The case concerned an applicant from Cote D’Ivoire who declared to be an unaccompanied minor upon arrival in Malta on 24 November 2021. He filed a habeas corpus application in terms of Article 409A of the Criminal Code to challenge his continued detention.
After his arrival, he was interviewed by the Immigration Police and detained at Safi Barracks, in Safi, a facility used for the detention of migrants who enter Maltese territory in an irregular manner. The Agency for the Welfare of Asylum Seekers determined that the applicant is not a minor, and the applicant immediately appealed this decision. He also formally lodged an application for international protection with the International Protection Agency. At the time of filing legal proceedings challenging his detention, the applicant’s legal status was that of an asylum seeker contesting his age assessment decision.
The applicant claimed that he was not aware of which authority ordered his initial detention and which authority continued to deprive him of liberty. The applicant claimed that no individual assessment as regards the necessity of his detention, in accordance with Article 8 of the EU Reception Conditions Directive and Regulation 6 of S.L. 420.06 of the Laws of Malta, was conducted by the authorities. He further claimed that, as a presumed minor (since he appealed the age assessment decision), he should only have been detained as a measure of last resort and only after having established that other less coercive measures cannot be applied effectively.
The applicant further claimed that despite the Superintendent of Public Health not issuing an order to restrict his movement on the basis of suspected illness, in terms of the Prevention of Disease Ordinance Cap. 36 of the Laws of Malta, as is normally the case for persons rescued at sea, and despite the Principal Immigration Officer not issuing a detention order in terms of the Reception Regulations (S.L. 420.06), the applicant has been deprived of his liberty and detained in Safi Barracks from the date of his arrival in Malta, that is for a total period of 58 days. Furthermore, the applicant claimed that up until the date of the proceedings he was still detained, and he had no idea regarding the reasons why, and the legal or factual basis on which he was being deprived of liberty.
The court noted that the applicant presented a letter issued by the Superintendent of Public Health which was given to him on the 10 December, and which was presented to the court by his advocate.
The court observed that in terms of Article 13 of the Prevention of Disease Ordinance, the Superintendent of Public Health is authorised to restrict the movements of persons or to suspend them from attending work. Therefore, Article 13 does not give the Superintendent of Public Health the power to issue a detention order, but to issue an order limited to the restriction of movement of the person. Furthermore, the law stipulates that such an order has a defined term within which it can be applied (4 weeks), which term can be extended (10 weeks). The court observed that the extended period permitted by law had not yet expired, and that the applicant was receiving medical care for a disease which required compliance with medication in order to prevent it from spreading into the community. In this case, the disease was not suspected but confirmed as present in the applicant. The law does not require the Superintendent of Public Health to seek authorisation to further extend the time period of restriction of movement and neither does it require that the applicant is notified again by the Superintendent of Public Health. The law leaves it to the discretion of the Superintendent of Public Health to determine the need to extend the period of restriction of movement.
The court concluded that since this does not amount to detention in the sense of Article 409A of the Criminal Code (application by person in custody alleging unlawful detention), but a restriction of movement in terms of the Prevention of Disease Ordinance, no public authority has ordered the detention of the applicant in terms of Article 409A since he was not under a detention order at the time of the proceedings. The court also stated that even if Article 409A had to apply to an order on the restriction of movement, the restriction of movement imposed on the applicant was one which was lawful and within the permissible time-frame established by law. The court rejected the applicant’s claim.
*Note that the applicant further complained before the European Court of Human Rights and the case was communicated to the Government of Malta on 24 May 2022 (No 12427/22), with the following questions:
"1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Did the material conditions of the applicant’s detention in a) China House, b) Block B and c) the container at Safi Barracks, amount to inhuman or degrading treatment? Did the circumstances and manner of the treatment by the authorities of the applicant’s ailments amount to inhuman treatment?
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period between 24 November 2021 to 10 December 2021 fall within paragraph (e) or any other subparagraph of this provision? Was the applicant’s detention during this period lawful and ordered “in accordance with a procedure prescribed by law”? What was the legal basis for the detention and was it justified under the relevant paragraph (see Enhorn v. Sweden, no. 56529/00, §§ 36 and 44, ECHR 2005‑I)?
3. Did the applicant’s situation from 10 December 2021 to 10 February 2022 amount to detention within the meaning of Article 5 (see, for general principles, Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016)? If so, was it lawful, and justified under any of the paragraphs of this provision?
4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention following the detention order of 10 February 2022? In particular, was his detention free from arbitrariness (see, for general principles, Aden Ahmed v. Malta, no. 55352/12, § 141, 23 July 2013)?
5. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his (different periods of) detention, as required by Article 5 § 4 of the Convention? Were the procedures by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, was the IAB, which examined the applicant’s request for release, a “court” within the meaning of this provision (see for general principles Baş v. Turkey, no. 66448/17, §§ 266-267, 3 March 2020)? If so, did it undertake an individual assessment of the applicant’s situation, taking due account of his arguments and giving adequate reasoning in its decisions (see G.B. and Others v. Turkey, no. 4633/15, § 176, 17 October 2019)?
6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?"