Abstract
According to the ECHR Press Release:
In today's Chamber judgment in the case of Suso Musa v. Malta (application no. 42337/12), which is not final, the European Court of Human Rights held, unanimously, that there had been:
- a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights; and,
- a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention.
The case concerned an alleged Sierra Leone an asylum seeker who complained in particular that his detention had been unlawful and that he had not had an effective means to have the lawfulness of his detention reviewed.
The Court found that Mr Suso Musa's detention preceding the determination of his asylum request had been arbitrary. Indeed, the conditions of his place of detention had been highly problematic from the standpoint of Article 3 (prohibition of inhuman and degrading treatment). Moreover, it had taken the authorities an unreasonable amount of time to determine whether the applicant should have been allowed to remain in Malta.
As regards the period of detention following the determination of Mr Suso Musa's asylum
request, it found that the deportation proceedings had not been prosecuted with due diligence. Moreover, the applicant had not been allowed to have a speedy review of the lawfulness of his detention.
The Court considered that the problems detected in this case could give rise to further similar applications. Therefore, it requested the Maltese authorities to establish a mechanism to allow individuals seeking a review of the lawfulness of their immigration detention to obtain a determination of their claim within a reasonable time-limit. It further recommended Malta to take the necessary steps to improve the conditions and shorten the length of detention of asylum seekers.
Principal facts
The applicant, Ibrahim Suso Musa, allegedly a Sierra Leone national, entered Malta in an irregular manner by boat in April 2011. Upon arrival, he was arrested by the police and detained. His asylum application was rejected in a decision upheld in April 2012 and he remained in detention with a view to his removal until March 2013.
Decision
Article 5 § 1
The Court recalled that Article 5 § 1 allowed the deprivation of liberty of a person to prevent him effecting an unauthorized entry into the country. In a previous case, the Court had considered that until a State had authorized entry to the country, any entry was unauthorized, and that the detention of a person who wished to effect entry and who needed but did not yet have authorization to do so could be to prevent his effecting an unauthorized entry. It had not accepted that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an authorized entry, with the result that his detention could not be justified under Article 5 § 1.
The Court examined Mr Suso Musa's claim that Maltese law authorised the entry or stay of immigrants pending a decision on their asylum requests, with the result that he should not have been detained during the period following his lodging of his asylum request. It accepted that it was possible for the domestic law of a Contracting State to create a more favorable regime for asylum seekers. Although Maltese law was open to different interpretations and therefore clarification of the legal framework was necessary, the Court was prepared to accept that the detention had a sufficiently clear legal basis, and that, given that it had not been established that the applicant had actually been granted formal authorisation to stay Mr Suso Musa's detention pending the determination of his asylum request had been covered by Article 5 § 1. However, it found that his detention had been arbitrary. Indeed, the conditions of his place of detention had been highly problematic from the standpoint of Article 3. Moreover, it had taken the authorities an unreasonable amount of time to determine whether the
applicant should have been allowed to remain in Malta.
The Court then examined the period of detention following the determination of Mr Suso
Musa's asylum request and found that the deportation proceedings had not been
prosecuted with due diligence.
There has therefore been a violation of Article 5 § 1.
Article 5 § 4
The Court found that there had been a breach of Article 5 § 4 of the Convention on
account of the absence of a remedy enabling the applicant to have a speedy review of
the lawfulness of his detention.
Article 46 (binding force and implementation)
The Court considered that the problems detected in this case could give rise to further similar applications. Therefore, it requested the Maltese authorities to establish a mechanism to allow individuals seeking a review of the lawfulness of their immigration detention to obtain a determination of their claim within a reasonable time-limit. It further recommended the Maltese authorities to take the necessary steps to improve the conditions and shorten the length of detention of asylum seekers.
Country of Decision
Council of Europe
Court Name
CoE: European Court of Human Rights [ECtHR]
Date of Decision
23/07/2013
Country of Origin
Sierra Leone
Keywords
Effective remedy
Reception/Accommodation
Refugee Protection