An indictment of Malta’s defective asylum system that hinders human-rights protection: Case of A.D. v. Malta [App no. 12427/22]

Guest post by Carla Camilleri. Carla Camilleri is a lawyer and the Assistant Director of aditus foundation, a non-profit organisation established in Malta. The legal representation of the case was carried out by lawyers working for aditus and JRS Malta, in collaboration with Advancing Child Right Strategic Litigation, ACRiSL. The AIRE Centre, the International Commission of Jurists, The Global Campus of Human Rights and the European Council on Refugees and Exiles submitted joint interventions after being granted leave to intervene by the Court.

“instead of taking relevant action, the authorities considered that the applicant – a presumed minor, suffering from tuberculosis, PSTD and depression, who was in need of medical support and of an improvement of living conditions – was to move from a regime of “restriction of movement” to detention”

para 130

The blog post scrutinizes the flaws inherent in Malta's asylum system, drawing attention to the stark realities faced by a minor asylum seeker named Alex (his name has been changed to protect his identity). Alex's traumatic journey, from a perilous sea rescue to prolonged detention, serves as a poignant illustration of the systemic challenges within Malta's treatment of vulnerable individuals seeking refuge. This summary delves into the intricate legal considerations under Article 3, Article 5, and Article 13 of the European Convention on Human Rights (ECHR) as they pertain to Alex's case.

Considerations of Article 3

The examination of Article 3 of the ECHR reveals the grave violations Alex endured during his 225-day detention in Malta. The conditions of his initial detention period were marked by a lack of proper documentation justifying his confinement, inadequate sanitary facilities, and a distressing absence of warm clothing during winter. Despite claiming to be a minor upon arrival, Alex was detained alongside adult men, a practice incongruent with humanitarian standards.

During the second detention period, ostensibly due to public health concerns, Alex faced further challenges. Despite being diagnosed with Tuberculosis, he was detained with adults, contrary to the Juvenile Court's order for accommodation in a place adapted for minors. The lack of appropriate living conditions, shared rooms, and restricted access to outside areas exacerbated his mental health struggles.

The third period of detention, characterized by isolation in a metal container, painted a bleak picture. Alex's mental health deteriorated significantly, with documented instances of depression and hallucinations. Repeated requests for release on the basis of his age and mental health were consistently denied, underscoring a profound disregard for his well-being.

From the outset, the Court held that Alex’s situation amounted to deprivation of liberty and it was the responsibility of the Maltese authorities not to subject him to conditions that would constitute inhuman and degrading treatment. The assessment of the level of severity needed to fall within the scope of Article 3 depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and the sex, age and state of health of the applicant (see Khlaifia and Others v. Italy [GC], no. 16483/12). The Court looked at the length of detention in specific conditions (See Aden Ahmed v. Malta, no. 55352/12), the lack of personal space (See Karalevičius v. Lithuania, no. 53254/99), other aspects of physical conditions such as exercise and access to open air (See Story and Others v. Malta, nos. 56854/13, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13), and the specific situation of children seeking asylum (See Tarakhel v. Switzerland [GC], no. 29217/12, Popov v. France, nos. 39472/07 and 39474/07) and appropriate medical care (See Ghavtadze v. Georgia, no. 23204/07; Blokhin v. Russia [GC], no. 47152/06).

The European Court of Human Rights (ECtHR) held Malta accountable for violating Article 3, citing the inhuman and degrading treatment inflicted upon Alex. The court considered the cumulative impact of age-related considerations, health status, and material conditions, emphasizing the necessity for humane treatment irrespective of an individual's vulnerability.

Consideration of Article 5

The Court found the 2nd period of detention on public health grounds to be arbitrary and in violation of Article 5(1). The ECtHR based its findings on the fact that the Maltese courts did not issue any judicial order allowing for the detention on health grounds as they are empowered to do under the national law. The restriction of movement order issued only allows for the restriction of movement and not detenion.

Futhermore, despite the seriousness of Tuberculosis, the court found that the Maltese authority did not detain Alex in a hospital and they themselves changed his residence a number of times irrespective of any contamination risks.

The third period of detention, orderd under the guise of determining identity and nationality for the purposes of his asylum application, raised additional concerns. The court scrutinized the legality of the detention, emphasizing the importance of good faith, appropriateness of conditions, and a reasonable duration. The delayed age assessment process and lack of clarity regarding outstanding information further contributed to the court's conclusion of Article 5(1) violations.

The court acknowledged that while the third period had a legal basis, it failed to align with the principles outlined in Article 5(1). The detention's connection to the prevention of unauthorized entry, compounded by delays and inadequate consideration of Alex's vulnerable state, underscored its arbitrary nature.

Consideration of Article 13

Article 13 of the ECHR, concerning the right to an effective remedy, reinforces the notion that Malta's asylum system was ill-equipped to address Alex's grievances. The court reiterated its stance on Malta's ineffective constitutional proceedings, emphasizing the excessive duration of remedies. Previous cases against Malta were cited to substantiate the claim that the country failed to provide timely and effective remedies.

The Court again reiterated that Maltese constitutional redress proceedings are ineffective for complaints relating to detention conditions and therefore the Government’s plea of non-exhaustion of national remedies was rejected (see S.H. v. Malta, no. 37241/21, and Suso v. Malta, no 42337/12, Feilazoo v. Malta, no. 6865/19 and Aden Ahmed v. Malta, no. 55352/12).

In line with the above previous decisions, the ECtHR held that Malta's constitutional proceedings were inadequate, particularly regarding the excessive duration. The court called for the establishment of proper administrative or judicial remedies to ensure the timely determination of complaints, a recommendation yet to be implemented by Malta.

Conclusion

In conclusion, the case of A.D. v. Malta sheds light on the deficiencies within Malta's asylum system, as exemplified by Alex's distressing journey. The ECtHR’s verdict, highlighting violations under Article 3, Article 5, and Article 13, underscores the urgent need for systemic reforms. Malta's persistent disregard for the well-being of vulnerable asylum seekers, as highlighted in the CPT Report on the visit to Malta in 2020 and the and the report of the Council of Europe Commissioner for Human Rights following her visit to Malta in 2021, coupled with a determination to continue implementing these illegal practices,, raises concerns about the country's commitment to human rights. Alex's ordeal, though emblematic, serves as a catalyst for broader discussions on the need for compassionate and effective asylum systems across Europe.

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