Last Updated on November 5, 2019 by LawEuro
Communicated on 22 January 2018
THIRD SECTION
Application no. 76341/17
Mostafa Mohamed EmamSEIF ELDIN
against Cyprus
lodged on 31 October 2017
STATEMENT OF FACTS
The applicant, Mr Mostafa Mohamed Emam Seif Eldin, is an Egyptian national, born in 1957. He is currently being detained at Nicosia Central Prisons. The applicant is represented by Ms N. Charalambidou, a lawyer practising in Nicosia.
The facts of the case, as submitted by the applicant and the Government may be summarised as follows. Some facts are disputed.
A. Background facts
On 29 March 2016 the applicant hijacked an Egypt Air internal flight (flight no 181) from Alexandria to Cairo forcing it to divert to Larnaca international airport in Cyprus. He had threatened to blow it up. After a police operation and long negotiations, the hostages were released and he was arrested by the Cypriot authorities. No one was harmed.
On 4 April 2016 the Egyptian Government submitted an extradition request to the Cypriot authorities on the basis of an Extradition Agreement between the Republic of Cyprus and the Arab Republic of Egypt which had been ratified by Law 13(III)/1997. They sought the applicant’s extradition to try him for the offences:
(i) Hijacking, taking hostages and resistance against the authorities (Articles 88 and 88bis of the Egyptian Criminal Code);
(ii) Acts which endanger the security of an aircraft (Article 168 Egyptian Aviation Law 28/1981);
(iii) Acts in violation of Articles 22 and 24 of the Anti-Terrorism Law (Law no. 94/2015).
On 8 April 2016 the applicant filed an asylum application with the Asylum Service.
On 18 May 2016 the Minister of the Interior(hereafter “the Minister”) signed the extradition documents so that the extradition procedure could be initiated.
B. Asylum Proceedings
1. Asylum Service
On 27 April 2016, after holding an interview with the applicant on 15 April 2016, the Asylum Service dismissed his asylum application.
Although it concluded that the applicant had a well-founded fear of persecution if returned to Egypt due to the beliefs he had expressed during and after committing the hijacking, it decided to exclude him from international protection on the basis of section 5(1)(c)(ii) of the Refugee Law (Law no. 6(I)/2000, as amended; hereafter “the Refugee Law”) and the exclusion clauses of Article 1F of the 1951 Geneva Convention relating to the Status of Refugees.
2. Appeal to the Refugee Reviewing Authority
On 11 May 2016 the applicant lodged an appeal with the Refugee Reviewing Authority against the Asylum Service’s decision.
On 30 March 2017 the Refugee Reviewing Authority dismissed the appeal and upheld the decision of the Asylum Service.
3. Recourse before the Administrative Court (first instance judicial review proceedings)
(a) Main proceedings
The applicant brought a “recourse” (judicial review proceedings) before the Administrative Court (no.25/2017).
These proceedings are still pending.
The Government, relying in particular on sections 8 (1)(d) and (e) of the Refugee Law (Law no. 6(I)/2000, as amended),submitted that these proceedings did not have suspensive effect.
(b) Decision on legal aid
In the context of these proceedings the applicant lodged a legal aid application which was granted by the Administrative Court on 23 November 2017.
In its decision the court ruled that on the basis of the evidence put before it the recourse had a real possibility of success on the basis of section 6B(4)(bb) of the Legal Aid Law (Law no. 165(I)/2002). The court, in this connection, questioned the applicability of section 5(1)(c)(ii) of the Refugee Law to the case. In particular, it noted that there appeared to be a contradiction between the facts presented by the asylum authorities (the authorities had concluded that the applicant had committed a crime in another country) and the facts presented by the police in their declaration to the District Court for the purposes of the issuance of the arrest warrant against the applicant (in which it was stated that the applicant had committed crimes in the air space and territory of the Republic of Cyprus as well as the air space of Egypt and on an Egyptian aircraft). There was therefore a possibility that there had been a lack of proper enquiry, that is, a failure to ascertain the facts properly, and/or a misconception of fact and, consequently, possibly a wrong interpretation and application of the relevant domestic law. The court, stressed however, that it was not competent to examine these issues further at this stage in the context of the legal aid application. It could only make a preliminary assessment of the chances of success of the recourse.
C. Extradition Proceedings
1. Nicosia District Court (first instance proceedings)
An extradition application was lodgedby the authorities before the Nicosia District Court (application no. 5/16).
The applicant claimed that if extradited to Egypt he would be exposed to a real risk of death or torture or inhuman or degrading treatment and that he would face an unfair trial.
According to the factual information submitted, the Nicosia District Court examined, inter alia, the applicant’s written statement, on which he was cross-examined during the proceedings, a translation of a letter entitled “Movement for Democratic Liberation, Nation’s Guards” prepared by the applicant and a report/recommendation from the Asylum Service concerning the applicant’s asylum application. Further, the asylum officer who had prepared the report was summoned as a witness by the applicant and testified before the court.
Further, ittranspires from the record of the proceedings that the case was adjourned several times in order to give the applicant the opportunity to submit evidence and/or summon witnesses in relation to his claims.
(a) Interim decision concerning the admission of additional evidence
On 18 August 2016, during the proceedings, the applicant’s former lawyer, made an application to submit a report dated 20 July 2016 by Professor E.G.H. Joffé concerning the situation in Egypt and the applicant’s claims.According to this report the applicant faced a very clear danger to his life or would be tortured if extradited to Egypt. The applicant also called Professor E.G.H. Joffé as a witness. Following a hearing on the matter, the court, on the same day, by an interim decision dismissed the applicanrt’s request. It decided that on the basis of the evidence before it, it could not consider Professor E.G.H. Joffé as an expert witness and therefore it could not take into account evidence given by him.
(b) Judgment of 30 September 2016
On 30 September 2016 the Nicosia District Court decided in favour of the applicant’s extradition.
In relation to the applicant’s allegations of ill-treatment, the Nicosia District Court stated, in sum, the following.
– the applicant had not been subjected to persecution in Egypt due to his political beliefs and had not submitted any evidence in this respect. There had been contradictions in the applicant’s allegations before the court – during both the main examination and cross-examination- and the court had found the same contradictions as the Asylum Service in his claims.
– the applicant had not presented a complete political statement, philosophy or position for which he had allegedly been persecuted.
– his position concerning his political beliefs was unclear and general. The only acts that could have been classified as being related to political acts ended, as he had admitted, in 1990.
– the applicant had not shown that there had been a link between his various arrests and detentions in the past with his political beliefs. According to the evidence before the court,thesehad been related to the commission of ordinary/common criminal offences (using false passports).
– the applicant could travel freely within and outside of Egypt without problems. In fact, fourteen months before the hijacking he had not faced any problems with the new regime and he had been granted a lawful Egyptian passport which he had used to travel to Sudan.
– the applicant had not alleged that he was a member of an organisation or a party which opposed the Egyptian Government and had not put forward any evidence substantiating his opposition to the Egyptian Government.
Taking all the above into account, the Nicosia District Court concluded that it did not have before it any objective and reliable materials that the applicant would face a real risk of his human rights being violated if he was extradited whereas the Government had received assurances by the Egyptian authorities that:
– none of the offences for which extradition was sought would result in the death penalty if the applicant was convicted.
– the offences for which he was prosecuted were common criminal offences; they were not political in nature and there were no political motives underlying his criminal prosecution.
– the Egyptian authorities would fully respect the applicant’s human rights as protected by the European Convention of Human Rights.
The court held that the conditions of the Extradition Agreement between the Republic of Cyprus and the Arab Republic of Egypt had been met.
2. Habeas Corpus application before the Supreme Court (first instance jurisdiction)
The applicant brought a habeas corpus application challenging the findings of the Nicosia District Court (civil application no. 121/16).
(a) Interim decision concerning the admission of evidence
During the proceedings the applicant applied for leave to submit written evidence in support of his allegations. This consisted of (i) a report by an expert on torture; (ii) a letter by Amnesty International by the Deputy Director of the Europe and Central Asia Regional Office sent to his lawyer concerning the applicant’s case; (iii)the US Department of State Country Reports on Human Rights Practices for 2015 for Egypt; (iv) Amnesty International’s annual report 2015/2016 in so far as it concerned Egypt; and (v) the Human Rights Watch World Report 2016 (Egypt Events of 2015).
On 19 January 2017 the Supreme Court dismissed the application. It noted that the general rule was that the admission of fresh evidence was not permissible in habeas corpus proceedings no matter how compelling. Although there were exceptions to this rule (sections 10(3) and (4) of the Extradition of Fugitives Law (Law no. 97/1970) they were not applicable in the present case.
Furthermore, in so far as the three remaining documents were concerned, it noted that they had been already issued when the first instance proceedings were pending before the District Court and therefore the applicant should have shown the requisite diligence and submitted them before that court.
(b) Judgment of 16 February 2017
On 16 February 2017 the Supreme Court dismissed the habeas corpus application. It noted that the asylum procedure and the extradition proceedings were separate procedures governed by different legal conditions. Referring to Saadi v. Italy ([GC], no. 37201/06, ECHR 2008) it stated that it was for the court deciding on the extradition application to examine the risk of a violation of Articles 2 and/or 3 of the Convention if the applicant was returned to Egypt.
The Supreme Court examined the applicant’s allegations and stated, inter alia, that it was for the applicant to adduce evidence capable of proving that there were substantial grounds for believing that if the extradition order was enforced he would be exposed to a real risk of being subjected to treatment contrary to these provisions (referring to Saadi v. Italy, cited above). The applicant had not done so. The Egyptian authorities had given assurances that they would safeguard the applicant’s rights under the Convention (including fair trial guarantees) and documents, following a request for clarification and additional information by the Government, describing the procedures that would be followed once the applicant was given over to the Egyptian authorities. The act of hijacking had not in itself been a political act nor did it exclude the offender from refugee status: it very much depended on the facts of the case. In the present case, the offences the applicant would be tried for were ordinary criminal offences and not of a political nature. There was also a lack of evidence showing that the applicant was at political odds with the Egyptian Government because of his beliefs and that he had carried out the hijacking for political reasons.
3. Appeal – Habeas Corpus- before the Supreme Court (appellate jurisdiction)
The applicant lodged an appeal against the judgment of 16 February 2017 (no. 35/2017).
The Supreme Court dismissed the appeal on 2 November 2017 and upheld the above-mentioned judgment.
It held, inter alia, that an asylum seeker’s extradition to a third country was permitted when the competent authority was satisfied that the extradition would not result in direct or indirect refoulement in violation of the International and European Union obligations of the Republic of Cyprus (Article 9 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection and section 8 of the Refugee Law). The applicant’s allegations had been extensively examined by both the Nicosia District Court and the Supreme Court at first instance and it had been held that his extradition would not violate the principle of non-refoulement.
The Supreme Court also dismissed the applicant’s request for a preliminary reference to the Court of Justice of the European Union under the aforementioned Directive concerning whether the applicant’s extradition could take place when the asylum proceedings proceedings were still pending.
4. Decision by the Minister
According to the factual information submitted by the Government, on 2 November 2017, after the conclusion of the extradition proceedings, the Minister had takena final decision on the applicant’s extradition under section 11 of the Extradition of Fugitives Law and had issued an extradition order. This decision was immediately enforceable. When taking his decision the Minister had taken into account the expert report by Professor E.G.H. Joffé and a letter by Amnesty International by the Deputy Director of the Europe and Central Asia Regional Office dated 4 November 2016 concerning the applicant and the situation in Egypt. Although the Egyptian authorities had been contacted no date had yet been set for the extradition and further arrangements still had to be made.
According to the Government the applicant had been informed orally of the issuance of the extradition order on the same date.
The applicant submitted that he had not been notified on the extradition orderas required by section 11(6) of the Extradition of Fugitives Law.
D. Other proceedings
The applicant also lodged a civil appeal against the Nicosia District Court’s decision (civil appeal no. 379/2016) which was dismissed by the Supreme Court on 31 March 2017. The Supreme Court held that in extradition proceedings the remedy provided by the Extradition of Fugitives Law was a habeas corpus application, which the applicant had already lodged, and not an appeal. The lodging of the appeal constituted an abuse of procedure.
E. The applicant’s description of his conditions of detention
The applicant has been detained at Nicosia Central Prisons since the initiation of the extradition proceedings against him.
He submits that throughout this period he was held in three different parts of the prisons.
A summary of the applicant’s description of his conditions of detention is set out below.
The applicant was initially placed in Block 4 for approximately five months where he was held alone in a cell measuring approximately 1.25 m by 2 m. There were no sanitary facilities in the cell and he had to ask the guards every time to take him to the sanitary facilities in the block. As a result he frequently had to urinate in a plastic bottle. The cell had a metal door and a small window with small holes which did not allow enough natural light to enter the cell. There was no fresh air. He was not able to exercise at all but only walk with other detainees for some time per day.
On 10 September 2016 the applicant was moved to a cell near the reception area (φρουραρχείο). He was therefore not detained with other detainees or in any of the prison wings. The cell measured approximately 2 m by 3 m. It had metal walls and there was no fresh air and natural light. There was no bed in the cell and the applicant slept on a mattress on the floor. There was no restroom or clean water in the cell.He could not sleep during the night as it was noisy due to the change of the guards’ shifts and the lights were switched on all the time. Access to the sanitary facilities was difficult and as a result he had to urinate in a bottle. He was allowed to shower every three days. After having tried to hurt himself, he had been locked in his cell for six days with no access to the showers at all. Every time he was taken to the restroom, he was subjected to a full body search, including an anal inspection. His contact list was taken from him and he was not allowed to call anyone and/or in order to call he had to ask for special permission. He was also not able to write anything in his cell, he did not have access to any recreational activity and was not able to exercise.
On 3 November 2017 the applicant was transferred to Block 10. He submitted that this was the block for detainees with mental, psychological or psychiatric problems which was not the applicant’s case. The applicant was as a consequence suffering from anxiety, distress and depression. In this block the applicant was detained alone in a cell measuring approximately1.25 m by 2 m. The sanitary facilities were communal: two toilets and three bathrooms for ten detainees. In these areas there were small windows with small holes. In Block 10 the detainees did not have access to their personal belongings; they could only access their belongings after the detaineeswere checked by the prison guards. The applicant was thus deprived of his radio which was very important to him. In addition, in Block 10, detainees were not allowed to sleep between 8 a.m. and 1 p.m. and 3 p.m. and 9 p.m. even though they had no access to any activities. There was one television in the block and one corridor that they were allowed to walk in.
Lastly, the applicant submitsthat he was placed in solitary confinement on two separate occasions throughout his detention
F. Procedure before the Court: Interim Measures
On 31 October 2017 the applicant lodged a request under Rule 39 of the Rules of Courtasking the Court to prevent the applicant’s extradition to Egypt.
On 2 November 2017the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Egypt until the Court had received additional factual information from the Government and had the opportunity to examine that information.On the same day, under Rule 54 § 2 (a) of the Rules of Court, a number of factual questions were put to the Government concerning the extradition and asylum proceedings.
On 13 November 2017 the Government informed the Court that the competent authorities had been notified of the interim measure adopted by the Court under Rule 39 and that the applicant’s extradition had been suspended in compliance with the Court’s decision.
The Government submitted the requested factual information on 27 November 2017 and the applicant’s comments in reply were submitted on 7 December 2017. The Government submitted their final comments in reply to those of the applicant on 20 December 2017.
On 9 January 2017 the Registry received a fax sent from the Nicosia Central Prisons which consisted of a handwritten declaration in Arabic signed by the applicant on that day and a translation of that declaration in Greek by an interpreter. In this declaration the applicant requested the Court to lift the interim measure so he could be sent to Egypt.
On the same day the declaration was sent to the applicant’s lawyer requesting her to confirm the information sent by the applicant.
By a fax dated 15 January 2018 the applicant’s lawyer informed the Court that she had visited the applicant on 13 January 2018. She provided the Court with a handwritten declaration in Arabic signed by the applicant on that day and a translation of that declaration in Greek by a non-official translator. According to the declaration the applicant withdrew the request made on 9 January 2018 andwished to continue to be represented by Ms N. Charalambidou.
On 22 January 2017 the Court (the duty judge) reconsidered the application of Rule 39 in the light of information provided by the parties and decided to maintain its application. Priority treatment and confidentiality to the case under Rules 41 and 33 § 1 of the Rules of Court respectively were also granted.
COMPLAINTS
1. The applicant complains that his extradition to Egypt would be in violation of Articles 2 and 3 of the Convention. He alleges that if extradited he would be exposed to a real risk of death or torture or inhuman or degrading treatment.
2. The applicant complains that he would be at real risk of a flagrant denial of justice if tried in Egypt. He alleges that there was a serious risk, inter alia, that he would be tried by a military court, would not have access to a lawyer and be able to call his own witnesses.
3. Furthermore, the applicant complains of the lack of an effective domestic remedy under Article 13 with regard to his complaints under Articles 2, 3 and 6 of the Convention.In this respect, he complains, inter alia, that the asylum proceedings did not have suspensive effect andthat the courts in the extradition proceedings did not adequately examine his allegations as such proceedingswere limited in scope and subject to stringent procedural rules concerning the admission of evidence.
4. Lastly, the applicant complains under Article 3 taken alone and in conjunction with Article 13 about the conditions of his detention at Nicosia Central Prisons and the lack of an effective remedy in this respect.
QUESTIONS
1. In the light of the applicant’ s claims and the documents which have been submitted, would he face a risk ofbeing subjected to treatment in breach of Articles 2 and/or 3 of the Convention if extradited to Egypt?
2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 2 and 3 as required by Article 13 of the Convention?
3. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in relation to the right under Article 6?
4. If so, would the applicant, if extradited, be at real risk of a flagrant denial of justice, contrary to Article 6 of the Convention (see the recapitulation of the relevant principles in Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, §§ 62-65, ECHR 2017)?
5. Are the conditions of the applicant’s detention at Nicosia Central Prisons compatible with Article 3 of the Convention? The Government are requested to comment on all aspects of the conditions of detention which the applicant complains ofand to provide the Court with all relevant documents.
6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 concerning the conditions of detention as required by Article 13 of the Convention?
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