THIRD SECTION

DECISION

Application no. 21771/14 Aksu KUTBETTIN against Cyprus

The European Court of Human Rights (Third Section), sitting on 7 May 2018 as a Committee composed of:

Branko Lubarda , President, Pere Pastor Vilanova, Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 18 March 2014,

Having regard to the declaration submitted by the respondent Government on 24 October 2016 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Aksu Kutbettın , is a Turkish national of Kurdish origin, who was born in 1975. The applicant is currently in Turkey. He was represented before the Court by Mr Y. Polychronis and Mr M. Christodoulou, lawyers practising in Larnaca .

2. The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides , Attorney -General of the Republic of Cyprus.

3. On 17 December 2013 the applicant was arrested and was placed in detention with a view to his deportation. His asylum application had been dismissed by the Asylum Service and his appeal thereto by the Refugee Reviewing Authority. At the time of his arrest, his “recourse” (judicial review proceedings) against the latter decision were pending before the Supreme Court (recourse no. 991/2011).

4. On 18 December 2013 deportation and detention orders were issued against the applicant.

5. On 29 January 2014 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the deportation and detention orders (recourse no. 106/2014). An application seeking a provisional order for his release and to suspend his deportation pending the proceedings was dismissed by that court on 10 March 2014.

6. The applicant was deported to Turkey on 18 July 2014. He was also included on the authorities ’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring).

7. The proceedings in recourse no. 106/2014 were pending at the time of his deportation. They were subsequently transferred to the new Administrative Court following it s establishment. No more information has been submitted by the parties concerning the state of these proceedings.

8. On 15 June 2016 the Supreme Court gave judgment in favour of the applicant in recourse no. 991/2011) annulling the Refugee Reviewing Authority ’ s decision. On 30 March 2017 the deportation orders against the applicant were annulled and he was removed from the stop-list.

9. The applicant complained that there was no effective procedure by which he could challenge the lawfulness of his detention. He complained, in particular, about the delays in the examination of recourse no. 106/2014 brought against the deportation and detention orders issued against him.

10. On 5 February 2016 the applicant ’ s complaint was communicated under Article 5 § 4 of the Convention and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. On the same date the Turkish Government were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of this right.

THE LAW

11. After unsuccessful friendly-settlement negotiations, by letter dated 24 October 2016 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ 1. The Government notes that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.

2. The Government acknowledges - by way of a unilateral declaration - that during the applicant ’ s detention between 18 December 2013 and 18 July 2014, the applicant did not have at his disposal a speedy procedure by which he could challenge the lawfulness of the detention order issued against him on 18 December 2013 for the purposes of deportation and consequently the lawfulness of his detention. Therefore, the Government acknowledges that there has been a violation of the applicant ’ s right under Article 5 § 4 of the Convention.

3. Consequently, having regard to the particular facts of the present case, the Government is prepared to pay the applicant the amount of EUR 6500 covering any pecuniary and non-pecuniary damage. It is contended that such amounts constitute adequate redress and sufficient compensation for the impugned violation in the present case. Regarding costs and expenses, the Government is prepared to pay the applicant the amount of EUR 1000 for costs incurred at domestic level and at the ECHR proceedings. These amounts will be payable within three months from the date of notification of the decision pursuant to article 37 § 1 (c) of the Convention. In the event of failure to pay these sums within the said t h ree-month period, the Government undertakes to pay simple interest on them, from expiry of the period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

4. A series of measures have been adopted following the Court ’ s judgment in the case of M.A. v. Cyprus (no, 41872/10), for the purposes, inter alia, of preventing future violations similar to the present one. It is recalled that the Court in M.A. v. Cyprus found that there had been a violation of Article 5 § 4 of the Convention as a recourse by virtue of Article 146 of the Constitution would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him for purposes of deportation. The measures adopted are duly documented in the Action Plans ( DD( 2016)816, DD(2015)1369, DD(2015)666 and DD(2014)925) submitted by the Government to the Department for the Execution of Judgments of the Court.

5 . The first measure taken to redress violations of Article 5 § 4 is the establishment of an Administrative Court, vested with the exclusive jurisdiction to adjudicate, on a first instance level on any recourse lodged with it by virtue of article 146 of the Constitution. Therefore, the lawfulness of detention and deportation orders can now be challenged before the Administrative Court by way of an administrative recourse (see Law Providing for the Eighth Amendment of the Constitution, Law 130(I)/2015 and Law Providing for the Establishment and Operation of Administrative Court, Law 131(I)/2015).

6. On 1 January 2016 the Administrative Court began its operation and as of 1 January 2016 all administrative recourses, including challenges to the lawfulness of deportation and detention orders by virtue of Article 146 of the Constitution, are lodged with the Administrative Court . Administrative recourses which had been pending before the Supreme Court have been transferred to the Administrative Court, whilst those for which the Supreme Court reserved its judgment, remain with the Supreme Court.

7. It is expected that due to its exclusive jurisdiction to adjudicate on administrative recourses the Administrative Court will have better records in terms of speediness concerning all administrative recourses, including recourses challenging the lawfulness of detention and deportation orders.

8. The second measure taken to ensure compliance with Article 5 § 4 of the Convention is the amendment of the Refugee Laws by Law 105(I)/2016, which entered into force on 14 October 2016. Law 105(I)/2016 is attached herewith as exhibit A. According to Article 9 Στ (6) of the Refugee Law as amended, a recourse by virtue of Article 146 of the Constitution challenging the lawfulness of a detention order must be completed as soon as possible and in any event, the Administrative Court must deliver its judgment within four weeks from the date on which the recourse was filed.

9. The Government maintains that the establishment of the Administrative Court and the amendment of the Refugee Laws described above, constitute important practical measures which are expected to improve the speediness concerning all administrative recourses, particularly recourses challenging the lawfulness of detention and deportation orders.

10. In light of the above, it is contended that respect for human rights as defined in the Convention and the Protocols thereto, does not require the Court to continue its examination of this particular case and the Government respectfully requests the Court to strike the application out of its list of cases in accordance with Article 37 § 1 of the Convention.”

12. By a letter of 22 March 2017 the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He submitted that due to the lack of a remedy to suspend the enforcement of the detention orders he had been deprived of his liberty and had suffered pecuniary and non  pecuniary damage. He had also incurred significant legal costs. The award offered by the Government was inadequate on all counts.

13. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application .”

14. It also reiterates that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

15. To this end, the Court will examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03, 18 September 2007).

16. In considering whether it would be appropriate to strike out th e pres ent application on the basis of the unilateral declaration, the Court makes the following observations.

17. Firstly, the Court, in the case of M.A. v. Cyprus (no. 41872/10, §§ 160-170, ECHR 2013 (extracts)), held that a recourse under Article 146 of the Constitution did not comply with the requirement of “speediness” and thus, found a violation of Article 5 § 4 (see also the subsequent judgments in Mefaalani v. Cyprus , nos. 3473/11 and 75381/11 , § 100, 23 February 2016 ; A.H. and J.K. v. Cyprus , nos. 41903/10 and 41911/10 , §§ 151-153, 21 July 2015 ; H.S. and Others v. Cyprus , nos. 41753/10 and 13 others , §§ 288-290, 21 July 2015; and K.F. v. Cyprus , no. 41858/10 , § § 99-101, 21 July 2015).

18. Secondly, the Government have conceded in their declaration that there has been a violation of Article 5 § 4 of the Convention.

19. Thirdly, the Government, following the Court ’ s judgment in M.A. v. Cyprus (cited above), have introduced changes to the relevant domestic laws with the aim of improving the speediness of administrative recourses (Law Providing for the Eighth Amendment of the Constitution, Law no. 130(I)/2015; Law Providing for the Establishment and Operation of Administrative Court, Law no. 131(I)/2015; and Law 105(I)/2016 amending the Refugees Law, Law no. 6(I)/2000).

20. Fourthly, the Government have undertaken to provide redress to the applicant by paying him damages for non-pecuniary damage as well as costs and expenses. The Court considers, taking into account the circumstances of the case and all the relevant documents in the case-file, that the sums proposed are reasonable and in keeping with the Court ’ s criteria governing awards under Article 41.

21. Therefore, in light of the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

22. Moreover, in light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

23. The Court considers that the amounts the Government have undertaken to pay in their declaration should be paid within three months from the date of notification of the Court ’ s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

24. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, th e application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

25. In view of the above, it is appropriate to strike the case out of the list .

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 31 May 2018 .

             Stephen Phillips Branko Lubarda Registrar President