Malta: joint third party intervention on detention of a migrant child
The International Commission of Jurists (ICJ), European Council for Refugees and Exiles (ECRE), the AIRE Centre and the Global Campus of human rights have submitted a joint third party intervention before the European Court of Human Rights in the case of a A.D. v Malta, concerning the detention of a child seeking asylum in Malta.
A.D., from Ivory Coast, reached Malta by boat in 2021, claimed he was a minor and expressed a wish to apply for asylum. He was detained for most of the time since then, including for reasons of protection of public health.
In their third party intervention, the ICJ, ECRE, AIRE Centre and the Global Campus analyze international and EU standards on deprivation of liberty, age assessment, access to effective judicial review and the right to an effective remedy under Articles 5 and 13 of the European Convention of Human Rights (ECHR).
The intervention analyzes lawfulness of detention under Article 5.1, deprivation of liberty of migrant children, guarantees under Article 5.4 and effective remedies and procedural guarantees against detention under Article 13 ECHR. The interveners submitted:
- To meet the standards of Article 5 ECHR, detention must comply with the requirements of legality, be free from arbitrariness and comply with a provision prescribed by law both substantively and in procedure. Detention, which is a measure of last resort, may be imposed if following an individualised and thorough examination it is concluded that less severe measures cannot be applied effectively.
- Detention under Article 5 (1) ECHR will be unlawful and arbitrary where it lacks a clear and accessible legal basis, clearly setting forth the permissible grounds of detention as well as the relevant procedural guarantees and remedies available to detainees, including judicial review and access to legal advice and assistance. In light of the obligations of Contracting Parties under European Union (EU) law and international law, the interveners submit that detention of non-national children or those individuals undergoing an age assessment will result in a breach of the Convention obligations, especially where it is not used as a measure of last resort, but rather is imposed without a thorough consideration of less onerous alternative measures and where the child’s best interests assessment has not been carried out and reflected in this decision. where it is not used as a measure of last resort, but rather is imposed without a thorough consideration of less onerous alternative measures and where the child’s best interests assessment has not been carried out and reflected in this decision.
- Accessible and effective judicial review in accordance with Article 5 (4) ECHR is an essential safeguard against arbitrary detention and access to legal aid and advice should be taken into consideration in this regard. Contracting Parties bound by EU law should comply with their relevant obligations particularly under the Reception Conditions Directive which provides that applicants may only be detained for as short a period as possible and should have access to a speedy, judicial review of the lawfulness of their detention.
- Finally, applicants must have access to an effective remedy in accordance with Article 13 ECHR, which meets the requirements of effectiveness in law and in practice. Where vulnerable applicants are concerned, remedies must be exercised with special diligence and speediness in light inter alia with international and EU standards providing for effective remedies.
Read the full intervention text here.
Contact: Karolína Babická, Legal Adviser, email@example.com