ECtHR - Mahamed Jama v. Malta (no. 10290/13) [Articles 3, 5(1)f) 5(4)], 26 November 2015

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Date: 
Thursday, November 26, 2015

This case relates to a Somali national who entered Malta irregularly by boat in May 2012. She was registered by immigration police, as an adult, although she allegedly claimed to be sixteen years old. She was detained in Lyster Barracks pending removal. A few days later she appealed against her removal decision and return order, and applied for asylum. Two months later she was interviewed as part of an age assessment procedure, which was followed by medical testing.  A formal age assessment decision was made in January 2013. She was then interviewed in relation to her asylum claim and a decision was made on 2 February 2013 to grant her subsidiary protection status. She was notified and released from detention 5 days later, on 7 February 2013.

The applicant claimed that the conditions of her detention amounted to a violation of Article 3 ECHR. With regard to the admissibility of this complaint, the government submitted that the applicant had not made use of domestic remedies. The Court rejected this argument finding that the hypothetical application of interim measures pending constitutional redress proceedings  did not make this remedy effective in terms of preventing ongoing violations and providing compensation. Further the government had not addressed previous concerns raised by the Court in its case-law regarding the accessibility of such domestic remedies due to the lack of access to effective legal aid for immigration detainees in Malta.

Turning to the merits of the Article 3 complaint, the Court considered that the size of her living space, which did not go below 5 metres for almost the whole duration of her detention (except for 1 month) taking into account the common areas, did not go below the acceptable minimum standard. Noting that detention conditions at Lyster Barracks had been considered previously in Aden Ahmed  v. Malta the court reiterated the importance of detainees to have access to outdoor exercise, finding it regrettable that the applicant was prevented from going into the yard for between five and nine weeks, which was not justified by the government citing security concerns. The Court also had concerns in relation to the applicant’s complaints of suffering from the cold and heat and regarding the lack of female staff at the centre.

However the Court observed that according to a CPT report, the centre had undergone various improvements, there were no concerns about hygiene facilities and her basic needs regarding food and clothing were met. It concluded that the cumulative effect of the conditions complained of did not meet the threshold of degrading treatment within the meaning of Article 3 ECHR.  Judge Casadavall dissented from the majority on this aspect; finding a violation of Article 3 and calling on Malta to ensure conditions of detention that were consonant with human dignity.

Turning to Article 5(4), the applicant complained that she had no remedy to challenge the lawfulness of her detention.  The Court recalled that it had repeatedly examined this issue and found that applicants did not have an effective and speedy remedy available in domestic law in Malta (Louled Massoud v. MaltaAden Ahmed v. MaltaSuso Musa v. Malta).
 
It rejected the government’s argument that constitutional proceedings provided an effective remedy, which was not substantiated and saw no reason to depart from its previous case law, finding that Article 5(4) was violated.

Finally, in relation to Article 5(1) the applicant argued that her detention for over eight months was unlawful and arbitrary. The Court considered that her detention pending her age assessment and the processing of her asylum claim was provided for in domestic law, and was for the purpose of preventing her effecting an unauthorised entry. Although she claimed to be a minor, the court could not ignore the fact that she was later found to be an adult. Consequently the length of her overall detention was not unreasonable. On the other hand, her detention for an additional 5 days following the grant of subsidiary protection not covered by a ground in Article 5 or otherwise justifiable, thus violating Article 5(1).

The ELENA Weekly Legal Update would like to thank Neil Falzon, ELENA National Coordinator for Malta, for notifying us of this judgment. 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Detention
Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Legal assistance / Legal representation / Legal aid
Return
Subsidiary Protection
Vulnerable person