The First Hall Civil Court heard the case of 32 applicants from different countries who arrived in Malta, with many other people, on small boats from Libya during the months of April, May and June 2020. They were unable to continue their journey due to dangerous weather conditions, and whilst in the Search and Rescue zone of Malta, called for help. The Government of Malta, through the Office of the Prime Minister and the Ministry of Homeland Security and Law Enforcement, coordinated their rescue. They were first rescued by nearby vessels and were then transferred onto four private ships used in the tourism industry.
The applicants alleged that they spent weeks on the ships, during which time they were never informed about the reasons why they were not being let into the country, or updated on the government’s plans regarding their situation, nor were they informed about their right to request asylum or issued with a detention order and informed about their right to an effective remedy. Furthermore, they claimed that they were only able to contact the outside world on the rare occasions when the captain would turn on the Wi-Fi, and even then, the reception was extremely poor. Thus, the applicants complained that they were unable to communicate with their relatives to let them know they were alive, and they were completely isolated. Additionally, they asserted that the external world also could not make contact with them, preventing their lawyers, and representatives of the Agency for the Welfare of Asylum seekers or from UNHCR, from visiting the ship. They considered that they were deprived of their liberty without any element of control of their lives. As regard the condition on the ships, the applicants reported overcrowding and a lack of privacy, as in total the ships hosted around 400 people. They also reported a lack of sanitary facilities, beds, medical care and flooding, leading to a call for disembarkation to the Maltese government from the European Commission and the Commissioner for Human Rights of the Council of Europe. The applicants were brought to shore after 37 days and were transferred to detention centres for several weeks or months, again without being provided with detention orders or given information on the possibilities for appeal. Some of the applicants who did file an appeal were released, as the Court of Magistrates condemned the detention to be abusive and farcical behaviour of the authorities and described it as an arbitrary deprivation of their liberty without any legal justification.
Based on the above considerations, the applicants requested the court to:
- declare that the government was responsible for depriving the applicants of their liberty in a manner contrary to Article 34 of the Constitution of Malta, Article 5 of the ECHR and Article 6 of the EU Charter;
- declare that the government exposed the applicants to inhuman and degrading treatment, prohibited by Article 36 of the Constitution of Malta, Article 3 of the ECHR and Article 4 of the EU Charter;
- declare that the government was responsible for violating the applicants’ right to asylum in Malta enshrined in Article 18 of the EU Charter;
- declare that the government was liable for a violation of the applicants' dignity, in breach of Article 1 of the EU Charter; and
- order the government to grant compensation to the applicants as a consequence for the infringement of their rights.
The court firstly noted that it would not consider any alleged breaches of the EU charter, as the applicants did not appeal with the correct procedure in this regard as they did not file a sworn application, as required under national legislation when appealing before a superior court.
Secondly, the court addressed the authorities’ argument that the case lacked ‘judicial interest’. The court stressed that to establish legal interest, the person bringing a case must provide factual evidence supporting their claim. It noted that when multiple people initiate a case together, each must clearly and specifically declare the reasons and facts relevant to them, usually through sworn statements. It elaborated that in such cases, although the laws allow the possibility for only one plaintiff to provide a sworn statement, this does not exempt the rest of the plaintiffs from presenting evidence or from taking an oath to support the facts concerning themselves. It emphasised that this requirement is especially important in cases where the application itself is not sworn, as in the present case. The court noted that although 32 applicants filed the case, only 9 of them submitted affidavits to support their claims. These affidavits contained personal and specific facts that apply only to the individuals who submitted them. The court held that it had not seen or heard from most of the applicants and considered it unacceptable that many tried to rely on the affidavits of others. Therefore, it considered the legal interest of the applicants, with the exception of those whom submitted an affidavit, to be lacking, as there was no factual evidence to connect the claim with the grievance of the concerned individuals.
As concerns the merits of the case, the court assessed firstly whether the applicants were subjected to inhuman or degrading treatment, contrary to Article 3 of the ECHR. It began by highlighting the fact that the applicants were rescued during the COVID-19 pandemic, when the ports were closed for everything, except for ships bringing essential supplies, and that the airport, and the entire tourism industry were frozen. Furthermore, the court also pointed out that the resources of the country were stretched to the limit as the applicants’ arrival was unexpected and it had to house, feed and provide for their needs. Additionally, it held that based on the evidence, there was no doubt that the case did not involve torture. The court found that the Maltese government acted in good faith, without any premediated intention to degrade or inhumanely treat the applicants. However, the court noted in this regard, that the absence of bad faith does not exonerate the government from violating this fundamental right.
The court examined the evidence put forth by the applicants’ sworn testimonies. It noted that while one of the applicants stated that no one on the boat was positive for COVID-19, the Superintendent of Public Health testified that some of the swabs had emerged positive. As regards the complaint that the applicants were quarrelling on board due to stress, the court acknowledged that stress is expected given the situation they were in, however, it held that it cannot conclude that the stress was caused uniquely by the conditions on the vessels. As regards the applicants’ complaints that they were not given enough food, the court noted that on the contrary, the general manager of one of the companies who owned one of the ships testified that they were supplied three of four times a day with food and other supplies. Furthermore, the court held that there were no external witnesses to corroborate the claim that the chef would throw their food into the sea. Additionally, it held that the finding of a lack of privacy did not amount to inhuman or degrading treatment. It reached the same conclusion as regards the claim that the applicants first changed their clothes after they landed, noting also evidence presented by the government that clothes were delivered to them.
Furthermore, the court found that according to evidence produced by the government, doctors and paramedics were regularly visiting the boat and provided treatment as needed, and any vulnerabilities or medical emergencies were brought to shore. The court also noted that the applicants were provided with mobile phones, and whilst they may not have always had internet access, the court noted that it cannot be expected that a person who finds themselves in such a situation would have access to the same amenities as in a normal situation. The court held that it believes that the government was trying to do everything possible, but there was a limitation on their actions, and that this was a new situation for the government. Additionally, the court addressed the testimony of an applicant who claimed that he drank shampoo because he could not take the situation and tried to harm himself, however, the court noted that the applicants failed to summon a psychologist to confirm this, nor could they determine whether the applicant had previous mental health problems before he fled his country.
The court expressed serious concern about the fact that these ships were not designed to accommodate such large numbers of people for overnight stays. It was established that the applicants were sleeping on the decks, in sleeping bags, and even on tables, often exposed to sea spray. The court also noted that sanitary facilities were extremely limited and inadequate for the number of individuals on board. Although the Maltese authorities justified their actions by citing the exceptional circumstances of the pandemic, stating that the country faced a national emergency, lacked resources, and received insufficient support from the EU, the Court emphasized that certain human rights obligations remain absolute.
The court also noted that although Malta described the situation as a public health emergency, Article 15 of the ECHR which prescribes situations in which a state may derogate from the convention, was not applicable, as the situation could not be described legally as a ‘public emergency’. Additionally, it highlighted that under Article 15(2), a derogation would have to be formally declared to the Council of Europe, yet no such notification was made by the Maltese authorities. As a result, the court concluded that there was a breach of Article 36 of the Maltese Constitution and Article 3 of the ECHR, specifically due to the degrading treatment experienced by the applicants while held aboard the vessels due to the limited space provided, and the sleeping and sanitary facilities during the time the applicants were on the ships. However, the court clarified that this treatment was limited to degrading treatment, and did not amount to inhuman treatment or torture.
Following this, the court assessed whether there was a breach of Article 34 of the Maltese constitution and Article 5 of the ECHR which refer to the right to liberty. The court noted that according to the Constitution and the ECHR, a restriction on freedom of movement may be ordered with the aim of preventing the spread of an infectious or contagious disease. It held that during the period where the applicants were at sea, as the ports were still closed, they did not find that the applicants should have been granted any special privilege to enter the country. However, the court asserted that a distinction must be made between detention and restriction on freedom of movement. It considered that because the applicants were held at sea as the ports were closed, and should they have been brought to shore, they would have anyway had their freedom of movement restricted due to the enforcement of mandatory quarantine, the court determined that the applicants were not detained but rather their freedom of movement was restricted.
As regards the situation when the applicants arrived on land and were placed in detention centres, the court remarked that this situation was different from that when they were at sea. The court did not examine whether the detention constituted inhuman or degrading treatment under Article 3 of the ECHR as it noted that the applicants did not raise this complaint in their appeal. Therefore, the court only considered whether Article 5 of the ECHR was breached. Hereto, the court noted that the Superintendant clarified that her responsibility ends once health screenings such as COVID-19 and tuberculosis tests are completed. After that point, any continued holding of individuals was no longer a public health matter but rather one of immigration detention.
The court found that many of the detainees were held without proper detention orders. At the time, there was a gap in administrative procedure, and in several cases, no formal documentation was provided to the individuals explaining the reasons for their detention. This lack of transparency meant that people were left unaware of their legal status and unable to challenge their detention. Only 2 out of 32 detainees had valid detention orders, while the rest were considered to be detained under health grounds even though medical justifications no longer applied once screening results were clear.
Under Maltese law, specifically Legal Notice 320 of 2005, a detention order must be issued in writing, in a language the individual can understand, and must clearly state the reasons for the detention. The court found that these legal requirements were not met. Furthermore, it emphasized that even if national law appears to permit such detention, it may still be arbitrary under international law. According to the European Court of Human Rights, detention may be lawful under domestic law yet still violate Article 5 of the European Convention on Human Rights if it lacks proper justification or transparency.
The court found that Articles 34 of the Maltese Constitution and Article 5 of the ECHR, which protect the right to liberty and security, were breached in this case. It attributed these violations to outdated and unclear laws, compounded by the state of emergency caused by the COVID-19 pandemic.
The court concluded by accepting the first request, however, only in relation to those applicants which provided an affidavit, and only in regards to the period where they were detained on land. Additionally, the court accepted the second request to a limited extent, once more only in relation to the aforementioned applicants, and only in relation to the fact of a lack of space and sanitary facilities on the vessels. The court refrained from taking cognizance of the third request. Finally, the court accepted the fourth and fifth requests, ordering compensation for those applicants who took an affidavit.