Feilazoo v. Malta (Application no. 6865/19)

A selection of key paragraphs can be found below the judgment.

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 

89. However, without delving further into the above claims, the Court is struck particularly by the fact that the applicant was held alone in a container for nearly seventy-five days (29 April to 13 July 2020) without any access to natural light or air, and that during the first forty days (29 April to 8 June) he had had no opportunity to exercise (see paragraph 73 above). The Government disputed the statement claiming that the applicant was put alone in a “room” with some furniture and later returned to “the compound” and that during this time he was allowed to walk outside at appropriate times (see paragraph 79 above). However, the Government did not give any explanation as to the location or structure of the “room”, which appears to have been away from Block B (the compound), nor do they provide any photographic evidence, or any details as to the situation during that period. In particular, they have not claimed that the “room” had natural light or ventilation, nor did they give specific details as to the outdoor exercise allowed during this period. Indeed, bearing in mind the use of home-containers in the context of open centres (see paragraph 39 above) and the specific statements of the applicant with reference to exactdates as to when this went on and in what circumstances (see, a contrario, Podeschi v. San Marino, no. 66357/14, § 112, 13 April 2017), the Court finds it reasonable to give credence to the applicant’s version of events. 

90. The Court considers that while of itself accommodation in a container may not amount to inhuman and degrading treatment, the limited light and ventilation complained of in the present case during this period are of concern. Such conditions of confinement must have been exacerbated by the limited, if any, exercise time during the first forty days. In this connection the Court notes that the applicant claimed that his access to a phone was limited, meaning that he could in fact use a phone at times (which was certainly not in the room), therefore the Court does not discern the discrepancy referred to by the Government in the applicant’s statements. In that regard, the Court reiterates that no access to open air and exercise is a factor carrying considerable weight when coupled with the other conditions (see Aden Ahmed, cited above, § 96, and the examples cited therein). As regards the suffering from heat in the container raised by the applicant, the Court reiterates that suffering from cold and heat cannot be underestimated, as such conditions may affect well-being and may in extreme circumstances affect health (see Aden Ahmed, cited above, § 94).

91. Furthermore, during these seventy-five days in which he was held in a container (see paragraph 89 above), but especially during the first forty days of this period, during which he was not even allowed out to exercise, the applicant was subjected to a de facto isolation although not a de jure one. Nevertheless, the same general principles remain relevant (see Podeschi, cited above, §§ 109 and 116), namely, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. In that connection the length of the period in question requires careful examination by the Court as to its justification, the need for the measures taken and their proportionality with regard to other possible restrictions, the guarantees offered to the applicant to avoid arbitrariness and the measures taken by the authorities to satisfy themselves that the applicant’s physical and psychological condition allowed him to remain in isolation (ibid. and Ramirez Sanchez v. France [GC], no. 59450/00, § 136, ECHR 2006‑IX). It is not disputed that the applicant was put in isolation for his own protection, upon his own request. However, the stringency and duration of the measure put in place, namely, that for at least forty days the applicant had barely any contact with anyone (except for the guards and the possibility of a few phone calls), seem excessive in the circumstances. No measures appear to have been taken by the authorities to ensure that the applicant’s physical and psychological condition allowed him to remain in isolation, nor does it appear that in the specific circumstances of this case, any other alternatives to this isolation had been envisaged.

92. Furthermore, the Court is concerned about the assertion, not rebutted by the Government, that following this period the applicant was moved to other living quarters where new arrivals (of asylum seekers) were being kept in Covid-19 quarantine. The Court notes that there is no indication that the applicant was in need of such quarantine – particularly after an isolation period – which moreover lasted for nearly seven weeks. Thus, the measure of 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 this effect, cannot be considered as a measure complying with basic sanitary requirements.

93. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 in the present case.