Last Updated on April 28, 2019 by LawEuro
Information Note on the Court’s case-law 228
April 2019
Aboya Boa Jean v. Malta – 62676/16
Judgment 2.4.2019 [Section III]
Article 5
Article 5-4
Speediness of review
Automatic review of immigration detention not held within seven working days as required by domestic law: no violation
Facts – The applicant had been held in immigration detention awaiting examination of his asylum application. Under Maltese law an automatic review of the lawfulness of immigration detention had to take place within seven working days of the individual’s placement in detention, following which the detention could be extended. In the applicant’s case, and contrary to the domestic law, such review was only carried out after a period of twenty-five days had expired.
Law – Article 5 § 4: The forms of judicial review satisfying the requirements of Article 5 § 4 might vary from one domain to another, and would depend on the type of deprivation of liberty in issue.
It was not excluded that a system of automatic periodic review of the lawfulness of detention by a court might ensure compliance with the requirements of Article 5 § 4. However, long intervals in the context of automatic periodic review might give rise to a violation of Article 5 § 4. The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review varied from one domain to another, depending on the type of deprivation of liberty in issue.
In the context of detention pending deportation or extradition, the factors affecting the lawfulness of detention might change over the course of time. Therefore shorter intervals between reviews were necessary for detention pending deportation or extradition as compared to detention after conviction by a competent court or detention of persons of unsound mind. Indeed, the factors affecting the lawfulness of detention were likely to evolve faster in situations where the proceedings were continuing than in situations where the proceedings had been closed after the establishment of all relevant circumstances.
At the same time, given the limited scope of the review of the lawfulness of detention required under Article 5 § 4 in extradition cases – which did not extend, for example, to the questions whether the detention was “necessary” for the prevention of crime or fleeing –, the review did not need be as frequent as in cases of deprivation of liberty under Article 5 § 1 (c). Thus, the Court had, for example, found that intervals between periodic reviews of detention ranging from two to four months had been compatible with the requirements of Article 5 § 4. However, it was not the Court’s task to attempt to rule as to the maximum period of time between reviews which should automatically apply to a certain category of detainees. The question of whether periods complied with the requirement had to be determined in the light of the circumstances of each case.
The applicant had been detained on 10 September 2016 and he had appeared before the Board on 30 September 2016. His first review was meant to have taken place automatically within seven working days, that was, at the latest on 20 September. However, on 20 September no review had taken place as a Board member had been abroad. As allowed by law (Regulation 6(3) of the Reception Regulations), the Board could have extended the period by another seven working days. Given that the 21 September was a public holiday, i.e. a non-working day, the next review was to be held by the latest 30 September – the date on which the Board had actually convened. When the Board had reconvened on 30 September they were still within the maximum domestic time-limit. On that day, given that one of the applicant’s lawyers of choice had been abroad, the case had been put off to 5 October 2016. On the latter date the Board had explained to the applicant why it had not been able to comply with the deadline provided by law for his first review; it had considered his situation and given reasons for its decision to continue the applicant’s detention.
Thus, the procedural irregularity in the case was that the applicant had not had an automatic review within the first seven working days and that the period for review had not been properly extended. Nevertheless, the hearing had taken place within the maximum time-limit provided by law and it had only been adjourned because one of the applicant’s lawyers of choice had been abroad.
While under Article 5 § 1 detention which was not compliant with domestic law induced a violation of that provision, a breach of time-limits for automatic reviews established in law did not necessarily amount to a violation of Article 5 § 4, if the proceedings by which the lawfulness of an applicant’s detention were examined had nonetheless been decided speedily. In the applicant’s case, despite certain irregularities the time which had elapsed until his first review could not be considered unreasonable.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 5 § 1, finding that the applicant’s detention had been closely connected to the ground of detention relied on by the Government and the length of detention could not have been considered unreasonable.
(See also Abdulkhakov v. Russia, 14743/11, 2 October 2012, Information Note 156)
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