Asylum-seekers in detention : the implications of the right to a speedy remedy to challenge the lawfulness of detention in light of recent ECTHR judgements against Malta

Abstract

Detention on grounds of immigration is found in Article 5(1)(f) of the European Convention on Human Rights which can be based on unauthorised entry or in view of deportation. Malta’s practice of detention of asylum-seekers who arrive in an irregular manner has received a significant amount of criticism from the European Court of Human Rights throughout the past few years. Thus, in order to have a clearer understanding of the context within which violations are said to occur, the cases of Louled Massoud, Suso Musa and Aden Ahmed are examined in light of the Maltese practice of detention and its equivalent in EU law. One should not merely state that detention is based on one of the said grounds, since a State must still have in place an effective remedy through which an individual could challenge the lawfulness of the same detention while being so detained and which would be capable of ordering release. In the three cases against Malta, the ECtHR found that the right to a speedy remedy under Article 5(4) of the ECHR had been violated. In order to comprehend why the ECtHR found such violations, the implications of Article 5(4) can be inferred through a reference to both the case-law and theory of the ECtHR. The domestic remedies found in Article 409A of the Criminal Code, Article 25A of the Immigration Act and the Constitutional remedy are examined in light of a number of elements inferred from the case-law of the ECtHR, but in terms of speediness, effectiveness and capability of examining lawfulness, in particular. In highlighting the most problematic elements, one will have a clearer understanding of what needs to be addressed and improved.