Source : http://hudoc.echr.coe.int
« CASE OF ABDULLAHI ELMI AND AWEYS ABUBAKAR v. MALTA
(Applications nos. 25794/13 and 28151/13)
Judgment - Strasbourg - 22 novembre 2016
The case concerned two asylum seekers’ detention for eight months pending the outcome of their asylum procedure and in particular a procedure to assess whether they were minors or not.
The applicants, Burhaan Abdullahi Elmi and Cabdulaahi Aweys Abubakar, are Somali nationals who were born in 1996 and 1995 respectively. At the time of the introduction of their application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta.
Both applicants arrived in August 2012 in Malta by boat as irregular migrants. They were immediately registered by the immigration police. They were then given two documents in English (a Return Decision and a Removal Order) informing them that their stay was being terminated and that they would remain in custody until they had been removed.
Shortly after their arrival, they both applied for asylum, stating on their forms that they were 16 and 17 years old, respectively. They were referred to the Agency for the Welfare of Asylum Seekers (AWAS), a government-run agency, for an age assessment, which consists of one or two interviews and an X-ray of the wrist bones.
Mr Burhaan Abdullahi Elmi was interviewed and taken for the bone test a few weeks after his arrival. He claims that he was told informally in or around October 2012 that he was found to be a minor and would be released. He was, however, only released six months later under a care order and placed in an open centre for unaccompanied minors. He subsequently absconded and went to Germany where he is waiting for the outcome of judicial proceedings as to whether he would be sent back to Malta to have his asylum claim determined there.
Mr Cabdulaahi Aweys Abubakar was interviewed some weeks after his arrival and taken for the bone test some five months later. He also claims that he was told informally – in March 2013 – that he was found to be a minor and would be released. He was, however, only released two and a half months later under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection in September 2013.
Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), both applicants complained about the conditions of their immigration detention for eight months, which had involved overcrowding, lack of light and ventilation, no organised activities and a tense, violent atmosphere. They argued that these conditions had been all the more difficult in view of their vulnerable status as asylum-seekers and minors ; indeed, there had been no support mechanism for them and this, combined with the lack of information as to what was going to happen to them or how long they would be detained, had exacerbated their fears. Also relying on Article 5 § 1 (right to
liberty and security), they alleged that their detention had been the result of a blanket policy applied to all irregular migrants without distinction or review and had therefore been arbitrary and unlawful ; they also complained in particular that they had been detained despite the fact that they had claimed to be minors. They further alleged under Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) that they had not had a remedy to challenge the lawfulness of their detention.
Violation of Article 3 (degrading treatment)
Violation of Article 5 § 1
Violation of Article 5 § 4
Just satisfaction : EUR 12,000 each to Abdullahi Elmi and Aweys Abubaka for non-pecuniary damage, and EUR 4,000 to both applicants jointly for costs and expenses »
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