Speedy judicial review of migrant detention
Aden Ahmed v. Malta, 23 July 2013:
“115. The Court notes that the courts exercising constitutional jurisdiction in the Maltese legal system would have been competent to examine the lawfulness of the applicant’s detention in the light of the Convention. The Court notes, however, that it has held on numerous occasions that constitutional proceedings in Malta are rather cumbersome for Article 5 § 4 purposes, and that lodging a constitutional application does not ensure a speedy review of the lawfulness of an applicant’s detention (see Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000; Kadem, cited above, § 53; Stephens v. Malta (no. 2), no. 33740/06, § 90, 21 April 2009; and Louled Massoud, cited above, § 45). Where an individual’s personal liberty is at stake, the Court has very strict standards concerning the State’s compliance with the requirement of a speedy review of the lawfulness of detention (see, for example, Kadem, cited above, §§ 44-45; Rehbock v. Slovenia, no. 29462/95, § 82-86, ECHR 2000 XII, where the Court considered periods of seventeen and twenty-six days excessive for deciding on the lawfulness of the applicant’s detention; and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement).
116. The Court notes the failure of the Government to submit any caselaw capable of showing that proceedings before the courts exercising constitutional jurisdiction, whether brought together with a request for hearing with urgency or otherwise, could be considered speedy for the purposes of Article 5 § 4. Moreover, the Court cannot ignore the statistics and the examples supplied by the applicant: one of these, which concerned the lawfulness of immigrants’ detention and the conditions of such detention, was still pending six years after it was lodged and a second example regarding the lawfulness of detention had taken more than six months to be decided. Such examples show little respect, if any, for the standards announced in the subsidiary legislation cited by the Government.
117. To sum up, the Government have not submitted any information or case-law capable of casting doubt on the Court’s prior conclusions as to the effectiveness of this remedy. In these circumstances, the Court remains of the view that, in the Maltese system, pursuing a constitutional application would not have provided the applicant with a speedy review of the lawfulness of her detention.
118. The Government can hardly be said to have contested the Court’s findings in respect of other available remedies, as they merely noted that the Court had already found these to be inadequate for the purposes of Article 5 § 4. They did, however, submit that a request for bail was an effective remedy for the purposes of the complaint under Article 5 § 1.
119. In that connection the Court notes that Article 5 § 4 requires a remedy to challenge the lawfulness of detention and providing for release if the detention is not lawful. Thus, even assuming that a request for bail was available in the applicant’s situation and that it could have resulted in temporary release, it would not have provided for a formal assessment of the lawfulness of the detention as required under Article 5 § 4. Moreover, the Government failed to submit evidence that bail proceedings under Article 25 A(6) were heard speedily.
120. In this connection the Court notes that it has already held that proceedings before the IAB under Article 25A of the Act could not be considered to determine requests speedily as required by Article 5 § 4 of the Convention (see Louled Massoud, cited above, § 44). The Government submitted no new examples capable of altering that conclusion. Moreover, the proceedings instituted by the applicant in the present case reaffirm that finding. Indeed in the applicant’s case the IAB failed to deliver a decision for more than six months, after which the proceedings were discontinued as the applicant had been released. The Court reiterates that where a decision is not delivered before the actual release date of the detainee, such a remedy is devoid of any legal or practical effect (ibid., and see, mutatis mutandis, Frasik v. Poland, no. 22933/02, § 66, 5 January 2010). In this connection the Court finds it relevant to note that a former detainee may well have a legal interest in the determination of the lawfulness of his or her detention even after having been released (see S.T.S. v. the Netherlands, no. 277/05, § 61, ECHR 2011).
121. Moreover, it appears that the length of proceedings before the IAB is problematic for the purposes of Article 5 § 4, irrespective of whether they are brought under the Act or under the regulations emanating from LN 81. Indeed the Court considers that proceedings to contest the lawfulness of detention under Regulation 11 (10) of LN 81 which are also lodged before the same board (even assuming they apply to persons in the applicant’s position) also fail to fulfil the speediness requirement, as is evident from the cases cited by the applicant, particularly that of Ibrahim Suzo where it took the IAB more than a year to determine the claim. Moreover, in the other three cases cited by the applicant the individuals were also released before a decision on the matter had been delivered despite the periods in question having ranged from two to nine months.
122. In the light of the above factors, the Court cannot but reiterate that proceedings before the IAB cannot be considered to determine requests speedily as required by Article 5 § 4 of the Convention.
123. The foregoing considerations are sufficient for the Court to conclude that it has not been shown that the applicant had at her disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of her detention.
124. Article 5 § 4 of the Convention has therefore been violated.”