ECtHR, J.B. and others v Malta, Application no. 1766/23, 22 October 2024

Facts:

The six applicants, allegedly 16 and 17 years old, arrived in Malta in November 2022 after a sea rescue operation and were detained at Hal Far Initial Reception Centre (HIRC) in the same space as adults, with limited access to drinking water and a phone, no access to leisure activities or an outdoor area and insufficient washroom facilities. They were not informed of the reasons for their detention.

In late November 2022, detention orders were issued and later confirmed by the Immigration Appeals Tribunal (IAB), which recognized all but one applicant as minors requiring legal guardians. They were transferred to a part of Safi Detention Centre for minors, where conditions remained similar to the HIRC.

Following the termination of the age assessment procedure which confirmed that all applicants except the first applicant were minors, the first applicant was moved to a part of Safi detention centre with adults and the others were released and accommodated in an open centre for minors.

Decision & reasoning:

1)     The applicants claimed that there was a violation of Article 3 of the Convention given the conditions under which they were detained. The Court decided that there was a violation in respect of the second to sixth applicant. The Court argues that, ‘bearing in mind the applicants age, the total length of their detention in both venues, the material conditions in the HIRC and its lack of appropriateness for accommodating children, as well as the vulnerability of the minor applicants and the effects of detention on a minor’s psychological condition, the conditions of detention amounted to inhuman and degrading treatment.’ However, regarding the first applicant, the Court cannot consider him as having been a ‘presumed minor’ in the eyes of the authority during the time of his detention in the HIRC, as there is no documentation that he informed the authorities that he was a minor. The living conditions there, although dire, do not reach the threshold for the purposes of Article 3 in respect of an adult. During his subsequent detention in Safi Block A, although he was considered a minor, the Court found that the cumulative effect of the conditions did not reach the threshold of Article 3.  

2)     The applicants claimed that there has been a violation of Article 13 in conjunction with Article 3 of the Convention. The Court reiterated that constitutional redress proceedings are not an effective remedy for the purposes of complaints related to ongoing conditions of detention under Article 3 of the Convention. The Court also stressed that Malta has already been convicted several times for violating Article 13 on the ground that such proceedings are ineffective due to their duration, and the situation has remained unchanged. Therefore, there has been a violation of Article 13 in conjunction with Article 3.

3)     The applicants claimed that there was a violation of Article 5, §1 of the Convention, because of their unlawful deprivation of liberty. The Court found that, for the first period of detention, there was a violation of this provision. Although the Court accepts that the applicants’ detention could have fallen under Article 5, §1 (f) namely to prevent unauthorized entry, since their detention occurred in a legal vacuum, with no clear legal basis or decision ordering it, it is incompatible with the requirement of lawfulness under Article 5, §1. For the second period of detention, the Court found that the detention was unlawful for the second to sixth applicants because the authorities failed to conduct an individual assessment, taking too long to determine the applicants’ age, and did not consider less restrictive alternatives to detention. In respect of the first applicant, the Court stressed that he was ultimately found to be an adult. Consequently, his detention, which lasted around seven and a half months, was within the legal maximum.

4)     The applicants claim that there has been a violation of Article 5, §4 of the Convention. The Court found that there was a violation of this provision because the applicants lacked an effective remedy to challenge their detention. It ruled that the IAB was not sufficiently independent or impartial. Furthermore, the applicants did not have a timely and effective judicial review for over five months, despite domestic law requiring a two-month review. Thus, the Court concludes that the IAB does not meet the required legal standards, leading to a violation of Article 5, §4.

Outcome:

1.      Violation of Article 3 of the Convention in respect of the second, third, fourth, fifth and sixth applicants, and no violation in respect of the first applicant.

2.      Violation of Article 13 in conjunction with Article 3 of the Convention.

3.      Violation of Article 5, §1 of the Convention, in respect of the second, third, fourth, fifth and sixth applicants, and in respect of the first applicant for the first period of detention from 18-30 November 2022 and not for the period of detention following 30 November 2022.

4.      Violation of Article 5, §4 of the Convention in respect of all applicants.

Other sources:

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 17 to 22 September 2020, published in March 2021

Report of 15 February 2022 by the Council of Europe Commissioner for Human Rights following her visit to Malta from 11 to 16 October 2021 (CommDH(2022)1)

Findlay v the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I.

Venice Commission, Opinion 993/2020, 8 October 2020 paragraphs 97-98. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)019-e.

The 2021 Rule of Law Report Country Chapter on the rule of law situation in Malta, pg.4-5. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021SC0720