Communicated on 7 September 2015

FOURTH SECTION

Application no. 47920/12 Mustafa HAGHILO against Cyprus lodged on 9 October 2012

STATEMENT OF FACTS

The applicant, Mr Mustafa Haghilo , is an Iranian national, who was born in 1973 and is currently living in Armenia. He is represented before the Court by Ms N . Charalambidou , a lawyer practising in Nicosia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. First arrest and detention with a view to deportation

The applicant submitted that he was a member of Basij , a paramilitary volunteer militia. He deserted the militia after receiving orders to suppress demonstrations and arrest citizens. He was then informed that Basijis (militia members) were looking for him in order to arrest him and execute him. He left Iran and on 21 March 2011, after travelling to Turkey and then to the “Turkish Republic of Northern Cyprus” (“TRNC”), he entered Cyprus unlawfully.

On 28 March 2011 the applicant was arrested at Larnaca airport after he attempted to take a flight to London using a false Romanian passport. He was placed in the Nicosia Central Prisons.

On 29 March 2011 the applicant appeared before the Larnaca District Court which ordered his detention for three days.

On 31 March 2011 the District Aliens and Immigration Branch of the Larnaca Police was informed that the Attorney-General had decided that criminal proceedings against the applicant would not serve the public interest and that they should proceed with his deportation. By a letter dated 4 April 2011 to the Aliens and Immigrations Service they recommended the issuance of deportation and detention orders against the applicant as they considered there was a danger of him absconding if he was released following the expiration of the detention order on 5 April 2011.

On 4 April 2011 detention and deportation orders were issued by the Permanent Secretary of the Minister of Interior under section 14 of the Aliens and Immigration Law (Cap. 105) . A letter (written in English) by the Ministry of Interior dated 4 April 2011 was addressed to the applicant informing him that he was an illegal immigrant under sections 6(1) (k) and (l) of the Aliens and Immigration Law and of the decision to detain and deport him. The text of the letter addressed to the applicant reads as follows:

“You are hereby informed that you are an illegal i mmigrant by virtue of paragraph (K) (L). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because of you illegal entry [sic] .

Consequently (your temporary residence permit/migration permit has been revoked) and I have proceeded with the issue of deportation and detention orders dated 04 th April 2011 against you.

You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.”

On the letter there is a signed note by a police officer that the letter was served to the applicant on 5 April 2011 at 12:05 and that he refused to sign it.

The applicant was detained at Famagusta Police Station (holding facilities for immigration detainees at the former Famagusta Police Station in Larnaca Division).

2. The applicant ’ s asylum claim and all relevant proceedings

The applicant applied for asylum on 12 April 2011 and an interview was held on 19 April 2011 with the Asylum Service.

His application was dismissed by the Asylum Service on 30 April 2011 on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2009, namely, he had not shown a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. He had not therefore established that he was entitled either to a refugee status or to subsidiary protection status. The Asylum Service noted that there had been discrepancies in the account of the facts given by the applicant which undermined his credibility. In particular, there had been significant contradictions regarding the instructions he had allegedly received from Basijis to suppress demonstrations and arrest citizens. Further, although he had claimed that complaints had already been made against him in the past for disobeying, he was not able to explain the consequences this had had on him. In addition, he was not able to remember the personal number he had as a Basiji although he had allegedly been with them for six years. In conclusion, the Asylum Service found that the asylum application had not been substantiated.

On 1 June 2011 the applicant lodged an appeal with the Reviewing Authority for Refugees (“Reviewing Authority”) against the Asylum Service ’ s decision. This was dismissed on 10 August 2011.

The Reviewing Authority upheld the decision of the Asylum Service. In its decision it observed that the applicant ’ s claims had not been credible and had been vague and unsubstantiated. New claims made before the Reviewing Authority that he was a member of Mujahadeen -e Khalq and that his brother had been killed at the recent Camp Ashraf attack had not been raised in his application form or during the interview with the Asylum Service.

The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution if he returned to Iran. Nor did he satisfy the conditions for temporary residence on humanitarian grounds.

During the period of the examination of the applicant ’ s asylum claim and appeal the deportation order was suspended.

On or around 1 September 2011 the applicant was transferred to Paphos Central Police Station. He states that this was after he complained about ill ‑ treatment by the police at Famagusta Police Station.

On 10 October 2011 the applicant brought a recourse before the Supreme Court ( first instance revisional jurisdiction – no. 1320/2011 ) under Article 146 of the Constitution challenging the decision of the Reviewing Authority.

It appears that the applicant was not deported because he did not co ‑ operate with the authorities for the purpose of securing travel documents.

3. Habeas corpus proceedings

On 9 November 2011 the applicant filed a habeas corpus application ( no.133/2011 ) challenging the lawfulness of his detention due to its duration.

O n 25 November 2011, w hile the proceedings were pending, Law no. 153(I)/2011, transposing Directive 2008/115/EC of the European Parliament and of the Council of the 16 December 2008 on common standards and procedures in Members States for returning illegally staying third-country nationals into national law came into force.

On 29 November 2011 the Ministry of Interior extended the applicant ’ s detention for up to eighteen months on the basis of Section 18 ΠΣΤ § 8 ( α ) of the Aliens and Immigration Law.

On 22 December 2011 the Supreme Court ruled in favour of the applicant and ordered his immediate release. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the application as it was called upon to examine the lawfulness of the applicant ’ s protracted detention and not the lawfulness of the deportation and detention orders. The Aliens and Immigration Law expressly provided that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds.

The Supreme Court then examined the substance of the application and held that the applicant ’ s detention after 4 October 2011, that is following a period of six months, was illegal on the basis of the Directive which at the time had direct effect in domestic law. In this connection it held that the six ‑ month period provided for in Article 15 (5) of the above Directive had started to run from 4 April 2011 and had ended on 4 October 2011. Although Article 15 (6) of the Directive provided for the possibility of extending detention for a limited period not exceeding a further twelve months if there was a lack of cooperation by the third country national, it provided that this should be applied in accordance with the provisions of the national law; there was no national law in force when the six-month period expired in this case. As Law 153(I)/2011, transposing the Directive into national law, came into force after the expiration of the six-month period and after the date the habeas corpus application was filed, it could not apply to the applicant. Furthermore, the extension to the applicant ’ s detention by the Minister of the Interior on the basis of that law was made after the expiration of the six-month period. It therefore did not fall within the legal framework applicable at the time and the Ministry of Interior could not retrospectively validate the applicant ’ s detention.

4. Second arrest and detention with a view to deportation

The applicant was re-arrested upon leaving the courtroom and on the same day new detention and deportation orders were issued against him on the same grounds as the first detention and deportation orders under section 6 (1) of the Aliens and Immigration Law, that is, that he was an illegal immigrant under sections 6(1) (k) and (l) of the Aliens and Immigration Law. He was taken back to Paphos Central Police Station. A letter (written in English) by the First Chief Administrative Officer of the Ministry of Interior dated 22 December 2011 was addressed to the applicant informing him of the decision to detain and deport him. The text of the letter addressed to the applicant reads as follows:

“You are hereby informed that you are an illegal immigrant by virtue of paragraph (K) ...( L). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because of illegal stay and entry.

Consequently I have proceeded with the issue of deportation and detention orders dated 22-12-2011 against you.

You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.”

On the letter there is a signed note by a police officer that it was served on the applicant on 22 December 2011 at 12:10 p.m. and that he refused to sign it.

On 22 December 2011 the applicant ’ s representative sent a fax to the Minister of Interior and the Chief of Police stating that the new detention and deportation orders were in conflict with the Supreme Court ’ s judgment in the applicant ’ s Habeas Corpus application ( no.133/2011 ) of 22 December 2011. She pointed out that the grounds of the orders were the same as those issued previously and that the applicant ’ s detention had been found to be unlawful. She also stressed that the applicant had been detained even though he was an asylum seeker. She requested the applicant ’ s release. She also requested, in the event that the authorities continued to detain him, that the applicant be transferred to another facility as he was being held at Paphos Central Police Station, along with criminal suspects, in inhuman and degrading conditions. The applicant claims that no reply was received by the authorities.

On 28 December 2011 the new detention and deportation orders were challenged by the applicant with a recourse before the Supreme Court ( no. 1724/2011 – first instance revisional jurisdiction ).

By a letter dated 15 March 2012 the applicant ’ s representative complained to the Minister of the Interior about the applicant ’ s detention and requested that he review the applicant ’ s detention as provided by section 18 ΠΣΤ (5) ( γ ) of the Aliens and Immigration Law. The applicant claims that no reply was received.

By a letter dated 22 May 2012 the applicants ’ representative complained again to the Minister of Justice and Public order and the Chief of Police about the applicant ’ s continuing detention as well as the conditions of his detention in Paphos Police Station and the psychological and psychosomatic effects these have had on him.

By a letter dated 14 June 2012 the Director of the Aliens and Immigration Service was informed of the decision of the Minister of the Interior that the applicant remain in detention and to proceed immediately with his deportation.

On about 23 June 2012 the applicant was transferred to Aradippou Police Station and on 1 September 2021 to Larnaca Police Station.

On 13 July 2012 the Supreme Court dismissed the applicant ’ s recourse. It found that the applicant ’ s main claims that the Aliens and Immigration Law as regards the issuance of the deportation and detention orders was unconstitutional, that the deportation and detention orders were not issued under the right provision of that law and that he had the right under the Refugee Law to remain in the country pending the determination of his appeal by the Supreme Court ( no. 1320/2011), had not been raised or dealt with adequately in the legal points of the recourse.

On 30 July 2012 the applicant filed an appeal with the Supreme Court (appellate revisional jurisdiction – appeal no. 156/2012 ) against the above decision. It appears that the appeal is still pending.

On 12 September 2012 the applicant ’ s lawyer sent another fax to the Minister of Interior complaining about the period of the applicant ’ s detention and about the failure of the Minister of Interior to review the applicant ’ s detention order every two months, as provided by section 18 ΠΣΤ § 4 of the Aliens and Immigration Law.

Ο n 18 October 2012 the applicant was released from detention after a decision of the Minister of Interior. He was informed by a letter of the same date that he would be issued with a special residence/employment permit under the Aliens and Immigration Law and the relevant Regulations for a period of six months from the date of his release. However, prior to the issuance of this permit he was obliged to sign a contract of employment with an employer indicated and approved by the Department of Labour. He was also asked to report to the police once a week, to report a residence address to the Office of the Aliens and Immigration Police of the district of his residence within fifteen days from his release, and to contact the Iranian Embassy in Nicosia in order to make appropriate arrangements for the issuance of a passport. The applicant was informed that the residence permit would not be extended unless he obtained a valid passport.

5 . The allegedly poor conditions of the applicant ’ s detention

The applicant stated that he could not accurately remember the periods he was detained or the precise conditions of his detention in all the different police stations. During his detention he felt disoriented in terms of space and time. He also suffered memory loss. He had been detained from the very start of his arrival in Cyprus, had never lived in Cyprus before and did not know where each detention centre was. He was completely disoriented when he was transferred from one police station to another without being given any information or explanations.

(a) Famagusta Police Station (4 or 5 April 2011 until or around 31 August 2011)

The applicant states that during this period there were about twenty persons detained in the station. He shared a cell, which he estimated measured approximately 20-25 square meters, with another eight persons. The sanitary facilities were poor: there were only a few toilets and showers which were not properly cleaned and were not hygienic. The detainees lacked basic hygiene products such as toilet paper, soap and shampoo: these were provided by the officers following persistent requests. He remained in his cell all that time: there was no exercise yard and therefore no scope for outdoor activity. The food was bad and insufficient and did not meet the nutritional needs of Muslim detainees during Ramadan. Detainees were handcuffed during visits. The applicant states that there were incidents of violence at the station which triggered visits from the Ombudsman and he claims that he was also beaten up by some officers but never taken to the doctor.

( b ) Paphos Central Police Station (on or around: 1 September 2011- 22 June 2012)

The applicant states that the living conditions at the station were very hard resulting in great psychological distress and suicidal tendencies. During the period of his detention he was in a cell on his own. The cell measured approximately eight to ten square metres . There was a toilet and a shower in the cell which were not, however, separated from the rest of the cell and were visible to prison staff. He had to clean the cell himself without cleaning products. Furthermore, apart from toilet paper, no hygiene products were provided. There was no natural ventilation and a lack of adequate natural light as there was only a small glass window in the cell that could not be opened. Furthermore, the prison officers often switched off the ventilation system as a form of punishment when detainees protested about different things in the facility. His representative stated that on one of her visits, the ventilation system had been off and that it had been unbearable. The applicant states there was no specific schedule for exercise in an indoor exercise space. Some days detainees did not exercise at all and remained in their cell. As a result he felt completely disoriented and had no sense of time. The food was bad and inadequate as detainees were provided with two small meals per day. The detention facilities were shared with criminal suspects. Lastly, he states that during his detention there was an investigation for corruption and as he had been a witness to this he had been threatened by police officers.

His representative had sent letters to the Minister of Interior, the Minister of Justice and Public Order and the Chief of Police requesting his transfer to other facilities due to the conditions and his deteriorating psychological health.

(c ) Aradippou Police Station (on or around: 23 June 2012 – 31 August 2012)

The applicant states that during this period of detention he shared a cell with another person. He estimated that the cell measured approximately seven to eight square meters. The sanitary facilities were outside the cell and common to all detainees. There was a television which detainees could sometimes watch. There was no natural light or ventilation and the hygiene conditions were poor. The food was bad and insufficient.

6 . The applicant ’ s request under Rule 39 of the Rules of Court

In the meantime, on 31 July 2012, pending the proceedings before the Supreme Court in recourse no. 1320/2011, the applicant submitted a Rule 39 request in order prevent his deportation to Iran.

On 2 August 2012 the Acting President of the Section to which the case was allocated decided not to apply Rule 39.

7 . New Developments – Re-examination of the applicant ’ s asylum claim

The applicant was informed by a letter dated 4 January 2013 that the Reviewing Authority had decided to revoke its negative decision of 10 August 2011 and that it would re-examine his appeal and issue a new decision on his asylum application. Consequently, on 7 January 2013 the applicant withdrew recourse no. 1320/2011. He provided the Reviewing Authority with a number of documents in respect of his claims. The applicant subsequently left Cyprus without informing his representative. By a letter dated 14 October 2014 the Reviewing Authority requested him to attend an interview on 24 October 2014 and provide original documents concerning his claims. The letter also stated that if he failed to contact the Authority he would be considered as non-co-operative and his file would be dismissed pursuant to section 16 (B) of the Refugee Law 2000-2014. When his representative tried to contact the applicant she was informed by other Iranians in Cyprus that he had left. By a letter dated 20 October 2014 the applicant ’ s representative informed the Reviewing Authority that the applicant had left Cyprus and could not attend the interview. By a letter dated 30 October 2014 the Reviewing Authority informed her that, following a second review, it had rejected his appeal under the above provision and that the first instance decision of the Asylum Service had been upheld.

In a letter dated 7 April 2015 the applicant ’ s representative informed the Registry that she had managed to re-establish contact with the applicant who was living in Armenia but was undocumented. He informed her that he had left Cyprus because he feared he would be arrested and detained again and had no means of survival. He had left Cyprus through the “TRNC”.

B. Relevant domestic law and practice

The relevant domestic law and practice, are set out in detail in M.A. (cited above, §§ 61-88). The following additional provisions of domestic law are relevant in the present case:

In November 2011 Law 153(I)/2011 introduced amendments to the Aliens and Immigration Law with the aim of transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals, “the EU Returns Directive”. This Law expressly provides that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds (section 18 ΠΣΤ § 5). Further, pursuant to the above Law, the Minister of Interior should review detention orders on his or her own initiative every two months and at a reasonable time following an application by the detainee (section 18 ΠΣΤ § 4).

C. Relevant domestic reports

1. Report of the Ombudsman on her visit to Famagusta Police Station

On 3 October 2011, the Commissioner for Administration of the Republic of Cyprus (hereinafter “the Ombudsman”), in her capacity as the National Mechanism for the Prevention of Torture, issued a report following a visit to the Famagusta Police Station on 5 August 2011. According to her report, the visit was instigated by a significant number of complaints before her office concerning an alleged incident of ill-treatment on the premises. Although a separate visit had been carried out in respect of the incident, she considered that it was necessary to visit the Station and investigate the general conditions of detention of the detainees and ensure their rights. In her report the Ombudsman observed, inter alia , the following: none of the cells satisfied the size recommended by the CPT; although the temperature and natural light in the cells was adequate there was a strong stench indicative of a lack of hygiene; there was no toilet paper, soap or shampoo in the cells and the staff had said that these were provided to detainees upon request; prisoners received three meals per day out of which one was a warm meal; during confidential interviews the detainees complained about the quantity, the lack of fruit and that it did not meet their needs during the period of Ramadan; there was no outdoor exercise yard and as a result the detainees remained without contact with the outside world, natural light and fresh air; some detainees had been held at the station for more than ten months and the lack of exercise had had serious repercussions on their physical and psychological health. The Ombudsman also noted that visits took place in a staff office as there was no visiting area and detainees were handcuffed during all visits in front of family and friends.

The Ombudsman concluded that the detention facility was not compatible with the basic principles for the treatment of detainees and international standards. The conditions in which detainees were kept, led on many occasions, to degrading and humiliating treatment of detainees and a violation of their basic rights. She recommended that the detainees should be transferred to a safe area and that the facility should stop operating as it was unsuitable for the detention of persons. Its continued operation meant the Republic of Cyprus ran the risk of being exposed internationally.

2. Report of the Ombudsman on her visit to Paphos Police Station

On 2 March 2015, the Ombudsman, in her capacity as the National Mechanism for the Prevention of Torture, issued a report following a visit to the Paphos Central Police Station on 3 October 2014.

In her report the Ombudsman observed that persons held with a view to deportation and criminal suspects were kept together, in contravention of CPT standards; one of the detainees had been kept at the station for over five months, even though the facility was unsuitable for detention of such duration; although the cells were of a satisfactory size, the sanitary facilities that were inside the cells were visible to the staff due to the lack of a partition; the detainees had to clean their own cells and there was no disinfection and cleaning when there was a changeover of detainees; no cleaning products were provided; although the temperature in the cells was satisfactory, there were no windows but just glass bricks which let in a limited amount of natural light and prevented the natural ventilation of the cells; detainees had reported that they were only given toilet paper when they requested but no soap or shampoo; although there was an internal yard with natural light and ventilation, it transpired from interviews with the detainees, that there was no regular exercise programme ; there was no clock in the wings or the common detention area; this along with the limited amount of natural light and the lack of a daily routine plus time brought about a feeling of disorientation; there were no clearly set visiting hours and there was a partitioning glass in the visiting area even though foreign detainees were held only with a view to their deportation; irrespective of the duration of their detention, detainees were provided with only two meals instead of three: one meal in the morning hours which comprised of bread, an egg, tinned meat and coffee, which also had to cover their night meal; this food had to be kept in the cell until the evening; and one warm meal at lunch.

The Ombudsman concluded that the detention facilities at the Paphos Central Station had serious deficiencies and inadequacies. In particular, the shortages in relation to the natural ventilation of the detention area, the failure to ensure hygiene conditions and to separate detainees held for deportation and criminal suspects rendered these facilities completely unsuitable for the detention of persons for more than a few days. In addition, she expressed her concern about these matters which relate to the implementation of domestic and international legislation for the respect and protection of the basic rights of the detainees.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention about the duration and the conditions of his detention in the Police Stations of Famagusta, Paphos and Aradippou .

2. The applicant complains under Article 5 § 1 (f) of the Convention that his detention from 4 April 2011 until 18 October 2012 was unlawful on a number of grounds: firstly, the detention and deportation orders of 4 April 2011 were issued by the Permanent Secretary of the Minister of Interior instead of the Minister of Interior himself in contravention to domestic law; secondly, the applicant was an asylum seeker and should not have been detained during the determination of his claim; thirdly, he was detained although there were no reasonable prospects for his removal, as he had no travel documents and the authorities did not take any measures with a view to his deportation; fourthly, he was detained for more than the maximum time-limit of six months provided by Directive 2008/115/EC; lastly, even though the Supreme Court had ordered his release he had been re-arrested upon leaving the courtroom and was detained on the same grounds.

3. The applicant complains that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention in accordance with Article 5 § 4 of the Convention. In this connection, he claims that the judicial review proceedings were not speedy and that the review provided in these proceedings of the deportation and detention orders was insufficient. He also complains that there was no remedy to enforce the Supreme Court ’ s judgments in a habeas corpus application or a recourse . Lastly, under the same provision, the applicant complains that the detention order was not reviewed every two months by the Minister of Interior as required by the Aliens and Immigration Law.

QUESTIONS TO THE PARTIES

1 . Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 4 April 2011 until 18 October 2012? In particular, did the deprivation of liberty during this period fall within paragraph (f) of this provision?

(a) if so was the duration of the deportation proceedings excessive and were they carried out with due diligence? In this connection, was there a realistic prospect of the applicant ’ s deportation to Iran and why was the applicant eventually released from detention?

(b) bearing in mind the applicant ’ s complaints under this provision, could it be said that his detention throughout this period was lawful in terms of domestic law and did it keep with the purpose of protecting the individual from arbitrariness (see, inter alia , A . and Others v. the United Kingdom [GC], no. 3455/05, § 164 ECHR 2009 and John v. Greece , no . 199/05, § 33, 10 May 2007), regard being had, inter alia, : ( i ) to the fact that the applicant was an asylum seeker part of the relevant period; (ii) to the applicant ’ s re ‑ arrest and continued detention despite the Supreme Court ’ s judgment of 22 December 2012?

The Government are invited to submit all relevant documents pertaining to the applicant ’ s detention and intended deportation throughout the relevant period.

2 . Bearing in mind the applicant ’ s complaints, 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?

3 . Were the conditions of the applicant ’ s detention at Famagusta, Paphos and Aradippou Police Stations compatible with Article 3 of the Convention?

The Government are invited to submit the relevant details in respect of the conditions of the applicant ’ s detention in each police station during the relevant periods.