FOURTH SECTION
DECISION
Application no. 41805/10
M.Is.
against Cyprus
The European Court of Human Rights (Fourth Section), sitting on 10 February 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 14 June 2010,
Having regard to the fact that on 25 August 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed Fourth Section,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr M.Is, is a Syrian national of Kurdish origin, who was born in 1982 in Syria.
2. He was represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at the time, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
3. The applicant left Syria in April or May 2004 and entered Cyprus illegally in April or May 2004 after travelling from Turkey. He filed an application for asylum in April or May 2004. This was dismissed by the Asylum Service on 4 July 2006. He then filed an appeal with the Reviewing Authority for Refugees on 2 August 2006 which was dismissed on 31 October 2006.
4. On 25 April 2007 the applicant was put on the authorities’ stop-list but it was noted that he would not be arrested for deportation purposes until further instructions were received from the Minister of the Interior.
5. On 24 June 2007, the Minister of Interior, following a meeting with the Cyprus-Kurdish Friendship Association on 23 June 2008 concerning applications that had been made by nineteen Kurds for residence permits, decided to grant all of them, including the applicant, a temporary residence permit for one year, on the condition that they found a local employer who had authorisation to employ third country nationals.
6. Following the expiry of his permit the applicant remained irregularly in Cyprus.
7. On 28 December 2009 the applicant married a Romanian national in Cyprus.
8. The applicant was arrested on 11 June 2010 following a demonstration by the Yekiti Party and other Kurds from Syria in Nicosia. A detailed description of the facts concerning the relevant events can be found in the case of M.A. v. Cyprus (no. 41872/10, §§ 29-43, ECHR 2013 (extracts)).
9. The applicant was kept in detention on the basis of deportation and detention orders that had been issued on 2 June 2010 pursuant to section 14 (6) of the Aliens and Immigration Law (Cap.105, as amended), on the ground that he was an illegal immigrant by virtue of section 6(1)(k) of the Law (see M.A., cited above, § 62). A letter had also been prepared in English on the same day by the Civil Registry and Migration Department informing the applicant of the decision to detain and deport him (ibid., §§ 35 and 42).
10. On 12 June 2010 the applicant submitted a Rule 39 request, along with forty-three other persons of Kurdish origin, as they were facing imminent deportation to Syria (see M.A., cited above, §§ 56-58). On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. The applications were granted priority on the same date (Rule 41).
11. Furthermore, on 14 June 2010 the applicant gave a statement to the police in which he informed them that he had married a Romanian national but had not applied for a residence card because his passport had expired on 27 April 2010. A statement was also taken from the applicant’s wife on the same day.
12. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties and decided to lift the measure in thirty-nine of the applications, including the present one.
13. The applicant was released on 26 October 2010 and was not deported.
14. On 19 January 2011 the applicant’s complaints under Article 5 §§ 1 (f), 2 and 4 of the Convention, Articles 2 and 4 of Protocol No. 4 and Article 1 of Protocol No. 7 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
15. On 30 November 2012 the President of the Section decided on her own motion to grant the applicant anonymity under Rule 47 § 3 of the Rules of Court.
16. On 9 December 2010 the applicant applied for a residence card of a family member of a Union citizen on the grounds of his marriage with an EU citizen.
17. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was living in Cyprus with his wife.
COMPLAINTS
18. The applicant complained that his deportation to Syria would entail the risk of him being subjected to treatment in breach of Article 3 of the Convention. In this respect he also complained of the lack of a remedy satisfying the requirements of Article 13 of the Convention. Further, the applicant complained under Article 5 §§ 1 (f), 2 and 4 of the Convention about his detention by the Cypriot authorities. Lastly, the applicant complained of a violation of his rights under Articles 2 and 4 of Protocol No. 4 and Article 1 of Protocol No. 7.
THE LAW
19. The Court observes that following a request by the Registry for updated information on the applicant’s situation, and in particular, the outcome of his application for a residence card of a member of a family of a European Union citizen, the applicant’s representative, by a fax dated 6 November 2014, informed the Court that she had lost contact with the applicant. She noted, however, that she had been informed by other Syrian Kurds in Cyprus that the applicant had obtained a residence card and that he had left Cyprus with his wife. According to this information the applicant was in Germany. By a fax dated 20 November 2014 she informed the Court that she had not managed to re-establish contact with the applicant but that members of the Kurdish community in Cyprus were trying to trace him. By a fax dated 2 December 2014 the applicant’s representative confirmed that she had not been able to trace the applicant. Despite this she requested the Court to continue with the examination of the application taking into account the difficulties she faced in locating the applicant due to the ongoing war in Syria and the fact that many Syrian Kurds were continuously on the move.
20. The Court notes that the applicant did not notify Ms Charalambidou of his departure from Cyprus and has not contacted her since. Therefore, she and, consequently, the Court are not in a position to communicate with him. The Court is conscious of the difficulties faced by Ms Charalambidou to locate the applicant. It is of the opinion, however, that the applicant’s failure to inform his Cypriot advocate that he was leaving Cyprus and to keep some form of contact with her can be taken as indicating that he has lost interest in pursuing his application. Although it is true that the applicant did authorise Ms Charalambidou to represent him in the proceedings before the Court, given the impossibility of establishing any communication with the applicant, the Court considers that Ms Charalambidou cannot now meaningfully pursue the proceedings before it (see the approach taken in M.Z. v. Cyprus (dec.), no. 44735/10, 14 January 2014 and M.H. and Others v. Cyprus (dec.), no. 47744/10 et seq, 14 January 2014 with further references). Any decision on the admissibility or merits would amount to an academic exercise.
21. In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
22. In view of the above, it is appropriate to strike the case out of the list. The Court, however, reserves the power to restore the case to the list in the event of fresh circumstances capable of justifying such a course (see Ali v. Switzerland, 5 August 1998, § 33, Reports of Judgments and Decisions 1998‑V).
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 5 March 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy