Communicated on 9 July 2014
FOURTH SECTION
Applications nos. 3473/11 and 75381/11
Nawaf MEFAALANI against Cyprus
and Nawaf MEFAALANI against Cyprus
lodged on 23 December 2010 and 14 November 2011 respectively
STATEMENT OF FACTS
A. The circumstances of the case
The applicant, Mr Nawaf Mefaalani, is a Syrian national who was born in 1973 in Syria. He is living in Cyprus. He is represented before the Court by Mr C. Christodoulides, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant came to Cyprus in 1991. He was baptised a Christian Orthodox in 1992 and married a Cypriot national in 1993. As a result of this marriage he obtained Cypriot nationality in September 2000. Two years later he divorced his wife and married a Syrian national whom he also divorced in 2005.
On 10 March 2006 the applicant was informed by the Council of Ministers that it had decided to issue an order depriving him of his Cypriot citizenship. Following a request by the applicant, who contested the allegations against him, an investigative committee was set up. The applicant was also heard by the committee as part of the investigation.
On 8 July 2007 the applicant married a Cypriot national in Syria.
On 23 July 2007, on the basis of the report of the investigative committee, the Council of Ministers, decided to deprive the applicant of his Cypriot nationality on grounds of public interest pursuant to Section 113 of the Population Data Archives Laws of 2002. In particular, it was concluded that the applicant was involved in activities which showed disloyalty and disfavour to the Republic. This conclusion was based on information the authorities had that the applicant was involved in cigarette trafficking as well as in the trafficking of illegal immigrants between Syria and Cyprus.
The applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction; recourse no. 1226/07) seeking the annulment of the Council of Minister’s decision. His recourse was dismissed on 7 May 2008.
On 2 June 2008 the applicant lodged an appeal (appeal no. 82/08).
On 3 August 2008 the applicant was asked by the Civil Registry and Migration Department to hand in his certificate of naturalisation, his Cypriot passport and his Cypriot identity card.
While the appeal proceedings were pending, deportation and detention orders were issued against him on 25 August 2010. These were served on 22 September 2010 while he was in hospital at the Emergency Unit recovering from a road accident. He was placed under arrest on that date. He was subsequently transferred to a private hospital and remained under police guard until 22 October 2010. After that he was detained in a police station.
In the meantime, on 24 September 2010 the applicant brought a recourse (no. 1303/10) against the deportation and detention orders and also applied for an interim order for suspending his deportation and for an order for his release. The proceedings were suspended pending the appeal proceedings in appeal no. 82/08.
On 15 December 2010, the applicant informed the Supreme Court that he would leave Cyprus voluntarily. He claims that this was because his application for an interim order had not yet been heard.
On 20 December 2010, the applicant, whilst in detention, received a letter from the Civil Registry and Migration Department of the Ministry of Interior requesting him to pay, before his deportation, the sum of 30,356 euros (EUR) for detention expenses as well as EUR 1,200 for the legal costs incurred in recourse no.1226/07. The first sum was broken down as follows: (i) EUR 20,675 for the salaries of the police officers who guarded him when he was in hospital; EUR 2,650 as expenses for his detention and maintenance at the police detention facilities for fifty-three days; and EUR 5,831 as 25% administrative fees.
The authorities refused to release and allow the applicant to leave Cyprus unless he paid the above amount.
The applicant was deported on 29 January 2011. He does not state whether he paid the amount claimed.
Appeal no. 82/0812 was dismissed on 12 May 2011.
Upon his return to Syria, the applicant was arrested and subjected to torture by the Syrian authorities who considered him to be a spy and a threat to the country because he had previously been a Cypriot national, he had served in the Cyprus National Guard, he had become a Christian and he had led anti-Syrian Government groups.
The applicant returned to Cyprus on 20 March 2012. He then performed a civil marriage in Cyprus with his third wife, the one he had married in Syria in 2007.
On 21 April 2012 the applicant applied for a residence permit.
By a letter dated 11 June 2012 the Civil Registry and Migration Department of the Ministry of Interior informed the applicant that his application had been dismissed as he was considered a threat to the public order for the same reasons for which he had been deprived of Cypriot nationality and then deported on 29 January 2011. The applicant was asked to leave the country. He was also informed of his right to challenge the decision by way of a recourse. It does not appear that the applicant lodged a recourse.
The applicant is still in Cyprus.
It appears that the judicial review proceedings against the deportation and detention orders issued against him on 25 August 2010 are still pending.
COMPLAINTS
The applicant complains under Article 5 that his detention was unlawful. In particular, he complains that:
(a) he was detained on the basis of a decision of a public officer, without having been brought before a judge and in the absence of a court order;
(b) he was asked to pay the amount of 30,356 EUR as detention expenses and judicial costs before leaving Cyprus otherwise he would remain indefinitely in custody;
(c) he was kept in detention without being deported, without judicial remedy and without time-limit.
QUESTIONS to the parties
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, what was the legal basis for the applicant’s deprivation of liberty during the following periods?
(i) 22 September 2010 until 20 December 2010?
(ii) 20 December 2010 until 29 January 2011? (regard being had to the authorities’ letter of 20 December 2010 requesting the applicant to pay detention expenses and judicial costs before his deportation)
2. When did the authorities commence taking steps for deporting the applicant and what did they consist of?
3. (i) Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his/her detention, as required by Article 5 § 4 of the Convention?
(ii) Did the length of the judicial review proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?
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