The Government announced that it will be appealing two rulings handed down by the European Court of Human Rights in July, where Malta was fined €60,000 for breaching two irregular migrants’ human rights.
The European Court ruled that Malta’s current detention policy is illegal and in breach of the European Convention on Human Rights.
In the first case, a Somali migrant, Aslya Aden Ahmed, suffered degrading conditions in an immigration detention centre, the court ruled. Ms Ahmed had a miscarriage while being held in detention in 2011. She is to receive €27,000 in compensation and €3,000 in costs.
In Ms Ahmed’s case, the ECHR ruled that Malta has violated Article 3 of the European Convention on Human Rights, which prohibits “inhuman or degrading treatment”.
In the second case, Ibrahim Suso Musa, an alleged asylum seeker from Sierra Leone, the ECHR found that Mr Suso Musa’s detention preceding the determination of his request for asylum had been arbitrary. It also ruled that the authorities took an unreasonable amount of time to determine whether the applicant would be allowed to remain in Malta. Mr Suso Musa was awarded €27,000 in compensation.
Speaking in Parliament on Wednesday, Parliamentary Secretary for Justice Owen Bonnici said that Malta has always followed the principle that “detention [of irregular migrants] is a method of legal arrest”.
Neil Falzon, a human rights lawyer who represents Suso Musa, told The Malta Independent on Sunday that the “legal arrest argument makes no sense at all.”
“This is not an issue of legal arrest but of deprivation of liberty within an immigration context. The Convention very clearly stipulates the situations where this is allowed, and also, importantly, the criteria necessary for these situations to be and to remain legal. We remind the authorities that the European Court has always said that ‘legal’ is not limited to an assessment of conformity with Maltese law, but also an assessment of conformity with the Convention itself. In this regard, ‘legal arrest’ is totally irrelevant,” said Dr Falzon.
Dr Falzon said that Mr Suso Musa spent one year waiting for an answer from the Immigration Appeals Board.
Once no reply was forthcoming from the Board after a year, the case was taken to the European Court.
“The ECHR specifically says that for challenges of detention the remedy at national level must be a speedy one in order to avoid unnecessary illegal detention. In Maltese law there are no other remedies which a detained migrant can use, and the Court in several earlier cases said this,” Dr Falzon said.
Dr Falzon said the Maltese system is “institutionally failing individuals”.
“The Criminal Code process doesn’t work, nor does the Civil Court, or even the Constitutional Court. Summarily, none of these processes fulfil the criteria required by the Convention, so the European Court cannot expect individuals to go through such a deficient procedure,” Dr Falzon said.
Government cannot agree with legal argument that detention breaches human rights
Speaking in Parliament, Dr Bonnici insisted that the Maltese government couldn’t agree with the legal argument that mandatory detention breaches migrants’ human rights.
Curiously, Dr Bonnici said that the European Court is sending “an indirect message of criticism on Malta’s detention policy”.
Dr Falzon points out that on reading the judgement handed down by the European Court, “you will very readily note how direct and urgent the judgement’s conclusions are”.
“The appeal indicates a worrying insistence on a status quo that has now been declared illegal by three ECHR judgements. It is a clear message that Malta is intentionally and unashamedly deciding to violate the human rights of migrants,” Dr Falzon said.