ECtHR - Abdullahi Elmi and Aweys Abubakar v. Malta, Application No. 25794/13 and 28151/13, 22 February 2017

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Country of Applicant: 
Somalia
Date of Decision: 
09-01-2018
Citation: 
Application No. 25794/13 and 28151/13
Court Name: 
European Court of Human Rights
Headnote: 

The applicants although minors were detained in a detention facility where they were mixed with adults. The detention lasted until the Maltese government determined (in a process that took 8 months) that they were minors.

Moreover, the harsh conditions in the detention facilities amounted to inhuman or degrading treatment.

Facts: 

The applicants, are two Somali nationals who were born in 1996 and 1995 respectively and who entered Malta by sea in order to request asylum

  1. Mr Burhaan Abdullahi Elmi’s Case (Applicant 1)

Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon his arrival he was registered by the immigration police and given an identification number. The applicant’s age, during this procedure, was contested by the authorities.  The Government later issued a return decision and a removal order accompanied by a decision on his detention. The return decision was given on grounds that the applicant was a prohibited immigrant.

Both documents informed the applicant that he had the right to appeal both resolutions before the Immigration Appeals Board within three working days.

However, the applicant claimed that the content of both decisions (in English) were not explained to him, and that he could not understand the language. In response, the Government argued that it is common practice that the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.

He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first applicant did not request a booklet in another language.

The applicant was originally detained in Warehouse 2 at Safi Barracks and in 2013 he was moved to Block B.

  1. Mr Cabdulaahi Aweys Abubakar (Applicant 2)

Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number. Considering the applicant was born in 1995 he was 17 years old when he entered the country. As the first applicant he was also given a return decision and a removal decision accompanied by a decision to detain. The applicant also alleged that he was not provided with any information on the reasons for the decisions taken against him or given written information in a language that he understood. The second applicant was detained in the same location as the first.

Asylum Proceedings

A few days following both applicant’s arrivals they were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum.

Age- Assessment Procedure

Applicant 1’s case was assessed on 31 August 2012. Within a few weeks of his arrival he was subject to interviews and later to an X-ray exam. After the exams he was informed verbally by the staff that he was found to be a minor, however after 8 months of his arrival he had not received a written decision about his age assessment and therefore he remained in detention for this period.

Regarding applicant 2’s case, on 18 September 2012 he was also subjected to interviews and later to an X-ray exam in order to determine his age. As in the previous case, he was also informed verbally that he was found to be a minor, however after almost 8 months since he arrived to Malta he was still waiting for the outcome of the age-assessment procedure, and therefore was still in detention.

Conditions of detention

Applicant 1 claimed to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes, which were only replaced every four months. Recreational activity was limited, and the yard was taken over by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation.

Applicant 2’s narration about the conditions of detention in Warehouse 2 and Block B are similar to those referred to by the first applicant. Mr Cabdulaahi Aweys Abubakar also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available, nor was an ambulance called. He alleged that he had headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor.

Latest developments

On April 19 2013 Applicant 1 was released from detention under a care order and placed in an open centre for unaccompanied minors. He subsequently left Malta before the termination of his asylum proceedings therefore on 31 August 2013 his process was withdrawn as discontinued.

Applicant 1 was later found in Germany where he was held by the authorities, who in turn requested the Maltese authorities to take him back in terms of the Dublin Regulation. Following the acceptance of that request on 7 May 2014 the Maltese authorities were informed by the German authorities that return was suspended pending proceedings in Germany.

Regarding Applicant 2, the Maltese government informed that on 24 April 2013 he was released from detention under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection on 14 September 2013.

 

Decision & Reasoning: 

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

  1. Admissibility

The ECHR noted that when the applicants lodged their application with the ECHR (17 April 2013) complaining about their conditions of detention, they were still in detention, and thus apart from requiring a remedy providing compensation, they required to have a preventive remedy capable of putting an end to the ongoing violation of their right not to be subjected to inhuman or degrading treatment.

In previous similar cases, the ECHR has already found that none of the remedies indicated by the government satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner. Therefore, the application was admissible.

  1. Merits

The ECHR reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention

The assessment of this minimum level of severity is relative.

Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the ECtHR will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3.

Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure does not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

The ECHR pointed out that the extreme lack of personal space in the detention area is to be taken into account when establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 ECHR. Moreover, other elements such as access to outdoor exercise, natural light or air and compliance with basic sanitary and hygiene requirements are important to determine if the authority has breached Article 3 ECHR.

The ECtHR moreover highlighted the fact that a child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant, as children have specific needs due to their age and lack of independence.

With regards to the detention conditions in Safi Barracks, the ECtHR noted that it had already expressed its concerns about the appropriateness of the facilities. Moreover, CPT and the ICJ considered that the conditions of the mentioned facilities could amount to inhuman and degrading treatment.

Regarding the overcrowding of the facilities, the ECtHR determined that the facilities hosted around 50% more individuals than it was intended to host, therefore this gives rise to a presumption that the applicants were detained in overcrowded conditions for around two months.

Additionally, the ECtHR pointed out that according to a CPT Report the sanitary facilities in the detention areas were in a bad condition and there was a lack of any organised activity. These concerns assume a new dimension in view of the fact that the applicants were minors at the time of their detention.

Although the applicants were not young children, they still fell within the international definition of minors, in respect of which detention should be a last resort and which should be limited to the shortest time possible. However, the ECtHR noticed that no measures were taken to ensure that the applicants, as minors, received proper counselling and educational assistance from qualified personnel specially mandated for that purpose.

The ECtHR observes that the applicants were subjected to the conditions mentioned above for a period of eight months, during which no specific arrangements were made for the applicants as migrants awaiting the outcome of their age-assessment procedure.

Considering this and the fact that the applicants were minors, the ECtHR determined that the cumulative effect of the conditions amount to degrading treatment and therefore a violation of Article 3 ECtHR.

ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

In previous cases, the ECtHR held that the available remedies in the Maltese domestic system were ineffective and insufficient for the purposes of Article 5 § 4 ECtHR.

Such situation is confirmed by ECtHR in this case as it had not been shown that the applicants had at their disposal an effective and speedy remedy under Maltese domestic law by which to challenge the lawfulness of their detention. The ECtHR, therefore, concluded that Article 5 § 4 ECtHR had been violated.

ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

The Court notes that during this time the first applicant remained in detention, despite having been told orally that he had been found to be a minor six months before. Similarly, the Government have not explained why, following his interview, the second applicant had to wait for five months to have the X ray test and to wait for another two and a half months for such a decision, and therefore for his release under a care order. In this connection the Court notes that Government policy clearly states that vulnerable people are exempt from detention and that unaccompanied minors are considered as a vulnerable category.

Even accepting that the detention was closely connected to the ground of detention relied on, namely to prevent an unauthorised entry, and in practice to allow for the applicants’ asylum claim to be processed with the required prior age assessment, the delays in the present case, particularly those subsequent to the determination of the applicants’ age, raise serious doubts as to the authorities’ good faith.

A situation rendered even more serious by the fact that the applicants lacked any procedural safeguards (as shown by the finding of a violation of Article 5 § 4), as well as the fact that at no stage did the authorities ascertain whether the placement in immigration detention of the applicants was a measure of last resort for which no alternative was available.

In conclusion, the ECtHR considers that in the present case the applicants’ detention was not in compliance with Article 5 § 1.

ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION

Even assuming that in the early stages of their detention the applicants were unable to contest such a measure because of their inability to understand the factual circumstances and their lack of knowledge of the English language, the Court observes that no specific reasons have been brought to the Court’s attention, explaining why they were able to bring proceedings around eight months after their arrival and subsequent detention, but not two months earlier, in order to comply with the six-month rule.

Considering this, and that the applicants were informed of the reason of their detention on 16 and 31 August 2012 and that they lodged their application on 17 April 2013, the complaint is inadmissible for non-compliance with the six-months rule.

Outcome: 

The Court found, unanimously, that the complaint under Article 5 § 2 is inadmissible and the remainder of the applications admissible.

Therefore, with regards of the remaining violations, the Court found unanimously that there has been a violation of Articles 3 and 5 § 1 and 4 ECHR.

Regarding damage, the Court considered that due to the violation of Articles 3 and 5 ECHR, the Maltese government shall pay the applicants EUR 12,000 each, in respect of non-pecuniary damage, plus any tax that may be chargeable.

With regards of costs and expenses, the applicants claimed a refund for the amount of EUR 4,000 jointly. The Court grant the applicants’ claim and ordered the Maltese government to pay the applicant the said amount within three months from the date on which the judgement becomes final.

 

Observations/Comments: 

The summary was written by Oscar Pajuelo, LLM student of Queen Mary University of London.

Case Law Cited: 

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

ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08

ECtHR - Yarashonen v. Turkey, Application No. 72710/11 (UP)

ECtHR - Stephens v. Malta (no. 1), Application no. 11956/07, 21 April 2009

ECtHR- Kanagaratnam and others v. Belgium, Application no. 15297/09, 13 March 2012

ECtHR - Blokhin v. Russia [GC], Application no. 47152/06, 23 March 2016

ECtHR - Selcuk and Akser v. Turkey, Application nos. 23184/94 and 23185/94, 24 April 1998;

ECtHR - Sizarev v. Ukraine, Application no. 17116/04, 17 January 2013

ECtHR - Karalevuičius v Lithuania, Application no 53252/99, 7 April 2005
Authentic Language: 
English
State Party: 
Malta
National / Other Legislative Provisions: 
Malta - - Article 5 and 14 of the Immigration Act (Chapter 217 of the Laws of Malta)
Malta - - Article 8 of the Refugees Act
Chapter 420 of the Laws of Malta
Malta - Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation
Subsidiary Legislation 217.11
Malta - Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 - Legal Notice 243 of 2008
Malta- Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations
Subsidiary Legislation 420.06 – Legal Notice 320 of 2005
Matla- Part IV of Subsidiary Legislation 217.12
Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations
Legal Notice 81 of 2011