CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2016

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MALTA   (Applications nos. 52160/13 and 52165/13)                 JUDGMENT       STRASBOURG   12   January   2016   FINAL   12/04/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Moxamed Ismaaciil and Abdirahman Warsame v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Vincent A. De Gaetano,   Boštjan M. Zupančič,   Nona Tsotsoria,   Krzysztof Wojtyczek,   Egidijus Kūris,   Gabriele Kucsko-Stadlmayer, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 8   December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   52160/13 and 52165/13) 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 two Somali nationals, Ms Saamiyo Moxamed Ismaaciil and Ms Deeqa Abdirahman Warsame (“the applicants”), on 13   August 2013. 2.     The applicants were 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 applicants alleged that they had suffered a breach of Article   3 on account of the conditions of their detention, and violations of Article   5 §   1   and 4 on account of their detention and the lack of judicial review. 4.     On 28 August 2014 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1988 and 1992 and were at the time of the introduction of the application detained in Hermes Block, Lyster Barracks Detention Centre, in Hal Far. A.     Background to the case 1.     Ms Moxamed Ismaacil 6.     Ms Moxamed Ismaacil, the first applicant, entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number   (12U-007). 7.     At that point she was presented with two documents, one containing a Return Decision and the other a Removal Order (no copies available). According to the first 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. 8.     The first applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. She claimed that the document was provided in a language she could not understand. According to the Government she did not request a booklet in another language. 9.     In accordance with Article 14 (2) of the Immigration Act   (see Relevant domestic law), the first applicant was detained. She was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks. 2.     Ms Abdirahman Warsame 10.     Ms Abdirahman Warsame, the second applicant, also entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number   (12U-009). 11.     She was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. 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 of 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 second applicant that she would remain in custody until removal is affected and that an entry ban would be issued against her. The two documents further informed her of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 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. 12.     She was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. None of these documents, in English, were explained to Ms Abdirahman Warsame who could not understand the language. According to the Government the second applicant did not request a booklet in another language. 13.     In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. She was detained in Lyster Barracks (Zone unspecified). B.     Asylum proceedings 14.     A few days following their arrival both the applicants were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below). 15.     Two months later, on 2 and 9 November 2012 respectively, they were called for a refugee status determination interview. By decisions of 19   January 2013, communicated to the applicants on 31 January 2013, the Refugee Commissioner (RC) rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Halane village, in Qoryooley district, in Lower Shabelle Region, in southern Somalia. Thus, they did not fulfil the eligibility criteria for either refugee status or subsidiary protection. 16.     On 7 February 2013, with the aid of lawyers from the Jesuit Refugee Service (JRS) the applicants appealed against the decisions. The Refugee Appeals Board (RAB) informed the applicants that they had until 18   March 2013 to present submissions. This time-limit was extended and appeal submissions were lodged in April 2013. 17.     By the date their application was lodged with this Court, that is eleven months and three weeks from the date of their arrival, no decision had been issued. The applicants were hoping to be released on the lapse of twelve months from their arrival as per normal domestic practice. C.     Conditions of detention 1.     Ms Moxamed Ismaacil 18.     Ms Moxamed Ismaacil, the first applicant, was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks, in conditions which she considered prison-like and basic, although she considered Zone D to be better than the latter unspecified Zone. She explained that the place was overcrowded and noisy, and it was hard to keep it clean. There were twenty people in one dormitory and ninety-five people in the zone, with only one fridge. In summer the heat was unbearable and in winter it was too cold. They were fed the same food every day, and only allowed one hour of sunshine per day. She maintained that male detainees held in the upper floors often abused them verbally. Other factors which she considered had to be taken into consideration were her young age, her inability to communicate in any language except for Somali, and the fact that the detention centre was staffed exclusively by men. She further noted the absence of access to effective medical care, given that no interpreters were available. She had visited the clinic in the detention centre several times because she was sick, and was repeatedly told to drink water and take paracetamol tablets. Often no doctors were available and it was the soldiers at the detention centre who decided whether the issue warranted emergency treatment. 2.     Ms Abdirahman Warsame 19.     Ms Abdirahman Warsame explained that she endured the same circumstances mentioned above by Ms Moxamed Ismaacil. She added that she was depressed and that she often felt upset and agitated, at times she would stop drinking and eating and then lose consciousness. Despite her gastric pains, no special diet was provided for her and the doctors only administered paracetamol, to the extent that she started vomiting blood. In June 2013 she was hospitalized for a week. She alleges that she had become very weak physically and started suffering from memory loss. D.     Latest developments 1.     Ms Moxamed Ismaacil 20.     Ms Moxamed Ismaacil was released from detention on 14   August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 15 October 2013. 2.     Ms Abdirahman Warsame 21.     Ms Abdirahman Warsame was also released from detention on 14   August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 14 July 2014. II.     RELEVANT DOMESTIC LAW AND PRACTICE 22.     The relevant domestic law concerning the case is to be found in Suso Musa v.   Malta (no. 42337/12, §§ 23-32, 23 July 2013) and Aden Ahmed v.   Malta (no. 55352/12, §§ 31-39, 23 July 2013). III.     RELEVANT INTERNATIONAL MATERIAL 23. 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. ... 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. 61. That said, at Lyster Detention Centre, a number of detainees who had family members or friends in Malta complained about the fact that they were not allowed to receive any visits, but that “visitors” could only come to the centre on Sundays to deliver parcels to staff at the gate for the attention of a detainee. This state of affairs was subsequently confirmed by staff. The CPT calls upon the Maltese authorities to take steps to ensure that foreign nationals are allowed to receive visits on a regular basis and that specific facilities are set up for that purpose. Relevant information on the visiting arrangements should also be included in the information brochure “Your Entitlements, Responsibilities and Obligations while in Detention” which is given to detainees. 62. In the report on the 2008 visit, the CPT invited the Maltese authorities to consider adding the Committee to the list of international bodies to/from which detainees could send/receive letters confidentially (and without bearing the cost of postage). Regrettably, the authorities had not taken any steps to this end, despite their commitment given in their response to the above-mentioned report. During consultations with the delegation, the Commander of the Detention Service affirmed to the delegation that appropriate steps would be taken without delay. The Committee would like to receive updated information on this point. ” 24.     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.” 25.     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.” 26.     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.” 27.     Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130   detainees. 28.     Care in Captivity , a more recent JRS Malta report on the provision of care for detained asylum seekers experiencing mental health problems (research period December 2013 to June 2014), documented several obstacles to quality healthcare including: lack of availability of interpreters; lack of attendance for follow-up appointments following discharge to detention (in seven out of seventy-four cases); and failure to dispense prescribed psychotropic medication in some cases. It held that: “In this regard, the current system where, after discharge from the ASU ward, the responsibility for continuity of care, in terms of attendance of hospital appointments and dispensation of medication, falls under detention health care providers and custodial staff appears not to be operating effectively.” THE LAW I.     JOINDER OF THE APPLICATIONS 29.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30.     The applicants complained under Article 3 in respect of the conditions of their detention in Lyster Barracks, they relied on Aden Ahmed v.   Malta (no. 55352/12, 23 July 2013). The provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 31.     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 32.     The Government submitted that the applicants had not brought their complaints before the domestic authorities. They considered that the applicants had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of their detention while they were in detention and an action for damage in tort after they left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. 33.     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 applicants had not proved the contrary. 34.     The Government noted that the applicants could also avail themselves of the services of a legal-aid lawyer (governed by Article 911 et seq. of the Code of Organisation and Civil Procedure). 35.     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 applicants had the same chances of lodging domestic proceedings as they had to lodge international proceedings, namely by means of NGO lawyers. 36.     The Government considered that the applicants could also have instituted an action for damages in tort where the applicants could have obtained damage for loss sustained on the account of their conditions of detention, if they could prove on the basis of probabilities that they had suffered damage and that such damage was attributable to the Government’s acts or omissions. 37.     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. 38.     Under this heading, the Government also noted that after lodging their application while the applicants were in detention it had taken them a number of months to inform the Court of their release, and thus they had not been diligent. (ii)     The applicants 39.     The applicants 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 applicants 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. 40.     As to the use of interim measures by the constitutional jurisdictions, the applicants 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. The applicants considered that the circumstances of that case, which pointed towards a wrongful conviction, could not be compared to that of the applicants, and nothing indicated that persons in the applicants’ position would obtain provisional release pending a claim on conditions of detention. 41.     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 applicants applied to the Court they were still in detention, and thus preventive action was still necessary, but was not available due to the excessive duration of constitutional redress proceedings. 42.     Lastly, the applicants 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 43.     The Court refers to its case-law concerning exhaustion of domestic remedies, in particular in connection with complaints of conditions of detention, as reiterated in Aden Ahmed (cited above, §§ 54-58, with references therein). 44.     Further, the Court notes that the circumstances of the present case are different to those in the case of Abdi Ahmed and Others v. Malta   (dec.), cited above, relied on by the Government. That case concerned a determination as to whether following the Court’s decision to apply a Rule   39 injunction indicating 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. 45.     The Court notes that in the present case, when the applicants lodged their applications with the Court (on 13 August 2013) complaining, inter alia , about the conditions of their detention, the applicants were still in detention, and thus, apart from requiring a remedy providing compensation, they were required to have a preventive remedy capable of putting an end to the ongoing violation of their right not to be subjected to inhuman or degrading treatment. The Court will thus proceed to assess the matter. 46.     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, § 50, 8 January 2013, 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. 47.     As to constitutional redress proceedings, again, in Aden Ahmed (cited above, §§ 61-63), following a thorough assessment, 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. 48.     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 applicants’ 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 applicants (in their submissions below, at paragraph 109 below) 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. 49.     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 applicants were required to have recourse to such a remedy. 50.     Further, 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). 51. 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. 52.     Lastly, the Court finds that Government’s comment at paragraph 38 above has no bearing on the examination of this objection. 2.     Conclusion 53.     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’ observations (a)     The applicants 54.     The applicants considered the conditions of detention to be basic. They 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 their young age, their inability to communicate in any language except Somali, and the fact that the detention centre was staffed exclusively by men (most having a security background) despite them being young females. 55.     In their view all the above had a greater toll given their personal circumstances and situations while they were in detention (as explained in the Facts, above), as well as the traumas they suffered before their arrival in Malta. Both applicants claimed to have experienced physical symptoms and psychological ill-health which they linked to their long-term detention. 56.     The first applicant claimed to have had trouble sleeping, which was made worse by noise from the other detainees. She claimed she had been to the clinic several times and that “once she felt chest pain”. The second applicant also claimed to have been ill and that she had been hospitalised for a week in June 2013, only after a number of complaints. Previously, she had informed the doctor that she was having gastric problems and had been coughing blood; nothing had been done about the matter other than the administration of paracetamol. For four months she had also been worried about a swelling in her neck, but she only had it examined when she was in hospital in June 2013. She considers that her health had deteriorated in detention, her memory was impaired and she always felt weak. She relied on the referral to AWAS for release on grounds of vulnerability, which was made in June 2013, by a Jesuit Refugee Service representative, and which reads as follows: “Deka has been complaining of several medical ailments, including vomiting blood for which she has been treated but to no avail. ... She is suffering from constant nausea, stomach pain, headaches and has lost a lot of weight over the past couple of months. Deka is very worried about her medical condition, especially since she has no control over her food and treatment as she is in detention.... She needs to be released from detention as soon as possible so that she can get the care and treatment she requires.” 57.     The applicants submitted that 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. There was no room to store food or other materials. Free movement between zones was not possible, and for most of the day the detainees were confined to their respective zones. 58.     The applicants submitted that conditions in their zone were particularly difficult in the summer months, as it became crowded because of increased arrivals. When the zone was at 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 applicants’ zone had sixty-nine inmates, the average shelter space was of 4.3 sq. m. At a different point in her submissions the first applicant claimed they were sometimes ninety in a zone (see also paragraph 18 above). The zone was much less crowded in the winter months. The applicants felt that it was difficult to live in a room with around twenty women without privacy. Moreover, they were sometimes abused by other detainees and attacked, life was stressful and fighting was regular. 59.     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 heat would become oppressive despite 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. 60.     The applicants complained that they had nothing to do all day except watch television, and only very limited access (one and half hours) to the open air in a small dusty yard. The first applicant claimed that it was however too hot to stay in the yard in summer, and the second applicant stated she rarely used the yard given her ill-health. They noted that most of the books in the library were in English and that the classes held by Integra had only operated for the first three months of their twelve ‑ month’ detention. Other projects did not consist of more than one activity per week. 61.     Detainees had limited contact with the outside world, as no Internet was available and telephone credit was insufficient for overseas calls. 62.   The detention centre lacked female staff, and only one woman worked on the shift with the zones. This meant that all the care of detained women was carried out by male staff (most having a security background) who guarded the facility, conducted headcounts (in the dormitories twice daily, including the mornings when the women were asleep – thus the applicant had to sleep fully clothed including headscarf), took care of the distribution of basic necessities, including items of personal hygiene and underwear, and accompanied them to medical appointments. This state of affairs was confirmed by a local report drawn up by a Maltese magistrate (the Valenzia Report). The applicant referred to international reports on the matter (see paragraphs 24-25 above), and considered that the situation was even more frustrating given that under the domestic system there was no mechanism to complain about ill-treatment or abuse by detention staff. 63.     The food provided was also of poor quality, lacked variety and was culturally inappropriate. The second applicant noted that they were fed pasta, rice, chicken, milk and water. She felt that such foods were not suitable for her medical needs and as a result she often would not eat. She also complained that it took her a long time and various complaints until she could get mineral water instead of the water usually served. 64.     The applicants also complained about the difficulties they had in obtaining information about their situation which with their prolonged detention caused them a lot of frustration, despair, unhappiness, and loneliness. Relying on a report entitled Becoming Vulnerable in Detention, National Report on Malta, July 2010, they highlighted that prolonged detention caused significant deterioration in physical and mental well-being. 65.     Both applicants complained about their access to medical care and the quality of medical care provided. While not doubting the efficacy of the medical personnel providing a service, given that they were more often than not communicating with migrants with little or no knowledge of English, it was difficult to understand how they could provide a quality service in an average of six minutes per patient (in the light of the Government submissions, see paragraph 74 below). The applicants again referred to the CPT report and the JRS Malta report, Bridging Borders, (see paragraphs   23 and 27 above). 66.     Give their situation and all the factors mentioned above, the applicants considered that they had suffered a breach of Article 3. (b)     The Government 67.     The Government submitted that as shown by the calculations made by the applicants, the zones in which they were held were never overcrowded and they never had an individual space of less than 4   sq.   m.. They considered that although some discomfort arises from living with other persons, this did not reach the threshold of Article 3. 68.     The Government submitted that whilst in detention the applicants were housed in a sheltered compound with adequate bedding and were provided with three meals a day on a daily basis (the menu changed on a daily basis and food was prepared in different ways) and mineral water. Meals were provided from a pre-set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions. 69.     According to the Government, upon arrival an emergency bag is distributed and a second bag is supplied on the second day. Further supplies are provided on a regular basis to cater for the migrants’ well-being, including that of the applicants, who did not have the financial means to purchase supplies. Every two weeks new cleaning products were supplied to each room in order to secure the cleanliness of the areas. The applicants were also given clothing and supplies to cater for their personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers. 70.     The detention centre is equipped with ceiling fans which can be used in the summer months. As to heating (which was installed after the applicants’ release), the Government admitted that at the time of the applicants’ detention there was no heating, but in their view this was counterbalanced by the provision of warm clothing and blankets - extra blankets were in fact available on request. They considered that in Malta winters were mild and the coldest temperatures were felt from January to March. 71.     Immigration detainees are provided with telephone cards and various telephones can be found in the detention centre. Interpreters are provided for free at the detention centres. The detainees are further provided with stationery and books on request. They have access to a television, as well as a kitchen offering basic cooking facilities and a common room with tables and benches. They are free to practise their religion and have unlimited access to NGOs and legal assistance ( sic ). They also have the opportunity to attend language and integration classes provided by NGOs. In 2013 the immigrants also had the opportunity to take part in an EU funded project (SPARKLET) which provided, inter alia , educational and cultural activities. The Government submitted that access to the Internet and mobile phones was restricted for security reasons. 72.     The Government submitted that access to outside exercise was limited to one and a half hours daily per zone. They also noted that the applicants were given information on their arrival, by means of an information leaflet and verbally, and that the Commissioner for Refugees held information sessions with the aid of interpreters. 73.     As to detention staff, the Government submitted that there were two female staff assigned to the single female zones, while female police officers acted as escorts when female detainees had to attend off-site medical appointments. In any event they considered that it was not debasing to have male staff, given that they were trained to cater for female detainees and to provide them with the necessary supplies, including intimate personal items. As to the headcounts, the Government submitted that in any event female detainees had to dress appropriately even with respect to other detainees in the dormitory. The Government contested the applicant’s allegation that there was no complaint mechanism, and alleged that instances of misbehaviour were brought to the attention of the Head of Detention Services, either directly by the detainee or through NGOs. Without giving examples, the Government alleged that such complaints were investigated and, where necessary, disciplinary proceedings undertaken. 74.     The detention centres had a medical practitioner and a nurse who provided on-site treatment and could make referrals to hospital treatment, and “custody clinics” are set up in all compounds housing migrants. The Government explained that medical services at the Safi Detention Centre had been outsourced since April 2007. Two doctors and two nurses visited the detention centres every day (except weekends) between 8.00 am and 3.00 pm (nurses) and 9.00 am and 1.00 pm (doctors). On a daily basis each doctor examined forty persons, meaning that 400 patients were examined each week. The clinics on site, at each of the compounds in Safi, were refurbished and equipped with basic medical equipment. During silent hours (when doctors were not present) detainees were allowed to visit the nearest health centre to see a doctor. Furthermore, nurses from the Malta Memorial District Nursing Association (MMDNA) reported at detention centres during weekdays (in the evening) and weekends (both morning and evenings) to dispense medicines. In the event that migrants requiring mental health support, the doctor would refer them for further treatment at Mount Carmel Hospital (the State mental health hospital) and other referrals to the State General Hospital were made if specialised attention was necessary. 75.     The Government distinguished the case from that of Aden Ahmed , who had been particularly vulnerable. Indeed, in the present case, according to the Government the applicants could not be considered to fall under any specific category of vulnerable individuals, neither could they be considered to be seriously ill or even to be suffering from ill-health. Indeed the first applicant who alleged that she had visited the clinic on several occasions, had only been administered paracetamol and advised to drink water, which was clearly evidence of no serious sickness. The second applicant, who alleged that she had gastric problems, had been hospitalised and had been physically unwell had not substantiated her allegations. In the Government’s view the fact that a particular treatment was administered but no special diet provided was a result of a diagnosis on the second applicant which established that no such treatment was required. The Government also noted that in their affidavits to the Court the applicants had themselves acknowledged that they had been given medical assistance whenever it was requested and that medical personnel operated the clinics on site. The Government also insisted that language barriers were overcome by interpreters on site as well by migrants who were conversant with English and French as were the medical officers. Moreover, according to the Government a number of medical officers were foreign, and they spoke various languages which migrants understood. 76.     The Government noted that they could not be held responsible for ill-treatment suffered before the applicants reached Malta. Referring to the applicants’ claims that they continued to experience physical symptoms and psychological ill-health linked to their long-term detention, the Government submitted that a certain level of anxiety was inevitable in detention, nevertheless this could not reach the threshold of Article 3. 77.     Thus, in the Government’s view there was no violation of Article   3 in the circumstances of the present case. 2.   The Court’s assessment (a)     General principles 78.     The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article   3 of the Convent