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Strategic Litigation

 

In KISA we believe that the one of the best ways to safeguard and promote human rights is to ensure that human rights are legally enforced.  Strategic litigation has been used from KISA the last few years to advance asylum seekers, refugees rights, migrant rights and many other human rights issues. Through strategic litigation, KISA aims to bring changes in the law, or practice through taking specific and selected cases to court.  Despite that fact that the initial step is trying to find justice by taking an individual complaint before the court, the main aim is to obtain justice for a whole group of people which they face the same or a very similar situation.  It has to clarify that, Strategic litigation is not just a case that you take before the court but it entails a whole strategy and involves research, partnerships, timing, etc.

KISA’s strategic litigation work includes decisions of the European Court of Human Rights against Cyprus. A case that KISA considered as very important and decided to take it before the ECtHR is the case of MA v. Cyprus (23/07/13)  for which, after the judgment of the ECtHR, the Republic of Cyprus has decided to create administrative courts to ensure automatic suspensive effects and review the merits of the asylum and deportation cases and not perform only legality review.

The MA v. Cyprus case as example of KISA’s strategic litigation work

MA v Cyprus concerns one out of 38 cases brought before the European Court of Human Rights on behalf of Syrian Kurdish applicants for international protection in Cyprus. In 2010, a group of asylum seekers, including the applicants, protested before the EU House in Nicosia to request their claims for international protection. The protesters were arrested and many of them were deported before KISA could file an application through a lawyer for an interim order suspending their deportation to the ECtHR, which issued an order in accordance with the Court’s Regulation 39 to suspend the deportation until the trial of their cases by the Court.

In the case of M.A. v. Cyprus the European Court of Human Rights held, unanimously, that there had been: a violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights taken together with Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) due to the lack of an effective remedy with automatic suspensive effect to challenge the applicant’s deportation; a violation of Article 5 §§ 1 and 4 (right to liberty and security) of the Convention due to the unlawfulness of the applicant’s entire period of detention with a view to his deportation without an effective remedy at his disposal to challenge the lawfulness of his detention.

The case brought the Strasbourg Court by Nicoletta Charalambidou, a Cypriot lawyer, member of KISA Steering Committee and partner of the organization.

Violation of article 13

Even if the applicant was no longer a ‘victim’ for the purposes of the alleged violations of Articles 2 and 3 ECHR, however, he could be considered a ‘victim’ of a violation of his right to an effective remedy under Article 13 ECHR, read in conjunction with his rights under Articles 2 and 3 ECHR. A claim under Article 13 ECHR was admissible, given that the applicant’s complaint against the detention and deportation orders issued by the authorities in June 2010 raised a ‘serious question as to the compatibility of his intended deportation in June 2010’ with Articles 2 and 3 ECHR (para 119). The Court applied the reasoning adopted by its Grand Chamber in De Souza Ribeiro v France (Application no. 22689/07, 13 December 2012), where a violation of the right to an effective remedy was found even though the applicant’s alleged violations of substantive rights were deemed inadmissible.

The Court reiterated that Article 13 ECHR entitles a person to a remedy which ‘may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible’ (para 132). In that light, albeit not an adjudicator of the asylum process itself, the European Court of Human Rights may intervene to examine whether national asylum systems provide effective guarantees to protect an applicant from refoulement

On the facts, given that the applicant’s asylum case had been reopened and was pending when the Cypriot authorities issued deportation and detention orders on 11 June 2010, the authorities erred in issuing deportation and detention measures against a lawfully residing third-country national (para 134). Following the new detention decision issued in August 2010, the Reviewing Authority only took a decision on his case on 30 September, by which it declared him an illegal migrant liable to deportation on public order grounds. Against the government’s submission that the applicant could challenge the decision of 30 September 2013 before the Supreme Court, the European Court of Human Rights highlighted that such recourse has no suspensive effect under Cypriot law. Therefore there was a real risk that the applicant would have been returned to Syria before the Supreme Court could rule on the legality of his deportation (para 140). On those grounds, Cyprus had violated Article 13 ECHR taken in conjunction with Articles 2 and 3 ECHR .

Violation of article 5

Under Article 5(1)(f) ECHR, deprivation of liberty may only be carried out ‘in accordance with a procedure prescribed by law’ in the case of ‘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’. However, MA’s arrest and detention on 11 June 2010 was effected without legal basis, given that he was legally residing in Cyprus at the time (para 209).

Moreover, the second detention decision issued in August 2010 was based on a decision of the Cypriot Minister of Interior declaring MA an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law. However, the aforementioned decision provided no evidence to substantiate allegations vis-à-vis MA being a public order risk. Further, the applicant was not informed in writing of the reasons for his new detention, in accordance with section 14(6) of the Aliens and Immigration Law (para 213). Accordingly, the Court found a violation of Article 5(1) ECHR.

Violation of Article 5(4) ECHR

The right to liberty also encompasses an individual’s right to speedy judicial review of the lawfulness of his or her detention (para 162). The Court recalled that the requirement of speediness is assessed under the specific circumstances of the individual case. In the context of detention and deportation orders in Cyprus, the Court was particularly alarmed by the government’s submission that the average length of first-instance judicial review of a detention decision is 8 months (para 167). MA was detained for a period of 11 months between August 2010 and his release on 3 May 2011. The Court hence concluded that the duration of the applicant’s detention was excessive, thereby amounting to a violation of Article 5(4) ECHR.

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