Human rights court orders Malta to pay migrant €25,000 compensation over detention conditions

The European Court of Human Rights has ordered Malta to pay €25,000 in compensation to an Ivorian migrant over human rights breaches while in detention.

The ECHR expressed concern at what it called Malta’s “defective national system hindering human rights protection”. It also called on the government to improve migrant detention conditions and ensure a legal basis for their detention.

This emerges from a judgment handed down today by the European Court of Human Rights (Second Section), sitting as a Chamber presided by Judge Arnfinn Bårdsen and composed of judges Jovan Ilievski, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc and Davor Derenčinović.

The applicant had been 17 years old when he arrived in Malta irregularly by boat on 24 November 2021 with a group of other persons. They had spent 10 days stranded at sea and a number of the original group had also died during the voyage.

The claim

In his claim, filed by the Aditus Foundation and the Jesuit Refugee Service, the applicant complained that he had been detained for 225 days in inhuman and degrading conditions with no access to an outdoor area; no access to a common area; no access to any prayer room or private space; limited or no access to a phone to make any calls, including to his lawyers; no access to any leisure activities; inadequate living conditions; limited or no access to drinkable water; no information provided in a language which he understands regarding his detention or his medical situation and a lack of adequate medical and psychosocial support.

The applicant further accused the government of endangering his health by housing him in inadequate living conditions and failing to provide adequate medical support. Pointing to his age, his medical conditions and mental health situation, as well as the conditions in which he was held from 24 November 2021 until his release - which included 120 days of isolation in a shipping container – he submitted that he had been subjected to inhuman and degrading treatment.

The fact that he was referred to by immigration number, as well as the lack of evidence that detainees were allowed outside or that minors were not detained with adults and general lack of record keeping was an “institutionalised lack of due diligence,” argued the plaintiff’s lawyer.

For the Maltese government, State Advocate Chris Soler disagreed with the allegation of inhuman or degrading treatment. In respect of records of time spent outdoors, the government admitted that it only kept records of refusals to the regular 1.5 hours of outdoor exercise, but insisted the authorities took great care to tend to the applicant’s physical as well as psychological wellbeing.

The applicant disputed the government’s claim that detainees were provided with blankets when necessary, telling the court that they would sleep wearing all their clothes in winter due to the cold and windows that could not be closed. There was no heating system, he said, adding that the quality and amount of the food provided was insufficient, regularly necessitating detainees to drink tap water.

The applicant submitted that his health had greatly deteriorated while in detention and that adequate medical assistance had not been provided to him. Already a victim of torture in Libya before suffering further trauma during his crossing to Europe, the youth had developed suicidal thoughts and signs of mental illness as early as February 2022. “Despite the medical report of February 2022, a copy of which had been repeatedly refused to the applicant’s representatives, nothing had been done to ameliorate his situation,” noted the judges.

The Detention Centre doctor had concluded that the youth had no mental health problems “apart from a reactive low mood” despite only communicating with the patient through Google translate and without ever questioning him on his general mental health state. For the duration of his detention, the applicant was never assisted by an interpreter when meeting with doctors and nurses, causing his understanding of his conditions and his ability to share his distress to be severely impaired.

ECHR concerns

In its decision, the ECHR pointed out that the confinement of minors raises particular issues, “since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum‑seeker status.

Moreover, the Court has already held that the extreme vulnerability of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over considerations relating to the child’s status as an illegal immigrant.”

The court expressed serious concerns as to how the applicant, a presumed minor at the time, suffering from tuberculosis, had been placed in shared lodging with a young offender and later, spent a month in “total isolation” since neither the guards nor the doctors spoke French.

Although adequate care had been provided for his physical health, “the same cannot be said of the applicant’s mental health,” observed the court. An assessment conducted in February 2022, had clearly shown that the applicant was suffering from PTSD and depression and that he needed medical support as well as an improvement of his living conditions, said the judges. 

“There is therefore little doubt that the applicant was particularly vulnerable not only because he had mental health problems but also because these had not been seen to, despite the recommendations to that effect. Furthermore, the Court notes that, one week after the first assessment of 4 February 2022, instead of taking relevant action, the authorities considered that the applicant – a presumed minor, suffering from tuberculosis, PSTD and depression, who was in need of medical support and of an improvement of living conditions – was to move from a regime of “restriction of movement” to detention.”

It noted that the government did not dispute the applicant’s claim that the guards had also refused to switch on an air-conditioner that was available, on hot days when the youth had to spend most of his day inside.

The government had not substantiated its claim that all detainees were allowed 1.5 hours of daily exercise time. In fact this was contradicted by the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) which reported that “The regime of activities afforded to migrants was non‑existent.”

Neither did the applicant have access to an effective remedy to complain about the conditions of his detention, said the court, citing previous human rights cases against Malta which established that constitutional redress proceedings do not constitute an effective remedy for the purposes of complaints of torture and inhuman or degrading treatment or punishment.

The court ruled that the youth had suffered violation of his right to protection from inhuman or degrading treatment in respect of the conditions of detention of the applicant, who was a vulnerable individual due to his age and health situation, as well as of his right to protection from deprivation of liberty in relation to his prolonged immigration detention in those conditions.

A defective national system

The court warned that Malta could expect more, similar, cases to come unless its broken system is addressed. “In the Court’s view, the problems detected in the applicant’s particular case may subsequently give rise to numerous other well-founded applications which are a threat to the future effectiveness of the system put in place by the Convention.

“The Court’s concern is to facilitate the rapid and effective suppression of a defective national system hindering human-rights protection. In that connection and having regard to the situation which it has identified above the Court considers that general measures at national level are undoubtedly called for in execution of the present judgment.”

“Having regard to those findings, the Court recommends that the respondent State envisage taking the necessary general measures to ensure that the relevant law is effectively applied in practice and that vulnerable individuals are not detained, as well as to limit any necessary detention periods so that they remain connected to the ground of detention applicable in an immigration context, and that they are undertaken in places and conditions which are appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens in an immigration context.”

The court awarded the applicant €25,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable and a further €3,000 in respect of costs and expenses.

Aditus lawyer Neil Falzon assisted the plaintiff, while State Advocate Chris Soler represented the Government of Malta in the proceedings.

"Judgment tells Malta: stop it right now!" - Aditus lawyer

In comments to the MaltaToday, Falzon said he welcomed the decision and stressed that Malta's treatment of vulnerable people must improve.

"When he arrived, our client was a sick and traumatised child. Instead of caring for him, Malta locked him up in awful places," Falzon said. "This is a powerful judgement for our client and for human rights in Malta. It clearly tells Malta: stop it right now! Stop locking up people on false pretences, make sure you respect the rule of law and start treating people respectfully. Do better for children and other vulnerable people. We hope that our client will now be able to heal from his traumas, and that no other child will go through similar horrific experiences."