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FOURTH
SECTION
CASE OF LOULED MASSOUD v. MALTA
(Application
no. 24340/08)
JUDGMENT
STRASBOURG
27 July
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Louled Massoud v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24340/08) against Malta lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by an Algerian national, Mr Khaled Louled Massoud (“the
applicant”), on 6 March 2008.
- The
applicant was represented by Dr Michael Camilleri, a lawyer
practising in Valletta. The Maltese Government (“the
Government”) were represented by their Agent, Dr Silvio
Camilleri.
- The
applicant alleged that his detention had been unlawful in terms of
Article 5 § 1, that he had not been provided with the legal and
factual grounds for his detention as required by Article 5 § 2
and that he had not had a remedy by which to challenge the lawfulness
of his detention in accordance with Article 5 § 4 of the
Convention.
- On
21 September 2009 the President of the Fourth Section decided to give
notice of the complaints under Article 5 §§ 1, 2 and 4 to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is an Algerian national who was born in 1960 and was, at
the time of the introduction of the application being detained in
Safi Military Barracks, Safi.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Background
- The
applicant arrived in Malta on 24 June 2006 without documents, having
travelled by boat from Libya in an irregular manner. Upon his arrival
he was served with a removal order in accordance with Article 14 of
the Immigration Act (“the Act”). The reason for his
detention was given as being that under Article 5 of the Act, he was
in Malta without leave. He was consequently detained at the police
headquarters.
- On
26 June the applicant was questioned by the police and he gave a
statement. On 28 June 2006 he was arraigned in court charged with
aiding, assisting, counselling or procuring other persons to enter or
to attempt to enter Malta or having conspired to that effect. He was
remanded in custody.
- On
1 October 2006, pending proceedings, the applicant made a late
preliminary application for refugee status, which was considered by
the Refugee Commissioner as expressing his desire for recognition of
refugee status.
- On
25 October 2006 the Court of Magistrates found the applicant guilty
and sentenced him to eighteen months' imprisonment.
- While
in prison, on 17 April 2007, the applicant made a formal application
for asylum and was interviewed on the same day.
- After
serving his sentence, the applicant was released from prison on 27
June 2007 and was placed in a detention centre pending the
determination of his asylum claim.
- The
applicant's asylum application was rejected on 24 April 2007 and
subsequently on appeal on 18 July 2007 as he had failed to provide
convincing evidence that he would face a real risk or had a
well-founded fear of persecution.
- The
applicant remained in detention awaiting removal under the
Government's immigration policy until 6 January 2009 when his removal
order was lifted in view of the lack of prospects of his eventual
deportation. The applicant claimed that the conditions of detention
in Blocks C and B had been inappropriate. Both facilities had been
overcrowded, particularly in the summer months, with inadequate
sanitary and other facilities, limited medical care, no possibility
of constructive activities and limited recreational opportunities.
The applicant made reference to reports of the CPT, the Council of
Europe Human Rights Commissioner and the LIBE Committee of the
European Parliament documenting such conditions.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum Procedures
- Asylum
procedures are regulated by the Immigration Act (“the Act”),
Chapter 217 of the Laws of Malta. Article 5 of the Act in so far as
relevant reads as follows:
“Any person, other than one having the right of
entry, or of entry and residence, or of movement or transit ..., may
be refused entry, and if he lands or is in Malta without leave from
the Principal Immigration Officer, he shall be a prohibited
immigrant.”
In
practice, upon being apprehended, a prohibited immigrant is issued
with a removal order, in accordance with Article 14 (2) of the Act,
which, in so far as relevant, reads as follows:
“If any person is considered by the Principal
Immigration Officer to be liable to removal as a prohibited immigrant
under any of the provisions of article 5, the said Officer may issue
a removal order against such person who shall have a right to appeal
against such order in accordance with the provisions of article 25A:
...
(2) Upon such order being made, such person against whom
such order is made, shall be detained in custody until he is removed
from Malta.”
- An
“irregular” immigrant is entitled to apply for
recognition of refugee status by means of an application (in the form
of a Preliminary Questionnaire) to the Commissioner for refugees
within two months of arrival. While the application is being
processed, in accordance with a Maltese policy document of 2005
entitled “Irregular Immigrants, Refugees and Integration”,
the immigrant will remain in detention, but no immigrant shall be
kept in detention for longer than eighteen months. Length of
detention may depend on the immigrant's will to cooperate in respect
of his or her repatriation. However, the Immigration Act does not
define a limit to the period of detention. Article 10 of 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, provides as
follows:
(2) If a decision at first instance has not been taken
within one year of the presentation of an application for asylum and
this delay cannot be attributed to the applicant or his legal
representative, the Ministry responsible for issuing employment
licences shall decide the conditions for granting access to the
labour market for the applicant.
(3) Where an appeal is lodged against a negative
decision, access to the labour market shall not be withdrawn during
the appeal stage.
- In
accordance with the Maltese authorities' reply to the CPT report 2005
(cf. CPT/Inf (2005) 16, p. 24), and the United
Nations General Assembly Report of the Working Group on Arbitrary
Detention of 8 January 2010, this provision introduced a
twelve month time-limit on detention. Thus, if within that time the
asylum application has not yet been examined, the asylum seeker will
be given access to the labour market and will have the right to an
appropriate document from the Refugee Commissioner or the Refugee
Appeals Board. An asylum seeker may remain in Malta until a final
decision on the application is taken, unless the application is
considered to be manifestly ill-founded by the Refugee Commissioner
at first instance.
Directive
2008/115/EC of the European Union on common standards and procedures
in Member States for returning illegally staying third-country
nationals provides that in situations where deportation is blocked by
the failure of a third country to deliver the necessary travel
documents, detention cannot exceed eighteen months.
B. Remedies to challenge detention under Maltese law
1. Article 409A of the Criminal Code
- An
application in terms of Article 409A of the Criminal Code, Chapter 9
of the Laws of Malta, consists of a request to the Court of
Magistrates to examine the lawfulness of detention and order release
from custody. In so far as relevant, the Article reads as follows:
“(1) Any person who alleges he is being unlawfully
detained under the authority of the police or of any other public
authority not in connection with any offence with which he is charged
or accused before a court may at any time apply to the Court of
Magistrates, which shall have the same powers which that court has as
a court of criminal inquiry, demanding his release from custody. Any
such application shall be appointed for hearing with urgency and the
application together with the date of the hearing shall be served on
the same day of the application on the applicant and on the
Commissioner of Police or on the public authority under whose
authority the applicant is allegedly being unlawfully detained. The
Commissioner of Police or public authority, as the case may be, may
file a reply by not later than the day of the hearing.
(2) On the day appointed for the hearing of the
application the court shall summarily hear the applicant and the
respondents and any relevant evidence produced by them in support of
their submissions and on the reasons and circumstances militating in
favour of or against the lawfulness of the continued detention of the
applicant.
(3) If, having heard the evidence produced and the
submissions made by the applicant and respondents, the court finds
that the continued detention of the applicant is not founded on any
provision of this Code or of any other law which authorises the
arrest and detention of the applicant it shall allow the application.
Otherwise the court shall refuse the application.
(4) Where the court decides to allow the application the
record of the proceedings including a copy of the court's decision
shall be transmitted to the Attorney General by not later than the
next working day and the Attorney General may, within two working
days from the receipt of the record and if he is of the opinion that
the arrest and continued detention of the person released from
custody was founded on any provision of this Code or of any other
law, apply to the Criminal Court to obtain the re-arrest and
continued detention of the person so released from custody. The
record of the proceedings and the court's decision transmitted to the
Attorney General under the provisions of this sub-article shall be
filed together with the application by the Attorney General to the
Criminal Court.”
2. Article 25A of the Immigration Act
- The
second remedy existing under domestic law is an application to the
Immigration Appeals Board (“IAB”) if an asylum seeker
feels that his or her detention is no longer reasonable. It entails
requesting release from custody pending the determination of an
individual's asylum claim or his or her deportation in accordance
with Article 25A of the Immigration Act, Chapter 217 of the Laws of
Malta. The same article regulates the manner in which and when such
release may be granted. The relevant provisions read as follows:
(6) During the course of any proceedings before it, the
Board, may, even on a verbal request, grant provisional release to
any person who is arrested or detained and is a party to proceedings
before it, under such terms and conditions as it may deem fit, and
the provisions of Title IV of Part II of Book Second of the Criminal
Code shall, mutatis
mutandis apply to such request.
(8) The decisions of the Board shall be final except
with respect to points of law decided by the Board regarding
decisions affecting persons as are mentioned in Part III, from which
an appeal shall lie within ten days to the Court of Appeal (Inferior
Jurisdiction).
(9) The Board shall also have jurisdiction to hear and
determine applications made by persons in custody in virtue only of a
deportation or removal order to be released from custody pending the
determination of any application under the Refugees Act or otherwise
pending their deportation in accordance with the following
subarticles of this article.
(10) The Board shall only grant release from custody
under subarticle (9) where in its opinion the continued detention of
such person is taking into account all the circumstances of the case,
unreasonable as regards duration or because there is no reasonable
prospect of deportation within a reasonable time:
Provided that where a person, whose application for
protection under the Refugees Act has been refused by a final
decision, does not co-operate with the Principal Immigration Officer
with respect to his repatriation to his country of origin or to any
other country which has accepted to receive him, the Board may refuse
to order that person's release.
(11) The Board shall not grant such release in the
following cases:
(a)
when the identity of the applicant including his nationality has yet
to be verified, in particular where the applicant has destroyed his
travel or identification documents or used fraudulent documents in
order to mislead the authorities;
(b)
when elements on which any claim by applicant under the Refugees Act
is based, have to be determined, where the determination thereof
cannot be achieved in the absence of detention;
(c)
where the release of the applicant could pose a threat to public
security or public order.
3. Constitutional Proceedings
- An
alternative remedy is a constitutional application before the Civil
Court (First Hall), followed, if necessary, by an appeal to the
Constitutional Court. However, in Sabeur Ben Ali v. Malta
(no. 35892/97, 29 June 2000, § 40) and Kadem v.
Malta (no. 55263/00, § 53, 9 January 2003), the European
Court held that this procedure was rather cumbersome and therefore
lodging a constitutional application would not have ensured a speedy
review of the lawfulness of the applicants' detention. Consequently,
the Court held in the cited cases that the applicants had not had at
their disposal, under domestic law, a remedy for challenging the
lawfulness of their detention under Article 5 § 4 (see
also Stephens v. Malta (no. 2),
no. 33740/06, § 90, 21 April 2009).
C.
Domestic judgments relevant to the circumstances of the case:
1. Karim Barboush v. Commissioner of Police, (Judgment of the
Criminal Court of 5 November 2004)
- The
domestic court, referring to the competence of the court under
Article 409A, held that:
“it
is not within the competence of the Court of Magistrates or the
Criminal Court to examine whether, beyond the fact that there is a
clear law authorising continued detention, there are other
circumstances which could render it illegal, such as an
incompatibility with the rights granted by the Constitution or the
Convention. There exist other proceedings before other courts vested
by law to take cognisance of such cases and which may give adequate
remedies if they find a violation of human rights. Article 409A is
shaped in accordance with the legislator's words and no court should
exceed the limits of the jurisdiction conferred upon it.”
2. Tafarra Besabe Berhe v. Commissioner of Police (Preliminary
decree of the Civil Court (First Hall) acting in its constitutional
jurisdiction of 20 June 2007)
- In
circumstances similar to the present one, the first-instance
constitutional jurisdiction did not reject the claims for
non-exhaustion of ordinary remedies but took cognisance of the case.
It held that the remedy provided by the Immigration Act could not,
even in the best possible scenario, grant a complete fair and certain
remedy in cases where a person had been deprived of the right to
liberty even for a short while.
The
case is currently adjourned for judgment to June 2010.
- At
the hearing of 24 May 2007 concerning these proceedings, an NGO
lawyer who regularly lodges applications for release with the IAB was
asked about the longest and shortest time span he has had to wait for
a decision on an application. He testified as follows:
“The shortest would be twenty-eight days and the
longest eighty-six days for a decision, but there are cases which are
pending which have been over three months or where the client has
been released because the eighteen month period had expired.”
- At
the same hearing the Chairman of the IAB was asked to outline the
criteria applied when determining if detention was reasonable or not
in the circumstances. His testimony reads as follows:
“We take all circumstances into account but
obviously you have to consider the situation from a management point
of view as well, and you have to consider as well that releasing
somebody from detention is not just a matter concerning the applicant
himself, because once he is released and he goes into society, if he
is of bad character, you have to check his physical and medical
condition and that is why we impose certain conditions because
otherwise you would be, sort of doing, a good thing in favour of the
applicant and not such a good thing vis a vis society at
large. So we have to take into account everything but each case is
dealt on its own merits.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subject to inhuman and
degrading treatment arising from the conditions of his detention, in
violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court reiterates that, under Article 35 § 1 of the Convention,
it may only deal with a matter after all domestic remedies have been
exhausted. Article 35 § 1 requires that the complaints intended
to be made subsequently before the Court should have been made, at
least in substance, to the appropriate domestic body (see Bezzina
Wettinger and Others v. Malta, no. 15091/06, § 102, 8 April
2008).
- The
Court observes that the applicant failed to institute proceedings
raising the Article 3 complaint before the Civil Court (First Hall)
acting in its constitutional jurisdiction and if necessary to lodge
an appeal before the Constitutional Court.
- It
follows that this complaint must be rejected for non-exhaustion of
domestic remedies pursuant to Article 35 §§ 1
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the Maltese legal system had not provided
him with a speedy and efficient remedy, contrary to Article 5 §
4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Government contested that argument.
A. Admissibility
1. The Government's objection of non-exhaustion of domestic
remedies
- The
Government submitted that the applicant had not exhausted domestic
remedies as he had failed to take up any of the available remedies.
-
The applicant submitted that none of the available remedies satisfied
the requirements of Article 5 § 4.
- The
Court considers that this objection is closely linked to the
substance of the applicant's complaint and that its examination
should therefore be joined to the merits. It notes that the
applicant's complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that there were no effective domestic remedies
complying with the requirement of Article 5 § 4. Article 409A of
the Criminal Code, as interpreted by the domestic courts, excluded
the examination of other circumstances making detention unlawful when
detention had a clear legal basis (see paragraph 21 above).
- Article
25A of the Immigration Act did grant the possibility of release.
However, this was restricted and not available to, inter alia,
individuals whose identity and nationality were still to be verified
or who had destroyed their identity or travel documents (see
paragraph 19 above). The applicant further submitted that the IAB was
not a judicial authority, that it failed to determine proceedings
speedily as they could take between twenty-eight and eighty-six days
to be determined (see relevant testimony paragraph 23 above) and that
it was not in conformity with Convention requirements (see relevant
testimony paragraph 24 above). Indeed, proceedings had been
successful only in very limited circumstances when the individual was
in a vulnerable situation.
- Lastly,
constitutional proceedings could not be envisaged in view of their
excessive length which the Court had previously found not to be
compatible with the requirements of Article 5 § 4.
- The
Government submitted that after the relevant law had been introduced
in 2002, there had not been many decisions giving effect to or
interpreting Article 409 of the Criminal Code. However, they
acknowledged that the courts had, to date, established that if it was
found that detention was authorised by law, they were precluded from
examining constitutional issues in respect of that detention. This
was on the basis that there existed a specific remedy in this
respect, namely one of a constitutional nature. The Government
submitted that nothing precluded an individual from taking up a
constitutional remedy in order to allege that the detention was in
violation of the Constitution or the Convention on account of its
length. This having been said, the Government were of the view that
the latter did not preclude such a complaint being brought under
Article 409A on the basis that the detention became arbitrary in view
of its excessive length.
- As
to the IAB the Government submitted that the latter was fully
competent to grant release from custody where, in its opinion, the
continued detention of a person was, taking into account all the
circumstances of the case, unreasonable as regards duration or
because there was no reasonable prospect of deportation within a
reasonable time. They further submitted four examples of cases
alleging unreasonable length of detention in view of the
circumstances of the case, in which the IAB had granted release. The
latter dealt with applications made by persons who were of old age,
medically unfit or disabled and who had been detained in inadequate
conditions of detention. The Government further provided a decision
by the IAB where, notwithstanding the person's age, conditions of
detention and probable problems in respect of an eventual
repatriation, the request was refused in the absence of medical
certification.
2. General principles
- Article
5 § 4 entitles an arrested or detained person to institute
proceedings bearing on the procedural and substantive conditions
which are essential for the “lawfulness” of his or her
deprivation of liberty. The notion of “lawfulness” under
paragraph 4 of Article 5 has the same meaning as in paragraph 1, so
that the arrested or detained person is entitled to a review of the
“lawfulness” of his detention in the light not only of
the requirements of domestic law but also of the Convention, the
general principles embodied therein and the aim of the restrictions
permitted by Article 5 § 1. Article 5 § 4 does not
guarantee a right to judicial review of such a scope as to empower
the court, on all aspects of the case including questions of pure
expediency, to substitute its own discretion for that of the
decision-making authority. The review should, however, be wide enough
to bear on those conditions which are essential for the “lawful”
detention of a person according to Article 5 § 1 (see E. v.
Norway, 29 August 1990, § 50, Series A no. 181). The
remedies must be made available during a person's detention with a
view to that person obtaining speedy judicial review of the
lawfulness of his or her detention capable of leading, where
appropriate, to his or her release. The accessibility of a remedy
implies, inter alia, that the circumstances voluntarily
created by the authorities must be such as to afford applicants a
realistic possibility of using the remedy (see Čonka
v. Belgium, no. 51564/99, §§ 46 and 55, ECHR
2002-I). Article 5 § 4 of the Convention refers to domestic
remedies that are sufficiently certain, otherwise the requirements of
accessibility and effectiveness are not fulfilled (see Kadem v.
Malta, cited above, § 41).
- The
requirement of procedural fairness under Article 5 § 4 does not
impose a uniform, unvarying standard to be applied irrespective of
the context, facts and circumstances. Although it is not always
necessary that an Article 5 § 4 procedure be attended by
the same guarantees as those required under Article 6 for criminal or
civil litigation, it must have a judicial character and provide
guarantees appropriate to the type of deprivation of liberty in
question (see A. and Others v. the United Kingdom [GC], no.
3455/05, § 203, ECHR 2009 ...).
- Article 5 § 4, in guaranteeing to persons
arrested or detained a right to take proceedings to challenge the
lawfulness of their detention, also proclaims their right, following
the institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention (see Musial v. Poland
[GC], no. 24557/94, § 43, ECHR 1999-II). The question whether a
person's right under Article 5 § 4 has been respected has to be
determined in the light of the circumstances of each case (see
Rehbock v. Slovenia, no. 29462/95, § 84, ECHR
2000-XII). While Article 5 § 4 of the Convention does not impose
an obligation on a judge examining an appeal against detention to
address every argument contained in the appellant's submissions, its
guarantees would be deprived of their substance if the judge could
treat as irrelevant, or disregard, particular facts invoked by the
detainee which could cast doubt on the existence of the conditions
essential for the “lawfulness”, in the sense of the
Convention, of the deprivation of liberty (see Nikolova v.
Bulgaria [GC], no. 31195/96, § 91, ECHR 1999-II).
The Court's assessment
- The
Court notes that the parties are in disagreement as to the
effectiveness of the remedies invoked. It will therefore consider
each remedy on the basis of the available information and the
parties' submissions.
-
The Court notes that the applicant claimed that Article 409A was not
an effective remedy for the purposes of the Convention in that it
stopped short of examining lawfulness in the light of the
requirements of the Convention. Indeed, the Court observes that the
relevant courts entrusted with hearing applications under the said
Article have acknowledged their limited competence, holding that they
were not competent to look into other circumstances which could
render detention illegal, such as an incompatibility with the rights
granted by the Constitution or the Convention when there was a clear
law authorising continued detention (see paragraph 21 above). The
Government have also acknowledged that this was the ordinary
interpretation of the relevant domestic courts (see paragraph 35
above). In these circumstances the Court is of the view that the
remedy under Article 409A did not provide a review of the
“lawfulness” of detention in the light not only of the
requirements of domestic law but also of the Convention, the general
principles embodied therein and the aim of the restrictions permitted
by Article 5 § 1. In consequence, it cannot be considered as an
effective remedy for the purposes of Article 5 § 4. It follows
that the Court cannot agree with the Government that the applicant
should have tried such a remedy.
- As to the remedy before the IAB, the Court considers
that, even assuming that it could be considered as a judicial
authority competent to grant release, the relevant legal provision is
limited by the fact that a request for release from custody has no
prospect of success in the event that the identity of the detainee,
including his nationality, has yet to be verified, in particular
where he has destroyed his travel or identification documents or used
fraudulent documents in order to mislead the authorities (see
paragraph 19 above). Moreover, the Court cannot ignore the fact that,
notwithstanding the high number of irregular immigrants arriving on
Maltese shores, being detained and taking up this procedure, over
recent years the Government have only submitted four cases where the
remedy was successful. The Court observes that in each of these cases
the individuals making the request were vulnerable, either because of
their age, their medical condition or disability, and it was in view
of the latter reasons that release was granted on the basis that the
length of their detention had become unreasonable. Furthermore, it
appears from the applicant's submissions substantiated by the
relevant testimony (see paragraph 23 above) that these proceedings
take at least one month to be decided and may last as long as three
months or more. Indeed, it appears that there have been cases where
the decision was not rendered before the actual release date of the
detainee according to Government policy, rendering such a remedy
devoid of any legal or practical effect (see, mutatis mutandis,
Frasik v. Poland, no. 22933/02, §
66, 5 January 2010). The Government have not denied any of the above
evidence or at least brought proof of other cases which were decided
promptly by the IAB. It follows that these proceedings cannot be
considered to determine requests speedily as required by Article 5 §
4 of the Convention (see, mutatis mutandis, Rehbock v.
Slovenia, cited above §§ 82-86, in which the Court
considered that a delay of twenty-three days in deciding on the
applicant's claims for immediate release was excessive, Khudyakova
v. Russia, no. 13476/04, § 99, 8 January 2009 and
Kadem v. Malta, cited above, §§ 43-45,
where the Court held that periods of fifty-four and seventeen days
respectively for examining an appeal against proceedings concerning
detention pending extradition had been too long). For all the above
reasons the Court considers that the proceedings before the IAB
cannot be considered as satisfying the requirements of Article 5 §
4 of the Convention.
- Lastly,
the Government submitted that there also existed a constitutional
remedy of which individuals could avail themselves to complain about
the length of their detention. In this respect the Court reiterates
that constitutional proceedings in Malta are rather cumbersome for
Article 5 § 4 purposes and that lodging a constitutional
application could not ensure a speedy review of the lawfulness of an
applicant's detention (see Sabeur Ben Ali v. Malta,
cited above, § 40, and Kadem v. Malta, cited above §
53). The Government have not submitted any information or case-law
capable of dispelling this conclusion. In these circumstances, the
Court remains of the view that pursuing a constitutional application
would not have provided the applicant with a speedy review of the
lawfulness of his detention.
- The
foregoing considerations are sufficient to enable the Court to
conclude 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.
- 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.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
- The
applicant complained that his detention following the determination
of his asylum claim had been arbitrary and unlawful, in terms of
Article 5 of the Convention, which in so far as relevant reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
- The
Government contested that argument.
A. Admissibility
- The
Government submitted that the applicant had remained passive and even
if the remedies available were limited the applicant should have
pursued them. It followed that it was not for the Court to speculate
on the outcome that such proceedings might have had, had they been
undertaken.
- In
so far as the Government's contention may be understood as an
objection of non-exhaustion of domestic remedies, the Court has
already held that the applicant did not have at his disposal an
effective and speedy remedy for challenging the lawfulness of his
detention (see paragraphs 46-47 above). It follows that any such
objection must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that his detention for more than eighteen months
after the determination of his asylum claim had been arbitrary,
unlawful and not in compliance with the requirements of the
Convention as established in the Court's case-law. The Government had
in place two policies regulating detention, namely, a policy for the
release of asylum seekers after a period of twelve months from,
according to the applicant, their arrival (see paragraph 17 above,
which states that the period starts to run from detention) if their
asylum claim is still pending, and secondly, the 2005 general policy
on rejected asylum seekers or immigrants who do not request asylum
which held that no immigrant shall be kept in detention for longer
than eighteen months (see paragraph 16 above). These policies and the
one relating to exceptions to detention were subject to change by
Government at their discretion. Moreover, the unclear procedures in
this respect were devoid of procedural safeguards, they could not
therefore be considered as accessible and precise. Thus, the limited
review of detention and the extremely poor conditions of detention
also needed to be considered.
- The
applicant further submitted that the duration of his detention had
been excessive and not determined by an assessment of the effective
possibility of return but by a pre-established policy which applied
independently of the individual circumstances of the case. Moreover,
while in detention he had never been approached by the immigration
authorities about the subject of his removal or informed of the stage
of the removal procedure. Neither had the Government demonstrated in
any way that removal proceedings had been undertaken with due
diligence. Indeed, in 2010, although released from detention, the
applicant was still in Malta.
- The
Government submitted that from 27 June 2007 to 6 January 2009
the applicant had been detained under Article 5 § 1(f) in
accordance with Articles 5 (1) and 14 of the Immigration Act (see
relevant domestic law above), provisions which were both accessible
and precise. Consequently, the detention had been lawful. Indeed,
according to the Government the twelve-month limit started to run
from the date when an individual applied for asylum. Thus, the asylum
claim having been decided on 18 July 2007, the decision was taken
within the one-year time-limit provided by European law. Therefore,
the relevant provisions of the Directive 2003/9EC of 27 January 2003
of the European Union did not apply to the case in question as the
applicant had ceased to be an “asylum seeker” on 18 July
2007. However, even if this were not the case, the Government argued
that access to the labour market did not entail freedom from
detention, as both were not incompatible. The Government further
submitted that both its policies on detention (mentioned by the
applicant above) were reasonable in respect of duration considering
the intricate problems involved in the removal of undocumented
immigrants. The applicant's allegation of a blanket application of
these policies to all immigrants was untrue as Malta had no desire to
keep irregular immigrants in detention on its territory if it could
repatriate them. However, this proved difficult because of the lack
of cooperation between immigrants and their countries of origin.
- Moreover,
individuals did have the possibility of review by an independent
judicial authority, with the assistance of legal counsel.
Furthermore, conditions of detention were adequate considering the
large influx of migrants on such a small island which had limited
financial and human resources.
- The
Government submitted that the applicant had landed in Malta without
any documentation and although his nationality and identity had been
established, it had not been possible to arrange his removal. The
police had unsuccessfully tried to obtain travel documents for the
applicant from the Algerian authorities through the intervention of
the Ministry of Foreign Affairs. Moreover, the applicant had not
shown any interest in being repatriated or sent to another
destination. Thus, the Government submitted that his detention of
eighteen months (in accordance with Government policy) pending
removal had been due to the applicant's lack of cooperation and had
therefore been necessary, justified and not excessive.
2. General principles
- Article
5 enshrines a fundamental human right, namely the protection of the
individual against arbitrary interference by the State with his or
her right to liberty (see Aksoy v. Turkey, 18 December 1996, §
76, Reports of Judgments and Decisions 1996-VI). The text of
Article 5 makes it clear that the guarantees it contains apply to
“everyone”.
- Sub-paragraphs
(a) to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds on which persons may be deprived of their liberty
and no deprivation of liberty will be lawful unless it falls within
one of those grounds (see Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008-...). One of
the exceptions, contained in sub-paragraph (f), permits the State to
control the liberty of aliens in an immigration context.
- Article
5 § 1 (f) does not demand that detention be reasonably
considered necessary, for example to prevent the individual from
committing an offence or fleeing. Any deprivation of liberty under
the second limb of Article 5 § 1 (f) will be justified,
however, only for as long as deportation or extradition proceedings
are in progress. If such proceedings are not prosecuted with due
diligence, the detention will cease to be permissible under Article 5
§ 1 (f) (see Chahal v. the United Kingdom, 15 November
1996, § 113, Reports 1996 V).
- The
deprivation of liberty must also be “lawful”. Where the
“lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural
rules of national law. The words “in accordance with a
procedure prescribed by law” do not merely refer back to
domestic law; they also relate to the quality of this law, requiring
it to be compatible with the rule of law, a concept inherent in all
Articles of the Convention. Quality in this sense implies that where
a national law authorises deprivation of liberty, it must be
sufficiently accessible and precise in order to avoid all risk of
arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55,
ECHR 2001-II, citing Amuur v. France, 25 June 1996, § 50,
Reports 1996-III).
- Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness. It is a fundamental principle that no detention which
is arbitrary can be compatible with Article 5 § 1 and the notion
of “arbitrariness” in Article 5 § 1 extends beyond a
lack of conformity with national law, so that a deprivation of
liberty may be lawful in terms of domestic law but still arbitrary
and thus contrary to the Convention (see Saadi v. the United
Kingdom, cited above, § 67). To avoid being branded as
arbitrary, detention under Article 5 § 1 (f) must be carried out
in good faith; it must be closely connected to the ground of
detention relied on by the Government; the place and conditions of
detention should be appropriate; and the length of the detention
should not exceed that reasonably required for the purpose pursued
(see A. and Others v. the United Kingdom [GC], cited above, §
164).
3. The Court's assessment
-
The Court notes that the applicant's detention in prison fell
initially under Article 5 § 1 (c), namely, the lawful arrest or
detention of a person effected for the purpose of bringing him before
the competent legal authority on reasonable suspicion of having
committed an offence. It subsequently fell under sub-paragraph (a),
namely, the lawful detention of a person after conviction by a
competent court. 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 27 June 2007, the date when the applicant was placed in a
detention centre pending the processing of his asylum claim, to 6
January 2009, 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, on 24 April 2007,
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 must determine whether the duration of the detention was
excessive and whether the authorities pursued the deportation
proceedings with due diligence.
- The
Court observes that the delay in the present case is not as striking
as that in other cases (see Chahal, cited above, and
Raza v. Bulgaria,
no. 31465/08, 11 February 2010, where the duration was of more than
three and two and a half years respectively). However, the
delay was not due to the need to wait for the courts to determine a
legal challenge, the applicant's asylum claim having been determined
before his detention. Although the identity and nationality of the
applicant had been determined, the Government submitted that
repatriation had been difficult as the applicant was undocumented,
the Algerian authorities had refused to issue the relevant documents
and the applicant had been unwilling to cooperate. The Court notes
that the Government have not submitted any details as to the
procedures initiated save that the police had attempted to obtain
such documents through the intervention of the Ministry of Foreign
Affairs. They have not submitted information about the frequency of
such requests or whether any other avenues were explored. The Court
considers that while it is true that the Maltese authorities could
not compel the issuing of such a document, there is no indication in
the Government's observations that they pursued the matter vigorously
or endeavoured entering into negotiations with the Algerian
authorities with a view to expediting its delivery (see Raza v.
Bulgaria, cited above, § 73; Tabesh v. Greece,
no. 8256/07, § 56, 26 November 2009; and, conversely,
Agnissan v. Denmark (dec.), no 39964/98, 4 October 2001).
- The
Government blamed the applicant for his unwillingness to cooperate.
However, assuming the Government were right in their allegation, the
Court considers that it must have become clear quite early on that
the attempts to repatriate him were bound to fail as the applicant
had refused to cooperate and/or the Algerian authorities had not been
prepared to issue him documents. Detention cannot be said to have
been effected with a view to his deportation if this was no longer
feasible (see Mikolenko v. Estonia,
no. 10664/05, §§ 64-65, 8 October 2009). Indeed, the
Court notes that to date, a year and a half after his release, the
applicant is still in Malta.
- Moreover,
the Court finds it hard to conceive that in a small island like
Malta, where escape by sea without endangering one's life is unlikely
and fleeing by air is subject to strict control, the authorities
could not have had at their disposal measures other than the
applicant's protracted detention to secure an eventual removal in the
absence of any immediate prospect of his expulsion.
- In the light of the above, 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.
- In
such circumstances the Court will move on to determine whether the
detention was lawful under national law, effected “in
accordance with a procedure prescribed by law” and, in
particular, whether there existed sufficient guarantees against
arbitrariness.
- The
Court is ready to accept that notwithstanding the various policies,
the accessibility and precision of which are doubtful, the
applicant's detention was based on Articles 5 and 14 of the
Immigration Act. However, the Court must consider 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 (see, mutatis
mutandis, Muminov v. Russia,
no. 42502/06, § 122, 11 December 2008). 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 (see paragraphs 46-47 above),
and the Government have not pointed to any other normative or
practical safeguard. It follows that the Maltese legal system did not
provide for a procedure capable of avoiding the risk of arbitrary
detention pending deportation (see, mutatis mutandis,
Soldatenko v. Ukraine, no. 2440/07, § 114,
23 October 2008).
- In
these circumstances the Court finds it unnecessary to examine the
applicant's conditions of detention, which it reiterates must be
compatible with the purposes of detention.
- 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.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- The
applicant complained that upon being apprehended after a long sea
journey he had not been provided with the legal and factual grounds
for his detention in terms of Article 5 § 2 of the Convention,
which reads as follows:
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
-
The Government contested that argument.
A. Admissibility
- The
Court has already held that it is not open to it to set aside the
application of the six-month rule, solely because a Government have
not made a preliminary objection to that effect (see Blečić
v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 III).
- The Court reiterates that where there is no effective
remedy, the six-month period runs from the date of the omission
complained of, or from the date when the applicant learned about the
omission (see Moroko v. Russia, no. 20937/07, §
34, 12 June 2008). Applied to the present case, this means the date
when the applicant was first arrested, namely on 24 June 2006 (see
paragraph 7 above) and therefore more than six months before the
lodging of this application with the Court on 6 March 2008.
- It follows that this complaint is inadmissible for
non-compliance with the six-month rule set out in Article 35 §
1 of the Convention, and is rejected pursuant to Article 35 § 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 300,000 euros (EUR) in respect of non-pecuniary
damage in respect of the alleged violations of Articles 3 and 5 §§
1, 2, and 4 of the Convention.
- The
Government submitted that the claim was exorbitant and could only be
equated to serious Article 3 violations dealing with torture.
- The
Court notes that it has found a violation of Article 5 §§ 1
and 4. The Court therefore awards the applicant EUR 12,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection based on non-exhaustion of domestic remedies in respect of
the complaint under Article 5 § 4 of the Convention and declares
the complaints concerning Article 5 §§ 1 and 4 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 4 of the Convention and dismisses the above-mentioned
objection;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
4. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
