THIRD SECTION

DECISION

Application no . 64724/10 Justice OJEI against the Netherlands

The European Court of Human Rights (Third Section), sitting on 14 March 2017 as a Chamber composed of:

Helena Jäderblom , President, Branko Lubarda , Luis López Guerra, Helen Keller, Dmitry Dedov, Alena Poláčková , Georgios A. Serghides, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 November 2010,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Justice Ojei , is a Nigerian national, who was born in 1994 and lives in Amsterdam. He was represented before the Court by Mr F.L.M. van Haren , a lawyer practising in Amsterdam.

A. The circumstances of the case

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

3. The applicant lodged an application for asylum at Schiphol (Amsterdam) Airport on 30 March 2010.

4. On 31 March 2010 he was interviewed about his identity, nationality and travel itinerary ( eerste gehoor ). Confronted with the fact, apparent from the Eurodac database, that he had lodged a previous asylum request in Malta, he admitted that he had done so, claiming to be an adult. He stated that he had spent eighteen months detained in a Maltese reception centre where he had been badly treated. He had been refused asylum in Malta. He had travelled by boat from Malta to Italy and overland from Italy to the Netherlands.

5. A Dublin Claim interview ( gehoor Dublinclaim ) was held on 1 April 2010. The applicant stated that he had left Malta because he had been refused asylum. He alleged that he had been detained underground in a prison.

6. On the same day the applicant, t hrough his counsel, submitted a document containing corrections and additions ( correcties en aanvullingen ) to the report of the Dublin Claim interview and “weighty advice” ( zwaarwegend advies ). He stated, inter alia , that if forced to return to Malta he would be locked up for a year in an underground prison known as “Paola”.

7. On 6 July 2010 the Minister of Justice rejected the applicant ’ s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. The app licant had failed to make out a convincing case that he was at risk of treatment contrary to Article 3 of the Convention; moreover, he could be expected to make use of the domestic remedies offered by Malta if need be.

8. The applicant appealed to the Regional Court ( rechtbank ) of The Hague on the same day. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation.

9. On 3 November 2010 the Regional Court of The Hague (sitting in Haarlem) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her C onventional obligations towards him.

10. Having in the meantime been informed that his transfer to Malta was scheduled for 10 November 2010, on 4 November 2010 the applicant requested the President of the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ) to order a provisional measure in the form of a stay of deportation. On 6 November 2010 t he applicant lodged a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division.

11. On 8 November 2010 the President of the Administrative Jurisdiction Division dismissed the applicant ’ s request for a provisional measure.

12 . On 9 November 2010 the applicant was found to be in a psychiatric state of such seriousness that he was not fit to travel. His flight to Malta was cancelled and he was transferred to an institution for psychiatric treatment.

13. On 31 October 2011 the Administrative Jurisdiction Division dismissed the applicant ’ s further appeal on summary reasoning.

14. On 8 November 2010 the Cour t received from the applicant a request for a stay of expulsion to be indicated to the Netherlands Government. On 9 November 2010 President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Malta for the duration of the proceedings before the Court.

15. The applicant has submitted a medic al statement dated 15 September 2016 from which it appears that he continues to receive psychiatric treatment.

B. Relevant domestic and European law and practice

16. The relevant European, Maltese and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications (( dec. ), nos . 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98 ‑ 117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta , no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta , no. 55352/12, §§ 31-39, 23 July 2013 .

C. Factual information submitte d by the Maltese Government and the applicant ’ s response

17 . By letter of 15 February 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following:

“ 1. When did the applicant arrive in Malta and on what basis did he request protection (asylum, subsidiary protection or other) there? In what manner has this request been dealt with in practice; what was the outcome of the procedure and was the applicant provided with shelter, subsistence and medical care during this time?

The applicant entered Malta in an irregular manner on the 3 rd September 2008. Upon arrival, the applicant was served with a removal order and was put in the detention centre. Whilst in detention, the applicant was housed in a sheltered compound with adequate bedding and was provided on a daily basis with breakfast, lunch and dinner. The applicant was also given clothing and supplies to cater for his personal hygiene. Furthermore, the detention centres are equipped with the services of a medical practitioner and the services of a nurse and these services are available on a daily basis in order to assist and cater for the medical needs of persons in detention.

The applicant requested international protection at the Office of the Refugee Commissioner on the 24 th September 2008. The applicant requested asylum on the basis that he claimed that he was next in kin to become the king in his village but this was not accepted by his uncle who had poisoned his father and brother and had, therefore, instilled fear for personal safety in the applicant. In the applicant ’ s preliminary questionnaire which was conducted on the 24 th September 2008, the applicant declared that he was born on the 20 th March 1985. On the basis of this information, the applicant was presumably 22 years old upon arrival. The applicant did not mention that he suffered from any particular medical condition.

On the 5 th June 2009, the applicant sat for his asylum determination interview and he again confirmed his date of birth. The applicant added that apart from the problem that he had with his uncle in his country of origin, that is, Nigeria, there were no further problems in his country.

On the 20 th June 2009, the Refugee Commissioner rejected the applicant ’ s asylum application.

On the 16 th July 2009, the applicant appealed from the decision by filing an application before the Refugee Appeals Board. The appeal is still pending given that the applicant absconded from Malta in the meantime.

Furthermore, the applicant was released from detention on the 3 rd September 2009 and was moved to an open centre which is run by the Agency for the Welfare of Asylum Seekers. The applicant had free medical care when he was accommodated in the open centre given that his asylum application is still pending in the appeals board. The applicant remained in the open centre until the 26 th February 2010 and left the open centre without leaving any contact details.

2. What, if any, concrete, practical and effective steps are taken by the Maltese authorities to ensure that aliens returned to Malta under the terms of the Dublin II Regulation, considering also that the applicant is a minor with a medical condition, are provided with shelter, subsistence and medical care upon arrival in Malta?

The Government wishes to emphasize that the applicant always declared that he was not a minor upon his arrival: in fact the date of birth given to the local authorities makes it clear that the applicant was 22 years old upon arrival in Malta. Moreover, the applicant never complained that he suffered from any medical condition.

When aliens are returned to Malta, they are not being taken into police custody unless it results that an offence was committed by them in Malta.

Moreover, given that the applicant ’ s appeal is still pending, he is still considered to be an asylum seeker, and the applicant will be housed if he so wishes in the open centres where he will have access to free medical care pending the determination of his appeal. Moreover, if it is established that the applicant is a minor, the Agency for the Welfare of Asylum Seekers provides its services to unaccompanied minor asylum seekers under a ‘ care order ’ issued in terms of the Children and Young Persons (Care Orders) Act.”

18. The applicant replied on 13 March 2012, stating that living conditions in the open centres were very bad and unsuited to persons in his condition.

19 . Appended to the applicant ’ s reply were:

(a) a report by the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg , following his visit to Malta from 23 to 25 March 2011 ( CommDH (2011)17, 9 June 2011). On the subject of open centres , this report stated the following:

“21. Material conditions in the open centres visited by the Commissioner were clearly sub-standard, with the Hal-Far tent village offering totally inadequate conditions of accommodation even for short periods of time. The village, which at the time of the visit hosted approximately 600 migrants, mainly from Africa, consists of tents, some of which had been damaged due to bad weather conditions, and containers, as well as offices, a classroom, sanit ary facilities, a mosque, and a restaurant. Each tent is shared between approximately 20-25 men who sleep in bunk beds. The tents were clearly overcrowded and offered no privacy. Residents have complained to the Commissioner about bad sanitary conditions, including having to share the same space with persons who are sick, and about the very cold temperatures in the facilities in the winter and hot temperatures during the summer. The presence of rats was also reported by migrants. The tent village has a building with toilets, showers and basins for laundry. However, hot water is reportedly not always available. A female migrant stated that she avoided using the toilets at night as she felt unsafe covering the considerable distance between them and the container where she was accommodated. Reportedly the tent village was served by one social worker and one nurse. For medical services migrants were referred to centres outside of the tent village.

22. At walking distance from the tent village another complex, the Hangar Open Centre in Hal-Far, which includes a few dozen containers and a dilapidated hangar, accommodated approximately 500 migrants, mainly from Africa. At the time of the visit, the Commissioner noted that certain women and families with children were accommodated in containers separately from the male migrants. In the centre there was a recent building that included toilets and showers. The hangar was closed and not in use. However, the Commissioner was informed that following the new arrivals from Libya since his visit, the hangar has been re-opened and that tents have been placed inside of it to accommodate migrants. Material conditions in the hangar are reported to be seriously sub-standard, with lack of adequate bedding, dirty floors, toilets (which are shared by men, women and children), and kitchen, insufficient lighting, and the presence of rats. These conditions are all the more worrying as the Commissioner understands that a number of family units with young children are accommodated there, as mentioned below.

23. Conditions were somewhat better at the open centre in Marsa with approximately 600 male residents mostly from Somalia and Sudan. Unlike the tent village and hangar complex in Hal-Far, which are run directly by the Agency for the Welfare of Asylum Seekers (AWAS) the running of the centre in Marsa is subcontracted by the authorities to a non-governmental organisation (the Foundation for Shelter and Support to Migrants). The Commissioner notes that extensive refurbishment work, which would allow for better conditions and a more functional distribution of space, were underway during his visit. At the time of the visit however, serious overcrowding was still very obvious. Toilets visited by the Commissioner, although they had been cleaned, appeared to be run down, while the whole area of the open centre in Marsa , situated near a port, was covered by a smell which appeared to be caused by stagnating water in a neighbouring canal.”

(b) two reports by Schweizerische Flüchtlingshilfe , a Swiss NGO engaged in providing assistance to asylum-seekers and refugees, the first dated 6 September 2010, the second dated November 2011. Both describe the open centres as squalid and overcrowded and basic facilities, including for vulnerable groups, as insufficient.

(c) two letters from a child and juvenile psychiatrist who was treating the applicant, dated 23 February and 1 March 2012, describing the applicant as psychotic and potentially suicidal and expressing concern that conditions for the applicant ’ s reception in Malta should be appropriate to his mental state.

D. Maltese Government policy

20 . On 30 December 2015 the Maltese Minister for Home Affairs and National Security published a paper entitled “Strategy for the reception of asylum seekers and irregular migrants”. The following is taken from this document:

“Malta ’ s ratio of asylum seekers in proportion to population has consistently been among the highest, and very often the highest, among all EU Member States. In fact, Malta received a total of 20.2 asylum applications per 1,000 inhabitants between 2009 and 2013, compared to an EU average of 2.9. It is also to be stated that the Maltese Office of the Refugee Commissioner does not only receive international protection applications from irregular migrants; for during 2014 up to 824 asylum applications were also received from migrants who applied directly at the Office of the Refugee Commissioner. All this goes a long way to show that even though asylum applications may be generally constant, the number is at the same time elevated when compared to the country ’ s geo-physical and social circumstances and realities. Matters are further complicated by the fact that a majority of those who seek international protection in Malta are actually found to be deserving of such protection. This means that these people do not only require immediate reception arrangements, but also long-term solutions.

In view of the abovementioned circumstances, conditions in reception centres have been rendered difficult during certain periods; however over the last few years several initiatives were carried out in order to improve the living conditions of irregular migrants and asylum seekers residing in such ce ntres, including by means of EU funding mechanisms. Similar to previous years, apposite European funding mechanisms and national funds will be utilised for the provision of adequate food supplies, bedding, clothing and medical support among other initiatives. Investment will also continue being made in reception facilities, where the required refurbishment initiatives in open and closed centres will be undertaken. Furthermore, Malta ’ s Open Reception capacity will be enhanced by means of a new Reception Facility, with the utilisation of EU funds, in order to better address current and future needs.

The present document seeks to build upon the existing reception system, introducing improvements at several stages with a view to ensuring compliance with new EU obligations, as well as to improve the system from the perspective of national security on the one hand and humanitarian and human rights considerations on the other.” ( page 3)

and

“Asylum seekers and beneficiaries of international protection released from the Initial Reception Facility or from Detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres managed by the Agency for the Welfare of Asylum Seekers, or an entity or NGO working in partnership with the Agency. Such accommodation shall also be offered, on the same terms and conditions, to asylum seekers who would have reached Malta regularly, wherever Malta is the State responsible for determining their asylum application, and to beneficiaries of international protection granted protection by the Maltese authorities who would have been resettled or relocated into Malta.

...

Persons accommodated at Open Centres shall be provided with accommodation free of charge and, so long as they are not employed, with an allowance intended to cover daily expenses, such as meals and transport.

Migrants considered vulnerable, with the exception of unaccompanied minors, shall also be accommodated at Open Centres as per above. However, such persons shall be offered additional support, be it psychological, medical or otherwise as required.” ( page 19)

E. Relevant international material

21 . The United Nations Human Rights Council ’ s Working Group on Arbitrary Detention visited Malta between 23 and 25 June 2015. Its report of this visit was published by the Human Rights Council on 23 June 2016 (UN document A/HRC/33/50/Add.1). The following is taken from this report (page 10, advance unedited version):

“37. The Working Group also visited Hal Far Open Centre for immigrants, outside Valetta, run by the Ministry for Social Affairs. Th e centre has a capacity for 800 persons. 260 were persons present during the Working Group ’ s visit. In the open centres, migrants enjoy freedom of movement but are requested though they are requested [sic] to undergo daily movement registration and provide details of their whereabouts.

38. The Working Group received information that 889 persons were living in three open centres including Hal Far, which consisted of prefabricated container housing units that had replaced scores of tents. Most of them were asylum-seekers awaiting decisions on their applications. Some migrants whose applications for asylum had already been rejected were also hosted there. Residents were suffering uncomfortable living conditions given inadequate ventilation and high temperatures in the summer months, in addition to the overcrowded condition in each unit. Residents were referred to the centre by immigration authorities.

39. The Working Group was informed that although the open centres were locked and guarded by security officers, residents were allowed to enter and exit the premises freely. Residents were allowed to stay for a maximum period of one year. Their beds would be restored after three weeks of absence so that it could be assigned to another migrant in need. It was brought to the attention of the Working Group that some residents arrived at the centre in April 2014, which means that they had been held there for more than 12 months. The Working Group was informed that during their stay at the open centre, residents were offered accommodation; free food, and were provided with a transportation allowance to enable them to travel to the city centre. In addition, the Working Group was informed that the centre would provide English language courses, computer training and cultural orientation.”

F. Paola prison

22. There is a prison in Paola. Its official name is Corradino Correctional Facility. Conditions of detention in this institution were the object of Story and Others v. Malta , nos. 56854/13, 57005/13 and 57043/13 , §§ 104-129, 29 October 2015.

COMPLAINTS

23. The applicant complained under Article 3 of the Convention, Article 3 of the Convention on the Rights of the Child and Article 24 of the Charter of Fundamental Rights of the European Union that he would be detained without trial if forced to return to Malta. He also complained, citing the same Article, that he would be deported from Malta to face torture or death in his native Nigeria and that he would not be offered any opportunity to make out his case for asylum.

THE LAW

A. The applicant ’ s allegation that he will face conditions violating Article 3 of the Convention if returned to Malta

24. The applicant alleged that if the Netherlands handed him over to the Maltese immigration authorities, t he latter would detain him in a subterranean cell in the prison at Paola. He relied on Article 3 of the Convention, which provides as follows:

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

1. Scope of the case before the Court

25. In his letter of 13 March 2012, the applicant submitted that even if he were to be placed in an open centre upon being returned to Malta, this would still constitute treatment contrary to Article 3 of the Convention. He alleges, in particular, that the psychiatric treatment offered him there would not be sufficient to his needs.

26. This is a new complaint. It does not appear in the original application, which suggested only that the applicant feared imprisonment.

27. Since however it is clearly linked to the original complaint and was submitted within six months from the final decision in the case, that given by the Administrative Jurisdiction Division on 31 October 2011, the Court will consider it.

2. The responsibility of the Netherlands under the Convention

28. In M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 338-340, ECHR 2011, the Court held as follows (see also Tarakhel v. Switzerland [GC], no. 29217/12, §§ 88-91, ECHR 2014 (extracts)):

“ 338. ...

The Court reiterated in [ Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi v. Ireland [GC], no. 45036/98, § 152, ECHR 2005 ‑ VI] that the Convention did not prevent the Contracting Parties from transferring sovereign powers to an international organisation for the purposes of cooperation in certain fields of activity (...). The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations ( ibid., § 153). State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it exercised State discretion ( ibid., §§ 155-57).

The Court found that the protection of fundamental rights afforded by Community law was equivalent to that provided by the Convention system ( ibid., § 165). In reaching that conclusion it attached great importance to the role and powers of the Court of Justice of the European Union (CJEC) – now the CJEU – in the matter, considering in practice that the effectiveness of the substantive guarantees of fundamental rights depended on the mechanisms of control set in place to ensure their observance (ibid., § 160). The Court also took care to limit the scope of the Bosphorus judgment to Community law in the strict sense – at the time the ‘ first pillar ’ of European Union law (§ 72).

339. The Court notes that Article 3 § 2 of the Dublin Regulation provides that, by derogation from the gene ral rule set forth in Article 3 § 1, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called ‘ sovereignty ’ clause. In such a case, the State concerned becomes the member State responsible for the purposes of the Regulation and takes on the obligations associated with that responsibility.

340. The Court concludes that, under the Dublin Regulation, the Belgian authorities could have refrained from transferring the applicant if they had considered that the receiving country, namely Greece, was not fulfilling its obligations under the Convention. Consequently, the Court considers that the impugned measure taken by the Belgian authorities did not strictly fall within Belgium ’ s international legal obligations. Accordingly, the presumption of equivalent protection does not apply in this case. ”

29. Identical considerations apply in the present case. The responsibility of the Netherlands is therefore in issue.

3. The Court ’ s assessment

(a) The prison at Paola

30. The Court notes that the applicant ’ s claim that he would be detained without trial is entirely unsubstantiated. Indeed the applicant may be detained in a criminal context only in the event that he is prosecuted for an offence and is either denied bail or is eventually found guilty.

31. In any event, conditions of detention in the parts of the Corradino Correctional Facility where foreigners were imprisoned were the object of Story and Others v. Malta , nos. 56854/13, 57005/13 and 57043/13, §§ 104-129, 29 October 2015, in which the Court found no violation of Article 3.

32. Consequently grounds for the applicant ’ s stated fear of imprisonment in inhuman conditions cannot be established.

(b) The open centres

33. The Court reiterates that the expulsion of an asylum-seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see, among many other authorities, M.S.S. v. Belgium and Greece , cited above, § 365, and Tarakhel , cited above, § 93).

34. The presumption that a State participating in the “Dublin” system will respect the fundamental rights laid down by the Convention is not irrebuttable . For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State”. In the case of “Dublin” returns, the presumption that a Contracting State which is also the “receiving” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country ( Tarakhel , cited above, §§ 103-04).

35. In order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim. The Court further reiterates that, as a “particularly underprivileged and vulnerable” population group, asylum-seekers require “special protection” under that provision (see Tarakhel , cited above, § 118, and M.S.S. v. Belgium and Greece , cited above, § 251).

36. In M.S.S. the Court found Belgium to have violated Article 3 of the Convention by returning the applicant to Greece, thus knowingly exposing him to a situation of extreme destitution. The applicant M.S.S. “allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving” ( M.S.S. v. Belgium and Greece , cited above, §§ 254 and 366).

37. In Tarakhel the Court found that while the structure and overall situation of the reception arrangements in Italy could not in themselves act as a bar to all removals of asylum-seekers to that country, the data and information available nevertheless raised serious doubts as to the capacities of the system at that time. Article 3 would be violated were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together ( Tarakhel , cited above, §§ 115 and 122).

38. Turning to the situation the applicant would face if handed back to Malta, the Court notes the statement of th e Maltese Government Agent (see paragraph 17 above) and the policy set out in the strategy document (see paragraph 20 above) from which it appears that asylum-seekers arriving in Malta by regular means – which would include asylum-seekers whom Malta has agreed to take back in accordance with the Dublin Regulation, Malta being the State responsible for determining their asylum application will be granted residence for up to one year in an open centre.

39. The Court considers that, as in Italy, the reception conditions in Malta are not in themselves such that removal of an asylum-seeker to that country would in all cases violate Article 3 of the Convention. While certainly the Court takes seriously the misgivings expressed in 2011 by the Commissioner for Human Right s of the Council of Europe (see paragraph 19 above), it cannot overlook the efforts made in the years since then by the Maltese Government, using funds appropriated by the European Union (see paragraph 20 above). The Court further observes that improvements were noted already in June 2015 by the United Nations Human Rights Council ’ s Working Group on Arbitrary Detention ( see paragraph 21 above), namely the replacement of the tents in the open centre at Hal Far by containers.

40. It follows that the Court cannot find on the information available that the conditions obtaining in Malta ’ s open centres attain the minimum level of severity required to bring Article 3 of the Convention into play. The question is, therefore, whether any circumstances pertaining to the applicant personally can be established that ought to prevent his transfer back to Malta.

41. The applicant alleged that psychiatric care appropriate to his condition would not be available to him in Malta.

42. The Court observes that the applicant ’ s psychiatric condition is known to the Netherlands authorities; indeed, it is precisely because of it that they aborted the applicant ’ s transfer t o Malta on 9 November 2010 (see paragraph 12 above).

43. In any event, the suggestion that the applicant would not receive adequate support or care if he were returned to Malta is to a large extent speculative. Having regard, moreover, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant ’ s removal in these circumstances would be contrary to the standards of Article 3 (see Bensaid v. the United Kingdom , no. 44599/98, §§ 39-40, ECHR 2001 ‑ I).

(c) Conclusion

44. This part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

45. The Court has examined the applicant ’ s other complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Rule 39 of the Rules of Court

46. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 6 April 2017 .

Fatoş Aracı Helena Jäderblom Deputy Registrar President