Legal summary
October 2024
J.B. and Others v. Malta - 1766/23
Judgment 22.10.2024 [Section II]
Article 5
Article 5-4
Review of lawfulness of detention
Immigration Appeals Board not an effective remedy for the review of the lawfulness of detention: violation
Article 46
Measures required to ensure the Immigration Appeals Board’s conformity with independence and impartiality requirements and establish an effective remedy for ongoing conditions of detention complaints
Facts – The six applicants, Bangladeshi nationals, arrived in Malta in November 2022 after being rescued at sea. They claimed that they were minors, allegedly born in 2005 and 2006 respectively. For about two months they were held in a reception House (the Hal Far Initial Reception Centre - HIRC) with other adults and for another four months in the Safi detention centre with other minors. The lawfulness of their detention was confirmed by the Immigration Appeals Board (IAB). The applicants lodged appeals with the IAB against the age-assessment decision finding that they were all adults. The first applicant’s appeal was dismissed but those of the remaining applicants were upheld. The first applicant left Malta in August 2024 and the remaining applicants were released in May 2023 or sometime later.
Law – Article 3 (substantive aspect):
With regard to the second, third, fourth, fifth and sixth applicants, the Court observed that despite being presumed minors, a matter acknowledged by the authorities, they had been hosted with adults for around two months in HIRC. The mere fact that this had been allowed under domestic law had no bearing on the assessment for the purposes of Article 3. The Court found that the cumulative conditions of their detention, particularly given their age, the total length of their detention in both venues, the material conditions in the HIRC and its lack of appropriateness for accommodating children, as well as their vulnerability and the effects of detention on a minor’s psychological condition, had amounted to inhuman and degrading treatment.
On the contrary, with regard to the first applicant, on the basis of the case file, including his final age assessment, the Court found that, for nearly or possibly the entirety of the period held in HIRC the first applicant could not have been considered a “presumed minor” in the eyes of the authorities. The Court was also not convinced that the conditions of detention in the HIRC, although regrettable, could be considered to have reached the required threshold for the purposes of Article 3 in respect of an adult who had not been more vulnerable than any other adult held at the time. Furthermore, although the Court was concerned as to the duration of the first applicant’s detention in the Safi detention centre, in the absence of other specific circumstances, the material available and the applicants’ general submissions were not sufficient to find that the cumulative effect of the conditions complained of had reached the threshold of Article 3.
Conclusion: violation in respect of the second, third, fourth, fifth and sixth applicants (unanimously); no violation in respect of the first applicant (unanimously).
Article 13 in conjunction with Article 3:
The Court found no reason to alter the conclusions already reached in the previous cases against Malta that constitutional redress proceedings were not an effective remedy for the purposes of complaints of ongoing conditions of detention under Article 3. Indeed, since that finding in Story and Others v. Malta, confirmed in a number of subsequent judgments, the situation had not changed. The Government’s submissions did not go further than those they already submitted in recent cases of the like nor had they claimed that there had been any other remedy available to the applicants in that respect.
Conclusion: violation in respect of all the applicants (unanimously).
Article 5 § 4:
The Court had already held that a remedy for the purposes of Article 5 § 4 must have a judicial character and in particular that the principles developed in the context of Article 6 § 1 concerning independence and impartiality applied equally to Article 5 § 4. Bearing in mind that the IAB’s decisions were not subject to subsequent control by a judicial body that had “full jurisdiction” which could ensure respect for the relevant guarantees by curing any failing, the Court examined whether the IAB had fulfilled the above requirements in the present case.
The IAB was a body entirely constituted of non-professional judges. The Government had failed to usefully rebut the applicants’ arguments concerning the lack of a proper procedure for the appointment of the IAB’s members and the absence of proper selection criteria based on merit. Neither had the Government indicated the existence of any guarantees against outside pressure nor commented on whether that body presented an appearance of independence. The public material that had been provided by the applicants supported their analysis of the connections of the members of the IAB to the executive, in particular in so far as they held various government jobs. Moreover, the Government seemed to acknowledge that such body was not appointed with the same rigour as other judicial bodies. The Court was not able to conclude that there was a clear and transparent process for selecting the IAB members, nor had there been a possibility to challenge their appointment.
Additionally, the principle of irremovability of judges could not provide protection given the members’ short mandates (three years); they were eligible for re-appointment; they could be dismissed by the Minister), albeit on limited grounds; and there was no indication of any procedural or substantive safeguards against the discretionary exercise of that power. In other words, the members’ initial mandates, their reappointment to that body as well as to other government bodies – which, considering the multiple appointments for each member, certainly constituted a substantial financial interest – depended on the satisfaction of the executive, whereas the practice of resigning at each general election supported the idea that IAB membership was a mere political appointment.
Lastly, both the European Commission and the Venice Commission had expressed serious concerns about the functioning of tribunals similar to the one at issue in the present case.
Bearing in mind all the above, and in the absence of any relevant safeguards, the Court considered that the applicants’ doubts as to the independence of the IAB had been legitimate.
Turning to the circumstances of the case, the Court expressed doubts as to the scope of the initial review which had been undertaken six days after the detention order had been imposed on the applicants, in the absence of any considerations on the lawfulness of their detention in the light of all (but the first) applicants’ proclaimed age, and therefore their best interests and/or the question of alternatives to the detention in that light. Furthermore, a further assessment of the lawfulness of their detention did not ensue in the five and a half months that followed until their release, despite domestic law providing that it should have taken place after two months. Nor had the applicants received a reply to their request for an urgent hearing. While a breach of time-limits for automatic reviews established in law did not necessarily amount to a violation of Article 5 § 4 if the review proceedings of the lawfulness of detention were decided speedily, in the circumstances of the case, more than five months without any automatic review could not be considered compliant with Article 5 § 4 in the context of a remedy in connection with detention falling under the first limb of Article 5 § 1 (f).
No other effective remedies had been put forward by the Government. In any event, bearing in mind that the applicants had resorted to the specific remedy put in place by the Government in that regard, it was that remedy which had to conform to the requirements of Article 5 § 4.
The Court thus concluded the applicants had not had an effective remedy for the purposes of Article 5 § 4.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 5 § 1 in respect of all the applicants as regards their initial detention between 18 and 30 November 2022 on the ground that it had not been lawful within the meaning of that provision. With regard to their subsequent detention, after 30 November 2022 until their release, it found, unanimously, that it had been arbitrary and thus in breach of Article 5 § 1 in respect of the second, third, fourth, fifth and sixth applicants but in compliance with that provision insofar as the first applicant was concerned.
Furthermore, the Court decided, unanimously, to lift the indication made to the Government under Rule 39 of the Rules of Court as, according to the information provided by the parties, the first applicant had left Malta and the remaining applicants had been released.
Article 46: Since the problems detected in the applicants’ case might subsequently give rise to numerous other well-founded applications, the Court considered that general measures at national level were called for in execution of the present judgment. Firstly, in relation to its finding of a violation of Article 5 § 4, it called on the Government to put legislation in place ensuring the IAB’s conformity with the requirements of independence and impartiality, having regard to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the necessity for that body to present an appearance of independence. Secondly, as regards its finding under Article 13 in conjunction with Article 3, the Court formally called on the Government to put in place a domestic remedy, which was effective both in law and practice, for complaints about the conditions of ongoing detention.
Article 41: EUR 9,000 to the first applicant and EUR 15,000 to each of the remaining applicants in respect of non-pecuniary damage.
(See also Story and Others v. Malta, 56854/13 et al, 29 October 2015, Legal Summary; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal Summary; Dolińska-Ficek and Ozimek v. Poland, 49868/19 and 57511/19, 8 November 2021, Legal Summary; A.D. v. Malta, 12427/22, 17 October 2023)
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This summary by the Registry does not bind the Court.
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