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*Law of Aliens

Published on February 13th, 2018 | by Georgia Kleanthi


SUMMARY: European Court of Human Rights Nos 52160/13 and 52165/13 of January 12th 2016- Arbitrary arrest and detention, conditions of detention, appeal and effective remedies.

Keywords: Appeal/ Right to appeal | Arbitrary arrest and detention | Effective remedy | Freedom from torture, inhuman and degrading treatment | Immigration Detention | Prison or detention conditions.

Court: European Court of Human Rights

Claimants: Moxamed Ismaaciil and Abdirahman Warsame

Legal Framework:

       -Article 3 (Prohibition of torture, Degrading treatment)

 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

     -Article 5 Right to liberty and security 5-1 Lawful arrest or detention 5-4 Review of lawfulness of detention

 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law, (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

     4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

     – Aden Ahmed v. Malta, (Application no. 55352/12, 9 December 2013) (Effective access to procedures, Effective remedy (right to), Detention, Refugee Status, Inhuman or degrading treatment or punishment)

Case Facts:

The applicants in these joint cases are nationals of Somalia who arrived in Malta irregularly in August 2012 by boat, before claiming asylum. Both the claimants were processed and they were presented with documents in English which were not explained neither to Ms Abdirahman Warsame nor to Ms Moxamed Ismaaciil who could not understand the language .Later they were detained in Lyster Barracks in unspecified zones during the processing of their asylum claims and appeals. They complained that the conditions of their detention violated Article 3 ECHR, their prolonged detention was arbitrary and unlawful contrary to Article 5(1) ECHR; and that they had no effective remedy to challenge the lawfulness of their detention, contrary to Article 5(4) ECHR.

Regarding their asylum proceedings a few days following their arrival both the applicants were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta. Two months later, they were called for the refugee status determination interview. By decisions of 19 January 2013, communicated to the applicants on 31 January 2013, the Refugee Commissioner (RC) rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Halane village, in southern Somalia. On 7 February 2013 with the aid of lawyers from the Jesuit Refugee Service (JRS) the applicants appealed against the decisions.

To the above claims the Government of Malta informed the court about the facilities available to the detention center and presented facts about the detention staff to refute their claims and invoked a previews case. As to the other claims the Government submitted that Article 5 § 4 did not apply to the present case since, according to the Court’s case-law; such a remedy is no longer required once an individual is lawfully free.


The Court rejected the government’s submissions that the Article 3 claim was inadmissible for non-exhaustion of domestic remedies, in reliance on its findings in Aden Ahmed v. Malta in which it found that there were no accessible effective remedies in domestic law to challenge conditions of detention. Turning to assess their conditions of detention, the Court found that overcrowding in certain months of their detention was not so severe in itself to violate Article 3. The court was concerned with regard to the allegations of the applicants suffering from the cold and the lack of female staff but noted that there had been various improvements to the centre and found that the applicants had not shown that they were denied adequate medical assistance. It concluded that the cumulative effect of the conditions of detention did not amount to degrading treatment and found no violation of Article 3. Having repeatedly found that domestic remedies in Malta to challenge the lawfulness of detention violated Article 5(4), the Court saw no reason to depart from its previous case law, thereby finding a violation. With regard to the lawfulness of their detention after lodging their asylum claims, this was justified for the purpose of processing their claims and fell within 5(1), to prevent unauthorized entry. It considered the period of detention, eleven months and three weeks in total, lengthy, but stated that overall it complied with the requirements of Article 5(1).


Malta has introduced a new migration strategy which ends its practice of automatic detention of people that have entered the state irregularly and introduces grounds for detention and alternatives to detention into domestic law.

The full text of the decision here…

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