Legal assistance for review of detention

Cyprus

Country Report: Legal assistance for review of detention Last updated: 30/11/20

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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] When detention is ordered under the Aliens and Immigration Law transposing the Returns Directive,[2] legal aid is available to challenge return, removal and entry ban decisions but not deportation or detention decisions.[3] If detention is ordered based on the asylum seeker being declared a “prohibited immigrant”, then he or she is not eligible for legal aid.

 

For Habeas Corpus applications before the Supreme Court, legal aid can be applied for only if detention has been ordered under the Refugee Law,[4] but not when detention is ordered under the articles of the Aliens and Immigration Law transposing the Returns Directive,[5] or when detained as a “prohibited immigrant”.[6] Legal aid is also 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.

 

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 the submission of 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 he or she does 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. Prior to 2018, no detention orders were issued under the Refugee Law. In 2018 such detention orders were increasingly issued and although the number of legal aid applications remained low, all submitted were granted.[7] Throughout  2019, the majority of asylum seekers in detention, regardless of the initial basis for detention, once applying for asylum were  issued a detention order under the Refugee Law, including persons with criminal convictions. This led to a higher number of detainees applying for legal aid and in the majority of cases they were released before the legal aid application was examined.[8]

 

The newly established IPAC to date has not released statistics in respect of successful legal aid applications, however according to cases published on the Leginet Portal between June-November 24 2019 legal aid applications were submitted and all were successful.[9] As mentioned before, in most cases the asylum seeker is released before the case challenging the detention order is examined.

 

Even when a legal aid application is successful there are additional issues such as the detainee not being notified of the decision,[10] or the requirement for the court expenses to be paid upon submission of the application to challenge detention as the judicial review requires court expenses of approximately €140 and for a Habeas Corpus application €800. In view of the long delays in lawyers receiving payment for legal aid cases, lawyers are often not willing to take up these cases.

 

The main obstacles to accessing legal assistance in detention is the lack of resources on behalf 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. NGO lawyers may provide assistance to prepare legal aid applications,[11] but they are not permitted to appear before the court.

 

Contacting a lawyer is not much of an issue and detainees do receive a list of lawyers and their telephone numbers as compiled by the Cyprus Bar Association and as required by law.[12] However, they rarely use this. Detainees usually contact lawyers that are suggested by other detainees or friends or lawyers that visit the detention centre to meet another detainee / client. Meetings with lawyers in detention are confidential and held in a specialised room which has been designated as the lawyer’s room. The clients are contacted mainly through their mobile phones.

 

Asylum seekers in detention reach NGOs providing legal assistance primarily through word of mouth, especially since the information available to asylum seekers is often not available or outdated (see section on Information for Asylum Seekers and Access to UNHCR and NGOs), or by NGOs carrying out monitoring visits to the detention centre.[13] If an NGO visiting the detention centre cannot offer legal assistance, it often refers asylum seekers to NGOs that do offer such services. It has been noted that there is a general lack of use of interpreters during all procedures in the detention centre, which is problematic especially in relation to illiterate detainees. This makes communication for illiterate detainees nearly impossible and they are unable to make use of their rights relating to access to legal remedies, food, clothing and medical examinations. If an asylum seeker was represented prior to his or her detention, there may be a slightly better chance of challenging the detention. However, similar issues will arise, as an asylum seeker who was represented by a private lawyer prior to detention may not have funds to continue contracting the lawyer’s services.

 

Besides the judicial review of detention, a legal representative can challenge the detention of an asylum seeker or request his or her 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.

 

Free legal assistance is available to asylum seekers in detention, as to all asylum seekers, by NGOs. However, the capacity is limited or the services not consistent as they depend on project funding. Furthermore, judicial review requires court expenses of approximately €140 and for a Habeas Corpus application €800, which often the NGO or the detainee are not in a position to provide.

 

 


[1]Article 9ΣΤ(2) Refugee Law.

[2]Article 6Γ Legal Aid Law.

[3]Administrative Court, Yilmaz, Application 2/2019, 23 January 2019, available in Greek at: https://bit.ly/2Gx123s.

[4] Article 6B(7)(b) Legal Aid Law.

[5] Article 6Γ Legal Aid Law.

[6]Article 6B and 6Γ Legal Aid Law.

[7]According to a search carried out on the Cylaw database, throughout 2017 only 2 applications for legal aid to challenge detention were submitted and none were accepted. In 2018, of 5 applications for legal aid where detention was ordered under the Refugee Law all were granted. No data available for 2019.

[8]Information based on monitoring visits carried out by the Cyprus Refugee Council.

[9]Leginet is a subscription-based database for legislation, caselaw and secondary legislation, available at: https://bit.ly/3dBpMFV.

[10]Information based on monitoring visits carried out by the Cyprus Refugee Council.

[11]Administrative Court, Alashkham, Legal Aid Application 15/2018, 17 July 2018, available in Greek at: https://bit.ly/2UTZUuT.

[12]Article 8(3)(b) Rights of Persons who are Arrested and Detained Law.

[13]Information based on monitoring visits carried out by the Cyprus Refugee Council.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation