ECtHR - Abdi Mahamud v Malta, Application no. 56796/13, 3 May 2016

Facts:

The applicant Abdi Mahamud arrived in Malta by boat on 6 May 2012 and was immediately detained by the immigration police and presented with a removal order. The applicant lodged an asylum application, fearing nationality-based persecution. Her application was denied in December 2012. During this detention the applicant developed a number of physical and psychological conditions and applied for release on medical grounds. She was informed of her prospective release in April 2013 and was subsequently released in September 2013 on these medical grounds. The applicant alleges that the conditions of detention amounted to inhuman treatment. The applicant also alleges a violation of Article 5 due to a lack of effective remedy during detention and the prolonged length of the decision regarding her release, either through the asylum application or the ‘vulnerable persons application’. 

Decision & reasoning:

The claimant alleges that there has been a violation of Article 3 due to the conditions of detention which amounted to inhuman and degrading treatment or punishment. The Court first establishes the admissibility of this allegation in light of the government’s objection as to non-exhaustion of remedies. The remedies put forward are constitutional proceedings to challenge the detention as well as an action for damages in tort after release. The Court finds that neither of these remedies are effective in preventing the alleged violation due to the prolonged delays of the court proceedings which could not be counterbalanced with interim measures and the preventative nature of the action in tort, which would not impede the alleged violation. Thus on dismissing the Government’s objection the court considers the alleged Article 3 violation through discussion of the detention conditions coupled with the claimants vulnerability as a result of poor physical and psychological health.

Regarding the parameters of the living space during detention, the court finds that during the detention period in August, the ultimate living space met the minimum standards for multiple-occupancy accommodation according to Yarashonen v Turkey. They also show that the scarcity of space can be counteracted by a limited amount of freedom to spend time away from said living space according to Nurmagomedov v Russia.

Although, the Government highlights the difficultly in meeting the Article 3 threshold through discussion of case law such as Aden Ahmed and Dougoz v Greece, the Court determines that due to the cumulative effect of the conditions complained of (such as lack of access to outdoor exercise for 8-12 weeks, lack of female staff and insufficient methods for counteracting temperature changes in the centre), there has been a violation of Article 3 due to the diminishing of the applicant’s human dignity. The arousal of fear, anguish and inferiority from these conditions was deemed to be capable of humiliating and debasing the applicant whilst breaking her already vulnerable physical and moral resistance. These consequences of detention are therefore incompatible with Article 3 of the Convention.

Secondly, the Court considers the applicant’s allegation that Article 5 (4) of the Convention has been breached. The Government’s objection to such a remedy is swiftly dismissed by distinguishing from Stephens v Malta. Although the Court recognises that Article 5 (4) cannot be engaged by someone who has been lawfully released, the Court also emphasises that the applicant lodged the application whilst in detention so as to seek access to such remedy during her detention, thus the objection is not applicable because the issue is not about remedy on release.

Concerning the remedy provided by Regulation 11, which is part of the Maltese subsidiary legislation and does not apply to individuals apprehended or intercepted by irregular crossing by seas, the court upholds the decisions from Aden Ahmed and Suso Musa, that the applicant had neither a speedy nor effective remedy. This is due to the inability of the Government in providing good reason or example as to whether a Regulation 11 remedy was available given the circumstances and limitations. Thus, the Court upholds that the applicant challenging immigrant detention did not have an effective or speedy remedy under domestic law.

Although the court notes that the practical effectiveness of constitutional redress can be difficult to determine in smaller jurisdictions such as Malta, the court does not and cannot ignore domestic case law Maximilain Ciantar and Essa Maneh, which highlight the excessive duration of constitutional redress proceedings, which accordingly renders it ineffective. Thus the remedies which are presented to the applicant during her detention are deemed ineffective for the purposes of Article 5 (4).

Finally, the Court considers the alleged violation of  Article 5 (1) of the Convention, an allegation which is deemed admissible due to the previous declaration of a lack of speedy and effective remedy with which to  challenge the lawfulness of her detention.

The Court determines that the primary detention of the application fell under Article 5 (1) (f). Through reiteration of previously discussed case law of Aden Ahmed v Malta  and Suso Musa v Malta as well as the provisions of the Immigration Act (Articles 5 and 14 (2))  the Court declares that the detention had a clear legal basis. Concerning the applicant’s complaint regarding the “Adult Vulnerability Assessment Procedure” (AVAP) procedures, the Court declare that there has been much needed improvement in the implementation of the procedure, it does not exempt vulnerable individuals like the applicant from detention.

Moreover the court considers the arbitrary nature of the detention in connection with the ‘good faith’ approach allegedly adopted by the government in detaining the applicant. The Court expresses reservation as to this good faith approach firstly regarding the detention policy and secondly regarding the AVAS voluntary departure procedure. This is due to the lack of information about the procedural delays as well as the lack of procedural safeguards for the applicant when completing the vulnerability assessment. Moreover, there was a clear lack of due diligence by the government in determining the country of origin of the applicant which led to no prospects of deportation, rendering Article 5 (1) (f) inapplicable. Furthermore, throughout the final nine month period of detention, there were no return procedures initiated. Thus the Court determines that the government’s good faith was extremely doubtful; the very reason of the applicant’s release being the vulnerability assessment coupled with almost no due diligence. The court finds that there has been a violation of Article 5 (1) in respect of the first and second period of detention after the applicant’s arrest.

Outcome:

The Court found a violation of Article 3 of the Convention

The Court found a violation of Article 5 (4) of the Convention

The Court found a violation of Article 5 (1) of the Convention for both detention periods.

The Court rules that the applicant is to be paid 12,000€ in non-pecuniary damages and 2,500€ for costs and expenses, by the State of Malta.

Observations/comments:

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

Other sources:

Agency for the Welfare of Asylum Seekers - Adult Vulnerability Assessment Procedure 

JRS - Bridging Borders, Malta Report on implementation of a project to provide shelter and psychological support to vulnerable asylum seekers

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

Maltese Magistrate - The Valenzia Report

Committee for the Prevention of Torture and inhuman or Degrading Treatment or Punishment (CPT) - Report to the Maltese Government, Published 4 July 2013; 9th General report of the ‘CPT’; CPT standards, document no. CPT/Inf/E (2002) 1‑Rev. 2013, § 48

United Nations Standard Minimum Rules for the Treatment of Prisoners - Rule 53