Author
According to the law, an application for legal aid can be submitted for the judicial review of detention (see Recourse) before the IPAC only when detention is ordered under the provisions of the Refugee Law.[1] Legal aid is not provided when detention is ordered under the Aliens and Immigration Law. However, an application for legal aid can be submitted for judicial review of deportation/removal/return decision subject to a “means and merits” test.[2] Since almost always, a person against whom a deportation order is issued, will also have a detention order against them, when appealing a deportation order, the appeal can include the detention order as well.
As mentioned above, for detention orders under the Refugee Law, a detainee has a 15-day deadline to challenge detention and legal aid applications must be submitted and examined within this time. If a recourse challenging detention is submitted beyond the 15-day deadline, it will be rejected even if the examination of the legal aid application is pending and the delay is due to the Court’s proceedings. When the deadline to submit a recourse to challenge detention was reduced in 2020 from 75 to 15 days, it was initially noted that many legal aid applications were being examined and decided after the deadline to submit a recourse to challenge detention.[3] From 2021 onwards and continuing in 2024, these issues seem to have been resolved, as long as detainees are transferred from detention to court in time by the AIU. Such delays are instead often noted for detainees who are detained in holding cells.
For Habeas Corpus applications before the Supreme Court, an application for legal aid can be submitted only if detention has been ordered under the Refugee Law,[4] but not in cases in which detention is ordered under the Aliens and Immigration Law.[5]
Legal aid is not provided to challenge or request a review of detention before the authorities through administrative procedures e.g., request for review, challenge of purpose, length, and lawfulness, regardless on the legal basis.
When detention has been ordered under the Refugee Law, applications for legal aid either for the judicial review of detention (see Recourse) before the IPAC or the length of detention with a Habeas Corpus application are subject only to a “means” test. According to the means test, the detainee applying for legal aid must show that they do not have the means to pay for the services of a lawyer and this will be examined by a Welfare Officer who will submit a report to the Court. In most cases of detention, this limb of the test will be met.
In 2022, according to the IPAC, 18 applications for legal aid to challenge detention were successful. In 2023, 13 applications for legal aid to challenge detention were successful. In 2024, 12 applications for legal aid to challenge detention were successful. [6]
Furthermore, in 2024 an amendment to the Legal Aid Law was passed which includes the following, [7]
- Legal aid applications will be deemed inadmissible if the appeal is submitted past the appeal deadline.
- When an applicant is awarded legal aid, they can either choose a lawyer, or have one appointed by the Court. However, a lawyer cannot be re-appointed until all lawyers registered under the “Lawyers’ Registry” have either been chosen to represent or have refused to represent. Therefore, if a lawyer is selected to represent an applicant receiving legal aid, that lawyer cannot be chosen to represent any other legal aid beneficiary, until every other lawyer on the list has been considered.
- Provisions for drafting the “Lawyers’ Registry” and how lawyers can register to be included in it.
- The penalties for fraudulent statements to secure legal aid have increased. Upon conviction, penalties have risen from £450 (Cypriot pounds) to €3000 and imprisonment from 6 months to 2 years.
- Introduction of penalties for lawyers who request and receive any additional amount in relation to the services provided under the framework of legal aid, beyond the remuneration received in accordance with the Legal Aid Law.
Contacting a lawyer in Menogia Detention Center is not a significant issue, and detainees usually receive a list of lawyers and their telephone numbers as compiled by the Cyprus Bar Association and as required by law.[8] However, detainees rarely use the list, as they usually contact lawyers recommended by other detainees or friends, or lawyers that visit the detention centre to meet another detainee/client. The situation in Police holding cells differs and it is not clear if detainees receive a list of lawyers. Meetings with lawyers in detention are confidential and held in a specialised room which has been designated as the lawyer’s room. The lawyer can be escorted by an interpreter. The clients are contacted mainly through their mobile phones.
In 2024, the CPT reported that “[f]rom the interviews held with the delegation at police stations and detention centres, it was apparent that there was a lack of information provided to immigration detainees as most of the persons interviewed by the delegation did not know the status of their immigration procedure. Further, they were not provided with information in a language that they understand on how to contact relevant and competent national, international and non-governmental organisations and bodies for assistance. Benefiting from free legal aid was also an issue for persons detained under immigration legislation; most of the persons with whom the delegation discussed were not legally represented in their immigration procedure and claimed they could not benefit from the free legal aid system. Moreover, unlike criminal suspects held in the same facility, persons detained under immigration legislation were not provided with the list of rights of persons under arrest and detention although they should be entitled, from the very outset of their deprivation of liberty, to be informed, without delay and in a language they understand, of all their rights, their legal situation and the procedure applicable to them, including on how to make a complaint.”[9]
Furthermore, regarding Pournara Centre, the CPT noted in 2024 that it was clear that legal assistance was not available free of charge for indigent foreign national detained persons. Moreover, given the de facto nature of the detention of foreign nationals without detention orders, it was impossible per se to exercise the right to challenge their detention order.[10]
Overall, the main obstacles to accessing legal assistance in detention is the short deadline for challenging a detention order, during which legal aid must be applied for; the lack of resources of the detainee to contract the services of a lawyer; the lack of access to legal aid if detained under provisions of the Aliens and Immigration Law and the lack of information and counselling to access legal aid; the lack of information on immigration status and available remedies. The court fees to submit a judicial review are € 96 if the applicant submits it without a lawyer, whereas if the appeal is submitted by a lawyer the court fees are € 137. The submission of a Habeas Corpus application requires €150. NGO lawyers may provide assistance to prepare legal aid applications,[11] but they are not permitted to appear before the court.
Asylum applicants in detention reach NGOs providing legal assistance primarily through word of mouth, especially since the information available to asylum applicants is often not available or outdated (see section on Information for Asylum Applicants and Access to UNHCR and NGOs), or by NGOs carrying out monitoring visits to the detention centre.[12] If an NGO visiting the detention centre cannot offer legal assistance, it often refers asylum applicants to NGOs that do offer such services. If an asylum applicant was represented prior to their detention, there may be a slightly better chance of challenging the detention. However, similar issues will arise, as an asylum applicant who was represented by a private lawyer prior to detention may not have the funds to continue contracting the lawyer’s services.
Besides judicial review of detention, a legal representative can challenge the detention of an asylum applicant or request their release through administrative procedures that do not carry expenses. However, the lack of free legal assistance is again an obstacle for detainees to utilise this option and the success of such interventions is extremely low.[13]
Free legal assistance is extremely limited to asylum applicants in detention, as it is only provided by NGOs with extremely limited capacity, inconsistent and dependent on project funding.
[1] Article 9ΣΤ(2) Refugee Law.
[2] Article 6Γ(2) Legal Aid Law.
[3] Based on cases brought before the Court by the Cyprus Refugee Council. The time required to examine legal aid cases can also be derived from the date of application and date of issuance of legal aid decisions as seen on the database of cases published by the Court available at: https://bit.ly/3lbnaCX
[4] Article 6B(7)(b) Legal Aid Law.
[5] Article 6B and 6Γ Legal Aid Law.
[6] Information provided by IPAC
[7] Legal Aid Law, Amendment 170(I)/2024, available here.
[8] Article 8(3)(b) Rights of Persons who are Arrested and Detained Law.
[9] CPT, Report to the Government of Cyprus on the visit to Cyprus carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 17 May 2023, available here.
[10] Ibid.
[11] Administrative Court, Alashkham, Legal Aid Application 15/2018, 17 July 2018, available in Greek here.
[12] Information based on monitoring visits carried out by the Cyprus Refugee Council.
[13] Information provided by Cyprus Refugee Council