Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) [Articles 3 and 5], 22 November 2016

Tuesday, November 22, 2016

On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed.
The case relates to two Somali asylum-seeking children, who applied for asylum shortly after their arrival in Malta. They were detained while awaiting their age assessment test. Even though the applicants were found to be children, they were only released from detention several months later. They submitted an application at the ECtHR complaining about the deplorable conditions of their immigration detention in violation of Article 3 ECHR. Moreover, the applicants complained that their detention had been arbitrary and unlawful in breach or Article 5(1) ECHR. Lastly, they argued that they had no effective remedy to challenge the lawfulness of their detention pursuant Article 5(4) ECHR.
In relation to Article 3 ECHR, the Court concluded that since the applicants were minors, who were detained for a period of around eight months, the cumulative effect of the conditions complained of amounted to degrading treatment in violation of Article 3 ECHR. These conditions included, inter alia, limited light and ventilation, deplorable sanitary facilities, lack of organised (entertainment) activities for minors, lack of proper counselling and educational assistance, a violent atmosphere and a lack of support mechanisms for the minors, as well as lack of information concerning their situation. 

Referring to Mahamed Jama and Moxamed Ismaaciil and Abdirahman Warsame, the Court further finds a violation of Article 5(4) ECHR as the applicants did not have an effective and speedy remedy under domestic law by which to challenge the lawfulness of their detention. In addition, the Court concludes that the applicants' detention was not in compliance with Article 5(1) ECHR. Whereas the Court observes that the detention had a sufficiently clear legal basis, the detention was deemed arbitrary because the severe delays in the age assessment process raised serious doubts as to the Maltese authorities’ good faith. This situation was further exacerbated due to the lack of procedural safeguards and the failure of the authorities to ascertain that the immigration detention was a measure of last resort for which no alternative was available.

Judge Sajó and Judge Pinto De Albuquerque gave concurring opinions.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Best interest of the child
Inhuman or degrading treatment or punishment
Unaccompanied minor