The European Court of Human Rights recently invoked a rarely observed rule in order to block the deportation of a Ghanaian man from Malta – until a case he filed before it has been decided.
But shortly after the ECHR decision, Malta’s refusal to release him from detention while the case is pending forced the man to accept being deported and he left the island over the weekend.
Under Rule 39, the European court may impose interim measures, which, according to its practice, apply where there is an imminent risk of irreparable harm.
These measures are imposed without prejudging the admissibility or merits of the case in question.
In the majority of cases, the applicant requests the suspension of an expulsion or an extradition. In this case, the rule was invoked in the case of S.O. – a Ghanaian national – filed in an attempt to stop his deportation from Malta until his case before the Maltese Constitutional Court has been decided.
S.O. argued that he could face torture or inhumane treatment if he was sent back to his home country.
He explained to the court that he had witnessed the murder of a soldier during a fight in 2000 and he was now being blamed for the matter. He said he feared retribution in Ghana.
Asylum application rejected the same day he was interviewed
The court noted, however, that no evidence of this had been brought before it.
The man arrived legally in Malta in 2009. He was eventually detained on suspicion of drug trafficking and was later found guilty and imprisoned.
He served time in jail until the end of 2017, when he was sent to military barracks awaiting his deportation. He applied for asylum but his application was rejected on the same day he was interviewed.
He then instituted constitutional proceedings in court to avoid deportation and to be released from detention pending the decision, but this was refused.
Through his lawyer, Kirk Brincau, the man made a request before the ECHR for the invocation of Rule 39, arguing primarily the failure of the State to consider the substance of claims prior to deportation.
The European court stated that S.O. should not be deported pending its decision but did not accept his request to be released from detention.
He also filed an application before the Immigration Appeals Board to be released from detention. However, this was refused for reasons of public order, due to his previous criminal conviction.
Faced with the prospect of another 10 to 12 months in detention, the maximum prescribed by Maltese law being 18 months, the man last week accepted his deportation and left Malta over the weekend.
Before the Constitutional Court, the man’s lawyer argued that the accelerated procedure for asylum in Malta did not always allow for a proper examination of a claim, as the matter had to be decided by the Refugee Commissioner within three working days and was then reviewed solely by the chairman of the Refugee Appeals Board. Under the regular procedure, the decision should be reviewed by a board of four people.
Dr Brincau contended that though Maltese law on the matter was based on EU Directives, he felt the transposition was not correct, as the procedure itself was not in conformity with human rights standards.
When contacted, Dr Brincau explained that although his client had left Malta, the case would continue to be argued in the European Court of Human Rights, since proceedings before the Maltese courts would be dropped.