ECtHR - Mahamed Jama v. Malta, Application no. 10290/13, 26 November 2015
| Country of applicant: | Somalia |
| Court name: | European Court of Human Rights |
| Date of decision: | 26-11-2015 |
| Citation: | Application no. 10290/13 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
Headnote:
Taking into account all the circumstances of the case, the Court found that the detention conditions of the applicant did not amount to a breach of Article 3 ECHR. However, Malta’s domestic law remained in violation of Article 5 § 4 ECHR as it did not provide an effective remedy to challenge the lawfulness of the detention. The applicant’s detention after being granted subsidiary protection for a further 5 days was a violation of Article 5 § 1 ECHR.
Facts:
The applicant entered Malta in an irregular manner by boat on 27 May 2012 and was detained in Lyster Barracks pending the assessment of her age. The applicant allegedly claimed to be sixteen years old. Two months after applying for asylum the applicant was interviewed as part of an age assessment procedure, which was followed by medical testing. The conclusions came in January 2013 and raised doubts so following the procedure the applicant was then interviewed in relation to her asylum claim and a decision was made on 2 February 2013 to grant her subsidiary protection status. The applicant was granted subsidiary protection in Malta and released on 7 February 2013.
Decision & reasoning:
I. Article 3 ECHR
The minimum level of severity required to pass the threshold of Article 3 ECHR depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and other elements such as access to outdoor exercise, natural light or air. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions. The Court concluded that the overcrowding was not severe enough, the unspecified duration of the limitation on access to the yard did not reach the relevant threshold, there was no concern about the hygiene facilities and most importantly the CPT report of 4 July 2013 showed improvements had been put in place. The Court held that the cumulative effect of the detention conditions did not reach the threshold of Article 3 ECHR and so there had been no violation of this article.
II. Article 5 § 4 ECHR
The Court noted it had previously examined in detail the remedies available in Malta for the purposes of Article 5 § 4 ECHR and held that the applicants seeking to challenge the lawfulness of their immigrant detention did not have at their disposal an effective and speedy remedy under domestic law. The Court did not find reasons to re-examine the situations already examined in previous cases and Article 5 § 4 ECHR had been violated.
III. Article 5 § 1 ECHR
The purpose of the applicant’s detention pending her age assessment and the processing of her asylum claim fell under the first limb of Article 5 § 1 f) namely to prevent an unauthorised entry. The Court could not ignore the fact that although the applicant claimed to be a minor, it was later found she was an adult. Consequently, the lengthy procedural time taken to determine the applicant’s age was not unreasonable for this purpose and was in compliance with Article 5 § 1 ECHR concerning the applicant’s detention pending her asylum claim.
However, the applicant remained in detention for five days following a decision granting her subsidiary protection and for this period the detention violated Article 5 § 1.
IV. Article 5 § 2 ECHR
The complaint by the applicant is inadmissible for non-compliance with the six-month time-limit set out in Article 35 § 1 ECHR.
Outcome:
Violation of Article 5 § 4 ECHR and Article 5 § 1 ECHR concerning the applicant’s detention in respect of the period following the decision on her asylum claim.
No violation of Article 3 ECHR and Article 5 § 1 ECHR concerning the applicant’s detention pending her asylum claim.
Observations/comments:
Partly dissenting opinion of Judge Casadevall:
Did not agree with the majority decision as regards the findings of no violation of Article 3 ECHR. He considered the cumulative effect of the detention conditions as stated in the multiple reports discussed in the judgment to amount to humiliating and degrading treatment violating Article 3 ECHR.
Further note the United Nations Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015), 2016, United Nations General Assembly: The WGAD in 2016 observed that effective and speedy remedies for detainees to challenge the necessity and legality of detention were still lacking.
This case summary was written by Clara Gautrais, GDL student at BPP University, UK.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Louled Massoud v. Malta, Application No. 24340/08 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Tabesh v. Greece, Application no. 8256/07, 26 November 2009 |
| ECtHR- Aden Ahmed v. Malta, (Application no. 55352/12, 9 December 2013 |
| Suso Musa v Malta app 42337/12, 23 July 2013 4th section |
Follower Cases:
Other sources:
The 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 26 to 30 September 20011, published on 4 July 2013
Report by Human Rights Watch in 2012 called “Boat-ride to Detention”
A 2014 Report issued by Aditus entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures”
The 9th General report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the CPT’s activities covering the period 1 January to 31 December 1998
United Nations Standard Minimum Rules for the Treatment of Prisoners, Rule 53
The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012