ECtHR - Suso Musa v. Malta, (Application no. 42337/12), 9 December 2013

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Country of Applicant: 
Sierra Leone
Date of Decision: 
09-12-2013
Citation: 
Suso Musa v. Malta, (Application no. 42337/12), 9 December 2013
Court Name: 
European Court of Human Rights Fourth Chamber
Headnote: 

Examining the applicant’s complaints of unlawful detention, absence of information on the specific reasons of his detention and lack of access to effective remedies, the Court found a violation of Article 5 para 1 and Article 5 para 4 of the Convention. 

Facts: 

The applicant is allegedly a Sierra Leone national who entered Malta in an irregular manner by boat in April 2011. Subsequently arrested by the police, he was placed in detention and presented with a document containing both a Return Decision and a Removal Order. On 14 April 2011 he applied for asylum. His application was rejected by the Office of the Refugee Commissioner and on appeal by the Refugee Appeals Board. Meanwhile, pending the above asylum proceeding, he challenged the legality of his detention before the Immigration Appeals Board (IAB).His application was rejected more than a year after.

The applicant complained before the ECtHR that the Maltese legal system had not provided him with a speedy and effective remedy, contrary to Article 5 para 4 of the Convention. Consequently, according to the applicant, his detention up to the date of determination of his asylum application was incompatible with Article 5 para 1 (f) of the Convention. Finally, he complained under Article 5 para 2 that he was not provided with information regarding the specific reasons for his detention.

Decision & Reasoning: 

Citing Saadi v. the United Kingdom (no. 13229/03), the Court reiterated its interpretation of the meaning of the first limb of Article 5 para 1 (f), namely "to prevent people effecting an unauthorized entry into the country". It added 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 [97].  Turning to the case at hand,  the Court noted that the applicant’s detention between 8 April 2011 and 2 April 2012 had as a legal basis Article 5 in conjunction with Article 14 of the Immigration Act and therefore fell under the first limb of Article 5 para 1 (f) [99].

However, even accepting that the applicant’s detention had been closely connected to the purpose of preventing his unauthorised entry to the country, the Court raised concerns about the appropriateness of the place and the conditions of detention endured. Taking cue from CPT’s and ICJ’s reports on the conditions in question, it reiterated that they could amount to inhuman and degrading treatment under Article 3 of the Convention.

With regards to whether the second period of the applicant’s detention (2 April 2012-21 March 2013) fell under the second limb of Article 5 para 1 (f), the Court reiterated that detention under the present article could be justified only for as long as deportation proceedings were in progress. If such proceedings were not prosecuted with due diligence and in good faith, the detention would cease to be permissible under Article 5 para 1(f) [104].  The period of detention of ten months could not be considered as serving the purposes of deportation. The Court noted 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. Therefore, the Court considered that the applicant’s detention following the determination of his asylum claim was not compatible with Article 5 para 1 (f) [105].

Citing Louled Massoud v. Malta, no. 24340/08, the Court highlighted that the circumstances haven’t changed since then given that the IAB system did not constitute an effective remedy guaranteeing the detainee’s right to challenge his detention speedily as required by Article 5 para 4.

Further the Court considered the applicant’s complaint under Article 5 para 2 to be manifestly ill-founded and rejected it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Outcome: 

Violation of Article 5 § 1 on account of the duration of the applicant’s detention coupled with the inadequate conditions at the barracks where he was held

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.

Subsequent Proceedings : 

Fulfilling its function of execution monitoring, the CoE Committee of Ministers has received and commented on several actions plans on the part of Maltese authorities against the backdrop of constructive dialog.

Most recently, on the individual level, the CM noted that the individuals have been released from detention. On the general level, it welcomed that following its recommendations the practice of systematic detention has been replaced by a case by case assessment, the speed with which asylum and expulsion procedures are carried out has been increased, and detention conditions have been enhanced. Moreover, legislative amendments are underway to limit possible detention to maximum nine months, and to ensure that challenges to detention are assessed by the Immigration Appeals Board in a Convention compatible manner.

 

Case Law Cited: 

ECtHR - Scoppola v. Italy (no. 2) [GC], Application No. 10249/03

ECtHR - Louled Massoud v. Malta, Application No. 24340/08

ECtHR - Dougoz v. Greece, Application No. 40907/98

ECtHR - Fox, Campbell and Hartley v. the United Kingdom, Application Nos. 12244/86, 12245/86 and 12383/86

ECtHR - Nada v. Switzerland [GC], Application No. 10593/08

ECtHR - Kaboulov v. Ukraine, Application No. 41015/04

ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08

ECtHR - Amuur v. France, Application No. 19776/92

ECtHR - S.D. v Greece (Application no. 53541/07)

ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99)

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)

ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Stanev v. Bulgaria [GC], Application No. 36760/06

ECtHR - Broniowski v. Poland [GC], Application No. 31443/96

ECtHR - Kanagaratnam v. Belgium no. 15297/09

ECtHR- Yonkeu v. Latvia, no 57229/09

ECtHR - Bordovskiy v. Russia, no. 49491/99

ECtHR - Galliani v. Romania, no. 69273/01

ECtHR - Driza v. Albania, no. 33771/02

ECtHR - Brumărescu v. Romania, no. 28342/95

ECtHR- Scozzari and Giunta v. Italy [GC], ( Application nos. 39221/98 and 41963/98)

Varnava and others v. Turkey [GC], nos16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90

ECtHR - Maestri v. Italy [GC], Application No. 39748/98

ECtHR - Ahmade v. Greece, Application No 50520/09

Menteş and others v. Turkey, no. 23186/94

ECtHR - Idalov v. Russia [GC], no. 5826/03
Authentic Language: 
English
State Party: 
Malta
National / Other Legislative Provisions: 
Malta - Immigration Act Chapter 217 of the Laws of Malta
Malta - Subsidiary Legislation 217.12
Common Standards and Procedures for Returning Illegally Staying Third Country Nationals Regulation
Legal Notice 81 of 2011