17 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA Rights, severely reprimanding Malta for violating, primarily, Article 5(1)(f).69 Furthermore, given that an aspect of the detention regime is premised on the return of prohibited immigrants and that it is almost impossible to return a stateless person to his country of residence or to the country of origin,70 it would be correct to conclude that this form of detention of stateless persons is not only in violation of the ECHR, but also of EU law, particularly the Return Directive. In fact, it is pertinent to refer to the above-described automatic review process introduced in 2014 following a more correct transposition of the Directive, resulting in an assessment of the returnability of detained migrants and their consequential release in cases of unreturnability. Whilst it is impossible for this report to state whether this review actually had an impact on stateless persons, due to the extremely limited number of persons confirmed to be stateless, it is clear that the review would benefit this category of persons and also persons at risk of statelessness. In fact, it could be suggested that the second transposition effort of the Return Directive, in 2014, was a reaction to the condemnation from the European Court of Human Rights in the three abovementioned cases (Louled Massoud, Aden Ahmed and Suso Musa). At the time of writing this report, the Ministry for Home Affairs and National Security was in the process of transposing the recast Reception Conditions Directive. Although the report is not in a position to comment on the contents of the proposed transposing legislation, 71 the meeting with the Minister confirmed that the transposition process is intended to be a major reform of the detention system, shifting from a system of automatic detention to an individual assessment process resulting in decisions not to detain, to detain or to impose alternatives to detention. The Ministry also confirmed the strengthening of the procedural guarantees allowing a detained person to challenge the legality of his/her detention. Whilst this news is of course well received, it is too early to comment on these developments, also since it would be important to see how such changes will be implemented on the ground. With regard to procedural guarantees available to detained persons (including the stateless or those at risk of statelessness) to challenge the legality of their detention, the three Strasbourg Court judgements clearly highlighted Malta’s failures to comply with the basic guarantees required in ECHR Article 5(4). “In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5(4), to indicate the general measures required to prevent other similar violations in the future. It observes that it has found a violation of Article 5(4) on account of the fact that none of the remedies available in Malta could be considered speedy for the purpose of that provision. Thus, the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism which allows individuals taking proceedings to determine the lawfulness of their detention to obtain a determination of their claim within Convention-compatible time limits, but which nevertheless maintains the relevant procedural safeguards. The Court reiterates that…it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.”72 First of all, in terms of Article 409A of the Criminal Code,73 a detained person can lodge an application in order to request to the Court of Magistrates to examine the lawfulness of detention and order release from custody. The European Court agreed with the claimants in saying that the courts entrusted with hearing applications under the said Article have acknowledged their limited competence in holding that they were not competent to look into other circumstances which could render detention illegal, such as an incompatibility with the rights granted by the Constitution or the Convention, when there was a clear law authorising continued detention. Therefore this remedy did not provide an effective review of the lawfulness of detention.74 The second remedy existing under domestic law is an application to the Immigration Appeals Board if a detained migrant feels that his or her detention is no longer reasonable. Due to excessive duration of proceedings, as well as the limitations on the remedy the Board could give to applicants, these proceedings were considered by the European Court not to comply with the requirements of Article 5(4) of the Convention.75 Another remedy potentially available to detained individuals is a constitutional application before the Civil Court (First Hall), followed, if necessary, by an appeal to the Constitutional Court. However, in its jurisprudence the European Court of Human Rights held that this procedure was rather cumbersome and that lodging such a constitutional application would not ensure a speedy review of the lawfulness of the applicants' detention. 76 Consequently, in the cited cases the Court held that the applicants had not had at their disposal, under domestic law, a remedy for challenging the lawfulness of their detention under Article 5(4). The 2014 amendments to the Return Regulations imposed an automatic review of detention at reasonable intervals, although in practice these reviews are not triggered by the individual who remains largely unaware of the review process and conclusion. It is most likely that this review will not fulfil the requirements of an effective remedy under ECHR Article 5(4).