above), and did not allow them to disembark. Under these circumstances, the applicants must have had very limited contact with the outside world and little access to facilities to collect evidence or to officially make their claims (see O.M. and D.S. v. Ukraine, no. 18603/12, § 92, 15 September 2022). This is further evidenced by the fact that the request for interim measures under Rule 39 was lodged by their representative who had been informed by the applicants’ relatives – not the applicants themselves – that the applicants had arrived in Cyprus but were not being allowed to disembark to apply for asylum, as communication with the applicants had been extremely limited. As a result, the Rule 39 request was considered incomplete (see paragraphs 21 and 22 above). The fact that the applicants’ contact with the outside world had been limited is further evidenced by reports that UNHCR Cyprus had not been given access to the passengers who had been on the boats that were “pushed back” during the relevant period and was therefore not in a position to verify that the passengers had not asked for asylum (see paragraphs 45 and 47 above).

84.  The Court further notes the consistency in the applicants’ account of the dates, reasons they had entered Cyprus, and interactions with the Cypriot authorities with that in their request to this Court for interim measures (see paragraph 21 above). In contrast, the Court observes the inconsistencies between the information submitted by the Government to the Court in relation to the Rule 39 request and its observations as regards the date of the applicants’ arrival and interception in Cyprus (see paragraphs 14 and 23 above).

85.  The Court also takes note of the various available reports by civil society, international organisations and other bodies concerning push-backs and summary returns to Lebanon of persons entering Cyprus illegally, without their having had access to a procedure for claiming asylum (see paragraphs 40, 41, 44, 46 and 47 above). The Court also notes the Human Rights Watch report containing accounts from individuals who stated that they had pleaded not to be returned to Lebanon, some of whom had explicitly claimed asylum but had not been allowed to make asylum claims (see paragraph 44 above). The Government did not comment on the accuracy or content of that report, which was included in the applicants’ application and the third-party interveners’ observations.

86.  In these circumstances, the Court considers that there is prima facie evidence confirming the applicants’ statement that while on the boat they had orally informed the Cypriot authorities that they were seeking asylum and did not wish to be returned to Lebanon but their requests were disregarded. The Court therefore dismisses the Government’s preliminary objection that the applicants had not exhausted domestic remedies since they had not expressed their intention to apply for asylum or any other form of international protection to the authorities, either during their transfer to Lebanon or prior to their transfer.

87.  The applicants’ account has not been successfully refuted by the Government, which unlike the applicants, was able to collect evidence. Specifically, the Government did not provide the Court with any record or other direct evidence of the interviews which allegedly took place on the day of the applicants’ arrival and departure (see paragraphs 15 and 19 above). The Government have only provided the Court with a letter and a very brief statement, both created long after the events in question and for the purposes of the case before the Court (see paragraph 66 above). The Government have also not provided the Court with a statement from R.G., the interpreter who assisted the authorities and who could, as an independent party, have verified the Government’s assertion that the applicants had not claimed asylum and had not reacted upon receiving the information that they would be returned to Lebanon (see paragraph 15 above). The Government have therefore not provided any evidence of the authorities’ interactions with the applicants at the time of the events (see, mutatis mutandis, M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, §§ 271-73, 18 November 2021). The Court finds it still more unconvincing that the applicants, having travelled across the sea on a wooden boat, risking their lives to go to Cyprus where they had relatives in order to seek asylum, and having asked the Court to apply interim measures allowing them to apply for asylum in Cyprus, would for no apparent reason abandon their efforts and not express their wish to apply for asylum to the Cypriot authorities, even when they were each asked again, on the date of their removal to Lebanon, as asserted by the Government (see paragraph 19 above).

88.  The Court also observes that in the tables the Government provided to the Court out of thirty-seven entries concerning the arrival of boats in 2020 and 2021 only two entries showed migrants being allowed to disembark and being transferred to a reception centre where they could apply for asylum. That information defeats the Government’s submissions that all boats arriving in Cyprus in 2020 and 2021 had been allowed to disembark in Cyprus and that the persons on board had claimed asylum (see paragraph 67 above). It is further observed that there is no record of the applicants’ boat in the tables submitted by the Government which could indicate whether the applicants had asked for asylum and what steps, if any, the relevant authorities had taken before deciding to return them to Lebanon. The Court does not doubt that Cyprus has enabled Syrians to apply for asylum over the years. Nonetheless, the Court is not convinced that the applicants in the present case were afforded access to any such process.

89.  In light of the foregoing, the Court finds it sufficiently established that in the present case the Cypriot authorities essentially returned the applicants to Lebanon without processing their asylum claims and without all the steps required under the Refugee Law (see paragraph 29 above).

90.  In these circumstances the Court needs to ascertain whether the Cypriot authorities examined thoroughly whether the applicants would have access to an adequate asylum process in Lebanon and sufficient guarantees against their direct or indirect removal to Syria without a proper evaluation of any risks they might face of a violation of their rights under Article 3 of the Convention (see O.M. and D.S., cited above, § 96, and Ilias and Ahmed, cited above, §§ 134 and 137). Such an assessment should have been conducted by the Cypriot authorities of their own motion and on the basis of all relevant and up-to-date information (see Ilias and Ahmed, cited above, § 141).

91.  The Government argued that the applicants had been returned to Lebanon on the basis of the Bilateral Agreement, which provides for the readmission without any formality οf persons who have entered Cyprus unlawfully (see paragraph 74 above). In this respect the Court reiterates that States, and Cyprus in the present case, cannot evade their own responsibility by relying on obligations arising out of bilateral agreements with other countries, in this case Lebanon (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 129, ECHR 2012).

92.  The Government further claimed that Lebanon was a safe third country because of the good relations between the two countries, the presence of UNHCR in Lebanon, and Lebanon’s submissions to UN bodies (see paragraph 75 above). The Court notes the Government’s reliance on Lebanon’s submissions to UN bodies. However, it observes that Lebanon had at first also said that the refugee and displacement crisis had outstripped its modest ability to meet the growing needs of refugees and displaced persons (see paragraph 49 above). There were also reports which, while acknowledging the contribution of Lebanon in hosting a large number of asylum seekers and refugees and commending its commitment to the principle of non-refoulement, noted nonetheless that Lebanon did not strictly adhere to the practice (see paragraph 50 above). A report by the UNHCR noted the absence of a comprehensive legal framework to protect refugees and asylum-seekers, leaving gaps and uncertainties as to their protection (see paragraph 51 above). Moreover, other reports had noted the emerging pressure on Syrian refugees and asylum seekers in the form of, inter alia, stricter admission criteria and hurdles to obtaining or renewing legal residence, exposing them to precarious situations (see paragraphs 51 and 52 above). Furthermore, Lebanon had begun voluntary returns of Syrian refugees to Syria, with UNHCR on the one hand finding no evidence that returns were forced and with human rights organisations such as Amnesty International on the other hand questioning the absence of coercion in such cases, in the absence of informed consent (see paragraphs 52, 55 and 56 above). Other reports noted Lebanon’s policy after 24 April 2019 of deporting Syrians for irregular entry and handing them over to the Syrian authorities (see paragraphs 51 and 52 above), with Human Rights Watch reporting at least three such cases where people had entered Lebanon before that date (see paragraph 54 above). According to the US State Department report, even though Lebanon Government officials had maintained that their policy only applied to irregular economic migrants, not refugees, the assessment process was insufficient to make such a determination. The UNHCR further observed that Syrians removed under that practice were not given any opportunity to express or have independently assessed any fears of persecution, torture, inhuman or degrading treatment or punishment were they to be removed (see paragraph 51 above). The US State Department reported that the Lebanese government maintained that while the law required a court hearing for all deportation cases it did not have the capacity to process even the existing caseload (see paragraph 52 above).

93.  The Court considers that the information available at the time highlighted various shortcomings in the Lebanese asylum system and its general protection of asylum-seekers which the Cypriot authorities knew or ought to have known about. The Government were also aware of the constantly deteriorating living conditions of asylum-seekers in Lebanon (see paragraphs 53, 57, 58, 61, and 76 above). The Government could not therefore have presumed either that the applicants would have access to an adequate asylum process in Lebanon or that they would not be exposed to treatment contrary to Article 3 on account of, inter alia, the living conditions there.

94.  It is particularly important to note that it is evident from the Government’s submissions that the domestic authorities did not conduct or claim to have conducted any assessment of the risk of lack of access to an effective asylum process in Lebanon. They also did not assess the risk of refoulement or the living conditions of asylum seekers in Lebanon prior to the applicants’ removal (see Ilias and Ahmed, cited above, §§ 131 and 141). The Cypriot authorities ought to have ascertained how the Lebanese authorities fulfilled their international obligations and undertakings in relation to the protection of refugees (see Hirsi Jamaa and Others, cited above, § 157).

95.  The foregoing considerations suffice to find that Cyprus has failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision prior to removing the applicants from Cyprus.

96.  There has accordingly been a violation of Article 3 of the Convention.

(a)   The parties’ submissions

97.  The Government submitted that the applicants could have filed a complaint under Article 146 of the Constitution about their alleged collective expulsion on arriving in Lebanon. Alternatively, the Government argued that the applicants could have filed a civil action claiming a breach of their rights under the Additional Protocol to the Bilateral Agreement between Cyprus and Lebanon (see paragraph 36 above) and they could have been entitled to compensation for such a breach (see paragraph 37 above). Relying on Khlaifia and Others v. Italy ([GC], no. 16483/12, § 279, 15 December 2016) the Government argued that it had not been necessary that those remedies have suspensive effect as the applicants had not claimed that their expulsion had exposed them to a risk of irreversible harm in the form of a violation of Articles 2 or 3 of the Convention. The Government submitted that the applicants had not claimed that their return to Lebanon had exposed them to a real risk of suffering treatment contrary to Article 3 in Lebanon, but that their complaint had been that being returned to Lebanon had put them at risk of indirect refoulement to Syria.

98.  The applicants argued that the remedies put forward by the Government would not have been effective without suspensive effect. Moreover, the applicants argued that they had not been served with any decision in writing refusing to grant them entry to the State or any deportation order which they could challenge before the domestic courts under Article 146 of the Constitution.

(b)   The Court’s assessment

99.  The general principles concerning the rule of exhaustion of domestic remedies in cases raising complaints under Article 4 of Protocol No. 4 have been summarised in M.K. and Others v. Poland, nos. 40503/17 and 2 others, §§ 142-44, 23 July 2020.

100.  The Court finds some merit in the applicants’ argument that they would have no recourse under Article 146 of the Constitution without a written decision refusing entry or ordering their deportation. The Government have not explained whether it would have been possible for the applicants to apply to the domestic courts under Article 146 of the Constitution without a written decision ordering their removal, nor have they brought examples of oral decisions of this kind being challenged successfully in the domestic courts.

101.  Regardless, there is no dispute that given that the applicants were returned to Lebanon, the above remedy would not have suspensive effect. In the present case, contrary to the Government’s submissions, the applicants’ complaints concerned serious allegations that their return to Lebanon would expose them to a real risk of suffering treatment contrary to Article 3 of the Convention on account of the living conditions in Lebanon and the risk of refoulement to Syria. As a result, the fact that neither of the two remedies proposed by the Government would have suspensive effect is sufficient by itself to establish that in the circumstances of the present case such remedies did not constitute effective remedies within the meaning of the Convention (see M.K. and Others v. Poland, cited above, § 147).

102.  Accordingly, the Court dismisses the Government’s objection concerning non-exhaustion of domestic remedies.

103.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(a)   The parties’ submissions

(i)      The applicants

104.  The applicants submitted that their removal to Lebanon amounted to a collective expulsion. They disputed the Government’s allegations that individual assessments had taken place. In their submission, the authorities had merely recorded their identities on board the boats and that was evidenced by the fact that the Government had failed to provide a record of the alleged individual assessments. In this respect, the applicants submitted that the Government had not even provided the Court with the forms that had to be completed in accordance with the Protocol to the Bilateral Agreement (see paragraph 36 above) and had brought no evidence to show how they had complied with their obligations under Article 11 of the Bilateral Agreement (see paragraph 30 above). The applicants added that at no time had they been issued with any document or individual decision in writing and that they had not been given any opportunity to make arguments against their expulsion.

105.  The applicants submitted that their conduct had not exempted the Government from its duties. The Government had admitted that they could not apply for asylum from outside Cyprus (see paragraph 23 above). Their situation had not therefore been comparable to that of the applicants in N.D. and N.T. v. Spain, cited above, as the Spanish process provided an opportunity to seek an asylum visa. The applicants further argued that only Syrian nationals in specific categories were able to apply for and obtain an entry visa (see paragraph 38 above) and they did not fall into those categories because they lacked financial means and a sponsor to support their application. Moreover, the applicants challenged the Government’s statistics which were supposed to show how many visas had been granted to Syrians to enter Cyprus legally but did not set out the grounds on which the visas had been granted. Instead, according to the applicants, the statistics provided by the Government referred to the number of residence permits given to Syrians for the period of 2019 to 2022 irrespective of their mode of entry to Cyprus.

(ii)    The Government

106.  The Government reiterated their account of events as described in paragraphs 15-18 above. They insisted that all persons on the applicants’ boat had been orally interviewed with the assistance of an interpreter and that their personal details had been registered.

107.  The Government further asserted that, should the Court decide that more detailed identification had been necessary, the applicants’ removal could not be characterised as “collective” within the meaning of Article 4 of Protocol No. 4. Specifically, the Government argued that the applicants had attempted to enter Cyprus unlawfully as part of a group of thirty people, creating a disruptive situation that had been difficult to control given the large number of other Syrians arriving in Cyprus at the time.

108.  The Government further asserted that had the applicants wished to enter Cyprus, they could have done so lawfully by applying for entry permits through the Embassy of the Republic of Cyprus in Lebanon, and they had no “cogent” reasons for having failed to do so. The Government supported their argument with a letter from the Ministry of the Interior stating that in 2017 the Ministry had revised and updated its previous decision not to grant entry permits to Syrians and recommended that foreign embassies and consulates provide entry permits to certain categories of Syrian nationals, while the final decision of who would be given a permit rested with the embassies and consulates abroad (see paragraph 38 above). In support of that assertion, the Government provided the Court with a table prepared by the Ministry of the Interior showing the number of Syrian nationals who had entered Cyprus between 2019 and 2022 together with their status (that is, whether they were for example a visitor, student, domestic worker, or employee). The Government rebutted the applicant’s assertions that they could not have entered Cyprus lawfully for failing to fulfil the financial criteria because the policy at the time had been different. The Government asserted that following the Beirut explosion of 4 August 2020, the State had changed its policy and for a short period of time (between August 2020 and January 2021) it had granted Lebanese and Syrian nationals entry visas on their arrival in Cyprus. As a result, Lebanese and Syrian nationals could travel to Cyprus without a prior entry permit and could be given an entry visa on their arrival at the airport. According to an e-mail sent by a Ministry of the Interior employee to the Government agent on 11 October 2022, during that period thirty-four Syrian nationals had entered Cyprus and been granted a visa on their arrival at the airport.

(b)   Third-party submissions

109.  The interveners submitted that the prohibition on collective expulsion had a wider application than that on chain refoulement, which required proof of a risk of significant ill-treatment on expulsion to a third country. The interveners added that refusal of disembarkation and “pushbacks” are also considered to constitute expulsion even where someone has not yet come into the territorial waters of the relevant State. The decisive factor triggering the prohibition of collective expulsion is the absence of a reasonable and objective examination of the particular case of each individual, when the burden of proof lies with the State to show that such an assessment was available and with the applicant and State jointly to show that a genuine and effective assessment was carried out. The interveners further submitted that not giving a genuine opportunity to effectively contest expulsion or an appropriate examination of that objection may be justified if it is the result of an individual’s culpable conduct. However, the interveners also asserted that it was questionable whether irregular entry suspends the right to access international protection proceedings insofar as legal and effective means of entry exist. In this respect, the interveners submitted that, visas with limited territorial validity, did not provide a legally enforceable right of entry in order to seek international protection. They concluded that this meant there was no effective legal path to seeking international protection so that, taking that together with the absence of a genuine and effective opportunity of contesting the return of the persons concerned to Lebanon, culpable conduct could not obviate the obligations of the Cypriot State under the Convention.

(c)   The Court’s assessment

(i)      Principles established in the Court’s case-law

110.  The Court has established case-law concerning Article 4 of Protocol No. 4 with regard to migrants and asylum-seekers in Hirsi Jamaa and Others, cited above, Sharifi and Others v. Italy and Greece (no. 16643/09, 21 October 2014) and Khlaifia and Others, cited above.

111.  That case-law says that expulsion is “collective” for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see, among many authorities, Khlaifia and Others, cited above, §§ 237 et seq.; and Georgia v. Russia (I) [GC], no. 13255/07, § 167, ECHR 2014 (extracts). The fact that a number of foreign nationals are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each foreign national has a genuine and effective opportunity to make arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248; N.D. and N.T. v. Spain, cited above, §§ 193 and 199).

112.  Article 4 of Protocol No. 4 is aimed at ensuring an opportunity for each of the foreign nationals concerned to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and for the authorities to avoid exposing anyone who may have an arguable claim to that effect to such a risk (see N.D. and N.T. v. Spain, cited above, § 198). The purpose of Article 4 of Protocol No. 4 is thus to prevent States from removing foreign nationals without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi Jamaa and Others, cited above, § 177, and Sharifi and Others, cited above, § 210). In order to determine whether there has been sufficiently individualised examination, it is necessary to consider the circumstances of each case and to verify whether the removal decisions took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183; N.D. and N.T. v. Spain, cited above, § 197).

113.  It should be stressed that as a matter of international law, and subject to their treaty obligations including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see Hirsi Jamaa and Others, cited above, § 113, with further references therein). The Court also reiterates that States have the right to establish their own immigration policies, including under bilateral cooperation arrangements or the obligations stemming from membership of the European Union (see Georgia v. Russia (I), cited above, § 177; Sharifi and Others, cited above, § 224; and Khlaifia and Others, cited above, § 241). Furthermore, the Court has previously emphasised the immigration control challenges facing European States as a result of the economic crisis and recent social and political changes, which have had a particular impact on certain regions of Africa and the Middle East (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011; Hirsi Jamaa and Others, cited above, §§ 122 and 176; and Khlaifia and Others, cited above, § 241). Nevertheless, the Court has also stressed that the problems which States may encounter in managing migration flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179; N.D. and N.T. v. Spain, cited above, § 170).

(ii)    Application of those principles in the present case

114.  The Court will therefore examine the present case from a similar perspective.

115.  In the present case, there is no doubt that the applicants’ removal from Cypriot territorial waters and their forced return to Lebanon (see paragraph 86 above) constituted “expulsion” within the meaning of Article 4 of Protocol No. 4. It remains to be established whether that expulsion was “collective” in nature.

116.  In this connection the Court has already noted the Government’s failure to provide any evidence of its interactions with the applicants (see paragraph 87 above). The Court observes that, other than personal details (names, date of birth, nationality, identity card number) which could have been retrieved from the applicants’ identity cards (see paragraphs 9 and 19 above), the Government have not provided the Court with any other records specific to each migrant, transcripts of interviews with the applicants, or even copies of the forms which Cyprus would have been required to complete under the terms of the Bilateral Agreement before returning the applicants to Lebanon, containing specific information about the migrants to be returned (see paragraph 36 above). Nor have the Government provided the Court with any plausible explanation for not producing that information (compare Khlaifia and Others, cited above, § 246). While the applicants do not deny that the Cypriot Port and Marine Police were accompanied by an interpreter, R.G., on the day when the applicants’ boat was first intercepted, the Court notes that there is no further information about the content or length of the interactions between R.G. and the applicants and other migrants on the boat (see paragraph 87 above). In addition, the Court cannot discern the length or quality of police officer M.S.’s interactions with the migrants on board from his brief statement (see paragraph 66 above). It is therefore unknown whether the applicants were informed of their rights or told how to challenge the decision to remove them. It is moreover clear that the applicants, who were kept on the boat with the intention of preventing their disembarkation on Cypriot soil (see paragraph 18 above), were not given access to legal advisers, and that contact with their relatives, through whom they attempted to obtain legal assistance, was extremely difficult while at sea (see paragraphs 21 and 87 above). The Court also observes the absence of any written decision, whether a refusal of entry or a deportation direction under section 14 or any other provision of the Aliens and Immigration Law (see paragraph 27 above) informing the applicants of the reasons of their return to Lebanon (see paragraph 100 above).

117.  Lastly, there is no indication that the absence of an individual decision can be attributed to the applicants’ own conduct (see N.D. and N.T. v. Spain, cited above, § 200; Khlaifia and Others, cited above, § 240; Hirsi Jamaa and Others, cited above, § 184; and M.A. v. Cyprus, cited above, § 247). Specifically, the Court observes that the applicants arrived in Cypriot territorial waters on a boat to which they remained confined for the remainder of their stay at sea off Cyprus, until their embarkation onto the Salone. There is no indication that the applicants had failed to cooperate with the authorities in any way, and the Government’s submission that the applicants had not made any protest and had boarded the Cypriot chartered ship Salone voluntarily (see paragraphs 15 and 19 above) attests to this fact.

118.  As regards the Government’s arguments that the applicants could have entered Cyprus by lawful means, and that they could have applied for an entry visa, the Court notes that the nature of an entry visa, subject to financial and other requirements, could not constitute a genuine and effective possibility for the present applicants to submit their reasons (asylum) against expulsion, as required by Article 4 of Protocol No. 4 (see N.D. and N.T. v. Spain, cited above, § 198; Khlaifia and Others, cited above, §§ 238 and 248; and Hirsi Jamaa and Others, cited above, §§ 177 and 185).

119.  The Court therefore concludes that the applicants’ expulsion was of a collective nature, in breach of Article 4 of Protocol No. 4 to the Convention. There has accordingly been a violation of that Article.

120.  The applicants complained that they had not had an effective remedy under Cypriot law by which to raise their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 about their removal to Lebanon, as required by Article 13 of the Convention.

121.  Given the Court’s finding of a violation of the applicants’ rights under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention (see paragraphs 96 and 119 above), it is without question that the applicants’ complaints under those provisions were “arguable” and it follows that Article 13 of the Convention is applicable to the present case.

122.  The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

123.  The applicants maintained that they had not had at their disposal an effective domestic remedy with automatic suspensive effect in respect of their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention.

124.  The Government repeated the submissions they had made under Article 3 and Article 4 of Protocol No. 4 to the effect that the applicants had not claimed asylum (see paragraph 66 above) and they had not applied to the domestic courts (see paragraph 97 above).

125.  The Court has already found that the applicants did express their wish to apply for asylum in Cyprus and that the remedies suggested by the Government would not have been effective as they could not have had suspensive effect in the circumstances of the present case, given the applicants’ summary return to Lebanon (see paragraph 101 above).

126.  It follows that there has also been a violation of Article 13 of the Convention read in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention.

127.  The applicants complained about their treatment by the Cypriot Port and Marine Police over the two days during which they had remained on their boat. They complained that they had only been given food once, when they were first intercepted by the Cypriot Port and Marine Police; that they were left under the sun in high temperatures; that they had had to sleep on the boat; and that they had no access to hygiene facilities. They relied on Article 3 of the Convention.

128.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(a)   The applicants

129.  Concerning their treatment by the Cypriot Port and Marine Police, the applicants argued that they had only been given some bread and canned meat once, on the first day of the interception of their boat. After that, they had remained stranded for two days on their boat, where they had no food or hygiene amenities. The authorities provided them only with water, thrown at them in small bottles, which had been insufficient as they were under the sun and in high temperatures for two days. The next time they had been provided with food and water had been when they were transferred to the Cypriot chartered boat to be returned to Lebanon. Prior to their removal they had not been provided with any information about their situation other than the fact that they would not be allowed to enter Cyprus. The applicants presented several press articles from 2021 which had been published in Politis, a national daily newspaper. The articles stated that as early as August 2020 the Cypriot authorities had started leaving migrants stranded at sea for three or four days under the sun in the summer, or in the cold in the winter, without hygiene facilities, instead of taking them to a safe place to process them quickly, as a way to discourage arrivals by boat.

130.  The applicants further submitted that the receipts provided by the Government (see paragraph 132 below) had been misleading in that certain of them had shown purchases made in Larnaca or Limassol, cities approximately 50 km and 120 km distance respectively from the area where the applicants’ boat had been, while other receipts included products such as energy drinks or soft drinks, and the dates on some of the receipts did not correspond to the times of the events of the present applications. The only receipts accepted as relevant by the applicants were those of 6 and 7 September 2020 for purchases made in Paralimni – an area not far from where their boat had been - for water, twenty loaves of bread, thirty tins of canned meat and some fruit and vegetables, which had again been insufficient for thirty-three persons. In any event, the receipts did not show that food and water had been given to them and even if it were accepted that those receipts related to the food and water needed by the applicants, they could not objectively cover the needs of thirty-three persons for two meals a day for three days.

131.  The applicants accepted that the authorities had transferred a pregnant woman who had needed medical attention to hospital and had then returned her to the boat.

(b)   The Government

132.  The Government rejected the applicants’ claims concerning their treatment by the Cypriot Port and Marine Police. They repeated that the applicants had been provided with dry food and water on 5 September 2020, this being part of the “safety equipment” that was already available on Astrapi 32. On the following days the applicants had been provided with food and water twice a day. In this respect, the Government attached to its observations various receipts indicating the purchase of food and other goods from various stores (see paragraph 131 above). The Government added that the applicants had remained on the boat for two days while arrangements for their return to Lebanon were being made, which entailed communicating with the Lebanese authorities and chartering a second vessel. The Government further submitted that those in need of medical attention had been transferred to the hospital for examination. The way in which the applicants had been treated was compatible with Article 3 of the Convention.

133.  It is undisputed that the applicants were left at sea, along with other passengers, for two days without being allowed to disembark, while the area around their boat was patrolled by a larger coast patrol vessel (see paragraph 18 above). It is further evident that the applicants were fully dependent on the Cypriot authorities for the provision of food and their most basic human needs. On the basis of the casefile before the Court, it is unclear on which domestic legal provision the Government relied to keep the applicants on their boat at sea pending the determination of their status. Section 12(2) of the Aliens and Immigration Law merely states that a person entering the Republic of Cyprus by sea may not disembark without the consent of, inter alia, an immigration officer. Other than that, the said section does not make provision for the modalities of such refusal to disembark, for example for how long a person is to be kept on board at sea or under what material conditions, and the Government have not pointed to any other relevant legal provision to that effect. The absence of a relevant legal framework regulating the circumstances under which a person is to be kept at sea pending a determination of their status could on its own raise a structural issue for the purposes of Article 3 of the Convention. The Court will not however delve further into the matter in the absence of relevant arguments to this effect by the applicants in the context of their Article 3 complaint, which focuses instead on the conditions while on the boat per se. Regardless, it is evident that the applicants were under the control of the Cypriot authorities and it was the authorities’ responsibility not to subject them to such conditions as would constitute inhuman or degrading treatment contrary to Article 3 of the Convention (see Ilias and Ahmed, cited above, §§ 186-7).

134.  The Court observes first that it is not in dispute between the parties that medical assistance was given to those who needed it by transferring them to hospital and then back to the boat.

135.  The parties mainly disagree about the provision of food and water. It appears from the applicants’ accounts that the food and water provided had been insufficient for their needs for two days during the hot season in Cyprus. The Court finds merit in the applicants’ observations concerning the various discrepancies in the store receipts provided by the Government, in that they recorded the purchase of products which could not have been used for the needs of asylum seekers, at stores which were not near the applicants (see paragraph 130 above). From the few store receipts which did appear from their dates to be relevant, the proximity of the store to the applicants and the type of food purchased, the Court cannot discern whether those purchases concerned the applicants or other migrant boats which arrived on the island at about the same time (see, mutatis mutandis, A.E. and T.B. v. Italy, nos. 18911/17 and 2 others, § 87, 16 November 2023). The informal tables provided to the Court by the Government (see paragraph 67 above) showed the arrival of a boat other than the applicants’ on the island on 5 September 2020, while reports refer to a number of boats being “pushed back” between 29 August and 8 September 2020 (see paragraphs 44, 47 and 48 above). The Government’s arguments are therefore not sufficient to rebut the applicants’ allegations regarding the inadequate provision of food and water.

136.  Moreover, the Government have not refuted the applicants’ submissions that they had to sleep on the boat at sea for two days along with their fellow passengers, or that they were exposed to the heat and did not have access to hygiene facilities. The Government have also not commented on the local newspaper articles brought to the Court by the applicants recording the hardships faced by migrants who were on various occasions left at sea for days by the Cypriot authorities (see paragraph 129 above).

137.  In the particular circumstances of the present case, the Court finds that these conditions, which prevailed while the applicants were under the control of the authorities, caused the applicants considerable distress and feelings of humiliation of such a degree as to amount to degrading treatment prohibited by Article 3 of the Convention (see, mutatis mutandis, A.E. and T.B. v. Italy, cited above, § 89, with further references therein). There has accordingly been a violation of Article 3 of the Convention on account of the applicants’ treatment by the Cypriot authorities.

138.  Lastly, the applicants complained that they had been unlawfully arrested and detained on a boat for a period of two days, in breach of Article 5 § 1 of the Convention. They further complained of the alleged absence of an effective remedy against their unlawful arrest and detention, in violation of Article 5 § 4 of the Convention.

139.  Taking into account the facts of the case, the parties’ submissions and its findings under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention, the Court considers that it is not necessary to examine the applicants’ remaining complaints under this head (see, mutatis mutandis, Sherov and Others v. Poland, nos. 54029/17 and 3 others, § 70, 4 April 2024).

140.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

141.  The applicants claimed 7,000 euros (EUR) each in respect of non‑pecuniary damage on account of their mental and physical suffering during the two days when they were held at sea under conditions amounting to inhuman and degrading treatment and without having an effective remedy to challenge their treatment, contrary to Article 3 of the Convention. They further claimed EUR 15,000 each on account of their expulsion to Lebanon.

142.  The Government proposed to dismiss the applicants’ claim as excessive considering the Court’s case-law.

143.  The Court, making its assessment on an equitable basis, awards each applicant EUR 22,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

144.  The applicants also claimed 3,800 US dollars (USD) in respect of translation and interpretation expenses incurred in proceedings before the Court, including the travelling expenses of their interpreter to meet them and communicate with their lawyer for their effective representation before the Court. They further claimed EUR 4,700 jointly for legal costs incurred before the Court.

145.  The Government rejected the above claims as excessive and not reasonable as to quantum.

146.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for interpretation costs as the invoice provided by the applicants is not sufficiently itemised. However, having regard to the documents in its possession, the Court considers it reasonable to award the applicants the sum of EUR 4,700 for costs and expenses in the proceedings before it, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i)  EUR 22,000 (twenty-two thousand euros), plus any tax that may be chargeable, to each of the applicants, in respect of non-pecuniary damage;

(ii)  EUR 4,700 (four thousand seven hundred euros), jointly to the applicants, plus any tax that may be chargeable to them, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 8 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Milan Blaško Pere Pastor Vilanova
 Registrar President