January 12, 2024
by Felix Peerboom
On 17 October 2023, the European Court for Human Rights (ECtHR, the Court) published its ruling in A.D. v. Malta (press release available in English and French). The Court’s condemnation of Malta in this case for its ill-treatment of the applicant — a vulnerable asylum-seeker and presumed minor suffering from tuberculosis (TB), Post-Traumatic Stress Disorder (PTSD), and depression — is further evidence of the continuous failings of the Maltese asylum system. By a unanimous decision, the Court ruled in favour of the applicant, holding that Malta infringed his rights under Articles 3, 5, and 13 European Convention on Human Rights (ECHR, the Convention).
On 24 November 2021 the applicant (A.D.) was rescued at sea and taken to Ħal Far Initial Reception Centre (the ‘China House’) in Malta (§ 5-6). As he could not provide any evidence of being negative for Covid-19, A.D. was issued a two-week Quarantine Order (§ 7). Despite claiming to be a minor from the moment of arrival, the applicant was reportedly accommodated with several adults who he had originally arrived with (§ 9-10). On the ground that A.D.’s subsequent TB-diagnosis posed a risk to public health, the Maltese authorities issued him with a Restriction of Movement on Public Health Reasons Order. On that basis he was detained in ‘the China House’ until 30 December 2021 (§ 12-14).
A few weeks earlier, on 6 December 2021, a Maltese Juvenile Court ordered A.D. to be placed in accommodation without adults (§ 16). On 30 December 2021 he was moved to Zone 4 of the Safi Detention Centre (the ‘Safi Barracks’). The Government argued that this was done to adhere to the Juvenile Court’s order. The applicant disputed this, claiming that in the ‘Safi Barracks’ he was once more accommodated with adults (§ 17). On 2 February 2022 A.D. was relocated again, this time to Zone 8 of the Safi Detention Centre (the ‘container’) (§ 20). According to A.D., he spent most of his time there in total isolation (§ 44).
In the meantime, the grounds for A.D.’s detention changed. While initially detained because of his TB, on an unspecified date he applied for asylum in Malta. On 10 February 2022, A.D. was presented with a detention order in that connection. He was held in ‘the container’ until an unspecified date in June 2022, before eventually being released one month later (§ 77).
While the Government disputed his accounts (§ 11, 20, 94, 98 & 100), A.D.’s descriptions of his time in the ‘China House’, ‘Safi Barracks’ and ‘container’ paint a bleak picture of Malta’s detention facilities (§ 10, 18, and 20). Reportedly, despite being a presumed minor, A.D. was repeatedly detained with adults. Additionally, the applicant complained of a lack of access to drinking water and proper sanitary facilities; being deprived of access to outdoor areas; having no possibility to contact the outside world, and; a lack of air ventilation, resulting in feelings of suffocation. All the while, he was not properly informed about the grounds for his detention (§ 6, 20, 34, 86 & 91), nor about any organisations offering him legal services (§ 34 & 91). A.D. went through all of this while suffering from physical and mental ailments, without receiving proper psychological care (§ 130). Having exhausted all local remedies he lodged an application with the ECtHR, alleging that Malta had violated his rights under Articles 3, 5, and 13 ECHR.
The ECtHR dealt with the applicant’s complaints in consecutive order, eventually unanimously ruling that Malta had violated his rights Articles 3, 5, and 13 ECHR.
A.D.’s first complaint was that the conditions of his detention constituted inhuman treatment. On this issue, the Court starts by reiterating its settled case law, clarifying that, in order for Article 3 to be violated the concerned treatment must reach a minimum level of severity. Whether it does, depends on the circumstances of each case — including the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (Khlaifia and Others v. Italy, § 159). The Court then repeats its jurisprudence regarding detention of minors. When contemplating whether their detention amounts to a violation of Article 3, the Court considers their age, the length of detention, the material conditions in the detention facilities (S.F. and Others v. Bulgaria, § 79-83), and the availability of proper medical and psychological care (Rooman v. Belgium, § 145-146).
Relying on two reports investigating Maltese detention facilities, the ECtHR corroborates the applicant’s descriptions of the ‘China House’ and ‘Safi Barracks’ (§ 131). Regarding his confinement in the ‘container’, the Court is critical of the fact that, as a presumed minor, A.D. was forced to spend more than a month in complete isolation (§ 128). The Court also disapproves of A.D.’s lack of access to proper psychological care. It holds that ‘… instead of taking relevant action, the authorities considered that the applicant – a presumed minor, suffering from tuberculosis, [PTSD] 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.’ (§ 131). The Court fails to see how that decision complies with the principle of the best interest of the child. Considering all of this, the Court considers there to be more than enough evidence to conclude that the applicant’s conditions of detention constituted inhuman and degrading treatment (§ 135-136).
The applicant additionally complains that his detention amounted to an arbitrary deprivation of liberty.
The Court reiterates that for any deprivation of liberty to be justified, two conditions must be fulfilled. Aside from falling within one of the exceptions in Article 5(1)(a-f), detention must occur in accordance with a procedure prescribed by law (Dennis Irvine v. Belgium, § 125).
According to the Government, both conditions were fulfilled in A.D.’s case. It justifies his detention in the ‘China House’ and ‘Safi Barracks’ on public health grounds. The Government claims that, in accordance with Maltese administrative law, A.D. could be detained to avoid him spreading his TB — thus falling under Article 5(1)(e) (§ 155). Furthermore, it argues that under domestic criminal law, deliberately infecting another person with an infectious disease is a criminal offence — thereby additionally justifying A.D.’s detention under Article 5(1)(b) (§ 156). Regarding the applicant’s confinement in the ‘container’, the Government claims that this took place in accordance with Maltese asylum law, to prevent A.D.’s unauthorised entry into Malta — thus falling under Article 5(1)(f) (§ 176).
The ECtHR rejects all of the Government’s submissions in relation to Article 5 ECHR. Regarding its arguments under Article 5(1)(e), to avoid his TB from spreading, the Court notes that no judicial order had been issued for such detention (§ 165). While Maltese law allows administrative authorities to take measures to prevent the spreading of infectious diseases, those do not include detention. Therefore, the Government’s actions were not in accordance with national administrative law and fail to meet the criteria of a justified deprivation of liberty (§ 166).
Regarding the Government’s argument that the spreading of TB constitutes an offence under Maltese criminal law, and that A.D.’s detention therefore falls under Article 5(1)(b), the Court reiterates that this provision can only be relied upon if the concerned offence is sufficiently ‘specific and concrete’. This requires, firstly, that the place and time of its commission, as well as its potential victim(s), are known. Furthermore the perpetrator, despite being informed about the illegality of their planned conduct, must have shown a continued willingness to commit the offence concerned (S., V. and A. v. Denmark, § 83). In this case, A.D. never presented any objections to the restrictions on his movement related to his TB — so much so that the Government did not even try to obtain a court order for such detention. There is thus no indication whatsoever that the applicant would have sought to deliberately contaminate others with TB. Additionally, according to the Court, A.D.’s case fails to meet the mentioned requirements of specificity and concreteness for it to fall under Article 5(1)(b) (§ 169). All in all, A.D.’s confinement in the ‘China House’ and ‘Safi Barracks’ lacked a necessary legal basis in Maltese (administrative and criminal) law and thus amounts to arbitrary detention prohibited under Article 5 ECHR (§ 171).
Regarding A.D.’s confinement in the ‘container’ for border control purposes, the Court reiterates that such detention must be carried out in good faith; in an appropriate place and conditions, and; that the length of the detention should not exceed that reasonably required for the purpose pursued (A. and Others v. the United Kingdom, § 164). Unlike for his confinement in the ‘China House’ and ‘Safi Barracks’, the Court recognises that there was a legal basis — in Maltese (asylum) law — for A.D.’s detention in the ‘container’. However, the ECtHR doubts the Government’s good faith, given that it seemingly never considered any alternative to detention (§ 190). As such, the Maltese authorities have failed to comply with the requirement that the detention of a minor must always be a measure of last resort (Popov v. France, § 119). The Court thus concludes that A.D.’s detention in the ‘container’ also amounted to a violation of Article 5 ECHR.
Thirdly, A.D. claims that he never had access to an effective remedy to complain about the conditions of his detention, contrary to Article 13 ECHR (§ 192).
On several previous occasions, the Court has declared the available complaint procedures in Malta to not be an effective remedy for the purposes of Article 13 — mainly due to their excessive duration (Suso Musa v. Malta, § 53-55; Story and Others v. Malta, § 83-85; Yanez Pinon and Others v. Malta, § 76; Peňaranda Soto v. Malta, § 40, and; Fenech v. Malta, § 44). As the Government failed to provide any new evidence on this issue, the Court sees no reason why it should depart from its previous case law (§ 202). As such, the ECtHR holds that A.D.’s right under Article 13 was also violated (§ 203).
The Court’s judgement in the present case is noteworthy for two reasons. Firstly, it could be understood as another reminder that States cannot abrogate their Convention obligations in cases of emergency/‘crisis’ (whether based on health concerns or otherwise). Secondly, the judgement highlights how, for over a decade, Malta has operated an asylum framework that is an affront to migrants’ rights, and thus to the Convention as a whole.
In recent years, both the ECtHR (including: N.D. and N.T. v Spain; Hirsi Jamaa and Others v. Italy; E.I. and others v. Greece; M.A. v. Greece) and the CJEU (C‑72/22 PPU, MA; C‑823/21, Commission v. Hungary) have clarified that States cannot use emergency/’crisis’ situations (caused by health concerns or otherwise) to suspend basic protections for migrants. From the ECtHR, the most well-known judgement in this context is the one in N.D. and N.T. v Spain. This case concerned allegations that, following a sudden spike in migratory arrivals (§ 166), Spain collectively expelled the two applicants, as prohibited by Article 4 of Protocol No. 4 to the ECHR — without providing them access to an asylum procedure. While eventually (and controversially) holding that Spain had not acted in violation of the provision (§ 231), the Court stressed ‘… that the problems which States may encounter in managing migratory flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (§ 170)’. The judgement in the case of A.D. could be seen as building upon this earlier case law. Just as States cannot abrogate their Convention obligations in an emergency/‘crisis’ caused by suddenly occurring migratory pressures, the Court here cautions that health concerns/emergencies may also not be used to suspend basic protections for migrants — in this case, their right to not be arbitrarily deprived of their liberty. While recognising that public health concerns (e.g. fears surrounding the spreading of Covid-19 or another infectious disease, such as TB) may constitute a ground for a deprivation of liberty, the ECtHR stresses that such confinement is only legal when it occurs in accordance with a clearly defined legal procedure.
Concerning the ongoing detentions in Malta on grounds of public health, rather unusually, the Court did not limit itself to the issues faced by the applicant but discussed the identified problems in Malta more generally. Building on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) — i.e. that these detentions may result in ‘… hundreds of migrants being de facto deprived of their liberty on unlawful grounds’ — the Court expects that in the future it will be confronted numerous other well-founded applications against Malta (§ 209). It thus presses the Contracting Party to urgently review the legal basis for its public health detention orders (§ 210). According to A.D.’s legal representatives, Malta is yet to implement this recommendation.
The seeming unwillingness of the Maltese Government to review the legality of its ongoing detention of migrants on public health grounds is reflective of its broader stance towards migrant’s rights and the case law of the ECtHR in that connection. Throughout the past decade, Malta’s asylum system has been repeatedly criticised, including by the ECtHR (Suso Musa v. Malta, § 123; Story and Others v. Malta, § 85; Yanez Pinon and Others v. Malta, § 77; Peňaranda Soto v. Malta, § 40-41, and; Fenech v. Malta, § 44). This seems to all culminate in the present ruling, with the Court unequivocally describing the Maltese asylum framework as ‘… a defective national system hindering human rights protection’ (§ 209). Despite the long line of cases against Malta, the present judgement confirms that the Contracting Party continues to detain persons in deplorable detention facilities, on dubious legal grounds, and without providing them with any effective remedy to complain about their plight.
All of this raises questions about Malta’s commitment to its obligations under the Convention — and the rule of law more generally. Despite being admonished by the Court on numerous occasions, it is clear from the above that between 2013 (when the Suso Musa judgement was delivered) and 2023 (when the present judgement was rendered) Malta has generally ignored calls for the improvement of the situation. By continuing the operation of its — in the words of the Court (§ 209) — ‘… defective national system’, the Maltese Government is systematically and deliberately acting in breach of its obligations under the Convention. It remains to be seen whether the judgement in the present case will finally move the Contracting Party to comply with the Court’s instructions to review its domestic asylum framework — this being something it is legally obliged to do. Malta’s general disregard for the Court and the Convention this past decade, however, leads one to question the likelihood of such an outcome.
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