Tuesday, December 17, 2013
Malta has lost a final appeal against two European Court of Human Rights judgments demanding that migrants are kept in detention for shorter periods and that conditions at closed centres be improved.
The original judgments – in which Malta was also fined €60,000 – were
handed down by the ECHR in July but they were not final as either party
had three months to request that the case be referred to the Grand
Chamber of the Court.
The government challenged the decisions, requesting a referral to the
Grand Chamber in October but the request was rejected last week,
meaning the judgments are now final and legally bind the government to
pay the penalties and move to implement the ECHR’s recommendations.
Besides recommending a shorter stay for detained migrants and an
improvement in conditions, the European Court had also urged the
government to ensure a speedier decision-making process when asylum
seekers challenged the duration of their detention.
The matter will now be passed on to the Committee of Ministers of the Council of Europe that will be monitoring the situation to ensure no other violations take place in similar cases.
The judgments were delivered in two separate but similar cases
involving Ibrahim Suso Musa and a 26-year-old woman, Aslya Aden Ahmed,
who claimed to be from Sierra Leone and Somalia respectively.
‘Government should rethink arrivals policy’
In Ms Aden Ahmed’s case, the Court found that she had received
degrading treatment while in detention when, among others, she was
denied access to open air and exercise for up to three months.
In the other case, the Court ruled that the Maltese authorities had
taken too long to determine whether Mr Suso Musa was eligible for
protection or not and that, therefore, his 23-month stay was excessive.
Neil Falzon, from Aditus, who is also a human rights lawyer
who represented Mr Suso Musa, said the judgment was a victory for Mr
Suso Musa, whose belief in human rights gave him the courage to
challenge a system “that systematically violates the rights of detained
migrants”.
“We hope the government will not see this judgment as an affront but
more as an invitation to revisit the way it is treating asylum seekers
upon arrival,” he said.
“As always, we reiterate our willingness to participate in such a revision process in a spirit of solidarity and cooperation.”
Similarly, JRS director Katrine Camilleri, who represented Ms Aden
Ahmed with Michael Camilleri, said she was not surprised as the judgment
upheld established certain principles.
“The judgment was about individual cases. However, there were
elements that apply to detention conditions across the board, including
the duration.
“JRS calls on the government to review the conditions and policies of
detention and look into new ways of dealing with the reception of
migrants,” she said.
Asylum seekers who arrive in Malta by boat are held in detention
centres for up to 12 months while their claims are processed. Those who
do not apply for asylum or are rejected are held for up to 18 months.
Dr Camilleri noted each case had to be dealt with individually and
the authorities could not set a blanket treatment for everyone.
The government was contacted for a reaction but the newspaper did not receive a reply by the time it went to print.
Suso Musa vs Malta
Sierra Leonean asylum seeker, Mr Suso Musa arrived on a boat in April of 2011.
He was immediately detained by the authorities and his asylum
application was rejected in a decision upheld in April of 2012. He
remained in detention awaiting deportation until March of this year.
• What the Court said:
Mr Suso Musa’s detention before the decision on his asylum request was made had been “arbitrary”.
It took the authorities an unreasonable amount of time to determine whether he should have been allowed to remain.
Once his asylum request was determined, it found that the deportation
proceedings were not executed with due diligence and the applicant was
not allowed a speedy review of the lawfulness of his detention.
• Breached articles:
Articles 5:1 – the right to liberty and security and 5:4 – right to have lawfulness of detention decided speedily by a court.
• Penalty:
€24,000 damages and €3,000 in costs and expenses.
• Recommendations:
The Court requested the Maltese authorities to establish a mechanism
allowing individuals seeking a review of lawfulness of their immigration
detention to obtain a determination of their claim within a reasonable
time-limit.
It also recommended that Malta improves conditions at closed centres and shortens the length of detention of asylum seekers.
Aden Ahmed vs Malta
Somali asylum seeker Ms Aden Ahmed came by boat in February of 2009
and had her initial asylum application rejected in May of 2009.
Later, she escaped to the Netherlands hoping to travel to Sweden to
be reunited with her father, siblings and son but she was returned under
Dublin II regulations and sentenced to six months in prison.
Ms Aden Ahmed miscarried in March 2011 while serving her prison term.
When she was released, she was again detained for immigration purposes.
She was released in August of last year as she had spent the maximum 18 months in detention.
Ms Aden Ahmed suffered from insomnia, recurrent physical pain and episodes of depression while in detention.
• What the Court said:
The Court expressed concern about the conditions in which Ms Aden
Ahmed was detained while at Lyster Barracks, notably possible exposure
to the cold, lack of female staff, lack of access to the open air and
exercise for periods of up to three months, inadequate diet and the
particular vulnerability of Ms Aden Ahmed due to her fragile health and
personal emotional circumstances.
Moreover, deportation proceedings were not in progress while Ms Aden
Ahmed was being detained and the Maltese authorities took no steps to
remove her, so her continued detention was unlawful.
• Breached articles:
Article 3 – prohibition of inhuman and degrading treatment, articles
5:1 and 5:4 This was the first time the Court found a violation of
article 3 against Malta concerning immigration detention conditions.
• Penalty:
€30,000 damages and €3,000 in costs and expenses.