The European Court of Human Rights and the Distinction Between Deprivation of Liberty and Restrictions on Movement

Over the years, there have been a number of cases brought forward against Malta at the European Court of Human Rights alleging human rights violations concerning asylum seekers and refugees.

Three of these cases include Louled Massoud v. Malta, Aden Ahmed v. Malta, and Mahamed Jama v. Malta.

The question of whether the applicants had exhausted all domestic remedies prior to bringing their claims before the Court was addressed in each of the three cases.

Before examining a claim, the Court often requires that the parties have exhausted all available domestic remedies. This ensures that the domestic courts have had a chance to address the alleged infringement of human rights.

The incidents brought to light issues with how irregular immigrants and asylum seekers are treated in Malta.

They drew attention to problems with poor living conditions, insufficient access to basic amenities, and overcrowding in detention facilities, all of which may be considered violations of Article 3.

The cases also explored concerns pertaining to Article 5’s guarantee of liberty and security, particularly in relation to the detention of irregular immigrants and asylum seekers.

The right to liberty as stated in Article 5 is frequently tested in situations involving post-arrest detention or convictions where violations frequently occur.

In order to determine whether a person has been “deprived of his liberty” as defined by Article 5, a review of their particular situation becomes essential.

It is necessary to take into account a number of variables, such as the measure’s type, duration, effects, and mode of implementation.

The circumstances surrounding the application are important since modern society regularly faces circumstances that call for the public to accept restrictions on freedom or liberty in the interest of the common good.

The Court looks at a number of factors when making this distinction between total deprivation of liberty and restrictions on movement, particularly when it comes to situations where migrants are detained in reception centres for the purpose of identification and registration.

These include the particular circumstances and decisions made by the applicants, the goals and legal framework of the host nation, the length of time of the detention and for what purpose, the procedural protections afforded to applicants while the decision is still in progress, and the scope and degree of the limitations encountered by the applicants.

Article 5 of the Convention of Human Rights

Article 5 of the Convention contains three important guarantees.

It defines a basic right to liberty, specifies the conditions under which a person’s freedom may be lawfully restrained in exceptional cases, and provides certain procedural safeguards.

The clause protects people’s right to personal freedom and security, albeit it does not specifically provide anyone the right to enter the country, the right to protection from deportation, or the right to refuge for anyone who is in danger in their own country.

Article 5(1)(f) is particularly relevant when discussing migrant detention because it allows for “lawful arrest or detention to prevent unauthorized entry into the country or for individuals undergoing deportation or extradition procedures.”

However, this kind of detention requires that the primary goal of preventing unauthorized entry must be done in good faith.

Case Examples

Louled Massoud v. Malta (Application no. 24340/08, 27 July 2010)

Despite Maltese government policy dictating an eighteen-month maximum period of custody for immigrants, Louled Massoud was detained for more than eighteen months following the decision on his claim.

The applicant argued that his extended confinement was arbitrary given that it ignored his unique situation and instead rigorously followed a set protocol.

He contended that the decision to detain him was made solely because of the general policy and did not take into account the lack of reasonable prospect of return.

In response, the Government said that the applicant’s alleged lack of cooperation was the reason for the extended detention.

In reviewing the Government’s position on the difficulties associated with deportation due to inadequate paperwork and cooperation, the Court expressed disapproval for the lack of information on the procedures followed in order to obtain the required documentation.

The Court emphasized that it was not acceptable to detain someone on the grounds that they were expected to be deported if it was clear early on in the process how difficult deportation would be.

As a result, the Court cast severe doubt on the legitimacy of the grounds for detention.

The Court determined that there was a violation of Article 5(1) because of the unjustifiably prolonged duration of detainment, even though it acknowledged the legal grounds for the applicant’s detention under the Immigration Act.

Aden Ahmed v. Malta (Application no. 55352/12, 23 July 2013)

The case of Aden Ahmed had a very similar scenario.

The applicant was moved to a detention centre upon serving her sentence of imprisonment, pending her eventual relocation from Malta.

However, the applicant was a Somalian citizen, and documentation indicated that there had never been a successful deportation to Somalia, which was consistent with the UN High Commissioner for Refugees’ position on returns.

The applicant also applied for aid from the Agency for the Welfare of Asylum Seekers, pointing out areas of vulnerability and asking to be released from detention.

It was made evident that there were no feasible return options, making deportation impracticable.

This implied that it would be impossible to carry out the processes with due diligence.

Like in the Louled Massoud case, the Court found that it was evident that the Government had not provided information about return mechanisms or verified
their commencement, much less actively pursued them.

Mahamed Jama v. Malta (no. 10290/13, 26 November 2015)

The case of Mahamed Jama is a bit of an outlier in this regard, as the purpose of the applicant’s detention pending her age assessment and the processing of her asylum claim fell under the first limb of Article 5(1)(f), namely to prevent an unauthorised entry.

The applicant claimed to be a minor at first, but further evidence established her as an adult, and the Court could not ignore this fact.

Consequently, the length of time that was required to confirm the applicant’s age was judged to be appropriate in this particular situation and compliant with Article 5(1).

However, the applicant was detained for an extra five days after being granted her subsidiary protection, which was against Article 5(1) for that particular time frame.

Thus, while the former two aforementioned cases involved a very lengthy violation of Article 5(1), the case of Mahamad Jama only consisted of a violation pertaining to a few days.

Commonalities Between the Three Cases

Something else that the three cases have in common is that they all consist of a violation of Article 5(4).

As per this clause, states are obliged to provide for domestic legal remedies in cases of a breach of the Convention.

This is crucial to lowering the flow of cases that arrive to the Court.

In order to apply to the Court, applicants must first exhaust domestic remedies, as per Article 35, however this is not possible if such domestic remedies are not effective or readily available.

The requirement to exhaust domestic remedies is intended to give the State an opportunity to address and correct any alleged violations prior to these claims being brought before the Court.

This policy is based on the assumption that there are efficient remedies in the domestic system for alleged violations of human rights.

The appropriate domestic authority should have been consulted first on any complaints brought before the Court, in accordance with the official processes and deadlines mandated by domestic legislation.

It is crucial to note that even though this procedure is necessary, domestic courts are not obligated to follow the European Court’s exact standards.

For example, the European Court might focus on a decision over an alleged violation of Article 3, while domestic courts might focus on appropriate application of the law, rationality in judgments, and adherence to formalities.

Given the continuous violations of Article 5(4), it is safe to say that Malta does not (or at the very least, did not at the time) have effective domestic remedies available to process these claims on a local level.

In the case of Louled Massoud, the Government actually made an objection stating that the applicant did not exhaust domestic remedies, but this objection was rejected on the grounds that the domestic remedies in question were not effective, hence the violation of Article 5(4).

Article 3 of the Convention

Article 3 is a crucial component of the Convention that is particularly relevant to cases brought forward by asylum seekers.

This article defends the absolute prohibition of torture and all other forms of cruel, inhuman, or humiliating treatment or punishment.

This principle is often considered a fundamental tenet of democratic societies.

The prohibition is still in effect regardless of a person’s conduct, and even in times of public crisis such as the rapid influx of refugees and asylum seekers.

When the Court issues decisions pertaining to asylum seekers, it regularly finds indirect violations of Article 3 where the applicant may be deported or extradited to a state where there is a possibility that they would be subjected to treatment that is incompatible with the provisions of this article.

In this situation, Article 3 is often used as a supporting clause to the principle of non-refoulement. However, a direct violation would involve mistreatment in the host country, and this is often true in the cases brought against Malta.

Of all cases being discussed in this essay, only the case of Aden Ahmed was found to be in violation of Article 3.

The reason for this was the substandard conditions that prevailed at the Lyster Barracks Detention Centre located in Hal Far.

Particular problems included overcrowded dormitories, inadequate blankets and heating, no female staff at the facility, and little opportunity for inmates to go outside and enjoy recreation spaces and fresh air.

The Court recognized the precariousness of her circumstances, attributed to her irregular immigration status as well as the emotional challenges she encountered which were exacerbated by her fragile health.

Mahamed Jama alleged a violation of Article 3, however the Court declared that there was no breach as the degree of overcrowding was not severe enough, the unspecified duration of the limitation on access to the yard did not reach the relevant threshold, and the sanitary facilities were not a cause for concern.

This might seem nonsensical as the applicant was detained in the same facility as Aden Ahmed. However, the rulings were conducted two years apart, so perhaps it is the case that the conditions changed.

That being said, Judge Casadevall had a dissenting opinion in this regard. He believed that the detention conditions’ cumulative effect, as documented in the several reports analysed in the ruling, amounted to cruel and inhumane treatment that violated Article 3.

Conclusion

Louled Massoud v. Malta, Aden Ahmed v. Malta, and Mahamed Jama v. Malta share similarities in terms of the core human rights issues raised under Articles 3 and 5 of the European Convention on Human Rights, particularly in relation to the treatment of migrants and the conditions of detention.

The aspect of the non-exhaustion of domestic remedies is also covered. Despite these commonalities between the three cases, the primary distinctions are found in the particular facts of each case, the unique situations of the applicants, and the conclusions reached by the Court regarding the exhaustion of domestic remedies and the infringements of Articles 3 and 5 of the Convention.

Together, these decisions highlight the Court’s position on how irregular immigrants and asylum seekers are treated, stressing how crucial it is to provide humane circumstances and procedural protections in detention settings.

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