Communicated on 5 February 2016
THIRD SECTION
Application no. 21771/14
Aksu KUTBETTIN
against Cyprus
lodged on 18 March 2014
STATEMENT OF FACTS
The applicant, Mr Aksu Kutbettin, is a Turkish national of Kurdish origin, who was born in 1975. It appears that he is currently in Turkey. He is represented before the Court by Mr Y. Polychronis and Mr M. Christodoulou, lawyers practising in Larnaca.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is married and the father of six children, born in 1998, 1999, 2000, 2001, 2004 and 2010.
The applicant left Syria alone on 20 November 2005 and entered Cyprus unlawfully on 15 December 2005.
He applied for asylum on 29 December 2005.
His wife and the five children they had at the time joined him in Cyprus on 9 September 2008.
On 16 September 2008 his wife applied for asylum and the two applications were joined.
An interview was held on 16 May 2008 with the Asylum Service and their asylum applications were dismissed on 6 August 2009.
Their appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”) against the Asylum Service’s decision was also dismissed on 22 June 2011.
In the meantime, on 31 March 2010, the applicant’s sixth child was born.
During the examination of the asylum applications the applicant was staying in Cyprus on the basis on a temporary resident permit.
On 28 July 2011 the applicant brought a “recourse” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority (recourse no. 991/2011).
By a letter dated 5 August 2011 the Civil Registry and Migration Department asked the applicant to make immediate arrangements to leave Cyprus with his family.
On 9 August 2011 the applicant applied for a resident and work permit on the ground that his recourse against the decision of the Reviewing Authority was still pending before the Supreme Court. It appears that he re-applied on 14 December 2011.
By a letter dated 27 July 2012 the Ministry of the Interior informed the applicant that his application had been refused and he was requested to leave Cyprus immediately.
Subsequently, by a letter dated 18 September 2012 the applicant was informed by the same Ministry that following an examination of his application he would be granted a special residence/employment permit for a year. Prior to the issuance of this permit, however, the applicant would have to sign a contract of employment with an employer indicated and approved by the Department of Labour.
It appears that the applicant found an employer but did not get the approval of the District Labour Office. He then complained to the Commissioner for Administration of the Republic of Cyprus (hereinafter “the Ombudsman”) by a letter dated 14 February 2013 about the hostile attitude of the District Labour Office and the difficulties he faced in finding an employer they would approve.
By a letter dated 27 May 2013 the Civil Registry and Migration Department informed the applicant that he had to make immediate arrangements to leave Cyprus with his family.
The applicant and his family remained in Cyprus.
On 2 October 2013 he filed a new application for a residence and work permit.
On 17 December 2013 the applicant was arrested and was placed in the Aradippou Police Station Detention facility. His wife was not arrested on humanitarian grounds.
On 18 December 2013 deportation and detention orders were issued against the applicant. He was informed of these orders the next day.
By a letter dated 18 December 2013 the Ombudsman expressed her concerns to the Minister of the Interior about, inter alia, the decision to detain him even though his recourse against the Reviewing Authority’s decision was still pending before the Supreme Court. She considered that it was necessary that the authorities examined the possibility of releasing the applicant and granting him a right to remain in the county pending the recourse proceedings, bearing in mind, in particular his family circumstances.
On 29 January 2014 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the deportation and detention orders (recourse no. 106/2014). At the same time, the applicant made an application seeking a provisional order for his release and to suspend his deportation pending the proceedings.
On 5 February 2014, following a decision by the Director of the Civil Registry and Migration Department, the applicant’s deportation was suspended pending the examination of his application.
On 12 February 2014 the Director of the Civil Registry and Migration Department reviewed the detention order and decided that the applicant should remain in detention (section 18 ΠΣΤ (4) of the Aliens and Immigration Law Cap. 105, as amended).
On 10 March 2014 the Supreme Court dismissed his application for a provisional order. It held that the applicant had not established that the orders were tainted by flagrant illegality. The court observed that the parties disagreed as to whether the filing of recourse 991/2011 extended the applicant’s asylum status. Determination of this issue required an examination and analysis of the applicable legal provisions that had been put before it. It could not be said therefore that the illegality was manifest. Furthermore, the issue was a legal one and could not be examined in the context of a provisional application. To the extent the applicant claimed that if deported he would suffer irreparable damage, the court noted that his asylum claim and appeal thereto had been dismissed by the authorities. His claims that he would be arrested and subjected to ill-treatment if returned to Turkey would be examined by the court in recourse no. 991/2011 and could not thus be examined in these proceedings.
The applicant was deported to Turkey on or around 17 July 2014.
The deportation orders were not enforced against his family and they continue to remain in Cyprus.
The proceedings in both recourses are still pending.
B. Relevant domestic law and practice
The relevant domestic law and practice, are set out in detail in A.H. and J.K. v. Cyprus, nos. 41903/10 and 41911/10, §§ 83-102 and § 21 July 2015
COMPLAINT
The applicant complains that there was no effective procedure by which he could challenge the lawfulness of his detention. He complains, in particular, about the delays in the examination of recourse no. 106/2014 brought against the deportation and detention orders issued against him.
QUESTION TO THE PARTIES
Did the applicant have at his disposal proceedings by which the lawfulness of his detention could be decided speedily, as required by Article 5 § 4 of the Convention?
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