Published on 16 May 2022
THIRD SECTION
Application no. 39090/20
M.A. and Z.R.
against Cyprus
lodged on 7 September 2020
communicated on 25 April 2022
SUBJECT MATTER OF THE CASE
The application concerns the summary return of two Syrian nationals to Lebanon, following the interception of their boat by the Cypriot Port and Marine Police, despite their alleged wish to seek asylum in Cyprus. The applicants are currently registered with the UNHCR in Lebanon but are allegedly unable to renew their residence permit and have no means of subsistence.
The applicants complain under Article 3 about their treatment by the coastguards while on the boat, the refusal of the authorities to allow them access to the asylum procedure, their return to Lebanon facing extremely dire living conditions, with a serious risk of indirect refoulement to Syria. In this connection, they complain of the absence of an effective domestic remedy by which they could challenge their expulsion, contrary to the requirements of Article 13 in conjunction with Article 3 of the Convention.
The applicants also complain that they were expelled as part of a collective measure, in breach of Article 4 of Protocol No. 4, with no available domestic remedy to challenge their expulsion in violation of Article 13 of the Convention.
The applicants further complain that they were unlawfully arrested and detained on a boat for a period of two days, in breach of Article 5 § 1 of the Convention and of the absence of an effective remedy against their unlawful arrest and detention, in violation of Article 5 § 4.
QUESTIONS TO THE PARTIES
1. Did the facts of which the applicants complain in the present case occur within the jurisdiction of the Republic of Cyprus (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 70-82, ECHR 2012)?
2. Did the applicants’ return to Lebanon by the Cypriot authorities expose them to a risk of being subjected to treatment in breach of Article 3 of the Convention (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 128‑41, 21 November 2019, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 365, ECHR 2011)?
Reference is made to the applicants’ claim that they risked indirect refoulement to Syria and that in Lebanon they were exposed to living conditions contrary to Article 3 of the Convention.
3. Did the circumstances and manner of the treatment of the applicants by the Cypriot Port and Marine Police amount to degrading or inhuman treatment in breach of Article 3 of the Convention (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 202-11, 15 December 2016)?
Reference is made to the applicants’ claim that they were only provided with food and water once during the two days while on the boat.
4. Were the applicants, aliens in the respondent State, expelled collectively, in breach of Article 4 of Protocol No. 4 (see, mutatis mutandis, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, §§ 166-88, 13 February 2020, and Hirsi Jamaa, cited above, §§ 166-86)?
Reference is made to the applicants’ claim that they had no individualised identification, no interviews to clarify the reasons for their arrival, and that no record was made of their expressed wish to seek asylum.
5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention (see, mutatis mutandis, Khlaifia and Others, cited above, § 279, and Shahzad v. Hungary, no. 12625/17, § 77, 8 July 2021)?
6. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention (see, mutatis mutandis, Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, §§ 159-63, 21 November 2019)?
Reference is made to the applicants’ claim that they were forced to stay on board and then forcibly transferred to a boat chartered by the Republic of Cyprus for their return, their access to the asylum procedure was impeded as a result of their detention, and they had no access to legal assistance.
7. Did the applicants have at their disposal a procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention (see Khlaifia and Others, cited above, §§ 128-31, and M.A. v. Cyprus, no. 41872/10, §§ 160‑62, ECHR 2013 (extracts))?
Appendix
List of applicants
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
M.A.
1983
Syrian
Idlib
2.
Z. R.
1983
Syrian
Idlib