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

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Country of Applicant: 
Algeria
Date of Decision: 
27-10-2010
Citation: 
Application No. 24340/08
Court Name: 
Fourth Section; European Court of Human Rights
Relevant Legislative Provisions: 
Headnote: 

Unlawful detention of an Algerian citizen in Malta for more than 18 months.

Facts: 

The Applicant is an Algerian national who was, at the time of the introduction of this application, detained in Safi Military Barracks, Safi (Malta). He arrived in Malta in June 2006 by boat and, was immediately detained. He was subsequently charged and found guilty of aiding others to enterMalta. On completing his sentence of imprisonment, he was released but immediately placed in a detention centre for a little more than 18 months. Relying in particular on Article 5 §§ 1 and 4 (right to liberty and security), he notably complained about the unlawfulness of his detention for more than 18 months, the maximum allowed according to a policy introduced inMalta in 2005 concerning illegal immigrants, refugees and integration.

Decision & Reasoning: 

Article 5 § 4:

The Court considered each existing remedy on the basis of the available information and the parties' submissions, and concludes that it has not been shown that the Applicant had at his disposal under domestic law an effective and speedy remedy for challenging the lawfulness of his detention.

The Court finds that Article 5 § 4 of the Convention has therefore been violated and the Government's objection based on non-exhaustion of domestic remedies (see paragraph 31 above) must accordingly be rejected.

Article 5 § 1:

The Court notes that the Applicant's detention in prison fell under Article 5 § 1(c) and (a). These periods do not raise an issue before the Court.

After he served his sentence, the applicant was transferred to a detention centre and detained “with a view to deportation” within the meaning of Article 5 § 1(f). It follows that the period of detention to be considered for the purposes of this complaint is that from the date when the Applicant was placed in a detention centre pending the processing of his asylum claim, to the date, when he was released. The duration of the detention therefore amounted to eighteen months and nine days. The Court notes that the entire duration of the detention was subsequent to the rejection of his asylum claim at first instance and that the final decision on his asylum claim was delivered three weeks after the commencement of his detention in the detention centre.

The Court has grave doubts as to whether the grounds for the Applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence.

The Court considered whether Maltese law guaranteed a particular procedure to be followed which could offer safeguards against arbitrariness. The Court primarily notes that the Immigration Act applied no limit to detention and that the Government policies have no legal force. In consequence, the Applicant was subject to an indeterminate period of detention. In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the Applicant did not have any effective remedy by which to contest the lawfulness and length of his detention. It follows that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation.

The foregoing considerations are sufficient to enable the Court to conclude that the national system failed to protect the Applicant from arbitrary detention, and his prolonged detention cannot be considered to have been “lawful” for the purposes of Article 5 of the Convention.

There has accordingly been a violation of Article 5 § 1 of the Convention.

Outcome: 

Violations of Articles 5 § 4 and 5 § 1 of the Convention of the Convention;

EUR 12,000 in respect of non-pecuniary damage.

Case Law Cited: 

ECtHR - Moroko v. Russia, Application No. 20937/07

ECtHR - Soldatenko v. Ukraine, Application No. 2440/07

ECtHR - Case of Saadi v United Kingdom (Application no.13229/03) - (UP)

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

ECtHR - Tabesh v. Greece, Application No. 8256/07

ECtHR - Kadem v. Malta, Application No. 55263/00

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

ECtHR - Sabeur Ben Ali v. Malta, Application No. 35892/97

ECtHR - Muminov v. Russia, Application No. 42502/06

ECtHR - Musiał v. Poland [GC], Application No. 24557/94

ECtHR - Blečić v. Croatia [GC], Application No. 59532/00

ECtHR - Agnissan v. Denmark, Application No. 39964/98

Malta - Criminal Court, 5 November 2004, Karim Barboush v. Commissioner of Police

Malta - Civil Court, 20 June 2007, Tafarra Besabe Berhe v. Commissioner of Police

ECtHR - Bezzina Wettinger and Others v. Malta, Application No. 15091/06

ECtHR - E. v. Norway, Application No. 11701/85

ECtHR - Nikolova v. Bulgaria [GC], Application No. 31195/96

ECtHR - Frasik v. Poland, Application No. 22933/02

ECtHR - Khudyakova v. Russia, Application No. 13476/04

ECtHR - Conka v Belgium (Application no. 51564/99)
Authentic Language: 
English
State Party: 
Malta
National / Other Legislative Provisions: 
Malta - Immigration Act - Article 5
Malta - Immigration Act - Article 14
Malta - Immigration Act - Article 25
Malta - Legal Notice 320 of 2005
transposing into national legislation Directive 2003/9/EC of 27 January 2003 of the European Union on laying down minimum standards for the reception of asylum seekers
which came into force by means of Legal Notice 383 of 2005 on 22 November 2005 - Article 10
Malta - Criminal Code - Article 409A