We welcome the establishment and operation of the International Protection Administrative Court (IPAC) and the termination of the Refugee Reviewing Authority, which has in fact for years been virtually unnecessary. For a decade now, KISA has played a leading role in advocating the founding and operation of a specialised asylum court, through strategic litigation, position papers addressed to the Parliament of Cyprus and reports addressed to competent bodies.
According to the recent changes in the Refugee law, when asylum seekers receive a rejection or another kind of negative decision from the Asylum Service in regards to their application for international protection, they can appeal exclusively to the IPAC. Although this restructuring concerns a serious institutional change, which can only succeed through consultation and coordination between the involved governmental and non-governmental agencies, accurate information, guidance and aid to the affected refugees, as well as the development of the appropriate infrastructure in order for the new system to function correctly.
KISA expresses its disappointment as none of the aforementioned has taken place, which puts into doubt the compliance of Cyprus with fair and objective procedures of asylum, which should also include access to an effective legal remedy, . The competent bodies cannot respond to their new obligations and the refugees do not know what they must do in order for their appeals to be examined by the new court.
The majority of the asylum applicants lack the required financial resources to cover the legal expenses for their appeal to the IPAC and therefore their as per the law access to a remedy can only be achieved through the provision of free legal aid. According to the legislation, asylum seekers would have to submit their application for legal aid to the IPAC alone, without a lawyer. In the context of the examination of the application for legal aid by the ACOIP, the applicant would have to prove, amon others, that the appeal they intend to submit has chances of success, in order to seek legal aid to be represented by a lawyer against the decision of the Asylum Service.
KISA as well as a number of judges have already pointed out that this system cannot function. Asylum seekers, often in a vulnerable psychological state, without any legal guidance and without knowledge of the Greek language, find themselves up against experienced lawyers of the Office of the Attorney General of Cyprus, who through legal arguments based on laws unknown to the asylum applicants, are trying, in all cases, to prove that their appeal has no chance of success and that, therefore, no legal aid should be granted. How are asylum seekers expected to properly substantiate their claim and to demonstrate a likelihood of success against an experienced lawyer in formal court proceedings where the Office of the Attorney General submits written and fully substantiated arguments against it, among other things, in Greek?
Furthermore, the memoranda of the Legal Service, written in Greek, are translated roughly by non-professional translators in different languages, and which results in the inability of the asylum seekers to understand what is being stated in these memonanda. Even when asylum seekers attempt to submit an appeal application on their own, without a lawyer, after the rejection of the application for legal aid, no assistance is provided to them by the IPAC, which on the contrary mentions that they cannot submit an application without a lawyer.
Our position is that this procedure clearly violates the principle of equality of arms, with the aftermath being a violation of the right to a fair trial and to effective remedies as it is protected in European and international law.
We undeline that the possibility of appeal to a judicial body against negative decisions of the Asylum Service is the obligation of Cyprus, which is required both by the European acquis and international law as well as by relevant human rights conventions. Furthermore, in case of rejection for legal aid, the persons concerned are exposed to exploitation and deception through false representation by persons promising to represent them in return of payments much higher than regular law fees and with the condition of certain success. These cases are already a common phenomenon.
KISA believes that in order for Cyprus to implement its contractual obligations, but also in order for the adoption of this specialised court to become functional and effective, the following must take place:
- Revision of the legislation for legal aid in order to ensure that the applications for legal aid will be submitted by lawyers, who can argue about the possibility of success of their clients’ appeal on the basis of the principle of equality in arms, and for the expenses to be also covered by the legal aid.
- The interpreters of the IPAC to be trained appropriately in the areas of international protection and the relevant terminology, while they must also meet the terms and conditions of the new legislation in relation to sworn translators.
- Preparation and distribution by the Asylum Service or/and the IPAC of the required information material and guides for asylum seekers in all the relevant languages, in relation to the recent changes in the asylum procedures and the steps they can take for their access to the IPAC.