Communicated on 9 February 2016
THIRD SECTION
Application no. 16870/11
Don Uditha Niroshana KAHADAWA ARACHCHIGE
against Cyprus
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants are represented before the Court by Mr V. Cooray, a lawyer practising in Negombo, Sri-Lanka.
A. The circumstances of the case
A request by the Rapporteur under Rule 49 § 2 for the Government to submit the file of the Aliens and Immigration Unit of the police as well as factual information concerning the criminal proceedings and the applicants’ detention and deportation, was replied to on 11 May 2011. From the information submitted by the Government and the reply provided by the applicants on 29 June 2011, the facts of the case may be summarised as shown below.
1. Background to the case
The applicants, who are Sri Lankan nationals, went to Cyprus for employment purposes.
The applicant in application no. 16870/11 (“the first applicant”) arrived in Cyprus on 20 April 2001. He was granted a residence permit until 19 July 2001 which was renewed until 10 May 2011. In the meantime, the applicant married another Sri Lankan national also working in Cyprus in 2003. Their daughter was born in 2007.
The applicant in application no. 16874/11 (“the second applicant”) went to Cyprus on 5 February 2010 and was granted a residence permit until 4 May 2010. This was renewed until 19 October 2011.
The first and second applicants’ temporary residence permits stated that they could be revoked at any time on fourteen days’ prior notice to the holder.
The applicant in application no. 16879/11 (“ the third applicant”) went to Cyprus on 4 March 2002. He was granted a residence permit until 3 May 2002. This was renewed until 12 February 2009. Following the expiry of his permit he remained irregularly in Cyprus. The third applicant submitted that he had applied for a renewal of his visa.
2. The applicants’ arrest, detention and deportation
(a) The applicant’s version of the facts
The first and the second applicants submitted that on 6 January 2011, while in the first applicant’s car, they passed by Agios Dometios in Nicosia and witnessed a group of Sri Lankans. They got out of the car and they saw persons holding swords and iron rods. Fearing for their lives, they abandoned the car and ran in different directions. The second applicant was injured during the clashes: his index finger was cut off and his middle finger injured. After the clashes, the first applicant took the second applicant to the Nicosia General Hospital where the latter underwent surgery. The second applicant claimed that the police went to the hospital and arrested him. He remained in the hospital after the surgery and on 9 January 2011 he was taken to and detained in Lakatamia police station. The first applicant claimed that on the morning of 7 January 2011 six people who had taken part in the clash attacked his residence and threatened to kill him if he went to the police. However, half an hour later, when he went to the police station to report the incident, he was arrested and detained on suspicion of being involved in the clashes. The third applicant claimed that he was also passing by that area with his car and stopped to see what was going on, but fearing for his life he ran away and left his car behind. He informed his employer and the latter informed the police about the clash. The police asked the third applicant to go to the police station to make a statement and to take his car back. On 7 January 2011 the third applicant went to Lakatamia police station and was arrested and detained on suspicion of being involved in the clashes.
(b) The Government’s version of the facts
On the evening of 6 January 2011, the police received information that about twenty aliens carrying offensive weapons (swords, clubs and Molotov cocktails) were in the area of Agios Dometios in Nicosia. The police immediately went to the site and discovered that a number of aliens had attempted to set fire to a house there by throwing Molotov cocktails. The police carried out an investigation into the events. They examined and collected evidence found in the area (including the first and third applicants’ cars). They reached the conclusion that the applicants, along with other six individuals, were likely to have been involved in the clash. A number of suspects, including the second applicant, had sustained injuries which had been treated at Nicosia General Hospital.
On 7 January 2011 the police arrested the nine individuals from Sri Lanka, including the applicants, on the basis of arrest warrants issued on the same day by the Nicosia District Court under section 18 of the Criminal Procedure Law (Cap. 155) and Article 11(3) of the Constitution, on reasonable suspicion that they had committed several offences including, inter alia, taking part in a fight in a public place contrary to section 89 of the Criminal Code (Cap. 154). On 8 January 2011 the Nicosia District Court sat in the Nicosia General Hospital. The applicants were remanded in custody under section 24 of the Criminal Procedure Law and Article 11(5) and (6) of the Constitution, for six days to enable the investigation to be concluded. The first applicant was detained in Paphos Gate Police Station in Nicosia and the second and third applicants in Lakatamia Police Station.
On 13 January 2011 the police investigation file, which included written statements by the applicants concerning the incident, was transmitted to the Attorney-General. The police informed the Attorney-General that that there was sufficient evidence against all the nine persons arrested, including the applicants, for the offence of taking part in a fight in a public place, but not as regards the remaining offences which were more serious. Upon the suggestion of the police, the Attorney-General decided not to prosecute the applicants but that they should deported instead.
On 14 January 2011 the residence permits of the first and second applicants were revoked by the Director of the Civil Registry and Migration Department pursuant to section 6(3) of the Aliens and Immigration Law on the ground that their conduct had posed a danger to the public order of the Republic. Deportation and detention orders were issued against the applicants on the same day: in respect of the first and the second applicants under section 6(1)(g) of the Aliens and Immigration Law on grounds of public order and in respect of the third applicant under section 6(1)(k) of the above Law on the ground of unlawful stay.
The first and third applicants were deported on 19 January 2011 and the second applicant was deported on 21 January 2011. The third applicant had also committed the offence of unlawful stay in Cyprus as his temporary resident permit had expired on 12 February 2009.
The Government submitted copies of the letters by the Ministry of Interior which were addressed to the applicants informing them of the decision to detain and deport them. The letters stated that the applicants were illegal immigrants: the first and second applicants pursuant to section 6(1)(g) of the Aliens and Immigration Law because their “conduct had been considered dangerous for reasons of public order” and the third applicant by virtue of section 6(1)(k) on the grounds of “illegal stay”. Consequently, their temporary resident permits/migration permits had been revoked and deportation and detention orders had been issued against them. The letters were dated 14 January 2011 and there was no address on them. On the copies of the letters there were signed notes by a police officer that the letters were served on the applicants on the day they were deported: on the first and the third applicants on 19 January 2011 and on the second applicant on 21 January 2011. There are also copies of two letters by a lawyer, dated 18 January 2011, sent by fax to the Minister of Interior stating, inter alia, that the lawyer was acting on behalf of the applicants and objecting to the deportation. The lawyer requested a meeting to discuss the matter with him.
The applicants were included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring).
B. Relevant domestic law
The entry, residence and deportation of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).
Under section 6(1) of the Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (section 6(1)(k)). Furthermore, a person can be considered to be a “prohibited immigrant” on, inter alia, grounds of public order, legal order or public morals or if he or she constitutes a threat to peace (section 6(1)(g)).
Section 6(2) provides that the Council of Ministers or, by its direction, any Director, may grant a licence for a prohibited immigrant to enter and remain in the Republic for such period and subject to such terms and conditions as to the Council of Ministers may seem fit. According to section 6(3), read in conjunction with section 13, any licence granted under section 6(2) may at any time be revoked by the Council of Ministers and, where such a licence is so revoked, the Chief Immigration Officer, who is the Minister of the Interior, may cause the person concerned to be arrested with a view to an order being made for his or her deportation as provided by section 14 of the law. Under the latter section, the deportation and, in the meantime, the detention of any alien who is considered “a prohibited immigrant” can be ordered by the Chief Immigration Officer.
Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for this decision, unless this is not desirable on public-security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. In addition, Regulation 19 of the Aliens and Immigration Regulations of 1972 (as amended) provides that when the Immigration Officer decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule of the Regulations.
Unauthorised entry and/or stay (section 19(1)(l) of the Aliens and Immigration Law) in Cyprus are criminal offences. Until November 2011, they were punishable by imprisonment or a fine (section 19(2)) of the Aliens and Immigration Law). Law 153(I)/2011, which entered into force in November 2011, removed the punishment of imprisonment but retained the criminal nature of the contraventions and their punishment with a fine (section 18).
COMPLAINTS
1. The applicants complain under Article 5 of the Convention that their right to liberty was violated because their arrest and detention was arbitrary and unlawful.
2. The first applicant complains of a violation of the right to respect for his private and family life under Article 8 as he was deported while he had his wife and child in Cyprus.
3. The applicants complain under Article 13 about the lack of an effective remedy in relation to their complaints.
4. The first and second applicants complain under Article 1 of Protocol No. 7 that, even though they were lawfully resident in Cyprus, they were deported without being informed about the decision and without any procedural safeguards.
QUESTIONS TO THE PARTIES
1. Questions concerning all the applicants under Article 5 §§ 1 and 4
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention between 14 January 2011 and their deportation on 19 January 2011 (first and third applicants) and 21 January 2011 (second applicant)?
In this connection, were, and if so, when were the applicants informed of the discontinuation of the criminal proceedings against them and the change of grounds of detention that occurred on 14 January 2011? Was this done in compliance with domestic law and procedure (see, for example, M.A. v. Cyprus, no. 41872/10, §§ 63-64, 211-216, ECHR 2013 (extracts))?
2. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?
2. Questions concerning the first applicant under Articles 8 and 13
3. Has there been a violation of the first applicant’s right to respect for his family life home contrary to Article 8 of the Convention?
4. Did the first applicant have at his disposal an effective remedy as required by Article 13, to raise his complaint about the alleged violation of his right to a family life under Article 8?
3. Questions concerning the first and second applicants under Article 1 of Protocol No. 7
5. Were the first and second applicants “lawfully” resident in Cyprus when they were removed?
The Government are requested to provide a copy of the decision to revoke the applicants’ residence permit and to refer to the legal provisions on which this decision was based.
6. If Article 1 of Protocol No. 7 is applicable:
(a) did the decision to expel the applicants comply with the procedural requirements of Article 1 § 1 (a), (b), and (c) of Protocol No. 7?
(b) was the exception contained in the second paragraph of that article applicable?
4. Request concerning all the complaints
The Government are requested to submit all the relevant provisions of domestic legislation and regulations applicable at the time as well as domestic case-law.
Appendix
No.
Application No.
Lodged on
Applicant
Place of residence
Date of birth
Place of residence in Sri Lanka
16870/11
22/02/2011
Don Uditha Niroshana KAHADAWA ARACHCHIGE
10/12/1974
Colombo
16874/11
22/02/2011
Dehiwalage Shehan FERNANDO
30/08/1978
Kochchikade
16879/11
26/02/2011
Dushan Aruna Shanthi BUDDA KORALAGE
16/12/1980
Pannipitiya
Full & Egal Universal Law Academy