CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 mai 2016

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MALTA   (Application no. 56796/13)               JUDGMENT     STRASBOURG   3 May 2016     FINAL   03/08/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.     In the case of Abdi Mahamud 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 Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 15 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 56796/13) 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 Sagal Abdi Mahamud (“the applicant”), on 19 August 2013. 2.     The applicant was represented by Dr K. Camilleri and Dr   M.   Camilleri, lawyers practising in Birkirkara and Valletta, respectively. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3.     The applicant alleged that her continued detention 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 and 4. 4.     On 28 August 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1992, and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, in Ħal Far. A.     Background to the case 6.     The applicant entered Malta in an irregular manner by boat on 6 May 2012. On arrival she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law below). 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.     On 9 May 2012 the applicant was assisted to submit a 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. On 21   May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC). 9.     On 30 June 2012 the ORC rejected her application on the basis, inter alia , that she had failed to support her claim that she was from central/southern Somalia with convincing evidence (in particular, she had shown insufficient knowledge about Mogadishu and her speech displayed phonological, grammatical and lexical features not typical of those spoken in Mogadishu). Her appeal was also rejected by the Refugee Appeals Board (the “RAB”) on 18 December 2012. The appeal decision reads as follows: “The Refugee Appeals Board refers to a fill-in-the-blanks form received in its Office on 18 July 2012 and to a legal submission on your behalf received in its Office on 8   October 2012. The Board notes that you travelled to Libya in December 2011, first via Kenya and then via Sudan. In none of these countries did you consider applying for refugee status. During the popular insurrection against the Gaddafi regime in Libya you disembarked on the island of Malta, illegally and undocumented on 6 May 2012, claiming that you were looking for peace, although seven of your siblings still live in Somalia. You also claim that your brother had been killed by a terrorist Islamic organization, Al Shabab, because they thought he worked for the Government. However, you also claim that if there was peace back home, you would be prepared to return. Since you left, as you may know, Al Shabab has been driven out of Mogadishu and Presidential elections have been successfully held and several Somalis are repatriating. Your appeal for the grant of refugee status by Malta cannot be upheld according to law.” 10.     Up to the date of the lodging of her application with the Court on 19   August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland. B.     The AWAS Adult Vulnerability Assessment Procedure 11.     Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalised (see paragraphs 16-19 below). She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 October 2012, she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health. According to the referral form, filled in by an official of the JRS: “Sagal has been complaining of several medical problems ever since she arrived in Malta. She had several appointments in hospital was also taken to emergency by ambulance after collapsing in detention. Sagal was also rejected by the Office of the Refugee Commission, causing her to be very depressed. Every time we visit she is in her bed crying and showing signs of severe anxiety.” 12.     In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. Her impression is that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released. The Government also confirmed that eventually the applicant’s request for release on the ground of vulnerability was acceded to by AWAS. 13.     Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time. 14.     The applicant submitted that the Vulnerable Adult Assessment Procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which set it up, in practice the agency had full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition. 15.     According to the Government the Vulnerable Adult Assessment Procedure, which was operated to assess vulnerability, was widely known within the migration sector and a policy document had been issued about it. Forms were distributed to individuals working in the sector such as NGOs. The Government submitted that the Vulnerable Adult Assessment Procedure was a quick process in straightforward cases (such as pregnant women and families with very young children) which were usually determined within two weeks. However, less straightforward cases such as assessments on the grounds of mental health, psychological problems or chronic illness, required a more complex assessment procedure which was therefore lengthier. C.     The applicant’s medical condition 16.   A certificate issued by a doctor in May 2012 confirmed that the applicant had been hospitalised on 7 and 8 May 2012 (upon her arrival in Malta) for dehydration, she was seen again on 15 May and 15 June of the same year. She suffered “fits” and was waiting for an appointment. 17.     According to the documents provided by the applicant, after her initial hospitalisation, and apart from the two visits mentioned above, she was seen by a doctor at the state hospital around sixteen times between May and September 2012, and each time was prescribed medication. On these occasions she suffered from, inter alia , epigastric pain and nausea (repeatedly), bilateral conjunctivitis, inflammation, bleeding gums, insomnia, otalgia/earaches (also repeatedly) causing reduced hearing, as well as headaches and toothaches, and dizziness. In none of these occasions was she kept under observation overnight, or hospitalised. In June 2012 following claims by the applicant that she had been falling repeatedly, and that she was having episodes of jerking and tongue biting (which had left evident marks), the doctor requested her referral to a specified department to run the relevant tests to exclude epilepsy – the result of these tests, if undertaken, are unknown to the Court. 18.     A medical certificate issued in March 2013 states that at the time the applicant was suffering from “low mood and insomnia” and had been “complaining of somatic symptoms such as chest pain”. The doctor noted “evident deterioration of her mental state” and suggested she be considered as vulnerable. 19.     An attestation issued by a doctor in May 2013 states that according to available records “she has stayed unwell and been treated or referred to Mater Dei Hospital [the State hospital] more than usual” and that “her health has posed challenges in keeping her at the Ħal Far detention centre and any assistance will be appreciated”. D.     Conditions of detention 20.     The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of layout and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A. 21.     She noted that in Zone C there were over eighty ( sic ) single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone D was less crowded but that it still lacked privacy and sanitation. 22.     She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff, other detainees and with the outside world, lack of information about their own situations, and the lack of proper arrangements for heating and cooling, leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while the inmates were still asleep to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her headscarf, to avoid embarrassing moments. 23.     The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff. E.     Latest Developments 24.     The applicant was informed of the AWAS decision to accede to her request and was released from detention on 12 September 2013. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Immigration Act and the Refugees Act 25.     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 26.     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”. C.     AWAS 27.     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 provide statistics to appropriate policy-making bodies; (g) advise 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.” D.     Other relevant law and Subsidiary Legislation 28.     Further relevant domestic law concerning the case is to be found in Suso Musa v. Malta (no. 42337/12, §§ 23-32, 23 July 2013). 29.     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 (cited above, §§ 31-35). III.     RELEVANT MATERIALS 30.     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.” 31.     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.” 32.     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.” 33.     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.” 34.     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. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 35.     The applicant complained about her conditions of detention, which in her view amounted to inhuman and degrading treatment 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.” 36.     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 37.     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. 38.     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. 39.     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). 40.     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. 41.     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. 42.     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 43.     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. 44.     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. 45.     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. 46.     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 47.   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). 48.     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 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. 49.     The Court notes that in the present case, when the applicant lodged her application with the Court (19 August 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 was required to have 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. 50.     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. 51.     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. 52. In this connection, the Court notes that the example put forward by the Government is indeed very specific and is 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 100) 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. 53.     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. 54.     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). 55. 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 56.     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 57.     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 age and her inability to communicate in English. 58.     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. 59.     The applicant further submitted that conditions in her zones (C, D   and A) 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 applicant’s zone had sixty-nine inmates, the average shelter space was of 4.3 sq. m, and in May when it had sixty-one the average shelter space was 4.9 sq. m. She further noted that between her arrival on 6 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. 60.     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. 61.     The food provided was also of poor quality, was not nutritious enough, lacked variety (chicken was served every evening) and was culturally inappropriate. According to reports by Médecins Sans Frontières and the JRS (relevant links submitted to the Court) the diet provided had led to a number of gastrointestinal problems among detainees. 62.     The applicant also complained about the difficulties she had in obtaining information about her situation and the ongoing vulnerability assessment procedure. Detainees 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 – which could be arbitrarily closed from one day to another because of security concerns or escapes. She noted that the books in the library were in English, and that the classes held by Integra mentioned by the Government only started after her release (as with the telephone service offered by the Red Cross). Other projects did not consist of more than one activity per week. 63.     Detainees had limited contact with the outside world, as no Internet was available and telephone credit was insufficient for overseas calls. 64.     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 30-32 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. 65.     She further complained that the detention itself had an impact on her physical and mental wellbeing. She noted that she had nothing to do apart from read and all she did in detention was worry about her problems, she did not watch TV and did not go to the yard because she did not enjoy it, and got dizzy walking down two flights of steps to reach it. Her detention conditions were particularly unfortunate given her state of health. She explained that already in Somalia she used to experience headaches and earaches, at a time during which she was experiencing considerable hardship and trauma because of the war, and subsequently her voyage across the desert and eventually the Mediterranean. While in Libya she began to experience intense bouts of nervousness/anxiety followed by blackouts. This happened several times but she was not seen by a doctor. In Benghazi, while imprisoned, she became ill again, was taken to hospital and transferred to a UNHCR camp. In Malta too she continued to experience both physical symptoms and psychological ill-health, which she considered were linked to her long-term detention and the anxiety caused by the rejection of her asylum application. She continued to suffer from headaches and earaches which were exacerbated by the noise in detention (people talking loudly and the television). She stated that the pain was sometimes so bad that she felt dizzy and fainted. She claims that her health degenerated after her asylum application was rejected at first instance. She was fainting more often and was constantly crying. She referred to her medical records (see paragraphs 16-19 above), which showed repeated visits to the clinic for a variety of ailments, including fainting, dizziness and possible fits. In fact, she had been referred to AWAS for assessment with a view to possible release on grounds of vulnerability on account of her ill-health and her poor psychological health. In her view it was in the light of her particular circumstances that the conditions of her detention had to be evaluated. (b)     The Government 66.     As to the structure of Hermes Block, the Government submitted that it consisted of three equally sized rooms that together had a total capacity to accommodate sixty people. Records held by detention services showed that during the period that the applicant was housed in Hermes Block, in the month of May 2012 there were sixty-one occupants, while during the peak August month there were sixty-nine detainees. Indeed the dimensions shown by the applicant herself had shown that there was no issue of overcrowding according to the Court’s standards. 67.     The Government submitted that the zones were well kept and that the Government provided shelter, food, clothing, and medical assistance to migrants. In the Government’s view the facility catered for all the needs of the migrants. Gates which separated the different zones were intended to protect the migrants, and separation was provided in relation to migrants having different ethnicities and religious beliefs as well as gender. 68.     According to the Government, upon arrival an emergency bag is distributed, containing a towel, two bed sheets, a pair of flip-flops, two T ‑ shirts, two pairs of shorts, a bar of face soap, shower gel (which can also be used as shampoo), a bar of laundry soap, a toothbrush and toothpaste, a pillow and pillow case, toilet paper, a plastic cup, a plate and cutlery set, a blanket, a five-euro telephone card, a packet of sanitary towels, and a quilt (for winter arrivals only). A second bag is supplied on the second day, containing bras and underwear, slippers or running shoes, a tracksuit, and other items of clothing. Further supplies are provided on a regular basis, such as cleaning products every two weeks in order to secure the cleanliness of the areas. The applicant was also given clothing and supplies to cater for her personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers. 69.     The Government submitted that whilst in detention the applicant was housed in a sheltered compound with adequate bedding and was provided with three meals a day on a daily basis. Meals were provided from a pre-set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions. It surely could not be said that the fact that chicken was served regularly would be of any concern. 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. 70.     Immigration detainees are provided with telephone cards and various telephones can be found in the detention centre. Moreover, the Red Cross also operates a mobile phone calling service on a daily basis and any restrictions on the use of mobile phones and internet were due to security reasons. Further, the Government noted that while the applicant was in detention, two female detention officers were assigned to the zones were femal