Aden Ahmed v. Malta

The applicant was a Somalian who irregularly entered the Republic of Malta where she applied for an asylum on 18 February 2009. Following the rejection of her application, she escaped from the detention center in Malta and irregularly entered the Netherlands in May 2009. On 11 February 2011, the applicant was returned to Malta and detained in there; she was two months pregnant at the time. On 17 February 2011, she was found guilty of the criminal charges relating to her escape, making false statements and making use of forged documents. The court sentenced her for 6 months imprisonment with an order requiring that all necessary medical attention be given to her given her condition during her detention.

On 19 February 2011, the applicant was taken to a hospital where she was treated and returned to the prison which had small cells and exposure to constant passive smoking. The applicant claimed that she had suffered from lack of medical attention while detained in there. The applicant was then admitted to and miscarried at the Asylum Seekers’ Unit of Mount Carmel Hospital (a ward in the psychiatric hospital where male and female immigration detainees and female prisoners are kept)in March 2011. 

She claimed that she wasn’t given proper treatments after she started bleeding and this had led to her miscarriage. She also claimed that the rooms in the ward lacked proper blankets and were small that they had no space for an exercise. She was also denied her request for drinking water and proper washing facilities after her operation.  On 17 June 2011 the applicant was released and placed in a detention center to be removed from Malta. She stated that she was severely depressed while detained and that the conditions of her detention were problematic.

With the assistance from the Jesuit Refugee Service (“the JRS”) in Malta and the Agency for the Welfare of Asylum Seekers (“AWAS”), the applicant tried to collect her asylum documents and to be released from detention due to her state of mental health worsened by the prolonged detention, supported by medical evidence. On 30 November 2011, she was informed by the Refugee Commissioner that her condition didn’t satisfy the requirements to be given temporary humanitarian protection as she hadn’t faced any real risk of harm. Her documents were provided to her by the end of February 2012.

While waiting for AWAS’s assessment, the applicant lodged an application on 14 February 2012 stating that “her continued detention was no longer reasonable and requested the Board to order her release from custody in view of the fact that there was no reasonable prospect that the immigration authorities would be able to enforce her removal to Somalia within a reasonable time. In her application she also noted that, in practice, no one was ever deported from Malta to Somalia. She also submitted a social worker’s report attesting to the fact that her psychological health was suffering as a result of her prolonged detention and noting that she had also miscarried while in prison”.[Para. 25] 

On 29 February 2012, the Principal Immigration Officer responded to the applicant stating, among other things, that her detention was brought upon by herself and thus, was required by law; she had created a public health risk by escaping medically uncleared; she was receiving psychological treatment while detained and thus her release wasn’t advisable.  The applicant’s application was never reviewed and decided by the board. The applicant was released on 30 August 2012 after spending 18 months as required by the government’s policy.

The applicant complained to the European Court of Human Right (the ECHR) stating that the conditions of her custody in the period from 5 February 2009 to 30 August 2012 amounted to cruel, inhuman or degrading treatment in violation to Article 3 of the European Convention on Human Rights (the Convention). 

The government of Malta objected the claim on the ground that the applicant hadn’t exhaust domestic remedies available to her as she hadn’t instituted civil actions or constitutional redress proceedings.The applicant argued that these remedies were available in theory and not for a person in her situation at the time. She also asserted that their effectiveness was questionable due to their duration. She also stated that the government had failed to show that civil actions (tort claims) in domestic courts could have remedied her moral damage.

The ECHR emphasized that the application of the rule of exhaustion of domestic remedies takes in to account the availability and sufficiency of the remedies, the legal and political context in which the remedies operate and the personal circumstances of applicants. The rule wasn't absolute and wasn't to be applied automatically without regard to such circumstances. The ECHR also observed that the speed of the procedure is relevant in deciding whether the remedy was effective. The government's objection was dismissed and the complaint was admitted.

The ECHR reiterated the state's obligation to ensure that a person is detained under conditions compatible with respect to human dignity and observed the circumstances of the applicant's detention. The ECHR noted that the applicant was vulnerable due to her health condition as her medical records showed that she suffered from insomnia, recurrent physical pain and depression for which she had at least fourteen medical visits during her detention. Her suffering from cold and heat and the lack of female staff in the detention centre had caused her discomfort as she suffered from medical conditions resulting from the miscarriage.

Moreover, the ECHR noted that the government failed to prove that the food provided to the applicant was adequately appropriate for the state of health she was in. The ECHR thus held that "the applicant, as a detained immigrant, endured for a total of fourteen and a half months, and in the light of the applicant’s specific situation, the Court is of the opinion that the cumulative effect of the conditions complained of diminished the applicant’s human dignity and aroused in her feelings of anguish and inferiority capable of humiliating and debasing her and possibly breaking her physical or moral resistance." [Para. 99] The ECHR found that the conditions of the applicant's detention amounted to degrading treatment in violation of Article 3 of the Convention. 

The ECHR also found a violation of Articles 5(1) and 5 (4) of the Convention due to the government's failure to provide the applicant with a speedy review of the lawfulness of her detention and to take steps to pursue her timely removal. Non-pecuniary damages are awarded for the applicant.

"...ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3." [Para. 85]