FOURTH SECTION

Application no. 43985/13 ABDI AHMED and others against Malta lodged on 9 July 2013

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The a pplicants are represented by Dr K . Camilleri, Dr M . Camilleri, Dr C . Camilleri and Dr N. Falzon.

A. The circumstances of the case

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

1. The happenings on 9 July

At around 3.00 am of 9 July 2013, a hundred and two persons were intercepted by a patrol boat of the Armed Forces of Malta (AFM) around 1.5 nautical miles off the coast of Malta. According to AFM online reports [1] the migrants, amongst whom forty-one women and two minors, were disembarked at around 6.00 am and given medical assistance. According to the applicants, the group included two infants and forty-four children (between the ages of 13 and 17), only one of whom was accompanied.

According to the applicants, upon disembarking, they were received by the police and given a tag with an immigration number. They were then placed on buses and driven to the Police Headquarters in Floriana , where they were asked to descend from the bus so that they could be searched. After this, the single men were told to get back onto the bus and where left there for a number of hours without any explanation of what was happening.

Meanwhile the women and children who had descended the bus were allowed to sit outside in the yard and eventually taken into a hall.

There , the adults who were accompanied by infants (two families) were registered by the immigration police, fingerprinted, issued with a removal order and transferred to the Lyster Barracks detention centre. Later, the single women (including minors) were also registered and issued with a removal order. The single men (including minors), who had been left on the bus, went through the same process later in the day after spending about eight hours on the bus in the heat during which they were given water and cake but were allegedly not allowed to use the toilets.

All the applicants 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 the said decision within three working days in terms of the Immigration Act (see relevant domestic law below) .

In the afternoon the applicants were again placed on buses and transferred to another unknown location somewhere near the airport. They were told to shower and were given a clean set of clothes and a meal. There were no beds there and when they asked whether they would sleep there, they were told that they would be taken elsewhere.

In the evening of that same day , following an interim order issued by the European Court of Human Rights (ECHR) (see below), the males were transferred to Safi Barracks, detention centre and the females to Lyster Barracks detention centre. On that day, the applicants were not asked if they wanted to apply for asylum, nor were their needs for pro tection or assistance assessed (t hey were eventually allowed to apply for asylum an unspecified number of days after – see below for details) .

The applicants noted that the procedure followed in their case was not the normal procedure usua lly undertaken in respect of boat arrivals. The normal procedure is that, upon arrival, migrants are immediately taken to the Police Headquarters, where they are registered and fingerprinted by the immigration authorities, issued with a Return Decision/Removal Order and transferred to immigration detention centres were they are given time to apply for asylum.

2. Occurrences happening in parallel to the above

In the early afternoon of the same day, the Times of Malta online carried an article reporting that the Government was considering sending the applicants back to Libya [2] . The article i ncluded a video where the Prime M inister was asked whether he was considering sending back the migrants to which he replied that ( unofficial 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”

At the question whether he was aware that a pushback would be illegal the Prime Minister repeatedly replied :

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

The applicants noted that these 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 where the Prime Minister declared that “if pushbacks are necessary they will be used” [3] .

Upon apprehending the news, NGO representatives and UNHCR representatives unsuccessfully approached the police to request authorisation to visit the migrants (then at the Police Headquarters).

Shortly after , a number of news sources confirmed that the Government had booked an Airmalta plane to ferry the migrants back to Libya on two flights planned for that night, at midnight and 4.00 am respectively. In consequence, in the afternoon of the same day, a group of NGO ’ s, acting as persons concerned according to Rule 39 of the Rules of Court , requested the European Court of Human Rights to order the Government of Malta to refr ain from deporting the migrants.

The practical preparations to e ffect return were confirmed by the Prime Minister that afternoon in parliament. He said as follows (unofficial 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, will 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, 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 whoever thinks that with his/her/its ( tieg ħ u ) actions he/her/it can keep this Government from protectin g 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 ie ħ or ) must also carry t he 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 by the ECHR in the coming hours, we will continue to consider all the options before us.”

In the meantime the Acting President of the Section to which the case had been allocated decided to accede to the request and indic ated 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 request the Government to submit information.

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

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 that same day. The applicants learnt about the situation and the original Government ’ s plans only at that time.

3. Government ’ s replies of 30 July 2013

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.

They 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 (according to the Refugees Act – see relevant domestic law below). The Government noted that such application would suspend the effects of the removal order handed to the applicants on their arrival, and thus the applicants will remain in Malta until their asylum application is decided. The applicants also had three working days within which to challenge their removal order, in terms of the Immigration Act. Moreover, the Government considered that the applicants have access to the domestic courts concerning the decision on their detention and access to the constitutional jurisdictions concerning any other convention or constitutional claims.

The Government also noted that by 30 July 2013, six of the hundred and two applicants had been released from detention on grounds of vulnerability. Moreover, the Commissioner for Refugees had held information sessions with all the applicants, and a number of interviews were already held with some of the applicants, the rest to be interviewed in subsequent days.

4. More recent information

According to information submitted by the applicants on 3 September 2013, by that date, all the applicants except Mr Abdifatah B ile Omar had applied for asylum by filling in a preliminary questionnaire.

Of them, ten applicants have already been granted protection in terms of the Refugee Act.

Forty-three applicants have been interviewed and are awaiting a decision on their asylum request.

Forty-eight applicants are awaiting an interview; of these, twenty-two are confirmed minors who have been released fr om detention with a care order and a nother twenty-two are currently awaiting the outcome of age assessment procedures , before they can be interviewed .

Mr Abdifatah Bile Omar escape d from the Safi detention center on 26 July 2013. He was apprehended and charged in court. By a judgment of the Court of Magistrates of 27 July 2013 he was found guilty of the said crime and sentenced to two months imprisonment. In setting the punishment the court considered that the applicant was a minor and that there had been a reasonable suspicion that the applicant had attempted suicide while he was in police custody. It further ordered the applicant be detained in the Forensic Unit of Mount Carmel hospital, or any other division of the said hospital which could be of help to his mental condition.

B. Relevant domestic law

1. The Immigration Act

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 c riminal proceedings for a crime punishable with imprisonm ent or is serving a sentence of imprisonment, the Minister may giv e such directions as to whether the whole or part of the sent ence 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 fulfill 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 b e made subject to any condition which the Minister may deem proper.

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

Article 25 A deals with the Immigration Appeals Board and its jur isdiction to hear and determine appeals or applications in virtue o f 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 – not yet final).

2. The Refugees Act

The Re fugees Act, Chapter 420 of the L aws of Malta, in so far as relevant , reads as follows:

Article 8

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

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

(3) If the [Refug ee] Commissioner r ecommends 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 fro ntiers of territories where the life or freedom of that person wo uld be threatened on account of his race, religion, nationality, me mbership 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 prot ection 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 cri me, 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.”

According to Article 4 (3) of the Refugees Act, the Refugee Commissioner shall perform such functions as are conferred on him by the Act, and without prejudice to the generality of the above, shall examine applications for refugee status. His decision on such an application ( aka recommendation) is subject to appeal before the Refugee Appeals Board in accordance with Article 7 (1) which provides that the Refugee Appeals Board shall have 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 without prejudice to the provisions of Article 4 of the European Convention Act the decision of the Refugee Appeals Board shall be final and conclusive and may not be challenged and no appeal may lie therefrom, before any court of law, saving the provisions of Article 7A, which provides that a person who has applied for asylum may make a subsequent application, after a final decision, to the Commissioner for Refugees, provided that such application shall only be considered 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 submitted.

3. Subsidiary legislation

Further relevant provisions can be found in subsidiary legislation 420.07, Procedural Standards in Examining Applications for Refugee Status Regulations , which , in so fa r as relevant, read as follows:

“4. (1) A person who wishes to apply for asylum shall make an application to the Commissioner o n the prescribed form which, as far as possible, shall be i n 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 ap plication may be allowed by the Commissioner, for special and excep tional 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 t o his asylum application:

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

(...)

12. (1) Notwithstanding the pro visions of any other law to the contrary, and except where a sub sequent application will not be further examined, or where an ap plicant is to be surrendered or extradited as appropriate to a nother Member State pursuant to obligations in accordance wi th a European Arrest Warrant or otherwise, or to a third country or t o international criminal courts or tribunals, an applicant shall n ot be removed from Malta before his application is finally determi ned and such applicant shall be allowed to enter or remain in Malta pending a final decision of his application. ”

Article 15 makes further provision for unaccompanied minors.

COMPLAINTS

1. The applicants complain 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 .

(ii) about the treatment (which they considered to be in breach of the said provision) received by the Maltese authoriti es, on their arrival, on 9 July 2013 whereby plans were being made to deport them to Libya without any individual assessment of each person subject to this measure and without them having the possibility of applying for asylum, or of taking any action to obtain the 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 were left on a bus in the heat.

2. The applicants further complain of a violation of Article 13 in conjunction with Article 3 in that they had not had an effective remedy against their removal/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 happenings concerning a forced deportation. Moreover, they consider 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 ECHR.

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

4. L astly, the applicants complain 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.

QUESTIONS TO THE PARTIES

1. In respect of the below complaints, have the applicant s exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, are constitutional redress proceedings an effective remedy within the meaning of this provision in respect of the said complaint s ? In that connection, do the applicants have practical access to the system of legal aid which could ensure them practical and effective representation before such courts, in this type of proceedings? The Government are requested to indicate in detail the arrangements pertaining to access to the legal aid system by immigration detainees in the detention centres .

2 . Have the single male applicants been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention as a result of the circumstances of 9 July 2013? Did the said applicants have the possibility of filing an asylum claim on that day or to take any steps to contest any decision as to their removal/deportation? Bearing in mind the lack of information given to the said applicants about the Government ’ s plans in their respect and the conditi ons they were kept in for eight hours on the bus, allegedly with little nourishment and without access to toilet facilities, did the treatment they were subjected to reach the threshold of Article 3? The Government are requested to provide detailed information about the happenings on that day within the Police Headquarters and in relation to the period spent on the bus.

3 . In view of Article 17 and 22 of the Immigration Act, and in the light of the specific circumstances of that day, did the applicants have , on 9 July 2010 , an effective remedy under Article 13 in conjunction with Article 3 of the Convention to challenge their possibly imminent deportation (see for reference purposes, Gebremedhin [ Gaberamadhien ] v. France , no. 25389/05, § 58 , ECHR 2007 ‑ II ) ?

4. Given the passage of time, the parties should submit updated information about the situation of the applicants in relation to their asylum proceedings, including the position of Mr Abdifatah Bile Omar , who appears not to have applied for asylum to date.

[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/