FOURTH SECTION
DECISION
Application no. 41816/10
F.A.
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 25 March 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 14 June 2010,
Having regard to the fact that on 25 August 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed Fourth Section,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the information submitted by the applicant’s representative,
Having regard to the comments submitted by the respondent Government requesting the Court to declare the application inadmissible as an abuse of the right of application and the applicant’s representative’s comments in reply,
Having regard to the decision to grant the applicant anonymity under Rule 47 §3,
Having deliberated, decides as follows:
THE FACTS
1. The applicant lodged his application under the name M.I. In his application form, he stated that he was an Ajanib (registered stateless) Kurd born in 1977 in Syria. He is currently living in Istanbul.
2. The applicant, who had been granted legal aid, was represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at the time, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The circumstances of the case
1. The applicant’s asylum claim and all relevant proceedings
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. According to the applicant, he left Syria illegally on 15 April 2008 and entered Cyprus illegally on 18 July 2008 after travelling from Turkey. He applied for asylum on 23 July 2008 under the name M.I.
5. In his application for asylum, the applicant claimed that he had fled Syria for three reasons. Firstly, he alleged that his human rights had been violated as he was an Ajanib Kurd. He furnished the authorities with a document from the Syrian Ministry of Foreign Affairs under the name M.I. stating that he was registered in the Al-Hasakah governorate’s register of foreigners. The applicant claimed that as an Ajanib Kurd, he could not open his own business, continue his studies or get married. Secondly, he was an active member of the Azadi Kurdish Party (which opposed the Syrian government) and the Syrian authorities had sought to make him their informer. Thirdly, he claimed that he would be imprisoned if he returned to Syria, as he had left the country illegally.
6. The Asylum Service held an interview with him on 9 January 2009.
7. His asylum application was dismissed on 27 January 2009 on the grounds that he did not fulfil the requirements of the Refugee Law of 2000‑2007, in that he had not shown that he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service held that the applicant had not established that he was in danger of persecution as a member of the Azadi Kurdish Party or by reason of being an Ajanib Kurd. Furthermore, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It therefore held that his asylum application had not been substantiated.
8. On 25 February 2009 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereinafter “the Reviewing Authority”) against the Asylum Service’s decision. On 12 January 2010 the decision was upheld and the appeal dismissed.
9. The Reviewing Authority pointed to contradictions in the applicant’s claims and held, having regard to all the information and evidence available, that they were unsubstantiated. It stressed, inter alia, that Ajanib Kurds were not persecuted on the basis of their ethnicity when they were not involved in anti-regime activities. The applicant had neither alleged that he had been harassed by the Syrian authorities nor that he had been persecuted because of his participation in the Azadi Kurdish Party’s activities. Furthermore, the Reviewing Authority observed that unless a person was an opponent of the regime, there was no real risk that leaving Syria illegally would result in persecution on their return. It also noted that according to its own research, Ajanib Kurds were entitled to, among other things, work in the public and private sector, receive an education and register their marriages and property.
10. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution and, if he returned to Syria, that his life would be in danger or he would be imprisoned. Nor did he satisfy the conditions for temporary residence on humanitarian grounds.
11. In February or March 2010 the applicant applied for legal aid for the purpose of bringing a “recourse” (judicial review proceedings) under Article 146 of the Constitution to challenge the Reviewing Authority’s decision (for the relevant domestic law see M.A. v. Cyprus, no. 41872/10, § 76, ECHR 2013). The respondent Government argued that the application for legal aid should fail as the recourse did not have a reasonable chance of success.
12. On 26 March 2010 the Supreme Court granted the applicant legal aid. It held that the case raised issues concerning the status of Ajanib Kurds and the consequences that this entailed, which had not been examined by it before. It considered that it should not dismiss, in advance, the possibility that the applicant could be successful in his recourse without giving him the opportunity, in view of the particularity of his case and after considering the lengthy documents submitted, to develop his arguments. It also observed that his refusal to be an informer for the Syrian authorities had obvious consequences and therefore it could not say that the recourse did not have a reasonable chance of success.
13. On 29 March 2010 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the Reviewing Authority’s decision of 12 January 2010.
14. On 12 April 2012 it was dismissed.
15. On 22 May 2012 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction), which appears to be still pending.
2. The applicant’s arrest and detention with a view to deportation and his request under Rule 39 of the Rules of Court
16. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia. The applicant took part and was arrested on 11 June 2010 when the authorities conducted an operation to remove the protesters. A detailed description of the relevant events can be found in the case of M.A. (cited above, §§ 29-43).
17. Deportation and detention orders were issued against the applicant on 11 June 2010 pursuant to section 14(6) of the Aliens and Immigration Law (Cap. 105, as amended) on the grounds that he was an illegal immigrant by virtue of section 6(1)(k) of the Law (see M.A., cited above, § 62). Subsequently, on the same date, a letter was prepared in English by the Civil Registry and Migration Department informing the applicant of the decision to detain and deport him (ibid., § 42).
18. In the meantime, a letter dated 1 June 2010 was sent to the applicant requesting him, in view of the Reviewing Authority’s dismissal of his appeal on 12 January 2010, to start making the necessary arrangements for his departure from Cyprus.
19. On 12 June 2010 the applicant, along with forty-three other individuals of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria.
20. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had received and examined all the documents relating to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. The applications were granted priority on the same date (Rule 41).
21. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five of the applications, including that of the applicant.
22. On 19 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
23. The applicant was released on 20 May 2011.
3. Habeas corpus proceedings
24. In the meantime, on 24 January 2011 the applicant lodged a habeas corpus application with the Supreme Court (first-instance jurisdiction).
25. On 23 February 2011 it was dismissed (for the relevant details of the proceedings, see M.A., cited above, §§ 50-55).
26. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011.
27. It was dismissed on 15 October 2012 on the grounds that the application was without object as the applicant had in the meantime been released.
4. Events after communication of the application
28. In a fax dated 1 August 2012 the applicant’s representative notified the Court that she had been informed by members of the Kurdish Syrian community in Cyprus that the applicant had been deported.
29. The Government replied in a fax dated 6 August 2012 that the authorities did not hold any records showing that the applicant had been deported or that he had even left Cyprus.
30. The applicant’s representative eventually managed to establish contact with the applicant with the aim of clarifying the circumstances of his departure from Cyprus. The applicant informed her that he had tried, in mid-July 2012, to leave Cyprus from Larnaca airport with a false European passport. He alleged that he had been apprehended by the police, to whom he had presented a Syrian passport under the name F.A., apparently his real passport. He had been detained for one night at the airport and during his detention had made an arrangement with the immigration authorities/police to be sent to Egypt with his Syrian passport, as Egypt did not require a visa for Syrian nationals. He had wanted to leave Cyprus as soon as possible to avoid being prosecuted for attempting to travel with false documents. He alleged that he had then made his way from Egypt to Turkey.
31. Following receipt of this information, the Government informed the Court that the authorities did not hold any records indicating the departure or deportation of anyone named F.A from Cyprus. They therefore suggested that the applicant might have left Cyprus from the occupied areas.
32. On 9 January 2013 the President of the Fourth Section, in the light of the information provided by the parties and the circumstances of the applicant’s departure from Cyprus, decided to lift the measure indicated under Rule 39. She also decided on the same date to change the name of the application to reflect what the applicant now claimed to be his true name.
COMPLAINTS
33. The applicant complained that his deportation to Syria would expose him to a risk of being subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention. In this connection, he complained of the lack of an effective remedy satisfying the requirements of Article 13. Further, he complained under Article 5 §§ 1 (f), 2 and 4 about his detention by the Cypriot authorities. Lastly, he claimed that his deportation would be in breach of Article 4 of Protocol No. 4.
THE LAW
A. The parties’ submissions
34. The Government argued that the application should be declared inadmissible as an abuse of the right of application, given that the applicant had lied about the fact he was a stateless Kurd. The application was therefore knowingly based on untrue facts with a view to deceiving the Court. They pointed out in this connection that one of the applicant’s main allegations was that if he was deported to Syria he faced a real risk of being subjected to inhuman and degrading treatment in breach of Article 3 on account of his statelessness.
35. The applicant’s representative submitted that the application had been made on the basis of the facts the applicant had given her, which were the same as those in his asylum application. The entire procedure at domestic level, including the various proceedings before the Supreme Court, was based on the same facts. She had no indication and thus no reason to doubt the veracity of the applicant’s identity and statements. She pointed out in this connection that the credibility of the applicant’s statements before the asylum authorities, in relation to his statelessness and political activity, was never questioned per se. When she found out about the applicant’s arrest at the airport and that he had a Syrian passport, she immediately proceeded to inform the Court. When she eventually established contact with the applicant she informed him of the importance of providing true and accurate information to the Court.
36. She also submitted that the applicant had explained that he had not revealed his true identity to the authorities because he had been afraid that his asylum application would be rejected just like the vast majority of asylum applications lodged before the Cypriot asylum authorities, and that he would be deported to Syria where he would face persecution and treatment contrary to Article 3 because of his political activity in the Azadi Kurdish Party. The Cypriot asylum authorities had not carried out a proper, fair and efficient asylum procedure and thus the applicant had lacked the necessary trust in them. Nor had he been given any information by the authorities about his rights and obligations in the procedure and the importance of giving a full and truthful account of the facts supporting his asylum claim. Furthermore, although the applicant had been released from prison, he had had no access to employment or to social security or medical assistance. When he had been arrested at the airport, he had been mentally, psychologically and physically unwell, which was a consequence of him being deprived for years of his basic rights and security. As he could not face detention again and the prospect of living without dignity, he had presented his passport and agreed to be deported to Egypt, where he could then try to seek asylum in another European country.
37. Lastly, the representative pointed out that the applicant’s asylum claim had not been based solely on his statelessness, but also on his political activism. The fact that he was not in fact a stateless Kurd had not detracted from the other part of his claim that he was of Kurdish origin, a minority persecuted and discriminated against in Syria, and that he was a Kurdish political activist, something not tolerated by the Syrian authorities, which had banned all political parties and persecuted political dissidents, particularly those of Kurdish origin.
38. In view of the particular circumstances of the applicant’s case, the representative requested the Court not to reject the application as an abuse of the right of application but to just discard the part concerning the applicant’s alleged statelessness.
B. The Court’s assessment
39. The Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 of the Convention must be understood to mean any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual petition as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). An application is likely to be dismissed on this ground if has been established that (a) it is knowingly based on untrue facts and false declarations (see, for example, Drijfhout v. the Netherlands (dec.), no. 51721/09, 22 February 2011; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; and Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007), or that (b) significant information and documents have been deliberately omitted, either where they were known from the outset (see (see Puusep v. Estonia (dec.), no. 67648/10, 7 January 2014; Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; and contrast Al-Nashif v. Bulgaria, no. 50963/99, § 89, June 20, 2002) or where new significant developments have occurred during the procedure (see Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013; Tatalović and Dekić v. Serbia, no. 15422/07, 29 May 2012; Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008; and F. v. Spain, no. 13524/88, Commission decision of 12 April 1991). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Khvichia and others v. Georgia (dec.), no. 26446/06, 23 June 2009; Predescu, cited above, §§ 25-26; and Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006).
40. Turning to the present case, the Court notes that the applicant gave the false name M.I. to the Cypriot authorities when filing his asylum application, and also alleged that he was a stateless Kurd when in fact he had a Syrian passport. It would appear that he furnished a forged document in this regard (see paragraph 5 above). He kept this name and maintained allegations as to his statelessness throughout the entire asylum procedure, including before the courts. It should also be noted that the main reason the Supreme Court granted his application for legal aid was because his case concerned the status of Ajanib Kurds and the consequences that this had (see paragraph 12 above). Similarly, he made his application to this Court under the same false name and continued to claim that he was stateless. In this connection, the Court notes that his Article 3 complaint was based, inter alia, on the allegation that as an Ajanib Kurd he was a member of a generally oppressed minority whose human rights were systematically violated. He also claimed to have left Syria illegally, as special travel documents for stateless Ajanib Kurds were only issued in exceptional circumstances and as a consequence he could face imprisonment if he returned to Syria.
41. There is no indication that the applicant’s representative was aware that he had used a false name and had made untrue claims as to his status. The Court has no reason to doubt that she only discovered this when investigating the circumstances of his departure from Cyprus, and takes note that she informed the Court immediately.
42. Nonetheless, the fact remains that the applicant lied to both the national authorities and the Court.
43. Having regard to its case-law in respect of the abuse of the right of application, the Court considers that lodging an application under a false name and with false claims of statelessness are contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention.
44. Accordingly, this application as a whole must be rejected as an abuse of the right of individual application pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy