CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2015

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MALTA   (Application no. 10290/13)             JUDGMENT           STRASBOURG   26 November 2015     FINAL   02/05/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mahamed Jama v. Malta, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Vincent A. De Gaetano,   André Potocki,   Helena Jäderblom,   Síofra O’Leary, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 20   October   2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10290/13) 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 Farhiyo Mahamed Jama (“the applicant”), on 4 February 2013. 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 her continued detention for more than eight months was arbitrary and unlawful, and that she had not had a remedy to challenge the lawfulness of that detention. She further complained about the conditions of detention. She relied on Articles 3 and 5 §§ 1, 2, and 4. 4.     On 5 August 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was (to her knowledge) born in 1996 and at the time of the introduction of the application was detained in Lyster Barracks, Ħal Far. A.     Background to the case 6.     The applicant entered Malta in an irregular manner by boat on 27   May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12H-006), and presented with two documents in English, one containing a Return Decision and the other a Removal Order. 7.     The Return Decision stated that she was a prohibited immigrant by virtue of Article   5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8.     According to the applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other. 9.     The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language she did not understand. According to the Government the applicant did not request a booklet in another language. 10.     In accordance with Article 14(2) of the Immigration Act (see Relevant domestic law), the applicant was detained in Lyster Barracks. B.     Initial proceedings 11.     During the registration process upon her arrival, in the absence of an interpreter, the applicant’s age was recorded as twenty-six (born 1986). She claims to have told the authorities that she was sixteen years old. According to the Government, it emerged from the authorities’ records (not submitted to the Court) that the applicant declared that she was born in 1986. 12.     On 30 May 2012 the applicant appealed against the Removal Order and Return Decision. By the date of the introduction of the application (4   February 2013), no date had been set for her appeal hearing by the IAB. C.     Asylum proceedings 13.     A few days following her arrival the applicant was called for an information session provided by the staff of the Office of the Refugee Commissioner. She was assisted in submitting the Preliminary Questionnaire (PQ), 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). She stated on the form that she was sixteen years old. D.     The AWAS Age-Assessment Procedure 14.     On an unspecified date some two months after her arrival in Malta, the applicant was called for an interview with a member of Agency for the Welfare of Asylum Seekers (AWAS) staff, who informed her that as she had claimed to be sixteen years old she would be interviewed by three members of AWAS staff with a view to assessing the veracity of her claim that she was a minor. 15.     About a week later, three people from AWAS interviewed her. During the interview a male detainee provided interpretation services. After the interview they informed her that as they could not confirm her minor age through the interview they would send her for a further age verification (FAV) test - an X-ray of the bones of the wrist. The applicant was taken for the FAV test about two months after her interview, on 5 October 2012. 16.     At the beginning of November, as the applicant had not received any decision from the AAT, she asked a woman from AWAS (who was visiting the detention centre to conduct interviews with other detainees who had health problems) whether she knew anything about her case. The woman told her that her X-ray was being assessed and if she was found to be a minor she would be released soon. Some three weeks later, on 22   November 2012, some other people from AWAS went to the centre and told her that according to the test she was not a minor but an adult. During the latter meeting a fellow (female) detainee provided translation. 17.     By the date of the lodging of the application the applicant had not received a written decision informing her of the outcome of the age assessment procedure. According to the Government a decision on the applicant’s age was taken on 14 January 2013; no date was submitted regarding notification. The Government submitted that since no care order was issued the applicant was obviously not a minor. E.     Conditions of detention 18.     The applicant was detained in Hermes Block in Lyster Barracks (see paragraph   10 above), in conditions which she considered prison-like and basic. The Government contested this allegation. 19.     She explained that the Block is divided into five self-contained zones (one on the ground floor, two on the first floor and two on the second floor) and four of the zones (B,C,D,E) were virtually identical. For the first few days of her detention she had been held in Zone E which at the time accommodated families (i.e. couples with or without children), and then she was moved to Zones C and D with other single women. 20.     These zones contained a number of dormitories (containing bunk beds but no lockers or cupboards for personal belongings), ten showers and toilets, a small kitchen with one or two hot plates and a fridge (no further storage for food, which was stored in open boxes accessible to insects, was available), and a common room with six basic metal tables and benches screwed to the ground, together with a television. Blankets hanging from bunk beds were the only means of privacy. 21.     Access to the zones was through metal gates which were kept locked all day, and detainees could leave the zone for one and a half hours per day, which they could spend in a small dusty yard. Windows were barred and most of them glazed with opaque Perspex (which was removed in the summer months for air, though they then let air through in the cold winter months). On the one hand, in summer the facility was often crowded and the heat would become oppressive despite the presence of ceiling fans. On the other hand, in winter it was unbearably cold as the facility was not heated and, moreover, was exposed to the elements as there were no adjoining buildings. 22.     The applicant considered that the facility was shared by too many people – in summer the applicant’s dormitory (one out of three in the zone) was shared by twenty women – and agreement amongst so many different persons having cultural and linguistic differences was difficult. However, at the time of the introduction of the application, the applicant was in less crowded conditions, sharing an entire zone with only twenty-five other women, most of whom were Eritrean and Somali. 23.     The applicant noted that since her arrival she had only been provided with two bed sheets, a small towel, a blanket, a T-shirt, one pillow and a pillow case, a few items of underwear and a pair of flip-flops, as well as a plastic plate, cup, and set of cutlery. Other items of clothing were distributed sporadically. She stated that she was never provided with a quilt, a bra or running shoes. While toilet paper was distributed on a monthly basis, certain basic items such as sanitary pads were missing. In winter detainees were not systematically provided with warm clothes and closed shoes, which were distributed according to what was received by way of donation and which was not sufficient to supply the needs of all detainees. Although blankets were distributed to everyone, the building was not heated and winter months were unbearably cold. 24.     Detainees had little to do all day, and only limited access to open air. In particular, the applicant noted that she was let out into the small dirty yard for the first time only after a few months of detention. While in the yard, other male detainees called out names and picked on the women from the windows of their rooms overlooking the yard. The applicant referred to 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 (see paragraph 45 below). 25.     She also noted that although telephone cards were distributed (each of 5 Euro (EUR)), the credit they contained was often insufficient to make long distance calls and no cheaper ways of keeping contact with the family or outside world were available as they had no internet access. By the time she lodged her application she had received EUR 25 in credit. The applicant also considered inappropriate that detainees were given the same soap to use for their bodies, hair, clothes and floor. The applicant further made reference to an incident with a detention officer who had pushed her down the stairs and tried to forcefully resuscitate her by slapping her and grabbing different parts of her face leaving her in pain – she, however, admitted that she could not recognise the officer in question and that she had feared reprisal had she reported the matter. 26.     Furthermore, as could be seen from the results of the Jesuit Refugee Service (JRS) Europe study on detention of vulnerable asylum seekers, the physical conditions of detention and their impact on the physical and mental well-being of detainees were exacerbated by other factors [1] . These factors included: length of detention, lack of constructive activities to occupy detainees, overcrowding, limited access to open air, difficulties in communication with staff and with other detainees, and lack of information about one’s situation. Moreover, there was a lack of any real possibility of obtaining effective redress and inmates knew that detention was not serving any useful purpose and was in no way proportionate to the aim to be achieved. 27.     The applicant submitted that all of those objective factors had had a particular impact on her because of her personal circumstances, particularly her young age, her inability to communicate in anything but Somali and the fact that as a young woman she was detained in a facility administered almost exclusively by men. F.     Latest developments 28.     On 24 January 2013 the applicant was called for an interview with the Refugee Commissioner. By means of a decision of the Refugee Commissioner of 2 February 2013, the applicant was granted subsidiary protection in Malta. She was notified of this decision and released on 7   February 2013. II.     RELEVANT DOMESTIC LAW A.     The Immigration Act and the Refugees Act 29.     The relevant articles of the above mentioned Acts can be found in Aden Ahmed v. Malta (no. 55352/12, §§ 31-35, 23 July 2013). B.     Government Policy 30.     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.” 31.     The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that: “Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘child friendly’ manner. Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that: (a) Care Orders are only issued in respect of true minors; (b) provisions for minors are not abused, and (c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival.” C.     The Age Assessment Procedure 32.     In order to give effect to this policy, a procedure known as the Age Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ (the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure. 33.     In practice, from the information available, it appears that the Age Assessment Procedure consisted of a number of different phases. Individuals were referred to the AWAS by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age Assessment Team (AAT). 34.     Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment. 35.     If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual’s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his office can proceed with the refugee status determination procedure. 36.     In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows: “(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers. (2) In the performance of its functions, the Agency shall: (a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements; (b) provide particular services to categories of persons identified as vulnerable according to current policies; (c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes; (d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible; (e) promote the Government’s policy and schemes regarding resettlement and assisted voluntary returns; (f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies; (g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users; (h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research; (i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and (j) implement such other duties as may be assigned to it by the Minister or his representative.” 37.     Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 -Legal Notice 243 of 2008, as applicable at the time of the present case (prior to amendments in 2014) laid down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview. Its paragraph (2) dealt with the use of medical procedures to determine age within the context of an application for asylum. In so far as relevant it read as follows: “(1) In relation to an unaccompanied minor falling within the provisions of article   13(3) of the Act, as soon as possible, and not later than thirty days from the issue of the care order under that article: (a) it shall be ensured that the appointed representative of the unaccompanied minor is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative shall be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview; (b) where an unaccompanied minor has a personal interview on his application for asylum, that interview is to be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors. (2) Medical examinations to determine the age of unaccompanied minors within the framework of any possible application for asylum may be carried out. Provided that: (a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of his claim that he is a minor; (b) unaccompanied minors and their representatives consent to carry out the determination of the age of the minors concerned; (c) the decision to reject an application from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal: Provided that an unaccompanied minor who has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum and that the best interests of the minor shall be a primary consideration in any such decision.” 38.     Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that: “an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers.” D.     Other Relevant Subsidiary Legislation 39.     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, aka the Return Directive) in so far as relevant, is set out in Aden Ahmed v. Malta (cited above, §§ 31-35). III.     RELEVANT MATERIALS 40.     The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Lyster Barracks, reads as follows: “44. At the time of the visit, Lyster Detention Centre was accommodating 248   foreign nationals (including 89 women), in five different detention units. In keeping with the Government’s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees. 47. More generally, the CPT has serious misgivings about the fact that female detainees at Lyster Detention Centre were frequently supervised exclusively by male detention officers, since only one female officer was employed by the Detention Service at the time of the visit. The CPT recommends that the Maltese authorities take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre. 48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly. 55. At both Lyster [ and Safi Detention Centres ], material conditions have improved since the 2008 visit. In particular, at Lyster Barracks, these improvements are significant: the Hermes Block, which had been in a very poor state of repair at the time of the 2008 visit,   had been completely refurbished and the Tent Compound, which had also been criticised by the Committee in the report on the 2008 visit, had been dismantled. At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear. ... 56. At Lyster Detention Centre, the situation had clearly improved as regards activities . Each zone comprised a communal room, and groups of detainees could attend English-language courses which were organised by an NGO (usually, three times a week for two hours per group). Further, single women and couples were provided with food so that they could prepare meals themselves in a kitchenette. Every day, detainees could go outside and play football or volleyball in a rather small yard for a total of two hours. ... 60. As regards contact with the outside world , the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months.” 41.     In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows: “Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.” “The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.” 42.     A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures, reads as follows: “The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.” “Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision.” “Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis ‑ assessed.” 43.     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.” 44.     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.” 45.     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 46.     The applicant complained about the conditions of her detention. She considered that the situation was 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.” 47.     The Government contested that argument. A.     Admissibility 1.     The Government’s objection as to non-exhaustion of domestic remedies (a)     The parties’ submissions (i)     The Government 48.     The Government submitted that the applicant had not brought her complaint before the domestic authorities. They considered that the applicant had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of her detention while she was in detention and an action for damage in tort after she left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. 49.     As to the constitutional jurisdictions, the Government submitted that they had wide ranging powers to deal with Convention violations. Such proceedings could also be heard with urgency, reducing the time span of such proceedings to two months from filing. The Government noted that the Court had previously criticised the duration of such proceedings. Nevertheless, a fresh assessment according to prevailing circumstances had to be done in each case. In the Government’s view any delays in constitutional proceedings were counterbalanced by the fact that those jurisdictions could issue interim orders pending proceedings. They cited for example a decree in the case of Emanuel Camilleri vs Inspector Louise Callejja and the Commissioner of Police (no. 50/2013) where the Civil Court (First Hall) in its constitutional jurisdiction released a sentenced person from prison pending the proceedings given the particular circumstances of that case, namely where the main witness, who had testified in the applicant’s trial which had ultimately returned a guilty verdict, was now being tried for perjury in connection with her testimony. Thus, in the Government’s view, in the absence of speedy proceedings there nevertheless existed a speedy interim remedy which could be decreed by the constitutional jurisdictions under Article 46 (2) of the Constitution and Article 4 (2) of the European Convention Act. Despite the exceptional circumstances of the case, the example went to show that releasing persons from prison by means of an interim measure was indeed a possibility which could be used by the constitutional jurisdictions, and the applicant had not proved the contrary. 50.     The Government noted that the applicant could also avail herself of the services of a legal-aid lawyer (governed by Article 911 et seq. of the Code of Organisation and Civil Procedure). 51.     The Government further relied on the Court’s general principles cited in Abdi Ahmed and Others v. Malta   ((dec.), no.   43985/13, 16   September 2014) and to its findings in that case, where the Court had established that the situation having ended, the duration of proceedings no longer rendered the remedy ineffective. The Court had also noted that the applicant had the same chances of lodging domestic proceedings as she had to lodge international proceedings, namely by means of NGO lawyers. 52.     The Government considered that the applicant could also have instituted an action for damages in tort where she, as a released detainee, could have obtained damage for loss sustained on the account of her conditions of detention, if she could have proved on the basis of probabilities that she had suffered damage and that such damage was attributable to the Government’s acts or omissions. 53.     According to the Government it was evident that these remedies were effective. They formed part of the normal process of redress, were accessible, and offered reasonable prospects of success where this was justified. (ii)     The applicant 54.     The applicant submitted that there existed no effective domestic remedy which should have been used; in fact most of the Government’s arguments had already been rejected by the Court in its judgment in the case of Aden Ahmed v. Malta (no. 55352/12, 23 July 2013) concerning an immigrant detained at around the same time as the applicant in the present case. The Court’s conclusions in that case were in line with the findings of the European Commission Directorate-General for Justice in a report entitled The EU Justice Scoreboard – A tool to promote effective justice and growth (2013), which showed that the Maltese judicial system was one of the systems with the longest delays among the member States. By means of example, the case of The Police vs   Pauline Vella   (42/2007), lodged in 2007, which looked at the conditions of detention at Mount Carmel Hospital, was decided on appeal on 30   September 2011. 55.     As to the use of interim measures by the constitutional jurisdictions, the applicant submitted that in the very specific circumstances of the example given by the Government, the first-instance constitutional jurisdiction itself repeatedly stressed, in its decree, the exceptional nature of interim orders. It finally considered that that specific case was serious enough to warrant such a measure. The applicant considered that the circumstances of that case, which pointed towards a wrongful conviction, could not be compared to that of the applicant, and nothing indicated that persons in the applicant’s position would obtain provisional release pending a complaint on conditions of detention. 56.     Similarly, one could not rely on the findings of this Court in Abdi Ahmed and Others (dec.), cited above, which concerned significantly different circumstances, and where, the moment the application was filed, preventive action was no longer necessary. However, in the present case, when the applicant applied to the Court she was still in detention, and thus preventive action was still necessary, but was not available due to the excessive duration of constitutional redress proceedings. 57.     Lastly, the applicant also referred to the Court’s considerations regarding a lack of a proper structured system enabling immigration detainees to have concrete access to effective legal aid. (b)     The Court’s assessment 58.   The Court refers to its case-law concerning exhaustion of domestic remedies, in particular in connection with complaints regarding conditions of detention, as reiterated in Aden Ahmed (cited above, §§ 54-58, with references therein). 59.     Further, the Court notes firstly, that the circumstances of the present case are different to those in the case of Abdi Ahmed and Others v. Malta ((dec.), no. 43985/13, 16 September 2014), relied on by the Government. That case concerned a determination as to whether, following the Court’s decision under Rule 39 of the Rules of Court to indicate to the Government that they should desist from deporting the applicants - a decision which had been respected by the Maltese Government - the applicants in that case had access to an effective remedy (for the purposes of, inter alia , their Article   3 complaint, which did not concern conditions of detention) which they were required to use before continuing their application before this Court. 60.     The Court notes that in the present case, when the applicant lodged her application with the Court (on 4 February 2013) complaining, inter alia , about her conditions of detention, the applicant was still in detention, and thus, apart from requiring a remedy providing compensation, she required a preventive remedy capable of putting an end to the allegedly ongoing violation of her right not to be subjected to inhuman or degrading treatment. The Court will thus proceed to assess the matter. 61.     The Court has already considered in Aden Ahmed (cited above, §   73) that it had not been satisfactorily established that an action in tort may give rise to compensation for any non-pecuniary damage suffered and that it clearly was not a preventive remedy in so far as it cannot impede the continuation of the violation alleged or provide the applicant with an improvement in the detention conditions (see Torreggiani and Others v.   Italy , nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013, particularly § 50, and the case-law cited therein). It thus concluded that it cannot be considered an effective remedy for the purposes of a complaint about conditions of detention under Article   3 (see also, Mikalauskas v. Malta , no. 4458/10, § 49, 23 July 2013). Nothing has been brought to the attention of the Court which could cast doubt on that conclusion. 62.     As to constitutional redress proceedings, again, in Aden Ahmed (cited above, §§ 61-63), the Court held that such an action provides a forum guaranteeing due process of law and effective participation for the aggrieved individual. In such proceedings, courts can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. These courts can also make an award of compensation for non ‑ pecuniary damage and there is no limit on the amount which can be awarded to an applicant for such a violation. The ensuing judicial decision will be binding on the defaulting authority and enforceable against it. The Court was therefore satisfied that the existing legal framework rendered this remedy capable, at least in theory, of affording appropriate redress. However, given the delay in those proceedings, the Court held that while it could not rule out that constitutional redress proceedings dealt with urgently (as should be the case concerning complaints of conditions of detention) may in future be considered an effective remedy for the purposes of such complaints under Article 3, the then state of domestic case-law could not allow the Court to find that the applicant was required to have recourse to such a remedy. In the present case the Government have not submitted any further examples enabling the Court to revisit its conclusion concerning the delay in such proceedings. On the contrary, they appear to acknowledge the existence of such delays, arguing however that such delays are counterbalanced by the possibility of interim measures being issued by constitutional jurisdictions pending proceedings. 63. In this connection, the Court notes that the example put forward by the Government is indeed very specific and unrelated to circumstances such as those of the present case. Accepting that the provision of examples may be more difficult in smaller jurisdictions, such as in the present case, where the number of cases of a specific kind may be fewer than in the larger jurisdictions, nevertheless the Court notes that the applicant’s example concerning a case of conditions of detention did not have such a measure applied, despite the excessive duration, extending to four years. Similarly, the case of Tafarra Besabe Berhe , referred to by the applicant (in her submissions below, at paragraph 111) concerning the lawfulness of immigrants’ detention and the conditions of such detention, which was still pending six years after it was lodged, also does not appear to have applied such a measure. Admittedly, the Court is aware that no examples may exist because applicants fail to make such requests. However, in the absence of any other comparable examples, the Court finds no indication that the constitutional jurisdictions would be willing on a regular basis to release immigrant detainees pending a decision on their claims on conditions of detention. 64.     It follows that, in circumstances such as those of the present case, the hypothetical possibility that interim measures may be issued pending proceedings does not make up for deficiencies detected in the remedy at issue – a remedy which would be effective both as a preventive and a compensatory remedy, if it were carried out in a timely manner. Thus, current domestic case-law does not allow the Court to find that the applicant was required to have recourse to such a remedy. 65.     Further, by their unsubstantiated allegation (see paragraph 50 above) the Government have not dispelled the Court’s previously expressed concerns about the accessibility of such remedies in the light of the apparent lack of a proper structured system enabling immigration detainees to have concrete access to effective legal aid (see Aden Ahmed , cited above, §   66). 66. In conclusion, none of the remedies put forward by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner. It follows that the Government’s objection is dismissed. 2.     Conclusion 67.     The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 68.     The applicant considered the conditions of detention to be basic. She noted in particular the lack of access to constructive or recreational activities, insufficient provision of basic needs, lack of information, difficulties communicating with the outside world, limited access to open air, and obstacles in obtaining the most basic services. Other factors which had to be taken into consideration were her young age and her inability to communicate in English. 69.     Each zone (measuring 300 sq. m according to a Médecins Sans Frontières report) consisted of a landing, three adjacent dormitories all opening on to a narrow corridor, nine or ten showers and toilets, a small room used as a kitchen with one or two hotplates, a common room containing metal tables and benches screwed to the ground, and one television. Free movement between zones was not possible, and for most of the day the detainees were confined to their respective zones. 70.     The applicant further submitted that conditions in her zone were particularly difficult in the summer months, as it became crowded because of increased arrivals. When the zone was at its full capacity (sixty people), bearing in mind the areas of the dormitories and the common areas, each detainee had an average 5 sq. m. of shelter space, which meant that in August, when the applicant’s zone hosted sixty-nine persons, the average shelter space was of 4.3 sq. m. She further noted that between her arrival in May and July 2012 the detainees were not allowed out of the zone, and thus they spent twenty-four hours inside the cramped space. The applicant felt that it was difficult to live in a room with twenty women, each having different sleeping times, who were noisy when it suited them, and where basic necessities were lacking. 71.     The applicant particularly complained about the lack of warm clothing, which was never adequately dealt with by the detention centre a