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MaltaToday 18 October 2023 MIDWEEK

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2 NEWS maltatoday | WEDNESDAY • 18 OCTOBER 2023 2 KURT SANSONE THE European Court of Hu- man Rights has ordered Malta to pay €25,000 in compensation to an Ivorian migrant over human rights breaches while in detention. The ECHR expressed concern at what it called Malta's "defective national system hindering human rights protection". It also called on the government to improve migrant detention conditions and ensure a legal basis for their deten- tion. This emerges from a judgment handed down today by the Eu- ropean Court of Human Rights (Second Section), sitting as a Chamber presided by Judge Arn- finn Bårdsen and composed of judges Jovan Ilievski, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc and Davor Derenčinović. The applicant had been 17 years old when he arrived in Malta ir- regularly by boat on 24 Novem- ber 2021 with a group of other persons. They had spent 10 days stranded at sea and a number of the original group had also died during the voyage. The claim In his claim, filed by lawyer, Neil Falzon, from the Aditus Founda- tion, the applicant complained that he had been detained for 225 days in inhuman and degrading conditions with no access to an outdoor area; no access to a com- mon area; no access to any prayer room or private space; limited or no access to a phone to make any calls, including to his lawyers; no access to any leisure activi- ties; inadequate living conditions; limited or no access to drinkable water; no information provided in a language which he understands regarding his detention or his medical situation and a lack of ad- equate medical and psychosocial support. The applicant further accused the government of endangering his health by housing him in in- adequate living conditions and failing to provide adequate med- ical support. Pointing to his age, his medical conditions and men- tal health situation, as well as the conditions in which he was held from 24 November 2021 until his release - which included 120 days of isolation in a shipping contain- er – he submitted that he had been subjected to inhuman and degrading treatment. The fact that he was referred to by immigration number, as well as the lack of evidence that detain- ees were allowed outside or that minors were not detained with adults and general lack of record keeping was an "institutionalised lack of due diligence," argued the plaintiff's lawyer. For the Maltese government, State Advocate Chris Soler disa- greed with the allegation of inhu- man or degrading treatment. In respect of records of time spent outdoors, the government admit- ted that it only kept records of refusals to the regular 1.5 hours of outdoor exercise, but insisted the authorities took great care to tend to the applicant's physical as well as psychological wellbeing. The applicant disputed the government's claim that detain- ees were provided with blankets when necessary, telling the court that they would sleep wearing all their clothes in winter due to the cold and windows that could not be closed. There was no heating system, he said, adding that the quality and amount of the food provided was insufficient, regular- ly necessitating detainees to drink tap water. The applicant submitted that his health had greatly deteriorated while in detention and that ade- quate medical assistance had not been provided to him. Already a victim of torture in Libya before suffering further trauma during his crossing to Europe, the youth had developed suicidal thoughts and signs of mental illness as ear- ly as February 2022. "Despite the medical report of February 2022, a copy of which had been repeated- ly refused to the applicant's repre- sentatives, nothing had been done to ameliorate his situation," noted the judges. The Detention Centre doctor had concluded that the youth had no mental health problems "apart from a reactive low mood" despite only communicating with the patient through Google translate and without ever questioning him on his general mental health state. For the duration of his detention, the applicant was never assisted by an interpreter when meeting with doctors and nurses, causing his understanding of his condi- tions and his ability to share his distress to be severely impaired. ECHR concerns In its decision, the ECHR point- ed out that the confinement of mi- nors raises particular issues, "since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum-seeker status. Moreover, the Court has already held that the extreme vulnerabil- ity of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over consid- erations relating to the child's sta- tus as an illegal immigrant." The court expressed serious concerns as to how the applicant, a presumed minor at the time, suffering from tuberculosis, had been placed in shared lodging with a young offender and later, spent a month in "total isolation" since neither the guards nor the doctors spoke French. Although adequate care had been provided for his physical health, "the same cannot be said of the applicant's mental health," ob- served the court. An assessment conducted in February 2022, had clearly shown that the applicant was suffering from PTSD and de- pression and that he needed med- ical support as well as an improve- ment of his living conditions, said the judges. "There is therefore little doubt that the applicant was particular- ly vulnerable not only because he had mental health problems but also because these had not been seen to, despite the recommen- dations to that effect. Further- more, the Court notes that, one week after the first assessment of 4 February 2022, instead of taking relevant action, the authorities considered that the applicant – a presumed minor, suffering from tuberculosis, PSTD and depres- sion, who was in need of medical support and of an improvement of living conditions – was to move from a regime of "restriction of movement" to detention." It noted that the government did not dispute the applicant's claim that the guards had also refused to switch on an air-conditioner that was available, on hot days when the youth had to spend most of his day inside. The government had not sub- stantiated its claim that all de- tainees were allowed 1.5 hours of daily exercise time. In fact this was contradicted by the findings of the European Committee for the Prevention of Torture and Inhu- man or Degrading Treatment or Punishment (CPT) which report- ed that "The regime of activities afforded to migrants was non-ex- istent." Neither did the applicant have access to an effective remedy to complain about the conditions of his detention, said the court, cit- ing previous human rights cases against Malta which established that constitutional redress pro- ceedings do not constitute an ef- fective remedy for the purposes of complaints of torture and in- human or degrading treatment or punishment. The court ruled that the youth had suffered violation of his right to protection from inhuman or degrading treatment in respect of the conditions of detention of the applicant, who was a vulner- able individual due to his age and health situation, as well as of his Human rights court orders €25,000 compensation over The European Court of Human Rights in Strasbourg

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