The European Court of Human Rights has found Malta responsible for breaching the rights of a 23-year-old Bangladeshi journalist whose asylum request was rejected without assessment of his claim regarding the risk he would face if returned to his homeland. 

The youth, named only as S.H, was forced to flee Bangladesh after covering the 2018 general elections and reporting about electoral irregularities taking place. 

His reports about corruption and fraud committed by the Awami League (the governing party) marked the highlight of his career as a journalist working for a popular TV news channel but triggered the anger of the governing party. 

Party supporters attacked him while he took pictures of the events and after their victory, his home was vandalised and he received death threats. 

He had little choice but to flee his homeland, doing so in February 2019. 

In September that year, the then 20-year-old migrant arrived in Malta by boat and was immediately placed in detention. 

Attempt to seek international protection fails

His attempt to seek international protection failed. 

Although not legally assisted, he managed to file an asylum application, submitting extensive documentation which included some 40 pictures, his press cards, photos of himself receiving journalistic prizes and awards, as well as his published newspaper articles. 

In May 2020, he was summoned to a personal interview during which he was assisted by an interpreter but no lawyer. 

His application was handled speedily, through an “accelerated procedure” since Bangladesh was considered to be a “safe country” and his request was rejected.

Throughout that period, detained asylum seekers such as the applicant faced increased difficulty to access any form of support, including legal services, because of tightened restrictions brought about following the outbreak of the COVID-19 pandemic. 

It was only late in the asylum process, in October 2020, that the applicant finally managed to reach out to a lawyer. 

The Refugee Commissioner rejected the applicant’s claim as manifestly unfounded, stating that the youth had made “clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country of origin information”.

That same day the case was passed on to the Tribunal which issued its decision within 24 hours, confirming the refusal. 

On December 13, 2020, the applicant was released from detention since he had exceeded the nine-month period of detention envisaged by law. 

But his release was short-lived. 

Three days later, he landed back in detention on the strength of a removal order issued by the principal immigration officer. 

The final decision on his asylum request was issued in May 2021 but the applicant refused to sign it since he did not understand its content and his request to contact his lawyer repeatedly failed. 

While his case continued before the Immigration Appeals Board, the applicant applied for and obtained an interim measure before the ECtHR, staying his removal from Malta back to his homeland.

Challenges to prolonged detention rejected

Various challenges to his prolonged detention were rejected on the basis that his removal was imminent. 

When delivering judgment on Tuesday, the ECtHR (Second Section), composed of seven judges including Madam Justice Lorraine Schembri Orland, held that the applicant had suffered a breach of his right to protection against torture or inhuman or degrading treatment or punishment. 

His right to an effective remedy, even when such violation was done by persons acting in an official capacity, was also breached. 

The court observed that the applicant did not have the benefit of legal assistance all throughout the process until a few days before the first decision of refusal.

The considerations behind that refusal, as explained in the assessment report, were “disconcerting”.

The 23-year-old applicant, whose journalistic studies had consisted of two brief training spells, was expected to cite the titles of relevant laws and narrate election irregularities which he had not witnessed.

His replies about his own articles were considered insufficient. 

Given that the applicant was not represented by a lawyer and was in detention in the preceding months, “it stands to reason that his answers had not been more prepared, nor excessively technical…”.

Documents not taken into account

Documents he produced were not taken into account and no reason for that was given.

Moreover, the applicant claimed that his mobile phone was held at the Marsa reception centre, making it impossible for the authorities to communicate notification of the Tribunal’s decision. 

“The Court reiterates that for an asylum process to be effective, asylum seekers must have a reliable communication system with the authorities. The latter was clearly deficient in the present case.”

When all was considered, the court held that the applicant’s rights had been breached and ordered the State to pay €5,000 in non-pecuniary damages and a further €2,000 in costs and expenses, within three months from final judgment. 

Moreover, the court held that returning the applicant to Bangladesh - considered by ministerial order as a "safe country" - without a fresh assessment of his claims, would place him at risk of further breach of his rights. 

The court indicated to the government that in terms of the rules of court it was desirable in the interests of the proper conduct of proceedings "not to expel the applicant until such time as the present judgment becomes final or until further notice".

Neil Falzon and lawyers at Aditus Foundation assisted the applicant. 

In a statement, Aditus described the decision as "extremely significant". It said it opened the doors for hundreds of other cases and "raises several red flags" about Malta's treatment of asylum seekers.

"This is a welcome judgment that we hope will lead to urgently needed reforms," it said.