CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 juillet 2013

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .sB853CD25 { font-family:Arial; font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .s163D3B2F { font-family:Arial; font-size:9pt; text-decoration:underline; color:#0069d6 } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .sD4B5C457 { font-family:Arial; font-size:6pt; vertical-align:super }     FOURTH SECTION               CASE OF ADEN AHMED v. MALTA   (Application no. 55352/12)             JUDGMENT   STRASBOURG   23 July 2013     FINAL   09/12/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Aden Ahmed v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President,   David Thór Björgvinsson,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Vincent A. De Gaetano,   Paul Mahoney, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 July 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 55352/12) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the   Convention”) by a Somali national, Ms Aslya Aden Ahmed (“the   applicant”), on 27 August 2012. 2.     The applicant was represented by Dr M. Camilleri and Dr   K.   Camilleri, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3.     The applicant alleged that she had suffered a violation of Article 3 in respect of her conditions of detention. She complained further that her detention had not been in accordance with Article 5 § 1 and that she had not had an effective remedy as required by Article 5 § 4 to challenge the lawfulness of that detention. 4.     On 22 October 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1987 and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, Hal Far, Malta. A.     Background to the case 6.     In 2001 the applicant’s parents fled to Eritrea, where she joined them in 2003. In 2004 the applicant married Abdi Mohammed Omar in Eritrea; a son, Ahmed, was born of this union on 24 June 2005. In 2008 the applicant left Eritrea, leaving her son in the care of her parents as it was too dangerous for her to travel with him. She has not seen him since. 7.     After leaving Eritrea, the applicant travelled through Sudan and Libya. She entered Malta irregularly, by boat, on 5 February 2009. 8.     Upon her arrival in Malta she was registered by the immigration authorities, given the identification number 09C-020 and served with a Removal Order under Article 14(1) of the Immigration Act, Chapter 217 of the Laws of Malta (see Relevant Domestic Law, below), as she was deemed to be a “prohibited immigrant” under Article 5 of that Act. She was then immediately placed in detention at Ta’ Kandja Detention Centre pursuant to Article   14(2) of that Act, which stipulates that a person on whom a removal order is served “shall be detained in custody until he is removed from Malta” (see Relevant Domestic Law, below). According to the applicant, the said Removal Order did not contain specific reasons for her detention. The Government contested that statement. According to the applicant, in Ta’ Kandja she was placed in a dormitory with forty other people, including single women and children, with only occasional access to the adjoining yard for air. 9.     On 18 February 2009 the applicant filled in a Preliminary Questionnaire, thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below). However, the applicant was not sure about the content and purpose of the form since it was in English. At the time forms were simply distributed to asylum seekers by the Detention Service staff without any accompanying information. The Government explained that migrants used to interpret to each other in cases where some of them did not understand how to fill in the questionnaire and that several NGOs also assisted in filling it in. As the applicant could not read or speak any English, she relied heavily on fellow detainees to complete the form, both for practical assistance and for information as to what she should say. On the advice of fellow detainees, who were her only source of information about the asylum procedures in the circumstances, the applicant did not divulge the fact that she and the rest of her family were refugees in Eritrea, for fear that her application would be rejected and she would be sent back there. 10.     According to the Government, the applicant was taken to receive primary health care on 15 March 2009 and medical appointments were fixed for her on 19 May and 20 June 2009. 11.     On 27 March 2009 the applicant was called by the Office of the Refugee Commissioner to complete a formal application for recognition of refugee status in Malta and to attend an interview to present the grounds on which she was requesting protection. In her application and subsequent interview, the applicant repeated what she had said earlier, namely that her family was poor, there was no government in Somalia and that she had left because she could not find a job there. She did not attempt to remedy the situation by correcting the inaccurate information she had submitted earlier in the procedure. 12.     On 9 May 2009 the Office of the Refugee Commissioner rejected her application for refugee status on the grounds that it failed to meet the relevant criteria. 13.     The applicant did not appeal against that decision. Instead, a few days later, in May 2009 she escaped from detention. Sometime after her escape, she travelled to the Netherlands in an irregular manner. Upon her arrival in the Netherlands she immediately approached the authorities to ask for asylum. From there she was hoping to be able to go to Sweden in order to be reunited with her family (her father, siblings and minor son) who had been granted refugee status in Eritrea and were awaiting resettlement in Sweden. The family were eventually resettled there on 17 March 2011. 14.     On 11 February 2011 the applicant was returned to Malta under the Dublin II Regulation and detained at Safi Barracks, despite repeated attempts by her lawyer to prevent her return to Malta. At the time of her return to Malta, the applicant was two months pregnant. B.     Criminal proceedings and consequent detention 15.     On 17 February 2011 the applicant was arraigned before the Court of Magistrates and charged with i) escaping from a place of public custody, namely Ta’ Kandja Detention Centre, on 17 May 2009; ii) as a person embarking or disembarking from Malta, making, or causing to be made, a false return, statement or representation and/or furnishing the Principal Immigration Officer with false information during the months prior to 17   May 2009; iii) in the same circumstances, in the Maltese Islands, knowingly making use of forged documents. 16.     The applicant pleaded guilty to all of the charges. On the same day she was therefore found guilty as charged and sentenced to a period of six months’ imprisonment. As she was pregnant at the time, when giving judgment, the Court of Magistrates drew the attention of the Director of the Corradino Correctional Facility to this fact so that she would be given all the necessary medical attention that she might require in relation to her pregnancy whilst she was detained in prison. 17.     Two days after the court judgment, on 19 February 2011, the applicant was admitted to hospital as she was very unwell. On an unspecified date she was discharged and returned to the prison, which, she alleged, had small cells and where she was subjected to constant passive smoking. She contended that she had suffered from a lack of medical attention while there. Shortly afterwards she was admitted to the Asylum Seekers’ Unit of Mount Carmel Hospital (also known as Ward M8B, the ward in the psychiatric hospital where male and female immigration detainees and female prison inmates are kept) for in-patient treatment. She miscarried in March 2011 while in Mount Carmel Hospital and subsequently contracted an infection for which she needed to be hospitalised for a period. She stated that the rooms in the ward were small with no space for exercise and that there were no proper blankets. She further alleged that the staff had failed to assist her when she had started bleeding, which had finally led to her miscarrying, and that her post-operation requests for drinking water were denied as were her requests for proper washing facilities. C.     The detention and procedures related to immigration 18.     On 17 June 2011 the applicant was released from prison, having served her sentence. She was placed in Hermes Block in Lyster Barracks Detention Centre (Zone C) with a view to her removal from Malta. During her time in detention she was never approached by the immigration authorities regarding her removal and had no way of knowing whether any proceedings were under way with a view to her removal. In practice, it is common knowledge that no deportations to Somalia or Somaliland have ever been effected. This is no doubt due in part to the UNHCR recommendation on return to Somalia (which relates primarily to South ‑ Central Somalia) as well as to the very real logistical difficulties inherent in such returns. 19.     While in detention the applicant remained severely depressed. Her psychological distress was due to a number of factors, not least her prolonged detention, her miscarriage and the very limited prospects of being reunited with her son in Sweden. She described the conditions of detention as problematic, noting that although she had been placed with single women, they had been guarded by male officers (barring one female officer who had repeatedly abused Somali detainees until she was apparently transferred, following a complaint by the applicant); there were twenty-two persons in a room, which made it difficult to sleep; they were only allowed outside exercise for one or one and a half hours a day, and from April to July 2012 they were not allowed outside at all; they were fed chicken, pasta or rice on a daily basis and were not given any telephone cards. 20.     The applicant approached the Jesuit Refugee Service (“the JRS”) for assistance in obtaining a review of the decision rejecting her application for international protection. On 23 September 2011 JRS staff wrote to the Refugee Commissioner requesting a copy of the relevant documents from her case file, such as the application form, interview notes and decision which she had lost when she escaped from detention. 21.     On 10 October 2011 social workers with JRS Malta, who were monitoring the applicant in detention and offering psycho-social support, referred the applicant to the Agency for the Welfare of Asylum Seekers (“AWAS”) with a view to obtaining her release from detention in accordance with government policy on grounds of her vulnerability due to her mental health, given her deteriorating psychological condition as supported by medical evidence (also submitted to the Court) (see below for details about this procedure). 22.     On 16 November 2011 the documents requested by the applicant in September had still not been provided. Thus, she wrote to the Refugee Commissioner again, through the JRS, explaining some of the developments in her case since her interview and requesting copies of the documents relating to her first asylum application. She further requested a reconsideration of her application for asylum. 23.     On 30 November 2011 the Refugee Commissioner informed the applicant of his unfavourable decision. Noting the difference between the facts as alleged by the JRS and those as presented by the applicant, he considered that on the basis of the information submitted by the applicant, as provided in her initial application and interview, she did not face a real risk of harm and did not satisfy any of the requisite criteria for the granting of temporary humanitarian protection. 24.     The applicant was not given a copy of the documents she requested or allowed to make further submissions before that decision was taken. She was finally provided with a copy of the decision and the interview notes in her case at the end of February 2012. 25.     On 14 February 2012, while still awaiting the outcome of AWAS’s assessment (see below), the applicant lodged an application with the Immigration Appeals Board (“IAB”) for release from detention under Article 25A(9) of the Immigration Act (see Relevant Domestic Law, below). In her application she claimed that her continued detention was no longer reasonable and requested the Board to order her release from custody in view of the fact that there was no reasonable prospect that the immigration authorities would be able to enforce her removal to Somalia within a reasonable time. In her application she also noted that, in practice, no one was ever deported from Malta to Somalia. She also submitted a social worker’s report attesting to the fact that her psychological health was suffering as a result of her prolonged detention and noting that she had also miscarried while in prison. 26.     On 29 February 2012 the Principal Immigration Officer (who in effect was the Commissioner of Police) filed a response. He agreed with the facts as presented by the applicant. He further stated that, as the applicant had escaped from detention she now had to remain in detention, although it was not necessarily obligatory that she be held for eighteen months. Indeed she could potentially be released from detention earlier. Regarding the applicant’s psychological problems caused by her separation from her child, he noted that the applicant could avail herself of the provisions of the Dublin Regulation to request to be reunited with her son in Holland [ sic ]. Regarding the applicant’s request for release from custody, he noted that, in the first place, the applicant should never have escaped from detention in order to solve her personal problems. The time she had spent as a fugitive was time she had spent residing illegally in Malta and Holland, thus, her detention was a situation that she had brought upon herself and in consequence she should now be held in detention by law. Moreover, he considered that by escaping from detention without being medically cleared, as required by law, she had created a public health risk. Lastly, since she was receiving continued psychological care in detention he considered that her release from detention was not currently advisable. 27.     The application was never set down for hearing by the IAB and no decision on the applicant’s request was ever delivered. D.     The AWAS procedure 28.     In the meantime, following a referral by the JRS, in December 2011 the applicant was interviewed by the Vulnerable Adults Assessment Team of AWAS with a view to determining whether she should be released from detention on grounds of vulnerability according to government policy. The person conducting the interview spoke in English. No interpreter was provided and although the applicant who had learnt some English managed to understand what was happening, she could not communicate fully or explain the full extent of her problems. The applicant was never formally informed of the outcome of this interview or of the decision taken regarding her request. However, some months later, she happened to see the woman who had conducted the interview at the Detention Centre, and, on enquiring, was verbally informed that her request had not been acceded to. 29.     The applicant explained that the vulnerability assessment procedure operated by AWAS had been developed by that organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable immigrants should not be detained. Although AWAS was not formally charged with responsibility for this procedure by law, in practice it had full responsibility for it. It was not regulated by law, however, or by publicly available rules or procedures. The determining authority did not give written reasons for its decisions and there was no possibility of appeal, although in practice it might be possible to request a review if more evidence was forthcoming or there was a deterioration in the individual’s condition. E.     Release 30.     The applicant was released on 30 August 2012 in line with government policy, as she had spent a total of eighteen months in “immigration detention” since her arrival in Malta. II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     The Immigration Act 31.     Immigration and asylum procedures are mainly regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta. Article 5 of the Act defines the term “prohibited immigrant” and, in so far as relevant, reads as follows: “(1)     Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant. (2)     Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also - ( a )     if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; or ...” 32.     Article 10 of the Act, regarding temporary detention, in so far as relevant reads as follows: “(1) Where leave to land is refused to any person arriving in Malta on an aircraft ... (2)     Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in some place approved by the Minister and notified by notice in the Gazette: Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is the earlier. (3)     Any person, while he is detained under sub-article (1) or (2), shall be deemed to be in legal custody and not to have landed.” In practice, upon being apprehended a prohibited immigrant is issued with a Removal Order, in accordance with Article 14 of the Act, which, in so far as relevant, reads as follows: “(1)     If any person is considered by the Principal Immigration Officer to be liable to removal as a prohibited immigrant under any of the provisions of article 5, the said Officer may issue a removal order against such person who shall have a right to appeal against such order in accordance with the provisions of article 25A: ... (2)     Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta: Provided that if the person in respect of whom an expulsion order has been made is subject to criminal proceedings for a crime punishable with imprisonment or is serving a sentence of imprisonment, the Minister may give such directions as to whether the whole or part of the sentence is to be served before the expulsion of such person from Malta, and, in default of such directions, such person shall be removed after completion of the sentence.” 33.     An “irregular” immigrant is entitled to apply for recognition of refugee status by means of an application (in the form of a Preliminary Questionnaire) to the Commissioner for Refugees within two months of arrival. While the application is being processed, in accordance with Maltese policy, the asylum seeker will remain in detention for a period up to eighteen months, which may be extended if, upon rejection of the application, he or she refuses to cooperate in respect of his or her repatriation. 34.     Article 25A of the Act provides that an application may be made to the Immigration Appeals Board if an asylum seeker considers that his or her detention is no longer reasonable. This entails requesting release from custody pending determination of an individual’s asylum claim or his or her deportation. The same Article regulates the manner in which, and when, such release may be granted. The relevant provisions read as follows: “(5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7 [residence permits], article 14 [removal orders] or article 15 [responsibility of carriers] may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals. (6)     During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request. (7) Any appeal has to be filed in the Registry of the Board within three working days from the decision subject to appeal: ... (8)     The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction) ... (9)     The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation or removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation in accordance with the following subarticles of this article. (10)     The Board shall only grant release from custody under subarticle (9) where in its opinion the continued detention of such person is taking into account all the circumstances of the case, unreasonable as regards duration or because there is no reasonable prospect of deportation within a reasonable time: Provided that where a person, whose application for protection under the Refugees Act has been refused by a final decision, does not co-operate with the Principal Immigration Officer with respect to his repatriation to his country of origin or to any other country which has accepted to receive him, the Board may refuse to order that person’s release. (11)     The Board shall not grant such release in the following cases: (a)     when the identity of the applicant including his nationality has yet to be verified, in particular where the applicant has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities; (b)     when elements on which any claim by applicant under the Refugees Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention; (c)     where the release of the applicant could pose a threat to public security or public order. (12) A person who has been released under the provisions of subarticles (9) to (11) may, where the Principal Immigration Officer is satisfied that there exists a reasonable prospect of deportation or that such person is not co-operating with the Principal Immigration Officer with respect to his repatriation to his country of origin or to another country which has accepted to receive him, and no proceedings under the Refugees Act are pending, be again taken into custody pending his removal from Malta. (13) It shall be a condition of any release under subarticles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine.” B.     The Refugees Act 35.     Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta, reads as follows: “(1)     A person may apply to the Commissioner, in the prescribed form, and shall be granted refugee protection, where it is established that he faces a well-founded fear of persecution in his country of origin or habitual residence in terms of the Convention. (2)     A well-founded fear of persecution may be based on events which have taken place after applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin. (3)     If the Commissioner recommends the acceptance of the application, the Minister shall make a declaration that applicant is eligible for refugee status, or appeal against such recommendation.” C.     Government Policy 36.     According to the Irregular Immigrants, Refugees and Integration policy document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:   “Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”. D.     Relevant Subsidiary Legislation 37.     Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 (Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals) reads, in so far as relevant, as follows: Regulation 11 “(1)     The provisions of Part IV shall not apply to third country nationals who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who have not subsequently obtained an authorisation or a right to stay in Malta. (2)     A return decision, an entry-ban decision and a removal order shall be issued in writing and shall contain reasons in fact and in law and information on legal remedies: Provided that the reasons in fact may be given in a restrictive way where the withholding of information is regulated by law, in particular where the disclosure of information endangers national security, public policy, and the prevention, detection, investigation and prosecution of criminal offences. (3)     A return decision shall be issued in a standard form and general information as regards such form shall be given in at least five languages which third-country nationals may reasonably be supposed to understand. (4)     The Board shall review decisions related to return on application by the third-country national as referred to in subregulation (2), and may temporarily suspend their enforcement. (5)     For the purposes of sub-regulation (4) a legal adviser shall be allowed to assist the third-country national and, where entitled to, free legal aid shall be provided to the third-country national. (6)     The Principal Immigration Officer shall provide, upon request, a written or oral translation of the main elements of a return decision and information on the legal remedies in a language the third-country national may reasonably be supposed to understand. ... (8)     Where a third-country national is the subject of return procedures, unless other sufficient and less coercive measures are applicable, the Principal Immigration Officer may only keep him in detention in order to carry out the return and removal procedure, in particular where: ( a )     there is a risk of absconding; or ( b )     the third-country national avoids or hinders the return or removal procedure: Provided that the detention shall be for a short period and shall subsist as long as the removal procedure is in progress and is executed with due diligence. (9)     Detention shall be a consequence of the removal order issued by the Principal Immigration Officer and it shall contain reasons in fact and in law. (10)     The third-country national subject to the provisions of sub-regulation (8) shall be entitled to institute proceedings before the Board to contest the lawfulness of detention and such proceedings shall be subject to a speedy judicial review. (11)     Where the third-country national is entitled to institute proceedings as provided in sub-regulation (10) he shall immediately be informed about such proceedings. (12)   The third country-national shall be immediately released from detention where in the opinion of the Board such detention is not lawful.” Sub-regulation (8) referred to in this article reads as follows: “Where a third-country national is the subject of return procedures, unless other sufficient and less coercive measures are applicable, the Principal Immigration Officer may only keep him in detention in order to carry out the return and removal procedure, in particular where: (a) there is a risk of absconding; or (b) the third-country national avoids or hinders the return or removal procedure: Provided that the detention shall be for a short period and shall subsist as long as the removal procedure is in progress and is executed with due diligence.” 38.     Subsidiary legislation 12.09, namely the Court Practice and Procedure and Good Order Rules, makes specific reference to constitutional cases. Rule 6 thereof reads as follows: “Once a case has been set down for hearing the court shall ensure that, consistently with the due and proper administration of justice, the hearing and disposal of the case shall be expeditious, and the hearing of the cause shall as far as possible continue to be heard on consecutive days, and, where this is not possible, on dates close to one another. E.     The Civil Code 39.     The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, regarding actions in tort, read as follows: Article 1031 “Every person, however, shall be liable for the damage which occurs through his fault.” Article 1032 “(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus pater familias .   (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.” Article 1033   “Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.” Article 1045   “(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused. (2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.” F.     Relevant International Material 40.     The 9th General report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the “CPT”) on the CPT’s activities covering the period 1   January to 31 December 1998, at point 26, reads as follows: “Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention. Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.” 41.     Rule 53 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, reads as follows:   (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution. (2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer. (3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women. 42.     The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012, pointed out, inter alia , that :   “The ICJ delegation found a lack of leisure facilities in all three detention facilities visited. ... In the Lyster Barracks there was also a small recreation yard, but without direct access from the detention section. Detainees had two hours per day of “air” in the courtyard. They reportedly seldom received visits from outside, apart from the occasional NGO.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43.     The applicant complained under Article 3 about the conditions in which she had been held throughout almost the entire duration of her time in government custody, that is, the period from 5 February to 17 May 2009, when she was held at Ta’ Kandja Detention Centre; the period from 17   February to 17 June 2011, particularly when she was held in the Female Forensic Ward, which like the Asylum Seekers’ Unit, forms part of a ward known as M8B at Mount Carmel Hospital; and the period from 17   June   2011 to 30 August 2012, when she was held at Lyster Barracks, Hal Far. She claimed that the conditions of her detention had been in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 44.     The Government contested that argument. A.     Admissibility 1.     The Government’s objection of non-exhaustion of domestic remedies (a)     The parties’ submissions i.     The Government 45.     The Government submitted that the applicant had not instituted any proceedings before the domestic courts relating to her Article 3 complaint, and consequently had not exhausted domestic remedies. They noted that the applicant could have instituted a civil action for damages (in tort), which could have made good any damage or loss sustained as a result of her detention conditions if she had been able to show, on the balance of probabilities, that she had suffered damage attributable to the Government’s acts or omissions (Articles 1031 and 1033 of the Civil Code, see paragraph 39 above). The Government cited the Court’s findings in the case of Sammut and Visa Investments Ltd v. Malta ((dec.), no. 27023/03, 28   June   2005) and other domestic case-law in relation to the fact that the State could be found responsible for damages in tort. They considered such a remedy to be both adequate and accessible. Nevertheless, in their subsequent observations the Government claimed that they had referred to this remedy in relation to compensation for her Article 3 complaint following release from detention and not as a remedy for a change of conditions of detention. They noted that although the law did not provide for non-pecuniary damage, known as “moral damage” in the domestic context, such an action could have resulted in an award for loss of opportunities, which in the Government’s view was a veiled type of “moral damage”, that is, non-pecuniary damage as understood in the Convention case-law. Moreover, they considered that civil law did not prohibit such damages and gave two examples of cases ( Dr. J Pace noe vs Dr Fenech Adam i, Civil Court (First Hall), 1 June 2012 and Mario Gerada vs The Prime Minister , Civil Court (First Hall), 14 November 2012) where the applicants had been awarded “moral damage” in cases of breach of contract and unfair dismissal respectively. 46.     Furthermore, the Government submitted that the applicant had failed to institute constitutional redress proceedings, which gave the relevant courts wide-ranging powers to grant redress. The applicant could have requested the proceedings to be heard with urgency (such requests were upheld where urgency was merited) in order to have the time span drastically reduced. The Government cited the following cases as examples of where requests for hearing with urgency had been accepted: (i) in the context of enforcement of a return order of a child following wrongful removal, where the case was decided by two levels of jurisdiction over approximately a month and a half (from 6 July to 24 August 2012); (ii) a second case in the same context, brought on 2 August and decided on 14   August 2012 (where no appeal was lodged). They further noted that it was not correct to say that the aforementioned constitutional proceedings were shorter because they only dealt with points of law. It was also wrong to consider that constitutional proceedings did not assess the facts as this was often the case, given that the complaints differed from those debated before the ordinary courts. In their subsequent observations, the Government submitted further examples, namely, Stacy Chircop vs Attorney General (4/2013) concerning a breach of fair trial rights in criminal proceedings (which were still pending), which was lodged on 22 January 2013 and decided at first instance on 8 February 2013 and Jonathan Attard vs the Commisioner of Police and the Attorney General in representation of the Government (13/2013) concerning complaints under Articles 5 and 6 of the Convention, which was lodged on 14 February 2013, decided at first instance on 1 April 2013 and was pending on appeal before the Constitutional Court in May 2013. 47.     The Government further noted that the applicant’s statistical data (see paragraph 51 below) did not reflect the subject matter and the complexity of the cases and did not refer to cases where hearing with urgency was requested and granted. Similarly, in relation to the applicant’s reference to the Tefarra Besabe case, the applicant had not substantiated that a request for hearing with urgency had been lodged in that case. Indeed, the applicant had merely requested that the case be set down with urgency (as in fact was done, since it was set down for hearing two days after it was lodged) but had not requested it to be heard with urgency. As to the reference to Essa Maneh , they noted that in the meantime the case had been decided on 29 April 2013 after various witnesses were heard and various