In the case of Suso Musa v. Malta,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 2 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
42337/12) against the Republic of Malta lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by Mr Ibrahim Suso Musa (“the applicant”), on 4 July
2012.
The applicant was represented by Dr N. Falzon, a
lawyer practising in Valletta. The Maltese Government (“the Government”) were
represented by their Agent, Dr P. Grech, Attorney General.
The applicant alleged that his detention had not
been in accordance with Article 5 § 1 of the Convention and that he had not had
an effective means of challenging its lawfulness as provided for by Article 5 §
4 of the Convention.
On 22 October 2012 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Written observations were also received from the
International Commission of Jurists, which had been given leave to intervene by
the President of the Chamber (Article 36 § 2 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, allegedly a Sierra Leone national,
was born in 1983 and was detained at Safi Barracks at the time of the
introduction of the application.
A. Background to the case
The applicant entered Malta in an irregular
manner by boat on 8 April 2011. Upon arrival, he was arrested by the police
and presented with a document containing both a Return Decision and a Removal
Order in view of his presence in Malta as a prohibited immigrant in terms of
Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta). He
was defined as such owing to his entry into Malta in an irregular manner and in
consideration of the fact that he did not have sufficient means to support
himself. The Return Decision informed the applicant of the possibility to apply
for a period of voluntary departure. The lower half of the same document
contained a Removal Order based on the rejection of the applicant’s request for
a period of voluntary departure. It noted that the request had not been acceded
to for the following reasons: the risk that the applicant might abscond; the
fact that his application for legal stay was considered to be manifestly
unfounded or fraudulent; and the fact that he was considered to be a threat to
public policy, public security or national security (see paragraph 27 below).
In fact, the applicant never actually made a
request for a voluntary departure period, since the rejection was, as explained
above, automatically presented to him with the information regarding the
possibility of making such a request. The applicant was never informed of the
considerations leading to this decision or given any opportunity to present
information, documentation and/or other evidence in support of a possible
request for a voluntary departure period.
The applicant was further informed, through the
joint Return Decision and Removal Order, of his right to appeal against the
Decision and Order before the Immigration Appeals Board (“the IAB”) within
three working days. No further information was provided on the appeals
procedure, including the availability of legal assistance; the latter assertion
was denied by the Government.
On the basis of the Return Decision and Removal
Order, and in accordance with the Immigration Act, the applicant was detained
in Safi Barracks.
B. Asylum proceedings
On 14 April 2011, whilst in Safi Barracks, the
applicant submitted the Preliminary Questionnaire, the first stage of his
application for asylum in Malta.
On 31 December 2011 the applicant’s
asylum application was rejected by the Office of the Refugee Commissioner, who
considered that the claim as presented failed to meet the criteria for
recognition of refugee status.
On 24 January 2012 the applicant appealed to the
Refugee Appeals Board. The parties presented submissions on 29 March 2012.
On 2 April 2012 the Refugee Appeals
Board rejected the applicant’s appeal, thereby definitively closing the asylum
procedure almost twelve months after his arrival in Malta.
C. Proceedings challenging the legality of detention
In the meantime, pending the above asylum
proceedings, the applicant lodged an application with the IAB on 28 June 2011
in order to challenge the legality of his detention in terms of the Immigration
Act. The application was based on Article 5 § 1 of the Convention and
Regulation 11(10) of the Common Standards and Procedures for Returning
Illegally Staying Third-Country Nationals Regulations (Legal Notice 81 of 2011,
hereinafter “LN 81”) (see “Relevant domestic law” below). In his application
the applicant argued that the decision to detain him, as well as his ongoing
detention, were contrary to the law. With regard to the original decision to
detain him, the applicant argued that, contrary to the requirements of
Regulation 11(8) of LN 81, when he was presented with the Return Decision and
Removal Order no assessment had been made as to the possibility of exploring “other
sufficient and less coercive measures”. Furthermore, in deciding to detain him,
the responsible authorities had decided a priori and without an
individual assessment of his situation that he presented a risk of absconding
and that he was avoiding or hindering the return or removal procedure.
Moreover, the decision was taken without the applicant having had an
opportunity to make a request for voluntary departure. The applicant further
argued that his ongoing detention was also contrary to the law because once he
had presented his asylum application in April 2011, return procedures could not
be commenced or continued in his regard under Regulation 12 of the Procedural Standards
in Examining Applications for Refugee Status Regulations (Legal Notice
243 of 2008, hereinafter “LN 243”) (see “Relevant domestic law” below).
On 27 September 2011 the Immigration Police responded
to the applicant’s application before the IAB; this was followed by further
submissions by the applicant. On 22 November 2011 the IAB issued a decree
requesting the parties to submit further information on specific queries raised
by it. The applicant made further submissions highlighting the delay that was being
created in the proceedings, and final submissions were also made by the
Immigration Police.
On 5 July 2012, more than a year after the
applicant’s challenge, the IAB rejected his application. It noted that, despite
the fact that, according to Regulation 11(1) of LN 81, Part IV of those
Regulations did not apply to persons who were apprehended or intercepted by the
competent authorities in connection with the irregular crossing by sea or air
of the external border of Malta and who did not subsequently obtain an
authorisation or a right to stay in Malta, the applicant had obtained the right
to stay (“joqgħod”) in Malta on lodging his application for asylum.
Indeed it had been correct to rely on Regulation 12(1) of LN 243, which stated
that an individual had the right to enter or remain on the island pending a
decision on his asylum request. In the present case, that situation had applied
to the applicant when he instituted his challenge before the IAB. In the
applicant’s case, had the asylum request still been pending, Section IV of LN
81 would in fact have been applicable, in particular in so far as an individual
could not be kept in detention unless return proceedings were under way or he
or she presented a risk of absconding. However, the situation had changed,
given that on 2 April 2012 the applicant’s asylum request had been
rejected by a final decision. The latter implied that Section IV of LN 81 was
no longer applicable to the applicant and thus the IAB could no longer decide
on the request in terms of Regulation 11(8) of LN 81. Moreover, the applicant
was not arguing the illegality of his detention on the basis of its length. In
any event the IAB was not competent to decide whether there had been a breach
of Article 5 of the Convention.
D. Criminal proceedings
While the above procedures were pending, on 16
August 2011, a riot broke out at Safi Barracks, resulting in a number of
detained migrants, police officers and soldiers of the Armed Forces of Malta
being injured. That same day, twenty-three migrants were arrested and charged
in court in relation to the riot. The applicant was amongst the persons arrested
and, together with the others, was accused of a number of offences including
damage to private property, use of violence against public officers, refusal to
obey lawful orders and breach of public peace and good order. The arrested men,
including the applicant, were taken to Corradino Correctional Facility to await
the outcome of the criminal proceedings.
The following day, on 17 August 2011, the Court
of Magistrates confirmed that the arrest of the migrants, including the
applicant, was justified and in accordance with the law. They were remanded in
custody.
On 30 January 2012 the Court of Magistrates
granted the applicant bail, under the terms of which he was released from
Corradino Correctional Facility and returned to Safi Barracks.
E. Latest information
The applicant was released from detention in
Safi Barracks on 21 March 2013, following 546 days of detention in an
immigration context. The criminal proceedings in relation to the riot at Safi
Barracks were still pending.
On an unspecified date (around January 2013), in
an effort to make arrangements for the deportation of the applicant, the
authorities interviewed him in the presence of a representative from the
Consulate of the Republic of Sierra Leone. The latter, by a communication of 11 February
2012, informed the Maltese authorities that the applicant did not hail from
Sierra Leone and that they could therefore not provide further assistance.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Immigration Act
Immigration and asylum procedures are mainly
regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta.
Article 5 of the Act defines the term “prohibited immigrant” and, in so far as
relevant, reads as follows:
“(1) Any person, other than one having the right of entry, or
of entry and residence, or of movement or transit under the preceding Parts,
may be refused entry, and if he lands or is in Malta without leave from the
Principal Immigration Officer, he shall be a prohibited immigrant.
(2) Notwithstanding that he has landed or is in Malta with the
leave of the Principal Immigration Officer or that he was granted a residence
permit, a person shall, unless he is exempted under this Act from any of the
following conditions or special rules applicable to him under the foregoing
provisions of this Act, be a prohibited immigrant also -
(a) if he is unable to show that he has the means of
supporting himself and his dependants (if any) or if he or any of his
dependants is likely to become a charge on the public funds; or ...”
Articles 6 and 9 regarding the powers of the Principal Immigration Officer in granting
entry, and the relevant procedure, read as follows:
Article 6
“(1) Without prejudice to any rights arising from the preceding
Parts, for the purposes of this Act, the Principal Immigration Officer may -
...
(b) grant leave to land or leave to land and remain to any
other person arriving in Malta, under such conditions and for such period as
the Principal Immigration Officer may deem proper to establish;
...”
Article 9
“(1) Without prejudice to any regulations made under Part III
of this Act, leave to land or to land and remain in Malta shall be signified
either by a written permit delivered to, or by an appropriate endorsement on
the passport of, the person concerned, but the conditions attached to such leave
may be contained in a separate document delivered to such person.”
Article 10 of the Act regarding temporary
detention reads, in so far as relevant, as follows:
“(1) Where leave to land is refused to any person arriving in
Malta on an aircraft ...
(2) Where leave to land is refused to any person arriving in
Malta by any other means, such person at his own request may, with the leave of
the Principal Immigration Officer, be placed temporarily on shore and detained
in some place approved by the Minister and notified by notice in the Gazette:
Provided that he shall be returned to the vessel by which he is
to leave Malta immediately that he makes a request to that effect or that the
Principal Immigration Officer so directs, whichever is the earlier.
(3) Any person, while he is detained under sub-article (1) or
(2), shall be deemed to be in legal custody and not to have landed.”
Article 14 of the Act, in so far as relevant,
reads as follows:
“(1) If any person is considered by the Principal Immigration
Officer to be liable to removal as a prohibited immigrant under any of the
provisions of article 5, the said Officer may issue a removal order against
such person who shall have a right to appeal against such order in accordance
with the provisions of article 25A:...
(2) Upon such order being made, such person against whom such
order is made, shall be detained in custody until he is removed from Malta.
Provided that if the person in respect of whom an expulsion
order has been made is subject to criminal proceedings for a crime punishable
with imprisonment or is serving a sentence of imprisonment, the Minister may
give such directions as to whether the whole or part of the sentence is to be
served before the expulsion of such person from Malta, and, in default of such
directions, such person shall be removed after completion of the sentence”
In practice, on being apprehended prohibited
immigrants are issued with a Return Decision and a Removal Order (on the same
sheet of paper), in accordance with Article 14 of the Act. The document consists
of a standard-format text which, in the applicant’s case, read as follows:
RETURN
DECISION
“It transpires that you are a prohibited
immigrant by virtue of Article 5 of the Immigration Act, Chapter 217, because
you
entered Malta illegally and have no means
of subsistence
Therefore, by virtue of the powers vested in
me as the Principal Immigration Officer by Regulation 3 of Legal Notice 81 of 2011,
I am issuing this return decision and therefore terminating your stay. You have
the right to apply for an appropriate period of voluntary departure
REMOVAL
ORDER
This Return Decision is accompanied by a
Removal Order in accordance with the same regulation since the request for a
period of voluntary departure has not been acceded to for the following
reasons,
a) there is a risk that you may abscond
b) your application for legal stay is
considered as manifestly unfounded or fraudulent,
c) you are considered to be a threat to public
policy, public security or national security
By virtue of regulation 7 of the above
mentioned Legal Notice an entry ban will be issued against you and this shall
remain valid for a period of five years and is subject to renewal
You have the right to appeal from this
Decision/Order/Entry Ban to the Immigration Appeals Board within three working
days at the Board’s Registry, Fort St Elmo, Valletta”
An “irregular” immigrant is entitled to apply
for recognition of refugee status by means of an application (in the form of a
Preliminary Questionnaire) to the Commissioner for Refugees within two months
of arrival. While the application is being processed, in accordance with
Maltese policy, the asylum seeker will remain in detention for a period of up
to eighteen months, which may be extended if, on rejection of the application,
he or she refuses to cooperate in respect of his or her repatriation.
Article 25A of the Act concerns the appeals and
applications (lodged by virtue of the provisions of the Act or regulations made
thereunder, or by virtue of any other law) to be heard and determined by the
Immigration Appeals Board (“the Board”). Article 25A reads, in so far as
relevant, as follows:
“(5) Any person aggrieved by any decision of the competent
authority under any regulations made under Part III, or in virtue of article 7
[residence permits], article 14 [removal orders] or article 15 [responsibility
of carriers] may enter an appeal against such decision and the Board shall have
jurisdiction to hear and determine such appeals.
(6) During the course of any proceedings before it, the Board, may,
even on a verbal request, grant provisional release to any person who is
arrested or detained and is a party to proceedings before it, under such terms
and conditions as it may deem fit, and the provisions of Title IV of Part II of
Book Second of the Criminal Code shall, mutatis mutandis apply to such
request.
(7) Any appeal has to be filed in the Registry of the Board
within three working days from the decision subject to appeal: ...
(8) The decisions of the Board shall be final except with respect
to points of law decided by the Board regarding decisions affecting persons as
are mentioned in Part III, from which an appeal shall lie within ten days
to the Court of Appeal (Inferior Jurisdiction).
(9) The Board shall also have jurisdiction to hear and determine
applications made by persons in custody in virtue only of a deportation or
removal order to be released from custody pending the determination of any
application under the Refugees Act or otherwise pending their deportation in
accordance with the following subarticles of this article.
(10) The Board shall only grant release from custody under subarticle
(9) where in its opinion the continued detention of such person is taking into
account all the circumstances of the case, unreasonable as regards duration or
because there is no reasonable prospect of deportation within a reasonable
time:
Provided that where a person, whose application for protection
under the Refugees Act has been refused by a final decision, does not
co-operate with the Principal Immigration Officer with respect to his
repatriation to his country of origin or to any other country which has
accepted to receive him, the Board may refuse to order that person’s release.
(11) The Board shall not grant such release in the following cases:
(a) when the identity of the applicant including his nationality
has yet to be verified, in particular where the applicant has destroyed his
travel or identification documents or used fraudulent documents in order to mislead
the authorities;
(b) when elements on which any claim by applicant under the
Refugees Act is based, have to be determined, where the determination thereof
cannot be achieved in the absence of detention;
(c) where the release of the applicant could pose a threat to
public security or public order.
(12) A person who has been released under the provisions of subarticles
(9) to (11) may, where the Principal Immigration Officer is satisfied that
there exists a reasonable prospect of deportation or that such person is not
co-operating with the Principal Immigration Officer with respect to his
repatriation to his country of origin or to another country which has accepted
to receive him, and no proceedings under the Refugees Act are pending, be again
taken into custody pending his removal from Malta.
(13) It shall be a condition of any release under subarticles
(9) to (12) that the person so released shall periodically (and in no case less
often than once every week) report to the immigration authorities at such
intervals as the Board may determine.”
B. Relevant subsidiary legislation
Part IV of Subsidiary Legislation 217.12, Common
Standards and Procedures for Returning Illegally Staying Third-Country
Nationals Regulations, Legal Notice 81 of 2011 (transposing
Directive 2008/115/EC of the European Parliament and of the Council of 16
December 2008 on common standards and procedures in member States for returning
illegally staying third-country nationals) reads, in so far as relevant, as
follows:
Regulation
11
“(1) The provisions of Part IV shall not apply to third country
nationals who are subject to a refusal of entry in accordance with Article 13
of the Schengen Borders Code or who are apprehended or intercepted by the
competent authorities in connection with the irregular crossing by sea or air of
the external border of Malta and who have not subsequently obtained an
authorisation or a right to stay in Malta.
(2) A return decision, an entry-ban decision and a removal
order shall be issued in writing and shall contain reasons in fact and in law and information on legal remedies:
Provided that the reasons in fact may be given in a restrictive
way where the withholding of information is regulated by law, in particular
where the disclosure of information endangers national security, public policy,
and the prevention, detection, investigation and prosecution of criminal
offences.
(3) A return decision shall be issued in a standard form and
general information as regards such form shall be given in at least five
languages which third-country nationals may reasonably be supposed to
understand.
(4) The Board shall review decisions related to return on
application by the third-country national as referred to in subregulation
(2), and may temporarily suspend their enforcement.
(5) For the purposes of sub-regulation (4) a legal adviser
shall be allowed to assist the third-country national and, where entitled to,
free legal aid shall be provided to the third-country national.
(6) The Principal Immigration Officer shall provide, upon
request, a written or oral translation of the main elements of a return
decision and information on the legal remedies in a language the third-country
national may reasonably be supposed to understand. (...)
(8) Where a third-country national is the subject of return
procedures, unless other sufficient and less coercive measures are applicable,
the Principal Immigration Officer may only keep him in detention in order to
carry out the return and removal procedure, in particular where:
(a) there is a risk of absconding; or
(b) the third-country national avoids or hinders the
return or removal procedure:
Provided that the detention shall be for a short period and
shall subsist as long as the removal procedure is in progress and is executed
with due diligence.
(9) Detention shall be a consequence of the removal order
issued by the Principal Immigration Officer and it shall contain reasons in
fact and in law.
(10) The third-country national subject to the provisions of
subregulation (8) shall be entitled to institute proceedings before the Board
to contest the lawfulness of detention and such proceedings shall be subject to
a speedy judicial review.
(11) Where the third-country national is entitled to institute
proceedings as provided in sub-regulation (10) he shall immediately be informed
about such proceedings.
(12) The third country-national shall be immediately released
from detention where in the opinion of the Board such detention is not lawful.”
Regulation 12 of the Procedural Standards in
Examining Applications for Refugee Status Regulations (Legal Notice 243
of 2008), Subsidiary Legislation 420.07, provides, in so far as relevant, as
follows:
“(1) Notwithstanding the provisions of any other law to the
contrary, and except where a subsequent application will not be further
examined, or where an applicant is to be surrendered or extradited as
appropriate to another Member State pursuant to obligations in accordance with
a European Arrest Warrant or otherwise, or to a third country or to international
criminal courts or tribunals, an applicant shall not be removed from Malta
before his application is finally determined and such applicant shall be
allowed to enter or remain in Malta pending a final decision of his
application.
(2) An applicant for asylum shall -
(a) not seek to enter employment or carry on business unless
with the consent of the Minister;
(b) unless he is in custody, reside and remain in the places
which may be indicated by the Minister;
(c) report at specified intervals to the immigration
authorities as indicated by the Minister;
(d) hand over all documents in his possession;
(e) be subject to search and his oral statements may be recorded
subject to the applicant being previously informed thereof;
(f) be photographed and have his fingerprints taken:”
Subsidiary legislation 12.09, namely the Court Practice
and Procedure and Good Order Rules, makes specific reference to constitutional
cases. Rule 6 thereof reads as follows:
“Once a case has been set down for hearing the court shall
ensure that, consistently with the due and proper administration of justice,
the hearing and disposal of the case shall be expeditious, and the hearing of
the cause shall as far as possible continue to be heard on consecutive days,
and, where this is not possible, on dates close to one another.”
C. Relevant international texts
The following are extracts of the relevant
international reports and guidelines or recommendations relied on by the parties:
1. Concluding observations of the UN Committee on the
Elimination of Racial Discrimination Malta, l4 September 2011, paragraphs 13-14;
“13. While noting the large inflow of immigrants and efforts
made by the State party to dealing therewith, the Committee is concerned about
reports that their legal safeguards are not always guaranteed in practice. The
Committee is also concerned about the detention and living conditions of
immigrants in irregular situations in detention centres, in particular of women
and families with children (art. 5).
14. The Committee is concerned about the recurrence of riots
(2005, 2008 and 2011) by detained immigrants against their detention
conditions, for example at Safi Barracks, and about the reported excessive use
of force to counter the riots.”
2. Amnesty International Report 2012: The State of the
World’s Human Rights, 2012, page 231;
“During 2011, more than 1,500 people arrived by sea from either
the Middle East or North Africa, returning to the levels seen in 2009. Immigration
detention continued to be mandatory for anyone whom the authorities deemed to
be a “prohibited immigrant”, and was often prolonged for up to 18 months.
According to reports, conditions in both detention and open
reception centres worsened as a consequence of the number of new arrivals,
increasing the impact on detainees’ mental and physical health.
In March, the EU’s 2008 “Returns Directive” was transposed into
domestic legislation. The Directive provided common standards and procedures in
EU member states for detaining and returning people who stay in a country
illegally. However, the domestic legislation excluded those who had been
refused entry - or had entered Malta irregularly - from enjoying these minimum
safeguards. The Directive would therefore not apply to the vast majority of
those it was meant to protect.”
3. Report by Thomas Hammarberg, Commissioner for Human
Rights of the Council of Europe following his visit to Malta from 23 to 25 March
2011, 9 June 2011, paragraphs 19-20;
“19. At the end of their detention, migrants, including
refugees, beneficiaries of subsidiary protection, asylum seekers and persons
whose asylum claims have been rejected, are accommodated in open centres around
Malta. Conditions prevailing in these centres vary greatly, with adequate
arrangements reported in the smaller centres that cater for some vulnerable
groups, such as families with children or unaccompanied minors, and far more
difficult conditions in the bigger centres. As mentioned above, when the Commissioner’s
visit took place the number of irregular arrivals had been very low for over 18
months and the 2011 arrivals from Libya had not yet started. As a result, the
vast majority of migrants had moved out of the detention centres and were
living in open centres, with the respective populations numbering at 49 and 2
231 respectively. The Commissioner visited the detention centre in Safi, and
three open centres - the Hal-Far tent village, the Hangar Open Centre in
Hal-Far and Marsa.
20. At the time of the visit the material conditions in the
Safi detention centre, where all 49 of the migrant detainees were kept,
appeared to be considerably better than those in open centres. Although a
number of issues remained to be addressed, including those regarding the detainees’
access to a diversified diet and water other than from the tap, the premises
visited, including the dormitories, toilets and showers had been recently
refurbished. The only female detainee of the centre was accommodated in a
separate facility. The Commissioner wishes to note however, that in accordance
with the mandatory detention policy referred to above, most of the persons
(approximately 1 100) who have arrived from Libya since his visit have been
placed in detention centres. This is naturally bound to have a significant
impact on the adequacy of the conditions in these centres.”
4. Report to the Maltese Government on the visit to
Malta carried out by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 26 May 2008, 17
February 2011).
“52. In accordance with Maltese policy on administrative
detention of foreigners under aliens’ legislation, all foreigners arriving
illegally in Malta are still detained for prolonged periods, in the case of
asylum seekers until such time as their request for refugee status is
determined (normally 12 months) and for irregular immigrants for up to a
maximum of 18 months. In practice, however, some may spend even longer periods
in detention. The only declared exceptions to this general rule concern persons
deemed to be vulnerable because of their age and/or physical condition,
unaccompanied minors and pregnant women ...
53. The situation found in the detention centres visited by the
delegation had not substantially improved since the CPT’s previous visit in
2005. Indeed, many of the problems identified in the report on that visit still
remain unresolved. In several parts of the detention centres, the combined
effects of prolonged periods of detention in poor, if not very poor, material
conditions, with a total absence of purposeful activities, not to mention other
factors, could well be considered to amount to inhuman and degrading treatment.
a. material
conditions
...
60. At Safi Barracks Detention Centre,
which at the time of the visit accommodated a total of 507 immigration
detainees, living conditions for detainees had slightly improved in comparison
to the situation observed by the CPT in 2005.
At Warehouse No. 1, living conditions
were less cramped than when last visited by the CPT, and the toilet facilities
were new and clean. That said, the Committee has strong reservations as regards
the use of converted warehouses to accommodate detainees. This should only be
seen as a temporary - and short term - solution.
B Block has been refurbished since
the CPT’s last visit. The sanitary facilities have been renovated and a large
exercise area is at the disposal of the immigration detainees. However,
conditions were still difficult in certain rooms, where immigration detainees
were sleeping on mattresses on the floor.
Surprisingly, poor conditions of
detention were observed in the new C Block. Living conditions were cramped,
access to natural light was insufficient and ventilation very poor. Further,
access to running water was limited, as well as access to hot water, the latter
being unavailable for prolonged periods.
In addition, the internal regulation
in force at Safi Barracks provided for the compulsory closing of the doors in B
and C Blocks every afternoon at 5 p.m., thereby preventing access to the
outdoor yard. This exacerbated significantly the already far from ideal living
conditions in these blocks.”
5. UNHCR Guidelines on Applicable Criteria and
Standards on the Detention of Asylum Seekers and Alternatives to Detention
(2012) - guideline 9.1 paragraph 49;
“Because of their experience of seeking asylum, and the often
traumatic event precipitating flight, asylum seekers may present with
psychological illness, trauma, depression, anxiety, aggression and other
physical, psychological and emotional consequences. Such
factors need to be weighed in the assessment of the necessity to detain (see
Guideline 4). Victims of torture and other serious physical, psychological or
sexual violence also need special attention and should generally not be
detained.”
6. Recommendation Rec(2003)5 of
the Committee of Ministers to member states on measures
of detention of asylum seekers (Adopted by the
Committee of Ministers on 16 April 2003 at the 837th meeting of the
Ministers’ Deputies) - point 3 of the general provisions;
“The aim of detention is not to penalise
asylum seekers. Measures of detention of asylum seekers may be resorted to only
in the following situations:
- when their identity, including nationality,
has in case of doubt to be verified, in particular when asylum seekers have
destroyed their travel or identity documents or used fraudulent documents in
order to mislead the authorities of the host state;
- when elements on which the asylum claim is
based have to be determined which, in the absence of detention, could not be
obtained;
- when a decision needs to be taken on their
right to enter the territory of the state concerned, or
- when protection of national security and
public order so requires.”
7. The Council of Europe’s Twenty Guidelines on Forced
Return - CM2005(40) - Guideline 6;
“A person may only be deprived of his/her liberty with a view
to ensuring that a removal order will be executed, if this is in accordance
with a procedure prescribed by law and if, after a careful examination of the
necessity of deprivation of liberty in each individual case, the authorities of
the host state have concluded that compliance with the removal order cannot be
ensured as effectively by resorting to non-custodial measures such as
supervision systems, the requirement to report regularly to the authorities,
bail or other guarantee systems.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant complained that
the Maltese legal system had not provided him with a speedy and effective remedy,
contrary to Article 5 § 4 of the Convention. Despite slight changes in respect
of the Immigration Appeals Board (“IAB”) following the Louled Massoud
v. Malta judgment (application no. 24340/08, 27 July 2010), it had taken
more than a year to determine his application. Any other remedies had already
been found to be inadequate by the Court in the Louled
Massoud judgment. The applicant relied on Article 5 § 4 of the Convention,
which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The
parties’ submissions
(a) The applicant
The applicant submitted that, as the Court had
held in Louled Massoud, there was no effective domestic remedy for the
purposes of Article 5 § 4 which he could undertake in order to challenge the
lawfulness of his detention. Indeed, although the applicant had attempted a
remedy, it had taken more than a year for the IAB to determine his claim.
As to the constitutional redress proceedings,
and particularly the request for hearing with urgency, the applicant noted that
the two cases cited by the Government had been in the context of the
enforcement of a return order concerning a child following wrongful removal
under the relevant Maltese law incorporating the Hague Convention on the
International Aspects of Child Abduction, and thus represented exceptional
situations. Moreover, the Hague Convention explicitly mentioned a six week
time-limit within which the courts must reach a decision. The applicant considered
that it was uncertain whether such a request for hearing with urgency would be
effective in other circumstances. He made reference to the application in the
case of Tafarra Besabe vs Commissioner of Police et al (27/2007), which had
been lodged in 2007 with a request to be treated with urgency and in April 2013
(the date of writing) was still pending. According to the applicant, despite
the rules regarding court practice and procedure mentioned by the Government,
it transpired from the Maltese judgments database that constitutional applications
which ended with a judgment on the merits (as opposed to those struck out or
withdrawn) generally required over a year to be concluded. The applicant
submitted that in 2011 approximately eighty applications had been lodged before
the courts exercising constitutional jurisdiction and only fourteen had been decided
at first instance in that same year; a further thirty-three were still pending
at first instance at the time of writing. One case had been decided on appeal
in that same year, nine had been decided on appeal in 2012, ten in 2013, and eight
were still pending on appeal. The statistics (submitted to the Court) were even
worse for applications lodged in 2012. These clearly showed that as a rule
constitutional redress proceedings were not determined within days. Indeed,
according to the 2013 EU Justice Scoreboard, the Maltese judicial system was
one of the systems with the longest delays among the Member States. The two
cases mentioned by the Government underlined the limited applicability of the
urgent procedure before the courts exercising constitutional jurisdiction,
which were the final level of judicial proceedings. Moreover, given that the
courts exercising constitutional jurisdiction reviewed points of law, they
rarely entered into a detailed examination of the facts, which would have been
done by the courts below; thus, it could not be said that the whole judicial process
was determined during the period of weeks when the case was being heard before
them under the urgent procedure.
Moreover, in the present case, before lodging a
complaint before the courts exercising constitutional jurisdiction, the
applicant had to exhaust ordinary remedies, an action he had undertaken by
instituting proceedings before the IAB. These, however, had lasted for over a
year, a delay which itself was not compatible with the Convention.
Lastly, the applicant submitted that, as a
migrant, he had access to the constitutional courts in theory but not in
practice. Although he had the right to request legal aid, no legal-aid lawyers
regularly visited immigration detention centres to render their services or make
known their availability. Nor was any explanation given to persons in the same
situation as the applicant’s regarding their legal rights and the applicable
procedures. The applicant’s only chance of instituting such proceedings was
dependent on a small number of pro bono NGO lawyers.
As to the Government’s submissions in respect of
a bail application, the applicant submitted that the Government had failed to
explain in what way this procedure was accessible to him, noting particularly
that bail was usually granted in the course of appeals against removal orders
and return decisions. In any event the granting of bail was subject to
conditions such as the deposit of an amount usually in the region of EUR 1,000
and a guarantor who would provide subsistence and accommodation, conditions
which were hardly ever met by immigrants reaching Malta by boat. Moreover, IAB
practice showed that such bail was granted exclusively to persons having
overstayed their visa to remain in Malta. Furthermore, a bail application was
not intended to assess the legality of detention or to provide a remedy in the
event that a violation was upheld.
(b) The Government
The Government submitted in particular that the
applicant could have sought judicial review in respect of the lawfulness of his
detention by instituting constitutional redress proceedings before the domestic
courts, which had wide-ranging powers and could redress any Convention
violation. As to the length of such proceedings the Government submitted that a
mechanism was in place for such proceedings to be treated expeditiously. They
firstly made reference to subsidiary legislation 12.09 namely, the Court
Practice and Procedure and Good Order Rules, which emphasised the need for
speedy resolution of such matters (see “Relevant domestic law” above). Secondly,
they noted that it was possible for an applicant to request that a case be
treated, heard and concluded with urgency. The Government submitted two
examples: Richard John Bridge vs Attorney General, where the
case had been decided by two levels of jurisdiction over approximately a month
and a half (from 6 July 2012 to 24 August 2012), and a second case, Michael
Caruana vs Attorney General, which had been brought on 2 August and decided
on 14 August 2012 (no appeal having been lodged), in the context of Hague
Convention proceedings. In their further observations at a later stage in the
case, the Government submitted a further two examples, namely Stacy Chircop
vs Attorney General (4/2013) concerning a breach of fair-trial rights
in ongoing criminal proceedings, which had been lodged on 22 January 2013 and
decided at first instance on 8 February 2013 (no appeal lodged), and Jonathan
Attard vs the Commisioner of Police and the Attorney General in representation
of the Government (13/2013), concerning complaints under Articles 5 and 6
of the Convention, which had been lodged on 14 February 2013, had
been decided at first instance on 1 April 2013 and was (in May 2013)
pending on appeal before the Constitutional Court.
The Government further noted that the
statistical data submitted by the applicant did not reflect the subject matter
and the complexity of the cases, nor did they refer to cases where hearing with
urgency had been requested and granted. Similarly, in relation to the reference
to the Tefarra Besabe case, the applicant had not proved that a request
for hearing with urgency had been lodged in that case. The Government
considered that delays were exceptional and not the rule, and that the EU Justice
Scoreboard should be ignored by the Court as there were no guarantees of
its accuracy; moreover, it had not referred to constitutional cases. It was
also wrong to consider that constitutional proceedings did not assess the facts
as this was often the case, given that the complaints differed from those
debated before the ordinary courts.
The Government strongly objected to the fact
that the Court was allowing applicants in cases involving irregular immigrants
to circumvent domestic remedies. They considered that this could only be done
when there were no effective remedies, which was in their view clearly not the
case, given the examples above. It further noted that in Louled Massoud
the Court had erred in finding that constitutional redress proceedings were
ineffective. They considered that the Court had reached that conclusion on the
basis of incomplete information about the workings of that system with regard
to requests for hearing with urgency. They requested the Court to act in
accordance with the principle of subsidiarity and to let the domestic courts
asses the evidence, allowing the Government to cross-examine witnesses.
The Government further noted that legal aid was
provided to prohibited immigrants at the appellate stage of their asylum
application, as well as for the purposes of criminal proceedings and constitutional
redress proceedings, together with appropriate facilities where they could meet
such lawyers. Moreover, there was unlimited access to legal assistance provided
by NGOs. The Government alleged that, had the applicant asked the detention
centre staff for the services of a lawyer, he would have been provided with the
services of a legal-aid lawyer. To substantiate their claim the Government
submitted one example where a legal-aid lawyer had instituted legal proceedings
on behalf of a person in detention (Mourad Mabrouk vs Ministry of Justice
and Home Affairs (39/2008)).
Albeit not under their submissions related to
Article 5 § 4, in their objection of non-exhaustion of domestic remedies in
respect of the applicant’s complaint under Article 5 § 1, the Government
submitted that the applicant could have lodged an application for bail under Article
25A (6) of the Act. While such a remedy was usually used in the context of
challenges to removal orders, Article 25A (9) did not exclude the possibility that
such an application could be made in other circumstances. The Government
considered that Article 25A (10) addressed the applicant’s complaint and
although sub-article (11) provided for exceptions, release could not be
excluded completely - in particular, the prospects of success were greater if
the applicant’s identity had been established. Again, such a procedure could
have been accompanied by a request for hearing with urgency. The Government
considered that what the applicant sought was his release and that the remedy in
question could have provided that.
Given that the remedies were adequate and
accessible and would have had high prospects of success had the complaints been
justified, the Government considered that there had been no violation of the
provision in question.
(c) The third-party intervener
The International Commission of Jurists (“ICJ”),
in their report (see paragraph 81 et seq. below), expressed
concern at allegations heard from detainees that public lawyers did not always
provide effective representation to detained migrants. It was suggested that
lawyers sometimes spoke only very briefly to detainees and did not, or did not
have time to, advise them in detail or gather sufficient information on their
cases.
Furthermore, in the case of Louled Massoud this
Court had found that the IAB system did not constitute an effective remedy guaranteeing
the detainee’s right under Article 5 § 4 to challenge his or her detention. The
ICJ report considered that there was a need for substantial reform of the
system of immigration appeals, by, among other things, entrusting to a court of
law the task of reviewing in full the decisions taken by the executive
immigration authorities or, at least, reviewing in full the IAB’s decision,
with automatic suspensive effect on the execution of the expulsion.
1. The Court’s assessment
(a) General principles
. Under
Article 5 § 4,
an arrested or detained person is entitled to bring proceedings for a review by
a court bearing upon the procedural and substantive conditions which are
essential for the “lawfulness” of his or her detention (see Amie and
Others v. Bulgaria, no. 58149/08, § 80,
12 February 2013). The notion of “lawfulness”
under Article 5 § 4 of the Convention has the same meaning as in Article 5 § 1,
so that the arrested or detained person is entitled to a review of the
“lawfulness” of his detention in the light not only of the requirements of domestic
law, but also of the Convention, the general principles embodied therein and
the aim of the restrictions permitted by Article 5 § 1 (see E. v. Norway, 29
August 1990, § 50, Series A no. 181, Louled Massoud v. Malta,
no. 24340/08, § 39, 27 July 2010; and Rahmani and Dineva v. Bulgaria, no. 20116/08, § 75, 10 May 2012). Article 5 § 4 does not guarantee a right to judicial
review of such breadth as to empower the court, on all aspects of the case
including questions of pure expediency, to substitute its own discretion for
that of the decision-making authority. The review should, however, be wide
enough to bear on those conditions which are essential for the lawful detention
of a person according to Article 5 § 1 (see S.D. v. Greece, no.
53541/07, § 72, 11 June 2009; and Popov v. France, nos. 39472/07
and 39474/07, § 94, 19 January 2012).
. According
to the Court’s case-law, Article 5 § 4 refers to domestic remedies that are sufficiently certain,
otherwise the requirements of accessibility and effectiveness are not
fulfilled. The remedies must be made available during a person’s detention with
a view to that person obtaining a speedy judicial review of the lawfulness of
his or her detention capable of leading, where appropriate, to his or her
release (see Kadem v. Malta, no. 55263/00, § 41, 9 January
2003 and Raza v. Bulgaria, no. 31465/08, § 76, 11 February 2010). Indeed, Article 5 § 4, in guaranteeing arrested or detained
persons a right to bring proceedings to challenge the lawfulness of their
detention, also proclaims their right, following the institution of such
proceedings, to a speedy judicial decision concerning the lawfulness of that
detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).
(b) Application of these
principles to the present case
. The
Court notes that the courts exercising constitutional jurisdiction in the
Maltese legal system would have been competent to examine the lawfulness of the
applicant’s detention in the light of the Convention. However, the Court has also
held on numerous occasions that constitutional proceedings in Malta are rather
cumbersome for Article 5 § 4 purposes, and that lodging a constitutional
application does not ensure a speedy review of the lawfulness of an applicant’s
detention (see Sabeur
Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000; Kadem, cited above § 53; Stephens v. Malta (no. 2),
no. 33740/06, § 90, 21 April 2009; and Louled Massoud,
cited above, § 45). Where an individual’s personal liberty is at stake,
the Court has very strict standards concerning the State’s compliance with the
requirement of a speedy review of the lawfulness of detention (see, for
example, Kadem,
cited above,§§ 44-45; Rehbock v. Slovenia (no.
29462/95, § 82-86, ECHR 2000-XII, where the Court considered periods of
seventeen and twenty-six days excessive for deciding on the lawfulness of the
applicant’s detention); and Mamedova
v. Russia (no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter
alia, twenty-six days, was found to be in breach of the “speediness”
requirement)).
. The
Court notes that the first two cases submitted by the Government refer to the
specific context of Hague Convention proceedings, where, as also noted by the
applicant, the courts are bound by a strict time-limit established by
law. The other two cases mentioned in their supplementary observations are more
recent. One of them can be said to have been dealt with speedily, although it
is unclear for what reason this was so, but in any case the Court notes that in
that case no appeal had been lodged. On the other hand the second case
(concerning Article 5 § 3) was still pending on
appeal three months after it was lodged. Consequently, the only example submitted by the Government which could be of some relevance,
bearing in mind the subject matter, itself fails to fulfil the speediness
criterion required by Article 5 § 4.
Moreover, this has to be seen against the
background of the statistics supplied by the applicant. While it is true that those
statistics failed to mention whether a request for hearing with urgency had
been granted in any of the cases concerned, the Government failed to shed light
on that matter. Likewise, the Government did not submit any details as to how
often requests for hearing with urgency were granted, nor did they argue that
requests for hearing with urgency in proceedings regarding the lawfulness of
detention were, as a rule, acceded to by the courts exercising constitutional jurisdiction.
It cannot be ignored that the example submitted by the applicant concerning the
lawfulness of immigrants’ detention and the conditions of such detention (as apparent
from public information) was still pending six years after it was lodged. Against
this background, little comfort can be found in the subsidiary legislation
cited by the Government, which states that constitutional cases “shall be
expeditious”.
It is clear from the above that the Government have not submitted any information or case-law
capable of casting doubt on the Court’s prior conclusions as to the
effectiveness of this remedy. In these circumstances, the Court remains of the
view that, in the Maltese system, pursuing a constitutional application would
not have provided the applicant with a speedy review of the lawfulness of his
detention.
. As
to the Government’s submission that the applicant could have obtained release
by lodging an application for release (bail) under Article 25A of the Act,
the Court sets out the following considerations.
The Government made reference to both sub-article
(6) and sub-article (9), seemingly considering them as one remedy to which
sub-articles (10) and (11) applied. On reading the law the Court observes
that it is unclear whether the provisions are independent: the first, sub-article
(6), refers to provisional release and the second, sub-article (9), refers
simply to “release from custody”. While it is clear that sub-articles (10)-(13)
refer to release under sub-article (9), it is unclear whether they have any
connection with sub-article (6), the purpose of which remains vague in
the absence of any appropriate explanations by the Government or the domestic
case-law.
In any event, the Court observes that
both provisions deal solely with provisional release from detention. Indeed, sub-article
(6) is explicit to that effect, while under sub-article (9) this conclusion
transpires from the fact that, as clearly stated in sub-article (12), a
decision granting release can be revoked.
The Government considered that Article
25A (10) addressed the applicant’s complaint and that, although sub-article (11)
provided for exceptions, release could not be excluded completely. The Court observes
that release under the said provisions may be granted only if it is shown that
the detention was unreasonable on account of its duration or if there is no
prospect of deportation. It follows that such a remedy is not applicable to a
person in the initial stages of detention, pending a decision on an asylum
application, and in consequence cannot be considered as a remedy for persons in
that situation.
. In
so far as this remedy may have been available to the applicant at a later
stage, namely after his application for asylum had been determined, the Court
notes that, even assuming that it could have resulted in his temporary release (had
the applicant not been excluded for the reasons mentioned below), it would not
have provided for a formal assessment of the lawfulness of his detention as
required under Article 5 § 4. The Government did
not deny this, limiting themselves to considering that there was no distinction
between such temporary release and a finding that the person’s detention was
not lawful. The Court cannot agree. It suffices to mention two basic notions: (a)
if that were the case, in a criminal context there would be no purpose in having
two separate provisions in the Convention, namely Article 5 § 3 and Article 5 § 4; and (b) while
a finding that a period of detention was unlawful allows an applicant to raise
a claim under Article 5 § 5, a decision granting bail does not,
given that it is granted or refused irrespective of the legality of the
detention.
However - even if one were to consider that a
decision on provisional release which was dependent on whether the duration of the
detention was excessive or on whether there was any prospect of deportation
could in substance be considered as an informal assessment of lawfulness in
view of the link with the requirements of the second limb of Article 5 § 1 (f)
- the Court has already held such remedy to be
ineffective. Indeed, in Louled Massoud (cited above, § 44),
the Court held that proceedings under Article 25 are limited
in scope and offer no prospects of success for someone in the applicant’s
situation (namely where the identity of the detainee, including his
nationality, has yet to be verified). It is inconsistent for the
Government to argue that despite the exceptions in sub-article (11) the
applicant’s release could not be excluded, given that the Government’s
arguments under Article 5 § 1 revolve around the lack of cooperation by the
applicant, his voluntarily misleading the authorities as to his identity and
the threat he posed to national security and public order, all exceptions under
the said sub-article. Moreover, in Louled Massoud the Court also held
that such proceedings could not be considered to
determine requests speedily as required by Article 5 § 4 of the Convention. The
Government submitted no new examples capable of altering that conclusion, nor
did they substantiate their argument that such proceedings could be heard with
urgency. Indeed, the proceedings undertaken by the applicant to contest the
lawfulness of his detention (albeit under Regulation 11(10) of LN 81 and not
Article 25A of the Act) were also duly lodged before the same Board, and it
took the IAB more than a year to determine the claim, only to find that the
provision no longer applied at that stage and that it was not competent to
assess any violation of Article 5. In the light of all this, the Court cannot
but reiterate that, as they stand, proceedings before the IAB cannot be
considered to determine requests speedily as required by Article 5 §
4 of the Convention.
. The
foregoing considerations are sufficient for the Court to conclude that it has
not been shown that the applicant had at his disposal an effective and speedy
remedy under domestic law by which to challenge the lawfulness of his
detention.
Article 5 § 4 of the
Convention has therefore been violated.
. The
Court finds it appropriate to point out that, as the applicant and the third-party
intervener have submitted, had these remedies been effective in terms of their scope
and speed, issues in relation to accessibility might also arise, particularly
in respect of constitutional court proceedings. The Court notes the apparent
lack of a proper system enabling immigration detainees to have access to
effective legal aid. Indeed, the fact that the Government were able to supply only
one example of a detainee under the Immigration Act making use of legal aid -
despite the thousands of immigrants who have reached Maltese shores and have subsequently
been detained in the past decade and who, as submitted by the Government, have
no means of subsistence - appears merely to highlight this deficiency. The
Court notes that, although the authorities are not obliged to provide free
legal aid in the context of detention proceedings (see Lebedev v.
Russia, no. 4493/04, § 84, 25 October 2007), the
lack thereof, particularly where legal representation is required in the
domestic context for the purposes of Article 5 § 4, may raise an issue as to
the accessibility of such a remedy (see Abdolkhani and Karimnia v.
Turkey, no. 30471/08, § 141, 22 September 2009, and Amuur
v. France, 25 June 1996, § 53 in fine, Reports of Judgments and
Decisions 1996-III).
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his detention from
8 April 2011 [sic] to 16 August 2011 and from 30 January 2012 to the
date of his release did not fall within any of the situations provided for by
Article 5 and, more particularly, that it had not been carried out to prevent
his unauthorised entry into Malta or with a view to his deportation, given that
he had been awaiting a decision on his asylum application and the consequent
authorisation under the terms of Regulation 12 of LN 243. Without prejudice to
the above, he contended that the Maltese authorities had not sought
alternatives to his detention despite its length, and that his conditions of
detention had been inadequate. Moreover, making reference to the case of Louled
Massoud (cited above), he noted
that to date there were no procedural safeguards against arbitrary detention.
He invoked Article 5 § 1 of the Convention, which in so far as relevant reads
as follows:
“1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person against whom
action is being taken with a view to deportation or extradition.”
The Government contested that argument.
A. Admissibility
The Government submitted that the applicant had
failed to exhaust domestic remedies, in so far as he had neither made a request
for bail before the IAB nor had he instituted constitutional redress
proceedings.
The applicant reiterated his submissions under
Article 5 § 4 above.
The Court has already held that the applicant
did not have at his disposal an effective and speedy remedy by which to
challenge the lawfulness of his detention (see paragraph 59 above). It follows
that the Government’s objection must be dismissed.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant complained that his detention from
8 April 2011 [sic] to 16 August 2011 and from 30 January 2012 to 21
March 2013 did not fall within any of the situations provided for by Article 5.
In view of his asylum application and
consequent authorisation to enter or remain in Malta in pursuance of Regulation
12 of LN 243, from the date of his presentation of the Preliminary
Questionnaire (14 April 2011) his detention could not have been carried out to
prevent his unauthorised entry into Malta or with a view to his deportation
(given that his application for asylum was still pending). The applicant
recalled Malta’s obligations under Article 31 of the Convention Relating to the
Status of Refugees, and particularly the prohibition of refoulement. The
applicant argued that the Court’s statement in Saadi v. the United Kingdom
([GC], no. 13229/03, ECHR 2008), to the effect that temporary admission to
enter a country after applying for asylum did not amount to a lawful entry, had
been confined to situations where a State had not authorised entry. In his view
it was not a universally applicable principle that no asylum seeker could be
considered to have been granted lawful entry, an assertion which would be
contrary to the sovereign right of States to regulate entry into their
territories. The applicant considered that he had received explicit
authorisation under Regulation 12 of LN 243. Moreover, the applicant made
reference to the European Union’s Return Directive (Preamble, recital 9) which,
albeit not legally binding, provided that a third-country national who had
applied for asylum in a Member State should not be regarded as staying
illegally on the territory of that Member State until a negative decision on
the application, or a decision ending his or her right of stay as an asylum
seeker, had entered into force.
In so far as the period of detention following
the negative decision on his asylum claim (2 April 2012-21 March 2013) could be
considered to have been for the purposes of deportation, the applicant noted
that the Government had admitted that the deportation had been stalled as a
result of the ongoing criminal proceedings against the applicant. Nevertheless,
on 7 January 2013, nine months after the applicant had ceased to be an
asylum seeker, the Government had initiated deportation proceedings despite the
fact that the criminal proceedings were then still ongoing. The applicant
pointed out that the Government had failed to explain in what way the process
in his case had satisfied the due diligence test. The applicant submitted that
he had at no point directly or indirectly hindered his deportation. He had
always stated that he was from Sierra Leone, and the Consulate’s denial of his
nationality claim (based on an extremely short interview during which no request
for official documentation had been made) could not be considered conclusive.
Without prejudice to the above considerations,
the applicant submitted that the decision to detain him and the decision to keep
him in detention had been taken automatically, without any consideration of his
individual circumstances. In this regard, the applicant noted how parallels
could be drawn between recent statements by the Court (he referred to Yoh-Ekale
Mwane v. Belgium, no. 10486/10, § 124, 20 December 2011) and the obligation
of all Member States of the European Union to only detain third-country
nationals where no other “sufficient but less coercive measures [could] be
applied effectively in a specific case” (Article 15, Return Directive). As in Yoh-Ekale
Mwane, in the present situation the applicant’s identity had been known to
the Maltese authorities - upon his arrival, since he had disclosed all details
requested of him, following his completion of the Preliminary Questionnaire and
following his interview with the Office of the Refugee Commissioner - and at no
stage had the Maltese authorities indicated the presence of a real risk of his absconding.
In fact, the applicant had applied for asylum in Malta, clearly expressing his
wish to be granted international protection in that country. Furthermore, the
applicant pointed to the Court’s statements in Louled Massoud (§ 68) highlighting
the possibility for the authorities to seek effective alternatives to detention
in order to ensure that the applicant remained in Malta.
The applicant also argued that his continued
detention violated Convention Article 5 § 1 (f) owing to its unlawfulness and
arbitrariness (he referred to Louled Massoud, cited above, § 71).
Despite the Court’s conclusions in that case, no changes to Maltese legislation
or administrative practice had been made to address the matter. The applicant
submitted that, significantly, the legal basis for his detention had been insufficiently
clear and precise. The length of his detention had been based on a Government
policy that had not had the force of law. In exacerbation of this lack of
clarity and legal basis, the Government policy stated that if a detained
migrant was imprisoned in Corradino Correctional Facility for any number of
days (167 in the applicant’s case), this duration was deemed not to form part
of the period of mandatory detention for that specific migrant, despite the
fact that the asylum application would still be processed during that time.
The applicant further submitted that the
requirement that his detention should not be arbitrary had also not been fulfilled
(the applicant referred to A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009). He
underlined that at no stage had an individual assessment been conducted in his
regard in order to ascertain whether he did in fact present a threat to national
security or otherwise, his detention being an automatic decision. The Maltese
authorities had repeatedly stated that detention was necessary to safeguard national
security, to ensure the smooth provision of services and to guarantee an
efficient asylum procedure. In the light of that, the applicant opined that
they could easily have applied reception arrangements that did not involve
deprivation of his liberty. In his view, the provision of medical assistance,
shelter, sustenance and other basic needs could certainly be carried out in an
environment that was more conducive to a person’s physical and psychological
well-being than Malta’s detention centres. Moreover, the nature and material
conditions of the detention centres certainly did not conform to the Maltese Government’s
stated intention of securing orderly and efficient procedures. The applicant
stressed that the place and conditions of his detention had been inappropriate
for the purpose pursued (whatever this may have been). He referred to several
expert reports that not only highlighted the military nature of Malta’s
detention centres but also commented on the low standard of the material
conditions in those centres (see the relevant extracts under “Relevant international
reports” above, and the report relied on by the third party intervener). He
noted that Safi B-Block was an apartment-style building entirely closed
off by chicken wire and constantly guarded by soldiers or security officers,
where no provision was made for the special situation of asylum seekers
highlighted by the Court (he cited, for example, M.S.S. v. Belgium and
Greece [GC], no. 30696/09, ECHR 2011, and Louled Massoud, cited
above) and by UNHCR (see paragraph 33 above). In fact, the applicant noted that
the building was not originally intended as asylum-seeker accommodation, but was
part of a larger military barracks; only in 2002 had the premises been
converted to their present use.
The applicant pointed out that he had been
detained for just over one month before the ICJ visit on which the latter had based
their report used for the purposes of the submissions in the present case.
During such time no changes to the structure, management or policy had been
undertaken; thus, those submissions were entirely relevant.
(b) The Government
The Government submitted that, as held in Saadi
v the United Kingdom (cited above), temporary admission to enter a
country after applying for asylum did not amount to lawful “entry” for the
purposes of Article 5 § 1 (f). Asylum seekers remained unauthorised entrants
and were liable to be detained under Article 5 § 1 (f) to prevent their unauthorised
entry. Moreover, such detention needed not be necessary in each case. They
submitted that the sole fact that the applicant had made an asylum claim was not
capable of regularising his position, nor could such an application render his
detention unlawful. The Saadi judgment had clearly stated that a State
could detain immigrants pending an asylum application; therefore, it was not
necessary to assess each case on its merits. Likewise, the Government did not consider
that they were obliged to grant lawful entry under the terms of LN 243.
The Government further submitted that the
applicant’s detention had been connected to the purpose of preventing an
unauthorised entry and had been carried out in good faith as the detention
centre had been set up especially for that purpose. Moreover, the place and
conditions of detention had been appropriate. The Safi detention centre had
been used as a detention centre since 2002, it was a two-storey building fully
refurbished in 2007, and again in 2009 and 2010. Although security grilles had
been put in front of and over the windows to prevent escape, it was not a
prison and while the facility was basic it provided sleeping, dining and
recreational facilities, toilets, showers, a television and telephones (a
telephone card was provided to the immigrants every two months), a veranda and
two large recreational yards (to which access was allowed from sunrise to
sunset). The State had attempted other entertainment measures such as
installing sports equipment, which had been vandalised and turned into weapons
after a few days. The detainees were allowed to move freely on the floor where
they were accommodated and were allowed daily visits by NGOs (open door policy).
Immigrants could also join two EU-funded projects. The centre was also equipped
with a medical clinic. In relation to the length of the applicant’s detention,
the Government submitted that his detention had been required for the purposes
of his repatriation, as he was a failed asylum seeker [sic].
In respect of the period following the
determination of the applicant’s asylum application, the Government submitted that
his detention had been in accordance with the second limb of Article 5 § 1 (f).
The Government made reference to Chahal v. the United Kingdom (15 November
1996, Reports 1996-V), noting that once action was being
taken with a view to deportation it was immaterial whether the person’s
detention could be reasonably considered necessary. The Government further
considered that the present case was different from that of Louled Massoud
(cited above). They noted that in the present case the applicant’s deportation
had been stalled only as a consequence of the pending criminal proceedings (in
relation to the riot) against the applicant as a result of which the
authorities could not deport him, given that his presence was essential to
safeguard his fair trial rights. However, “attempts in order to prepare” for
the applicant’s deportation had been made once the criminal proceedings had
been finally determined. The Government claimed that it was only after the
reply of the Consulate of Sierra Leone that it had become clear that the
applicant could not be repatriated, and in consequence he had been released.
The Government submitted that in the present
case the applicant had not been subjected to indefinite detention. Indeed, the
policy in place established that rejected asylum seekers could only be kept in
detention up to a maximum of eighteen months. They noted that none of the irregular
immigrants reaching Malta carried documents, making it impossible for the
authorities to ascertain the identity of the persons concerned upon entry. This
resulted in a lengthy process which depended on the immigrants’ cooperation. In
the present case it was the applicant who had intentionally given wrong
information (about his country of origin), thereby hindering the process of
deportation. The Government submitted that the detention policy had been framed
with reference to the situation regarding migration in Malta. It was based on
domestic law and was not discriminatory. Detention applied to persons
irregularly entering Malta or whose presence in Malta was otherwise irregular.
However, vulnerable persons were not subject to detention.
In relation to the third-party submissions, the
Government submitted a press release which they had issued as a reaction to the
International Commission of Jurists (“ICJ”) report, in which they criticised
the report as highly unrealistic. They considered that the ICJ had portrayed a
very negative picture of a small country which had been doing its best to cope
with a totally disproportionate influx of prohibited immigrants. The Court
therefore had to take this into consideration. The Government considered that
the limitations referred to in Article 25A (11) of the Immigration Act were in
line with the Council of Europe Committee of Ministers’ Recommendation to member
states on measures of detention of asylum seekers (Recommendation Rec(2003)5)
(see paragraph 33 above). Detention was consequent to breaches of domestic law
and as such protected immigrants by giving them shelter, medical assistance,
food and clothing, without which they would be homeless and without means of
subsistence. In that light there was no point in deciding cases on a case-by-case
basis. They further considered that the Return Directive did not apply to the
applicant given that he had crossed irregularly by sea and had not subsequently
obtained authorisation or a right to stay. Moreover, the twelve or eighteen months’
detention periods were maximum periods justified by the need to prevent individuals
from absconding and avoiding deportation. Such absconding was common, as
evidenced by the various immigrants returned to Malta under the Dublin II Regulation.
Indeed, the authorities made constant efforts to repatriate immigrants in the
shortest possible time even though they faced all sorts of tricks and deceit by
immigrants. These were, however, lengthy operations dependent on third-party
cooperation.
Lastly, the Government noted that the ICJ
report referred to the period between 26 and 30 September 2011, during which
the applicant had not been in detention and during which time there had been an
extraordinary influx of detainees due to the Libyan crisis. Nevertheless, they
submitted that the detainees’ needs had still been met.
(c) The third-party intervener
The International Commission of Jurists (“ICJ”)
submitted a report entitled “Not here to stay”, Report of the international
Commission of Jurists on its visit to Malta on 26-30 September 2011, May
2012, which assessed migration and asylum practice in Malta (at the time of the
Libyan crisis). They highlighted a number of conclusions relevant to the
present case.
The intervener drew attention to the fact that
detention for the purposes of preventing unauthorised entry could be justified
only where the detention could be shown to be closely connected to that
purpose, for the whole period of the detention. In the light of international
refugee law, as well as the relevant European standards, the circumstances in
which it was permissible to detain an asylum seeker on the grounds of
unauthorised entry had to be narrowly drawn. They noted that the
recently revised UNHCR Guidelines (mentioned above at paragraph 33) and the
Conclusions adopted by the Executive Committee on the International Protection
of Refugees, established a presumption against detention. Those
provisions stipulated that detention could only be resorted to where necessary
on specified grounds prescribed by law (guidelines 4.1 and 4.2). They stipulated
that the detention of asylum seekers for other purposes, such as to deter
future asylum seekers, or to dissuade asylum seekers from pursuing their
claims, or for punitive or disciplinary reasons, was contrary to the norms of
refugee law. The ICJ considered that inconsistency of national laws or
practices with these norms would be an indicator of arbitrariness under
Article 5 § 1 (f). Moreover, EU legislation clearly
considered asylum seekers as “lawfully staying” in a Member State during the
process of their asylum application. As a consequence, their detention on
grounds of unauthorised entry could not be provided for except for very short
periods and in exceptional circumstances. The ICJ submitted that
European Union law in the field of asylum should be interpreted as constituting
“national law” for the purposes of Article 5 of the European Convention, unless
domestic law provided for higher standards, since the Common European Asylum System
was directly applicable in EU Member States as a minimum standard.
As to the second limb of Article 5 § 1 (f) - detention
pending expulsion - this could only be justified so long as deportation or
extradition proceedings were in progress. The test had to be applied strictly, ensuring
that a real prospect of expulsion was being diligently pursued at all stages of
the person’s detention. In the case of asylum seekers, detention would not be
justified for any significant length of time during the course of asylum
proceedings where national and international law prohibited expulsion in the
course of those proceedings.
As to the other requirements set forth in the
Court’s case-law, the ICJ submitted that good faith in the imposition of
detention implied a measure of openness and due process so that the procedures
under national law which allowed for alternatives to detention or for release
from detention, such as a period of voluntary departure, were not circumvented
or manipulated so as to deprive them of meaning. They made reference to Čonka
v. Belgium (no. 51564/99, ECHR 2002-I) and R.U. v. Greece (no. 2237/08, 7 June 2011). In their view, where
the law or procedure was applied so as to deprive it of effect. In its report,
the ICJ expressed concern at the expulsion decision notification routinely
given to undocumented migrants on arrival in Malta based on the rejection of
the inexistent voluntary return request. The ICJ noted that this practice
constituted a breach of the EU Return Directive 2008/115/EC.
As to procedural protection against
arbitrariness, the ICJ referred to the above mentioned UNHCR Guidelines
which also stated that asylum seekers “are entitled to minimum procedural
guarantees” (Guideline 7).
Further, the ICJ referred to the Council of
Europe’s Twenty Guidelines on Forced Return which established a general
principle whereby alternatives to the detention of migrants should be
considered first, irrespective of vulnerability. Guideline 6 (see paragraph 33
above) had been held by the Court of Justice of the European Union to be an
authoritative instrument of interpretation of EU asylum law, alongside the European
Convention and the Court’s case-law. Similarly, the said UNHCR Guidelines clearly
spelt out the pre-eminence of alternative measures over detention (Guideline
4.3). In a series of cases, this Court had found the measure of detention not
to have been carried out in good faith, as, despite the situation of
vulnerability, the authorities had not considered less severe measures (the
third-party intervener made reference to Yoh-Ekale Mwanje, cited above).
Even the UN Human Rights Committee, in C v Australia (Communication No. 900/1999, 28 October 2002) had found
a violation of the right to liberty because the respondent State had not
demonstrated that there were no less invasive means of achieving the same ends.
However, in Malta, any prohibited immigrant subject to a removal order had to “be
detained until he [was] removed from Malta”. This meant that the detention of
undocumented migrants was the rule and not the exception; it was not applied on
a case-by-case basis or where necessary as a last resort. The EU Return
Directive excluded arrivals by sea from the further protection contained in it.
Whether this exclusion also referred to persons authorised under national law
(Article 12 of LN 243 of 2008) to stay in Malta pending the resolution of their
application was unclear.
By expressing the maximum length of detention
only in policy documents rather than in primary legislation, Malta was acting
contrary to the principle of legality under international law, including under
Article 5 § 1 ECHR, as held in Abdolkhani and Karimnia v
Turkey (cited above). Moreover, in the third-party intervener’s view,
the period of eighteen months of administrative detention was per se contrary
to the requirement under Article 5 § 1 (f), as no deportation procedure lasting
that long could be said to have been undertaken with due diligence.
Lastly, the ICJ expressed concern that the Safi
Barracks detention centres, including B-Block, were located on two military
bases - a situation at odds with international law and standards. The guidance
of the Committee for the Prevention of Torture (CPT) stipulated that, except for
short periods, detained migrants should be held in specifically designed
centres in conditions tailored to their legal status and catering for their
particular needs. The ICJ report concluded that the accumulation of poor
conditions of detention, brought the situation in the Safi Barracks detention
centre beyond the threshold of degrading treatment, in violation of Malta’s
international human rights obligations under Article 3 of the Convention.
2. The Court’s assessment
(a) General principles
. Article
5 enshrines a fundamental human right, namely the protection of the individual
against arbitrary interference by the State with his or her right to liberty.
The text of Article 5 makes it clear that the guarantees it contains apply to
“everyone” (see Nada v. Switzerland [GC], no. 10593/08, § 224, ECHR 2012). Sub-paragraphs
(a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds
on which persons may be deprived of their liberty and no deprivation of liberty
will be lawful unless it falls within one of those grounds (see Saadi v. the
United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions,
contained in sub-paragraph (f), permits the State to control the liberty
of aliens in an immigration context.
. In
Saadi (cited above, §§ 64-66) the
Grand Chamber interpreted for the first time the meaning of the first limb of
Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”.
It considered that until a State had “authorised”
entry to the country, any entry was “unauthorised” and the detention of a
person who wished to effect entry and who needed but did not yet have
authorisation to do so, could be, without any distortion of language, to
“prevent his effecting an unauthorised entry”. It
did not accept that, as soon as an asylum seeker had surrendered himself to the
immigration authorities, he was seeking to effect an “authorised” entry, with
the result that detention could not be justified under the first limb of
Article 5 § 1 (f) (§ 65). It considered that to
interpret the first limb of Article 5 § 1 (f) as permitting detention only of a
person who was shown to be trying to evade entry restrictions would be to place
too narrow a construction on the terms of the provision and on the power of the
State to exercise its undeniable right of control referred to above. Such an
interpretation would, moreover, be inconsistent with Conclusion No. 44 of the
Executive Committee of the United Nations High Commissioner for Refugees’
Programme, the UNHCR’s Guidelines and the Committee of Ministers’
Recommendation (see §§ 34-35 and § 37 of the Saadi judgment), all of
which envisaged the detention of asylum seekers in certain circumstances, for
example while identity checks were taking place or when elements on which the
asylum claim was based had to be determined. However,
detention had to be compatible with the overall purpose of Article 5,
which was to safeguard the right to liberty and ensure that no-one should be
dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66).
As to the second limb of Article 5 § 1 (f), any
deprivation of liberty will be justified only for as long as deportation or extradition
proceedings are in progress. If such proceedings are not prosecuted with due
diligence, the detention will cease to be permissible under Article 5 § 1 (f)
(see Chahal v. the United Kingdom, 15 November 1996, Reports 1996-V).
. Under
the sub-paragraphs of Article 5 § 1 any deprivation of liberty must, in
addition to falling within one of the exceptions set out in sub-paragraphs
(a)-(f), be “lawful”. Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law” has been followed,
the Convention refers essentially to national law and lays down the obligation
to conform to the substantive and procedural rules of national law. Compliance
with national law is not, however, sufficient: Article 5 § 1 requires in
addition that any deprivation of liberty should be in keeping with the purpose
of protecting the individual from arbitrariness. It is a fundamental principle
that no detention which is arbitrary can be compatible with Article 5 § 1 and
the notion of “arbitrariness” in Article 5 § 1 extends beyond
lack of conformity with national law, so that a deprivation of liberty may be
lawful in terms of domestic law but still arbitrary and thus contrary to the
Convention (see Saadi, cited above, § 67).
. To
avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be
carried out in good faith; it must be closely connected to the ground of
detention relied on by the Government; the place and conditions of detention
should be appropriate, bearing in mind that “the measure is applicable not to
those who have committed criminal offences but to aliens who, often fearing for
their lives, have fled from their own country”; and the length of the detention
should not exceed that reasonably required for the purpose pursued (ibid.,
§ 74; see also A. and Others v. the United Kingdom [GC], no.
3455/05, § 164, ECHR 2009, and Louled Massoud, cited above, § 62).
(b) Application of these
principles to the present case
. The
Court notes that the Government’s submissions are to some extent contradictory
and despite specific questions on the matter they do not refer to specific
time-lines. However, the Government appeared to consider that the applicant’s
first period of detention (before he had obtained a final decision on his
asylum claim) was carried out in pursuance of the first limb of Article 5 § 1
(f). Nevertheless, they considered that the duration of that detention was required
for the purposes of repatriation of the applicant, who was “a failed asylum
seeker”.
. Furthermore,
the Court notes that hardly any submissions have been made as to the effect of
Legal Notice 243, on which the applicant based most of his arguments. The
Government simply submitted their interpretation of that provision, namely that
it did not oblige them to provide the applicant with any authorisation to stay.
However, the Court notes that the IAB itself had interpreted the provision differently.
Indeed, in the determination of the applicant’s case, the IAB upheld the
argument that the provision authorised entry and that therefore in principle
the circumstances of the applicant’s case were such that he could not be
detained.
. The
Court notes that its case-law does not appear to offer specific
guidelines as to when detention in an immigration context ceases to be covered
by the first limb of Article 5 § 1. In Saadi the Grand
Chamber considered that the applicant’s detention for seven days while his
asylum application was being determined fell under that limb. Similarly, in the case of Kanagaratnam v.
Belgium (no. 15297/09, 13 December
2011), the Court considered that the applicant’s detention pending his asylum
claim fell under the first limb of Article 5 § 1 (f), namely to prevent his effecting an unauthorised entry into the country.
Nevertheless, in the context of Greece, the Court examined and found a violation of Article 5 § 1 under its
second limb on the basis that the applicant’s detention pending asylum
proceedings could not have been undertaken for the purposes of deportation,
given that national law did not allow for deportation pending a decision on
asylum (see Ahmade v. Greece, no. 50520/09, §§ 142-144, 25 September 2012, and
R.U. v. Greece, no. 2237/08, §§ 88-96,
7 June 2011).
. The Court considers that the
applicant’s argument to the effect that Saadi should not be interpreted
as meaning that all member States may lawfully detain immigrants pending their asylum
claim, irrespective of national law, is not devoid of merit. Indeed, where a
State which has gone beyond its obligations in creating further rights or a more
favourable position - a possibility open to it under Article 53 of the
Convention - enacts legislation (of its own motion or pursuant to European
Union law) explicitly authorising the entry or stay of immigrants pending an
asylum application (see for example, Kanagaratnam, cited above,
§ 35 in fine, in relation to Belgian law), an ensuing detention for
the purpose of preventing an unauthorised entry may raise an issue as to the
lawfulness of detention under Article 5 § 1 (f). Indeed, in such circumstances
it would be hard to consider the measure as being closely
connected to the purpose of the
detention and to regard the situation as being in accordance with domestic law.
In fact, it would be arbitrary and thus run
counter to the purpose of Article 5 § 1 (f) of the Convention to interpret
clear and precise domestic law provisions in a manner contrary to their meaning
(see Longa Yonkeu v. Latvia, no. 57229/09, § 125, 15 November 2011). The Court notes
that in Saadi the national law (albeit allowing temporary
admission) did not provide for the applicant to be granted formal authorisation
to stay or to enter the territory, and therefore no such issue arose. The Court
therefore considers that the question as to when the first limb of
Article 5 ceases to apply, because the individual has been granted formal
authorisation to enter or stay, is largely dependent on national law.
Turning to the facts of the present case, and
reiterating that it is primarily for the national authorities to interpret
domestic law, the Court observes that it is faced with conflicting
interpretations of LN 243, and particularly of Regulation 12(1) thereof, which
provides that an applicant shall be “allowed to enter or remain in Malta
pending a final decision of his application”. On the one hand, the Government
asserted that the provision did not grant any right to stay; on the other hand,
the IAB’s decision held that the applicant had been correct to rely on it in
order to challenge his detention, given that it provided that an individual had
the right to enter and to remain on the island pending a decision on his asylum
request. It is not for the Court to interpret the intention of the legislature
one way or another. However, it may well be that what was intended was for the
provision to reflect international standards to the effect that an asylum
seeker may not be expelled pending an asylum claim (see for example, S.D. v.
Greece, no. 53541/07, § 62, 11 June 2009), without necessarily requiring
that an individual be granted formal authorisation to stay or to enter the
territory. The fact that the provision, while establishing the conditions to be
met by the asylum seeker, does not provide for any formal authorisation procedure
or for the issuance of any relevant documentation (as per Article 9 of the Immigration
Act) lends support to this interpretation. In this situation the Court
considers that the first issue that arises concerns the quality of domestic
law. The Court reiterates that the words “in accordance with a procedure
prescribed by law” do not merely refer back to domestic law; they also relate
to the quality of the law, requiring it to be compatible with the rule of law,
a concept inherent in all Articles of the Convention. Quality in this sense
implies that where a national law authorises deprivation of liberty, it must be
sufficiently accessible and precise in order to avoid all risk of arbitrariness
(see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur
v. France, § 50, cited above).
In the present case, while it is clear that Article
5 in conjunction with Article 14 of the Act authorised the detention of
prohibited immigrants, it is undeniable that Legal Notice 243, which “applies notwithstanding
the provisions of any other law to the contrary” (see the text of the provision
in “Relevant domestic law” above), created some confusion as to the extent of the
legal basis -- in particular, whether detention under the Immigration
Act was lawful (in terms of domestic law) only up to the moment where an
individual applied for asylum or continued to be lawful pending the
determination of the asylum claim. However, in the present circumstances, while
considering that clarification of the legal framework is called for in the
domestic system, the Court is ready to accept that the detention had a
sufficiently clear legal basis, namely Article 5 in conjunction with
Article 14 of the Act, and that, given that it has not been established
that the applicant had actually been granted formal authorisation to stay - the
Court in fact notes that the applicant had not been issued with the relevant
written documentation under Article 9 of the Act - his detention between
8 April 2011 (the date of his arrival) and 2 April 2012 (the date of
rejection of his asylum claim) (excluding the period of detention in connection
with the criminal proceedings) fell under the first limb of Article 5 § 1 (f).
Nevertheless, the Court must examine whether the applicant’s detention was arbitrary. The Court notes a
series of odd practices on the part of the domestic authorities, such as the by-passing
of the voluntary departure procedure (see paragraph 8 above) and the across-the-board
decisions to detain, which the Government considered did not require individual
assessment (see paragraph 79 above). In respect of the latter, the Court notes
that Recommendation Rec(2003)5 of the Committee of Ministers to member states on
measures of detention of asylum seekers, which was extensively cited by the
Government, also considers that “[m]easures of detention of asylum seekers
should be applied only after a careful examination of their necessity in each
individual case”. In the light of these practices the Court has reservations as
to the Government’s good faith in applying an across-the-board detention policy
(save for specific vulnerable categories) with a maximum duration of eighteen months.
. Nevertheless,
even accepting that the applicant’s detention had been closely connected to the
purpose of preventing his unauthorised entry to the country, the Court is
concerned about the appropriateness of the place and the conditions of
detention endured. Various international reports have expressed concerns on the
matter (see paragraph 33 et seq. above). Both the CPT and the ICJ considered
that the conditions in question could amount to inhuman and degrading treatment
under Article 3 of the Convention; furthermore, those conditions must surely have
been exacerbated during the Libyan crisis, a time when the applicant was in
detention. In that light, the Court finds it difficult to consider such
conditions as appropriate for persons who have not committed criminal offences
but who, often fearing for their lives, have fled from their own country.
. Lastly,
the Court notes that in the present case it took the authorities one year to
determine the applicant’s asylum claim. This cannot be considered as a period
of detention reasonably required for the purpose pursued, namely to determine
an application to stay. However, the Court notes that, for more than
five months during this period (from 16 August 2011 to 29 January
2012), the applicant was remanded in custody in connection with criminal
charges. Therefore the Court must only examine for the purposes of this
complaint the period, amounting to more than six months in total, during which
he was detained for the purposes of the first limb of Article 5 § 1 (f). Nevertheless, the Court has already considered periods of
three months’ detention pending a determination of an asylum claim to be
unreasonably lengthy, when coupled with inappropriate conditions (see Kanagaratnam,
cited above, §§ 94-95). Hence, it cannot consider a period of six months to be
reasonable, particularly in the light of the conditions of detention described
by various independent entities (see, a contrario, Saadi, cited
above, where it took the authorities seven days, during which the applicant was
detained in suitable conditions, to determine the applicant’s asylum
application despite the difficult administrative problems with which the United
Kingdom was confronted during the period in question, with an escalating flow
of huge numbers of asylum seekers).
It follows that the applicant’s detention up to
the date of determination of his asylum application was not compatible with
Article 5 § 1 (f) of the Convention, which has therefore been
violated.
As to the second period
of the applicant’s detention, namely from 2 April 2012 to 21 March
2013, the Government submitted that his detention had been effected for the
purposes of the second limb of 5 § 1 (f), that is to say, where action is being taken with a view to deportation. The
Court reiterates that detention under Article 5 § 1 (f) will be justified only
for as long as deportation proceedings are in progress. If
such proceedings are not prosecuted with due diligence, the detention will
cease to be permissible under Article 5 § 1 (f) (see Chahal, cited
above, § 113). However, the Government admitted that the
applicant’s deportation had been stalled because of the criminal proceedings
pending against him and that in view of those proceedings the
authorities could not deport him (see paragraph 77 above). It is unclear when
those proceedings were terminated; however, it was only in January 2013 that
attempts to prepare the applicant for deportation were initiated. In
consequence, it cannot be said that the period of detention of ten months
between 2 April 2012 and January 2013 was for the purposes of deportation. As
to the subsequent two months, the Government have not indicated any steps taken
by the authorities, apart from an interview with the Consul of Sierra Leone, as
a result of which they considered that the applicant could not be repatriated.
The Court notes, however, that the applicant remained in detention until March
2013 despite the fact that the authorities had known since 11 February 2013 that
there was no prospect of deporting him.
This alone suffices for the Court to consider
that, in the present case, the applicant’s detention following the
determination of his asylum claim was not compatible with Article 5 § 1 (f). The Court also considers it worthwhile to reiterate that it
has already found in Louled Massoud (cited above), that the
Maltese legal system did not provide for a procedure capable of avoiding the
risk of arbitrary detention pending deportation. Those circumstances have not
changed, as evidenced by the finding of a violation under Article 5 § 4 in the
present case (see paragraph 60 above). Moreover, the Court has already considered
the applicant’s conditions of detention (in its examination of the first period
of detention) and found those conditions to be of concern.
The foregoing considerations are sufficient to
enable the Court to conclude that the national system failed as a whole to
protect the applicant from arbitrary detention, and that his prolonged
detention following the determination of his asylum claim cannot be considered
to be compatible with the second limb of Article 5 § 1 (f) of the Convention.
In conclusion, the Court finds that there has
been a violation of Article 5 § 1 of the Convention in respect of the applicant’s
immigration-related detention, pending his asylum application and
following its determination.
III. ALLEGED
VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
The applicant further complained of the fact
that on his arrival he had not been provided with any information regarding the
specific reason for his detention. He relied on Article 5 § 2 of the
Convention, which reads as follows:
“Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge
against him.”
A. The parties’ submissions
The Government submitted that the applicant
had failed to exhaust domestic remedies and that in any event the complaints
failed to comply with the six-month rule. If, as in the case of Louled
Massoud (cited above), the Court was to hold
that there existed no domestic remedy for the purposes of this complaint, the
six months were to be calculated from the date of the omission complained of. In
the applicant’s case, that had been the date of his arrest on 8 April 2011, which
was more than six months before the date of the lodging of his application on 4
July 2012.
The Government submitted that Article 5 § 2 did
not require that a person be given reasons for his or her arrest in any
particular way, nor did it guarantee a right of access to a lawyer. Referring
to Fox, Campbell and Hartley v. the United Kingdom (30 August 1990,
Series A no. 182), the Government submitted that the applicant had been served
with a removal order and a booklet containing information about his rights. The
booklet was made available in various languages. In practice, when irregular immigrants
were intercepted coming ashore, the immigration police would place them on a
bus, where they were informed of the removal order and of their rights. The
removal order contained information relative to the time-limit for
appealing (three working days) and the fact that the appeal had to be lodged
with the registry of the IAB, Fort St. Elmo, Valletta. Moreover, there were no
particular formalities required in order to lodge an appeal, and most
applicants lodged their appeals by writing in person to the IAB objecting to
their removal. In any event further information could have been provided by the
detention centre staff or a legal-aid lawyer had the applicant so requested, as
explained in the booklet provided. Furthermore, the Government argued that the
applicant had failed to substantiate his assertion that he did not understand
English; indeed, he had requested that the proceedings before the IAB be
conducted in English.
The applicant submitted that the applicable
rule was that upheld by the Court in Varnava and Others v. Turkey [GC] (
nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90,
16072/90 and 16073/90, § 157, ECHR 2009), namely that where “an applicant
avails himself of an apparently existing remedy and only subsequently becomes
aware of circumstances which render the remedy ineffective, it may be
appropriate for the purposes of Article 35 § 1 to take the start of the six-month
period from the date when the applicant first became or ought to have become
aware of those circumstances”. In the present case the applicant had attempted
to exhaust ordinary remedies by lodging an application before the IAB, in the
belief that the procedure following the Louled Massoud judgment could
remedy the deficiencies at issue, and it was only during those proceedings that
it turned out that no changes had been made. The application had been lodged
shortly after the termination of those proceedings and therefore could not be
considered as out of time.
The applicant submitted that on his entry to
Malta in an irregular manner the only documentation provided to him, subsequent
to his classification as a “prohibited immigrant” under the terms of Article 5
of the Immigration Act, was the Return Decision and Removal Order (RDRO)
together with a booklet bearing the title “Your Entitlements, Responsibilities
and Obligations while in Detention”, produced by the Ministry for Parliamentary
and Home Affairs. The Return Decision and Removal Order were of limited quality
in both content and form. The document consisted of a standard text provided
exclusively in English (see paragraph 27 above), and no interpretation or
further explanation was provided to ensure that it was made comprehensible. In
the Return Decision and Removal Order no reference was made to the applicant’s
detention, the possible reasons for it or the possibility of challenging the
legality of his detention. Similarly, the information booklet mentioned by the
Government contained absolutely no information on the reasons for detention,
either in a general manner or in a manner specifically relating to the
applicant. The applicant noted that Regulation 12 of the said document provided
information - albeit of an extremely basic nature - on the possibility of applying
to the IAB if an individual felt that his detention was no longer reasonable.
Furthermore, the document referred to the possibility of applying to the Board
merely on grounds of the possible unreasonableness of the person’s detention
and not on grounds of its unlawfulness. In addition, while stating that an
appeal was possible the documentation did not provide any explanation as to how
to lodge such an appeal or on what grounds, nor did it indicate the address of
the Board or any other means of contacting the IAB, legal representatives or
NGOs. Thus, the applicant submitted that he had at no point been informed
promptly, in a language that he understood, of the reasons for his arrest, in
violation of his rights under Convention Article 5 § 2. Even assuming that the
reasons of the detention were self-evident given the circumstances, the
applicant submitted that at some point in time the grounds for his detention had
changed from the first limb to the second limb of Article 5 without any
explanation being forthcoming. He further noted that according to the Court’s
case-law such information had to give the real reason for detention, in order
to enable the detention to be challenged under Article 5 § 4, and that different
grounds of detention required different levels of information as well as
different timeframes (the applicant cited, for example, Kaboulov v. Ukraine,
no. 41015/04, 19 November 2009, and
Saadi, cited above).
B. The Court’s assessment
The Court reiterates that Article 5 § 2
contains the elementary safeguard that any person arrested should know why he
is being deprived of his liberty. This provision is an integral part of the
scheme of protection afforded by Article 5: by virtue of paragraph 2 any person
arrested must be told, in simple, non-technical language that he can
understand, the essential legal and factual grounds for his arrest, so as to be
able, if he sees fit, to apply to a court to challenge its lawfulness in
accordance with Article 5 § 4. Whilst this information must be conveyed
“promptly” (in French: “dans le plus court délai”), it need not be
related in its entirety by the arresting officer at the very moment of the
arrest. Whether the content and promptness of the information conveyed were
sufficient is to be assessed in each case according to its special features
(see Čonka, cited above, § 50, with further references). It also
reiterates that paragraph 2 of Article 5, like paragraph 4, is applicable both
to persons deprived of their liberty by arrest and to those deprived of it by
detention (see, by implication, Shamayev and Others v. Georgia and Russia,
no. 36378/02, § 414). Thus, Article 5 § 2 applies to Article 5 § 1 (f) cases,
although less detailed reasons are required to be given than in Article 5 § 1
(c) cases (see Bordovskiy v. Russia, no. 49491/99, § 56, 8 February
2005).
The Court does not consider it necessary to
examine any of the Government’s objections in this respect as in its view the
complaint is in any event inadmissible for the following reasons.
The Court notes that the RDRO informed the
applicant that he was considered as a prohibited immigrant according to Article
5 of the Immigration Act because he had entered Malta illegally and had no
means of subsistence. He was further informed that his stay had been terminated
and that an entry ban, a return decision and a removal order were being issued because
the request for voluntary departure (which in practice he had never lodged) had
been refused. The Court observes that, contrary to the applicant’s assertion,
the RDRO also informed him that he could appeal against this decision/order/entry
ban to the IAB within three working days at the Board’s Registry, Fort St Elmo,
Valletta. However, the applicant stressed that nowhere in the RDRO was any
reference made to the fact that as a consequence of such a situation he had to
be detained, or to the legal basis for such detention, namely Article 14 of the
Act. Nevertheless, the booklet, which listed the entitlements, responsibilities
and obligations of the persons concerned while in detention (and which was also
given to the applicant on his arrival) explained that a prohibited immigrant
could apply for refugee status and that pending the determination of that
application “you will be placed in detention for a period up to 18 months”
(which could be extended in certain circumstances). The booklet also informed
the applicant, amongst other things, that any person detained under the Immigration
Act could apply to the IAB if he felt that his detention was no longer
reasonable. However, the Court observes that this information - which, moreover,
explained solely that the applicant would be detained pending any asylum claim
he might wish to lodge - again failed to give the legal basis for his detention,
or even a part thereof (referring to the periods before, during or after the
asylum procedure).
The Court thus observes that, while the
information supplied by means of the RDRO and the booklet enabled the applicant
to know why he was being detained throughout the different stages of his detention,
what it failed to supply was the actual legal provision forming the basis for
his detention. While the Court finds this regrettable, it considers that the
information given to the applicant would have allowed him to contest the
legality of his detention on the basis of the Immigration Act. While it is true
that the information provided did not give details as to the method of
instituting proceedings challenging the lawfulness of the detention (as opposed
to proceedings challenging its unreasonableness or appeals against the orders
issued), Article 5 § 2 does not require the State to give such elaborate details,
especially where it is not alleged that the applicant requested more
information on the procedure (as the applicant in the present case was allowed
to do according to the information provided in the booklet) and that this request
was refused. The information furnished therefore satisfied
the requirements of Article 5 § 2 of the Convention (see, mutatis mutandis,
Čonka, cited above, § 52).
As to the language in which the information was
given, the applicant did not specifically claim that he did not understand
English or was unable to understand the information given on the bus or to
communicate with the officers (see, mutatis mutandis, Galliani v.
Romania, no. 69273/01, § 54, 10 June 2008), nor did he claim that he was unable to understand any
other language in which the booklet was provided. Likewise, he did not submit
that he had requested an interpreter and had his request refused.
Accordingly, the Court considers that this
complaint is manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
The relevant parts of Article 46 of the
Convention read as follows:
“1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its execution.
...”
The Court reiterates that by Article 46 of the
Convention the Contracting Parties have undertaken to abide by the final
judgments of the Court in any case to which they are parties, execution being
supervised by the Committee of Ministers. It follows, inter alia, that a
judgment in which the Court finds a breach of the Convention or the Protocols
thereto imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but also to
choose, subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in their domestic
legal order to put an end to the violation found by the Court and to redress as
far as possible the effects (see Menteş and Others v. Turkey
(Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari
and Giunta, [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII;
and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). In principle
it is not for the Court to determine what may be the appropriate measures of
redress for a respondent State to perform in accordance with its obligations
under Article 46 of the Convention
(see Scozzari and Giunta, cited above; Brumărescu v. Romania
(just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan
v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). With a
view, however, to helping the respondent State fulfil its obligations under
Article 46, the Court may seek to indicate the type of individual and/or
general measures that might be taken in order to put an end to the situation it
has found to exist (see Broniowski v. Poland [GC], no. 31443/96, §
194, ECHR 2004-V; Scoppola v. Italy (no. 2) [GC],
no. 10249/03, § 148, ECHR 2009; and Stanev v. Bulgaria [GC],
no. 36760/06, § 255, 17 January 2012).
In the Court’s view, the problems detected in
the applicant’s particular case may subsequently give rise to numerous other
well-founded applications which are a threat to the future effectiveness of the
system put in place by the Convention (see Driza v. Albania,
no. 33771/02, § 122, ECHR 2007-... (extracts)).The Court’s
concern is to facilitate the rapid and effective suppression of a defective national
system hindering human-rights protection. In that connection, and having regard
to the situation which it has identified above (see paragraphs 59-60 above and
also Louled Massoud, cited above, § 47), the Court considers that
general measures at national level are undoubtedly called for in execution of
the present judgment.
In the instant case the Court considers that it
is necessary, in view of its finding of a violation of Article 5 § 4, to indicate
the general
measures required to prevent other similar violations in the future. It
observes that it has found a violation of Article 5 § 4 on account of the fact
that none of the remedies available in Malta could be considered speedy for the
purposes of that provision. Thus, the Court considers that the respondent State
must above all, through appropriate legal and/or other measures, secure in its
domestic legal order a mechanism which allows individuals taking proceedings to
determine the lawfulness of their detention to obtain a determination of their
claim within Convention-compatible time-limits, but which nevertheless maintains
the relevant procedural safeguards. The Court reiterates that although it is
not always necessary that an Article 5 § 4 procedure be attended by the same
guarantees as those required under Article 6 for criminal or civil litigation,
it must have a judicial character and provide guarantees appropriate to the
type of deprivation of liberty in question (see A. and Others, cited
above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).
The Court notes that it has also found a
violation of Article 5 § 1 on account in particular of the duration of the
applicant’s detention coupled with the inadequate conditions at the barracks
where he was held. Having regard to that finding, the Court recommends that the
respondent State envisage taking the necessary general measures to ensure an
improvement in those conditions and to limit detention periods so that they
remain connected to the ground of detention applicable in an immigration
context.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 25,000 euros (EUR) in
respect of non-pecuniary damage on account of the violations of Article 5
and the psychological harm he had suffered during his eighteen-month detention
period.
The Government considered that a finding of a
violation would be sufficient just satisfaction. They relied on the Court’s
findings under Article 6 in previous cases, according to which it was
impossible to speculate as to the outcome of the trial had the violation in
question not occurred. In any event they submitted that any award granted by
the Court should not exceed EUR 3,000.
The Court notes that it has found multiple
violations of Article 5 of the Convention and considers it equitable to award
the applicant EUR 24,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,392.50 (EUR
2,875 for 49.5 hours at EUR 50 per hour for legal work, plus tax, and EUR 400 in
administrative costs) in respect of the costs and expenses incurred before the
domestic courts and the Court.
The Government submitted that no costs should
be paid in relation to the domestic proceedings (before the IAB and the Refugee
Appeals Board) and that in any event the sum awarded should not exceed EUR 2,000.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these were actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 3,000, covering costs under all heads, in respect of the costs
and expenses incurred in the domestic proceedings and before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Article 5 §§
1 and 4 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 4 of the Convention;
3. Holds that
there has been a violation of Article 5 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) EUR 24,000 (twenty-four thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any
tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
