CASE OF ABDI MAHAMUD v. MALTA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1992, and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, in Ħal Far. 6. The applicant entered Malta in an irregular manner by boat on 6 May 2012. On arrival she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law below). 7. The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8. On 9 May 2012 the applicant was assisted to submit a Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta. On 21 May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC). 9. On 30 June 2012 the ORC rejected her application on the basis, inter alia, that she had failed to support her claim that she was from central/southern Somalia with convincing evidence (in particular, she had shown insufficient knowledge about Mogadishu and her speech displayed phonological, grammatical and lexical features not typical of those spoken in Mogadishu). Her appeal was also rejected by the Refugee Appeals Board (the “RAB”) on 18 December 2012. The appeal decision reads as follows: “The Refugee Appeals Board refers to a fill-in-the-blanks form received in its Office on 18 July 2012 and to a legal submission on your behalf received in its Office on 8 October 2012. The Board notes that you travelled to Libya in December 2011, first via Kenya and then via Sudan. In none of these countries did you consider applying for refugee status. During the popular insurrection against the Gaddafi regime in Libya you disembarked on the island of Malta, illegally and undocumented on 6 May 2012, claiming that you were looking for peace, although seven of your siblings still live in Somalia. You also claim that your brother had been killed by a terrorist Islamic organization, Al Shabab, because they thought he worked for the Government. However, you also claim that if there was peace back home, you would be prepared to return. Since you left, as you may know, Al Shabab has been driven out of Mogadishu and Presidential elections have been successfully held and several Somalis are repatriating. Your appeal for the grant of refugee status by Malta cannot be upheld according to law.” 10. Up to the date of the lodging of her application with the Court on 19 August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland. 11. Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalised (see paragraphs 16-19 below). She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 October 2012, she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health. According to the referral form, filled in by an official of the JRS: “Sagal has been complaining of several medical problems ever since she arrived in Malta. She had several appointments in hospital was also taken to emergency by ambulance after collapsing in detention. Sagal was also rejected by the Office of the Refugee Commission, causing her to be very depressed. Every time we visit she is in her bed crying and showing signs of severe anxiety.” 12. In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. Her impression is that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released. The Government also confirmed that eventually the applicant’s request for release on the ground of vulnerability was acceded to by AWAS. 13. Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time. 14. The applicant submitted that the Vulnerable Adult Assessment Procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which set it up, in practice the agency had full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition. 15. According to the Government the Vulnerable Adult Assessment Procedure, which was operated to assess vulnerability, was widely known within the migration sector and a policy document had been issued about it. Forms were distributed to individuals working in the sector such as NGOs. The Government submitted that the Vulnerable Adult Assessment Procedure was a quick process in straightforward cases (such as pregnant women and families with very young children) which were usually determined within two weeks. However, less straightforward cases such as assessments on the grounds of mental health, psychological problems or chronic illness, required a more complex assessment procedure which was therefore lengthier. 16. A certificate issued by a doctor in May 2012 confirmed that the applicant had been hospitalised on 7 and 8 May 2012 (upon her arrival in Malta) for dehydration, she was seen again on 15 May and 15 June of the same year. She suffered “fits” and was waiting for an appointment. 17. According to the documents provided by the applicant, after her initial hospitalisation, and apart from the two visits mentioned above, she was seen by a doctor at the state hospital around sixteen times between May and September 2012, and each time was prescribed medication. On these occasions she suffered from, inter alia, epigastric pain and nausea (repeatedly), bilateral conjunctivitis, inflammation, bleeding gums, insomnia, otalgia/earaches (also repeatedly) causing reduced hearing, as well as headaches and toothaches, and dizziness. In none of these occasions was she kept under observation overnight, or hospitalised. In June 2012 following claims by the applicant that she had been falling repeatedly, and that she was having episodes of jerking and tongue biting (which had left evident marks), the doctor requested her referral to a specified department to run the relevant tests to exclude epilepsy – the result of these tests, if undertaken, are unknown to the Court. 18. A medical certificate issued in March 2013 states that at the time the applicant was suffering from “low mood and insomnia” and had been “complaining of somatic symptoms such as chest pain”. The doctor noted “evident deterioration of her mental state” and suggested she be considered as vulnerable. 19. An attestation issued by a doctor in May 2013 states that according to available records “she has stayed unwell and been treated or referred to Mater Dei Hospital [the State hospital] more than usual” and that “her health has posed challenges in keeping her at the Ħal Far detention centre and any assistance will be appreciated”. 20. The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of layout and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A. 21. She noted that in Zone C there were over eighty (sic) single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone D was less crowded but that it still lacked privacy and sanitation. 22. She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff, other detainees and with the outside world, lack of information about their own situations, and the lack of proper arrangements for heating and cooling, leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while the inmates were still asleep to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her headscarf, to avoid embarrassing moments. 23. The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff. 24. The applicant was informed of the AWAS decision to accede to her request and was released from detention on 12 September 2013.