KANE v. CYPRUS DECISION 31
FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33655/06
by Osman KANE
against Cyprus
The European Court of Human Rights (First Section), sitting on 13September 2011 as a Chamber composed of:
Nina Vajić, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
Costas Pamballis, ad hoc judge,
and Søren Nielsen, Section Registrar,
George Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Costas Pamballis to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time).
Having regard to the above application lodged on 29 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Osman Kane, was born in 1972 and submitted that he was a Sierra Leonean national. He was initially represented before the Court by MrG.Seraphim, a lawyer practising in Nicosia. On 1 February 2010 the applicant appointed Ms N. Charalambidou, a lawyer practising in Nicosia, to represent him in the remaining proceedings before the Court. The Cypriot Government (“the Government”) were represented by their Agent, MrP.Clerides, Attorney-General of the Republic of Cyprus.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.Background to the case
The applicant entered the “Turkish Republic of Northern Cyprus” (“TRNC”) unlawfully in December 2000 and served a sentence of six months’ imprisonment there after being convicted for possessing a false Dutch passport.
While in prison, the applicant applied to the office of the United Nations High Commissioner for Refugees in Cyprus (“UNHCR”) for asylum.
On 26 March 2001 the applicant’s asylum application was dismissed, apparently because he was not a Sierra Leonean but a Malian national.
The applicant lodged an appeal.
The applicant entered the Republic of Cyprus unlawfully on an unspecified date early in June 2001. He was found by the police on 11June2001. The applicant did not have a passport on him but only a paper stamped by the “TRNC” and dated 25May 2001 on which his personal details were written. The Government submitted that the applicant alleged that he did not know where his passport was. The applicant was arrested and after being convicted on 18June 2001 by the Larnaca District Court for entering the Republic illegally he was sentenced to three months’ imprisonment. He was detained in Nicosia Central Prisons (“the Central Prisons”).
On 4 July 2001, while the applicant was serving his prison sentence, detention and deportation orders were issued by the Director of the Civil Registry and Migration Department under section 6 (1) (d) of the Aliens and Immigration Law (Cap. 105 as amended) on the ground that the applicant was a prohibited immigrant. The applicant was to be deported to Sierra Leone. The applicant submitted that he had never received notification of these orders or of any/the available remedies against them.
By a letter dated 16 July 2001 the Immigration Department of the Ministry of the Interior informed the Attorney-General of the Republic that the applicant could not be deported as he did not have a passport or any other travel document and did not have a ticket or any money for the purchase of a ticket. He noted that efforts were being made to resolve the matter.
By a letter dated 20 August 2001 the Department of Immigration of the Ministry of the Interior informed the Ministry of Foreign Affairs that the applicant was going to be released on 23 August 2001 but could not be deported as he did not have a passport or any other travel document. It requested the Ministry of Foreign Affairs to take the necessary steps to secure a Sierra Leone travel document as a Cypriot travel document would not be accepted by the airlines travelling to Sierra Leone or the transit countries.
2.First arrest and detention with a view to deportation
The Government submitted that on 23 August 2001 the applicant was released after having received a pardon but was, however, re-arrested on the basis of the detention and deportation orders which had been issued against him on 4 July 2001. The applicant was transferred to the immigration detention facilities in the Central Prisons (Block 10), where he was detained with a view to his deportation.
The applicant submitted that he had never been released on pardon and that after serving his sentence he continued to be detained on the basis of the detention and deportation orders that had been issued in the meantime.
In a letter dated 24 August 2001 the Ministry of Foreign Affairs informed the Immigration Department that it was impossible to obtain a Sierra Leone travel document for a number of reasons, such as the absence of Cypriot diplomatic missions in Sierra Leone and the difficulties in proving to the Sierra Leone authorities that the applicant was indeed a Sierra Leonean national. It was noted that a travel document could be issued by the Cypriot authorities once an airline’s consent had been obtained to such a document, to send the applicant back to his country.
In a letter dated 6 September 2001 the UNHCR informed the Immigration Department of the applicant’s asylum application, requested that deportation proceedings against the applicant be suspended, that the appropriate measures be taken for his release and that the applicant be allowed to remain in Cyprus pending the decision on his asylum claim.
The applicant was released on 20 September 2001 pending the examination of his asylum application and was granted a temporary residence permit until 6 December 2001.
3.Second arrest and detention with a view to deportation
In a letter dated 25 October 2001, the UNHCR requested, that the applicant’s residence permit be renewed for another six months pending the examination of his asylum claim. The residence permit was renewed until 25 April 2002.
The UNHCR dismissed the applicant’s appeal on 23 January 2002. It appears from this decision that although the applicant had initially claimed that he was a citizen of Sierra Leone, in his interview with UNHCR officials on 23 January 2001 he had changed his mind when an official had informed him that Sierra Leonean citizens were sent back to Sierra Leone. The applicant had been unable to reply to basic questions concerning Sierra Leone and had stated that he was in fact from Mali. Upon reviewing the case the UNHCR accordingly considered that the applicant’s submission did not warrant a change of the original decision of 26 March 2001.
On 15October 2002 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6 (1)(k) of the Aliens and Immigration Law, on the ground that he was a prohibited immigrant. The applicant was to be deported to Mali.
The applicant was arrested on the same day on the basis of these orders and was taken to the immigration detention facilities in the Central Prisons (Block 10).
On 21 November 2002 the applicant filed a habeas corpus application before the Supreme Court (first instance – application no.124/2002).
On 2 December 2002 the applicant withdrew the application following the authorities’ decision to release him in order to enable him to file a new asylum application. The applicant was released on the above date.
4.Third arrest and detention with a view to deportation
On 21 January 2003 the applicant submitted a new asylum application to the Asylum Service.
On 31 January 2003 the applicant filed an application for a temporary residence permit. In his application he gave the address of the hotel in Nicosia in which he was staying.
On 18 April 2003 a residence permit was issued for as long as the applicant had asylum seeker status.
In a letter dated 8 December 2003 the Asylum Service informed the applicant that an interview had been arranged for 28 January 2004. However, the authorities were not able to serve the applicant with the letter as he could not be found at the address he had given them. The applicant did not attend the interview.
The applicant submitted that the hotel where he had been staying and which had been used as a residence for asylum seekers by the Welfare Services of the Ministry of Labour and Social Insurance, had closed down in September 2003 following a fire, and that the authorities had been aware of this. He claimed that the authorities had had his telephone number.
It appears from the case file that the applicant declared his change of address to the authorities on 17 June 2004.
In a letter dated 14 April 2004, the Asylum Service informed the applicant that, having examined his file, it had decided to close it and suspend the examination of the asylum application by virtue of section 16(A) (1) (a) of the Refugee Law of 2000 (Law 6 (I) of 2000, as amended). It was noted that the applicant had not complied with the obligation deriving from section 8 of the Refugee Laws of 2000-2004, according to which, in the event of a change of address, the applicant had to inform the Asylum Service either directly or through the district Immigration Police Departments. The applicant was requested to make arrangements to leave the Republic within 14 days of receipt of the letter. The letter was sent to the address the applicant had given in his asylum application.
The applicant was arrested on 21 February 2005 by members of the Aliens and Immigration service. The Government submitted that the officers had entered the room with a search warrant in the course of an investigation concerning drug-related offences. Although no drugs had been found, upon verifying the applicant’s personal details they realised he was in the Republic illegally. He was arrested as an illegal alien and taken to the detention facilities in the Central Prisons. The applicant submitted that such raids were common practice in hotels and residences where it was known that asylum seekers and immigrants were staying. Upon arresting him, the police had accused him of trying to hide from the Cypriot authorities and of changing address without informing them, which the applicant denied. He submitted that it was at this point that he had become aware of the Asylum Service’s decision to close his file. Lastly, the applicant claimed that the police had not allowed him to take any of his belongings, including the passport which he had in the meantime secured from Sierra Leone through his family. His passport had thus been lost.
On 22 February 2005 the Director of the Civil Registry and Migration Department issued new detention and deportation orders against the applicant under section 6 (1)(k) of the Aliens and Immigration Law, on the ground that he was a prohibited immigrant. He was to be deported to Sierra Leone. A letter was also addressed to the applicant on the same date informing him of the orders and giving reasons. The Government submitted that the applicant had been informed of the orders on the same day. The applicant submitted that the information had not reached him until about ten to twelve days after his arrest, when he had sought help from a non-governmental organisation.
On 15 March 2005 the same non-governmental organisation lodged an appeal on behalf of the applicant with the Review Authority for Refugees against the Asylum Service’s decision to close his file. This was dismissed on 6December 2005. The applicant was served with the decision on 8December 2005.
The applicant did not bring a recourse against this decision before the Supreme Court.
5.Recourse no. 379/05 (Kane Osman v. the Republic of Cyprus – Minister of the Interior and Director of the Civil Registry and Migration Department)
In the meantime, on 7 April 2005 the applicant brought a recourse before the Supreme Court (revisional jurisdiction) under Article 146 of the Constitution challenging the detention and deportation orders of 22February 2005. In this it was stated that the applicant was a Sierra Leonean national. The applicant claimed that in Sierra Leone he had worked as the driver of the wife of the leader of one of the warring parties and for this reason he had been tortured and persecuted during the civil war in Sierra Leone. After having fled to Senegal and then Lebanon, he had unlawfully entered the “TRNC” and then the Republic of Cyprus. In his written address in the proceedings before the Supreme Court the applicant stated that he had been informed by the police on 22 February 2005 that deportation and detention orders had been issued against him, but had never been informed of the reasons for the orders in question or about the cancellation of his temporary residence permit. Nor had he been given the opportunity to be represented in relation to the orders.
On 21September 2006 the Supreme Court (full bench) dismissed the recourse. The court noted that the applicant had left his place of residence without informing the authorities and had transgressed the conditions of his residence in Cyprus despite having already served a prison sentence for unlawful entry into the Republic. The authorities had found him subsequently by chance, whilst carrying out certain investigations concerning another case. As the applicant had been living in Cyprus unlawfully, the detention and deportation orders had been correctly issued against him on the basis of the Aliens and Immigration Law. The court therefore concluded that the decisions to close his file and to issue the aforementioned orders had been lawful.