Published on 28 August 2023

SECOND SECTION

Application no. 1766/23 J.B. and Others against Malta lodged on 10 January 2023 communicated on 4 July 2023

SUBJECT MATTER OF THE CASE

The application concerns six Bangladeshi nationals who claimed to be minors aged between 16 and 17 years and who arrived in Malta on 18 November 2022 after being rescued at sea. On arrival they were held in Ħal Far Initial Reception Centre (HIRC aka China House), with other adults.

Their detention, together with that of everyone else who arrived with them on the same boat, was ordered on 30 November 2022 on the grounds that their identity had to be verified and a risk of absconding. The legality of their detention was confirmed by the Immigration Appeals Board (IAB) in one collective hearing on 6 December 2022. During this hearing reference was made to the fact that all the applicants but the first applicant were minors and that a legal guardian was to be appointed.

Upon request, on 6 January 2023, the Agency for the Welfare of Asylum seekers (AWAS) informed the applicants’ legal representatives that it had not been made aware of the decision in respect of all the applicants who had claimed to be minors. On the same day the legal representatives filed a request for an urgent review of the applicants’ detention, which remained unanswered.

In their communication to the Court in January 2023 the applicants submitted that the conditions in which they were detained (as described by the Committee for the Prevention of Torture (CPT) in March 2021) constituted degrading treatment contrary to Article 3. They further argued that the guarantees foreseen by the EU Reception Directive (Article 9) for vulnerable individuals, transposed in Maltese law in the Reception Regulations (S.L. 420.06), Regulation 14, were not complied with in practice. In particular, despite their claim to be minors, no assessment of whether other measures which were less coercive than detention were available had been undertaken.

On 11 January 2023 the Court decided to indicate to the Government of Malta, under Rule 39, to ensure that the applicants’ conditions are compatible with Article 3 of the Convention and with their status as unaccompanied minors.

On an unspecified date the applicants were transferred to Safi Detention Centre, Block A, Zone 4, where they were kept with other minors.

On 17 and 19 January 2023 the applicants’ age assessment procedure concluded that the applicants were adults. The applicants considered that this procedure had been conducted hastily, without a holistic and multidisciplinary approach. All the applicants appealed that decision before the IAB. At the same time, the applicants alleged that they had been harassed in detention because of the procedures they had undertaken at the domestic and international level.

The appeal procedure was only scheduled in respect of the first applicant, and upon inquiry the applicants’ representatives were told that detention service officers had informed the IAB that the remaining applicants wanted to withdraw their appeals. The IAB had taken their word for it without consulting with the legal representatives and irrespective of the fact that detention officers had no authority to speak for the applicants. The applicants subsequently confirmed, to their representatives, their will to appeal. However, on 20 February 2023 the IAB forwarded to their legal representatives declarations of adulthood signed by the first, third and sixth applicants. The former noted that the declarations had been signed in the absence of an interpreter and their legal representatives. The appeal procedure was therefore reinstated.

By decisions of 16 and 22 May 2023 the IAB rejected the first applicant’s appeal declaring him to be an adult, but upheld all the other appeals, confirming the remaining applicants’ minority age. On 16 May 2023 the first applicant was transferred to Safi detention center with adults, and on 19 May 2023 the third, fourth, fifth and sixth applicants were released and accommodated in an open center for minors. The second applicant remains awaiting release.

The applicants complain under Article 3 about the conditions of their detention in HIRC, as well as in Safi Detention Centre where they claimed to have been subject to threats, violence and harassment by other detainees and detention officials; under Article 5 § 1 of their detention between 18 and 30 November 2022 the legal basis of which was unclear, as well as the entire period of their detention in HIRC where they had been held with adults; under Articles 5 § 4 and 13 that they had not had an effective remedy to challenge their detention (the IAB having held one collective hearing for forty-seven individuals; giving stereotyped decisions; despite minority claims AWAS had not been informed accordingly; and the IAB did not fulfill the independence and impartiality requirements); and under Article 13 that they had no effective remedy to complain about their conditions of detention.

QUESTIONS TO THE PARTIES

1. Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Did the material conditions of the applicants’ detention in a) HIRC and b) Safi Detention Centre, amount to inhuman or degrading treatment?

2. Did the applicants’ deprivation of liberty between 18 and 30 November 2022 fall under any of the subparagraphs of Article 5 § 1? Was the applicants’ detention during this period lawful and ordered “in accordance with a procedure prescribed by law”? What was the legal basis for the detention, and did it fulfil the requirements of the relevant paragraph?

3. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention following the detention order of 30 November 2022? In particular, was their detention free from arbitrariness (see, for general principles, Aden Ahmed v. Malta , no. 55352/12, § 141, 23 July 2013)?

4. Having regard to the Court’s case-law considering Article 5 § 4 of the Convention as a lex specialis in relation to Article 13 of the Convention (see A.B. and Others v. France , no. 11593/12, § 158, 12 July 2016), did the applicants have at their disposal an effective procedure by which to challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention? In particular, is the IAB 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 applicants’ situation, taking due account of their arguments and giving adequate reasoning in its decisions (see G.B. and Others v. Turkey , no. 4633/15, § 176, 17 October 2019)?

5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3, as required by Article 13 of the Convention (see, in the context of exhaustion of domestic remedies, Fenech v. Malta , no. 19090/20, §§ 41-44, 1 March 2022 and Feilazoo v. Malta , no. 6865/19, § 59, 11 March 2021)?

Application no. 1766/23

No.

Applicant’s Name

Year of birth

Nationality

1.J. B.

2005Bangladeshi

2.R. A.

2006Bangladeshi

3.S. I.

2006Bangladeshi

4.M. K.

2006Bangladeshi

5.T. K.

2006Bangladeshi

6.S. M.

2006Bangladeshi