OJEI v. THE NETHERLANDS
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
1. The applicant, Mr Justice Ojei, is a Nigerian national, who was born in 1994 and lives in Amsterdam. He was represented before the Court by Mr F.L.M. van Haren, a lawyer practising in Amsterdam. 3. The applicant lodged an application for asylum at Schiphol (Amsterdam) Airport on 30 March 2010. 4. On 31 March 2010 he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). Confronted with the fact, apparent from the Eurodac database, that he had lodged a previous asylum request in Malta, he admitted that he had done so, claiming to be an adult. He stated that he had spent eighteen months detained in a Maltese reception centre where he had been badly treated. He had been refused asylum in Malta. He had travelled by boat from Malta to Italy and overland from Italy to the Netherlands. 5. A Dublin Claim interview (gehoor Dublinclaim) was held on 1 April 2010. The applicant stated that he had left Malta because he had been refused asylum. He alleged that he had been detained underground in a prison. 6. On the same day the applicant, through his counsel, submitted a document containing corrections and additions (correcties en aanvullingen) to the report of the Dublin Claim interview and “weighty advice” (zwaarwegend advies). He stated, inter alia, that if forced to return to Malta he would be locked up for a year in an underground prison known as “Paola”. 7. On 6 July 2010 the Minister of Justice rejected the applicant’s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. The applicant had failed to make out a convincing case that he was at risk of treatment contrary to Article 3 of the Convention; moreover, he could be expected to make use of the domestic remedies offered by Malta if need be. 8. The applicant appealed to the Regional Court (rechtbank) of The Hague on the same day. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation. 9. On 3 November 2010 the Regional Court of The Hague (sitting in Haarlem) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him. 10. Having in the meantime been informed that his transfer to Malta was scheduled for 10 November 2010, on 4 November 2010 the applicant requested the President of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) to order a provisional measure in the form of a stay of deportation. On 6 November 2010 the applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division. 11. On 8 November 2010 the President of the Administrative Jurisdiction Division dismissed the applicant’s request for a provisional measure. 12. On 9 November 2010 the applicant was found to be in a psychiatric state of such seriousness that he was not fit to travel. His flight to Malta was cancelled and he was transferred to an institution for psychiatric treatment. 13. On 31 October 2011 the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning. 14. On 8 November 2010 the Court received from the applicant a request for a stay of expulsion to be indicated to the Netherlands Government. On 9 November 2010 President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Malta for the duration of the proceedings before the Court. 15. The applicant has submitted a medical statement dated 15 September 2016 from which it appears that he continues to receive psychiatric treatment. 16. The relevant European, Maltese and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98‑117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013. 17. By letter of 15 February 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following: “1. When did the applicant arrive in Malta and on what basis did he request protection (asylum, subsidiary protection or other) there? In what manner has this request been dealt with in practice; what was the outcome of the procedure and was the applicant provided with shelter, subsistence and medical care during this time? The applicant entered Malta in an irregular manner on the 3rd September 2008. Upon arrival, the applicant was served with a removal order and was put in the detention centre. Whilst in detention, the applicant was housed in a sheltered compound with adequate bedding and was provided on a daily basis with breakfast, lunch and dinner. The applicant was also given clothing and supplies to cater for his personal hygiene. Furthermore, the detention centres are equipped with the services of a medical practitioner and the services of a nurse and these services are available on a daily basis in order to assist and cater for the medical needs of persons in detention. The applicant requested international protection at the Office of the Refugee Commissioner on the 24th September 2008. The applicant requested asylum on the basis that he claimed that he was next in kin to become the king in his village but this was not accepted by his uncle who had poisoned his father and brother and had, therefore, instilled fear for personal safety in the applicant. In the applicant’s preliminary questionnaire which was conducted on the 24th September 2008, the applicant declared that he was born on the 20th March 1985. On the basis of this information, the applicant was presumably 22 years old upon arrival. The applicant did not mention that he suffered from any particular medical condition. On the 5th June 2009, the applicant sat for his asylum determination interview and he again confirmed his date of birth. The applicant added that apart from the problem that he had with his uncle in his country of origin, that is, Nigeria, there were no further problems in his country. On the 20th June 2009, the Refugee Commissioner rejected the applicant’s asylum application. On the 16th July 2009, the applicant appealed from the decision by filing an application before the Refugee Appeals Board. The appeal is still pending given that the applicant absconded from Malta in the meantime. Furthermore, the applicant was released from detention on the 3rd September 2009 and was moved to an open centre which is run by the Agency for the Welfare of Asylum Seekers. The applicant had free medical care when he was accommodated in the open centre given that his asylum application is still pending in the appeals board. The applicant remained in the open centre until the 26th February 2010 and left the open centre without leaving any contact details. 2. What, if any, concrete, practical and effective steps are taken by the Maltese authorities to ensure that aliens returned to Malta under the terms of the Dublin II Regulation, considering also that the applicant is a minor with a medical condition, are provided with shelter, subsistence and medical care upon arrival in Malta? The Government wishes to emphasize that the applicant always declared that he was not a minor upon his arrival: in fact the date of birth given to the local authorities makes it clear that the applicant was 22 years old upon arrival in Malta. Moreover, the applicant never complained that he suffered from any medical condition. When aliens are returned to Malta, they are not being taken into police custody unless it results that an offence was committed by them in Malta. Moreover, given that the applicant’s appeal is still pending, he is still considered to be an asylum seeker, and the applicant will be housed if he so wishes in the open centres where he will have access to free medical care pending the determination of his appeal. Moreover, if it is established that the applicant is a minor, the Agency for the Welfare of Asylum Seekers provides its services to unaccompanied minor asylum seekers under a ‘care order’ issued in terms of the Children and Young Persons (Care Orders) Act.” 18. The applicant replied on 13 March 2012, stating that living conditions in the open centres were very bad and unsuited to persons in his condition. 19. Appended to the applicant’s reply were: (a) a report by the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, following his visit to Malta from 23 to 25 March 2011 (CommDH(2011)17, 9 June 2011). On the subject of open centres, this report stated the following: “21. Material conditions in the open centres visited by the Commissioner were clearly sub-standard, with the Hal-Far tent village offering totally inadequate conditions of accommodation even for short periods of time. The village, which at the time of the visit hosted approximately 600 migrants, mainly from Africa, consists of tents, some of which had been damaged due to bad weather conditions, and containers, as well as offices, a classroom, sanitary facilities, a mosque, and a restaurant. Each tent is shared between approximately 20-25 men who sleep in bunk beds. The tents were clearly overcrowded and offered no privacy. Residents have complained to the Commissioner about bad sanitary conditions, including having to share the same space with persons who are sick, and about the very cold temperatures in the facilities in the winter and hot temperatures during the summer. The presence of rats was also reported by migrants. The tent village has a building with toilets, showers and basins for laundry. However, hot water is reportedly not always available. A female migrant stated that she avoided using the toilets at night as she felt unsafe covering the considerable distance between them and the container where she was accommodated. Reportedly the tent village was served by one social worker and one nurse. For medical services migrants were referred to centres outside of the tent village. 22. At walking distance from the tent village another complex, the Hangar Open Centre in Hal-Far, which includes a few dozen containers and a dilapidated hangar, accommodated approximately 500 migrants, mainly from Africa. At the time of the visit, the Commissioner noted that certain women and families with children were accommodated in containers separately from the male migrants. In the centre there was a recent building that included toilets and showers. The hangar was closed and not in use. However, the Commissioner was informed that following the new arrivals from Libya since his visit, the hangar has been re-opened and that tents have been placed inside of it to accommodate migrants. Material conditions in the hangar are reported to be seriously sub-standard, with lack of adequate bedding, dirty floors, toilets (which are shared by men, women and children), and kitchen, insufficient lighting, and the presence of rats. These conditions are all the more worrying as the Commissioner understands that a number of family units with young children are accommodated there, as mentioned below. 23. Conditions were somewhat better at the open centre in Marsa with approximately 600 male residents mostly from Somalia and Sudan. Unlike the tent village and hangar complex in Hal-Far, which are run directly by the Agency for the Welfare of Asylum Seekers (AWAS) the running of the centre in Marsa is subcontracted by the authorities to a non-governmental organisation (the Foundation for Shelter and Support to Migrants). The Commissioner notes that extensive refurbishment work, which would allow for better conditions and a more functional distribution of space, were underway during his visit. At the time of the visit however, serious overcrowding was still very obvious. Toilets visited by the Commissioner, although they had been cleaned, appeared to be run down, while the whole area of the open centre in Marsa, situated near a port, was covered by a smell which appeared to be caused by stagnating water in a neighbouring canal.” (b) two reports by Schweizerische Flüchtlingshilfe, a Swiss NGO engaged in providing assistance to asylum-seekers and refugees, the first dated 6 September 2010, the second dated November 2011. Both describe the open centres as squalid and overcrowded and basic facilities, including for vulnerable groups, as insufficient. (c) two letters from a child and juvenile psychiatrist who was treating the applicant, dated 23 February and 1 March 2012, describing the applicant as psychotic and potentially suicidal and expressing concern that conditions for the applicant’s reception in Malta should be appropriate to his mental state. 20. On 30 December 2015 the Maltese Minister for Home Affairs and National Security published a paper entitled “Strategy for the reception of asylum seekers and irregular migrants”. The following is taken from this document: “Malta’s ratio of asylum seekers in proportion to population has consistently been among the highest, and very often the highest, among all EU Member States. In fact, Malta received a total of 20.2 asylum applications per 1,000 inhabitants between 2009 and 2013, compared to an EU average of 2.9. It is also to be stated that the Maltese Office of the Refugee Commissioner does not only receive international protection applications from irregular migrants; for during 2014 up to 824 asylum applications were also received from migrants who applied directly at the Office of the Refugee Commissioner. All this goes a long way to show that even though asylum applications may be generally constant, the number is at the same time elevated when compared to the country’s geo-physical and social circumstances and realities. Matters are further complicated by the fact that a majority of those who seek international protection in Malta are actually found to be deserving of such protection. This means that these people do not only require immediate reception arrangements, but also long-term solutions. In view of the abovementioned circumstances, conditions in reception centres have been rendered difficult during certain periods; however over the last few years several initiatives were carried out in order to improve the living conditions of irregular migrants and asylum seekers residing in such centres, including by means of EU funding mechanisms. Similar to previous years, apposite European funding mechanisms and national funds will be utilised for the provision of adequate food supplies, bedding, clothing and medical support among other initiatives. Investment will also continue being made in reception facilities, where the required refurbishment initiatives in open and closed centres will be undertaken. Furthermore, Malta’s Open Reception capacity will be enhanced by means of a new Reception Facility, with the utilisation of EU funds, in order to better address current and future needs. The present document seeks to build upon the existing reception system, introducing improvements at several stages with a view to ensuring compliance with new EU obligations, as well as to improve the system from the perspective of national security on the one hand and humanitarian and human rights considerations on the other.” (page 3) and “Asylum seekers and beneficiaries of international protection released from the Initial Reception Facility or from Detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres managed by the Agency for the Welfare of Asylum Seekers, or an entity or NGO working in partnership with the Agency. Such accommodation shall also be offered, on the same terms and conditions, to asylum seekers who would have reached Malta regularly, wherever Malta is the State responsible for determining their asylum application, and to beneficiaries of international protection granted protection by the Maltese authorities who would have been resettled or relocated into Malta. ... Persons accommodated at Open Centres shall be provided with accommodation free of charge and, so long as they are not employed, with an allowance intended to cover daily expenses, such as meals and transport. Migrants considered vulnerable, with the exception of unaccompanied minors, shall also be accommodated at Open Centres as per above. However, such persons shall be offered additional support, be it psychological, medical or otherwise as required.” (page 19) 21. The United Nations Human Rights Council’s Working Group on Arbitrary Detention visited Malta between 23 and 25 June 2015. Its report of this visit was published by the Human Rights Council on 23 June 2016 (UN document A/HRC/33/50/Add.1). The following is taken from this report (page 10, advance unedited version): “37. The Working Group also visited Hal Far Open Centre for immigrants, outside Valetta, run by the Ministry for Social Affairs. The centre has a capacity for 800 persons. 260 were persons present during the Working Group’s visit. In the open centres, migrants enjoy freedom of movement but are requested though they are requested [sic] to undergo daily movement registration and provide details of their whereabouts. 38. The Working Group received information that 889 persons were living in three open centres including Hal Far, which consisted of prefabricated container housing units that had replaced scores of tents. Most of them were asylum-seekers awaiting decisions on their applications. Some migrants whose applications for asylum had already been rejected were also hosted there. Residents were suffering uncomfortable living conditions given inadequate ventilation and high temperatures in the summer months, in addition to the overcrowded condition in each unit. Residents were referred to the centre by immigration authorities. 39. The Working Group was informed that although the open centres were locked and guarded by security officers, residents were allowed to enter and exit the premises freely. Residents were allowed to stay for a maximum period of one year. Their beds would be restored after three weeks of absence so that it could be assigned to another migrant in need. It was brought to the attention of the Working Group that some residents arrived at the centre in April 2014, which means that they had been held there for more than 12 months. The Working Group was informed that during their stay at the open centre, residents were offered accommodation; free food, and were provided with a transportation allowance to enable them to travel to the city centre. In addition, the Working Group was informed that the centre would provide English language courses, computer training and cultural orientation.” 22. There is a prison in Paola. Its official name is Corradino Correctional Facility. Conditions of detention in this institution were the object of Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 104-129, 29 October 2015.