Communicated on 4 May 2016
THIRD SECTION
Application no. 37139/13
Nashat MONIR LOTFY against Cyprus
lodged on 3 June 2013
STATEMENT OF FACTS
The applicant, Mr Nashat Moner Lotfy, is an Egyptian national, who was born in 1963 and lives in Larnaca. He is represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia.
A. The circumstances of the case
1. The applicant’s acquisition of Cypriot nationality
1. The applicant first visited Cyprus on 8 September 1991 on a two‑week visitor’s visa. After the visa expired, the applicant remained in Cyprus illegally until 21 March 1993 when he was deported.
2. While in Cyprus, the applicant had started a relationship with a Cypriot national, K.C. On 29 July 1993, the applicant entered Cyprus using a new Egyptian passport that was issued by the Egyptian authorities and, on 25 September 1993, the applicant and K.C. married in Cyprus.
3. The applicant continued to reside and work in Cyprus under temporary residence and work permits until September 2000 when he filed an application for citizenship. This was granted on 19 February 2002.
4. On 17 March 2003, the applicant filed a petition for divorce with the Nicosia Family Court on the ground that his marriage to K.C. had broken down irretrievably. On 17 November 2003 the petition was granted and the marriage was dissolved.
2. The removal of the applicant’s Cypriot nationality
5. On 6 August 2005, the applicant married an Egyptian citizen in Egypt. On 11 August 2005 the applicant applied to the Cypriot Embassy for an entry visa for his wife.
6. On 9 September 2005 the consular authorities rejected the application on the grounds that the applicant had provided false information to them as regards when he had married his new wife and whether he had ever been married before. It further appeared that the applicant’s petition to divorce K.C. had stated that he and K.C. had been separated since 1 February 2001. However, in his application for citizenship (made in September 2000 and granted in February 2002) the couple had stated that they were living together. (In his application to this Court, the applicant maintains that reference to February 2001 was a typing error in the petition which had been drafted by his lawyer: the couple had in fact separated in February 2003.)
7. As a result, on 21 August 2006, the Minister of Interior proposed to the Council of Ministers that the applicant’s Cypriot citizenship be removed, pursuant to section 113 (2) of the Census Bureau Law of 2002 (see paragraph 44 below) The Council of Ministers approved this proposal on 4 October 2006.
8. The applicant exercised his right to an investigation into this decision and, on 31 January 2007, the Council of Ministers appointed a committee to carry out the investigation. After hearing evidence from the applicant and his former wife, the committee found that the information provided by the applicant was indeed false and concluded that revocation of the applicant’s Cypriot citizenship would be justified. Accordingly, on 8 October 2007, the Minister of Interior revoked the applicant’s Cypriot citizenship.
9. The applicant filed a recourse with the Supreme Court (first instance revisional jurisdiction) against this decision (appeal no. 536/2008). On 20 September 2011 the Supreme Court rejected the applicant’s recourse, finding that the investigation committee had been entitled to find as it did. On 1 November 2011 the applicant appealed against the judgment of the Supreme Court (appellate revisional jurisdiction) (appeal no. 149/2011). On 9 April 2014 the appeal was rejected because the applicant’s lawyer failed to submit his skeleton argument within the prescribed time limits.
3. The applicant’s first deportation and subsequent re-entry to Cyprus
10. In June 2012, after being stopped during a routine traffic control, the applicant was arrested and deported from Cyprus.
11. The applicant subsequently re-entered Cyprus on an unspecified date. On 10 February 2013, he was arrested again in the course of a random street check by the police and, the following day, new orders of detention and deportation were issued against him. The applicant was detained on the same day pending his deportation.
4. The applicant’s challenges to his detention and deportation
(a) The first application for a writ of habeas corpus
12. On 11 July 2013 the applicant filed an application with the Supreme Court for a writ of habeas corpus on the ground that he had been detained for more than five months and the authorities had taken no action for his deportation in Egypt, in breach of section 18ΠΣΤ of the Aliens and Immigration Law (see relevant domestic law and practice, paragraphs 49-50 below) and in further breach of Article 5 § 1(f) of the Convention.
13. On 30 July 2013, the Supreme Court granted a writ of habeas corpus and ordered the applicant’s immediate release. The court found that the Government failed to show that the detention of the applicant for more than five months had been lawful: they had not informed the court as to the steps they had taken up to that point to execute the deportation order, or the reasons why it had not been carried out. Moreover, the Government had failed to inform the court whether the Minister of Interior had reviewed the order of detention (as required by section 18ΠΣΤ of the Aliens and Immigration Law) or, if Minister had done so, what his decision had been. Finally, the Government had not provided any further justification for keeping the applicant in detention.
14. Immediately after the judgment of the Supreme Court, and while he was still at the Supreme Court, the applicant was served with new orders of detention and deportation (dated 30 July 2013), and was detained again.
(b) The applicant’s recourse challenging the detention and deportation orders of 30 July 2013
15. On 7 August 2013, the applicant filed a recourse with the Supreme Court (first instance revisional jurisdiction) challenging the detention and deportation orders issued on 30 July 2013. He submitted that the orders had been issued in breach of the provisions of the Aliens and Immigration Law; Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Return Directive”); and Articles 3, 5, 8 and 13 of the Convention.
16. On 8 August 2013, in the context of this recourse, the applicant applied to the Supreme Court for a provisional order for the suspension of the orders of deportation and detention until the determination of the recourse.
17. The applicant submitted that, as a Coptic Christian, he would be at real risk of ill-treatment: Muslim groups in Egypt had systematically attacked Coptic Christians in response to the political events there.
18. On 14 August 2013, the Government informed the Supreme Court that the deportation order had been suspended in order to examine the applicant’s claim.
19. The same day, the Supreme Court ruled that, in light of the suspension of the deportation order, the applicant’s detention was no longer justified. Consequently, the court ordered the applicant’s release on bail, on the condition that he pay EUR 10,000 to the court as a security. The applicant was unable to pay the security and he therefore remained in detention.
20. On 4 October 2013, the Director of the Civil Registry and Migration Department considered that there was no risk that the applicant would be subjected to ill-treatment if he were deported to Egypt. For this reason, the deportation order would no longer be suspended.
21. On 7 November 2013, the Supreme Court rejected the applicant’s request for a further provisional order.
22. It appears that the substantive recourse is still pending before the Supreme Court.
(c) The second application for a writ of habeas corpus
23. On 27 September 2013 the applicant applied again to the Supreme Court for a writ of habeas corpus. He did so on the ground that his detention was excessively long and the authorities had not taken reasonable steps to carry out his deportation.
24. On 28 January 2014 the Supreme Court rejected the application. The court observed that the applicant’s detention had started on 11 February 2013 and had continued ever since. The length of his detention had been reviewed and extended by the Minister of Interior on two occasions: 19 June 2013 and 19 September 2013. The court further noted that the Government had shown that they had been trying to acquire travel documents for the applicant from the Embassy of Egypt but had faced difficulties because of the irregular political situation in Egypt.
25. On 8 July 2014 the applicant was deported to Egypt.
5. The applicant’s asylum proceedings
26. On 27 January 2014, while in detention, the applicant applied for asylum on the ground that he was in fear of being persecuted if returned to Egypt, because he was a Coptic Christian.
27. On 12 February 2014 the Asylum Service rejected the application on the ground that the applicant’s claims were not credible and that he had failed to show a well-founded fear of persecution taking into consideration the fact that the applicant visited Egypt fifteen to twenty times during his stay in Cyprus.
28. On 14 February 2014, the applicant appealed to the Refugee Reviewing Authority challenging the decision of the Asylum Service.
29. On 9 February 2015, that is, after the applicant’s deportation, the Refugee Reviewing Authority dismissed the applicant’s appeal.
6. Alleged ill-treatment during detention
30. The applicant alleges that he was ill-treated at the various detention centres where he was detained. His allegations and the steps he states he has taken to bring these allegations to the authorities’ attention may be summarised as follows.
(a) Aradippou Detention Centre
31. On 17 July 2013 the applicant wrote a letter to the officials at the Aradippou Detention Centre, where he was being detained at the time, complaining that, at 1 a.m. on 16 July 2013, in advance of an appearance he apparently had at the Supreme Court later that day, the applicant was transferred to Block 10 at the Nicosia Central Prisons. He alleged that, upon arrival at the prison, he was handcuffed to a chair throughout the night and the prison officers assaulted him when he complained.
(b) Ayia Napa Police Station
32. The applicant alleged that during his detention at Ayia Napa Police Station he was physically ill-treated by one and later by eight police officers. According to the applicant, despite his attempts to report the incident to the relevant authorities, the police officer in charge did not record his complaint and no further action was taken.
(c) Menoyia Detention Centre
33. By a letter dated 27 October 2013 the applicant complained that he was denied access to his medication or to the hospital. In the same letter the applicant claimed that, on 19 October 2013, he had asked to be transferred to a hospital. The authorities refused and he was only taken to see a doctor five days later. The applicant also claimed that, upon making this request, he was beaten up by the police officers at the detention centre.
34. On 29 October 2013, the applicant wrote another letter (it appears to the manager of the detention centre) claiming that he had been assaulted by a police officer, who had ordered him to remove his clothes and had made him shower in the presence of other police officers.
7. The allegedly poor conditions of the applicant’s detention
35. The applicant alleges that his conditions of detention – both at the police stations and the detention centres – did not comply with the minimum standards provided for by the Committee for the Prevention of Torture (“CPT”) of the Council of Europe, or the Twenty Guidelines on Forced Return of the Council of Europe. The applicant further maintains that he was detained for long periods of time in police stations, which were not equipped for immigration detainees.
B. Relevant domestic law and practice
1. The Constitution
36. Article 8 of the Constitution safeguards the right to freedom from torture or inhuman or degrading treatment or punishment.
37. Article 11, where relevant, provides:
“1. Everyone has the right to liberty and security of person.
2. No person shall be deprived of his liberty save in the following cases when and as provided by law:-
...
(f) the arrest or detention of a person to prevent him effecting an unauthorized entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition or of a national of the Republic with a view to extraditing or surrendering him...
...
7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
38. Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146(1) of the Constitution of the Republic of Cyprus. This provision provides as follows:
“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”
39. Upon such a recourse the Court may, by its decision: (a) confirm, either in whole or in part, such decision or act or omission; (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed (Article 146(4)).
40. The Supreme Court has exclusive jurisdiction to issue orders of habeas corpus (Article 155(4) of the Constitution).
2. Supreme Court jurisprudence on challenging deportation and detention orders
41. The legality of deportation and detention orders can only be challenged before the Supreme Court by way of a recourse brought under Article 146 of the Constitution (see paragraphs 38 and 39 above) and not in the context of a habeas corpus application. This is because the issue of legality of detention under administrative orders falls within the scope of administrative law (see, for example, the Supreme Court’s judgment of 30 December 2004 in Elena Bondar, appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075).
42. However, in the context of a habeas corpus application, the Supreme Court can examine the legality of an individual’s detention for the purposes of deportation if it appears that detention which was initially lawful subsequently became unlawful by exceeding a reasonably permissible length (see Essa Murad Khlaief (2003) 1 (C) CLR 1402).
43. A recourse under Article 146 does not have automatic suspensive effect. In order to suspend deportation, an application for a provisional order must be made. A provisional order is an exceptional, discretionary measure and is decided on a case-by-case basis (Rule 13 of the Supreme Constitutional Court Rules 1962). The Supreme Court will grant a provisional order if an applicant establishes that the contested decision is tainted by flagrant illegality or that he or she will suffer irreparable damage from its enforcement (see M.A. v. Cyprus, no. 41872/10, § 71, ECHR 2013 (extracts), with further references therein).
3. Census Bureau Law of 2002 (N. 141(I)2002)
44. Under section 113(2) and (5) of the above Law, the Council of Ministers may deprive a person of the Cypriot citizenship if it is satisfied first, that citizenship has been acquired through fraud, false representation or concealment of a substantial fact and second, that maintaining the individual’s citizenship not in the public interest. Before an order for removal of citizenship is made the individual has the right to an investigation (section 113(6)).
4. The Aliens and Immigration Law (Cap 105 as amended)
45. The entry, residence and expulsion of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105).
46. Under section 6(1) of the above Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”, which includes, inter alios, any person who enters or resides contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (sections 6(1)(k)). It also includes any alien who does not have in his possession an immigration permit granted by the Director of the Civil Registry and Migration Department in accordance with the relevant regulations. A prohibited immigrant can be ordered to leave the Republic under section 13 of the same Law.
47. The Director of the Civil Registry and Migration Department has power under the Law to order the deportation and, in the meantime, the detention, of any alien who is a prohibited immigrant under the Law’s provisions (section 14).
48. On 25 November 2011, the Aliens and Immigration Law was amended with the aim of transposing the Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Return Directive”). (The Return Directive itself took direct effect in Cyprus when the two-year deadline for its transposition passed on 24 December 2010).
49. Section 18ΠΣT(1) transposed Article 15(1) of the Return Directive and provides:
“1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, the Minister of Interior may issue an order by which to detain a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:
(a) there is a risk of absconding, or
(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.
Such detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.”
50. The Aliens and Immigration Law now provides that as a general rule the period of detention cannot exceed six months (section 18ΠΣT(7), which transposed Article 15(5) of the Return Directive).
The detention order shall be reviewed every two months or within a reasonable time (section 18ΠΣT(4), which transposed Article 15(3) of the Return Directive).
The length of detention may be reviewed by the Supreme Court in the course of an application for a writ of habeas corpus (section 18ΠΣT(5), which transposed Article 15(3) of the Return Directive).
5. Asylum
51. The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002. An Asylum Service was established for this purpose in the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims.
52. Asylum-seekers can appeal against decisions by the Asylum Service to the Reviewing Authority, which was established by the Refugee Law (Law 6 (I) of 2000, as amended). Procedures before the Asylum Service and the Reviewing Authority are suspensive: asylum-seekers have a right under section 8(1) of the Refugee Law to remain in the Republic pending the examination of their claim and, if lodged, their appeal. Although the authorities retain the power to issue deportation and detention orders against an applicant during this period, such orders can only be issued on grounds which are unrelated to the asylum application, for example, the commission of a criminal offence, and they are subject to the suspensive effect (see the Supreme Court’s judgment of 30 December 2004 in the case of Asad Mohammed Rahal v. the Republic of Cyprus (2004) 3 CLR 741).
53. The decision of the Reviewing Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146(1) of the Constitution (see paragraphs 38–39 above). According to section 8 of the Refugee Law, however, following the decision of the Reviewing Authority, an applicant has no longer the right to remain in the Republic. A recourse does not have automatic suspensive effect (see paragraph 43 above).
6. The Rights of Persons Arrested and Detained Law of 2005 (163(1)/2005)
54. The above Law applies, inter alios, to those detainees whose detention is permitted by Article 11(2)(f) of the Constitution (that is those, against whom action is being taken with a view to deportation).
55. Section 19 of the Law provides:
“(1) Every detainee has the right:
(a) not to be subjected to torture or inhuman or degrading treatment or punishment or any other physical or psychological or mental violence,
(b) to decent treatment, behaviour and living conditions
(c) to a cell of a reasonable size, which provides basic facilities and conditions of hygiene, sufficient light and ventilation, and proper furniture for rest.
(2) It is the State’s responsibility to safeguard the rights mentioned in paragraph (1).
(3) All persons responsible for a detention facility shall provide adequate and appropriate nutrition for, and ensure the physical and mental health, safety and physical integrity of, detainees.”
56. The rights of people under arrest and detention to prompt medical examination and care of their own choice, as well as the procedures to be followed when a detainee wishes to see a doctor, are set out in sections 23 and 27 of the Law.
57. Section 36(1) creates an actionable right to damages for a person who suffers a violation of his or her rights under the Law, irrespective of whether he or she has sustained any actual injury, damage, pecuniary or other loss as a result.
COMPLAINTS
58. The applicant complains that the conditions of his detention in various detention centres and the behaviour of the detention authorities amounts to inhuman and degrading treatment in breach of his Convention rights under Article 3. The applicant further complains under Article 3 that the level of humiliation he had felt due to the ill-treatment and the fact that he had to resort to extreme measures such as hunger strikes have left him with feelings of anguish and inferiority.
59. The applicant complains under Article 5 of the Convention that he had been illegally and arbitrarily deprived of his liberty from 11 February 2013 to 8 July 2014 as the authorities had not actively pursued his deportation. He further complains under Article 5 § 4 of the Convention that there was no effective and speedy remedy to allow him to challenge the lawfulness of his detention.
QUESTIONS TO THE PARTIES
Article 3: allegations of ill-treatment
1. Having regard to the allegations set out at paragraphs 30–34 of the Statement of Facts, has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
The Government are also requested to submit copies of all relevant documentation pertaining to the applicant’s detention and these allegations including any medical reports, detainee records and diaries of action.
Article 3: conditions of detention
3. In respect of his Article 3 complaints regarding his conditions of detention has the applicant exhausted domestic remedies which are required by Article 35 § 1 of the Convention? In particular, would section 36(1) of Rights of Persons Arrested and Detained Law of 2005 (Law 163(1)/2005) have provided an effective remedy for the applicant’s complaints?
4. If not, were the applicant’s conditions of detention in breach of Article 3 of the Convention?
Article 5
5. Was the applicant’s detention between 11 February 2013 and 8 July 2014 compatible with Article 5 § 1(f) of the Convention? In particular:
(a) Was the duration of the deportation proceedings excessive and were they carried out with due diligence? In this connection, when did the Government begin to take steps for the applicant’s deportation to Egypt and what were those steps?
(b) Was the applicant’s detention lawful in terms of domestic law and free from arbitrariness, having regard:
(i) to the fact that the applicant was an asylum-seeker for part of the relevant period of detention and thus ostensibly fell within the provisions of section 8(1) of Law 6 (I) of 2000 (Asad Mohammed Rahal v. the Republic of Cyprus (2004) 3 CLR 741); and
(ii) to the applicant’s re-arrest and continued detention despite the Supreme Court’s judgment of 30 July 2013?
(c) The Government are invited to submit all relevant documents pertaining to the applicant’s detention, including the decisions of the Minister of Interior extending the applicant’s detention.
6. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
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