MA v Cyprus
Summary: Regular readers of our newsletter will either have been missing or celebrating our banging of the Strasbourg drum in relation to the deprivation of liberty. This case, however, brought to our attention by Jonathan Wilson, provides a further indication that the path taken by the Court of Appeal in Cheshire West is at odds with that adopted by Strasbourg.
The case arises in a different context; for material purposes, the relevant part of the judgment relates to the Court's consideration of the applicant's circumstances after he had been involved with a number of others in a protest in Nicosia but prior to his detention under deportation and detention orders issued under Cypriot immigration legislation. The government contended that he had not been deprived of his liberty, but rather had been transferred to the headquarters of the Cypriot police's Emergency Response Unit 'for identification purposes and not to arrest and detain them (relying on X. v Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158). They had not been kept in cells, they had not been handcuffed and they had been given food and refreshment. Those who had been identified as being lawfully resident in the Republic had gone home. The rest had been arrested. The applicant's detention commenced once he had been charged with the flagrant criminal offence of unlawful stay in the Republic and arrested on this ground' (para 180).
In a passage of some significance, which bears citation in full, the Court assessed the legal position thus:
"188. The Court notes that in cases examined by the Commission, the purpose of the presence of individuals at police stations, or the fact that the parties concerned had not asked to be allowed to leave, were considered to be decisive factors. Thus, children who had spent two hours at a police station in order to be questioned without being locked up were not found to have been deprived of their liberty (see X. v. Germany, no 8819/79, cited above) nor was an applicant who had been taken to a police station for humanitarian reasons, but who was free to walk about on the premises and did not ask to leave (see Guenat v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight to the fact that an applicant had never intended to leave the courtroom where he was taking part in a hearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996).
189. The case-law has evolved since then as the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the Court's assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Creang?, § 93, cited above; Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011).
190. Furthermore, the Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, Brega and Others v. Moldova, no. 61485/08, § 43, 24 January 2012; Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011; Iskandarov v. Russia, no. 17185/05, § 140, 23 September 2010; Rantsev v. Cyprus and Russia, no. 25965/04, § 317, ECHR 2010 (extracts); and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008)."The Court went on to hold that the applicant's transfer to and stay in the ERU headquarters during the period prior to his detention under immigration legislation amounted to de facto deprivation of liberty within the meaning of Article 5(1) (para 195). It also held that the deprivation of liberty had occurred without any clear legal basis, and was therefore unlawful (paras 202-3).
Comment
In light of the Court of Appeal's decision in Cheshire West, the place of 'purpose' in the determination of whether there is a deprivation of liberty is a particularly vexed question. It should be clear from the subsequent decision in Austin v UK that questions of purpose are relevant not to the issue of whether there is a deprivation of liberty, but whether that deprivation of liberty is justified. This decision, entirely consistent with that in Austin (which it considered but not with regards to this specific point), is of no little significance for its review of earlier cases (not conducted in Austin) arising in a range of circumstances, and for its confirmation that the Strasbourg case-law has evolved in this area.
