CASE OF KAHADAWA ARACHCHIGE AND OTHERS v. CYPRUS
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova
6. The applicants were born in 1974, 1978 and 1980 respectively. They all live in Sri Lanka. The first applicant lives in Colombo, the second applicant in Kochchikade, and the third applicant in Pannipitiya. 7. The applicants all went to Cyprus for employment purposes. 8. The first applicant arrived in Cyprus on 20 April 2001 in order to take up employment as a domestic worker. He was granted a temporary residence permit, initially until 20 April 2005. This was renewed until 10 May 2011. 9. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. 10. During the above period the applicant left Cyprus twice to go back to Sri Lanka: on 12 November 2001 and in January 2004. The first time, he stayed in his home country for about eleven months, and the second time, he stayed for just over a month. On 21 February 2004, during his second visit home, he married a Sri Lankan national. 11. His wife joined him in Cyprus on 16 September 2004, in order to work as a housemaid. She was granted a temporary residence permit until 16 September 2008. 12. On 13 December 2007 their daughter was born. 13. On 17 September 2008 the first applicant’s wife abandoned her work and her place of residence. Her whereabouts at the time were not known to the authorities. She had not applied for the renewal or extension of her temporary residence permit, which had expired the day before. 14. On 10 December 2008 all competent authorities were given orders by the Police Aliens and Immigration Unit to trace the first applicant’s wife. 15. On 30 November 2010 a lawyer acting on behalf of the first applicant’s wife wrote to the Minister of the Interior requesting a visitor’s residence permit for her based on humanitarian grounds, a permit of the same duration as that held by her husband. The lawyer noted that the couple had a young daughter, that both the wife and the daughter were supported by the first applicant, and that she could not return to Sri Lanka without him, as she did not have family there with whom she and her daughter could stay. She also needed time to obtain travel documents for their daughter. The lawyer informed the authorities that the couple’s intention was that the whole family would return to Sri Lanka upon the expiry of the first applicant’s temporary residence permit. 16. The second applicant arrived in Cyprus on 5 February 2010 and was granted a temporary residence permit until 4 May 2010. This was renewed until 19 October 2011. 17. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. 18. The third applicant arrived in Cyprus on 4 March 2002. He was granted a temporary residence permit until 3 May 2002. This was renewed until 12 February 2009. Following the expiry of his permit, he remained in Cyprus on an irregular basis. The third applicant submitted that he had applied for a renewal of his permit. 19. The residence permit stated that it could be revoked at any time with fourteen days’ prior notice to the holder. It also stated that it was final and non-renewable. 20. According to the first and second applicants, on 6 January 2011, while in the first applicant’s car, they passed through the Ayios Dometios district of Nicosia and saw a group of Sri Lankans. They got out of the car and saw people holding swords and iron rods. Fearing for their lives, they abandoned the car and ran in different directions. The second applicant was injured during the clashes: his index finger was cut off and his middle finger injured. After the clashes, the first applicant took the second applicant to the Nicosia General Hospital, where the latter underwent surgery. According to the second applicant, the police came to the hospital and arrested him. He remained in the hospital after the operation, and on 9 January 2011 he was taken to Lakatamia police station, where he was detained. According to the first applicant, on the morning of 7 January 2011 six people who had taken part in the clash attacked his residence and threatened to kill him if he went to the police. However, half an hour later, when he went to the police station to report the incident, he was arrested and detained on suspicion of being involved in the clashes. 21. According to the third applicant, he was also passing by that area with his car and stopped to see what was going on, but, fearing for his life, he ran away and left his car behind. He informed his employer and the latter informed the police about the clash. The police asked the third applicant to come to the police station to make a statement and take his car back. On 7 January 2011 the third applicant went to Lakatamia police station and was arrested and detained on suspicion of being involved in the clashes. 22. On the evening of 6 January 2011 the police received information that about twenty aliens carrying offensive weapons (swords, clubs and Molotov cocktails) were in the Ayios Dometios district of Nicosia. The police immediately went to the site and discovered that a number of aliens had attempted to set fire to a house there by throwing Molotov cocktails at it. The police carried out an investigation into the events. They examined and collected evidence found in the area (including the first and third applicants’ cars). They reached the conclusion that the applicants, along with six other individuals from Sri Lanka, were likely to have been involved in the clash. A number of suspects, including the second applicant, had sustained injuries which had been treated at Nicosia General Hospital. 23. On 7 January 2011 the police arrested all nine Sri Lankans, including the applicants, on the basis of arrest warrants issued on the same day by the Nicosia District Court under section 18 of the Criminal Procedure Law (Cap. 155) and Article 11(3) of the Constitution, on reasonable suspicion that they had taken part in a fight in a public place, contrary to section 89 of the Criminal Code (Cap. 154). 24. On 8 January 2011 the Nicosia District Court convened at Nicosia General Hospital. The applicants were remanded in custody for six days under section 24 of the Criminal Procedure Law and Article 11(5) and (6) of the Constitution, to enable the investigation into the commission of various criminal offences to be concluded. The offences included: intending to inflict grievous bodily harm, unlawful wounding, an unlawful attempt to set fire to a building, and taking part in a fight in a public place (sections 228, 315 and 89 of the Criminal Code). The first applicant was detained in Paphos Gate police station in Nicosia, and the second and third applicants in Lakatamia police station. 25. On 13 January 2011 the police investigation file, which included written statements by the applicants concerning the incident, was transmitted to the Attorney General. The Nicosia Crime Investigation Department informed the Attorney General that that there was sufficient evidence against all the nine individuals arrested, including the applicants, in relation to the offence of taking part in a fight in a public place contrary to section 89 of the Criminal Code, but not as regards the remaining offences, which were more serious. The third applicant had also committed the offence of staying in Cyprus unlawfully, as his temporary resident permit had expired on 12 February 2009. At the suggestion of the police, the Attorney General decided not to prosecute the applicants, but to deport them instead. 26. On 14 January 2011 the residence permits of the first and second applicants were revoked by the Director of the Civil Registry and Migration Department under section 6 of the Aliens and Immigration Law (Cap. 105), on the grounds that their conduct had posed a danger to the public order of the Republic. Deportation and detention orders were issued against the applicants on the same day: under section 6(1)(g) of the above Law in respect of the first and the second applicants, on the grounds of public order, and under section 6(1)(k) in respect of the third applicant, on the grounds of unlawful stay. 27. On the same day three letters were prepared by the Minister of the Interior informing the applicants of the decision to detain and deport them. The letters stated that the applicants were illegal immigrants: the first and second applicants under section 6(1)(g) of the Aliens and Immigration Law, because their “conduct had been considered dangerous for reasons of public order”, and the third applicant by virtue of section 6(1)(k), on the grounds of “illegal stay”. Consequently, their temporary resident permits had been revoked and deportation and detention orders had been issued against them. 28. Consequently, on 14 January 2011, upon the expiry of the remand warrant, the applicants were released but re-arrested at once on the basis of the deportation and detention orders that had been issued against them. The Government submitted that, in accordance with standard police practice, the applicants would have been informed orally of the decision not to prosecute them and the decision to deport them. Although the Government did not have evidence as to the exact date on which the applicants were notified of the letters of 14 January 2011 or the exact manner in which they were notified, this happened sometime between 14 and 18 January 2011. 29. On 18 January 2011 a Cypriot lawyer acting on behalf of the applicants sent two letters by fax to the Minister of the Interior, referring to the letters of 14 January 2011 sent to the applicants. He objected to the deportation of the first and second applicants; he also requested a review of the decision taken with regard to the third applicant. The lawyer requested a meeting to discuss the matter with the above-mentioned Minister. 30. The Government submitted that the applicants’ case had then been reviewed by the Minister of the Interior, who had noted their lawyer’s objection, read the administrative file and maintained the decision to deport the applicants. 31. Although the first applicant called his wife several times during his detention, she did not come to visit him at the police station. 32. The first and third applicants were deported on 19 January 2011 and the second applicant was deported on 21 January 2011. 33. There were signed notes by a police officer on the copies of the letters of 14 January 2011 stating that the letters had also been served on the applicants on the day they were deported. 34. The applicants were included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). 35. The documents submitted by the Government indicate that the first applicant’s wife continued to stay in Cyprus illegally following her husband’s deportation. On 3 December 2012 she lodged an asylum application, which was dismissed on 31 January 2013. She left Cyprus for Sri Lanka on 5 July 2013 and she was included on the authorities’ “stop list” (see paragraph 34 above). She returned to Cyprus that same month with a new passport with different identity details, and was granted a residence and employment permit until 15 November 2016. However, the authorities realised that she was the same person and arrested her on 10 September 2014 with a view to her deportation. No further details have been given by the Government in this respect.