SECOND SECTION
 
CASE OF A.D. v. MALTA
 
(Application no. 12427/22)
 
JUDGMENT
 
Art 3 (substantive) • Conditions of detention in various immigration centres of a vulnerable individual, due to presumed minority and health situation, amounting to inhuman or degrading treatment • Conditions not adapted to applicant’s needs nor to the reasons given for his prolonged detention
Art 5 § 1 • Deprivation of liberty • Imposition of restriction of movement order (for health reasons) for two months amounting to a de facto detention • Detention neither in conformity with domestic law for Art 5 § 1 (e) purposes nor compatible with Art 5 § 1 (b) • Subsequent immigration detention on the basis of detention order, arbitrary under Art 5 § 1 (f) • Serious doubts as to authorities’ good faith in case circumstances • Failure to ascertain whether placement in immigration detention a measure of last resort for which no alternative available • Prolonged detention in inadequate conditions
Art 13 (+ Art 3) • Effective remedy • Constitutional redress proceedings ineffective for complaints of ongoing detention conditions 
Art 46 • Respondent State required to take general measures to ensure (1) legal basis in domestic law for detention on health grounds in conformity with legal certainty principle; (2) relevant domestic law effectively applied in practice, vulnerable individuals not detained, necessary detention periods limited so they remain connected to detention ground applicable in an immigration context and undertaken in appropriate places and conditions in view of that context

 
STRASBOURG
17 October 2023
FINAL
 
17/01/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.D. v. Malta,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Pauliine Koskelo,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 12427/22) 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 an Ivoirian national, Mr A. D. (“the applicant”), on 8 March 2022;
the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 3 alone and in conjunction with Article 13, and those under Article 5 §§ 1 and 4, and to declare inadmissible the remainder of the application;
the decision not to have the applicant’s name disclosed;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted jointly by the AIRE Centre (Advice on Individual Rights in Europe), the International Commission of Jurists (ICJ), The Global Campus of Human Rights (represented by Professor Manfred Nowak and Dr. Chiara Altafin who intervened as part of the Global Study component of the ACRiSL project) and the European Council on Refugees and Exiles (ECRE), who were granted leave to intervene by the President of the Section;
Having deliberated in private on 26 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the holding of the applicant, a vulnerable individual due to his alleged minority and health situation, in different detention centres for different purposes over several months. It raises issues under, inter alia, Articles 3 and 5 of the Convention. THE FACTS
2. The applicant was allegedly born in 2004 and was at the time of the introduction of the application detained in Safi. The applicant was represented by Dr N. Falzon, a lawyer, from Aditus Foundation, practising in Ħamrun. 3. The Government were represented 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 may be summarised as follows. THE CIRCUMSTANCES OF THE CASE
5. The applicant arrived in Malta irregularly, by boat, on 24 November 2021 with a group of other persons (hereinafter ‘the group’). A number of people perished during the ten days in which their boat was stranded at sea, before the rescue operation took place. The initial stages
6. Upon arrival in Malta, all the male arrivals in the group, including the applicant, were detained in Ħal Far Initial Reception Centre, also known as China House (hereinafter ‘HIRC’) which the applicant explained was used mainly - according to observed practice - to detain newly arrived asylum seekers under quarantine until they are medically cleared by the Health Authorities. The applicant claimed to be a minor. According to the applicant, for sixteen days, the group was not provided with any document regarding their ongoing detention and they did not receive any explanation justifying the reasons for their detention in a language which they could understand. 7. The Government explained that, on arrival, the applicant did not present the authorities with a COVID-19 vaccination certificate, nor a negative Polymerase Chain Reaction (PCR) or rapid antigen negative test result, nor proof of recovery from COVID-19. Thus, the Superintendent of Public Health (hereinafter ‘Superintendent’) issued an order for him to be placed in quarantine for a period of two weeks, in pursuance of the Period of Quarantine Order (see paragraph 59 below). Since the applicant claimed to be an Ivorian national at the time of his arrival, the quarantine order was issued to him in the French language - the official language of the Ivory Coast. The Government claimed to have submitted this order to the Court however the order submitted to the Court is neither dated nor named or referenced in any way, and appears to be a standard form (in both French and English versions) which has not been filled in. The applicant stated that he did not recognise the document submitted by the Government. 8. The order submitted reads as follows (English version):
“This written order is being issued in terms of Subsidiary Legislation 465.13, period of Quarantine Order, pursuant to which you are here being ordered to quarantine for fourteen (14) days, during which period you will be tested as required. Pursuant to Subsidiary Legislation 465.23, Period of Quarantine (Contact with other persons) Order, your quarantine period may be extended for another fourteen (14) days if persons residing with you are found to be suffering from the notifiable disease, COVID-19. This period may be extended. If you are diagnosed as suffering from COVID-19, you will be required to self-isolate for a period of fourteen (14) days in accordance with Subsidiary Legislation 465.30, Self-isolation of Diagnosed Persons Order. You may be ordered to undergo a PCR test prior to the end of a mandatory period of quarantine.”
9. During this period of two weeks, the applicant had been accommodated at the HIRC with the group. He was tested for COVID-19 on three occasions, namely on 24 November 2021 (date of arrival), 30 November 2021 (after seven days) and on 9 December 2021 (after fourteen days). The applicant tested negative for COVID-19. 10. As to the conditions in HIRC, according to the applicant he had been detained in the same block with twenty-three other people, including adult men. There were three toilets and two showers. Upon arrival the group had been provided with one t-shirt and one tracksuit each and liquid soap. They had to wash their clothes in the same bucket that was provided to clean the floor. Since they had only one outfit, they had to change clothes between them when washing and NGOs had been refused the opportunity to donate warm winter clothes to the detainees on the basis that they had already been given tracksuits. The Block where they had been detained was composed of a hallway serving several small rooms, measuring approximately 3 sq. m. with three bunk beds. The applicant had been sharing the room with three other people. The Block did not have any common room, chairs, tables or praying room and the mattresses were visually old and used. The bedroom had one window which could not be opened, there was no natural light and was very dark. Upon arrival each individual had been given one sheet per person. The room was very humid and cold. There was no heating system nor any ventilation despite the high humidity encountered in Malta during the Winter. The applicant further reported that detainees had to clean the premises themselves and had no access to drinkable water, thus being obliged to drink from the tap despite the low quality of this water. There had been no regime of activities nor any outside area, no phone to make calls and thus he could have no contact with the outside world. 11. The Government disagreed with this description (see paragraph 94 below). The subsequent stages
12. On 10 December 2021, the Superintendent issued a Restriction of Movement on Public Health Reasons Order (hereinafter ‘RMPO’). The RMPO showing the date and the Police immigration number of the applicant, which was submitted by the applicant, reads as follows (English translation):
“This restriction of movement is being issued in terms of Article 13 of the Prevention of Disease Ordinance (Chap. 36) on the following ground:
There are reasonable grounds to believe that you may be at risk of infectious diseases and hence required to be screened.”
13. The applicant reported that no interpreter was present to explain the content of this document written in French. The Government submitted that being from the Ivory Coast there was no reason to believe that the applicant did not understand that country’s official language, and that his interviews had shown that he had a certain level of education. 14. Between 7 and 20 December 2021 the group went through various medical tests and check-ups. On 14 December 2021 the test results showed that the applicant was suffering from Pulmonary Tuberculosis (hereinafter ‘TB’). As a result, on 17 December 2021, he was admitted to the Infectious Diseases Unit of Mater Dei Hospital for treatment. During this time, the applicant was treated for TB, with further tests being carried out, until he was eventually discharged on 22 December 2021 with a plan for further tests and visits to be carried out at the hospital and a prescription for medicine to treat the illness. 15. None of the parties specified where the applicant was accommodated between 10 December 2021 and his transfer to the Hospital. 16. In the meantime, since the applicant had claimed to be a minor, a provisional order had been issued by the Juvenile Court on 6 December 2021, ordering inter alia that the applicant be given accommodation adapted for minors and not with adults. 17. According to the Government, although according to the applicant’s alleged date of birth he was sixteen years old, the authorities decided to accommodate him separately from adult asylum seekers. Thus, the applicant’s place of residence was changed (no date was specified), and he was moved to Zone 4 of the Safi Detention Centre with six other alleged minors, of the same group, who were also covered by provisional orders issued by the Juvenile Court. The applicant disputed this allegation. According to him, his move to Safi Detention Centre was unrelated to his age (and the decision of the Juvenile Court of 6 December 2021), so much so that after his discharge from hospital on 22 December 2021 he spent another week in HIRC, before being moved to Safi Detention Centre Block [B, Zone 4] on an unknown date, around 30 December 2021. Moreover, in Safi Detention Centre, he had not been placed separately but together with the adults in his group, until at least mid-January 2022. 18. According to the applicant, the Block [B, Zone 4] in Safi Detention Centre was composed of three bedrooms, slightly bigger than the ones in China House. He shared his bedroom with seven other people. The Block did not have any common room, chairs, tables or praying room. The bedroom was composed of one window that could not be opened and the room was very dark. He had not been provided with any new outfit or sheets and had to take the ones he had from HIRC. The detainees had to wash their clothes in the same bucket that was provided to clean the floor. There had been no regime of activities nor any outside area. The phone could not place outgoing calls, so the applicant had to rely on people to call him. Detainees had to clean the premises themselves and had no access to drinkable water other than the tap. Again, NGOs were refused the opportunity to donate warm winter clothes on the basis that they had already been issued with tracksuits. 19. In the meantime, on 13 January 2022, the applicant’s psycho-social age assessment was carried out, according to which he was an adult (see for details paragraph 53 below). The last stages
20. According to the applicant, on 30 January 2022 he was moved to a container with a Nigerian male from his group. The container only had one window and one door which was closed at all times. The applicant and his co-detainee had no access to any outdoor area and were kept inside the container all day, until mid-April, with limited light and ventilation. After mid-April his access to the outside was still limited as he would only be allowed half an hour alone in a fenced area. Most of the space in the container was occupied by the beds, the toilets and the shower and there was limited space to move around. The applicant indicated that he was suffocating inside and could not breathe properly, when it got too hot the guards refused to switch on the air-conditioner. While suffering the heat, he had to drink water from a rusty tap. He could not place calls freely and had to rely on people to call him in order to provide him with any information regarding his situation. The applicant claimed that he could not communicate with the guards or his co-detainee who only spoke French and there was no interpreter available. The Government disputed this description (see paragraph 101 below). 21. According to the Government, it was on 2 February 2022 that the applicant was moved to a two-bedded unit with another alleged minor, who had been transferred to the Safi Detention Centre from the YOURS (Young Persons Offenders Unit) facility, since the other alleged minors who had been residing with the applicant had been confirmed as minors and moved out of the Safi Detention Centre. Eventually, the person that the applicant was sharing the unit with was also moved and, since the applicant remained the only alleged minor, he was accommodated on his own, separately from the adult asylum seekers. 22. In the meantime, on an unspecified date the applicant had applied for asylum and on 10 February 2022, the Principal Immigration Officer (hereinafter ‘PIO’) issued a detention order in that connection (see paragraph 40 below). 23. According to the applicant he had been moved out of the container in around June 2022. It is unclear where he was moved to, the applicant submitting that the conditions were similar to those in Block B. The Government made no mention of a further change. 24. On 6/7 July 2022, the applicant was released from Safi Detention Centre and was offered accommodation at the Ħal Far Open Centre. According to the applicant his release had been ordered on 28 June 2022. Medical treatment at the Safi Detention CentrePhysical health

25. The applicant submitted that two days after he was moved to Safi Detention Centre, he no longer received his treatment (until 21 January 2022). 26. According to the Detention Service Treatment Chart (submitted by the Government), for the period January to June 2022 the applicant continued to receive four medicines a day which had been prescribed at the start of his TB diagnosis, throughout the entire period. 27. The applicant was seen by Dr M. of the Migrant Health Service (hereinafter ‘MHS’) on 26 January 2022, who found him asymptomatic and not feeling any side effects from the treatment that he was receiving. On that day, he was also provided with moisturizer to deal with dry skin over the legs and feet. He was seen again by Dr. M., on 26 February 2022, when the applicant was found in the container crying, the doctor noting a language barrier and the use of google translate, and that the applicant had asked to return home. On 14 March and 30 March 2022 the applicant refused his medical check-up. The applicant was examined again by Dr. M. on 22 April 2022, where (according to an unsigned report submitted to the Court) it was noted that his lodging remained an issue - since he was the only one contesting his age-assessment he effectively remained in isolation. When this was explained to him, he confirmed understanding the situation albeit this affected his mood. It was concluded that he was doing well from the ‘TB point of view’ and that there was ‘No evidence of psychosis or other mental health issue apart from a reactive low mood due to solitude’. The doctor recommended that the applicant start attending football sessions and that he be provided with reading materials in French. The applicant noted that on this occasion the doctor spoke to him using Google translate and did not ask him any questions related to his mental health. The applicant was examined again on 23 May 2022 by Dr R. and was found to be “withdrawn and depressed” but had no complaints. 28. The applicant was also monitored by the TB experts at Mater Dei Hospital. According to the documents provided, on 4 February 2022 the applicant was seen at the Chest Clinic and the doctor ordered that the applicant be seen again after two weeks with a copy of chest x-rays and blood test results. Two weeks later, on 18 February 2022, the applicant’s chest x‑rays had been carried out and the doctors found the applicant in a good, stable condition and not exhibiting symptoms. On that day, the doctor ordered that the applicant be seen again on 22 April 2022, once again having his chest x-ray and blood tests taken before the appointment. On 22 April 2022, the applicant was found well, however, having lost weight. The doctor ordered that the TB treatment be continued, and that his blood test and chest x-ray be repeated before the next appointment to be scheduled after two months. Mental health
29. On 3 February 2022, the applicant was seen for the first time by the Assistant Psychological Officer (hereinafter ‘APO’) of the Therapeutic Services Unit (hereinafter ‘TSU’). During that assessment, the applicant explained his history and background (his parents had passed away and he had not had the opportunity to go to school) and how he reached Malta (being detained and tortured in Libya). He looked tired, upset and had difficulty concentrating. In the report of 4 February 2022, the applicant was deemed to be suffering from Post-Traumatic Stress Disorder (hereinafter ‘PTSD’) and depression. According to the report, the applicant needed medical support as well as an improvement of his living conditions. 30. According to the Government, on an unspecified date a social worker from the Agency for the Welfare of Asylum Seekers (hereinafter ‘AWAS’) was appointed to observe the applicant on a regular basis with the intent of ensuring his general wellbeing. On 30 March 2022, the social worker deemed it necessary to refer the applicant to the APO of the TSU. Thus, his case was re-opened, and the applicant was observed regularly until July 2022. 31. According to the applicant (and the documents provided), on 16 March 2022 the applicant’s representatives contacted his legal guardian and raised concerns about his mental health as this had drastically deteriorated. AWAS answered on 22 March 2022 that the applicant would be referred accordingly for his needs to be addressed. On 18 April 2022, the applicant’s representatives requested an update since the applicant complained that he had not seen anybody since mid-March 2022. On 22 May 2022 the applicant’s legal guardian replied that the applicant had seen the doctor from the MHS on 22 April 2022, who declared that there were no concerns on the applicant’s mental wellbeing (see paragraph 27 above); the applicant had nonetheless been referred to TSU to receive any counselling he may require. He was seen by the TSU in the week of 13 May 2022. 32. On 18 May 2022 the applicant’s legal representative requested the report from the TSU to no avail. The request was reiterated on 8 June, 14 June and 28 June 2022. On 30 June 2022 AWAS forwarded a report dated 28 June from the TSU, which included details of the report of 4 February 2022 (see paragraph 29 above). 33. The report of 28 June 2022 referred to the previous diagnoses noting that the applicant was suffering from depression and hallucinations. According to the report, the applicant had stated that he had been alone in the container for about a month, without the opportunity of going out even for a short walk or to talk to someone. He thought a lot, even of suicide. In the reporter’s view, being detained in isolation worsened the applicant’s mental health, but he had improved when visited in June 2022 after he had moved out of isolation. Nevertheless, he still had symptoms which could be a sign of mental illness, he thus required medical attention and to be monitored by a psychiatrist. Proceedings before the Court of Magistrates (habeas corpus)
34. According to the applicant, while in detention, in view of the rules at the time regarding access by lawyers and organisations to the detention centre, he did not meet any person or organisation to provide him with support or information on his situation or any information as to organisations offering legal information and services. On 4 January 2022 Aditus foundation’s lawyers called the detention services and it was mentioned by one of the detainees that the applicant was a minor. On 6 January 2022 Aditus foundation’ lawyers requested to visit the applicant who they then met on 19 January 2022. During the visit, the applicant and other minors indicated that they still did not know why they were being detained and that they were not given any document on the matter. According to the applicant they were still being detained with adults except for one of them. 35. The applicant (via his representatives), all present in court, filed a writ of habeas corpus before the Court of Magistrates on 21 January 2022 against the PIO, which was rejected as the applicant had not been held under the authority of the PIO. 36. On the same day (always via his representatives), all present in court, he filed another writ of habeas corpus before the Court of Magistrates, this time against the Superintendent, AWAS and the State Advocate. The applicant claimed that he was being detained unlawfully and thus asked for his immediate release. 37. The application was rejected by the Court of Magistrates on the same day, as it held that the applicant’s situation at the time did not amount to a deprivation of liberty, thus, the habeas corpus application under Article 409A of the Criminal Code was inapplicable to the applicant’s situation. It referred to Article 13 of Chapter 36 of the Laws of Malta (see paragraph 56 below), which did not empower the Superintendent to order a person’s detention. As to the applicant’s argument that the extension of restriction of movement from four weeks to ten weeks required authorisation and notification anew, the Court of Magistrates found that this was not so. While microbiological tests had already been carried out on the applicant and shown that he had TB, further tests were required to determine whether or not his already‑determined illness had been brought under control. For those reasons the Superintendent’s decision, based on her discretion, to extend the relevant period had been justified. 38. The Court of Magistrates noted that the applicant was being allowed to live in the detention centre where he could be in touch with others of the group, and benefit from the necessary medical treatment. At the hearing, AWAS had explained that residing in an open centre would not have been an adequate solution to respect the Superintendent’s decision, thus the restriction of movement had to be undertaken in a detention centre. The Court of Magistrates considered the provisions of Article 29 of Chapter 465 of the Laws of Malta (see paragraph 58 below), as well as the Superintendent’s argument that if the measures in question were not taken for the applicant’s own benefit, there was a real risk of death and that the illness would be spread in the community. Thus, even assuming that Article 409A of the Criminal Code applied, the restriction on his movement was justified and the relevant time limit of ten weeks would only expire on 18 February 2022. Asylum procedure
39. In the meantime, on an unspecified date the applicant applied for asylum. At one point the applicant had voluntarily requested to return to the Ivory Coast (see paragraph 27 above) however, the declaration signed by him was put aside once it was confirmed that the applicant wished to continue to pursue his application for international protection in Malta. The applicant’s claims for international protection were rejected and he was notified of this on 27 June 2022. An appeal before the International Protection Appeals Tribunal (hereinafter ‘IPAT’) is still pending. Proceedings before the Immigration Appeals Board (IAB)
40. Once the applicant applied for asylum, on 10 February 2022, the PIO issued a detention order against him (as noted in paragraph 22 above) on the grounds that detention was necessary for the determination of the applicant’s identity/nationality and on the basis that the applicant’s claims for international protection could not be determined in the absence of detention, since the risk of absconding was high (see the Reception of Asylum Seekers Regulations, S.L. 420.06 of the Laws of Malta, at paragraph 62 below, hereinafter ‘S.L. 420.06’). The detention order, notified to the applicant’s representative on the same day, was appealed against on 14 February 2022. 41. At the hearing of 17 February 2022, the PIO representative explained that the applicant was being treated as an asylum seeker, but that his application for international protection was pending the determination of his age assessment. He confirmed that the applicant was being kept separate from adults, since he claimed to be a minor and, at the time, was being accommodated with another minor. According to the Government, both parties made their submissions, and the detention was deemed lawful. According to the applicant, the IAB had only listened shortly to his complaints, namely, that his detention was unlawful from the outset, since he was a minor, and that it was arbitrary as it had been solely based on his nationality (since only asylum seekers coming from countries where removals were carried out were detained), without any individual assessment. Moreover, the conditions of his detention were problematic. After ten minutes, the IAB stopped the pleas and decided to deliberate. The Chairperson left the room after requesting the applicant to show his face (as he was wearing a mask due to COVID-19 measures). After a few minutes of deliberation, the IAB delivered its decision that the detention was legal without providing any reasoning whatsoever and issued a stereotypical decision similar to most cases. 42. Alternatives to detention were also requested at the hearing, however, the IAB left full discretion to the PIO to implement these or not. The PIO later refused such alternatives stating that there would be a review of the detention in the future where the request would be considered. On 21 March 2022, the request for alternatives to detention was reiterated to the PIO. However, the PIO did not reply. 43. Another hearing was held before the IAB two months later, and then again two months after that (April and June 2022) in terms of Regulation 6(4) of S.L. 420.06 (see paragraph 62 below). 44. At the hearing of 21 April 2022, the applicant insisted that being kept alone in a container was detrimental to his mental health and that the PIO had not replied to his request for alternatives to detention. Given the controversy about his age, the PIO explained that he wished to await the outcome of the age assessment appeal. The IAB thus adjourned the case to 23 June (four months after he initially made his request). 45. At the hearing of 23 June 2022, the applicant presented written submissions whereby he considered detention to have ceased to be lawful since he had provided all elements necessary to determine his application for international protection (an interview related to his asylum application had also taken place on 9 June 2022). The PIO was not present, so the decision was postponed until the PIO had the occasion to reply to the written submissions. The following day the PIO informed the IAB that he had requested an update from the International Protection Agency, and that if there was no decision issued as of Monday 27 June, the applicant would be released under alternatives to detention. 46. On 27 June 2022 the applicant was notified of the rejection of his asylum claim by the International Protection Agency and informed that he had fifteen days to appeal. The applicant’s representative was not informed of the decision and the applicant had no means to communicate with him. 47. On the morning of 28 June 2022, the PIO issued the applicant with a Removal Order and a Return Decision (hereinafter ‘RODO’), despite the deadline for his asylum appeal still running. According to the Government the applicant had informed the PIO that he would not appeal. After learning of the decision via the applicant, the applicant’s representative immediately appealed the removal decision. As a result, the applicant’s representative was informed that the RODO was to be suspended and replaced with a detention order, and that the PIO was in process of releasing the applicant under alternatives to detention. 48. On 6/7 July 2022, the applicant was released from the detention centre under alternatives to detention, some eleven days after he was officially released by the PIO on 28 June 2022. According to the applicant this delay was allegedly justified as necessary to ensure the applicant was medically cleared, and it is understood that the applicant was falling under the responsibility of the Superintendent during this eleven-day period. Age Assessment
49. The applicant claimed that he arrived in Malta as a minor, born on 4 September 2004, meaning that he would turn eighteen on 4 September 2022. 50. As mentioned at paragraph 16 above, on 6 December 2021, on the request of the Director of the Child Protection Department, a provisional order had been issued by the Juvenile Court in favour of the applicant. It ordered, inter alia, that his temporary care and custody be vested in the CEO of AWAS; that he be placed in accommodation adapted for minors and not with adults; and that Ms LBB be appointed as his representative (guardian). The applicant did not participate in this process and was not informed of such decision, nor was he aware of the name of his legal guardian. 51. Subsequently, the age assessment process took place on 13 January 2022, including an interview and an examination, as a result of which the applicant was considered to be an adult. The applicant underwent his age assessment procedure without any legal assistance and in the absence of his legal guardian, but in the presence of an interpreter. The three social workers found the applicant’s narrative to be consistent, they all noted that the applicant was very careful in the way he answered questions concerning his age and was seen counting on his fingers. That, together with the applicant’s physical appearance (including build, facial hair and demeanour) clearly indicated that he was, in fact, an adult. 52. By a decision of 20 January 2022, he was deemed to be nineteen years of age, born on 1 January 2003. 53. The applicant was informed of this decision on the same day and although no age assessment appeal was ever successful, for the years 2021 and 2022, the applicant nonetheless appealed his decision on 21 January 2022. On 3 March 2022, a hearing was held before the IAB, as composed at the hearings held on 17 February 2022 (see paragraph 41 above). The applicant’s lawyers requested to interview the social worker in charge of the initial assessment and the IAB decided to set this for 30 March 2022. On 2 June 2022 the appeal was rejected in two sentences, the IAB confirming the AWAS decision. No reasons were given in reply to the applicant’s arguments set out in his ten-page appeal. RELEVANT LEGAL FRAMEWORK
RELEVANT DOMESTIC LAWThe Criminal Code

54. The relevant provisions of the Criminal Code, Chapter 9 of the Laws of Malta, and its subsidiary legislation, read as follows:
Section 409A
“(1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application, access by electronic means to the scanned record of the proceedings, including a scanned copy of the court’s decision, shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two (2) working days from receipt of the access by electronic means of the scanned record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody.”
Section 244A
“(1) Any person who, knowing that he suffers from, or is afflicted by, any disease or condition as may be specified in accordance with sub-article (3), in any manner knowingly transmits, communicates or passes on such disease or condition to any other person not otherwise suffering from it or afflicted by it, shall, on conviction, be liable to imprisonment for a term from four year to nine years:
Provided that where the other person dies as a result of such disease or condition, the offender shall be liable to the punishment established in article 211(1). (2) Where any such disease or condition as is referred to in sub-article (1) is transmitted, communicated or passed on through imprudence, carelessness or through non-observance of any regulation by the person who knew or should have known that he suffers there from or is afflicted thereby that person shall on conviction be liable to imprisonment for a term not exceeding six months or to a fine (multa) not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (€2,329.37):
Provided that where the other person dies as a result of such disease or condition, the offender shall be liable to the punishments established in article 225. (3) The Minister responsible for justice shall, by notice in the Gazette, specify diseases or conditions to which this article applies.”
55. Regulation 2 of the Communicable Disease and Conditions Regulations, Subsidiary Legislation (S.L.) 9.10 of the Laws of Malta, reads as follows. “The following diseases or conditions are specified as diseases or conditions to which article 244A of the Criminal Code applies:
... (e) Tuberculosis.”
The Prevention of Disease Ordinance
56. In so far as relevant the provisions of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta (hereinafter ‘the Ordinance’), and its subsidiary legislation read as follows:
Article 7
“Every medical practitioner attending on or called in to visit the patient shall forthwith, on becoming aware that the patient is suffering from a disease to which this Part of the Ordinance applies, send to the Superintendent a certificate stating the name, age and address of the patient, and the disease from which, in the opinion of such medical practitioner, the patient is suffering.”
Article 13
“(1) Where the Superintendent has reason to suspect that a person may spread disease he may, by order, restrict the movements of such person or suspend him from attending to his work for a period not exceeding four weeks, which period may be extended up to ten weeks for the purpose of finalising such microbiological tests as may be necessary. (2) Any person who acts in contravention of the provisions of this article shall be guilty of an offence against this Ordinance.”
Article 25
“(1) Any person suffering from a disease who is without proper lodging or accommodation or is in or upon any house or premises where proper precautions cannot be taken so as to prevent the spread of disease, or is lodged in any tent or van or in a room or house occupied by other persons besides those whose presence is necessary for attending on the patient, or is on board any ship, may on a certificate signed by two of the medical officers mentioned in article 16, be removed, by order of a magistrate, on the application of the Superintendent and at the cost of the Government, to any hospital for infectious diseases in Malta where the patient is and detained therein at the expense of the Government, so long as infected. (2) No such order shall be necessary where the removal is effected with the consent of the patient or his parents or tutor. (3) The order referred to in subarticle (1) shall be addressed, in Malta, to the Commissioner of Police and, in Gozo, to the senior Police officer. (4) Any person who shall obstruct the execution of any order made by any magistrate as aforesaid, shall be guilty of an offence under this Ordinance.”
Article 26
“(1) Where, upon the application of any of the medical officers mentioned in article 16, any magistrate is satisfied that a person suffering from a disease, who is in a hospital, would not on leaving such hospital be provided with lodging or accommodation in which proper precautions could be taken to prevent the spreading of the disease by such person, such magistrate may make an order directing the said person to be detained in such hospital, at the cost of the Government, for a time to be fixed in such order, but with full power to such magistrate to enlarge such time as often as may appear to him to be necessary for preventing the spread of the disease. (2) The execution of the said order may be enforced by any officer of the department of health, any Police officer or any officer of the hospital.”
57. Regulation 2 of the Notification of Tuberculosis by Medical Practitioner Order, Subsidiary Legislation (S.L.) 36.15 of the Laws of Malta, reads as follows:
“The provisions of article 7 of the Prevention of Disease Ordinance, relating to the duty of medical practitioners to notify disease, shall apply to all forms of tuberculosis as they apply to tubercular phthisis under article 10(2) of the said Ordinance.”
The Public Health Act
58. The pertinent provisions of the Public Health Act, Chapter 465 of the Laws of Malta, and its subsidiary legislation, in so far as relevant, read as follows:
Article 27
“The Superintendent may make, vary or revoke orders:
[...]
(c) prescribing measures to guard against or to control dangerous epidemics or infectious disease and in particular:
[...]
(iii) regulating the provision of medical aid, the distribution of medicine, the establishment of hospitals, the promotion of cleansing, ventilation and disinfection and otherwise for guarding against the spread of disease and for the treatment of persons suffering therefrom;
[...]
(v) prescribing such other matter as the Superintendent may deem expedient for the prevention or mitigation of such disease:
Provided that the power of the Superintendent to prescribe such other matter as the Superintendent may deem expedient for the prevention or mitigation of such disease shall include and shall be deemed to have always included the power to provide for any matter which is ancillary or consequential to an order issued under this paragraph [...]”
Article 29
“(1) The Superintendent may order that a person suffering from a notifiable disease:
(a) be isolated in such a place as the Superintendent determines;
(b) be placed under the supervision of a specified person;
(c) submits to further medical examination, medical testing, immunisation, medical treatment or counselling;
(d) discloses to an authorised officer the name and address of any other person with whom contact by that person may result or may have resulted in the transmission of the disease;
(e) refrains from doing anything which may cause the spread of disease.
[...]
(3) The Superintendent may apply to a magistrate for a warrant to apprehend and detain or quarantine any person who fails to comply with a direction under sub article (1) and for that purpose, to enter any area, premises, body of water or vehicle.”
59. Article 2 of the Period of Quarantine Order, Subsidiary Legislation (S.L.) 465.13 of the Laws of Malta, in so far as relevant, reads as follows:
“[...] (3) Any person arriving to Malta from any of the following countries shall not be required to submit himself to any period of quarantine upon his arrival so long as that person is in possession of, either a vaccination certificate, or a negative Polymerase Chain Reaction (PCR) COVID-19 test performed not more than seventy-two (72) hours prior to arrival in Malta, or a negative COVID-19 rapid antigen test (RAT) performed not more than twenty-four (24) hours prior to arrival in Malta, or a certificate of recovery from COVID-19 valid for not more than one hundred and eighty (180) days after the date of the first positive Polymerase Chain Reaction (PCR) COVID-19 test result:
[...]
(be) Libya
[...]”
The Immigration Act
60. In so far as relevant the provisions of the Immigration Act, Chapter 217 of the Laws of Malta, particularly Article 17 and 25A are set out in S.H. v. Malta (no. 37241/21, § 33, 20 December 2022). The International Protection Act
61. In so far as relevant Article 2 of the International Protection Act, Chapter 420 of the Laws of Malta, reads as follows:
 “[...] "application for international protection" means a request made by a third country national or a stateless person which can be understood as a request for international protection unless the third country national explicitly requests another kind of protection outside the scope of this Act that can be applied for separately; [...]”
62. The relevant provisions of the Reception of Asylum Seekers Regulations, Subsidiary Legislation (S.L.) 420.06 of the Laws of Malta, in so far as relevant, read as follows:
Regulation 2
 “[...] "unaccompanied minors" means persons below the age of eighteen who arrive in Malta unaccompanied by an adult responsible for them whether by law or by custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered Malta.”
Regulation 4
“(1) The Principal Immigration Officer shall take the necessary steps in order that, within a reasonable time and not exceeding fifteen days from the day an asylum seeker has lodged his application, the asylum seeker shall be informed of any established benefits and of the obligations with which he must comply relating to reception conditions; in this respect the Principal Immigration Officer shall ensure that an applicant is provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform him concerning the available reception conditions, including health care. (2) The Principal Immigration Officer shall ensure that the information referred to in sub-regulation (1) is in writing and, as far as possible, in a language that the applicant may reasonably be supposed to understand; where appropriate, this information may also be supplied orally.”
Regulation 6
“(1) Without prejudice to any other law, the Principal Immigration Officer may, when it proves necessary and if other less coercive measures cannot be applied effectively, order the detention of an applicant for one or more of these reasons, pursuant to an individual assessment of the case:
(a) in order to determine or verify his identity or nationality;
(b) in order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant; [...]
(2) A detention order issued by the Principal Immigration Officer in writing, in a language which the applicant is reasonably supposed to understand, shall state the reason or reasons on which it is based:
Provided that wherever the Principal Immigration Officer issues such a detention order he shall also inform the applicant of procedures to challenge detention and obtain free legal assistance and representation. (3) The Immigration Appeals Board shall, with due regard to article 25A(10) of the Immigration Act, review the lawfulness of detention after a period of seven (7) working days, which may be extended by another seven (7) working days by the Board for duly justified reasons. (4) If the applicant is still detained, a review of the lawfulness of detention shall be held after periods of two months thereafter. Wherever the Immigration Appeals Board rules that detention is unlawful, the applicant shall be released immediately. (5) An applicant shall be provided with free legal assistance and representation during the review of the lawfulness of his detention in accordance with sub-regulation (3). Free legal assistance and representation entails preparation of procedural documents and participation in any hearing before the Immigration Appeals Board.
[...]
(7) Any person detained in accordance with these regulations shall, on the lapse of nine months, be released from detention if he is still an applicant.
[...]
(9) An applicant shall not be detained for the sole reason that he is an applicant for international protection.”
Regulation 6A
“(1) Whenever an applicant is detained in accordance with regulation 6, he shall be detained in a specialised detention facility, which facility shall not be utilised as a place of detention for sentenced persons. In the eventuality that an applicant has to be detained in a facility for the detention of sentenced persons he shall be kept separate from inmates who are not detained pursuant to regulation 6 and the detention conditions provided for in these regulations shall apply:
Provided that minors shall never be detained in a facility utilised as a place of detention for sentenced persons. (2) Applicants detained in a specialised detention facility in accordance with sub-regulation (1) shall, insofar as possible, be kept separate from third-country nationals who have not filed an application for international protection. (3) Applicants in detention shall have access to open-air spaces. (4) Representatives of the United Nations High Commissioner for Refugees (UNHCR) shall be given the possibility to communicate with and to visit applicants in detention in conditions that respect privacy. (5) Legal advisers, counsellors, representatives of relevant non-governmental organisations and family members of detainees shall be given the possibility to communicate with and visit applicants in detention in conditions that respect privacy, in accordance with rules and conditions that may be laid down in legislation regulating detention facilities:
Provided that specialised detention facilities or facilities for the detention of sentenced persons may provide for limitations to access where necessary for purposes of administrative management or the upkeep of security and public order, as long as access is not severely restricted or rendered impossible. (6) The management of specialised detention facilities or facilities for the detention of sentenced persons shall systematically provide to applicants in detention information concerning the rules of the facility, their rights and their obligations in a language in which they understand or are reasonably supposed to understand:
Provided that temporary derogations under this regulation may be authorised only in duly justified cases and for a reasonably short period of time, in the event that the applicant is detained at a border post or in a transit zone. [...]”
Regulation 11
“(1) The authorities responsible for the management of reception centres shall ensure that material reception conditions are available to applicants when they make their application for asylum. (2) Applicants shall be provided with emergency health care and essential treatment of illness and serious mental disorders. Medical and other assistance shall be provided to applicants who have special reception needs, including mental health care. (3) The material reception conditions shall be such as to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence; the authorities referred to in sub-regulation (1) shall moreover ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with regulation 14, as well as in relation to the situation of persons who are in detention.”
Regulation 12
“(1) Where accommodation is provided in kind, it should take one or a combination of the following forms:
(a) premises used for the purpose of accommodating applicants during the examination of an application for asylum lodged at the moment of entry into Malta;
(b) accommodation centres which guarantee an adequate standard of living;
(c) other premises adapted for accommodating applicants:
Provided that, when accommodating applicants, due regard shall be given to gender and age-specific concerns, as well as the situation of vulnerable persons [...]”
Regulation 14
“(1) (a) In the implementation of the provisions relating to material reception conditions and health care, including mental health, account shall be taken of the specific situation of vulnerable persons who shall include minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms or psychological, physical or sexual violence, such as victims of female genital mutilation, found to have special needs after an individual evaluation of their situation:
For the purposes of this regulation, the entity for the welfare of asylum seekers shall assess in conjunction with other authorities as necessary, whether the applicant is an applicant with special reception needs and shall also indicate the nature of such needs. This assessment shall be initiated within a reasonable period of time after an application for international protection has been lodged. (b) The entity for the welfare of asylum seekers shall also ensure that support is being provided to applicants with special reception needs, taking into account their special reception needs throughout the duration of the asylum procedure, whilst conducting appropriate monitoring of their situation. (c) Minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment or who have suffered from armed conflicts shall be given access to pertinent rehabilitation services in terms of the Victims of Crime Act, further to being provided with the required mental healthcare. For the purposes of this provision an evaluation by the entity responsible for the welfare of asylum seekers, carried out in conjunction with other authorities as necessary shall be conducted as soon as practicably possible:
Provided that applicants identified as minors shall not be detained, except as a measure of last resort:
Provided further that applicants who claim to be minors shall not be detained, except as a measure of last resort, unless the claim is evidently and manifestly unfounded. (3) Whenever the vulnerability of an applicant is ascertained, no detention order shall be issued or, if such an order has already been issued, it shall be revoked with immediate effect. (4) In the implementation of the provisions of these regulations, where these refer to minors, the best interests of the child shall constitute a primary consideration. When considering the best interest of the child due regard shall be taken to the possibilities of family reunification, the minor’s general well-being and social development, safety and security considerations, and the views of the minor in accordance with his age and maturity. (5) Minor applicants shall have access to leisure activity, including play and recreational activity appropriate to their age, and to open air activity whenever accommodated in accordance with regulation 12. [...]”
Regulation 15
 “[...] (3) An unaccompanied minor aged sixteen years or over maybe placed in accommodation centres for adult asylum seekers.”
Regulation 16
“(1) Applicants who feel aggrieved by a decision taken in pursuance to the provisions of these regulations and by a decision in relation to age assessment in accordance with regulation 17 of the Procedural Standards in Examining Applications for International Protection Regulations, shall be entitled to an appeal to the Immigration Appeals Board in accordance with the provisions laid down in the Immigration Act:
Provided that applicants who lack sufficient resources to appeal from a decision, are entitled to free legal assistance and representation. (2) Free legal assistance and representation shall entail the preparation of the required procedural documents and participation in the hearing before the Immigration Appeals Board.”
63. The relevant provisions of the Procedural Standards for Granting and Withdrawing International Protection Regulations, Subsidiary Legislation (S.L.) 420.07 of the Laws of Malta, read as follows:
Regulation 9
“[..] (3) The applicant shall submit as soon as possible all elements needed to substantiate the application for international protection. Such elements shall consist of the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality, country and place of previous residence, previous applications for international protection, travel routes, travel documents and the reasons for applying for international protection.”
Regulation 17
“(1) A medical examination to determine the age of unaccompanied minors within the framework of any possible application for international protection may be carried out. Such medical examination shall be:
(a) conducted in a language which he understands or is reasonably supposed to understand;
(b) performed with full respect for the individual’s dignity;
(c) the least invasive possible; and
(d) carried out by qualified medical professionals allowing to the extent possible, for a reliable result. (2) For the purpose of this regulation, the relevant authorities shall ensure that:
(a) unaccompanied minors are informed prior to the examination of their application for international protection, and in a language they understand or are reasonably supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for international protection, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of the application;
(b) unaccompanied minors and, or their representatives consent to a medical examination being carried out to determine the age of the minors concerned;
(c) the decision to reject an application by an unaccompanied minor who refused to undergo this medical examination has not be[en] based solely on that refusal:
Provided that an unaccompanied minor’s refusal to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for international protection, and that the best interests of the minor shall be a primary consideration in any such decision.”
RELEVANT MATERIALConditions in detention centers

64. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 22 September 2020, published in March 2021[1], in so far as relevant, reads as follows:
“A. Foreign nationals deprived of their liberty
[...] 17. As regards a restriction of movement on grounds of public health, the authorities have been relying on the 1982 Prevention of Disease Ordinance containing a provision which enables the Superintendent of Public Health to restrict personal movements if there are reasonable grounds to believe that the person may have been exposed to infectious diseases and for the purposes of screening for such infectious diseases and to prevent their spread; it is ordered without an individual assessment. In practice, since mid-2018 this restriction has formed the basis by which more than 90% of Malta’s detained migrants have been held in reception and detention facilities; it lasts for many months without review, and the migrants concerned are confined for 23 to 24 hours per day in their accommodation units (see section 4a detention procedures & legality). Indeed, immigration detention under these health provisions has been recently found to be illegal by Maltese Courts in six cases brought by detained asylum-seekers in 2019. The cases were habeas corpus applications brought under Article 409A of the Criminal Code. Multiple concerns were raised about the legality of detention, including that the relevant provision does not authorise deprivation of liberty, only the restriction of movement. There is a maximum period of four weeks permissible in national law and only extendable to 10 weeks in exceptional cases; it applies even in the case of vulnerable applicants and children. The health restriction order is a single sentence – without specifying the type of infectious disease concerned and with no effective remedy provided against this form of detention. Apparently, there are no procedural guarantees in relation to this form of detention, save for the habeas corpus process under the Criminal Code, Article 409A. [...]
3. Conditions of detention & regimes that may amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights
[...] 34. Safi Detention Centre and Hermes Block (Lyster Barracks) are detention facilities run by the Detention Service, located on an operational bases of the Armed Forces of Malta (AFM). China House is an additional detention facility run by the Detention Service, with assistance from Malta Red Cross. [...]
Safi Detention Centre, Safi AFM Barracks
35. Safi Detention Centre consisted of two Warehouses, nos. 1 and 2 (each housing some 350 migrants); Safi B-Block Upper and Lower Zones holding some 200 migrants; Safi C-Block, a new building partially still under construction, was holding the 77 migrants transferred from Hermes Block following the riot in September; and an Isolation / “Museum” Block, holding 18 migrants at the time of the visit. 36. The material conditions of each of Safi Detention Centre’s Blocks were poor, apart from those in the Isolation block/ “Museum Block”. The large dormitories in both Warehouses 1 and 2 were crammed with rows of bunk beds and a similar situation pertained in B-Block where the dormitories, measuring some 30m², were accommodating 22 persons and the 11 sets of bunk beds took up most of the floor space. Every dormitory was equipped with one television set. The shower facilities in both Warehouses and B-Block were filthy and the showers not always functioning, showerheads were missing and the sanitary area constantly flooding. Mould was present on the walls and ceilings. In Warehouse One, many migrants underlined that only one of the 10 toilets was working at the time of the delegation’s visit and that they often used their lunchboxes to wash themselves from the wash basin’s tap due to the dysfunctional showers. Further, as nearly all migrants only possessed one set of clothes (generally the ones that they had arrived in), when they washed these, they had to borrow clothes from other migrants where possible until their clothes dried. Safi C-Block comprised one large dormitory, with adequate access to natural light and sufficient artificial lighting and ventilation, but as with the other blocks it was crammed with rows of bunk beds (for 80 migrants) only, there being no other furniture therein. It had a shower facility, in which there were 6 working showers (but no hot water) and 6 toilets and a large wash basin for migrants to launder their clothes. The Isolation Block / “Museum” Block was a separate unit situated adjacent to B‑Block, with a capacity of 14 beds but which was accommodating 18 persons at the time of the visit. The Block consisted of three rooms that each measured only 6m² and yet were furnished with two beds, and one dormitory of 20m² with eight beds. The facilities in this Block, were reasonably well maintained and clean, and the rooms and dormitory had adequate access to natural light and sufficient artificial lighting and ventilation. There was a television in the dormitory and the migrants had ready access to a small outside exercise yard (although lacking in shade and a means of rest). The CPT wishes to be informed where the four extra persons in the Isolator Block slept at night. 37. The regime of activities afforded to migrants was non-existent. Access to the outside exercise yards was sporadic for the 700 migrants detained in both Warehouses 1 and 2, and following the riot on 18 September 2020, access to the yard for the 350 migrants in Warehouse 1 was suspended. Equally, many migrants from B-Block, with whom the delegation spoke, alleged that they too had had no access to the outside exercise yards for several weeks, and in some cases, months. Exercise yards, when the migrants had access to them, provided no shade or means of rest. In Block C the exercise yard was still under construction, which meant that the 77 migrants held there were confined to their dormitory for 24 hours a day. [...]
Hal Far Reception Centre, “China House”
42. Due to the large number of migrant arrivals and the Covid-19 pandemic, an additional establishment was added to the Detention Services’ facilities in March 2020, namely Hal Far Reception Centre (known as “China House”). The purpose of this establishment was to take many non-vulnerable migrants from Marsa IRC and to create additional capacity to ensure migrants arriving in Malta could be quarantined while being medically screened and assessed. According to staff, the average stay at China House was four months before they were transferred either to a closed detention centre, Marsa IRC or an open centre. 43. The Facility comprises three zones (A, B and C) in a two-storey building. At the time of the delegation’s visit, Zone A had a capacity of 75 and was accommodating 50 persons, and Zone C had a capacity of 130 and was accommodating 100 persons (all of whom had been transferred from Hermes Block, Lyster, after the riot from 14‑16 September 2020). Zone B was designated as a Covid-19 quarantine zone and held 38 persons, who had recently tested positive for the coronavirus. The dormitories in Zones A and C measured 21m² each and were equipped with six sets of bunk beds (i.e. 12 beds); dormitories of such a size should not accommodate more than five persons. Not all of the rooms had access to adequate natural light and sufficient artificial lighting and ventilation. Some of the bathrooms had no doors and, at the time of the delegation’s visit, some of the showers and wash basins were blocked in Zones C and B and flooded the bathroom floors when used, which had allegedly caused some migrants to slip and injure themselves. 44. There was no regime of activities in China House. Many of the detained migrants underlined that they had no access [to] any purposeful activities, no television, no access to the telephone, and were not offered access to the single exercise yard. Migrants spent 24 hours per day locked on their units with nothing to structure their days for months on end. Such living conditions may well amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights. 45. By communication of 2 November 2020, the Maltese authorities stated that urgent maintenance works are being carried out on the existing toilets and showers at Safi Warehouses and B-Block. A detailed survey of both buildings was being conducted with the aim to improve the overall living and sanitary conditions of both blocks. Works on the plant room and the upper floors of Hermes Block have started in October 2020 and refurbishment of lowers floors will commence thereafter. 46. The CPT notes positively that some refurbishment works are now being undertaken. Nevertheless, in the light of the above findings, the CPT calls on the Maltese authorities to take broader action to: - transfer vulnerable persons (including families with children, pregnant women, etc.) to suitable open reception facilities, where they can receive appropriate care for their specific needs; - not to detain women and children; if exceptionally, they are detained for very short periods (hours) they should not be held in the same room as unrelated men. Further, the CPT calls upon the Maltese authorities to renovate Safi Detention Centre’s Warehouses and B-Block, Hermes Block (Lyster Barracks) and China House to ensure that: - they provide an appropriate environment which is not carceral; - the official occupancy rates are revised so as to offer a minimum of 4 m² of living space per detained person in the multiple‑occupancy accommodation; preferably the rooms should be divided up into smaller living units; - the building infrastructure is regularly maintained and litter and debris cleared (notably at Hermes Block, Lyster Barracks and Warehouse One, Safi detention Centre); - all dormitories have adequate access to natural light and sufficient artificial lighting, ventilation and heating/cooling; - all detained persons are offered a clean bed, mattress, blanket and bedding; - all dormitories are equipped with tables and chairs and all detained persons provided with personal lockable space; - all dormitories and sanitary annexes are regularly maintained and disinfected and have properly functioning toilets and showers designed to afford a degree of privacy, and properly maintained wash-basins; - all detained persons have access to hot water to wash and are provided with a towel; and - at least one additional set of clothing is provided to detained migrants, and especially for the winter months, warmer clothing and adequate footwear. In addition, the CPT calls upon the Maltese authorities to ensure that: - unrestricted access to outdoor exercise is granted throughout the day; - outdoor exercise areas are appropriately equipped (benches, shelters, etc.); - a programme of activities (educational, recreational and vocational) is developed; - at least one common association room, equipped with books, television and games, and one multi-faith room are set up in each detention block; and - the facilities are adequately staffed by a range of professionals who are equipped with the necessary range of skills to work with migrants. 4. Safeguards against ill-treatment
a. detention procedures and legality
47. As mentioned above, 1,188 persons were being detained on public health grounds at the time of the delegation’s visit. Some of these migrants appeared to possess no formal written order on their detention while others had in their possession a single piece of paper given to them by public health officials soon after their arrival in Malta, comprising a single paragraph written in English that he/she was being restricted in his/her movement to ensure screening for, and prevention of the spread of, an (unspecified) infectious disease. The papers seen by the CPT’s delegation were often not fully annotated. Understandably, migrants expressed increasing frustration at the lack of information, both as to how long the detention would last and as regards their immigration status. The frustration was compounded by the fact that a large number of the migrants had tested negative for tuberculosis and Covid-19. 48. There were no registers of the detention orders or copies of the detention orders kept at the Detention Services or IRC establishments, and management did not appear to know who was being held on which grounds. This incredible state of affairs meant that the management could not ensure any oversight of the safeguards related to detention. Indeed, the management took it on trust from the Immigration Police and Ministry of Health that all migrants were being detained lawfully. The Detention Service told the delegation that they were informed on an ad hoc basis when individual migrants were to arrive, be transferred, deported or released. 49. The CPT underlines that deprivation of liberty for immigration purposes should be a measure of last resort, after a careful and individual examination of each case, and that its continued need should be subject to periodic review. Every instance of deprivation of liberty should be covered by a proper individual detention order, readily available in the establishment where the person concerned is being held; and the detention order should be drawn up at the outset of the deprivation of liberty. Equally, in line with the European Court of Human Rights’ jurisprudence, the CPT has long held that detained migrants in an irregular situation should benefit from an effective legal remedy enabling them to have the lawfulness of their deprivation of liberty decided speedily by a judicial body. This judicial review should entail an oral hearing with legal assistance, provided free of charge for persons without sufficient means, and interpretation services being provided as required. Moreover, detained migrants in an irregular situation should be expressly informed of this legal remedy. Lastly, the need for continued detention should also be reviewed periodically by an independent authority. In Malta, the CPT found that this was not the case for many of the migrants being deprived of their liberty, especially those held under public health grounds. Equally, there was a clear lack of systematic and effective periodic review for migrants held for long durations (over 12 to 18 months) under RD [SL 217.12] detention orders. 50. The CPT recommends that the Maltese authorities urgently review the legal basis for detention on public health grounds as its current application may well amount to hundreds of migrants being de facto deprived of their liberty on unlawful grounds. The CPT recommends that the Maltese authorities ensure that any detention on public health grounds is exceptional, individualised, specific, time-limited and regulated by the same safeguards as detention under immigration detention orders (i.e. RCD [SL 420.06] and RD orders). Further, registers and copies of every detention order should be kept in the establishments where persons are being deprived of their liberty, and periodic reviews of all types of detention should be systematically undertaken in a timely fashion, in accordance with Maltese law, along with adequate oversight that this operates on time, and in practice.”
65. In so far as relevant in relation to detention conditions, the report of 15 February 2022 by the Council of Europe Commissioner for Human Rights following her visit to Malta from 11 to 16 October 2021 (CommDH(2022)1) reads as follows:
“47. In recent years, Malta has made positive changes to its immigration and asylum legislation and policy, notably by eliminating mandatory detention provisions and introducing vulnerability screenings, although mostly upon referrals, and not on a systematic basis. The Commissioner was informed, however, that in practice, since the increase in boat arrivals in 2018, most of the newly arrived refugees and migrants have been placed in detention centres on public health grounds, often for prolonged periods of time and in poor conditions which deteriorated further following the outbreak of the COVID-19 pandemic. In a report published in November 2020, the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) also found that contrary to Maltese legislation, vulnerable individuals have been kept in detention centres, owing to lack of space in open centres or other alternatives to detention. 48. Information received by the Commissioner during her visit indicates that the majority of those arriving by sea are still automatically placed in closed facilities managed by the Detention Services for COVID-19 quarantine and medical clearance purposes. Families, women, children, and vulnerable individuals are usually transferred to the Initial Reception Centre at Marsa managed by the Agency for the Welfare of Asylum Seekers (AWAS), where they are accommodated under an open regime. However, NGOs shared with the Commissioner their concerns that some children continue to be detained pending age assessment, although the authorities have started releasing them during the relevant appeal proceedings. [...]
52. Since September 2020, some positive changes have been reported in the management of detention centres, as well as improvements in detention conditions, including refurbishing, a medical clinic, increased human resources including welfare officers, better oversight of detained persons and a complaints mechanism. The Commissioner witnessed some of these improvements during her visit to the Safi Detention Centre. However, she noted that several problems persisted with respect to the prevailing material conditions and detention regimes. 53. The Commissioner was struck by the deplorable conditions at Block A in the Safi Detention Centre, including the carceral design and the blatantly poor sanitary and hygiene conditions and overcrowding. Her dismay was shared by the staff of the Ombudsman’s Office, who had made similar observations in the past. The Commissioner received assurances from the authorities that Block A would be modernised very soon. She invites the authorities to provide her with updates about the improvements made to living conditions there. 54. Several migrants with whom the Commissioner talked at the Safi Detention Centre complained about poor health care, in particular as regards the availability of adequate medication. The majority had been vaccinated against COVID-19 but were not wearing masks. They also reported being handcuffed while taking walks (a migrant woman) or while being escorted to medical checks. Many voiced their anguish at not knowing the reasons for their detention and their despair in the face of an uncertain future. They deplored their lengthy detention and expressed their wish to live as free people, in dignity and to have jobs that would allow them to support themselves and their families. They also complained about not being able to obtain information about their situation and to access legal assistance and other support. The authorities confirmed that at the time of the Commissioner’s visit detained migrants could only use a landline to make external calls. The mobile telephone service previously available to them had been discontinued. 55. The Commissioner understood that access by organisations providing assistance and independent monitoring had been restricted in the context of the COVID-19 pandemic. NGO access was restored in September 2020, but authorisation had to be sought prior to each visit. The Commissioner was informed that NGOs only had access to reception rooms and were required to nominate in advance those with whom they wished to talk. This made it difficult to identify any new persons in vulnerable situations or otherwise in need of assistance as regards access to protection or legal assistance.”
Minority and Age assessment
66. Article 11(2) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), the ‘Reception Conditions Directive’, reads as follows:
“Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.”
67. The relevant provisions of the Convention on the Rights of the Child, which was adopted on 20 November 1989 and came into force on 2 September 1990 (1577 UNTS 3) read as follows:
Article 1
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
Article 3
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...”
Article 22
“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments ...”
Article 37
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. [...]
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
68. The Committee for the Rights of the Child (hereinafter ‘CRC‑Committee’), in the General Comment No. 6 of 2005, concerning the treatment of unaccompanied and separated children outside their country of origin observed that:
“61. In application of article 37 of the Convention [on the Rights of the Child] and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37(b) of the Convention [on the Rights of the Child] that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other forms of appropriate accommodation.”
69. The UN Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010 in so far as relevant reads as follows:
“60. The detention of minors, particularly of unaccompanied minors, requires even further justification. Given the availability of alternatives to detention, it is difficult to conceive of a situation in which the detention of an unaccompanied minor would comply with the requirements stipulated in Article 37(b), clause 2, of the CRC of the [Convention on the Rights of the Child], according to which detention can be used only as a measure of last resort.”
70. The European Parliament resolution of 4 February 2014 on undocumented women migrants in the European Union, Resolution 2013/2115(INI), 2014 called upon European Union Member States to
“cease, completely and expeditiously the detention of children on the basis of their immigration status, to protect children from violations as part of migration policies and procedures and to adopt alternatives to detention that allow children to remain with family members and/or guardians.”
71. The Parliamentary Assembly of the Council of Europe, Resolution 2195 (2017), ‘Child-friendly age assessment for unaccompanied migrant children’, 24 November 2017, in so far as relevant reads as follows:
“3. The Parliamentary Assembly has raised the issue of age assessment of unaccompanied children in several resolutions, in particular Resolution 2136 (2016) on harmonising the protection of unaccompanied minors in Europe, Resolution 1810 (2011) “Unaccompanied children in Europe: issues of arrival, stay and return”, Resolution 1996 (2014) “Migrant children: what rights at 18?” and Resolution 2020 (2014) on the alternatives to immigration detention of children, in which it establishes a number of safeguards pertaining to age assessment, emphasising that these procedures should only be carried out if there are reasonable doubts about a person’s age and should always be conducted in the best interests of the child. 4. The Assembly welcomes and supports the Parliamentary Campaign to End Immigration Detention of Children and in particular its action to promote child‑sensitive age assessment of migrant children. 5. The Assembly is particularly concerned that certain age-assessment methods can be frightening and traumatising for children and may involve inhuman and degrading treatment. In addition, the age-determination process can be negatively life-changing: if a child’s age is disputed or if he or she is pronounced an adult, immigration detention and removal are likely to become a reality. In cases of detention, the negative physical and psychological effects on children’s health and development are far-reaching and lasting. 6. The many methods of age assessment used in Europe reflect the lack of a harmonised approach and agreed method. The Assembly believes that the development of a child-sensitive, holistic model of age assessment would enable European States to meet the needs of unaccompanied or separated children. It therefore calls on member States to:
6.1. conduct case-by-case, reliable age assessment of unaccompanied migrant children only in cases of serious doubt about the child’s age and as a last resort, in the best interests of the child;
6.2. provide unaccompanied migrant children with reliable information about age-assessment procedures in a language that they understand, so that they can fully understand the different stages of the process they are undergoing and its consequences;
6.3. appoint a guardian to support each unaccompanied migrant child individually during the age-assessment procedure;
6.4. ensure that an unaccompanied migrant child or his or her representative can challenge the age-assessment decision through appropriate administrative or judicial appeal channels;
6.5. use only as a last resort dental or wrist x-ray examinations and all other invasive medical procedures for the purpose of determining the age of unaccompanied or separated migrant children;
6.6. ensure that all medical examinations are sensitive to the child’s gender, culture and vulnerabilities and that the interpretation of results takes into account the child’s national and social background as well as previous experiences;
6.7. prohibit, in all situations, the use of physical sexual maturity examinations for the purpose of determining the age of unaccompanied and separated migrant children;
6.8. prohibit the detention of unaccompanied or separated children who are awaiting or undergoing age assessment, and always apply the margin of error in favour of the person so that the lowest age in the margin determined by the assessment is recorded as the person’s age;
6.9. identify and provide alternative accommodation options for children awaiting or undergoing age assessment, with a view to avoiding the detention of children during disputes about age, including by temporary placement in centres for children where appropriate safeguards should be in place to protect them and other children in the centres;
6.10. support and promote the development of a single, holistic model of age assessment in Europe, based on the presumption that the person is a minor;
6.11. whenever possible, ensure that the procedure of age assessment is carried out by professionals acquainted with the children’s ethnic, cultural and developmental characteristics.”
THE LAW
PRELIMINARY REMARKS
72. The Government contested the applicant’s allegation that he was a minor on his arrival, as confirmed by the age assessment procedures, and the relevant appeal. They further challenged various statements of the applicant. 73. The applicant noted that he had consistently claimed to be a minor from his arrival up until his 18th birthday, on 4 September 2022. The PIO had obtained this information from him upon disembarkation and referred the matter to AWAS which eventually interviewed him. However, the numerous shortcomings in his age assessment procedure cast doubt on its conclusions. 74. The Court considers that it is not its task to speculate on whether or not the applicant was a minor at the time of his arrival (see Darboe and Camara v. Italy, no. 5797/17, § 131, 21 July 2022). It is however satisfied that he did declare his minor age at some point after his arrival prior to 6 December 2021 when the order of the Juvenile Court was issued. It should also be noted that there is no indication, nor has it been argued at the domestic level, that the applicant’s claims that he was a minor were unfounded or unreasonable (see, mutatis mutandis, Darboe and Camara, § 131, cited above, and Regulation 14 of S.L. 420.06). He was therefore a presumed minor. 75. The Court further observes that the instant case presents an intricate set of facts, with overlapping procedures, different legal grounds, if any, for restricting the applicant’s liberties, and different detention centres - the use of which was sometimes unrelated to the reason behind the accommodation in such a centre. Moreover, the parties are in disagreement about some of the facts (including dates) and the Government were unable to supply records to determine any uncertain circumstances or clarify any incoherences in the two versions of the facts supplied. 76. The Court reiterates that having assumed control over an individual, the authorities have a duty to account for his or her whereabouts and that the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 of the Convention (see, mutatis mutandis, Kurt v. Turkey, 25 May 1998, §§ 123-24, Reports 1998-III, and Belozorov v. Russia and Ukraine, no. 43611/02, § 113, 15 October 2015). The Court further notes the comments of the CPT, an independent body, concerning the lack of records of each person’s detention as being an “incredible state of affairs” (see paragraph 64 above). In the light of the above, in the absence of any submissions or documentation by the Government, the Court will give credence to the applicant’s coherent submissions. 77. Without prejudice to the determinations to be reached on the admissibility and merits of the applicant’s complaints, the Court finds it opportune to recapitulate in brief the facts outlining the case, as it understands them, on the basis of its assessment of the conflicting versions of the parties, and, where available, the documents supplied:
- The applicant was accommodated in HIRC from the date of his arrival on 24 November 2021 until 30 December 2021 (with the interruption of a few days spent in hospital between 17 and 22 December 2021). The grounds for the measures applied were the (COVID-19) Quarantine Order (until an unspecified date), followed by the RMPO as of 10 December 2021. It is disputed whether during this period the applicant was accommodated with minors or adults, but it appears that during this period no change to his accommodation was made after the order of the Juvenile Court of 6 December 2021 ordering that the applicant should not be accommodated with adults.
- The applicant was accommodated in Zone 4, Block B, of the Safi Detention Centre from 30 December 2021 to 2 February 2022 according to the Government, or 30 January 2022 according to the applicant, during which time he was under the RMPO (until an unspecified date). It is disputed whether during this period the applicant was accommodated with minors or adults at least until mid-January 2022. On 13 January 2022 the applicant’s age assessment decision, at first instance, determined that he was an adult, but that decision was appealed against.
- The applicant was accommodated in Zone 8 of the Safi Detention Centre (aka the container) from possibly 2 February 2022 until an unspecified date, around June 2022. At the start of this period the applicant was still under the RMPO (until an unspecified date) but as of 10 February 2022 he was being detained on the basis of the detention order related to his asylum claim.
- It is unclear where the applicant was detained from the end of June until the date of his release in July 2022. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
78. The applicant complained that his conditions of detention were inadequate and constituted inhuman treatment, contrary to that provided in Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
AdmissibilityThe parties’ submissions

79. The Government submitted that the applicant had failed to exhaust domestic remedies as he had failed to raise these complaints before the constitutional jurisdictions. While the Court had previously found that such proceedings were too lengthy for the purposes of complaints under Article 3 of the Convention, those considerations were no longer valid. The Government relied on the cases of Alfred Degiorgio v. the Attorney General (no. 29/2019), instituted on 26 February 2019, decided at first instance on 28 February 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Victor Buttigieg (Joseph Victor) v. the Attorney General (no. 97/2018) instituted on 28 September 2018, decided at first instance on 11 March 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Onor. Simon Busuttil v. the Attorney General (no. 86/2017) instituted on 19 October 2017, decided at first instance on 12 July 2018 and, on appeal, by the Constitutional Court on 29 October 2019, which concerned other Convention complaints. The Government explained that cases concerning ongoing ill‑treatment, in detention, were extremely rare and it was therefore difficult to provide examples of cases under Article 3, with similar circumstances as those in the instant case, to show the speed with which they were decided. 80. The Government submitted that upon request, the constitutional jurisdictions were empowered to issue an interim measure at any stage of proceedings. They relied on some examples unrelated to the situation in the present case. 81. The applicant submitted that constitutional redress proceedings had already been found to be ineffective for the purpose of such complaints due to the length of proceedings before such jurisdictions.

Outcome for Article 13: violation