Judicial Review of Migrant Detention in Europe: In Search of Effectiveness and Speediness

Detention has been highlighted in recent years by a number of international and non-governmental organisations as an ineffective and inefficient tool of migration control employed by a large number of states. In 2013, the European Court of Human Rights continued to find violations of Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms  (“ECHR”) by various state parties and even rendered a quasi-pilot judgment in the case of Suso Musa v. Malta.

The grounds of these violations related to the lack of an effective judicial review mechanism, and, in the majority of the cases, to national procedures that did not respect the speediness requirement of Article 5(4) ECHR. The possibility of detention for a maximum period of 18 months in EU member states, established by Article 15 of the ‘Return Directive’ in 2008, has rendered even more evident the need for an effective, speedy judicial review in immigration and asylum cases.

Article 5(4) ECHR entitles a detainee to institute proceedings challenging the procedural and substantive conditions upon which his deprivation of liberty is based. The general principles applied by the Court in this regard are set out in M.A. v. Cyprus, as follows:

• Article 5(4) does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for “lawful” detention.
• The remedies must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of his detention capable of leading, where appropriate, to his release.  The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy.
• The existence of the remedy required by Article 5(4) must be sufficiently certain, not only in theory, but also in practice.
• The requirement of procedural fairness under Article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
• Under Article 5(4), all detainees also have a right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of their detention and to its termination if it proves unlawful.  In this context, the Court has laid down strict standards. For example, in the cases of Sarban v. Moldova, Kadem v. Malta  and Rehbock v. Slovenia, the Court concluded that time periods of twenty-one, seventeen and twenty-three days, respectively, were excessive.
• Although Article 5(4) does not require the existence of bi-level judicial review, in cases where it exists, both levels should meet the speediness requirement (Djalti v. Bulgaria, para. 64).

Of importance in this context is legal aid. Although the ECHR does not require provision of free legal aid in the context of detention proceedings, if legal representation is required under domestic law, the non-existence of legal aid raises issues of compatibility with Article 5(4) (Suso Musa v. Malta, para. 61).

In the case of Suso Musa, the Strasbourg Court took an exceptional step and adopted a quasi-pilot judgment, indicating to Malta (in the non-operative part of the judgment (para. 119 et seq.)) the necessity of general measures at the national level establishing, inter alia, a judicial- character mechanism providing for speedy and fair judicial review of migrant detention. What actually prompted the Court to act in this manner was its conclusion that the problems detected in the case could give rise to numerous other well-founded applications that would excessively burden the Court’s docket. The Court had already found a similar violation by Malta in 2010, in another case concerning migrant detention, Louled Massoud.

The above guidelines provided by the Strasbourg Court’s case law are significant, especially in a period when deprivation of migrants’, including asylum seekers’, liberty upon arrival or in view of forced return from Europe has been trivialised.

published at: http://ohrh.law.ox.ac.uk/?p=4126

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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.”