EGMR

[...]

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

29. The applicant complained that the Maltese legal system had not provided him with a speedy and efficient remedy, contrary to Article 5 § 4 of the Convention, which reads as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

30. The Government contested that argument. [...]

2. General principles

39. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the "lawfulness" of his or her deprivation of liberty. The notion of "lawfulness" under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the "lawfulness" of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181). The remedies must be made available during a person's detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see ?onka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I). Article 5 § 4 of the Convention refers to domestic remedies that are sufficiently certain, otherwise the requirements of accessibility and effectiveness are not fulfilled (see Kadem v. Malta, cited above, § 41).

40. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009-...).

41. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II). The question whether a person's right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII). While Article 5 § 4 of the Convention does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant's submissions, its guarantees would be deprived of their substance if the judge could treat as irrelevant, or disregard, particular facts invoked by the detainee which could cast doubt on the existence of the conditions essential for the "lawfulness", in the sense of the Convention, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 91, ECHR 1999-II).

The Court's assessment

42. The Court notes that the parties are in disagreement as to the effectiveness of the remedies invoked. It will therefore consider each remedy on the basis of the available information and the parties' submissions.

43. The Court notes that the applicant claimed that Article 409A was not an effective remedy for the purposes of the Convention in that it stopped short of examining lawfulness in the light of the requirements of the Convention. Indeed, the Court observes that the relevant courts entrusted with hearing applications under the said Article have acknowledged their limited competence, holding that they were not competent to look into other circumstances which could render detention illegal, such as an incompatibility with the rights granted by the Constitution or the Convention when there was a clear law authorising continued detention (see paragraph 21 above). The Government have also acknowledged that this was the ordinary interpretation of the relevant domestic courts (see paragraph 35 above). In these circumstances the Court is of the view that the remedy under Article 409A did not provide a review of the "lawfulness" of detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. In consequence, it cannot be considered as an effective remedy for the purposes of Article 5 § 4. It follows that the Court cannot agree with the Government that the applicant should have tried such a remedy.

44. As to the remedy before the IAB, the Court considers that, even assuming that it could be considered as a judicial authority competent to grant release, the relevant legal provision is limited by the fact that a request for release from custody has no prospect of success in the event that the identity of the detainee, including his nationality, has yet to be verified, in particular where he has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities (see paragraph 19 above). Moreover, the Court cannot ignore the fact that, notwithstanding the high number of irregular immigrants arriving on Maltese shores, being detained and taking up this procedure, over recent years the Government have only submitted four cases where the remedy was successful. The Court observes that in each of these cases the individuals making the request were vulnerable, either because of their age, their medical condition or disability, and it was in view of the latter reasons that release was granted on the basis that the length of their detention had become unreasonable. Furthermore, it appears from the applicant's submissions substantiated by the relevant testimony (see paragraph 23 above) that these proceedings take at least one month to be decided and may last as long as three months or more. Indeed, it appears that there have been cases where the decision was not rendered before the actual release date of the detainee according to Government policy, rendering such a remedy devoid of any legal or practical effect (see, mutatis mutandis, Frasik v. Poland, no. 22933/02, § 66, 5 January 2010). The Government have not denied any of the above evidence or at least brought proof of other cases which were decided promptly by the IAB. It follows that these proceedings cannot be considered to determine requests speedily as required by Article 5 § 4 of the Convention (see, mutatis mutandis, Rehbock v. Slovenia, cited above §§ 82-86, in which the Court considered that a delay of twenty-three days in deciding on the applicant's claims for immediate release was excessive, Khudyakova v. Russia, no. 13476/04, § 99, 8 January 2009 and Kadem v. Malta, cited above, §§ 43-45, where the Court held that periods of fifty-four and seventeen days respectively for examining an appeal against proceedings concerning detention pending extradition had been too long). For all the above reasons the Court considers that the proceedings before the IAB cannot be considered as satisfying the requirements of Article 5 § 4 of the Convention.

45. Lastly, the Government submitted that there also existed a constitutional remedy of which individuals could avail themselves to complain about the length of their detention. In this respect the Court reiterates that constitutional proceedings in Malta are rather cumbersome for Article 5 § 4 purposes and that lodging a constitutional application could not ensure a speedy review of the lawfulness of an applicant's detention (see Sabeur Ben Ali v. Malta, cited above, § 40, and Kadem v. Malta, cited above § 53). The Government have not submitted any information or case-law capable of dispelling this conclusion. In these circumstances, the Court remains of the view that pursuing a constitutional application would not have provided the applicant with a speedy review of the lawfulness of his detention.

46. The foregoing considerations are sufficient to enable the Court to conclude that it has not been shown that the applicant had at his disposal under domestic law an effective and speedy remedy for challenging the lawfulness of his detention. [...]

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

48. The applicant complained that his detention following the determination of his asylum claim had been arbitrary and unlawful, in terms of Article 5 of the Convention, which in so far as relevant reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. [...]

2. General principles

58. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to "everyone".

59. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008-...). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context.

60. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports 1996-V).

61. The deprivation of liberty must also be "lawful". Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. The words "in accordance with a procedure prescribed by law" do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur v. France, 25 June 1996, § 50, Reports 1996-III).

62. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of "arbitrariness" in Article 5 § 1 extends beyond a lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United Kingdom, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], cited above, § 164).

3. The Court's assessment

63. The Court notes that the applicant's detention in prison fell initially under Article 5 § 1 (c), namely, the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. It subsequently fell under sub-paragraph (a), namely, the lawful detention of a person after conviction by a competent court. These periods do not raise an issue before the Court.

64. After he served his sentence, the applicant was transferred to a detention centre and detained "with a view to deportation" within the meaning of Article 5 § 1 (f). It follows that the period of detention to be considered for the purposes of this complaint is that from 27 June 2007, the date when the applicant was placed in a detention centre pending the processing of his asylum claim, to 6 January 2009, when he was released. The duration of the detention therefore amounted to eighteen months and nine days. The Court notes that the entire duration of the detention was subsequent to the rejection of his asylum claim at first instance, on 24 April 2007, and that the final decision on his asylum claim was delivered three weeks after the commencement of his detention in the detention centre.

65. The Court must determine whether the duration of the detention was excessive and whether the authorities pursued the deportation proceedings with due diligence.

66. The Court observes that the delay in the present case is not as striking as that in other cases (see Chahal, cited above, and Raza v. Bulgaria, no. 31465/08, 11 February 2010, where the duration was of more than three and two and a half years respectively). However, the delay was not due to the need to wait for the courts to determine a legal challenge, the applicant's asylum claim having been determined before his detention. Although the identity and nationality of the applicant had been determined, the Government submitted that repatriation had been difficult as the applicant was undocumented, the Algerian authorities had refused to issue the relevant documents and the applicant had been unwilling to cooperate. The Court notes that the Government have not submitted any details as to the procedures initiated save that the police had attempted to obtain such documents through the intervention of the Ministry of Foreign Affairs. They have not submitted information about the frequency of such requests or whether any other avenues were explored. The Court considers that while it is true that the Maltese authorities could not compel the issuing of such a document, there is no indication in the Government's observations that they pursued the matter vigorously or endeavoured entering into negotiations with the Algerian authorities with a view to expediting its delivery (see Raza v. Bulgaria, cited above, § 73; Tabesh v. Greece, no. 8256/07, § 56, 26 November 2009; and, conversely, Agnissan v. Denmark (dec.), no 39964/98, 4 October 2001).

67. The Government blamed the applicant for his unwillingness to cooperate. However, assuming the Government were right in their allegation, the Court considers that it must have become clear quite early on that the attempts to repatriate him were bound to fail as the applicant had refused to cooperate and/or the Algerian authorities had not been prepared to issue him documents. Detention cannot be said to have been effected with a view to his deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). Indeed, the Court notes that to date, a year and a half after his release, the applicant is still in Malta.

68. Moreover, the Court finds it hard to conceive that in a small island like Malta, where escape by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.

69. In the light of the above, the Court has grave doubts as to whether the grounds for the applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence.

70. In such circumstances the Court will move on to determine whether the detention was lawful under national law, effected "in accordance with a procedure prescribed by law" and, in particular, whether there existed sufficient guarantees against arbitrariness.

71. The Court is ready to accept that notwithstanding the various policies, the accessibility and precision of which are doubtful, the applicant's detention was based on Articles 5 and 14 of the Immigration Act. However, the Court must consider whether Maltese law guaranteed a particular procedure to be followed which could offer safeguards against arbitrariness. The Court primarily notes that the Immigration Act applied no limit to detention and that the Government policies have no legal force. In consequence, the applicant was subject to an indeterminate period of detention (see, mutatis mutandis, Muminov v. Russia, no. 42502/06, § 122, 11 December 2008). In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention (see paragraphs 46-47 above), and the Government have not pointed to any other normative or practical safeguard. It follows that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation (see, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 114, 23 October 2008).

72. In these circumstances the Court finds it unnecessary to examine the applicant's conditions of detention, which it reiterates must be compatible with the purposes of detention.

73. The foregoing considerations are sufficient to enable the Court to conclude that the national system failed to protect the applicant from arbitrary detention, and his prolonged detention cannot be considered to have been "lawful" for the purposes of Article 5 of the Convention.

74. There has accordingly been a violation of Article 5 § 1 of the Convention. [...]

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the merits the Government's preliminary objection based on non-exhaustion of domestic remedies in respect of the complaint under Article 5 § 4 of the Convention and declares the complaints concerning Article 5 §§ 1 and 4 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention and dismisses the abovementioned objection;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.