EGMR

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I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

46. The applicant complained that his detention had been in breach of Article 5 § 1 of the Convention, which reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ..." [...]

(a) General principles

55. In interpreting the meaning of the first limb of Article 5 § 1 (f) for the first time in the case of Saadi (cited above, § 65) the Court considered that until a State had "authorised" entry into the country, any entry was "unauthorised" and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be ordered, without any distortion of language, to "prevent his effecting an unauthorised entry". The Court has never accepted that as soon as an asylum-seeker surrenders himself or herself to the immigration authorities, he or she is seeking to effect an "authorised" entry, with the result that detention cannot be justified under the first limb of Article 5 § 1 (f). [...]

(b) Application of these principles in the present case

60. The Court has already pointed out that the question as to when the first limb of Article 5 § 1 (f) ceases to apply, because the individual has been granted formal authorisation to enter or stay, is largely dependent on national law. [...]

61. Turning to the facts of the present case, the Court notes that the applicant did not enter Cyprus through either the airports of Larnaca or Paphos, or any of the ports situated in the areas under the effective control of the Republic of Cyprus. The Court therefore considers that the applicant entered the Republic of Cyprus in an irregular manner. However, when the applicant arrived at the Ledras Crossing point he expressed his wish to apply for asylum and the authorities transferred him – without detaining him – to the AIS and subsequently to Pournara, an open reception centre in the Government-controlled areas, where he was able to apply for asylum [...]. The next day, the applicant was issued with documentation confirming his right to remain in the Government-controlled areas pending a final decision on his asylum application, in accordance with the provisions of the Refugee Law.

62. [...] In this connection, the Court notes that even if it were to accept the Government’s submission that the relevant documentation merely protected the applicant – as an asylum-seeker – from removal, thereby bringing his detention within the scope of the first limb of Article 5 § 1 (f), it would nevertheless consider that his detention, although lawful in terms of domestic law [...], was not closely connected to the prevention of unauthorised entry and was thus in breach of Article 5 § 1 of the Convention.

63. In particular, the detention order was issued only after the applicant’s interview, which had identified him as a person matching the profile of a foreign fighter, on the basis of the authorities’ suspicions that he had been a member of terrorist or criminal organisations, and explicitly stated that he was being detained on national security grounds [...]. Therefore, even though there was a legal basis in domestic law for the applicant’s detention, namely section 9ΣΤ(2)(ε) of the Refugee Law, his detention was based solely on national security grounds. [...] The Supreme Court reviewing the lawfulness of the applicant’s detention on appeal clarified that the lawfulness of the applicant’s detention as an asylum-seeker had to be examined with due regard to the protection of national security, which had been the reason adduced for his detention [...]. Accordingly, the applicant’s detention on the sole basis of the need to protect national security cannot be considered to have been closely connected with the aim of preventing unauthorised entry.

64. In view of the above considerations, the Court finds that in the particular circumstances of the present case there was not a sufficiently close connection between the ground relied on to justify detention and the prevention of unauthorised entry.

65. Even had there been such a connection, the Court would still consider the applicant’s detention to have been arbitrary on account of its length. [...]

Importantly, the Court notes that the applicant was kept in detention for over two years and nine months, from 12 February 2019 until 30 November 2021 [...]. In this connection, and in response to the Government’s arguments, the Court would point out that the applicant’s detention in the present case was significantly longer than that of the applicant in the Saadi case [...], whose detention lasted seven days. It was also significantly longer than in the Suso Musa case [...], where the applicant’s detention lasted more than six months for the purposes of the first limb of Article 5 § 1 (f). [...]

66. The Court notes that while the applicant’s asylum application in the present case was examined and rejected by the Asylum Service within three months from the time it was lodged, the proceedings in recourse no. 74/2019 before the Administrative Court of International Protection were pending from 31 July 2019 (and are still pending), meaning that the applicant spent two years and four months in detention until his release on 30 November 2021 [...]. The Government did not point to any difficulties in determining the applicant’s age and identity or to the absence of necessary documents, which might have justified the length of the detention for over two years. While the Court is not oblivious to the difficulties experienced by many Contracting Parties in coping with the influx of asylum-seekers, these cannot absolve a State of its obligations under the Convention [...]. The fact that the Refugee Law does not establish a time-limit for the detention of an asylum-seeker is not in itself sufficient to justify an almost three-year detention. In view of the foregoing, the Court considers that a detention period of two years and nine months cannot be reasonably considered to be required for the purposes of the first limb of Article 5 § 1 (f).

67. Accordingly, the Court concludes that the applicant’s detention was arbitrary and that there has therefore been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

68. The applicant furthermore complained that he did not have an effective remedy at his disposal by which to challenge the lawfulness of his detention. He complained, in particular, that his right to a "speedy" decision had been infringed [...].

73. The Court notes that the appeal proceedings (no. 81/2019) alone lasted over two years. The Court observes first that the Supreme Court was only required to undertake a limited review of the Administrative Court’s decision on points of law, without having to conduct a fresh assessment of the facts of the case. The Court further notes that while it is mindful of the difficulties faced by the States during the Covid-19 pandemic, by the Government’s own admission the Covid-19 pandemic did not affect Cyprus until March 2020, while the appeal had been pending before the Supreme Court since 7 May 2019. The case had therefore already been pending before that court for ten months by the time the Covid-19 pandemic had struck the country. The Government did not provide any explanation as to what steps, if any, had been taken with regard to the appeal proceedings during that time. [...]

74. While it is true that the Court is prepared to tolerate longer periods of review in proceedings at second instance, it nevertheless remains incumbent on the State to ensure that proceedings are conducted as quickly as possible, since the liberty of the individual is at stake (see Khlaifia and Others, cited above, § 131; see also, mutatis mutandis, Ilnseher, cited above, § 256). Accordingly, given the delays noted above, especially the authorities’ inaction for no less than ten months before the Covid-19 pandemic struck Cyprus, the Court concludes that appeal proceedings no. 81/2019 were not conducted "speedily" within the meaning of Article 5 § 4 of the Convention. [...]