European Court of Human Rights hands down judgment in two Article 3 detention cases

The European Court of Human Rights recently handed down judgment in two cases considering alleged breaches of Article 3 of the European Convention on Human Rights (“ECHR”) in the context of detention.

JB & Ors v Malta (1766/23)

This case concerned asylum-seeking children aged 16 or 17 who, after been rescued at sea, were brought to Malta where they were detained for several months. There were numerous serious issues with their detention:

i) They were not provided with any documentation or explanation justifying their detention;

ii) They were detained with adults in very small rooms;

iii) There were insufficient sanitation facilities;

iv) There was no access to outside space;

v) There was no access to prayer rooms or private space;

vi) There was limited access to telephone calls;

vii) There was no heating or warm clothes;

viii) There was limited to no access to drinkable water;

ix) There were no games or books; and

x) There was a lack of adequate of medical and psychosocial support.

The applicants claimed that, whilst detained, they were subjected to threats, violence and harassment by other detainees and detention officials.

The Court found a breach of Article 3 ECHR, observing that:

i) Despite being children, they were held with adults for around two months.

ii) While there was insufficient evidence to support the allegations of overcrowding, there were other serious issues as claimed.

iii) Given their age, the length of detention, their vulnerability as minors, and the effects of detention on their mental health, the conditions of detention amounted to inhuman and degrading treatment.

However, the Court did not find the JB’s Article 3 rights were violated as he had not claimed to be a minor at the time and, prior to the provision of medical evidence, had not been more vulnerable than any other adult.

The Court also found a breach of Article 13 in conjunction with Article 3, drawing on its own findings, in previous cases against Malta, that the constitutional redress proceedings relied upon by the government were not an effective remedy for the purposes of complaints regarding detention conditions, essentially due to the length of time they were likely to take.

Finally, the Court found breaches of Article 5(1) in relation to all applicants except JB. The Court held that:

1. They were detained in a “legal vacuum”, whereby they were not told why, or for how long, or on what legal basis they had been detained. They had no access to legal safeguards during their detention.
2. The need to detain children under immigration powers must be very carefully considered by national authorities. There was reason to doubt the authorities’ good faith in light of the fact it took them six months to determine the applicants’ ages.
3. The authorities had failed to deal with the applicants’ requests for release from detention.

Regarding Article 5(4), the remedy for reviewing detention was ineffective, in particular due to an apparent lack of independence and impartiality on the part of the Immigration Appeals Tribunal, which had close links with the executive.

Lavorgna v Italy (8436/21)

In this case, the Court held that there had been a breach of Article 3 ECHR regarding the treatment the applicant had received in a psychiatric ward. He had been strapped down and given sedatives after behaving aggressively.

The applicant was kept sedated and restrained with ankle and wrist straps for almost eight days. While the Court was satisfied that the initial ordering of restraint measures was necessary to prevent Mr Lavorgna harming himself or otherwise, the State had failed to show that the continued restraint was strictly necessary. The State’s reliance on potential danger was insufficient and such precautionary measures were inappropriate.

Such restraint should have been used as a last resort, especially as hospital protocols state that other measures should have been used first. The long period of restraint had not been shown to have been strictly necessary.

The State authorities had also failed to carry out an effective investigation as required under the procedural limb of Article 3. In particular, there was no evidence that meaningful investigative steps had been carried out, there were significant delays, and they authorities failed to engage with Mr Lavorgna’s submissions.

Comment

These two cases provide a striking contrast. It is somewhat surprising that the Court considered that the detention conditions for JB did not disclose a breach of Article 3 ECHR, having broadly accepted the applicants’ contentions about the issues with the conditions of detention. Issues such as 24-hour detention inadequate warm clothing, lack of access to sanitation and drinkable water, and lack of heating are plainly capable of demonstrating an Article 3 breach even in the case of healthy adults, especially when the cumulative effect of those conditions is considered (Neshkov v Bulgaria, 36925/10, §229). While it awaits to be seen whether the case will be pursued further in the Grand Chamber, the contrast with Lavorgna suggests that the Court’s focus remains primarily upon the physical effects of inhuman and degrading treatment, taking a slightly less strict approach where vulnerability or physical injury has not been established.

Readers may like to compare these judgments to the recent first-instance decision in R (TMX) v London Borough of Croydon & Anor [2024] EWHC 129 Admin. In that case, the Administrative Court found that conditions faced by a severely disabled accommodation user which rendered him effectively bed bound and unable to undertake toileting in privacy breached Article 3 ECHR. Consistent with what we have seen above from Strasbourg, that judgment focused on the physical effect as well as the indignity of TMX’s situation as well as his vulnerability.

This blog was written by Miranda Butler.