CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 octobre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sC6F3FB87 { margin-top:0pt; margin-bottom:8pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s424290C5 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:center } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .s71604A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:10pt } .s2D1013D { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; font-size:10pt } .s3756EA5F { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:10pt } .sF06D3D4E { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s31A88E12 { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s63658818 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sF74FAE64 { font-family:Arial; font-size:8.5pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9807E738 { margin-top:14pt; margin-left:25pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.5pt; font-family:Arial; font-size:11.5pt; font-weight:bold } .s20FC8552 { font-family:Arial; font-size:11.5pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s4BAE41EE { font-family:Arial; font-size:11pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .sFBC99493 { font-style:italic } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s7689ECA6 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:12.5pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s28AF21C3 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s8B983D37 { text-transform:none } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sF74FB0AA { font-family:Arial; font-size:6.5pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s8BF9F9FB { width:7.06pt; font:7pt 'Times New Roman'; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s7C22C014 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.11pt; font-family:Arial; text-transform:uppercase } .s3B2F4E5 { margin-top:14pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }   SECOND SECTION   CASE OF A.D. v. MALTA   ( Application no. 12427/22 )   JUDGMENT   Art 3 (substantive) • Conditions of detention in various immigration centres of a vulnerable individual, due to presumed minority and health situation, amounting to inhuman or degrading treatment • Conditions not adapted to applicant’s needs nor to the reasons given for his prolonged detention Art 5 § 1 • Deprivation of liberty • Imposition of restriction of movement order (for health reasons) for two months amounting to a de facto detention • Detention neither in conformity with domestic law for Art 5 § 1 (e) purposes nor compatible with Art 5 § 1 (b) • Subsequent immigration detention on the basis of detention order, arbitrary under Art 5 § 1 (f) • Serious doubts as to authorities’ good faith in case circumstances • Failure to ascertain whether placement in immigration detention a measure of last resort for which no alternative available • Prolonged detention in inadequate conditions Art 13 (+ Art 3) • Effective remedy • Constitutional redress proceedings ineffective for complaints of ongoing detention conditions Art 46 • Respondent State required to take general measures to ensure (1) legal basis in domestic law for detention on health grounds in conformity with legal certainty principle; (2) relevant domestic law effectively applied in practice, vulnerable individuals not detained, necessary detention periods limited so they remain connected to detention ground applicable in an immigration context and undertaken in appropriate places and conditions in view of that context   STRASBOURG 17 October 2023 FINAL   17/01/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.D. v. Malta, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Pauliine Koskelo,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   12427/22) 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 an Ivoirian national, Mr A. D. (“the applicant”), on 8 March 2022; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 3 alone and in conjunction with Article   13, and those under Article 5 §§ 1 and 4, and to declare inadmissible the remainder of the application; the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted jointly by the AIRE Centre (Advice on Individual Rights in Europe), the International Commission of Jurists (ICJ), The Global Campus of Human Rights (represented by Professor Manfred Nowak and Dr.   Chiara Altafin who intervened as part of the Global Study component of the ACRiSL project) and the European Council on Refugees and Exiles (ECRE), who were granted leave to intervene by the President of the Section; Having deliberated in private on 26 September 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the holding of the applicant, a vulnerable individual due to his alleged minority and health situation, in different detention centres for different purposes over several months. It raises issues under, inter alia , Articles 3 and 5 of the Convention. THE FACTS 2.     The applicant was allegedly born in 2004 and was at the time of the introduction of the application detained in Safi. The applicant was represented by Dr N. Falzon, a lawyer, from Aditus Foundation, practising in Ħamrun. 3.     The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4.     The facts of the case may be summarised as follows. THE CIRCUMSTANCES OF THE CASE 5.     The applicant arrived in Malta irregularly, by boat, on 24 November 2021 with a group of other persons (hereinafter ‘the group’). A number of people perished during the ten days in which their boat was stranded at sea, before the rescue operation took place. The initial stages 6.     Upon arrival in Malta, all the male arrivals in the group, including the applicant, were detained in Ħal Far Initial Reception Centre, also known as China House (hereinafter ‘HIRC’) which the applicant explained was used mainly - according to observed practice - to detain newly arrived asylum seekers under quarantine until they are medically cleared by the Health Authorities. The applicant claimed to be a minor. According to the applicant, for sixteen days, the group was not provided with any document regarding their ongoing detention and they did not receive any explanation justifying the reasons for their detention in a language which they could understand. 7.     The Government explained that, on arrival, the applicant did not present the authorities with a COVID-19 vaccination certificate, nor a negative Polymerase Chain Reaction (PCR) or rapid antigen negative test result, nor proof of recovery from COVID-19. Thus, the Superintendent of Public Health (hereinafter ‘Superintendent’) issued an order for him to be placed in quarantine for a period of two weeks, in pursuance of the Period of Quarantine Order (see paragraph 59 below). Since the applicant claimed to be an Ivorian national at the time of his arrival, the quarantine order was issued to him in the French language - the official language of the Ivory Coast. The Government claimed to have submitted this order to the Court however the order submitted to the Court is neither dated nor named or referenced in any way, and appears to be a standard form (in both French and English versions) which has not been filled in. The applicant stated that he did not recognise the document submitted by the Government. 8 .     The order submitted reads as follows (English version): “This written order is being issued in terms of Subsidiary Legislation 465.13, period of Quarantine Order, pursuant to which you are here being ordered to quarantine for fourteen (14) days, during which period you will be tested as required. Pursuant to Subsidiary Legislation 465.23, Period of Quarantine (Contact with other persons) Order, your quarantine period may be extended for another fourteen (14) days if persons residing with you are found to be suffering from the notifiable disease, COVID-19. This period may be extended. If you are diagnosed as suffering from COVID-19, you will be required to self-isolate for a period of fourteen (14) days in accordance with Subsidiary Legislation 465.30, Self-isolation of Diagnosed Persons Order. You may be ordered to undergo a PCR test prior to the end of a mandatory period of quarantine.” 9.     During this period of two weeks, the applicant had been accommodated at the HIRC with the group. He was tested for COVID-19 on three occasions, namely on 24 November 2021 (date of arrival), 30 November 2021 (after seven days) and on 9 December 2021 (after fourteen days). The applicant tested negative for COVID-19. 10 .     As to the conditions in HIRC, according to the applicant he had been detained in the same block with twenty-three other people, including adult men. There were three toilets and two showers. Upon arrival the group had been provided with one t-shirt and one tracksuit each and liquid soap. They had to wash their clothes in the same bucket that was provided to clean the floor. Since they had only one outfit, they had to change clothes between them when washing and NGOs had been refused the opportunity to donate warm winter clothes to the detainees on the basis that they had already been given tracksuits. The Block where they had been detained was composed of a hallway serving several small rooms, measuring approximately 3 sq. m. with three bunk beds. The applicant had been sharing the room with three other people. The Block did not have any common room, chairs, tables or praying room and the mattresses were visually old and used. The bedroom had one window which could not be opened, there was no natural light and was very dark. Upon arrival each individual had been given one sheet per person. The room was very humid and cold. There was no heating system nor any ventilation despite the high humidity encountered in Malta during the Winter. The applicant further reported that detainees had to clean the premises themselves and had no access to drinkable water, thus being obliged to drink from the tap despite the low quality of this water. There had been no regime of activities nor any outside area, no phone to make calls and thus he could have no contact with the outside world. 11.     The Government disagreed with this description (see paragraph 94 below). The subsequent stages 12.     On 10 December 2021, the Superintendent issued a Restriction of Movement on Public Health Reasons Order (hereinafter ‘RMPO’). The RMPO showing the date and the Police immigration number of the applicant, which was submitted by the applicant, reads as follows (English translation): “This restriction of movement is being issued in terms of Article 13 of the Prevention of Disease Ordinance (Chap. 36) on the following ground: There are reasonable grounds to believe that you may be at risk of infectious diseases and hence required to be screened.” 13.     The applicant reported that no interpreter was present to explain the content of this document written in French. The Government submitted that being from the Ivory Coast there was no reason to believe that the applicant did not understand that country’s official language, and that his interviews had shown that he had a certain level of education. 14 .     Between 7 and 20 December 2021 the group went through various medical tests and check-ups. On 14 December 2021 the test results showed that the applicant was suffering from Pulmonary Tuberculosis (hereinafter ‘TB’). As a result, on 17 December 2021, he was admitted to the Infectious Diseases Unit of Mater Dei Hospital for treatment. During this time, the applicant was treated for TB, with further tests being carried out, until he was eventually discharged on 22 December 2021 with a plan for further tests and visits to be carried out at the hospital and a prescription for medicine to treat the illness. 15.     None of the parties specified where the applicant was accommodated between 10 December 2021 and his transfer to the Hospital. 16 .     In the meantime, since the applicant had claimed to be a minor, a provisional order had been issued by the Juvenile Court on 6 December 2021, ordering inter alia that the applicant be given accommodation adapted for minors and not with adults. 17 .     According to the Government, although according to the applicant’s alleged date of birth he was sixteen years old, the authorities decided to accommodate him separately from adult asylum seekers. Thus, the applicant’s place of residence was changed (no date was specified), and he was moved to Zone 4 of the Safi Detention Centre with six other alleged minors, of the same group, who were also covered by provisional orders issued by the Juvenile Court. The applicant disputed this allegation. According to him, his move to Safi Detention Centre was unrelated to his age (and the decision of the Juvenile Court of 6 December 2021), so much so that after his discharge from hospital on 22 December 2021 he spent another week in HIRC, before being moved to Safi Detention Centre Block [B, Zone 4] on an unknown date, around 30 December 2021. Moreover, in Safi Detention Centre, he had not been placed separately but together with the adults in his group, until at least mid-January 2022. 18 .     According to the applicant, the Block [B, Zone 4] in Safi Detention Centre was composed of three bedrooms, slightly bigger than the ones in China House. He shared his bedroom with seven other people. The Block did not have any common room, chairs, tables or praying room. The bedroom was composed of one window that could not be opened and the room was very dark. He had not been provided with any new outfit or sheets and had to take the ones he had from HIRC. The detainees had to wash their clothes in the same bucket that was provided to clean the floor. There had been no regime of activities nor any outside area. The phone could not place outgoing calls, so the applicant had to rely on people to call him. Detainees had to clean the premises themselves and had no access to drinkable water other than the tap. Again, NGOs were refused the opportunity to donate warm winter clothes on the basis that they had already been issued with tracksuits. 19.     In the meantime, on 13 January 2022, the applicant’s psycho-social age assessment was carried out, according to which he was an adult (see for details paragraph 53 below). The last stages 20 .     According to the applicant, on 30 January 2022 he was moved to a container with a Nigerian male from his group. The container only had one window and one door which was closed at all times. The applicant and his co-detainee had no access to any outdoor area and were kept inside the container all day, until mid-April, with limited light and ventilation. After mid-April his access to the outside was still limited as he would only be allowed half an hour alone in a fenced area . Most of the space in the container was occupied by the beds, the toilets and the shower and there was limited space to move around. The applicant indicated that he was suffocating inside and could not breathe properly, when it got too hot the guards refused to switch on the air-conditioner. While suffering the heat, he had to drink water from a rusty tap. He could not place calls freely and had to rely on people to call him in order to provide him with any information regarding his situation. The applicant claimed that he could not communicate with the guards or his co-detainee who only spoke French and there was no interpreter available. The Government disputed this description (see paragraph 101 below). 21.     According to the Government, it was on 2 February 2022 that the applicant was moved to a two-bedded unit with another alleged minor, who had been transferred to the Safi Detention Centre from the YOURS (Young Persons Offenders Unit) facility, since the other alleged minors who had been residing with the applicant had been confirmed as minors and moved out of the Safi Detention Centre. Eventually, the person that the applicant was sharing the unit with was also moved and, since the applicant remained the only alleged minor, he was accommodated on his own, separately from the adult asylum seekers. 22 .     In the meantime, on an unspecified date the applicant had applied for asylum and on 10 February 2022, the Principal Immigration Officer (hereinafter ‘PIO’) issued a detention order in that connection (see paragraph   40 below). 23.     According to the applicant he had been moved out of the container in around June 2022. It is unclear where he was moved to, the applicant submitting that the conditions were similar to those in Block B. The Government made no mention of a further change. 24.     On 6/7 July 2022, the applicant was released from Safi Detention Centre and was offered accommodation at the Ħal Far Open Centre. According to the applicant his release had been ordered on 28 June 2022. Medical treatment at the Safi Detention Centre Physical health 25 .     The applicant submitted that two days after he was moved to Safi Detention Centre, he no longer received his treatment (until 21 January 2022). 26 .     According to the Detention Service Treatment Chart (submitted by the Government), for the period January to June 2022 the applicant continued to receive four medicines a day which had been prescribed at the start of his TB diagnosis, throughout the entire period. 27 .     The applicant was seen by Dr M. of the Migrant Health Service (hereinafter ‘MHS’) on 26 January 2022, who found him asymptomatic and not feeling any side effects from the treatment that he was receiving. On that day, he was also provided with moisturizer to deal with dry skin over the legs and feet. He was seen again by Dr. M., on 26 February 2022, when the applicant was found in the container crying, the doctor noting a language barrier and the use of google translate, and that the applicant had asked to return home. On 14   March and 30 March 2022 the applicant refused his medical check-up. The applicant was examined again by Dr. M. on 22 April 2022, where (according to an unsigned report submitted to the Court) it was noted that his lodging remained an issue - since he was the only one contesting his age-assessment he effectively remained in isolation. When this was explained to him, he confirmed understanding the situation albeit this affected his mood. It was concluded that he was doing well from the ‘TB point of view’ and that there was ‘No evidence of psychosis or other mental health issue apart from a reactive low mood due to solitude’. The doctor recommended that the applicant start attending football sessions and that he be provided with reading materials in French. The applicant noted that on this occasion the doctor spoke to him using Google translate and did not ask him any questions related to his mental health. The applicant was examined again on 23 May 2022 by Dr R. and was found to be “withdrawn and depressed” but had no complaints. 28 .     The applicant was also monitored by the TB experts at Mater Dei Hospital. According to the documents provided, on 4 February 2022 the applicant was seen at the Chest Clinic and the doctor ordered that the applicant be seen again after two weeks with a copy of chest x-rays and blood test results. Two weeks later, on 18 February 2022, the applicant’s chest x ‑ rays had been carried out and the doctors found the applicant in a good, stable condition and not exhibiting symptoms. On that day, the doctor ordered that the applicant be seen again on 22 April 2022, once again having his chest x-ray and blood tests taken before the appointment. On 22 April 2022, the applicant was found well, however, having lost weight. The doctor ordered that the TB treatment be continued, and that his blood test and chest x-ray be repeated before the next appointment to be scheduled after two months. Mental health 29 .     On 3 February 2022, the applicant was seen for the first time by the Assistant Psychological Officer (hereinafter ‘APO’) of the Therapeutic Services Unit (hereinafter ‘TSU’). During that assessment, the applicant explained his history and background (his parents had passed away and he had not had the opportunity to go to school) and how he reached Malta (being detained and tortured in Libya). He looked tired, upset and had difficulty concentrating. In the report of 4 February 2022, the applicant was deemed to be suffering from Post-Traumatic Stress Disorder (hereinafter ‘PTSD’) and depression. According to the report, the applicant needed medical support as well as an improvement of his living conditions. 30.     According to the Government, on an unspecified date a social worker from the Agency for the Welfare of Asylum Seekers (hereinafter ‘AWAS’) was appointed to observe the applicant on a regular basis with the intent of ensuring his general wellbeing. On 30 March 2022, the social worker deemed it necessary to refer the applicant to the APO of the TSU. Thus, his case was re-opened, and the applicant was observed regularly until July 2022. 31 .     According to the applicant (and the documents provided), on 16   March 2022 the applicant’s representatives contacted his legal guardian and raised concerns about his mental health as this had drastically deteriorated. AWAS answered on 22 March 2022 that the applicant would be referred accordingly for his needs to be addressed. On 18 April 2022, the applicant’s representatives requested an update since the applicant complained that he had not seen anybody since mid-March 2022. On 22 May 2022 the applicant’s legal guardian replied that the applicant had seen the doctor from the MHS on 22 April 2022, who declared that there were no concerns on the applicant’s mental wellbeing (see paragraph 27 above); the applicant had nonetheless been referred to TSU to receive any counselling he may require. He was seen by the TSU in the week of 13 May 2022. 32.     On 18 May 2022 the applicant’s legal representative requested the report from the TSU to no avail. The request was reiterated on 8 June, 14 June and 28 June 2022. On 30 June 2022 AWAS forwarded a report dated 28 June from the TSU, which included details of the report of 4 February 2022 (see paragraph 29 above). 33 .     The report of 28 June 2022 referred to the previous diagnoses noting that the applicant was suffering from depression and hallucinations. According to the report, the applicant had stated that he had been alone in the container for about a month, without the opportunity of going out even for a short walk or to talk to someone. He thought a lot, even of suicide. In the reporter’s view, being detained in isolation worsened the applicant’s mental health, but he had improved when visited in June 2022 after he had moved out of isolation. Nevertheless, he still had symptoms which could be a sign of mental illness, he thus required medical attention and to be monitored by a psychiatrist. Proceedings before the Court of Magistrates ( habeas corpus ) 34 .     According to the applicant, while in detention, in view of the rules at the time regarding access by lawyers and organisations to the detention centre, he did not meet any person or organisation to provide him with support or information on his situation or any information as to organisations offering legal information and services. On 4 January 2022 Aditus foundation’s lawyers called the detention services and it was mentioned by one of the detainees that the applicant was a minor. On 6 January 2022 Aditus foundation’ lawyers requested to visit the applicant who they then met on 19   January 2022. During the visit, the applicant and other minors indicated that they still did not know why they were being detained and that they were not given any document on the matter. According to the applicant they were still being detained with adults except for one of them. 35 .     The applicant (via his representatives), all present in court, filed a writ of habeas corpus before the Court of Magistrates on 21 January 2022 against the PIO, which was rejected as the applicant had not been held under the authority of the PIO. 36.     On the same day (always via his representatives), all present in court, he filed another writ of habeas corpus before the Court of Magistrates, this time against the Superintendent, AWAS and the State Advocate. The applicant claimed that he was being detained unlawfully and thus asked for his immediate release. 37 .     The application was rejected by the Court of Magistrates on the same day, as it held that the applicant’s situation at the time did not amount to a deprivation of liberty, thus, the habeas corpus application under Article 409A of the Criminal Code was inapplicable to the applicant’s situation. It referred to Article 13 of Chapter 36 of the Laws of Malta (see paragraph 56 below), which did not empower the Superintendent to order a person’s detention. As to the applicant’s argument that the extension of restriction of movement from four weeks to ten weeks required authorisation and notification anew, the Court of Magistrates found that this was not so. While microbiological tests had already been carried out on the applicant and shown that he had TB, further tests were required to determine whether or not his already ‑ determined illness had been brought under control. For those reasons the Superintendent’s decision, based on her discretion, to extend the relevant period had been justified. 38.     The Court of Magistrates noted that the applicant was being allowed to live in the detention centre where he could be in touch with others of the group, and benefit from the necessary medical treatment. At the hearing, AWAS had explained that residing in an open centre would not have been an adequate solution to respect the Superintendent’s decision, thus the restriction of movement had to be undertaken in a detention centre. The Court of Magistrates considered the provisions of Article 29 of Chapter 465 of the Laws of Malta (see paragraph 58 below), as well as the Superintendent’s argument that if the measures in question were not taken for the applicant’s own benefit, there was a real risk of death and that the illness would be spread in the community. Thus, even assuming that Article 409A of the Criminal Code applied, the restriction on his movement was justified and the relevant time limit of ten weeks would only expire on 18 February 2022. Asylum procedure 39.     In the meantime, on an unspecified date the applicant applied for asylum. At one point the applicant had voluntarily requested to return to the Ivory Coast (see paragraph 27 above) however, the declaration signed by him was put aside once it was confirmed that the applicant wished to continue to pursue his application for international protection in Malta. The applicant’s claims for international protection were rejected and he was notified of this on 27 June 2022. An appeal before the International Protection Appeals Tribunal (hereinafter ‘IPAT’) is still pending. Proceedings before the Immigration Appeals Board (IAB) 40 .     Once the applicant applied for asylum, on 10 February 2022, the PIO issued a detention order against him (as noted in paragraph 22 above) on the grounds that detention was necessary for the determination of the applicant’s identity/nationality and on the basis that the applicant’s claims for international protection could not be determined in the absence of detention, since the risk of absconding was high (see the Reception of Asylum Seekers Regulations, S.L. 420.06 of the Laws of Malta, at paragraph 62 below, hereinafter ‘S.L. 420.06’). The detention order, notified to the applicant’s representative on the same day, was appealed against on 14 February 2022. 41 .     At the hearing of 17 February 2022, the PIO representative explained that the applicant was being treated as an asylum seeker, but that his application for international protection was pending the determination of his age assessment. He confirmed that the applicant was being kept separate from adults, since he claimed to be a minor and, at the time, was being accommodated with another minor. According to the Government, both parties made their submissions, and the detention was deemed lawful. According to the applicant, the IAB had only listened shortly to his complaints, namely, that his detention was unlawful from the outset, since he was a minor, and that it was arbitrary as it had been solely based on his nationality (since only asylum seekers coming from countries where removals were carried out were detained), without any individual assessment. Moreover, the conditions of his detention were problematic. After ten minutes, the IAB stopped the pleas and decided to deliberate. The Chairperson left the room after requesting the applicant to show his face (as he was wearing a mask due to COVID-19 measures). After a few minutes of deliberation, the IAB delivered its decision that the detention was legal without providing any reasoning whatsoever and issued a stereotypical decision similar to most cases. 42.     Alternatives to detention were also requested at the hearing, however, the IAB left full discretion to the PIO to implement these or not. The PIO later refused such alternatives stating that there would be a review of the detention in the future where the request would be considered. On 21 March 2022, the request for alternatives to detention was reiterated to the PIO. However, the PIO did not reply. 43.     Another hearing was held before the IAB two months later, and then again two months after that (April and June 2022) in terms of Regulation 6(4) of S.L. 420.06 (see paragraph 62 below). 44.     At the hearing of 21 April 2022, the applicant insisted that being kept alone in a container was detrimental to his mental health and that the PIO had not replied to his request for alternatives to detention. Given the controversy about his age, the PIO explained that he wished to await the outcome of the age assessment appeal. The IAB thus adjourned the case to 23 June (four months after he initially made his request). 45.     At the hearing of 23 June 2022, the applicant presented written submissions whereby he considered detention to have ceased to be lawful since he had provided all elements necessary to determine his application for international protection (an interview related to his asylum application had also taken place on 9 June 2022). The PIO was not present, so the decision was postponed until the PIO had the occasion to reply to the written submissions. The following day the PIO informed the IAB that he had requested an update from the International Protection Agency, and that if there was no decision issued as of Monday 27 June, the applicant would be released under alternatives to detention. 46.     On 27 June 2022 the applicant was notified of the rejection of his asylum claim by the International Protection Agency and informed that he had fifteen days to appeal. The applicant’s representative was not informed of the decision and the applicant had no means to communicate with him. 47 .     On the morning of 28 June 2022, the PIO issued the applicant with a Removal Order and a Return Decision (hereinafter ‘RODO’), despite the deadline for his asylum appeal still running. According to the Government the applicant had informed the PIO that he would not appeal. After learning of the decision via the applicant, the applicant’s representative immediately appealed the removal decision. As a result, the applicant’s representative was informed that the RODO was to be suspended and replaced with a detention order, and that the PIO was in process of releasing the applicant under alternatives to detention. 48.     On 6/7 July 2022, the applicant was released from the detention centre under alternatives to detention, some eleven days after he was officially released by the PIO on 28 June 2022. According to the applicant this delay was allegedly justified as necessary to ensure the applicant was medically cleared, and it is understood that the applicant was falling under the responsibility of the Superintendent during this eleven-day period. Age Assessment 49.     The applicant claimed that he arrived in Malta as a minor, born on 4   September 2004, meaning that he would turn eighteen on 4 September 2022. 50.     As mentioned at paragraph 16 above, on 6 December 2021, on the request of the Director of the Child Protection Department, a provisional order had been issued by the Juvenile Court in favour of the applicant. It ordered, inter alia , that his temporary care and custody be vested in the CEO of AWAS; that he be placed in accommodation adapted for minors and not with adults; and that Ms LBB be appointed as his representative (guardian). The applicant did not participate in this process and was not informed of such decision, nor was he aware of the name of his legal guardian. 51 .     Subsequently, the age assessment process took place on 13 January 2022, including an interview and an examination, as a result of which the applicant was considered to be an adult. The applicant underwent his age assessment procedure without any legal assistance and in the absence of his legal guardian, but in the presence of an interpreter. The three social workers found the applicant’s narrative to be consistent, they all noted that the applicant was very careful in the way he answered questions concerning his age and was seen counting on his fingers. That, together with the applicant’s physical appearance (including build, facial hair and demeanour) clearly indicated that he was, in fact, an adult. 52.     By a decision of 20 January 2022, he was deemed to be nineteen years of age, born on 1 January 2003. 53 .     The applicant was informed of this decision on the same day and although no age assessment appeal was ever successful, for the years 2021 and 2022, the applicant nonetheless appealed his decision on 21 January 2022. On 3 March 2022, a hearing was held before the IAB, as composed at the hearings held on 17 February 2022 (see paragraph 41 above). The applicant’s lawyers requested to interview the social worker in charge of the initial assessment and the IAB decided to set this for 30 March 2022. On 2   June 2022 the appeal was rejected in two sentences, the IAB confirming the AWAS decision. No reasons were given in reply to the applicant’s arguments set out in his ten-page appeal. RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAW The Criminal Code 54.     The relevant provisions of the Criminal Code, Chapter 9 of the Laws of Malta, and its subsidiary legislation, read as follows: Section 409A “(1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application, access by electronic means to the scanned record of the proceedings, including a scanned copy of the court’s decision, shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two (2) working days from receipt of the access by electronic means of the scanned record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody.” Section 244A “(1) Any person who, knowing that he suffers from, or is afflicted by, any disease or condition as may be specified in accordance with sub-article (3), in any manner knowingly transmits, communicates or passes on such disease or condition to any other person not otherwise suffering from it or afflicted by it, shall, on conviction, be liable to imprisonment for a term from four year to nine years: Provided that where the other person dies as a result of such disease or condition, the offender shall be liable to the punishment established in article 211(1). (2) Where any such disease or condition as is referred to in sub-article (1) is transmitted, communicated or passed on through imprudence, carelessness or through non-observance of any regulation by the person who knew or should have known that he suffers there from or is afflicted thereby that person shall on conviction be liable to imprisonment for a term not exceeding six months or to a fine (multa) not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (€2,329.37): Provided that where the other person dies as a result of such disease or condition, the offender shall be liable to the punishments established in article 225. (3) The Minister responsible for justice shall, by notice in the Gazette, specify diseases or conditions to which this article applies.” 55.     Regulation 2 of the Communicable Disease and Conditions Regulations, Subsidiary Legislation (S.L.) 9.10 of the Laws of Malta, reads as follows. “The following diseases or conditions are specified as diseases or conditions to which article 244A of the Criminal Code applies: ... (e) Tuberculosis.” The Prevention of Disease Ordinance 56 .     In so far as relevant the provisions of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta (hereinafter ‘the Ordinance’), and its subsidiary legislation read as follows: Article 7 “Every medical practitioner attending on or called in to visit the patient shall forthwith, on becoming aware that the patient is suffering from a disease to which this Part of the Ordinance applies, send to the Superintendent a certificate stating the name, age and address of the patient, and the disease from which, in the opinion of such medical practitioner, the patient is suffering.” Article 13 “(1) Where the Superintendent has reason to suspect that a person may spread disease he may, by order, restrict the movements of such person or suspend him from attending to his work for a period not exceeding four weeks, which period may be extended up to ten weeks for the purpose of finalising such microbiological tests as may be necessary. (2) Any person who acts in contravention of the provisions of this article shall be guilty of an offence against this Ordinance.” Article 25 “(1) Any person suffering from a disease who is without proper lodging or accommodation or is in or upon any house or premises where proper precautions cannot be taken so as to prevent the spread of disease, or is lodged in any tent or van or in a room or house occupied by other persons besides those whose presence is necessary for attending on the patient, or is on board any ship, may on a certificate signed by two of the medical officers mentioned in article 16, be removed, by order of a magistrate, on the application of the Superintendent and at the cost of the Government, to any hospital for infectious diseases in Malta where the patient is and detained therein at the expense of the Government, so long as infected. (2) No such order shall be necessary where the removal is effected with the consent of the patient or his parents or tutor. (3) The order referred to in subarticle (1) shall be addressed, in Malta, to the Commissioner of Police and, in Gozo, to the senior Police officer. (4) Any person who shall obstruct the execution of any order made by any magistrate as aforesaid, shall be guilty of an offence under this Ordinance.” Article 26 “(1) Where, upon the application of any of the medical officers mentioned in article 16, any magistrate is satisfied that a person suffering from a disease, who is in a hospital, would not on leaving such hospital be provided with lodging or accommodation in which proper precautions could be taken to prevent the spreading of the disease by such person, such magistrate may make an order directing the said person to be detained in such hospital, at the cost of the Government, for a time to be fixed in such order, but with full power to such magistrate to enlarge such time as often as may appear to him to be necessary for preventing the spread of the disease. (2) Th