Moxamed Ismaaciil and Abdirahman Warsame v Malta, Application nos. 52160/13 and 52165/13, 12 January 2013

Facts:

This is a joint case due to the factual and legal similarities of each respective case. The applicants, Ms Ismaacil and Ms Abdirahman, both enter Malta by boat on 16 August 2012 and are issued with a removal order. The applicants are detained by the immigration police at Lyster Barracks detention centre. Both submit an asylum application and are held at the detention centre during the processing of their applications. During this detention period, the applicants claim that the conditions of detention violated Article 3 of the Convention. The applicants also claim the detention conditions amounted to a violation of Article 5 (1), as their right to liberty and security had been infringed. They also allege an Article 5 (4) violation for lack of an effective remedy available to them, in order to challenge the lawfulness of their detention. 

Decision & reasoning:

First the Court considers whether the conditions of detention constituted a violation of Article 3 of the Convention. The complaint is deemed admissible as the Court rejects the Governments’ claim that there has not been sufficient exhaustion of domestic remedies, including an action in tort for damages and constitutional redress proceedings. On discussion of Abdi Ahmed and Others, the Court declare these as an inaccessible remedies due to the fact that the applicants lodged their complaint whilst still being held at the detention centre. The action in tory would, therefore, not impede the continued detention. Additionally, the constitutional proceedings would be an ineffective domestic remedy due to the extensive delays which cannot be successfully counteracted with interim measures. Thus the applicants’ allegation is declared admissible. 

The Court considers a number of factors, including the cumulative effects of the detention conditions, the size of living space, access to outdoor exercise and sanitary conditions when determining whether there has been a violation of Article 3. First the court declares that the living space adheres to the minimum standard required for multiple-occupancy accommodation and the overcrowding during specific months in the year does not constitute a violation as the applicants were able to move around freely and could not substantiate the supposed overcrowding. The Court also notes that access to an outdoor yard was given to the applicants’ to exercise in the open air as well as the provision of indoor recreational activities. Moreover, during the seasonal temperature fluctuations some provision of blankets ensured that the applicants did not suffer any health related concerns as a result of the cold. Given the presence of the medical staff on the premises and the lack of substantiation from the applicants’ as to their medical complaints, the Court declares no detriment to the physical or mental health of the applicants regarding medical treatment. Considering each of these factors and their cumulative effect on the applicants, the Court declares there had been no violation of Article 3.

Secondly, the Court considers the applicant’s allegation that there has been a breach of Article 5 (4) of the Convention. Firstly, regarding the remedy provided under Regulation 11 of the Subsidiary Legislation, the Government did not provide evidence as to why this was available to the applicant’s in spite of their irregular entry into Malta by sea. The Court declares that had this remedy been available, it would have been ineffective as in Suso Musa and Aden Ahmed. Secondly, the Court declares that the constitutional redress proceedings would not be effective as a practical remedy as they were neither speedy nor effective. Therefore the Court finds there has been a violation of Article 5(4).

Finally, the Court considers the allegation that the Government has breached Article 5 (1) of the Convention. The lawfulness of the detention and justification for the deprivation of liberty via detention is challenged by the applicant however the Government argues that it can be justified through Article 5 (1) (f), to prevent unauthorised entry into Malta.

The notion of lawfulness is established by the Court in considering the Immigration Act provisions which justify the detention. With reference to analogous case law the Court found that the detention had a sufficiently clear legal basis regarding the prevention of unauthorised entry. Although the Court established a need for improvement regarding the quality of the legislation referring to release from detention on vulnerability grounds, it is clear that the legislation does not exempt vulnerable people, such as the applicants, from detention. In relation to the close connection test of the detention to the grounds of unauthorised entry, the lack of documentation establishes a close connection between the detention and the reasoning behind it. However, the close connection dissipates as the length of detention increases because the Court deems that the identity of the applicants ought to have been determined after 9 months of detention, despite a lack of documentation. Finally, the Court declares that the detention duration was lengthy but was ultimately reasonable given the purpose being pursued by the Government. Therefore the Court determines that there was no violation of Article 5(1) and the Government had acted lawfully when detaining the applicants to prevent unauthorised entry into Malta.

Outcome:

The Court found there had been no violation of Article 3 of the Convention.

The Court found there had been no violation of Article 5 (1).

The Court found there had been a violation of Article 5 (4).

The Court rules that the applicant should be paid 4,000€ for non-pecuniary damages and 2,000€ for costs and expenses.

Observations/comments:

This summary was written by Tazkia Rahman, GDL student at BPP University. 

Other sources:

Jesuit Refugee Service, Bridging Borders, Malta Report on implementation of a project to provide shelter and psychological support to vulnerable asylum seekers

Jesuit Refugee Service, Care in Captivity Malta report on the provision of care for detained asylum seekers experiencing mental health problems

Jesuit Refugee Service, Becoming Vulnerable in Detention, National Report on Malta July 2010

Maltese Magistrate, The Valenzia Report

International Commission of Jurists, “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26-30 September 2011”

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT), Report to the Maltese government on the visit carried out from 26 to 30 September 2011

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT),  “Your Entitlements, Responsibilities, and Obligations while in Detention” Brochure

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT), 9th General Report on CPT’s activities covering 1 January to 31 December 1998

Malta, Agency for the Welfare of asylum Seekers, Adult Vulnerability Assessment Procedure