The European Court of Human Rights said on Tuesday that Malta must take concrete steps to bring its detention regime in line with human rights standards, and ordered the payment of €25,000 in compensation over the inhumane detention conditions of an Ivorian.

The ECHR expressed its concern at Malta’s “defective national system hindering human rights protection” and called on government to improve migrant detention conditions, and ensure a legal basis for their detention.

The human rights court delivered a judgment on the applicant’s case on Tuesday, with the sitting being presided over by Judge Arnfinn Bårdsen, and composed of judges Jovan Ilievski, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc and Davor Derenčinović.

The applicant, ‘A.D’, was 17 years old when he arrived to Malta irregularly by boat, on 24 November 2021, after spending 10 days stranded at sea, with 12 people having already died before the rescue.

The applicant and all the men were directly detained despite suffering from ill-health and exhaustion, where he declared that he is a child and wished to apply for asylum.

A.D was detained in Malta for a total of 225 days, spending them in various parts of Malta’s detention centres, namely China House and Safi Barracks.

In his claim, filed by Aditus Foundation lawyer Neil Falzon, the applicant said that he had been detained for 225 days in inhuman and degrading conditions, with no access to an outdoor area; no access to a common area; no access to any prayer room or private space; limited or no access to a phone to make any calls, including to his lawyers; no access to any leisure activities; inadequate living conditions; limited or no access to drinkable water; no information provided in a language which he understands regarding his detention or his medical situation and a lack of adequate medical and psychosocial support.

He further accused the government of endangering his health by housing him in inadequate living conditions and failing to provide adequate medical support. 

The applicant submitted that he had been subjected to inhuman and degrading treatment, also in light of his age, his medical conditions and mental health situation, as well as the conditions in which he was held from 24 November 2021 until his release - which included 120 days of isolation in a shipping container.

Falzon said that the applicant was referred to by immigration number, also pointing to a lack of evidence that detainees were allowed outside, or that minors were not detained with adults. 

Falzon said that this, along with a general lack of record keeping was an “institutionalised lack of due diligence.”

State Advocate Chris Soler disagreed with the allegation of inhuman or degrading treatment, insisting that authorities took great care to the applicant’s physical and psychological wellbeing. 

With respect to records of time spent outdoors, government admitted it only kept records of refusals to the regular 1.5 hours of outdoor exercise. 

The applicant however continued to dispute the government’s claim that detainees were provided with blankets when necessary, telling the court that they would sleep wearing all their clothes in winter due to the cold and windows that could not be closed. 

He continued that there was no heating system, and that the quality and amount of the food provided was insufficient, regularly necessitating detainees to drink tap water.

The applicant submitted that his health had greatly deteriorated while in detention, and that adequate medical assistance had not been provided to him.

Moreover, he had already been a victim of torture in Libya, before suffering more trauma during his crossing to Europe, which led to the youth developing suicidal thoughts and signs of mental illness as early as February 2022.

The judges noted that despite a medical report at that time, a copy of which had been repeatedly refused to the applicant’s representatives, nothing had been done to ameliorate his situation.

The applicant also said he was never assisted by an interpreter when meeting with doctors and nurses, and that the Detention Centre doctor had concluded that the youth had no mental health problems “apart from a reactive low mood” despite only communicating with the patient through Google translate and without ever questioning him on his general mental health state.

The ECHR, in its decision, pointed out that the confinement of minors raises particular issues, “since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum‑seeker status.” 

“Moreover, the Court has already held that the extreme vulnerability of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over considerations relating to the child’s status as an illegal immigrant,” the court said.

It expressed serious concerns as to how the applicant, a presumed minor at the time, suffering from tuberculosis, had been placed in shared lodging with a young offender and later, spent a month in “total isolation” since neither the guards nor the doctors spoke French.

The judges said that there was therefore little doubt that the applicant was particularly vulnerable not only because he had mental health problems but also because these had not been seen to, despite the recommendations to that effect. 

“Furthermore, the Court notes that, one week after the first assessment of 4 February 2022, instead of taking relevant action, the authorities considered that the applicant – a presumed minor, suffering from tuberculosis, PSTD and depression, who was in need of medical support and of an improvement of living conditions – was to move from a regime of “restriction of movement” to “detention.”

The Court also said that government did not dispute the applicant’s claim that the guards had also refused to switch on air-conditioning on hot days when the youth spent most of his day inside, nor did it substantiate its claim that all detainees were allowed 1.5 hours of daily exercise time.

The judges also said that the applicant had no access to an effective remedy to complain about the conditions of his detention, therefore ruling that the youth had suffered violation of his right to protection from inhuman or degrading treatment in respect of the conditions of detention of the applicant, who was a vulnerable individual due to his age and health situation, as well as of his right to protection from deprivation of liberty in relation to his prolonged immigration detention in those conditions.

The court also warned that Malta could expect further, similar cases unless the broken system was addressed.

“In the Court’s view, the problems detected in the applicant’s particular case may subsequently give rise to numerous other well-founded applications which are a threat to the future effectiveness of the system put in place by the Convention,” the judges said.

It said that the Court’s concern is to facilitate the rapid and effective suppression of a “defective national system” which hinders human-rights protection.

The Court said that general measures at national level are undoubtedly called for in execution of the judgment.

With regards to this, the Court recommended that the State “envisage taking the necessary general measures to ensure that the relevant law is effectively applied in practice and that vulnerable individuals are not detained, as well as to limit any necessary detention periods so that they remain connected to the ground of detention applicable in an immigration context, and that they are undertaken in places and conditions which are appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens in an immigration context.”

The court also awarded the applicant €25,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable and a further €3,000 in respect of costs and expenses.