Cyprus

Legal grounds for detention

The relevant constitutional provision is provided in Article 11 of the Cypriot Constitution, which guarantees the right to liberty and security for all. Sub-article 2 states that no person shall be deprived of his liberty save where, inter alia, the arrest or detention is intended to prevent unauthorised entry into the Republic. 

Asylum seekers: Article 7(4)(a) of the Refugee Law of 6(I)/2000 as amended prohibits the detention of an asylum seeker for the sole reason of being an asylum seeker. However under article 7(4)(a) detention is allowed by a Court Order either for establishing his/her identity or nationality in case the asylum seeker is not in possession of valid travel or identity documents; or for the examination of new elements which the applicant wishes to submit in order to prove his/her claim relating to his asylum application, in case his application has been rejected at first as well as at second instance and a deportation order has been issued against him/her. In practice, asylum seekers entering the country illegally are detained for the duration of their asylum procedure. Asylum seekers entering legally are usually not detained. However, there have been reports of several cases of asylum seekers unjustifiably detained and in some cases deported whilst their asylum application was still pending. 

Irregular migrants: The Aliens and Immigration Law allows the detention of irregular immigrants, as they are considered to be “prohibited immigrants”, who are subject to expulsion defined as ‘deportation’. Deportation is dealt with by section 13(1) of the Aliens and Immigration Law which empowers the Chief Immigration Officer to deport all third country nationals who have violated the conditions of their permit or have committed an immigration-related offence. Section 13(2) allows the “detention in custody” or in “other confined places”. In practice, the Chief Immigration Officer issues both detention orders as well as deportation orders without applying to the Courts to obtain any orders, a practice of questionable legality that has attracted criticism from both the Ombudsman and NGOs.

For the detention to be allowable, the person must be served with an order to leave the territory. In cases where a migrant commits an offence punishable with imprisonment, the police may arrest and detain such a person even in the absence of a notification to leave the territory.

 

Legal grounds for the minimum age for detention

The Refugee law prohibits the detention of minors. A "minor" is defined in the same law (article 2) as “a person who has not yet attained the age of eighteen”. However, the detention of minors seems to be allowed (and is in fact practiced) in fields outside asylum. Article 6(a) of the Law that Provides for the Rights of Persons Arrested and are under Detention, N. 163(Ι)/2005, in the case of an arrest of a person under 18 years old, the parents or guardian have the right to be informed. Under article 20 it is the responsibility of the person in charge of the detention centre to ensure that detainees under eighteen reside separately from the rest of the detainees and in separate cells from the opposite sex.

According to the immigration police, no orders for detention of minors are issued except where the minor is involved in serious criminal offences. In all other cases, when the parents are detained, the child is placed under the care of the Welfare Services, which will in most circumstances place the child in a children’s home.

 

Legal grounds for the detention order 

Any immigration related offences that contravene the general rubric of immigration under the ‘Aliens’ and Migration Law, Cap. 105 provide the legal basis for a detention order. Unlawful entry or stay constitutes a criminal offence under the Cypriot immigration law. The most common immigration related offences are: overstay (i.e. having entered legally for a limited period, the third country migrant remains in the Republic after the expiry of the prescribed period); or having entered on a valid permit, the subsequent breach of a term or condition relating to the permit. Also, If it appears, at some later stage, that the migrant concealed information about a previous conviction and that s/he had obtained a certain status by concealing this conviction (i.e. by deception) or “gained leave to enter or to remain by deception”, the immigration officer may also consider to be “conducive to the public good” to deport him/her. All the above are criminal offences and carry punishment of imprisonment up to one year or a fine or both.

 

Legal grounds for judicial review/ right of appeal against the detention order

There is no automatic judicial review; the detainee has to apply for it. Detainees have the right to appeal to the Minister of Interior seeking their release from custody. In addition, the Constitution provides for the right to apply to the Supreme Court for judicial review of any administrative decision, including the decision to detain, under article 146. If successful, the application under article 146 of the Constitution has the effect of cancelling the administrative decision complained of and the immediate release from custody. This procedure however is costly and is not covered by the legal aid law.

 

Legal grounds for the right of information about the detention order and/or the reasons for detention

Article 11(2)(4) of the Constitution provides that all persons arrested must be informed at the time of their arrest in a language they understand of the reasons for their arrest and must be allowed access to a lawyer of their own choosing. The Refugee law, article 7(5) provides that detained asylum seekers must be informed in a language they understand, of the reasons of their detention as well as their legal rights, including the right to hire a lawyer. Also, the Law providing for the rights of persons arrested and in detention, N. 163(Ι)/2005 which applies to asylum seekers and irregular migrants alike, provides in article 3(3) for the right of arrested persons to be informed immediately after arrest in a language understood by them of their right to contact personally by telephone (a) a lawyer of their choice and (b) in the presence of a member of the police, a relative or any other person. The same provision states that persons arrested must be immediately informed in which police station or detention centre they will be detained.

 

Legal grounds for the duration of detention 

The Refugee Law 6(I)/2000, article 7(6) provides that an applicant's detention may not exceed eight days. The detention may be extended for further eight-day terms upon Order of the Court, but the total detention period shall in no case exceed thirty-two days. On a more general level, the Prison Law Ν.62(Ι)/96 prohibits the detention of a person in detention centres for a period longer than fifteen days. Detention for the purpose of deportation is limited to eight days unless the court authorize for more. Considerations such as the deterioration of the human rights situation in their country of return are not taken into consideration for persons who have not been granted refugee status or other type of international protection, nor is it a factor justifying longer detention in law

The above ceilings are not always respected; irregular migrants have in many cases spent months and sometimes years in detention. A recent decision of the Ministry of the Interior provides that detainees held on immigration offences can be released after 6 months of detention provided they have not committed a serious penal offence and provided they apply to their embassies to obtain valid travel documents; in such a case they are granted leave to remain in Cyprus for 18 months, after which they must depart. As a result of this policy, there no longer many detainees held for long periods of time whilst in the past there had been cases where they had spent 2 or 3 years in detention.

 

Legal grounds for the provision of health care and the scope of health care benefits, and for the provision of social services

Article 23(1) of the Law that Provides for the Rights of Persons Arrested and in Detention N. 163(Ι)/2005 states that every detainee has the right at any time to be given medical examination or/and treatment or/and medical attention from a doctor of his/her choice and to contact the doctor for this purpose personally by telephone the presence of a member of the police or the prison personnel, depending on the case. In case the detainee does not wish to exercise the right to appoint a doctor of his/her choice, s/he has the right to be given medical examination and/or treatment and/or medical attention from a governmental doctor who is arranged by the person in charge of the detention centre. The detainee pays the costs of the medical examination and/or treatment, and also the medical attention from a doctor of his/her choice above.

Under article 24(1) the detainee must be provided, immediately after he is remanded in custody, with a document that contains in a language of his/her understanding the rights that are contained in the above article.

The only provision in the law about the provision of social services to detainees is to be found in the Law that Provides for the Rights of Persons Arrested and in Detention N. 163(Ι)/2005 article 3(4) of which states that persons who appear unable to exercise their rights of contact with a lawyer or a relative/other person due to mental or physical disability shall be entitled to assistance from the state Welfare Services for the purpose of exercising these rights.

 

Legal grounds for contact with the outside world

Under article 3(1) of the Law that Provides for the Rights of Persons Arrested and in Detention N. 163(Ι)/2005 a person arrested by a police officer is entitled straight after his arrest to contact personally by telephone (a) with a lawyer of his choice and (b) in the presence of a member of the police, with a relative or any other person. Under article 5(1) detainees have the right to contact personally by telephone, in the presence of a member of the police, the Consulate or diplomatic mission of their country of nationality in Cyprus and in case their country of nationality does not have a Consulate or diplomatic mission in Cyprus, then either the Ombudsman or the National Organisation for the Protection of Human Rights ‘ETHNOPAD’ (an independent public body), so as to inform them of their arrest and detention. Under article 16(1) all detainees have the right to meet with a person of their choice every day for one hour in total in a special area of the detention centre. In the case of minors, the only person they are allowed to meet with is the parent or guardian. Under article 16(2) detainees are entitled to meet every day for one hour in total with a representative of the consulate or diplomatic mission of their country of nationality in Cyprus, or if there is no such consulate or diplomatic mission, with a representative of a human rights organisation. Under article 15(1) every detainee has the right to send and receive letters as follows:

  • To and from his/her lawyer without the letters being opened or read by anyone;

  • To and from the European Court of Human Rights, the Attorney General of the Republic, the Ombudsman and any international or national body with competence to investigate allegations of violations of human rights without the letters being opened or read;

  • To and from related, friendly or other persons with whom it is in his/her legitimate interest to retain or to come in contact with, subject to the condition that its content be checked by a member of the police or the prison personnel in the presence of the detainee, and may not be sent or delivered in case it is discover that it contains any illegal object or its content subjects the security of the detention centre or the detainees or other persons to risk or it is of criminal nature or may interfere with the investigation of offences.

 

Legal grounds for the provision of legal aid

The Law on Provision of Legal Aid N. 165(I)/2002 provides for legal aid only for criminal and civil law cases and excludes administrative proceedings. The exclusion from the scope of the law of applications to the Supreme Court to set aside administrative decisions is particularly detrimental for asylum seekers in detention, who have no other recourse against arbitrary or needlessly lengthy detention or arbitrary deportation. The law also extends legal aid to cases of human rights violations as these are defined inter alia in Part II of the Cypriot Constitution (which essentially adopts the European Convention on Human Rights) and a number of international conventions ratified by Cyprus. The scope of the law is restricted to cases where the offences involved are punishable with a term of imprisonment exceeding one year.

    The legal aid law was amended in recent months by Law N.132(I)/2009 which purports to transpose articles 15(2), 15(6) and 38 of Council Directive 2005/85/EC of 1st December 2005 laying down minimum standards on procedures in Member States for granting and withdrawing refugee status. The amendment extends legal aid to asylum seekers applying to the Supreme Court to set aside a negative decision either of the Asylum Service or of the Reviewing Authority concerning either the rejection of the applicant’s asylum application or the cancellation of the applicant’s refugee status. The amendment does not cover recourse against detention.

An ECtHR decision against Cyprus dated 04.12.2008 on the issue of availability of legal aid in administrative proceedings, stated that “a question arises as to the conformity of such legislation with the requirements of Article 6 of the Convention” and that “there is a priori no reason why it should not be made available in spheres other than criminal law.”Marangos v. Cyprus, Application no. 12846/05.

The European Convention on Human Rights, the Convention for the Elimination of all forms of Racial Discrimination, the International Covenants on Economic Social and Cultural Rights and on Civil and Political Rights, the European Convention on the Prevention of Torture and of Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Hard or Humiliating Treatment of Punishment.

The Ministry of Justice has recently compiled a draft law to amend the Law on Legal Aid, currently under examination by the House of Representatives. The draft law aims at removing the restriction contained in article 4(1)(a) of the Legal Aid Law which restricts legal aid to offences punishable with imprisonment of over one year. The draft law follows a judgement of the Supreme Court in 2008 which found the said legal provision to be unconstitutional for unduly restricting access to legal aid; Andreas Constantinou v. The Police, Case No. 243/2006, 25.01.2008

 

Legal grounds for the protection of persons with special needs

Article 5(2) of the Law that provides for the rights of persons arrested and are under detention, N. 163(Ι)/2005 states that in case of mental insufficiency a foreign detainee who is apparently not capable of understanding or to be informed that he has the right to contact/correspond or to fully appreciate his right, a member of the police must contact counsel or diplomatic mission in the Republic, the Ombudsman’s 

Office or the National Organisation for the Protection of Human Rights, as the case may be. A provision in the Law on Psychiatric Treatment N. 77(I)1977 provides for the placement of offenders with mental disorders in suitable units in order to receive treatment and serve their sentence; however, no such units have been set up despite the debating of this issue amongst stakeholders for a number of years and as a result, patients with mental disorders are currently serving sentences in prison.

 

Legal grounds for alternatives to detention

There are no alternatives to detention in the Cypriot legal or policy framework.

 

Legal grounds for providing release from detention

Where deportation orders cannot be executed, mostly due to lack of cooperation on behalf of the detainee for the issuance of travel documents, it is policy that the detention should in principle not exceed a period of six months, although there are still cases of detainees in detention for longer periods. If deportations cannot be executed within six months, migrants can sometimes be released under certain conditions and given a special residence and employment permit, provided they have not been found guilty in the past for criminal offences. The conditions of release, to be communicated in writing to the detainee, are:

  1. A special residence/ employment permit is issued, for a period of 12 months from the date of release on the condition that the released person cooperates with the Embassy of his/her country for the issuing of a passport. In case that that the person is issued with a passport, a residence/employment permit is issued for a period of 24 months from the date of his/her release, with a possibility of renewal.

  2. Prior to the issuance of the above residence/employment permit the migrant is obliged to sign a contract of employment with an employer who will be indicated and approved by the Department of Labour. Change of employer will be considered subject to approval by the Department of Labour

  3. The migrant is obliged to report a residence address within 15 days from release.

  4. The migrant is obliged to report to the nearest Police Station once a month and must report any change of residence address.

 

 


 

Source: Symfiliosi, national report written for Becoming Vulnerable in Detention (p.154)

Symfiliosiis a non-profit, non-governmental, non-partisan organisation based in Cyprus. Its mission is to actively engage Cypriot society in a dialogue on reconciliation between the two larger communities of Cyprus, Turkish-Cypriots and Greek-Cypriots, with the aim of promoting a culture of reconciliation, peace, democracy and cooperation. The organisation also has a keen interest in the integration of migrant communities.

 

 

Last updated on the 23/03/2011