European Court of Human Rights

 

 

Communicated on 28 August 2014

 

FIFTH SECTION

Application no. 68883/13
Omar MAHAMUD AHMED
against Malta
lodged on 1 November 2013

STATEMENT OF FACTS

The applicant, Mr Omar Mahamud Ahmed, is an Somali national, who was born in 1996 and at the time of the introduction of the application, was detained in Safi Barracks, detention centre. He is represented before the Court by Dr M. Camilleri and Dr K. Camilleri, lawyers practising in Valletta.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Background to the case

Mr Mahamud Ahmed entered Malta in an irregular manner by boat on 11 May 2013. Upon arrival, he was registered by the immigration police and given an identification number (13D-020). During the registration process the immigration authorities asked the applicant to provide his personal details including name, nationality and age. He informed them that he was born in 1996 and therefore was seventeen years old.

He was then presented with a Return Decision and a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) and informed him that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and the Order before the Immigration Appeals Board (“the IAB”) within three working days.

The contents of these decisions were not explained to the applicant who could not understand the language in which they were written. Mr Mahamud Ahmed was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”, also in a language he did not understand.

In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the applicant was detained. He was originally detained in Warehouse 1 at Safi Barracks until mid-July 2013 and was subsequently moved to Warehouse 2 in the same Safi Barracks.

2.  Asylum proceedings

Two weeks following the applicant’s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below). He stated on the form that he was born in 1996 and that therefore he was seventeen years old.

3.  The AWAS Age-Assessment Procedure

The applicant submitted that in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age assessment procedures was to be found in the Government’s policy document and subsidiary legislation (see Relevant domestic law below).

In practice, from the information available to the applicant, it appeared that the Age Assessment Procedure consisted of a number of different phases. Individuals were referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age Assessment Team (AAT).

Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment.

If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent him. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual’s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his Office can proceed with the refugee status determination procedure.

The applicant claims that the Age Assessment Procedure has often been criticized, as it is plagued by delays and by a lack of adequate procedural guarantees, including lack of information about the procedure followed and the possibility of appeal. No reasons are ever given for decisions and there is no real possibility to challenge the decision taken by the AAT. In addition, migrants undergoing Age Assessment Procedures are detained throughout the procedures, usually in centres with adults without any special consideration for the fact that they are minors. They referred to the 2012 report of Human Rights Watch entitled ‘Boatride to Detention: Adult and Child Migrants in Malta’[1].

4.  The applicant’s Age-Assessment Procedure

On 14 May 2013, three people from AWAS interviewed the applicant. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test - i.e. an X-ray of the bones of the wrist. He was taken for the FAV test, almost six weeks later, at the end of June 2013. In the absence of a reply, and being unable to contact AWAS the applicant tried to draw their attention by different means, through the detention centre staff, NGOs and even by refusing food.

Twelve weeks later, on 16 September 2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.

Until the date of the lodging of the application, that is five and a half months after his arrival in Malta, the applicant had not received a written decision informing him of the outcome of the age assessment procedure and was still in detention.

5.  Conditions of detention

The applicant claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 1 and 2, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities. Recreational activity was limited and educational activities were virtually non-existent. He was picked on and bullied by fellow detainees, making him feel weak and vulnerable, particularly because he could do nothing to seek redress and there was no psychosocial support.

There was a lack of information, difficulties communicating with the detention staff and the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded (over 300 detainees in the Warehouse) and lacked protection from abuse and victimisation.

He noted that conditions in Warehouses at Safi barracks had been documented in a number of reports. He referred to “Not here to stay”, Report of the international Commission of Jurists on its visit to Malta on 26‑30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis) and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) published on 4 July 2013 (see Relevant International Texts below).

The applicant further noted that in May 2013 he complained to the doctor about a pain in his ear and was told he would get an appointment in hospital with a specialist, but in October 2013 he was still waiting, and could not hear from one ear. He also explained that once he was injured on a Friday and he was taken to the Health Centre only on Sunday, and no interpreter was available to help him communicate with the medical staff there.

6.  Latest developments

The applicant was released from detention on 4 November 2013 after a care order was issued.

B.  Relevant domestic law and practice

1.  The Refugees Act

Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta, reads as follows:

“(1)  A person may apply to the Commissioner, in the prescribed form, and shall be granted refugee protection, where it is established that he faces a well-founded fear of persecution in his country of origin or habitual residence in terms of the Convention.

(2)  A well-founded fear of persecution may be based on events which have taken place after applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin.

(3)  If the Commissioner recommends the acceptance of the application, the Minister shall make a declaration that applicant is eligible for refugee status, or appeal against such recommendation.”

2.  Government Policy

According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:

 “Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”.

The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that:

“Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘child friendly’ manner.

Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that:

(a) Care Orders are only issued in respect of true minors;

(b) provisions for minors are not abused, and

(c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival”.

3.  The Age Assessment Procedure

In order to give effect to this policy, a procedure known as the Age Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ (the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure.

In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows:

 “(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.

(2) In the performance of its functions, the Agency shall:

(a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements;

(b) provide particular services to categories of persons identified as vulnerable according to current policies;

(c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes;

(d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible;

(e) promote the Government’s policy and schemes regarding resettlement and assisted voluntary returns;

(f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies;

(g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users;

(h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research;

(i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and

(j) implement such other duties as may be assigned to it by the Minister or his representative.”

Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 - Legal Notice 243 of 2008, lays down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview.

Regulation 15 (2) deals with the use of medical procedures to determine age within the context of an application for asylum.

Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that:

“an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”.

4.  Other relevant law

Further relevant domestic law concerning the case is to be found in Suso Musa v. Malta (no. 42337/12, §§ 23-32, 23 July 2013).

C.  Relevant international texts

“Not here to stay”, Report of the international Commission of Jurists on its visit to Malta on 26‑30 September 2011, May 2012, extracts concerning conditions in Warehouse One, Safi Barracks:

“The Safi Barracks’ detention centres, Warehouse One and B-Block, and the Lyster Barracks detention centres are located in the two military bases and subject to military jurisdiction.”

“The Warehouse One of the Safi Barracks consists of a large block which is acceded through a small guards office. The entrance gate gives onto the common area with tables, benches and a TV. On the left side of the common area are the “dormitories” where bunk beds are located very near to each other. At the end of the common area there is an exit to a small open-air recreation room, closed with wire.”

“The ICJ delegation found the conditions of Warehouse One of the Safi Barracks to be overcrowded. Even without the possibility of counting the number of detainees held there, the delegation was readily struck by its plain unsuitability in respect of the amount of detainees it held. The distance between the lines of bunk beds was just enough for one person to stand in. There were no cells or bedrooms, the detention centre being constituted of a single open space. There was absolutely no space for even a minimal level of privacy.”

“In the Warehouse One, the ICJ delegation noted that hygienic needs of the detainees were provided for only by a couple of basins, located in the external recreation-yard. These basins were the main source of water for the detainees, which they used to clean, wash items and drink. There were also plastic showers without hot water. In the same external space were located plastic chemical toilets, which appeared unsanitary despite the fact that one of the detainees volunteers to clean them. The number of toilets and showers appeared to the delegation to be insufficient in comparison to the number of people detained.”

“In Warehouse One, the only entertainment was provided by a single television in the main common room and by the recreation-yard.”

“The ICJ considers that in Safi Barracks, the accumulation of poor conditions of detention, including sanitary conditions, together with the apparent existence of cases of psychological instability, with the lack of leisure facilities, the overcrowded conditions and the mandatory length of 18 months of detention brought, at the time of the visit, the situation in the detention centre beyond the threshold of degrading treatment, and therefore in violation of Article 3 ECHR, Articles 1 and 4 EU Charter, Article 7 ICCPR and Article 16 CAT.”

The Report to the Maltese Government on the visit to Malta carried out by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) from 26 to 30 September 2011 published on 4 July 2013, in so far as relevant read:

“However, material conditions of detention were still appalling in the two Warehouses at Safi Barracks. In particular, at Warehouse No. 1, foreign nationals were being held in extremely crowded conditions and the sanitary facilities consisting of seven mobile toilets (without a flush) and seven mobile shower booths, located in the outdoor exercise yard, were in a deplorable state. In fact, the Warehouses are not suitable for accommodating persons for prolonged periods, but should only be used in the event of an emergency.” (paragraph 55)

“At Safi Detention Centre, conditions of detention in the two warehouses were further exacerbated by the total lack of any organised activities.” (paragraph 57)

“The CPT must stress that, given the size of the inmate populations, the current arrangements for the provision of health care were clearly insufficient to ensure that detainees’ health problems were dealt with in a timely and effective manner. The delegation was overwhelmed by complaints from detainees about delays in seeing a doctor (up to several days) and, subsequently, in receiving prescribed medicines (up to one week). In practice, only a limited number of requests (usually five) per detention block were forwarded by detention officers to the nurse on duty on a first-come first-served basis. This was described by many detainees as source of constant tension among themselves.

In the two Warehouses at Safi Barracks, the delegation observed that a significant number of detainees were lying in bed all day in total apathy. Given that nurses never entered the detention areas, the likelihood was great that detainees in need of urgent psychological support remained undetected for a long time. Regrettably, both centres were still not being visited by a psychologist and a psychiatrist.” (paragraph 58)

COMPLAINTS

The applicant complains under Article 3 in respect of the conditions of detention in Warehouse 1 and 2 in Safi Barracks.

He also complains under Article 5 § 1 that his continued detention for more than five and a half months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor closely connected to the purpose of preventing an unauthorised entry. Furthermore he had been detained in conditions which were not appropriate for young asylum seekers.

The applicant further complains under Article 5 § 2 that the Return Decision and Removal Order were provided in a language which he could not understand, thus rendering him unable to challenge his detention.

The applicant also complains that he did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court’s jurisprudence, to challenge the lawfulness of his detention.

QUESTIONS TO THE PARTIES

1.  Did the conditions of the detention centre, namely Warehouse 1 and 2, Safi Barracks, in which the applicant, a minor, had been detained, amount to inhuman or degrading treatment contrary to Article 3?

 

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty suffered by the applicant fall within any paragraph of this provision?

In so far as the detention may have been effected for the purposes of the first limb of Article 5 § 1 (f), i.e. “to prevent effecting an unauthorised entry into the country”, was the detention lawful in terms of domestic law and free from arbitrariness in the context of the first limb of Article 5 § 1 (f), namely was the applicant’s detention compatible with that provision, and in particular given the duration of the age assessment procedure was it closely connected to the ground of detention relied on (see Saadi v. the United Kingdom [GC], no. 13229/03, § 77 ECHR 2008 and Suso Musa v. Malta, no. 42337/12, 23 July 2013)?

 

3. Was the applicant informed promptly, in a language which he understood, of the reasons for the detention under Article 5 § 1 as required by Article 5 § 2 of the Convention?

 

4. Was the applicant able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of the detention?