ABDULLAHI ELMI AND AWEYS ABUBAKAR v. MALTA

• Judgment Date: 22 November 2016
• ECLI: ECLI:CE:ECHR:2016:1122JUD002579413
• Respondent State: Malta
• Date: 22 November 2016
• Application Number: 25794/13;28151/13
• Court: Fourth Section (European Court of Human Rights)
• Counsel: CAMILLERI M. ; CAMILLERI K.
• Applied Rules: 3;5;5-1;5-4

FOURTH SECTION

CASE OF ABDULLAHI ELMI AND AWEYS ABUBAKAR v. MALTA

(Applications nos. 25794/13 and 28151/13)

JUDGMENT

STRASBOURG

22 November 2016

FINAL

22/02/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdullahi Elmi and Aweys Abubakar v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 11 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 25794/13 and 28151/13) 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 two Somali nationals, Mr Burhaan Abdullahi Elmi and Mr Cabdulaahi Aweys Abubakar (“the applicants”), on 17 April 2013.

2. The applicants were represented by Dr M. Camilleri and Dr K. Camilleri, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. The applicants alleged that their detention was arbitrary and unlawful, and that they had not had a remedy to challenge the lawfulness of that detention. They further complained about the conditions of detention. They relied on Articles 3 and 5 §§ 1 and 4.

4. On 28 August 2014 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1996 and 1995 respectively. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta.

A. Background to the case

1. Mr Burhaan Abdullahi Elmi (the first applicant)

6. Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1996 and therefore was sixteen years old. The Government claimed that he was seventeen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English.

7. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the first applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.

8. The first applicant claimed that the contents of the decision in English were not explained to him, and that he could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.

9. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first applicant did not request a booklet in another language.

10. In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the first applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to Block B.

2. Mr Cabdulaahi Aweys Abubakar (the second applicant)

11. Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the second applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1995 and therefore was seventeen years old.

12. He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the second ...