PARTLY DISSENTING OPINION OF JUDGE SAJÓ

To my regret I have to disagree with the majority in the present case regarding their finding of a violation of Articles 3 and 5 § 1 of the Convention.

The Court finds that the applicant ’ s conditions of detention amounted to inhuman and degrading treatment. I beg to differ. For the Court the detention was unacceptable on account of the applicant ’ s vulnerability resulting from her state of health. It was because of that vulnerability that the cumulative effect of her harsh conditions of detention amounted to degrading treatment (see paragraphs 88-89). As to the presumed “cumulative” conditions, the applicant did in fact have opportunities to move around in the area, (see paragraph 79), rendering the comment concerning the lack of opportunity to exercise less important: the female internees were free to choose their own activities.

The Court ’ s finding is based on a release on grounds of “vulnerability” determined by the domestic authorities. The Court considers that this situation had clearly already been in existence in December 2012 despite the fact that it took eight months (until 10 August 2013) for the authorities to formally issue their release decision. [1]

In determining whether detention conditions have attained the level of degrading treatment, the Court “will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3” (see Riad and Idiab v. Belgium , nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008).

The object of the treatment (detention) in the present case was not to humiliate the person. (It is a different matter to what extent holding someone in detention for such a long time can be justified on grounds of prevention of entry and whether detention that is not serving a legitimate goal is tantamount to debasing the person detained; see below). There is nothing in the file to suggest that the consequences are adversely affecting the applicant ’ s personality. Undeniably, the Court does take into consideration “in some instances” the applicant ’ s personal situation (circumstances and needs), that is to say his or her sex, age and state of health (see Arutyunyan v. Russia , no. 48977/07 § 68, 10 January 2012, and the case-law cited therein), when it has to determine whether ill-treatment attains a minimum level of severity. These are the personal considerations which may lead to particular vulnerability that can transform otherwise acceptable treatment into treatment attaining a minimum level of severity. I do not consider this list exhaustive, as, for example, sexual orientation can be another relevant personal circumstance. However, a vague concept of vulnerability or the fact that migrants, especially asylum-seekers, often have a traumatic history of persecution and escape cannot be held to be a relevant personal situation in the above sense, especially without an individual testimony of such a personal history.

The Court is of the view that the applicant is vulnerable “as a result of her health”. It was the health-related “vulnerability” of the victim that led the Court to conclude that the minimum level of severity has been attained. I simply cannot see how the symptoms of the applicant can be considered a relevant health problem causing “vulnerability”. There is no medical predisposition here that would transform the ordinary treatment (holding someone in harsh conditions) into unnecessary personal suffering. The applicant ’ s actual personal conditions do not raise any particular concern. The applicant saw a doctor in a state hospital sixteen times, with subjective symptoms such as earaches (repeatedly) causing reduced hearing according to the patient, as well as headaches and toothaches. There was a referral to conduct the relevant tests in order to exclude epilepsy, but there is nothing to indicate that she was diagnosed with epilepsy. These symptoms do not point to any illness that would make someone particularly sensitive to the extent that the harsh detention conditions would cause more than the inevitable suffering. More importantly, there was no finding of such illness on the part of the competent medical authorities, who provided prompt and professional medical attention.

I do not consider decisive for the purposes of finding the treatment degrading the fact that the applicant had been considered unfit for detention on the grounds that she was released on account of her “vulnerability” under domestic law. The Court was satisfied that anyone who is described as “vulnerable” in domestic law must be considered to be vulnerable for the purposes of finding a given treatment degrading under the Convention. On this ground it concluded that the failure to release such persons from a detention center where conditions are harsh but do not otherwise reach the threshold of Article 3, not even in their combination, amounts to degrading treatment.

The judgment completely disregards the definition of vulnerability as a ground for release in Malta. The Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity issued a Policy Document on Irregular Immigrants, Refugees and Integration. The section on vulnerable persons reads as follows: ”Vulnerable persons such as elderly persons, persons with a disability, lactating mothers and pregnant women shall, where appropriate, not be kept in detention but will be provided with alternative accommodation. Monitoring is to be conducted on particular cases to confirm whether detention remains admissible.” The applicant does not fall into any of these categories requiring closer scrutiny, even by this Court. It should be noted that “vulnerability”, in so far as it is defined in Maltese law, does not apply to the applicant, although it was ultimately under this heading that she was released (a fact contested by the authorities). The last sentence of the Policy Document states that one can be released on any other ground , including humanitarian and other reasons, including discretionary policy considerations, and this seems to have been the case here. In other words, she was released as a vulnerable person, but this term does not refer to any specific personal circumstance in the sense used by the Court in the Article 3 threshold context. In view of the understanding of “vulnerability” in Maltese law there is no ground to conclude that a domestic finding of vulnerability is of relevance to the present case.

I am prepared to accept that acceptable conditions of detention in the case of asylum-seekers and persons detained pending deportation can differ from those of prison conditions applicable to those who have committed criminal offences, although this conclusion has been drawn in the context of the lawfulness of Article 5 and not in the context of Art icle 3. The Court applies that consideration without further explanation, relying on paragraph 98 of the Aden Ahmed judgment, where the transposition is made without any reference or explanation either. [2]

To my regret I have to disagree with the findi ng of a violation of Article 5 § 1 with regard to the first period of detention, considered as detention for the purposes of preventing unlawful entry. The Court ’ s finding of a violation is based on the assumption of bad faith on the part of the Government and the fact that the lengthy detention, without the possibility of proper review and in inappropriate conditions, amounted to arbitrary detention. I agree that such conditions may result in a finding of arbitrariness but I do not note those conditions in the present case. The asylum application was rejected quite promptly (in less than two months), and the applicant appealed against that rejection. Given that one can be held in detention during the asylum process under Maltese law and that the Court ’ s case-law (see Saadi v. the United Kingdom [GC], no. 13229/03, ECHR 2008) allows for long-term detention in order to prevent entry, I cannot see how in the present circumstances there is bad faith or arbitrariness. However, I have serious reservations concerning the very approach adopted by the Court ’ s case-law vis-à-vis the detention of asylum ‑ seekers. In Saadi v. the United Kingdom , seven days ’ detention in very specific circumstances and in view of the need to cooperate with the authorities was considered as non-arbitrary detention for the purposes of preventing entry. That period has been greatly extended in the last decade. I consider this development an extremely problematic extension of the idea of prevention of entry which is, after all, an event limited in time. When it comes to asylum-seekers, once the asylum-seeker has established a prima facie case, only weighty reasons can be accepted as grounds for detention. That is why I consider the present detention problematic. However, within the currently prevailing concepts of the Court I could not reach the same conclusions as my colleagues. Applying Saadi v. the United Kingdom within its original parameters would have allowed me to find the detention unlawful and therefore also degrading.

[1] I fail to see how or why her vulnerability as understood in Maltese law c ould have been obvious to the authorities at the short interview on December 2012. According to the facts established by the Court the signs of depression appeared after the rejection of her asylum application (18 December 2012, that is to say after the AWAS interview) ( see para graph 11).

[2] As mentioned above, I agree with this reasoning but I find it problematic that standards or considerations developed in the very different context of an Article of the Convention migrate without justification into other Articles where the scope of the principle or standard might be quite different (as is the case here).