(Application no. 24340/08)
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,
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:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum Procedures
“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.”
(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(3) Where an appeal is lodged against a negative decision, access to the labour market shall not be withdrawn during the appeal stage.
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
“(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
(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
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)
“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)
The case is currently adjourned for judgment to June 2010.
“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.”
“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.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
1. The Government's objection of non-exhaustion of domestic remedies
1. The parties' submissions
2. General principles
The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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.
1. The parties' submissions
2. General principles
3. The Court's assessment
IV. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
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.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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