Published on 23 May 2022

THIRD SECTION

Application no. 63076/19 K.A. against Cyprus lodged on 9 December 2019 communicated on 4 May 2022

SUBJECT MATTER OF THE CASE

The applicant is a Moroccan national. On 10 January 2019 he sought asylum in Cyprus claiming that, as an atheist, he would face persecution if returned to Morocco. On the same day, he was detained by the immigration authorities at Menoyia Detention Centre for holding illegal immigrants, on grounds of national security. On 23 March 2019 he filed a recourse with the Administrative Court (no. 422/2019) challenging the order of his detention. On 22 April 2019 the Administrative Court dismissed his recourse. On 6 May 2019 he filed an appeal (no. 78/2019) challenging the outcome of the said recourse. The appeal is pending.

On 12 April 2019 he was recognised as a refugee but was excluded from refugee status on grounds of national security. Judicial proceedings concerning this decision (recourse no. 229/2019) are pending.

On 17 January 2020 he filed a habeas corpus application (no. 4/2020) challenging the length of his detention. On 24 February 2020 the Supreme Court allowed his application and ordered his release. He was released from Menoyia Detention Centre on the same day and was allowed to live at a hotel in Larnaca. On 3 April 2020 the Minister of Interior determined his place of residence to be Kofinou Reception and Accommodation Center (‘Kofinou’) pending the examination of his asylum application but ordered his placement in quarantine for fourteen days in Pournara First Reception Center (‘Pournara’). On 3 April 2020 the applicant was transferred to Pournara. On 10 April 2020 he filed a third habeas corpus application (no. 43/2020). In the meantime, he was transferred to Kofinou. On 9 June 2020 the applicant withdrew the habeas corpus application as he had been released by the authorities.

The applicant complains under Article 5 § 1 of the Convention about the lawfulness of his detention in the absence of a deportation order or criminal conviction, and criminal proceedings. He also complains that his detention was arbitrary on account of its length. The applicant further complains under Article 5 § 4 of the Convention that the judicial review proceedings concerning the lawfulness of his detention had not fulfilled the requirements of procedural fairness and equality of arms as material evidence concerning the allegations that he posed a danger to national security was not disclosed to him and he was not granted appropriate alternative counterbalancing procedural safeguards vis-à-vis the limitations of his rights of disclosure on the reasons of his detention. He further complained under the same head that the appeal proceedings (no. 78/19) had not been speedy.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the authorities rely on any permissible ground on which persons may be deprived of their liberty provided in sub ‑ paragraphs of Article 5 § 1? Could it be said that his detention was in line with the purpose of protecting the individual from arbitrariness?

The parties are invited to consider, inter alia , Al Husin v. Bosnia and Herzegovina , no. 3727/08, §§ 57-66, 7 February 2012, A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, as well as Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016).

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? (see, inter alia, Al Husin v. Bosnia and Herzegovina (no. 2) , no. 10112/16, § 115, 25 June 2019, Sher and Others v. the United Kingdom , no. 5201/11, § 149, ECHR 2015 (extracts), A. and Others v. the United Kingdom , cited above, §§ 202-11, Khlaifia and Others v. Italy , cited above, § 132, and M.A. v. Cyprus , no. 41872/10, §§ 160-63, ECHR 2013 (extracts))?