Arbitrary Detention without Respect for Human Dignity

In Aden Ahmed v Malta the ECHR found that conditions in Malta’s detention centres were not compatible with respect for human dignity. As such they amounted to inhuman and degrading treatment and thus a violation of the prohibition of torture contained in Article 3 of the European Convention on Human Rights.

 

The ECHR concluded in Suso Musa v Malta that Malta’s immigration system had failed to protect him from arbitrary detention.

In both decisions the ECHR was critical of the lack of available remedies to challenge the lawfulness of detention, particularly when proceedings for removal are not in place. In both cases, this amounted to a breach of Article 5 of the Convention on the right to liberty and security.

 

The experiences of Suso Musa and Aden Ahmed cannot be characterised as isolated or exceptional. Malta’s detention centres have attracted widespread criticism from various human rights organisations including: Human Rights Watch; the International Commission of Jurists; Medicins Sans Frontières; Council of Europe Commissioner for Human Rights; European Network Against Racism; and Amnesty International. Detention in Malta is akin to punishment for arriving by boat and seeking asylum and has proven to be ineffective as a deterrent.

 

The ECHR heard Aden Ahmed, a Somali national, was detained for 14 and a half months. She was initially housed in Ta’Kandja Detention Centre, the first gender segregated facility opened in Malta in 2009, in a dormitory with 40 other women and sometimes children. The dorm was exposed to the elements; hot during summer and bitterly cold in winter with insufficient provision of blankets to keep warm. Access to an open air exercise yard was minimal.

 

Aden Ahmed escaped, travelled to Holland and was returned to Malta under the Dublin II Regulation. She was sentenced to six months imprisonment for escaping detention and leaving the country with false documents. She miscarried during her time in prison and complained of inadequate health facilities in both prison and later when she was returned to detention.

 

In Lyster Barracks Detention Centre, Aden Ahmed was housed with 22 other women in bunk beds with no lockers or cupboards for personal items. Exercise was possible for up to one and a half hours per day in a small, dusty but open air yard. Access to this yard was denied for 3 months of her period of incarceration. Fed chicken, pasta and rice, the diet in detention was inappropriate for Aden Ahmed’s vulnerable state of health. There was no access to the internet and credit for phone calls was available but did not allow for long-distance calls. All but two of the Detention Service staff were female, reflecting its composition of seconded personnel from the Armed Forces of Malta and the Malta Police.

 

An exception to mandatory detention exists for those who are assessed as ‘vulnerable cases’. The assessment is carried out by a Government Agency. Outcomes are not provided in writing and there is no avenue for appeal. Aden Ahmed was not assessed as vulnerable, despite having depression, insomnia, gynaecological problems and physical pain, raising questions around the adequacy of these vulnerability assessments.

 

The above cases and their consequences require further interrogation. Belgium was recently fined by the ECHR for returning an asylum seeker to Greece in MSS v Belgium and Greece, where conditions for asylum seekers were also found to be degrading and inhumane. The cases may therefore have implications for the compatibility of the Dublin II Regulation and Malta.