Last Updated on March 11, 2021 by LawEuro
Information Note on the Court’s case-law 249
March 2021
Feilazoo v. Malta – 6865/19
Judgment 11.3.2021 [Section I]
Article 3
Degrading treatment
Inadequate conditions of immigration detention, given excessive de facto isolation and unnecessary placement with new arrivals in Covid-19 quarantine: violation
Article 34
Hinder the exercise of the right of application
Interference with Court-applicant correspondence and ineffective legal representation through legal aid system for Court proceedings: violation
Facts – The applicant, a Nigerian national, was placed in immigration detention pending deportation. His detention lasted for around fourteen months.
The applicant complained, inter alia, of the conditions of his detention. In relation to the proceedings before the Court, he alleged that he had not had the opportunity to correspond with the Court without interference by the prison authorities, and had been denied access to materials intended to substantiate his application.
Law
Article 3 – Conditions of detention
The Court was particularly struck by the fact that the applicant had been held alone in a container for nearly seventy-five days without access to natural light or air, and that during the first forty days he had had no opportunity to exercise. Furthermore, during that period, and particularly the first forty days, the applicant had been subjected to a de facto isolation. The applicant had been put in isolation for his own protection, upon his request. However, the stringency and duration of the measure put in place, namely, that for at least forty days the applicant had had barely any contact with anyone, seemed excessive in the circumstances. No measures appeared to have been taken by the authorities to ensure that the applicant’s physical and psychological condition had allowed him to remain in isolation, nor did it appear that, in the specific circumstances of the case, any other alternatives to that isolation had been envisaged.
Furthermore, following that period, the applicant had been moved to other living quarters where new arrivals (of asylum seekers) had been kept in Covid-19 quarantine. There was not indication that the applicant had been in need of such quarantine – particularly after an isolation period which had lasted for nearly seven weeks. Thus, placing him, for several weeks, with other persons who could have posed a risk to his health, in the absence of any relevant consideration to that effect, could not be considered as a measure complying with basic sanitary requirements.
Conclusion: violation (unanimously).
Article 34
(a) Correspondence with the Court
The authorities had failed to ensure that the applicant had been provided with the possibility of obtaining copies of documents which he had needed to substantiate his application, and his correspondence concerning the case before the Court had not been dealt with under confidential cover. Information relating to ongoing proceedings before the Court being openly relayed via third persons, which moreover could be the subject of such complaints, might create a risk of reprisal. In that connection, while domestic law provided for the possibility of domestic complaints being made in confidence, no such safeguard appeared to apply concerning complaints and subsequent communication with international bodies.
In the circumstances of the case, the authorities’ failures had amounted to an unjustified interference with the right of individual petition.
(b) Domestic legal aid representation
The Court had regard to its case-law under Article 6: in discharging the obligation to provide parties to civil proceedings with legal aid, when provided by domestic law, the State had to display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (Staroszczyk v. Poland, 59519/00, 22 March 2007; Siałkowska v. Poland, 8932/05, 22 March 2007; and Bąkowska v. Poland, 33539/02, 12 January 2010).
In the present case, after notice of a number of complaints had been given to the Government, a lawyer had been required for the purposes of the proceedings before the Court and at that stage legal aid had been granted to the applicant and a local legal aid lawyer had been appointed by the domestic courts. However, that grant had not been enough to safeguard the applicant’s right to individual petition in a “concrete and effective manner”. The Court left open the issue of the quality of the advice given to the applicant or whether pressure had been exerted on him to drop his case. The applicant’s local legal aid representative had failed to keep regular confidential client-lawyer contact and had abandoned her mandate without informing the applicant (and/or Court) and without obtaining the revocation of her appointment by the domestic courts. As a result, contrary to her duty, she had failed to make submissions on behalf of the applicant when requested, which could have irremediably prejudiced the applicant’s case. The Government had been informed of the foregoing, yet no steps had been taken by any State authority to improve the situation.
The situation, as developed over time, had led the President of the Chamber to take appropriate action to safeguard the applicant’s right of individual petition. Nevertheless, the behaviour of the legal representative and the lack of any action by the State authorities had led to the prolongation of the proceedings before the Court, despite the fact that the case had been given priority. In the circumstances, those failings had amounted to ineffective representation in special circumstances which incurred the State’s liability under the Convention.
The applicant had persistently pursued his case and contacted the relevant authorities to obtain pertinent information or to make further complaints, to no avail. In the absence of any relevant contact he had informed the Court about the continuing situation. He had therefore showed the required diligence by following his case conscientiously and attempting to maintain effective contact with his nominated representatives, despite the difficulties faced while in detention.
In light of the above, the applicant had been put in a position in which his efforts to exercise his right to individual petition before the Court by way of legal representation appointed under the domestic legal aid system had failed, as a result of the State’s hindrance.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 5 § 1, as the grounds for the applicant’s detention (action taken with a view to his deportation) had not remained valid for the whole period of his deprivation of liberty, and his detention had therefore been unlawful.
Article 41: EUR 25,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Anghel v. Italy, 5968/09, 25 June 2013)
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