ABDI AHMED A OSTATNÍ proti Maltě

FIFTH SECTION

DECISION

Application no. 43985/13
Abaker ABDI AHMED and others
against Malta

The European Court of Human Rights (Fifth Section), sitting on 16 September 2014 as a Chamber composed of:

Mark Villiger, President,
Ann Power-Forde,
Ganna Yudkivska,
Vincent A. De Gaetano,
André Potocki,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 9 July 2013,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants, who are all Somali is set out in the appendix.

2. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General. The applicants were represented by Dr K. Camilleri, Dr M. Camilleri, Dr C. Camilleri and Dr N. Falzon.

A. The circumstances of the case

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

1. The events of 9 July 2013

4. At around 3 a.m. on 9 July 2013, 102 persons were intercepted by a patrol boat of the Armed Forces of Malta (AFM) some 1.5 nautical miles off the coast of Malta. According to AFM online reports[1], the migrants, of whom forty-one were women and two were minors, were disembarked at around 6 a.m. at Haywharf, Malta, and given medical assistance.

5. Following their disembarkation, the applicants were received by the police and given a tag with an immigration number. At 6.30 a.m. they were placed on buses and driven to the police headquarters in Floriana. According to the applicants, they were asked to alight from the buses so that they could be searched. The single men were then told to get back on the buses and were left there for several hours without any explanation of what was happening. According to the Government, upon their arrival the applicants were given food and water.

6. Meanwhile, the women and children who had alighted from the buses were allowed to sit outside in the yard and were eventually taken into a hall.

7. At around 9.30 a.m. the family units (two couples with children and three couples without children), as well as three pregnant women, were registered by the immigration police, fingerprinted, issued with a return decision and removal order, and transferred to the Lyster Barracks detention centre. Later, the single women (including minors) were also registered and issued with a return decision and removal order. According to the Government, information booklets outlining the applicants’ rights were also distributed in English, Arabic and French.

8. According to the applicants, the single men (including minors) who had been left on the buses went through the same process later in the day, after spending about eight hours on the buses in the heat, during which they had been given water and cake but had allegedly not been allowed to use the toilets. The Government contested that allegation. According to them, the buses were parked in the shade, and it was only in the afternoon that the sun reached the yard where the buses were parked. Moreover, the applicants had been escorted to the sanitary facilities during the processing. According to the Government, eventually – and before 12 noon, given the various requests to use the lavatory and the need to provide shelter from the sun – the single males were transferred to an open hall, where they were supplied with a constant flow of fresh water and were given unrestricted access to toilet facilities.

9. According to the applicants, all of them were issued with a return decision/removal order in English and an information leaflet in Arabic, which most of them could neither read nor understand. As a result, they were not aware that they could appeal against the said decision within three working days under the Immigration Act (see Relevant domestic law below). The Government contested that allegation, noting that the return decision and removal order had been given in the language used by the individual when giving his or her details to the police and when being asked whether he or she wished to be repatriated voluntarily.

10. In the early afternoon, fifteen migrants considered to be vulnerable were transferred to the Lyster Barracks. At around 4.30 p.m. the rest of the group were again placed on buses and transferred to the SAG detention centre (according to the applicants, this was an unknown location somewhere near the airport, later identified as Ta’ Kandja). They were told to shower and were given a clean set of clothes and a meal. According to the applicants, there were no beds there and when they asked whether they would sleep there, they were told that they would be taken elsewhere. The Government submitted that the applicants had had to be taken there because of accommodation problems due to the high influx of migrants who had arrived in May and June.

11. In the evening of the same day, following an interim order issued by the European Court of Human Rights (“the Court”) (see paragraph 20 below), the males were transferred to the Safi Barracks detention centre and the females to the Lyster Barracks detention centre. The Government submitted that the authorities had been unable to commence the transfers to the detention facilities until 10.30 p.m. because the above-mentioned process of feeding and showering had taken so long.

12. On that day, the applicants were not asked if they wanted to apply for asylum, nor were their needs for protection or assistance assessed (they were eventually allowed to apply for asylum an unspecified number of days later – see below for details). The Government specified that the pamphlets provided to the applicants shortly after their arrival had contained information about the possibility of applying for asylum. The Government explained that the procedure on the day had respected the usual practice where the immigration police send a list with all the names of the immigrants (as they are all considered to be prospective asylum seekers) to the Refugee Commissioner, who then starts information sessions with the immigrants with the assistance of interpreters. These sessions commence following medical clearance (which takes ten days), or later depending on the influx of arrivals. Immigrants submit their asylum application following those information sessions, and the applications are assigned to case officers at the Refugee Commissioner’s Office. Thereafter a preliminary questionnaire is filled in with the assistance of an interpreter. The Government submitted that the time taken for the registration process also depended on whether it was peak season and on the number of boat arrivals on the day.

13. The applicants noted that the procedure followed in their case had not been the normal one usually undertaken in respect of boat arrivals. The normal procedure was that, upon arrival, migrants were immediately taken to the police headquarters, where they were registered and fingerprinted by the immigration authorities, issued with a return decision/removal order and transferred to immigration detention centres, where they were given time to apply for asylum. They noted that according to declarations made by migrants arriving on other occasions, the registration procedure (concerning arrivals of about 100 individuals) usually took two to three hours, while in this case, by Government admission, it had taken six to ten hours. Moreover, eighty-seven of the applicants (excluding those considered vulnerable) had been taken to a facility which had not been used for that purpose for years. They had been kept there from 4.30 p.m. to 10.30 p.m., presumably to shower, instead of being taken directly to the habitual detention centres, where they could in any event have showered. The information was not made public and the usual NGOs, who had asked for access to the applicants, were not informed.

2. Events occurring in parallel with the above

14. In the early afternoon of the same day, the Times of Malta online carried an article stating that the Government were considering sending the applicants back to Libya[2]. The article included a video in which the Prime Minister was asked whether he was considering sending back the migrants, to which he replied (translation):

“All the options are being considered. This is not a question of pushbacks; this country has to send a message and we are sending a message that we are considering all the options, that we are not pushovers”.

15. To the question whether he was aware that a pushback would be illegal, the Prime Minister repeatedly replied:

“We are considering all options in the interests of the country”.

16. The applicants noted that those declarations came in the wake of repeated statements by the Prime Minister that he was in favour of sending migrants intercepted at sea or otherwise arriving in Malta back to Libya, especially if the country was considered safe. The applicants referred to a debate of 26 February 2013 in the run-up to the general election and to a press conference of 5 July 2013 in which the Prime Minister had declared, “If pushbacks are necessary, they will be used”[3].

17. On hearing the news, NGO and UNHCR representatives approached the police to request authorisation to visit the migrants (then at the police headquarters), but were unsuccessful.

18. Shortly afterwards, a number of news sources confirmed that the Government had booked an Air Malta plane to ferry the migrants back to Libya on two flights planned for that night, at midnight and 4 a.m. respectively. In consequence, in the afternoon of the same day, a group of NGOs, acting as persons concerned in accordance with Rule 39 of the Rules of Court, requested the Court to order the Government of Malta to refrain from deporting the migrants.

19. The practical preparations to effect the return were confirmed by the Prime Minister that afternoon in parliament. He said (translation):

“In theory we have seen how many are children, parents of the children, pregnant women and physically vulnerable and we separated them from the rest of the arrivals. We did so, in the event that if we had to (jekk naslu), and here I must stress ‘if we had to’ – decide to send these people back to Libya, children, their parents, pregnant women and physically vulnerable persons, would be excluded.

During the day we had constant contact with the Libyan Government ... I have to say that I have given instructions to ensure that all the options be logistically ready, meaning that if the immigrants are sent back there must be in place the system by which they will be sent back, with the necessary permits, arrangements and assurances, amongst others that they will be kept in good conditions. While undertaking these considerations we have been verbally informed that a number of NGOs have lodged a request for an interim measure before the ECHR [this Court] to stop a decision which the Maltese Government has not yet taken. We are still waiting for a written confirmation of this procedure and all these points.

... I am informing this House of the situation we find ourselves in today. We, on this side of the House, stood up to be counted. We believe that the situation as is and as is developing is no longer tolerable for our country. I understand that there is a political cost for this, and I am consciously ready to shoulder the responsibility for this cost. However, responsibility must also be borne by those who think that by their (tiegħu) actions they can keep this Government from protecting the interests of the country .... But, just as much as we are carrying responsibility for any decisions we may take, whoever takes decisions in another sense (mod ieħor) must also carry the responsibility. To conclude, I reassure this House that the Government’s, the people’s and the country’s obligations towards the rule of law and the decisions of the ECHR will be respected. We believe that with the point raised today we have put the issue on the agenda. If we do not have confirmation from the ECHR in the coming hours, we will continue to consider all the options before us.”

20. In the meantime the Acting President of the Section to which the case had been allocated decided to accede to the request and indicated to the Government that the immigrants referred to in the request should not be expelled to Libya for the duration of the proceedings before the Court. The Acting President also decided to ask the Government to submit information.

21. In respect of the issuing of the interim measure, the Minister for Home Affairs stated that an option which the Government had been considering would no longer be realistic as they would not act against the Court’s interim order.

22. As indicated above, following the interim order the migrants were transferred to the regular detention centres and detained in accordance with the provisions of the Immigration Act. UNHCR was granted access to the applicants in the evening of the same day. The applicants learnt about the situation and the Government’s original plans only at that time.

3. Government’s replies of 30 July 2013

23. The Government submitted that while different options, including the possibility of returning the migrants to the country of their last departure, were being considered as a possibility, no final decision in this regard had yet been taken by the time the Court issued its interim order.

24. The Government further submitted that following the Court’s order the applicants were taken to detention centres and detained in accordance with the provisions of the Immigration Act. The applicants were given information about their right to apply for refugee status within sixty days (under the Refugees Act – see Relevant domestic law below). The Government noted that any such application would suspend the effects of the removal order handed to the applicants on their arrival, and thus the applicants would remain in Malta until their asylum application had been decided. The applicants also had three working days within which to challenge their removal order, in accordance with the Immigration Act. Moreover, the Government considered that the applicants had access to the domestic courts concerning the decision on their detention and access to the constitutional jurisdictions concerning any other convention or constitutional claims.

25. The Government also noted that by 30 July 2013, six of the 102 applicants had been released from detention on grounds of vulnerability. Moreover, the Refugee Commissioner had held information sessions with all the applicants, a number of interviews had already been held with some of the applicants, and the rest would be interviewed on subsequent days.

4. More recent information

26. By October 2013, all the applicants had applied for asylum by filling in a preliminary questionnaire.

27. According to the information available in July 2014 (see Annex) sixty-two of the applicants were granted subsidiary protection and one applicant was granted temporary humanitarian protection. Twenty-one applicants were still waiting for a final decision (following their appeal) on their asylum claim and fourteen applicants were still waiting for the first-instance decision on their asylum claim. The situation of one of the applicants was unclear; it appears that he had failed to attend the interview before the Refugee Commissioner, which may result in the action being considered as an implicit withdrawal – it transpires that the applicant still wishes to claim asylum.

28. Despite repeated requests by the Registry to the legal representatives, no information was forthcoming about the status of three of the applicants, namely Messrs Abaker Abdi Ahmed, Sharmake Abuker Abdullahi, and Amhed Yousif Mohamud. The applicants’ legal representatives were informed that failure to reply with the requested information may result in the Court striking the application in respect of the relevant applicants out of its list of cases. By their last correspondence of 7 July 2013 the legal representatives confirmed that they were unable to obtain the relevant information concerning these three applicants.

B. Relevant domestic law and practice

1. The Immigration Act

29. The relevant provisions of the Immigration Act, Chapter 217 of the Laws of Malta, provide as follows:

Article 5

“(1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, 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.”

Article 10

“(1) Where leave to land is refused to any person arriving in Malta on an aircraft, such person may be placed temporarily on land and detained in some place approved by the Minister and notified by notice in the Gazette until the departure of such aircraft is imminent.

(2) Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in some place approved by the Minister and notified by notice in the Gazette:

Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is the earlier.

(3) Any person, while he is detained under sub-article (1) or (2), shall be deemed to be in legal custody and not to have landed.”

Article 14

“(1) 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:

Provided that if the person in respect of whom an expulsion order has been made is subject to criminal proceedings for a crime punishable with imprisonment or is serving a sentence of imprisonment, the Minister may give such directions as to whether the whole or part of the sentence is to be served before the expulsion of such person from Malta, and, in default of such directions, such person shall be removed after completion of the sentence.

(3) Nothing in this article shall affect the obligation of any person who does not fulfil or who no longer fulfills the conditions of entry, residence or free movement to leave Malta voluntarily without delay.

(4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party.

(5) Nothing in this article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard. ...”

Article 17

“Notwithstanding any other law to the contrary, no removal order shall be obstructed nor shall the implementation of any such order be delayed by means of any warrant issued under the Code of Organization and Civil Procedure.”

Article 22

“(1) Without prejudice to special provisions which may be made under Part III of this Act (special provisions), the Minister may, if he deems it to be conducive to the public good, make a deportation order against any person.

(2) A deportation order may be made subject to any condition which the Minister may deem proper.

(3) Notwithstanding any other law to the contrary, no deportation order shall be obstructed, nor shall the implementation of such order be delayed, by means of any warrant issued under the Code of Organization and Civil Procedure.”

30. Article 25A deals with the Immigration Appeals Board and its jurisdiction to hear and determine appeals or applications in virtue of the provisions of this Act or regulations made thereunder or in virtue of any other law. The relevant provision can be found in the judgment of Aden Ahmed v. Malta (no. 55352/12, § 34, 23 July 2013).

2. The Refugees Act

31. The Refugees Act, Chapter 420 of the Laws of Malta, in so far as relevant, reads as follows:

Article 8

“(1) A person may apply to the [Refugee] 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 [Refugee] 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.”

Article 14

“(1) A person shall not be expelled from Malta or returned in any manner whatsoever to the frontiers of territories where the life or freedom of that person would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2) The provisions of subarticle (1) shall not apply to a refugee or a person enjoying subsidiary protection in respect of whom there are reasonable grounds for regarding him as a danger to the security of Malta, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community.”

Article 16

“The [Refugee] Commissioner shall ensure as far as possible that the application of this Act is in conformity with accepted international practice, and for this purpose may seek the assistance of the [United Nations] High Commissioner [for Refugees] or of any national or international non-governmental body concerned with refugee matters.”

32. Under Article 4(3) of the Refugees Act, the Refugee Commissioner performs such functions as are conferred on him by the Act, and without prejudice to the generality of the above, examines applications for refugee status. His decision on such an application (“recommendation”) is subject to appeal before the Refugee Appeals Board in accordance with Article 7(1), which provides that the Refugee Appeals Board has the power to hear and determine appeals against a recommendation of the Commissioner. Article 7(9) provides that, notwithstanding the provisions of any other law, but without prejudice to Article 46 of the Constitution of Malta and the provisions of Article 4 of the European Convention Act, the decision of the Refugee Appeals Board are final and conclusive. It may not be challenged and no appeal may lie therefrom before any court of law, except in cases where the provisions of Article 7A apply; this provides that a person who has applied for asylum may make a subsequent application, after a final decision, to the Refugee Commissioner. However, such an application will be considered only on the presentation of new elements or findings relating to the examination of whether the person making the subsequent application qualifies as a refugee, and of which the applicant could not have been aware or which he could not have (previously) submitted.

3. Subsidiary legislation

33. Further relevant provisions can be found in Subsidiary Legislation 420.07, Procedural Standards in Examining Applications for Refugee Status Regulations, which, in so far as relevant, read as follows:

“4. (1) A person who wishes to apply for asylum shall make an application to the Commissioner on the prescribed form which, as far as possible, shall be in a language that the applicant understands.

...

(4) An application shall not be valid unless made within sixty days of the arrival of the applicant in Malta:

Provided that an application may be allowed by the Commissioner, for special and exceptional reasons, after the lapse of sixty days.

...

7. (1) An applicant shall be allowed to consult, at his own expense, in an effective manner, a legal adviser in relation to his asylum application:

Provided that in the event of a negative decision, free legal aid shall be granted under the same conditions applicable to Maltese nationals.

...

12. (1) Notwithstanding the provisions of any other law to the contrary, and except where a subsequent application will not be further examined, or where an applicant is to be surrendered or extradited as appropriate to another Member State pursuant to obligations in accordance with a European Arrest Warrant or otherwise, or to a third country or to international criminal courts or tribunals, an applicant shall not be removed from Malta before his application is finally determined and such applicant shall be allowed to enter or remain in Malta pending a final decision of his application.”

34. Article 15 makes further provision for unaccompanied minors.

4. Code of Organisation and Civil Procedure

35. The relevant articles of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, dealing with the provision of legal aid, in so far as relevant, read as follows:

Article 911

“(1) The demand for admission to sue or defend with the benefit of legal aid in any court ..., in any arbitration which is compulsory by law and before any other adjudicating authority where the benefit of legal aid is by law granted, shall be made by application to the Civil Court, First Hall.

(2) Nevertheless, such demand may also be made orally to the Advocate for Legal Aid.

(3) The decree granting the benefit shall apply to all the courts and adjudicating authorities mentioned in sub-article (1).

(4) The Advocate for Legal Aid shall render his professional services to persons whom he considers would be entitled to the benefit of legal aid, and prior to their obtaining such benefit, prepare and file all judicial acts, which may be of an urgent matter.

The following procedure shall be followed:

(a) the Advocate for Legal Aid, shall file an application in the competent court in his own name requesting that he be authorised to file specific judicial acts, on behalf of a person or persons claiming the benefit for legal aid as he considers the matter urgent;

(b) the competent court shall, in such an event, allow such request unless there are serious reasons to the contrary;

(c) the Advocate for Legal Aid, after the judicial acts are allowed to be filed, shall then follow the normal procedure leading to the appointment or otherwise of an advocate and legal procurator ex officio as provided in this Title:

(5) The Minister responsible for justice shall provide such facilities as are necessary for the proper administration of the benefit of legal aid.

(6) There shall be an Advocate for Legal Aid and the expression ‘‘Advocate for Legal Aid’ in this Code or in any other law includes any other lawyer, officer or public officer designated by the Minister responsible for justice to perform, under the guidance of the Advocate for Legal Aid, any function pertaining to the Advocate of Legal Aid or to the administration of the benefit of legal aid.”

Article 920

“(1) The person admitted to proceed with the benefit of legal aid shall be exempt from the payment of all fees and from giving security for costs; but the plaintiff, or the defendant setting up a counter-claim, as the case may be, shall give a juratory caution to pay the costs, if able to do so, to the opposite party, in case it shall be so adjudged.

(2) Where the party proceeding with the benefit of legal aid is cast in costs, it shall in no case be lawful for the registrar to claim from the successful party the fees due to the registry.”

COMPLAINTS

36. The applicants complained under Article 3 of the Convention

(i) that they would face a real risk of serious harm if returned to Libya, as well as with reference to the threat of indirect refoulement to Somalia; and

(ii) that the treatment received at the hands of the Maltese authorities on their arrival on 9 July 2013 had breached the above-mentioned provision. Plans were being made to deport them to Libya without any individual assessment of each person subject to this measure. They had had no possibility of applying for asylum, or of taking any action to obtain effective protection of their rights (such as having access to information, legal assistance or other legal services). They further referred to the lengthy time period during which the single males had been left on buses in the heat.

37. The applicants further complained of a violation of Article 13 in conjunction with Article 3, in that they had not had an effective remedy against their removal/deportation. On 9 July 2013 they had had no access to any assistance and had been kept in the dark about events concerning their forced deportation. Moreover, they considered that no remedy at the time would have stayed the measures being put forward by the Government and that despite an arguable claim, they would have been deported had it not been for the interim measure of the Court.

38. The applicants also complained that the attempted deportation had violated Article 17 of the Convention in so far as the State had used individuals whom it was supposed to protect as pawns in a political game, disregarding completely the basic human rights of vulnerable people.

39. Lastly, the applicants complained of a violation of Article 4 of Protocol No. 4 in so far as, had they been deported, this would have constituted a collective expulsion, given that no assessment of each applicant’s situation had been undertaken, other than one based on sex and physical condition.

THE LAW

A. Consideration of the application in respect of certain applicants

40. The Court notes that by a letter of 21 May 2014 the applicants, through their legal representatives, were requested to submit updated information concerning their asylum proceedings. In their reply of 28 May 2014 the applicants’ legal representatives informed the Court that they were unable to obtain such information concerning Messrs Abaker Abdi Ahmed, Sharmake Abuker Abdullahi, and Amhed Yousif Mohamud within the stipulated time-limit.

41. Further information was again requested by a letter of 4 June 2014 to the legal representatives. They were informed that failure to reply with the relevant information concerning each applicant may lead the Court to conclude that the respective applicants are no longer interested in pursuing their application and to strike it out of its list of cases in their respect. By a letter of 18 June 2014 the legal representatives informed the Court that they were still unable to provide information about the three mentioned applicants. At their request the President of the Section agreed to extend the time allowed for submission of the information to 7 July 2014.

42. By means of their correspondence of 7 July 2014 the applicants’ representatives informed the Court that they were still unable to provide the requested information concerning Messrs Abaker Abdi Ahmed, Sharmake Abuker Abdullahi, and Amhed Yousif Mohamud.

43. The Court observes that the applicant’s legal representatives have updated the Court about many new facts and the fate of the other ninety-nine applicants. It is therefore likely that the inability to provide such information is a result of the three applicants having become untraceable, or in any event as result of a lack of contact between the mentioned three applicants and the said representatives.

44. In the light of the above, in accordance with Article 37 § 1 (a) of the Convention, the Court finds that these three applicants do not intend to pursue their applications. Also bearing in mind that their complaints are identical to the ones brought by the other applicants, the Court considers that there are no special circumstances regarding respect for human rights as defined in the Convention or its Protocols which require the continuation of the examination of the application in respect of these three applicants.

45. In conclusion, the Court decides to strike the case out of the list in so far as it concerns Messrs Abaker Abdi Ahmed, Sharmake Abuker Abdullahi, and Amhed Yousif Mohamud.

B. The complaint under Articles 3 and 13 of the Convention as a result of the circumstances of 9 July 2013

46. The applicants complained under Article 3 of the Convention about the treatment (which they considered to be in breach of the said provision) they had suffered at the hands of the Maltese authorities. On their arrival in Malta on 9 July 2013, plans were made to deport them to Libya without any individual assessment of each person subject to that measure. They were given no opportunity to apply for asylum or to take action to obtain the effective protection of their rights (such as having access to information, legal assistance or other legal services). Moreover, they complained that the male applicants (except for the two fathers) had been kept in buses for approximately eight hours without the possibility of using toilet facilities.

47. The applicants further complained, under Article 13 in conjunction with Article 3, that they had not had an effective remedy against their deportation, in so far as on 9 July 2013 they had had no access to any assistance and had been kept in the dark as to the events concerning their forced deportation. Moreover, they considered that no remedy at that time would have stayed the measures being put forward by the Government and that despite an arguable claim, they would have been deported had it not been for the interim measure of the Court.

48. The relevant provisions read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. The parties’ submissions

(a) The Government’s submissions

49. The Government submitted that the applicants had not exhausted domestic remedies as they had not brought their complaints before the domestic courts. They referred to a two-fold remedy which they claimed the applicants had at their disposal. The first remedy consisted of a precautionary remedy under the Code of Organisation and Civil Procedure (“the COCP”), whereby the applicants could have asked the courts to order the Government to refrain from deporting them. The second remedy was constitutional redress proceedings.

50. The Government considered that constitutional redress proceedings were speedy proceedings, as a request could be lodged to have the case heard with urgency and those proceedings were also accessible to the applicants. The Government noted that the applicants could avail themselves of legal representation under the legal aid scheme, if they could show that they did not have sufficient funds to engage a lawyer. The Government maintained that legal aid was available to persons in detention and those services could also be used during the appellate proceedings of an asylum application. The Government referred to the booklet “Your entitlements, responsibilities and obligations while in detention”, which provides information on access to legal services and, in so far as relevant, reads as follows:

“You are entitled to legal representation and also to have access to such representation. You must, however, specify what kind of legal assistance you seek (private or legal aid or non-governmental organisation lawyer). You cannot ask for one type of legal aid and then seek to alter your request later. Free legal aid will only be provided at the Appeal stage of your application for refugee protection upon request if you decide to appeal against the Refugee Commissioner’s decision. If you first ask for legal aid and then refuse it, explicitly or implicitly, the final determination of your case will proceed just the same.”

51. The Government submitted that although documentation could not be provided in Somali, some of the applicants understood spoken and written English and had translated to the other applicants the content of the documentation given to them, as well as what had been said by the officials. Indeed, the Government noted that although the Court’s procedure had not been explained to the applicants, they had still managed to institute these proceedings.

52. The Government submitted that in practice, whenever a migrant expressed a request to be given legal aid, the detention official would make contact with the Advocate for Legal Aid for an appointment to be scheduled at the detention centre; the Advocate for Legal Aid would then assist the migrant. Thus, the migrants were not obliged to go to court; as provided for in Article 911 § 2 of the COCP, they could make a verbal request and the expenses relative to the lodging of an application were minimal (EUR 58). Thus, the applicants had easy, unlimited access to legal aid lawyers (with the exception of first-instance asylum applications) and even preferential access, since detention centre staff took care of all the arrangements. They noted that Article 911 (4) also provided for a specific procedure when the matter called for urgency. Nonetheless, migrants had not made proper use of that service, opting to use NGO lawyers. In fact, the Government produced only one example of constitutional redress proceedings being lodged by a person in detention through a legal aid lawyer. Nevertheless, the Government reiterated that the system was accessible, practical and effective and that the applicants had failed to make use of it or even request any legal assistance at any point.

53. The Government further noted that there had been instances where the domestic courts had allowed individuals to institute proceedings in their own individual capacity without the signature of a lawyer and without being represented. They made reference to three cases in the names of Nardu Balzan Imqareb.

54. Lastly, the Government also considered that the applicants could have attempted to bring an action in tort for any damage or loss sustained.

(b) The applicants’ submissions

55. The applicants submitted that constitutional redress proceedings, while adequate in scope, could not be considered as adequate or effective in terms of duration, nor were they accessible.

56. Acknowledging that in the present case, speed was not of utmost importance, the applicants submitted detailed arguments concerning the length of similar proceedings. However, they focused on the lack of accessibility of such remedies for persons in detention, in so far as they lacked access to the legal aid system. The applicants submitted that, whether deliberately or not, the submissions of the Government were misleading. The applicants explained that legal aid within the context of asylum proceedings was provided by a specially designated pool of lawyers set up by the Ministry of Home Affairs and administered by the Third Country Nationals Office within the same Ministry. This special pool had been set up in 2004 precisely because the mainstream legal aid system (provided for in the COCP) was virtually inaccessible to detainees, despite the Refugees Act providing for legal aid for detainees under the same conditions as for Maltese nationals, at the appeal stage of asylum proceedings. Indeed, the local system had not been designed with the needs of detained persons in mind. In their cases, in order to lodge a request they needed to meet with officials from the Office of the Advocate of Legal Aid. Therefore, either they had to be transported to their office or the Advocate for Legal Aid had to visit the detention centres. Given the number of appeals presented each year, it was clear that the detention centre administration and the legal aid system were ill-equipped to cope with the drastically increased work load. As a result, the above-mentioned separate system had been created to deal specifically and exclusively with appeals against decisions of the Refugee Commissioner. That system operated quite smoothly, and contrary to what the Government had implied, most asylum seekers availed themselves of that service. However, asylum seekers did not avail themselves of the regular legal aid scheme, precisely because it was inaccessible to them.

57. The applicants submitted that this state of affairs had been confirmed by the Report of the Working Group on Arbitrary Detention (Addendum Mission to MALTA) (19 to 23 January 2009), which stated in no uncertain terms:

“Maltese laws grant legal aid to persons who are declared as not having the means to access the courts of justice. Persons seeking legal aid have to submit their case at the Office of the Advocate for Legal Aid. The Working Group was informed that the number of legal aid lawyers had decreased from 15 to 8. [para 25, page 7] ... Legal aid for migrants in an irregular situation exists in theory only. Public lawyers are available from a pool designated solely for the asylum procedure. For detention related challenges, there are a very limited number of civil society lawyers available. Legal aid for filing a case in court is virtually inaccessible to the detainees. Persons seeking legal aid have to present their case at the Office of the Advocate for Legal Aid situated in the Law Courts which is impossible for detainees. The few cases challenging immigration detention that have been brought before the courts to date were handled by civil society organizations without the benefit of a waiver of court fees [para 46, page 11]”

58. The same was confirmed by the UNHCR’s Position on Detention of Asylum Seekers in Malta, which stated (at page 19):

“There is currently no system in place to ensure that legal aid lawyers visit detention centres to offer legal services for the purposes of providing access to legal proceedings to challenge detention”

59. The fact that the Government could only cite one case (Mourad Mabrouk vs Ministry for Justice and Home Affairs, 4 February 2009) in which constitutional redress proceedings had been instituted by legal aid lawyers representing a person in detention was a clear indication, if any were needed, of just how inaccessible the system is. Moreover, that case was rather specific since the applicant had lived in Malta for five years and had been married to a Maltese before ending up in immigrant detention as a result of the revocation of his exempt person status. On the contrary, the applicants in the present case had no knowledge of legal proceedings, most of them did not even speak English or Maltese, and no one explained to them what rights they had and what remedies they could have sought. Thus, they could not have known about the institute of legal aid, or how to access it. Indeed, no mention of “mainstream” legal aid was made in the booklet mentioned by the Government and there existed no procedure to access legal aid in a systematic manner. Thus, any right to legal aid on paper was only theoretical and far from practical and effective enough to enable the applicants to undertake the relevant remedy.

2. The Court’s assessment

(a) General principles

60. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). However, the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014).

61. In order to be effective, the remedy required by Article 13 must be available in practice as well as in law (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999‑IV). It must also be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). Accessibility of a remedy in practice is decisive when assessing its effectiveness (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 318, ECHR 201), and particular attention should also be paid to the speediness of the remedial action itself, it not being excluded that the adequate nature of the remedy can be undermined by its excessive duration (see Doran v. Ireland, no. 50389/99, § 57, ECHR 2003‑X).

62. In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005‑III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000‑VIII), as well as a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002‑I, and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66, ECHR 2007‑II).

63. An adequate institutional framework should be in place so as to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests (see Bąkowska v. Poland, no. 33539/02 § 47, 12 January 2010). In this context, the lack of free legal aid may raise an issue as to the accessibility of a remedy (see, in respect of remedies for the purpose of Article 5 § 4, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 141, 22 September 2009, and Amuur v. France, 25 June 1996, § 53 in fine, Reports 1996‑III; and in the context of Article 6 § 1 for the purposes of civil litigation, Airey v. Ireland, 9 October 1979, § 26, Series A no. 32).

(b) Application to the present case

64. It should be clarified at the outset that the assessment that has to be made for the purposes of the Government’s objection of non-exhaustion of domestic remedies in the present case is not whether the applicants had at their disposal an effective remedy on 9 July 2013. That matter would in fact concern the merits of the applicants’ complaint under Article 13, where in the context of the expulsion of asylum seekers, the Court would have to assess whether effective guarantees existed that protected the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see, among other authorities, T.I. v. the United Kingdom (dec.) no. 43844/98, ECHR 2000-III, and M.S.S., cited above, § 286).

65. The matter that has to be addressed in relation to the Government’s objection in the present case is whether, following the Court’s decision (the Rule 39 injunction) indicating to the Government that they should desist from deporting the applicants (and therefore from 10 July 2013 onwards), a decision which has been respected by the Maltese Government, the applicants had access to an effective remedy which they were required to exhaust before continuing their application before this Court.

66. In that light, it suffices to consider the arguments made by the parties in connection with constitutional redress proceedings. In this connection, the Court has no doubt that, in law, the applicants could, after 9 July 2013, have brought proceedings before the constitutional jurisdictions concerning their complaints under Articles 3 and 13 concerning the events of 9 July 2013. It remains to be determined whether such proceedings would have in fact been effective and accessible in the circumstances of the case (compare and contrast, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 206-7, ECHR 2012, where the applicants had already been returned to Libya and where the remedy referred to by the Italian Government was not comparable in both scope and effect to that of constitutional redress proceedings in the Maltese judicial framework).

67. The Court notes that constitutional jurisdictions have the necessary competence to assess the complaints at issue and give adequate redress. Moreover, given that the allegedly precarious situation of 9 July 2013 has now ended and that preventive action is no longer necessary (such as would be the case for example with alleged lack of medical treatment and conditions of detention cases), it cannot, at this stage, be said that the duration of those proceedings renders them devoid of their effectiveness (see, a contrario, Aden Ahmed v. Malta, no. 55352/12, §§ 63-64, 23 July 2013). In that light, concerning the circumstances at issue in the present case, constitutional proceedings must be considered effective.

68. In Aden Ahmed, cited above, the Court, however, noted subsidiarily that there could be an issue in relation to the accessibility of such a remedy, in so far as there appeared to be a lack of a proper structured system enabling immigration detainees to have concrete access to effective legal aid (§ 66). In this connection the Court also refers to its case-law concerning Articles 5 and 6 (see paragraph 63 above).

69. The Court also notes that, in the case of M.S.S. (cited above, § 319), when examining the complaint under Article 13 concerning the shortcomings in the asylum procedure in Greece, the Court noted that the applicant, who clearly lacked the financial means to pay a lawyer, had received no information concerning access to organisations which offer legal advice and guidance. In addition there was a shortage of lawyers on the list drawn up for the legal aid system which rendered the system ineffective in practice. It considered that this situation could also be an obstacle hindering access to the remedy particularly where asylum seekers were concerned. On the same note, in Rahimi v. Greece (no. 8687/08, §§ 79-80, 5 April 2011), the Court rejected the Government’s objection of non-exhaustion of domestic remedies, also because the applicant, a minor in immigrant detention, was not legally represented and the information provided to him concerning remedies was in Arabic and not Farsi (his mother tongue), it thus, could not be understood by him.

70. As to the case at hand, the Court notes that it has not been established that the applicants were unable to communicate with the authorities or understand the information supplied to them, nor has it been established that interpreters were requested and denied to them.

71. The Court further notes that both from the information available to the applicants by means of the information booklet and from what has been confirmed by the applicants, there is in place a legal aid framework, which appears prima facie to be functional for the purposes of appealing against rejections of their asylum requests.

72. The same cannot be said of other court proceedings. Indeed, while the law (the COCP) clearly provides for legal aid for the purposes of constitutional court proceedings, the information booklet makes no reference to legal aid being available for any other type of proceedings except that of asylum appeals. Nor does it transpire that any specific arrangements are in place enabling immigration detainees to have concrete access in practice to effective legal aid, save for the opportunity to make oral requests (through a detention official and eventually with the Advocate for Legal Aid), which are the very first steps in such a process.

73. On the one hand, the Court could accept that the procedure under Article 911 of the COCP (see Relevant domestic law above) could in principle, and assuming good faith and dedication on behalf of the authorities and the Office for the Advocate of Legal Aid, be feasible and functional, even for the purposes of immigration detainees. On the other hand, as it has already had occasion to state a year ago, the fact that the Government were able to supply only one example of an immigration detainee making use of legal aid (in different and more favourable conditions than those of boat people), despite the hundreds of immigrants who reach the Maltese shores each year and are subsequently detained, and who often have no means of subsistence, only highlights the deficiency of the system in practice (see, Aden Ahmed, cited above, § 66). This same deficiency seems to have been recognised by the authorities – who in fact created, as submitted by the applicants, a specific procedure for the purposes of asylum appeals – and has also been highlighted by independent observers (see paragraphs 57 and 58 above).

74. Against this background, the Court still has doubts as to the accessibility in practice of such a remedy (namely, constitutional redress proceedings) to immigrant detainees generally. Nevertheless, in the present case, the Court notes that as from the very first days following 9 July 2013 the applicants in the present case had access to a number of NGO lawyers, who prepared their case before this Court and could explain all the possible options open to the applicants. It is true that the same lawyers/NGOs (even if qualified to plead in the domestic courts – under Maltese law a warrant is required to plead before the courts) should not be expected to incur personally any costs or expenses related to domestic court proceedings (considering that immigrant detainees are usually indigent). However, it has not been sufficiently established that either of their own motion or with the help of their NGO representatives, the applicants in the present case even attempted to make a request for legal aid enabling them to bring constitutional redress proceedings.

75. It follows that, since the applicants did not even attempt that avenue, the Court does not find it established that, in the specific circumstances of the present case, the domestic remedy available was in practice inaccessible. Moreover, the Court notes that the applicants may still at this stage attempt to bring such constitutional redress proceedings, as these proceedings are not subject to a time bar, and if not successful, they may subsequently bring a new application before this Court.

76. In consequence, the complaints under this heading are inadmissible for non‑exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

C. The complaint under Article 3 of the Convention that the applicants would face a real risk of serious harm if returned to Libya, as well as with reference to the threat of indirect refoulement to Somalia.

77. The Court notes that return to Libya with possible further repatriation to Somalia may raise an issue under Article 3, in line with the case of Hirsi Jamaa and Others (cited above). However, the Court has regard to the fact that with particular reference to the specific category of cases involving expulsion measures, it has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v. Russia, no. 656/06. § 59, 11 October 2007, and Dubrov v. Ukraine, (dec.) no.42409/09, 14 June 2011).

78. In the circumstances of the present case, the Court observes that in spite of initial plans to have the applicants surreptitiously returned to Libya, following compliance by the Maltese Government with the Rule 39 measure issued by the Court, the applicants were placed in detention and had the possibility of applying for asylum (within sixty days of their arrival in Malta). Indeed, the information provided by the parties indicates that all the applicants have already availed themselves of that possibility, and to date none of them has received a final determination rejecting their asylum claim (see paragraph 27 above).

79. The Court, thus, notes that in respect of the applicants who have been granted protection there is no risk of expulsion and therefore they cannot claim to be victims within the meaning of Article 34 of the Convention.

80. As to the applicants whose asylum proceedings are pending at first instance or appeal – a decision on an asylum request (namely a recommendation by the Commissioner) may further be appealed against before the Refugee Appeals Board – the Court observes that asylum proceedings suspend the effects of a removal order (see Relevant domestic law at paragraph 33 above). Moreover, in the event of a final asylum refusal and any action being taken for the purposes of actual deportation, the applicants would have the possibility of applying again to the Court to request an interim measure pursuant to Rule 39 at that stage. In view of these considerations, in respect of the alleged attempted deportation of 9 July 2013, the Court considers that these applicants no longer have victim status either (see, mutatis mutandis, Gebremedhin [Gaberamadhien] v. France, (dec.) no. 25389/05, § 36, 10 October 2006).

81. Similarly, in respect of any possible future deportation, such complaint would be premature in the absence of final decisions. Therefore, also for that reason, the applicants in that position cannot at this stage claim to be victims within the meaning of Article 34 of the Convention (see, mutatis mutandis, Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241‑B, and Dubrov, (dec.), cited above).

82. It follows that this complaint in respect of all the applicants is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Other complaints

83. The applicants also complained that the attempted deportation had violated Article 17 of the Convention in so far as the State had used individuals whom it was supposed to protect as pawns in a political game, disregarding completely the basic human rights of vulnerable people.

84. Lastly, the applicants complained of a violation of Article 4 of Protocol No. 4 in so far as, had they been deported, this would have constituted a collective expulsion, given that no assessment of each applicant’s situation had been undertaken, other than one based on sex and physical condition.

85. The Court considers that the complaint under Article 17 does not go beyond the aforementioned allegations of breaches of other provisions of the Convention and therefore no issue arises under Article 17 proper. It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible in accordance with Article 35 § 4 thereof.

86. As to the complaint under Protocol No. 4, the Court notes that the applicants have all applied for asylum in Malta and gone through individual assessment (or may still have the possibility to do so); moreover, they have not been the victims of a collective expulsion. It follows that the complaint is inadmissible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

87. In view of the above and the findings in paragraph 82, the measure indicated under Rule 39 of the Rules of Court does no longer apply.

For these reasons, the Court, unanimously,

Decides to strike the case out of the list in so far as it concerns Messrs Abaker Abdi Ahmed, Sharmake Abuker Abdullahi, and Amhed Yousif Mohamud;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Mark Villiger
Registrar President

Appendix

[1] https://www.facebook.com/ArmedForcesOfMaltaafm

[2] http://www.timesofmalta.com/articles/view/20130709/local/government-considering-sending-migrants-back-to-libya.477273

[3] http://www.independent.com.mt/articles/2013-07-05/news/pm-will-definitely-consider-using-veto-to-obtain-eu-help-1995964420/