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Cyprus / Supreme Court / Appeal Nos. 42/2013, 43/2013, 44/2013 and 45/2013

Kristian Bekefi et al v The Republic of Cyprus through the Minister of the Interior

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court, Appeal Jurisdiction
Type:
Decision
Decision date:
30/06/2016

Key facts of the case: 

The appellants were Union citizens lawfully residing in Cyprus when the Minister of the Interior declared them as prohibited immigrants under the national immigration law for posing a serious threat to public order.

Initially the immigration authorities had issued against the applicants detention and deportation orders relying on a provision of the immigration law which applies to third country nationals. This error was later corrected by the issue of a fresh order on the basis of article 29 of the Law on the right of Union citizens and their family members to move and reside freely in the Republic, whose scope covers Union citizens.

The Court decision did not specify the facts which led the authorities to assume that the applicants were a serious threat to public order. It is not clear whether these facts were presented before the Court or not. The Court was in any case satisfied that the public order concerns invoked by the authorities, who had relied on information supplied by the police regarding criminal activity of the applicants and were therefore valid. The justification attached to the administrative decision ordering the applicants’ expulsion was a police letter stating that all the applicants were members of a ‘criminal group’ carrying out ‘various criminal activities’ such as blackmailing citizens for protection and assaults. The police letter claimed that information about the applicants’ criminal activity was supplied to the police daily even though there was never any formal complaint. With regard to one of the applicants, the police letter claimed he was considered to be the ‘executioner’ in a murder case where he was tried as main suspect but was acquitted by the Court, even though there was ‘scientific evidence’ implicating him. This information was transmitted to the Chief of Police who approved the request for their expulsion.

As a result, detention and deportation orders were issued against them on the basis of which they were deported. Later the Minister recalled the orders, having realized they were based on an error of law. The orders were reissued under the law transposing the Free Movement Directive prohibiting their re-entry into Cyprus for the next 10 years and the appellants were notified accordingly. The appellants challenged this decision claiming that it infringed:-

  • article 12 of the Cypriot Constitution and article 6 of the ECHR, both of which safeguard the presumption of innocence,
  • the Free Movement Directive and
  • The national law transposing it and the principle of proportionality.

The applications were rejected at first instance, as the court ruled that the administrative decision was within the remit of lawful discretion of the administration which, in the cases of deportations and entry bans, is wide enough so as to conform to the principle of sovereignty. The appellants appealed the first instance decision on the ground that it erred in its finding that the presumption of innocence and the right of free movement had not been infringed. On the presumption of innocence, in addition to the Constitution and the ECHR, the appellants sought to rely on article 48 of the Charter as well as on article 45 which safeguard their right to move freely in the territory of the Union. They also invoked article 21.2. of the Charter arguing that Union law requires member states to assess the conduct of Union citizens using the same criteria as when assessing its own nationals and that no Cypriot would have been deemed to be a threat to public order based solely on vague and unconfirmed information. 

Outcome of the case: 

Deportation is the most serious of restrictions to free movement and at the same time an exception to the principle of non-discrimination on the ground of nationality safeguarded by Charter article 21. This is because member states are not at liberty to deport their own nationals or prohibit their entry into the country, whilst by contrast such measures may sometimes be taken against nationals of other member states. The deportation of non-nationals remains a sovereign right of EU member states. The concept of public order is not defined either in the Free Movement Directive or in CJEU case law and the extent of administrative discretion in this area remains undefined. This is not accidental: member states are essentially free to regulate matters of public order and safety according to their needs and values which may differ from one member state to the other and from one point in time to another. CJEU case law requires that in order for a certain conduct to amount to a threat to public order, this must result in a present and sufficiently serious threat against the fundamental interests of society based solely on the personal conduct of the Union citizen concerned. The presumption of innocence safeguarded by Charter article 48 presupposes a criminal prosecution which was not the case here. Administrative acts on entry, stay and deportation of non-nationals are public law matters which do not fall within the sphere of criminal law where the prerequisites of a fair trial must be adhered to. Relying on Council Directive 2016/343 of 9 March 2016 for the reinforcement of the right to a fair trial, the scope of which does not extend beyond criminal proceedings, the trial court finding that the presumption of innocence had not been violated was correct. It is not necessary for a person to be convicted of an offence in order to constitute a present and sufficiently serious threat against the fundamental interests of society, within the meaning of article 27.2 of the Free Movement Directive. Participation in an organisation the activities of which are considered to pose a social risk may suffice to satisfy article 27.2. The connection of each of the appellants with such an organisation could be seen as referring to the personal conduct of each one of them and it is such individual conduct that led the police to conclude that they were dangerous persons. None of the appellants resided in Cyprus for longer than five years, whilst two of them had not even applied for registration as Union citizens.