THIRD SECTION
DECISION
Application no. 76341/17
Mostafa Mohamed Emam SEIF ELDIN
against Cyprus
The European Court of Human Rights (Third Section), sitting on 15 January 2019 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 31 October 2017,
Having deliberated, decides as follows:
FACTS, COMPLAINTS AND PROCEDURE
1. The applicant, Mr Mostafa Mohamed Emam Seif Eldin, is an Egyptian national, who was born in 1957.
2. He was initially represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia (see paragraph 37 below).
3. The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus.
A. Background facts
4. On 29 March 2016 the applicant hijacked an Egypt Air internal flight (flight no.181) from Alexandria to Cairo forcing it to divert to Larnaca international airport in Cyprus. He had threatened to blow it up. After a police operation and long negotiations, the hostages were released and the applicant was arrested by the Cypriot authorities. No one was harmed.
5. The applicant was detained at Nicosia Central Prisons.
6. On 4 April 2016 the Egyptian Government submitted an extradition request to the Cypriot authorities on the basis of an Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Extradition of Offenders which had been ratified by Law no. 13(III)/1996. They sought the applicant’s extradition to try him for the following offences (i) hijacking, taking hostages and resistance against the authorities (articles 88 and 88bis of the Egyptian Criminal Code); (ii) acts which endanger the security of an aircraft (article 168 of the Egyptian Aviation Law 28/1981); and (iii) acts in violation of articles 22 and 24 of the Egyptian Anti-Terrorism Law 94/2015).
7. On 8 April 2016 the applicant filed an asylum application with the Asylum Service which was dismissed on 27 April 2016.
8. His appeal was also dismissed by the Refugee Reviewing Authority on 30 March 2017.
9. The applicant then brought a “recourse” (judicial review proceedings) before the Administrative Court (recourse no. 25/2017).
10. On 18 May 2016 the Minister of the Interior (hereafter “the Minister”) signed the extradition documents so that the extradition procedure could be initiated.
11. An extradition application was lodged by the authorities before the Nicosia District Court (application no. 5/16).
12. On 30 September 2016 the Nicosia District Court decided in favour of the applicant’s extradition.
13. The applicant brought a habeas corpus application before the Supreme Court (first instance jurisdiction) challenging the findings of the Nicosia District Court (civil application no. 121/16). This was dismissed on 16 February 2017.
14. His appeal thereto (no. 35/2017) was dismissed on 2 November 2017 by the Supreme Court (appellate jurisdiction).
15. On 2 November 2017, after the conclusion of the extradition proceedings, the Minister took a final decision on the applicant’s extradition under section 11 of the Extradition of Fugitives Law (Law no. 97/1970, as amended) and issued an extradition order.
B. Complaints
16. The applicant complained that his extradition to Egypt would be in violation of Articles 2 and 3 of the Convention and that he would be at real risk of a flagrant denial of justice, contrary to Article 6, if tried in Egypt. Furthermore, he complained of the lack of an effective domestic remedy under Article 13 with regard to the above complaints. Lastly, he complained under Article 3 taken alone and in conjunction with Article 13 about the conditions of his detention at Nicosia Central Prisons and the lack of an effective remedy in this respect.
C. Procedure and developments in the case
17. On 31 October 2017 the applicant lodged a request under Rule 39 of the Rules of Court asking the Court to prevent his extradition to Egypt.
18. On 2 November 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be removed to Egypt until the Court had received additional factual information from the Government and had the opportunity to examine that information. On the same day, under Rule 54 § 2 (a) of the Rules of Court, a number of factual questions were put to the Government concerning the extradition and asylum proceedings.
19. On 13 November 2017 the Government informed the Court that the competent authorities had been notified of the interim measure adopted by the Court under Rule 39 and that the applicant’s extradition had been suspended in compliance with the Court’s decision.
20. The Government submitted the requested factual information on 27 November 2017 and the applicant’s comments in reply were submitted on 7 December 2017. In these the applicant requested the application of Rule 39 in relation to his conditions of detention at Block 10 of the Nicosia Central Prisons.
21. On 8 December 2017 the Court (the duty judge) decided to request the Government under Rule 54 § 2 (a) of the Rules of Court, in addition to their reply to the applicant’s comments on the extradition issue, to submit supplementary information on his conditions of detention.
22. The Government submitted their final comments in reply to those of the applicant on 20 December 2017.
23. On 21 December 2017, the Court (the duty judge) decided, in the light of information provided by the Government, to dismiss the applicant’s request for an interim measure concerning his conditions of detention.
24. On 9 January 2017 the Registry received a fax sent from the Nicosia Central Prisons which consisted of a handwritten statement in Arabic signed by the applicant on that day and a translation of that declaration in Greek by an interpreter. In this statement the applicant requested the Court to lift the interim measure so he could be sent to Egypt. On the same day the declaration was sent to Ms N. Charalambidou, requesting her to confirm the information sent by the applicant.
25. By a fax dated 15 January 2018 Ms N. Charalambidou informed the Court that she had visited the applicant on 13 January 2018. She provided the Court with a handwritten statement in Arabic signed by the applicant on that day and a translation in English. In this statement the applicant stated that he withdrew the request made on 9 January 2018 and wished to continue to be represented by Ms N. Charalambidou.
26. On 22 January 2017 the Court (the duty judge) reconsidered the application of Rule 39 preventing the applicant’s extradition to Egypt in the light of information provided by the parties and decided to maintain its application. At the same time the Court decided to give notice to the Government of the applicant’s complaints detailed above (see paragraph 16 above).
27. The Government submitted their written observations on the admissibility and merits of the applicant’s complaints on 21 March 2018 and the applicant submitted his observations in reply on 21 June 2018.
28. In the meantime, on 19 June 2018 the Registry received a fax sent from the Nicosia Central Prisons which consisted of a handwritten statement in Arabic signed by the applicant dated 18 June 2018 and a translation of this statement in Greek. In the statement he stated that he wanted to be surrended to Egypt for trial otherwise he intended to go on a hunger strike (no food or water) once ten days elapsed from this request.
29. On 20 June 2018 the declaration was sent to Ms N. Charalambidou requesting her to inform the Court of the applicant’s position in view of the fact that Rule 39 was in force.
30. By a letter dated 25 June 2018 Ms N. Charalambidou informed the Court that she had visited the applicant on 6 and 21 June 2018. What the applicant really wanted was to be moved from Block 10 to another part of the prisons. She also noted that at the meeting of 6 June 2018 the applicant had given her another handwritten statement in Arabic signed on that date. She provided an English translation. In this statement the applicant stated that he wished to be extradited to Egypt for trial due to the treatment he was being subjected to in Cyprus. Ms N. Charalambidou also attached a second handwritten statement in Arabic signed by the applicant and dated 20 June 2018. She provided an English translation. In this the applicant repeated that he requested his extradition to Egypt not because he wanted to return but due to the treatment he was receiving in the prisons in Cyprus and, in particular, in Block 10. He requested the Court to remove him from that block.
31. In her letter Ms N. Charalambidou asked the Court to reconsider its decision of 21 December 2017 under Rule 39 on the applicant’s conditions of detention (see paragraph 23 above).
32. On 28 June 2018 the Court (the duty judge) reconsidered the information submitted by the applicant on his conditions of detention and decided to maintain his decision of 21 December 2017. Ms N. Charalambidou’s letter of 25 June 2018 and all accompanying documents were sent to the Government for their comments concerning his conditions of detention. The applicant was also asked to confirm his position on the application of Rule 39 and whether he intended to maintain his application before the Court.
33. By a letter dated 2 August 2018 Ms N. Charalambidou informed the Court that on that date she had visited the applicant at Nicosia Central Prisons in order to clarify his intentions in relation to his application under Rule 39. The applicant had immediately given her two signed statements in Arabic dated 1 August 2018. She provided translations in English. In the first statement the applicant stated the following, in so far as relevant:
“... I am asking the European Court of Human Rights not to consider the issue of my extradition. This is what I decided and I am fully willing to hand myself over to the Egyptian authorities for my trial in Egypt and this is why I ask my extradition. ...”
34. The applicant’s second statement was for the attention of the Administrative Court stating that he wished to withdraw his recourse concerning his asylum application as he had decided he did not want to be given asylum but was willing to hand himself over to the Egyptian authorities.
35. In her letter Ms N. Charalambidou noted that she did not know under what circumstances the applicant had prepared the above two statements but the applicant had been adamant that this was his wish. He had instructed her to send both statements to the Court. He had refused to receive legal advice from her.
36. On 7 August 2018 the Court (duty judge), after reconsidering the application in the light of the information provided by the applicant’s lawyer in the letter of 2 August 2018, decided to lift the interim measure under Rule 39 concerning the applicant’s extradition. The applicant’s lawyer was requested to indicate whether the applicant’s request concerned only the application of Rule 39 or whether he wished to withdraw his application with the Court.
37. On 8 August 2018 the Registry received a fax sent from Nicosia Central Prisons which consisted of a handwritten statement dated 5 August 2018 in Arabic signed by the applicant and a translation of that statement in Greek by a translator-interpreter. In this statement the applicant stated that he requested the Court to discontinue the examination of his case. He requested his surrender to the Egyptian authorities for trial. He stated that he had withdrawn his authorisation from his lawyer and thus he was no longer represented by a lawyer before the Court. He also stated that he was withdrawing his asylum case from the domestic courts and that he was not represented by a lawyer before them. He requested that his surrender to the Egyptian authorities be expedited.
38. In view of the above statement, by a letter dated 9 August 2018, the applicant was informed directly of the decision of 7 August 2018 and was asked whether he wished to withdraw his application.
39. On 10 August 2018 the Registry received a fax sent from Nicosia Central Prisons which consisted of a handwritten statement in Arabic signed by the applicant on the above date and a translation of that declaration in Greek by a translator-interpreter. Τhis states as follows:
“I withdraw all my case from the European Court of Human Rights and I wish that it does not examine my case. I want my surrender to take place as soon as possible.
Thank you.
Here I mean my surrender to my homeland Egypt”.
40. By a letter dated 13 August 2018 the applicant’s statements received by fax on 8 and 10 August 2018 were sent to Ms N. Charalambidou.
41. In reply, by a letter dated 20 August 2018, Ms N. Charalambidou informed the Court that the applicant had been extradited to Egypt on 19 August 2018. She also attached a handwritten statement in Arabic dated 13 August 2018 signed on that date by the applicant with a translation in English. The translation reads as follows:
“I am Seif Eldin Mustafa Mohamed Imam. I confirm that I give up (withdraw) on the case under article 39 of the special extradition to Egypt... As well as the main case before the Court of the European Union. And I also give up on all cases before the Cypriot courts...I give up and I want my extradition and I do not have any reasons of pressure on me...But this is my will and my desire to be delivered to the homeland of Egypt. I will be safe in my situation and receive fair trials”.
42. Ms N. Charalambidou confirmed that the applicant had requested the withdrawal of his main application. Nonetheless she stated that she had never been informed by the applicant that he had withdrawn his authorisation to represent him before the Court or the domestic courts. She stated that should new facts arise in the future in relation to his statements and the circumstances in which they were made, and/or should new information arise about the applicant’s subjection to torture or inhuman treatment by the Egyptian authorities, the applicant should be given the right to request the reinstatement of his case.
43. By a letter dated 22 August 2018 Ms N. Charalambidou requested the Court to take into account that the application raised issues of serious human rights violations in relation to his extradition in Egypt as an asylum seeker and concerning his conditions of detention at Nicosia Central Prisons. She therefore requested the Court to continue with the examination of the application, notwithstanding his statements that he wished to withdraw it, and to determine whether there had been any violations of his rights under the Convention.
44. The Government’s final observations on the admissibility and merits of the case and the applicant’s claims of just satisfaction were received on 18 September 2018.
45. The applicant has not contacted the Court since his extradition.
THE LAW
46. Article 37 of the Convention reads as follows:
1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
47. The Court notes that the applicant, in his statement of 1 August 2018, initially requested the Court not to examine his complaints concerning his extradition to Egypt and affirmed his wish to be surrendered to the Egyptian authorities (see paragraph 33 above). The applicant also decided to give up on his asylum claim before the domestic courts (see paragraph 34 above). Following the applicant’s request, Rule 39 was lifted on 7 August 2018 and the applicant was extradited to Egypt on 19 August 2018 (see paragraphs 36 and 41 above).
48. In the meantime, following the Court’s requests for clarification, the applicant further confirmed in his statements of 10 August 2018 and 13 August 2018 that he wished to withdraw his application in its entirety (see paragraphs 39 and 41 above). He had already stated in his letter of 8 August 2018 that he was no longer represented by Ms N. Charalambidou (see paragraph 37 above).
49. Having due regard to the applicant’s own and explicit requests for the withdrawal of his entire application, the Court considers that the applicant’s intention to withdraw from the proceedings instituted before the Court has been unequivocally established (see as most recent authority Berlusconi v. Italy [GC], no. 58428/13, § 65, 27 November 2018). In accordance with Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue his application.
50. Furthermore, taking into account the facts of the case, the principles set out in its case-law on the matter (see Berlusconi, cited above, § 68, with further references), the fact that the applicant withdrew his appeal in the asylum proceedings and his unequivocal wish to withdraw his application, the Court concludes that no special circumstances relating to respect for human rights require it to continue the examination of the application in accordance with Article 37 § 1 in fine.
51. The Court would also reiterate that after it has struck an application out of its list of cases it can at any time decide to restore it to the list if it considers that the circumstances justify such a course, in accordance with Article 37 § 2 of the Convention (see, inter alia, Khan v. Germany [GC], no. 38030/12, § 41, 21 September 2016 with further references).
52. Accordingly, the case should be struck out of the list.
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 7 February 2019.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy