FIRST SECTION
CASE OF FEILAZOO v. MALTA
(Application no. 6865/19)
 
 
JUDGMENT
Art 34 • Hinder the exercise of the right of application • Interference with correspondence between Court and applicant through prison authorities, and ineffective legal representation through legal aid system for proceedings before the Court
Art 3 (substantive) • Degrading treatment • Inadequate conditions of detention, particularly given excessively stringent and long period of de facto isolation, and exposure of applicant to health-risk through unnecessary placement with new arrivals in Covid-19 quarantine
Art 5 § 1 • Lawful detention • Grounds for applicant’s detention not valid throughout whole period, given later lack of prospect of deportation • Lack of active and diligent steps by authorities with a view to deporting the applicant during detention period

 
STRASBOURG
11 March 2021
 
FINAL
 
11/06/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Feilazoo v. Malta,
The of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Linos-Alexandre Sicilianos,
 Alena Poláčková,
 Péter Paczolay,
 Gilberto Felici,
 Erik Wennerström,
 Lorraine Schembri Orland, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to:
the application (no. 6865/19) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Nigerian national, Mr Joseph Feilazoo (“the applicant”), on 19 August 2019;
the decision of 13 September 2019 to give notice to the Maltese Government (“the Government”) of the complaints concerning Articles 3, 5, 6 and 34 of the Convention and to declare inadmissible the remainder of the application;
the decisions of 11 December 2019 and 5 May 2020 to give notice of the complaint concerning Article 3 (conditions of detention) of the Convention and Article 34 (legal representation), respectively;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the decision that the applicant’s legal representative from the legal aid office in Malta should no longer represent or assist the applicant (Rule 36 § 4 (b) of the Rules of Court), and that the applicant be invited to engage a lawyer of his choice;
the parties’ observations;
Having deliberated in private on 2 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the conditions of the applicant’s immigration detention as well as its lawfulness under Articles 3 and 5 of the Convention respectively. It also concerns complaints under Article 34 of the Convention in relation to the proceedings before this Court, mainly related to interference with correspondence and the domestic legal aid representation. THE FACTS
2. The applicant was born in 1975 and lives in Safi. The applicant, who had been granted legal aid by the Court, was represented by Dr I. Sadegh, a lawyer practising in Iklin, for the purposes of making submissions before the Court. 3. The Government were represented by their Agent, Dr V. Buttigieg, at the time State Advocate and later by their Agents, Dr C. Soler, State Advocate and Dr J. Vella, Advocate at the Office of the State Advocate. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The circumstances of the case
The first set of criminal proceedings
5. On 23 February 2010, following a guilty plea in relation to drug related charges, the applicant was convicted by the Criminal Court to twelve years’ imprisonment and to a fine (multa) of 50,000 euros (EUR) to be converted into a further eighteen months of imprisonment if the fine was not paid. The Criminal Court also ordered the applicant to pay the court experts’ fees. 6. The applicant was unable to pay the fine and expenses which were in consequence converted into a further term of imprisonment of twenty‑two and a half months’ imprisonment in default. 7. On 1 April 2018, a few days before having served his entire sentence, which was to end on 10 April 2018, the applicant was spoken to by two officers (M.B. and G.S., the latter a constable in the immigration office) who questioned him about his intentions following his release from prison. Since the applicant wanted to go back to Spain (where he had had a residence permit at the time of his arrival in Malta), he was told that they would check whether he would be accepted by the Spanish authorities. No reply ensued. 8. According to the Government the Spanish authorities informed the Maltese authorities that the applicant no longer had a right to reside in Spain and that they would not accept the applicant as a legal resident. The incident of 10 April 2018
9. On 10 April 2018 the applicant was released from the correctional facility. On the basis of documents supplied to him on 9 April 2018 and a call from a social worker, he thought that he was going to be escorted to an emergency shelter (which offers basic needs to vulnerable people, including accommodation). Instead, on the same day, he was escorted by two officers (D.T. and M.C. from the special response team of the correctional facility) to the Immigration Office, run by Inspector D.B., at the Police Headquarters. Proceedings against M.C. for ill-treating the applicant appear to have been pending at the time. 10. During the meeting with Inspector D.B. the applicant was informed that he could not return to Spain since the Spanish authorities would not accept him. He was informed that he would, thus, have to be sent back to Nigeria but that he would in the meantime be kept at the detention centre and was ordered to proceed to the van to be escorted there. The applicant objected since no mention had been made of removal or any further detention during his prison sentence. It appears that a removal order was issued and signed on the spot and given to the applicant, although a copy of the order has not been exhibited in the domestic proceedings. A copy was exhibited before this Court by the Government. 11. On the same day the applicant was deemed to be a prohibited immigrant in accordance with Article 5 of the Immigration Act, consequently a Return Decision and Removal Order was issued on the basis that he had been “found guilty by a court of criminal jurisdiction in Malta of an offence ... which is punishable with imprisonment for a term of not less than one year”. The decision stated that the applicant had a right to apply for a period of voluntary departure and to appeal against the return decision within three days. According to the Government, the applicant requested such a period, but after considering the circumstances of the case, a negative decision was issued by the Principal Immigration officer on the basis that there was a risk that he would abscond; his application for legal stay was considered manifestly ill-founded; he was a threat to public policy, public security or national security. The application for voluntary return submitted by the Government was not signed by the applicant. 12. The applicant claimed that he had not been informed of his right to appeal such action. He told Inspector D.B. that they could not deport him as he had expired documents and that he refused to be detained again. He also noted that judicial proceedings were pending. At that point the correctional officers started pushing the applicant into the van and a scuffle ensued. 13. In subsequent proceedings (see paragraphs 17-25 below), it was alleged that at the above meeting the applicant became aggressive and resisted being handcuffed and being put into the detention services’ van. As a result, it was alleged that the two correctional officers suffered bodily harm. In response to the alleged resistance and aggression, and a bite to one of the officers, pepper spray was used on the applicant. The correctional officers and police officers managed to handcuff the applicant while a further police officer tied his legs with cable ties. The applicant was subsequently put into the detention services van. An ambulance was called and took the applicant to hospital since, according to the authorities, he had complained that he could not breathe properly and alleged that he had a pain in his chest. 14. From the documents available to the Court, medical reports show that the applicant had a number of injuries and abrasions. In particular, the reports dated 10 April 2018 state that the left elbow X-ray was abnormal as it had a fracture of the radial head, as was the right shoulder X‑ray which revealed “a small fragment of bone adjacent to the humeral head laterally”; abrasions were noted around the head and elbow and tenderness was elicited over medial aspect of the left elbow. Other examinations on the day showed no further injuries. A report of 12 April 2018 stated that following the alleged beating the applicant’s lower back pain (from which he had suffered over the years) had become more severe. The report reiterated that the applicant had an elbow injury as well as ecchymosis (bruising) on his face and ears on both sides of the face, abrasions on the neck and shoulder, scratches on both wrists and a swollen thumb. Subsequent reports while in prison showed that the applicant was suffering from pain in both shoulders and severe lower back pain. 15. On 11 April 2018 a court (see paragraphs 22 et seq., below) instructed an expert (Dr M.S.) to examine the applicant and draw up a report. The examination took place on 13 April 2018 and the applicant was informed that its findings would be reported to the court. He consented to the examination. According to the expert’s conclusion, as a result of the alleged assault, the applicant sustained bruises on the face which were a result of blunt trauma and a haematoma on the left mastoid process which was also the result of blunt trauma. The abrasions on the left forearm were the result of handcuffing. The fracture of the left radial head was also due to blunt trauma – this fracture was of a grievous nature, per durata (thirty days or more). 16. The applicant claims that the prison authorities refused to supply him with all his medical reports for the purposes of this application. A signed and stamped letter by the correctional manager, in reply to the applicant’s request, stated that “if requested by the European Court of Human Rights, CCF [the correctional facility] will be able to present any documentation in relation to your [the applicant’s] prison medical file before the mentioned Court”. According to the Government, the applicant had in fact requested the originals of the documents and refused to accept a copy. The criminal proceedingsThe complaint of the police officers

17. On the day of the incident the two correctional officers reported to the police that they had been assaulted by the applicant. The report was taken by an officer (J.P.) and the investigation was led by an inspector (P.C.). According to the documents available to the Court the officers who were examined at a medical centre by Dr G.B. were found to have slight injuries, i.e., in respect of M.C., who alleged to have been bitten by a Nigerian immigrant, “superficial swelling over the mandible on the left, two puncture wounds over the base of the right thumb and an abrasion over the dorsum of the hand,” and in respect of D.T. “swelling of the right periorbital area and a 1 cm laceration on the knuckle”. Both confirmed that they had no further injuries. The questioning of the applicant
18. On 11 April 2018 the applicant was invited to speak to an immigration lawyer (Dr G.A.) for the purposes of seeking asylum, but the applicant made no application to that effect on that date. 19. Subsequently he was taken to the office of an inspector (P.C.) who questioned him about the events of 10 April 2018, without informing him that he was being charged with any crime in relation to those events. No lawyer was present. At the end of the interview he was informed that he was being charged with various offences and asked to sign a statement, which he refused to sign since it was not complete. 20. According to that unsigned statement, in reply to questions, the applicant confirmed that he had spoken to Dr G.A. and explained to the police his current status in Malta. In relation to the incident, he explained that he had been taken to Inspector D.B.’s office where he was given information as to his situation and he objected to being detained, at which stage the correctional officers tried to push him into the escort van. They tried to grab him from behind, but he resisted. They then grabbed him by the neck and “twisted” him onto the floor to try and handcuff him but he resisted. They used their knees to hold him down and started kicking him in his private parts and using pepper spray on him. They put their knees on his face and neck and continued to use pepper spray. After tying his feet, they managed to handcuff him and put him in the van. He told them that he could not breathe, and he passed out. He only woke up when he was in the ambulance. When questioned, he stated that he could not recall biting M.C., noting that he had been gasping for air when on the floor and unaware of what was happening. He said that he would not bite anybody and that he did not want to hurt anyone. He noted that he had had previous problems with M.C. with whom he had not been on good terms. He did not know where D.T.’s injuries came from. He admitted that he had resisted the officers as he did not want to be put in detention. He just wanted to go home, and he could not understand why the authorities had not prepared the documents in the ten years he had spent in prison, before his release. 21. When asked about his injuries, he replied that he had pain in the back of his head and forehead, as well as chest pain, a fractured elbow and a dislocated right shoulder. He added that he had the right to express himself and that it was the officers who grabbed him first. Inspector D.B. had told him that the prison had nothing to do with the [immigration] procedure; the applicant therefore considered that the presence of the correctional officers was unnecessary and served only to aggravate the situation. The ensuing criminal proceedings against the applicant
22. On 12 April 2018 criminal proceedings were instituted against the applicant for assaulting and violently resisting the correctional officers, threatening or causing them bodily harm, causing them injuries of a slight nature, disobeying lawful orders and wilfully disturbing public good order and public peace. He was placed in pre-trial detention on the same day. (a)   The first-instance judgment
23. On 5 February 2019 the applicant was found guilty of all the charges against him and sentenced to two years’ imprisonment and a fine of EUR 5,000. He was ordered to pay the costs of the expert who had examined him and was declared an illegal immigrant under Article 5 (2) (d) and 14 of the Immigration Act. Therefore, the court held that an order for deportation was to be issued once he finished serving his sentence. For the protection of the two officers the applicant was ordered to enter into a recognizance of EUR 2,000 for a period of one year. 24. The court accepted that the applicant must have felt frustrated at the way the immigration department handled his case and considered that the department could not be lauded for its behaviour. However, this did not justify the applicant’s actions, even more so as he knew that he could seek redress from the courts as he had done in another pending case regarding alleged ill‑treatment. Medical documents and eyewitnesses proved beyond reasonable doubt that the correctional officers had suffered slight injuries, and it was clear that the applicant had also disobeyed lawful orders and caused alarm and disturbance. (b)   The appeal judgment
25. By an appeal judgment of 16 May 2019, the applicant’s guilt was confirmed but the punishment lowered in view of the circumstances of the case, in particular the long period of incarceration of the applicant and the behaviour of the immigration authorities. He was sentenced to two years’ imprisonment suspended for three years and a fine of EUR 4,000. His immediate deportation (after the payment of the fine) was ordered. Subsequent detention
26. On the same day (16 May 2019) the applicant was released from prison having been detained there since 12 April 2018 in pre-trial detention. He was transferred to a closed detention centre for immigrants. According to the applicant, the authorities did not have the required passport to send him back to Nigeria given that his own passport expired while in prison. According to the Government, by means of a note verbale of 17 May 2019 (and another of 17 December 2019) the Maltese authorities requested their Nigerian counter parts to issue emergency travel documents for the applicant. 27. By a further judgment of 24 May 2019, the EUR 4,000 fine resulting from the judgment of 16 May 2019 was converted into six months’ imprisonment due to the applicant’s inability to pay that sum. The court sympathised with the applicant but considered that the six months could not be deducted from the thirteen months he had spent in pre-trial detention. The court further ordered that the applicant be deported at the end of his term of imprisonment and that the immigration authorities organise themselves to deal with this in due time in view of their past behaviour. 28. On the same day the applicant was released from Safi Barracks where he was serving his immigration detention and imprisoned at the Corradino Correctional Facility. 29. The applicant claimed that in prison he was moved from one security regime to another in order to bar him from any contact with persons and to impede his access to legal aid to proceed with his case against the officers, as well as hindering his application to the European Court of Human Rights. He further claimed that he was being denied access to his medical documents to substantiate his complaint, or to make any photocopies of his correspondence with the Court which he considered was being tampered with. According to the applicant, the treatment he was suffering was a result of discrimination. According to the Government, the applicant was transferred from a medium security division to a high security division due to his unruly behaviour, in particular instigating several prisoners to create disorder, and at one point he was found in possession of several prohibited items in his cell. No documentation was submitted by the Government to support this. 30. The applicant was released from the Corradino Correction Facility on 14 September 2019 and was placed in immigrant detention at the Safi Detention Centre. He was not informed of a date for his deportation. 31. On the date of the last observations from the Government (12 November 2020), the applicant was still in immigration detention but, according to the Government, his deportation having become unlikely, he would be released as soon as he was medically cleared. By means of a factual update of 25 January 2021, the Government informed the Court that the applicant received his medical clearance on 13 November 2020 and was accordingly informed that he could leave the detention centre. He was further advised that the Agency for Welfare and Asylum Seekers would provide him with accommodation, but that his stay in Malta would be temporary as efforts to deport him would ensue. By means of an email dated 15 November 2020, sent via his legal representative (a copy of which was submitted to the Court) the applicant refused to leave the detention centre unless he was provided with a passport to travel into Europe. He believed that he was entitled to such travel document, under European law, after spending twelve years in Malta. The applicant’s request was refused on the basis that he was a prohibited alien. Consequently, the applicant declined to leave the detention centre until 22 December 2020, the date on which he was offered accommodation at the Ħal Far Open Centre. The Government also submitted that the Nigerian authorities had refused to issue the applicant with travel documents before meeting with him. According to the Government’s update, on 18 December 2020 Nigerian consular officers, present in Malta, offered to meet with the applicant with the aim of facilitating his deportation. The Government alleged that the applicant refused to meet them and that without the cooperation of the Nigerian authorities and the applicant deportation remained unlikely. Proceedings before the Court
32. The applicant lodged his application on 19 August 2019 unrepresented. On 25 September 2019 multiple complaints were communicated to the respondent Government and the non‑contentious phase was initiated. The applicant was invited to appoint a lawyer and submit his position regarding a friendly settlement by 6 November 2019. 33. On 23 October 2019 a power of attorney signed by a domestic legal aid lawyer (G.T.) was received directly from the Maltese legal aid office, with no cover letter nor any answer in relation to the non‑contentious phase. The contentious phase was initiated and on 22 January 2020 the Government’s submissions were sent to the applicant’s representative for her reply by 4 March 2020. In view of the applicant’s various letters to the Court, including new complaints, the legal representative was reminded that she should keep the applicant informed of the proceedings at all times and maintain regular contact with him to be able to meet the Court’s deadlines. The Respondent Government were similarly informed. Nevertheless, the applicant’s legal aid representative did not submit any observations or any other correspondence. 34. Throughout the proceedings, the applicant directly submitted updates to the Court. Via these updates, on 9 November 2019, he informed the Court that he had only learnt that a lawyer had been appointed for him for the purposes of ECHR proceedings on 16 October 2019 and that he had met her on 23/4 October. He then had no news and claimed that after complaining he had also been told that he would not get legal aid to pursue proceedings in Malta but only those before the Court (which he was told were more important). On 25 December 2019 he further informed the Court that he still had not been given legal aid to pursue domestically his complaints on conditions of detention. On 27 February 2020 the applicant informed the Court that he had not even been contacted by his lawyer after the contentious phase had started. He also referred to his previous experience with local legal aid lawyers who would not take his calls nor meet him to prepare his case. He further stated that the legal aid office put pressure on him to drop the case before the European Court of Human Rights. 35. In consequence, the President of the Section to which the case was allocated decided that the applicant’s legal representative from the legal aid office in Malta should no longer represent or assist the applicant (Rule 36 § 4 (b) of the Rules of Court) and that the applicant be granted legal aid by the Court (Rules 100 and 103). The applicant was invited to engage the services of a lawyer of his choice, which he did, and the new legal representative filed the relevant submissions on his behalf. 36. It appears from the documents submitted by the Government that, according to the local legal aid lawyer initially appointed domestically, she had a meeting with the applicant on 23 October 2019 and replied to some of his calls without appointment. She had explained to the applicant that she would contact the Government Agent in the context of the non‑contentious phase. No settlement having been possible, she later informed the applicant of the situation and that it was for the Government to make observations, during which time no action needed to be taken from his side. Nevertheless, he continued to call her. On having become aware of his allegation to the Court about his lack of contact with her, she requested the help of the detention authorities so that he would stop bothering her. Eventually on 5 February 2020, the local legal aid lawyer requested the domestic courts to revoke her appointment and appoint another lawyer. This application was not decreed by the domestic courts, which were closed due to the Covid‑19 pandemic in March 2020. 37. It also appears from documentation submitted by the applicant that on 10 January 2020 he was notified, via the detention authorities, that his request for legal aid to pursue remedies concerning his conditions of detention had been granted. A lawyer was appointed, but to date of the applicant’s observations (October 2020), the lawyer had never met or effectively contacted the applicant. RELEVANT LEGAL FRAMEWORK
Immigration Laws
38. Immigration and asylum procedures are mainly regulated by the Immigration Act, Chapter 217 of the Laws of Malta and the Refugees Act, Chapter 420 of the Laws of Malta. The relevant articles of the Immigration Act (“the Act”), in particular Article 14 and 25 are set out in Aboya Boa Jean v. Malta (no. 62676/16, § 26-27, 2 April 2019), and in so far as relevant to the present case Article 5 (2) (d) reads as follows:
“(2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also –
(d) if he is found guilty by a court of criminal jurisdiction in Malta of an offence against any of the provisions of the White Slave Traffic (Suppression) Ordinance or of the Dangerous Drugs Ordinance or of a crime, other than involuntary homicide or involuntary bodily harm, which, in the case of a first crime committed by such person, is punishable with imprisonment for a term of not less than one year or, in the case of a second or subsequent crime committed by such person, is punishable with imprisonment for a term of not less than three months;”
39. In 2020 there were three closed detention centres in Malta, the Initial Reception centre in Marsa, the Ħal Safi detention centre and Lyster Barracks. There were also various open centres such as the Ħal Far Open Centre and the Ħal Far Tent Village, where residents are housed in mobile metal containers. Regulations
40. Regulation 18 (3) of the Prison Regulations, Subsidiary Legislation 260.03, reads as follows:
“Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognised human rights body, under confidential cover.”
41. Regulation 42 of the Detention Services Regulations, Subsidiary Legislation 217.19, reads as follows:
“(1) A request or complaint to the Head Detention Services, the officer in charge, Principal Immigration Officer or the Minister relating to a detained persons’ detention shall be made orally or in writing by the detained person, or his legal representative, in accordance with such procedures as may be approved by the Head Detention Services. (2) The officer in charge shall hear any requests and complaints that are made to him under sub-regulation (1). (3) Any written request or complaint made under sub-regulation (1) may be made in confidence and, if the detained person so wishes, shall be sealed in an envelope with the addressee clearly indicated.”
LEGAL AID
42. The relevant articles of the Code of Organisation and Civil procedure, Chapter 12 of the Laws of Malta read, in so far as relevant, as follows:
Article 911
“1) The demand for admission to sue or defend with the benefit of legal aid in any court mentioned in articles 3 and 4 and before any other adjudicating authority where the benefit of legal aid is by law granted, shall be made by application to the Civil Court, First Hall. (2) Nevertheless, such demand may also be made orally to the Advocate for Legal Aid. (3) The decree granting the benefit shall apply to all the courts and adjudicating authorities mentioned in sub-article (1). (4) The Advocate for Legal Aid shall render his professional services to persons whom he considers would be entitled to the benefit of legal aid, and prior to their obtaining such benefit, prepare and file all judicial acts, which may be of an urgent matter. The following procedure shall be followed:
(a) the Advocate for Legal Aid, shall file an application in the competent court in his own name requesting that he be authorised to file specific judicial acts, on behalf of a person or persons claiming the benefit for legal aid as he considers the matter urgent;
(b) the competent court shall, in such an event, allow such request unless there are serious reasons to the contrary;
(c) the Advocate for Legal Aid, after the judicial acts are allowed to be filed, shall then follow the normal procedure leading to the appointment or otherwise of an advocate and legal procurator ex officio as provided in this title. ... (5) The Minister responsible for justice shall provide such facilities as are necessary for the proper administration of the benefit of legal aid. ...”
Article 925
“(1) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall:
(a) act in the best interest of the person admitted to the benefit of legal aid;
(b) appear in court when the case of the person admitted to the benefit of legal aid is called;
(c) make the necessary submissions and file the requisite notes, writs of summons, statements of defence, notices, applications, and other written pleadings as circumstances require. (2) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid, until the same has been finally disposed of, even though the period of his appointment may have expired.”
RELEVANT INTERNATIONAL MATERIAL
43. On 2 October 2020 The United Nations Human Rights Office called for urgent action to address the dire situation of migrants attempting to cross the central Mediterranean Sea in search of safety in Europe and to tackle the shocking conditions they face in Libya, at sea, and – frequently – upon their reception in Europe. The call followed a week-long mission to Malta from 21-26 September 2020 by a team of human rights officers during which they spoke to government officials, UN partners, migrant community leaders, civil society organisations and seventy-six migrants of twenty‑five different nationalities. 44. Regarding disembarkation in Malta, some migrants said they had been detained for several months, with little access to daylight, clean water and sanitation. They reported severe overcrowding, poor living conditions, and limited contact with the outside world, including lawyers and civil society organisations. Migrants also said they had been given only one change of clothing since arriving. At the closed detention centre the team visited, there were multiple reports of self-harming and attempted suicide. There have also been several protests within detention centres in recent months, with security forces called in to restore order. “The pressures on the reception system in Malta have long been known but the pandemic has clearly made an already difficult situation worse,” said UN High Commissioner for Human Rights Michelle Bachelet. 45. The Council of Europe Committee for the Prevention of Torture (CPT) affected a visit to Malta in September 2020, its report and recommendations have not yet been published. THE LAW
The government’s PRELIMINARY objectionsThe parties’ submissionsThe Government

46. In relation to the complaints under Articles 3, 5, 6 §§ 1 and 3 (c) the Government submitted that the applicant had failed to exhaust domestic remedies, namely constitutional redress proceedings which he could have pursued by means of available legal aid. Even assuming that there were no available effective remedies in the particular circumstances of the case, then the complaints relating to issues under Article 3 and 6 which had occurred prior to 19 February 2019 had to be rejected for non-compliance with the six‑month rule. 47. As to the availability of legal aid to pursue such proceedings, the Government submitted that the applicant had obtained legal aid several times, in relation to other proceedings which he had lodged domestically. They had concerned a claim before the small claims tribunal, proceedings lodged in 2014 against the Director of Prisons which were concluded on appeal in October 2017, as well as two constitutional cases. The first constitutional case had been concluded successfully in 2017 and had found a breach of the applicant’s right to be assisted by a lawyer during questioning that took place in 2008. The second constitutional case had concerned his conditions of detention in prison, had been lodged in December 2015 and concluded unsuccessfully on appeal in March 2019. The Government also submitted that every time the applicant had asked for a legal aid lawyer the prison authorities had transferred his request to the Legal Aid Agency. 48. As to the speediness of constitutional redress proceedings, the Government asked the court to review its previous findings. In this connection, they relied on Alfred Degiorgio vs. the Attorney General, constitutional redress proceedings, whereby the Civil Court (First Hall) declared an Article 6 complaint premature within two days, in a media sensitive case concerning ongoing criminal proceedings, and its appeal was decided in a little less than five months. They also relied on Victor Buttigieg vs. the Attorney General an Article 6 claim decided in less than ten months at two instances and Hon. Simon Busuttil vs. the Attorney General, another Article 6 case decided within a bit more than two years at two instances. 49. In connection with the applicant’s complaint concerning the conditions of his immigrant detention, the Government submitted that he had at his disposal the remedy provided by Regulation 42 of the Detention Services Regulations (Subsidiary Legislation 217.19) in force as of January 2016, whereby a detainee could make a request or complaint to the Head of Detention Services, the officer in charge, the Principal Immigration Officer, or the Minister in relation to his or her detention. The complaint would then be decided by the officer in charge. The Government stated that the applicant had alleged that he had made such a request but did not substantiate his allegation. According to the Government from the records of the detention services (not submitted to the Court) it appeared that the essence of the applicant’s complaints in this respect was the legality of his detention and the lack of a gymnasium in the detention facility. However, they later admitted that he had also complained, inter alia, about food and hygiene (see paragraph 78 below). 50. In their second round of observations, the Government stated explicitly that they had no further submissions in relation to admissibility. However, in the submissions on the merits of the Article 5 complaint they maintained that there had been an effective remedy for the purposes of Article 5 § 4, namely Article 25A of the Immigration Act (see paragraph 38 above), as amended in 2015 following the Court’s judgments on this matter which, they considered, had made the remedy effective. The applicant
51. The applicant submitted that the fact that he had previously been granted legal aid did not mean that he had been granted legal aid in respect of the various breaches of the Convention that he had suffered. He also noted that, as shown by the documents submitted by the Government in relation to the local legal aid lawyer, who had assisted him in 2018, the latter had informed him that he should no longer make contact with her. She had also complained to the prison authorities that the applicant had called often and spent more than fifteen minutes on the phone, which resulted in the prison authorities limiting the applicant’s access to the legal aid office and his lawyer. From then on, he could no longer inform the legal aid office of new incidents. He claimed that the repeated requests to the head of the detention centre for access to legal aid had been, as a result, ignored and the legal aid office never favourably processed his request to bring proceedings domestically about his complaints, nor to bring proceedings before this Court. Moreover, the mere appointment of a legal aid lawyer did not guarantee the relevant service, as shown by the circumstances of the present case where the appointed lawyer had unilaterally stopped representing her client without her having been released from her duty by the domestic courts. 52. Furthermore, relying on the Court’s case-law, he submitted that he had no effective remedy under Article 5 § 4, to complain about his detention, nor a remedy in respect of his conditions of detention. He noted that the fact that constitutional redress proceedings were not effective was evidenced by the procedure he had undertaken to complain about such conditions in 2015. The procedure was even lengthier for a detainee who had to go through various bureaucratic steps to obtain legal representation. 53. The applicant submitted that he had complained to the head of the detention centre about the conditions of detention, both orally and in writing, about healthcare, hygiene, food, overcrowding, ventilation and threats by other inmates, as well as access to medical records, clothing and communication facilities, but his requests had been ignored. He had also written to the ombudsman, who in turn contacted the legal aid office, but no action was taken.

Outcome for Article 5: violation