Communicated on 28 August 2014
FIFTH SECTION
Applications nos 52160/13 and 52165/13
Saamiyo MOXAMED ISMAACIIL against Malta
and Deeqa ABDIRAHMAN WARSAME against Malta
both lodged on 13 August 2013
STATEMENT OF FACTS
The applicant in the first case, Ms Saamiyo Moxamed Ismaaciil, is a Somali national, who was born in 1988 and is detained in Lyster Barracks, Hal Far.
The applicant in the second case, Mr Deeqa Abdirahman Warsame, is also a Somali national, who was born in 1992 and is also detained in Lyster Barracks, Hal Far.
They are represented before the Court by Dr M. Camilleri and Dr K. Camilleri lawyers practising in Valletta.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
(a) Ms Moxamed Ismaacil
Ms Moxamed Ismaacil entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number (12U-007).
At that point she was presented with two documents, one containing a Return Decision and the other a Removal Order (no copies available). The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. She claimed that the three documents were in a language she could not understand.
In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the applicant was detained. She was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks.
(b) Ms Abdirahman Warsame
Ms Abdirahman Warsame also entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number (12U-009).
She was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. 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 of 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 will remain in custody until removal is affected and that an entry ban will be issued against her. The two documents further informed the applicant of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
She was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. All these documents, in English, were not explained to Ms Abdirahman Warsame who could not understand the language.
In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the applicant was detained. She was detained in Lyster Barracks (Zone unspecified).
2. Asylum proceedings
A few days following their arrival both the applicants were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below).
Two months later, on 2 and 9 November 2012 respectively, they were called for the refugee status determination interview. By decisions of 19 January 2013, communicated to the applicants on 31 January 2013, the Refugee Commissioner (RC) rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Halane village, in Qoryooley district, in Lower Shabelle Region, in southern Somalia. Thus, they did not fulfill the eligibility criteria for either refugee status or subsidiary protection.
On 7 February 2013 with the aid of lawyers from the Jesuit Refugee Service (JRS) the applicants appealed against the decisions. The Refugee Appeals Board (RAB) informed the applicants that they had until 18 March 2013 to present submissions. This time limit was extended and appeal submissions were lodged in April 2013.
Until the date of lodging the application with this Court, that is eleven months and three weeks from the date of their arrival, no decision had been issued. They were hoping to be released on the lapse of twelve months from their arrival as per normal domestic practice.
3. Conditions of detention
(a) Ms Moxamed Ismaacil
Ms Moxamed Ismaacil was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks, in conditions which she considered prison like and basic, although she considered Zone D to be better than the latter unspecified Zone. She explained that the place was overcrowded and noisy, and it was hard to keep it clean. There were twenty persons in one dormitory and ninety-five people in the zone, with only one fridge. In summer the heat was unbearable and in winter it was too cold. They were fed the same food every day, and only allowed one hour of sunshine per day. She maintained that male detainees held in the upper floors often abused them verbally. Other factors which she considered had to be taken into consideration were her young age, her inability to communicate in any language except for Somali, and the fact that the detention centre was staffed exclusively by men. She further noted the absence of access to effective medical care, given that no interpreters were available. She had visited the clinic in the detention centre several times because she was sick, and was repeatedly told to drink water and take paracetamol tablets. Often no doctors were available and it was the soldiers at the detention centre who decided whether the issue warranted emergency treatment.
(b) Ms Abdirahman Warsame
Ms Abdirahman Warsame explained that she endured the same circumstances mentioned above by Ms Moxamed Ismaacil. She added that she was depressed and that she often felt upset and agitated, at times she would stop drinking and eating and then lose consciousness. Despite her gastric pains, no special diet was provided for her and the doctors only administered paracetamol, to the extent that she started vomiting blood. In June 2013 she was hospitalized for a week. She alleges that she has become very weak physically and started suffering from memory loss.
4. Latest developments
(a) Ms Moxamed Ismaacil
Ms Moxamed Ismaacil was released from detention on 14 August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 15 October 2013.
(b) Ms Abdirahman Warsame
Ms Abdirahman Warsame was also released from detention on 14 August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. That appeal was still pending at the date of the last correspondence by the applicant on 30 June 2014.
B. Relevant domestic law and practice
The relevant domestic law concerning the cases is to be found in Suso Musa v. Malta (no. 42337/12, §§ 23-32, 23 July 2013).
COMPLAINTS
The applicants complain under Article 3 in respect of the conditions of their detention in Lyster Barracks, they relied on Aden Ahmed v. Malta (no. 55352/12, 23 July 2013).
The applicants also complain under Article 5 § 1 that their prolonged detention for nearly twelve months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor closely connected to the purpose of preventing an unauthorised entry. Furthermore they had been detained in conditions which were not appropriate. They relied on the Court’s findings in Suso Musa v. Malta (no. 42337/12, 23 July 2013).
The applicants also complain that they did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court’s jurisprudence, to challenge the lawfulness of their detention.
QUESTIONS TO THE PARTIES
1. Did the conditions of the detention facility, namely Lyster Barracks in the Zones in which the two applicants had been detained, amount to inhuman or degrading treatment contrary to Article 3?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty, suffered by the applicants fall within any paragraph of this provision?
In so far as the detention may have been effected for the purposes of the first limb of Article 5 § 1 (f), i.e. “to prevent effecting an unauthorised entry into the country”, was the detention lawful in terms of domestic law and free from arbitrariness in the context of the first limb of Article 5 § 1 (f), namely was the applicant’s detention compatible with that provision (see Saadi v. the United Kingdom [GC], no. 13229/03, § 77 ECHR 2008 and Suso Musa v. Malta, no. 42337/12, 23 July 2013)?
3. Were the applicants able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of their detention?
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