SECOND SECTION
CASE OF J.B. AND OTHERS v. MALTA
(Application no. 1766/23)
 
JUDGMENT
Art 3 (substantive) • Conditions of detention in immigration centres of the first applicant, not considered a presumed minor, not sufficient to reach required Art 3 threshold • Cumulative conditions of detention of the remaining applicants, presumed minors, amounting to inhuman and degrading treatment
Art 13 (+ Art 3) • Effective remedy • Constitutional redress proceedings ineffective for complaints of ongoing detention conditions
Art 5 § 1 • Deprivation of liberty • Art 5 § 1 (f) • Prevent unauthorised entry into country • Applicants’ initial immigration detention unlawful • Subsequent immigration detention of first applicant, ultimately found to be an adult, in compliance with Art 5 § 1 • Subsequent detention of remaining applicants, to allow processing of asylum claim with required prior age assessment, arbitrary
Art 5 § 4 • Immigration Appeals Board (IAB) not an effective remedy for the review of the lawfulness of detention • Decisions not subject to subsequent control by a judicial body with “full jurisdiction” • Lack of proper, clear and transparent appointment procedure and selection criteria for members • Absence of guarantees against outside pressure and appearance of independence • In case-circumstances lack of automatic review and proceedings not decided speedily
Art 46 • Respondent State required to take general measures to ensure enactment of legislation for conformity of the IAB with independence and impartiality requirements and to establish an effective domestic remedy for complaints about ongoing conditions of detention
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
22 October 2024
 
FINAL
 
22/01/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of J.B. and Others v. Malta,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Pauliine Koskelo,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Davor Derenčinović,
 Gediminas Sagatys, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 1766/23) 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 six Bangladeshi nationals (“the applicants”), indicated in the appended table, on 10 January 2023;
the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 3, Article 5 §§ 1 and 4 and Article 13 in conjunction with Article 3 (conditions of detention) and to declare inadmissible the remainder of the application;
the decision not to have the applicants’ names disclosed;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the decision to indicate interim measures to the respondent Government under Rule 39 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 1 October 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns various periods of detention of presumed minors and the effectiveness of remedies in relation to their detention and the conditions thereof. THE FACTS
2. The applicants were allegedly born in 2005 and 2006 respectively and were, at the time of the introduction of their application, held at Ħal Far, Initial Reception Centre. The applicants were represented by Ms K. Gatt, a lawyer from Aditus Foundation, practising in Ħamrun. 3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. D’Agostino senior lawyer at the Office of the State Advocate. 4. The facts of the case may be summarised as follows. Background to the case
5. The applicants, who claimed to have been minors aged between 16 and 17 years at the time, arrived in Malta on 18 November 2022 with a group of around another forty persons, after being rescued at sea, and were held in Ħal Far Initial Reception Centre (China House) (hereinafter ‘HIRC’). They were not provided with any document or explanation justifying their “detention”, which they considered was undertaken in inappropriate conditions. In particular, they noted that they had been detained with adults in rooms of sizes differing from 3 to 5 sq. m., where around four people were sleeping (in the absence of visitors or mobile phones no evidence to this effect could be submitted). During this period they had insufficient washrooms for the forty seven persons hosted and they were in a bad state of repair; limited to no access to an outdoor area; no access to a common area; no access to any prayer room or private space (the applicants did not recognise the photo submitted by the Government of the multipurpose room); limited access to a phone to make any calls (as it was often not working, and as noted by the Government required permission) including to lawyers; no access to any leisure or educational activities; no heating in any rooms; no appropriate clothing for winter; inadequate living conditions; limited to no access to drinkable water; no information provided in a language which they understood regarding their detention; and lack of adequate medical and psychosocial support. The Government disagreed with the applicants’ description of the conditions of detention, setting out their own (see paragraphs 40-41 below). 6. On 29 November 2022 they were medically cleared from carrying infectious diseases and on 30 November 2022, the applicants were issued with detention orders by the Principal Immigration Officer (‘PIO’) “in order to determine or verify their identity or nationality; in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding”. 7. On 6 December 2022 the legality of their detention was confirmed by the Immigration Appeals Tribunal (‘IAB’) in one mass hearing, related to all the group that had arrived by boat on the same day (Regulation 6 of the Reception of Asylum Seekers Regulations, Subsidiary Legislation 420.06 of the Laws of Malta, see paragraph 27 below). One interpreter and four legal aid lawyers were present. During this hearing the PIO explained the circumstances of the group’s arrival, and that they had been detained to determine their identity and because there was a risk of absconding, noting that they had not yet applied for asylum but were considered as having an automatic interest in doing so. The IAB noted that all the applicants in the present case except for the first applicant were minors and that a legal guardian was to be appointed. It advised all the other individuals to obtain an identity document. In view of the grounds put forward by the PIO the IAB considered the detention of the entirety of the group as being legal. 8. On 6 and 10 January 2023 the legal representatives in the present case had access to the applicants. The latter confirmed that they were minors and that they had brought the matter to the attention of the authorities. The first applicant declared that he had also informed the authorities multiple times including at the hearing of 6 December 2022 before the IAB. Thus, on the same days, the respective applicants were referred to the Agency for the Welfare of Asylum Seekers (‘AWAS’) (one of the applicants – M. K. – had been referred even earlier) by the applicants’ legal representatives, and AWAS replied that they had not been made aware of all the applicants. The legal representatives thus referred AWAS to the decision of 6 December 2022. 9. On 6 January 2023 the legal representatives also filed a request for an urgent review of the first, fourth, fifth and sixth applicants’ detention (noting that they had declared to be minors), which remained unanswered. Proceedings before this court
10. Following the applicants’ request, on 11 January 2023, the Court (the duty judge) decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Malta, under Rule 39 of the Rules of Court, to ensure that the applicants’ conditions are compatible with Article 3 of the Convention and with their status as unaccompanied minors. 11. On an unspecified date the applicants were transferred to Safi Detention Centre, Block A, Zone 4, where they were kept with other minors. According to the applicants the conditions in Safi were similar to those in the HIRC (see paragraph 5 above), apart from the size of the rooms, and the fact that in Zone 4 they had been allowed one hour daily outside in the yard. The Government disputed this (see paragraph 42 below). Age assessment proceedings
12. Following an interview held a few days before, the applicants’ age assessment procedure was concluded between 17 and 19 January 2023 considering that the applicants were adults. The applicants submitted that this procedure had been conducted hastily, without a holistic and multidisciplinary approach. They noted that once the relevant age-assessment report was provided to the legal representatives, it transpired that in respect of M. K. the assessors had concluded that he was a minor, however, a bone test – to which the applicant claimed not to have knowingly consented to – showed that he was an eighteen-year-old male. The Government was of the view that the procedure had been thorough, and the interview detailed. 13. All the applicants appealed the decision concerning their age before the IAB. 14. A request to postpone the hearing (scheduled for 26 January 2023) on the grounds that the representatives had had no access to the applicants, who were in detention, nor to the remaining age-assessment reports, was refused. Nevertheless, on the same day the IAB in its formation of Division II adjourned the case, it being the same formation which had decided on the legality of the applicants’ detention. 15. The appeal procedure was only scheduled in respect of the first applicant, and, upon inquiry, the applicants’ representatives were told that detention service officers had informed the IAB that the remaining applicants wanted to withdraw their appeals. The IAB had taken their word for it without consulting with the legal representatives and irrespective of the fact that detention officers had no authority to speak for the applicants. The applicants subsequently confirmed, to their representatives, their wish to appeal. However, at the hearing of 20 February 2023, the IAB forwarded, to the legal representatives, declarations of adulthood signed by the first, third and sixth applicants. The legal representatives noted that the declarations had been signed in their absence and in the absence of an interpreter. The appeal procedure was therefore reinstated. 16. The remaining age-assessment reports were sent to the legal representatives on 22 February 2023 and the relevant vulnerability assessment reports (dated 28 February in respect of the third applicant and 2/3 March 2023 in respect of the remaining applicants) were sent to their representatives on 6 and 20 March 2023 respectively when the respective hearings took place. The reports showed that the first applicant had “significantly elevated” anxiety, depression, and post-traumatic stress disorder (‘PTSD’) as a consequence of his journey, he was referred for counselling and to the medical team. Similar conclusions were reached in the reports concerning the remaining applicants who had “significantly elevated” or “extremely high” levels of anxiety, depression and acute stress and PTSD, and the second, third and sixth applicants also had suicidal thoughts. 17. As a result, given that Regulation 14(3) of S.L. 420.06[1] provided that “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” a request to the PIO to release all the applicants due to their vulnerability was submitted on 23 April 2023 and reiterated on 28 April 2023 but no written reply ensued. It appears that in May the PIO verbally informed the applicants’ representatives that no alternatives to detention will be considered in view of updated reports dated 27 April 2023 which were sent to the representatives in May 2023. The reports did not reiterate the previous findings (see the preceding paragraph), the first applicant was doing well both physically and mentally and was followed by counselling services, the remaining applicants also had no serious physical or mental issues but remained anxious and had difficulty in detention. 18. By decisions of 16 and 22 May 2023 the IAB rejected the first applicant’s appeal declaring him to be an adult as he had been carrying his passport on his arrival (indicating 2002 as his year of birth), a passport which was verified and authenticated as being genuine, and which clearly showed that he was an adult, but upheld all the other appeals, confirming the remaining applicants’ minority age. In so far as relevant to the applicants’ argumentation, in this respect, the decisions read as follows (original language and emphasis by the IAB):
“... In the circumstances of such direction, this Board finds it hard to believe that if an illegal immigrant actually claimed and alleged [that] he was a minor, that the Board would have ignored him and that the probability is that the statement that detention was legal was a simple lapsus due to the fact that there were so many alleged illegal immigrants being heard on that same day. Moreover, the Board also notes that three lawyers were present for this sitting as well as the interpreter, so it was definitively facilitated and the immigrants had all the assistance that they required. It was in fact оne month after of the review of the sitting of the legality of detention that the present applicant’s lawyer emailed AWAS (Doc. 3) and informed them about the claim that the appellant is a minor. The Board is certain that all immigrants were offered legal assistance before the previous Board and in fact, as already stated, three lawyers were present at the sitting.
... This Board, whilst appreciating the report, Doc. 4, presented to the Malta Government on the visit to Malta carried out by the European Commission for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from the 17-22 September 2020 acknowledges also the significant challenges the Maltese authorities are facing and continue to face on a daily basis with large number of illegal immigrants trying to enter Malta. Of course, this Board fully believes that this problem is t[o] be addressed and requires A COORDINATED EUROPEAN APPROACH AND SUPPORT FROM THE EU AND ITS MEMBER STATES. ...”
19. On 16 May 2023 the first applicant was transferred to another part of the Safi detention center with adults, and on 19 May 2023 the third, fourth, fifth and sixth applicants were released and accommodated in an open center for minors. The second applicant was released sometime after. Further circumstances
20. The applicants alleged that they had been harassed while in detention because of the procedures they had undertaken at the domestic and international level. The applicants’ legal representatives reported the matter, in relation to a group of Bangladeshi minors (without mentioning the applicants’ names) to the Detention authorities, the Director of Child Protection Services, the Commissioner for Children, the Monitoring Board for Detained Persons and AWAS, asking them to investigate the situation. The Government considered that the allegation was unfounded, noting that the applicants had not reported the matter to the Police. The applicants’ explained that they did not do so for fear of reprisal, as this would have required the disclosure of their names while they were still in detention. 21. The first applicant’s application for international protection was rejected on 12 July 2023, confirmed on appeal on 17 July 2023. Having been issued with a return decision and removal order on 27 July 2023 he left Malta on 22 August 2023. 22. According to information submitted by the Government, the second, third, fifth and sixth applicants were reported missing on different dates following 17 June 2023. 23. On 9 October 2023, following the Court’s request the legal representative submitted evidence indicating that they were still in contact with the applicants. RELEVANT LEGAL FRAMEWORK
Relevant Domestic LawThe Criminal Code

24. Section 409A of the Criminal Code, reads as follows:
“(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.”
The Immigration Act
25. In so far as relevant, the provisions of the Immigration Act, Chapter 217 of the Laws of Malta, read as follows:
Article 5
“(1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant. (2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also –
(a) if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; ... (e) if he contravenes any of the provisions of this Act or of any regulations made thereunder; or
(f) if he does not comply or ceases to comply with any of the conditions, including an implied condition, under which he was granted leave to land or to land and remain in Malta or was granted a residence permit; or
(g) if any circumstance which determined the granting of leave to land or to land and remain in Malta or the extension of such leave or the granting of a residence permit ceases to exist; ...”
Article 17
“Notwithstanding any other law to the contrary, no return decision or removal order shall be obstructed nor shall the implementation of any such return decision or removal order be delayed by means of any warrant issued under the Code of Organization and Civil Procedure:
Provided that this article shall not apply to orders issued by the Constitutional Court.”
Article 25A
“(1) (a) There shall be a board, to be known as the Immigration Appeals Board, hereinafter referred to as the Board consisting of a lawyer who shall preside, a person versed in immigration matters and another person, each of whom shall be appointed by the President acting on the advice of the Minister:
Provided that the Minister may by regulations prescribe that the Board shall consist of more than one division each composed of a Chairman and two other members as aforesaid. (b) The Minister may make regulations to regulate the distribution by types of appeals or applications amongst the divisions of the Board. (c) The Board shall have jurisdiction to hear and determine appeals or applications in virtue of the provisions of this Act or regulations made thereunder or in virtue of any other law. (2) A member of the board shall be disqualified from hearing an appeal in such circumstances as would disqualify a judge in terms of Sub-Title II of Title II of Book Third of the Code of Organization and Civil Procedure; and in any such case either the member shall be substituted by another person appointed for the purpose by the President acting on the advice of the Minister, or the appeal, when there is more than one division of the Board in office, may be referred by order of the Board from one division of the Board to another. (3) The members of the Board shall hold office for a period of three years, and shall be eligible for re-appointment. (4) A member of the Board may be removed from office by the President acting on the advice of the Prime Minister, on grounds of gross negligence, conflict of interest, incompetence, or acts or omissions unbecoming a member of the Board. (5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals. (6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request. (8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III[2], from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction). The Rule Making Board established under article 29 of the Code of Organization and Civil Procedure may make rules governing any such appeal. (9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of deportation order or return decision and removal order to be released from custody pending the determination of any application under the International Protection Act or otherwise pending their deportation in accordance with the following subarticle of this article. (10) The Board shall grant release from custody where the detention of a person is, taking into account all the circumstances of the case, not required or no longer required for the reasons set out in this Act or subsidiary legislation under this Act or under the International Protection Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time-frame. (11) The Board shall not grant such release in the following cases:
(a) when elements on which any claim by applicant under the International Protection Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention;
(b) where the release of the applicant could pose a threat to public security or public order.
... (13) It shall be a condition of any release under subarticles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine.”
International Protection Act
26. Article 2 of the International Protection Act, Chapter 420 of the Laws of Malta, in so far as relevant 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; ...”
27. The relevant provisions of the Reception of Asylum Seekers Regulations, Subsidiary Legislation 420.06 (hereinafter ‘the Regulations of S.L. 420.06’) 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 3
“(1) These regulations shall apply to all third country nationals and stateless persons who make an application for asylum in Malta as long as they are allowed to remain in Malta as asylum seekers, as well as to family members, if they are covered by such application for asylum according to the Maltese law.”
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;
(c) in order to decide, in the context of a procedure, in terms of the Immigration Act, on the applicant’s right to enter Maltese territory;
(d)when the applicant is detained subject to a return procedure under the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, in order to prepare the return or carry out the removal process, and the Principal Immigration Officer can substantiate, on the basis of objective criteria, including that the applicant already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
(e) when protection of national security or public order so require; or
(f) in accordance with Article 28 of Regulation (EU) No604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person: ... (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 subregulation (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 subregulation (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 advisors, 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 submitted. (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. (2) Whenever the vulnerability of an applicant becomes apparent at a later stage, assistance and support shall be provided from that point onwards, pursuant to a reassessment of the case. (3) Repealed by Legal Notice 87 of 2024. [content applicable at the time of the present case has not been submitted]
(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. (6) The entity responsible for the welfare of asylum seekers shall, with the assistance of international organisations as necessary, initiate procedures to trace the family members of applicants who are unaccompanied minors. Whenever the circulation of data may place family members in jeopardy, the collection, processing and circulation of data shall be kept confidential.”
Regulation 15
“(1) The entity for the welfare of asylum seekers shall as soon as possible take measures to ensure that the unaccompanied minor is represented and assisted by a representative and the provisions of regulation 18 of the Procedural Standards for Granting and Withdrawing International Protection Regulations regarding unaccompanied minors shall apply. (2) An unaccompanied minor shall be accommodated in centres specialised in accommodation for minors in accordance with the provisions of regulation 18 of the Procedural Standards for Granting and Withdrawing International Protection Regulations. (3) An unaccompanied minor aged sixteen years or over maybe placed in accommodation centres for adult asylum seeker[s]. ...”
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.”
28. In so far as relevant, the provisions of the Procedural Standards for Granting and Withdrawing International Protection Regulations, Subsidiary Legislation 420.07, reads 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 Material
29. The relevant parts of 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[3], as well as those of 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) are set out in A.D. v. Malta (no. 12427/22, §§ 64-65, 17 October 2023). 30. A delegation of the Council of Europe’s CPT carried out a further visit to Malta from 26 September to 5 October 2023, however the Report in relation to that visit has not yet been published. 31. The relevant international material concerning minority and age assessment is set out in A.D. v. Malta (cited above, §§ 66-71). THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32. The applicants complained about the conditions of their detention in the HIRC, as well as in the Safi Detention Centre where they claimed to have been subjected to threats, violence and harassment by other detainees and detention officials, 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.”
Admissibility
33. The Government submitted that the applicants had failed to exhaust domestic remedies, namely constitutional redress proceedings, reiterating the submissions made in previous cases (see most recently A.D. v. Malta, no. 12427/22, §§ 79-80, 17 October 2023) and referring to a further case (Repubblika vs the State Advocate, Rik. 472/2022, instituted on 12 September 2022, and decided at first instance on 20 January 2023 and on appeal on 31 May 2023). 34. The applicants relied on the Court’s well-established case-law in this field. In addition, they noted that cases relied on by the Government which were nonetheless lengthy were incomparable to the present case. 35. The Court notes that, in substance, the Government’s submissions do not go further than those submitted in the recent cases of A.D. v. Malta, cited above, Fenech v. Malta (no. 19090/20, § 35, 1 March 2022) and Feilazoo v. Malta (no. 6865/19, § 48, 11 March 2021) in relation to the speediness of the constitutional redress proceedings for the purposes of Article 3 and S.H. v. Malta (no. 37241/21, § 48, 20 December 2022) in relation to the possibility of applying interim measures. In all these cases the Court rejected the Government’s non‑exhaustion objection, which is nonetheless being reiterated in the present case. The Court finds no reason to alter the conclusions already reached in previous cases against Malta, it thus rejects the Government’s objection. 36. The Court further considers that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicants
37. The applicants complained that they were detained for almost two months (18 November 2022 until approximately 13 January 2023) in the HIRC in inhuman and degrading conditions (see for details paragraph 5 above). The applicants noted that their conditions of detention in the HIRC, were similar to the conditions described by the CPT in March 2021 (see paragraph 29 above). Those conditions were exacerbated by the applicants’ vulnerabilities relating in particular to their young age. Contrary to what was alleged by the Government, they submitted that no further clothing for the winter had been provided to the applicants, nor any games or books. 38. As to their detention in Block A, Zone 4, in Safi Detention Centre (with other minors) they considered that this had been in breach of international standards on the rights of child as established by the United Convention on the Rights of the Child (CRC) and regional courts since it was imposed in breach of the best interest of the child principle, also having a detrimental impact on their mental and physical health. The conditions were similar to those in the HIRC, apart from the size of the rooms, and the fact that in Zone 4 they had been allowed one hour daily outside in the yard. The applicants submitted that, although similar, the photos supplied by the Government were not of the place they were held in. They added that no child-specific activities had been organised and no specialist on child services had been available on site to ensure their well-being. The applicants also submitted that there had been instances of verbal harassment towards them (and physical harassment towards others) and apparent attempts to impede justice by Detention Services officers, in particular, the applicants had been pressured to sign documents the content of which they could not understand in the absence of an interpreter (see paragraph 15 above). In the absence of their mobile phones, which had been confiscated, the applicants argued that it was impossible to provide the evidence of harassment requested by the Government, reports had however been filed concerning this behaviour (see paragraph 20 above). 39. These periods of detention had had a negative toll on the applicants, who had already been through traumatic experiences, as shown in their psychological assessments (see paragraph 16 in fine above) and the cumulative treatment amounted to a breach of Article 3. (b)   The Government
40. The Government admitted that in the initial part of their stay the applicants had been placed with the rest of their group including adults (as allowed by domestic law for minors aged sixteen and seventeen). However, the Government challenged the unsubstantiated allegation concerning the size of the rooms as indicated by the applicants, stating that the rooms were on average 14 sq. m. large and that there were six toilets and seven showers. 41. The Government further submitted that, on admission to the HIRC, the applicants had been given all the necessary basic items[4] and on 14 December 2022, all residents were provided with two additional vests for the winter. Without specific reference to the present case, the Government explained that “if the residents feel cold, they may at any time request further blankets. Furthermore, a television is available with an open package including movies and sports. The residents have regulated, direct access to a yard, with each resident being afforded at least 1.5 hours of outdoor access every day. A phone was also available where residents could receive an unlimited number of phone calls, and they could at any time make a request to officers to make external phone calls. Residents were also provided with playing cards, board games and copies of the Quran”. According to the Government, the applicants also had access to a multipurpose room (photo submitted), which could be used for praying. The same room had a tap for cold water and a tap for hot potable water to make tea or coffee. The Government disputed that the applicants could receive no visitors and invited the applicants to list the people who attempted to visit them and were refused “with relative contact details, for Government to verify whether they are being truthful in their assertions”. The Government submitted photos of HIRC. 42. As to the Safi Detention Centre the Government disputed the applicant’s description of the conditions of accommodation in Block A, Zone 4. They further noted that at this location the bedrooms were larger and had four windows, as they hosted more individuals (photos submitted). They further noted that the applicants had not provided evidence concerning their claims of harassment which had not been reported, and that even assuming the occurrences set out at paragraph 15 above had to amount to an impediment of justice, it nonetheless did not amount to treatment contrary to Article 3. 43. Finally, the Government considered that any anxiety or other negative feelings that the applicants may have experienced had not stemmed from their treatment in detention – where they had been given all the necessities and had not been tortured – but rather their ordeal in their voyage, their separation from their families, and the fear of reprisal on the part of smugglers etc.

Outcome for Article 5: violation