Published on 13 June 2022

FIRST SECTION

Application no. 12427/22 A.D. against Malta lodged on 8 March 2022 communicated on 24 May 2022

SUBJECT MATTER OF THE CASE

The application concerns an Ivorian national, who reached Malta by boat in November 2021. On his arrival he claimed to be a minor born on 4 September 2004 and expressed a wish to apply for asylum. He was “detained” for most of the time since then. In particular, he was kept in China House from 24 November 2021 until January 2022. Between 7 and 20 December 2021, the applicant, and others who arrived with him, went through different medical check-ups, including a Covid-19 test and a chest X-ray. They resulted negative and were vaccinated during the same period. On 10 December 2020, the applicant was given a document written in French entitled " Restriction de mouvement pour des raisons de santé publique " which he did not understand. It stated that the applicant was at risk of contracting an infectious disease and therefore needed to be tested. It made reference to Article 13 (1) of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta, which allows the Superintendent of Public Health to restrict the movement of a person who may spread disease. The applicant was diagnosed with Pulmonary Tuberculosis on 14 December 2021. On 17 December 2021, the applicant was admitted to the Infectious Diseases Unit of Mater Dei Hospital for treatment. He was discharged on 22 December 2022 and sent back to China House with a prescription for treatment.

On an unspecified date in January 2022 the applicant was moved to Safi detention centre B Block (which mainly hosts adult men) and two days later his treatment was stopped with no explanation.

On 31 January 2022 he was moved to a container within the Safi detention centre, which he shared with one individual, where he remained at least until the lodging of the application with the Court. A detention order was issued on 10 February 2022.

In the meantime, the applicant started going through age assessment procedures and by a decision of 20 January 2022, it was concluded that he was an adult. An appeal against this decision is still pending.

Challenges to the lawfulness of the detention before the Court of Magistrates and the Immigration Appeals Board (IAB) proved futile.

The applicant, reiterating that he is a minor, complains about the lawfulness and arbitrariness, as well as about the dismal conditions, of his different periods of detention and claims that he had no effective remedies in this respect.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Did the material conditions of the applicant’s detention in a) China House, b) Block B and c) the container at Safi Barracks, amount to inhuman or degrading treatment? Did the circumstances and manner of the treatment by the authorities of the applicant’s ailments amount to inhuman treatment?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period between 24 November 2021 to 10 December 2021 fall within paragraph (e) or any other subparagraph of this provision? Was the applicant’s detention during this period lawful and ordered “in accordance with a procedure prescribed by law”? What was the legal basis for the detention and was it justified under the relevant paragraph (see Enhorn v. Sweden , no. 56529/00, §§ 36 and 44, ECHR 2005 ‑ I)?

3. Did the applicant’s situation from 10 December 2021 to 10 February 2022 amount to detention within the meaning of Article 5 (see, for general principles, Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016)? If so, was it lawful, and justified under any of the paragraphs of this provision?

4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention following the detention order of 10 February 2022? In particular, was his detention free from arbitrariness (see, for general principles, Aden Ahmed v. Malta , no. 55352/12, § 141, 23 July 2013)?

5. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his (different periods of) detention, as required by Article 5 § 4 of the Convention? Were the procedures by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, was the IAB, which examined the applicant’s request for release, a “court” within the meaning of this provision (see for general principles Baş v. Turkey , no. 66448/17, §§ 266-267, 3 March 2020)? If so, did it undertake an individual assessment of the applicant’s situation, taking due account of his arguments and giving adequate reasoning in its decisions (see G.B. andOthers v. Turkey , no. 4633/15, § 176, 17 October 2019)?

6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?