Human rights laws dictate that nation states should not punish refugees for crossing borders illegally, aditus foundation founder and director Neil Falzon told The Malta Independent.

“If you look at human rights law and, more specifically, refugee law, it says that where refugees enter a territory in an irregular manner, then the state should not punish them for that”, he said.

“The reason is because international law understands that refugees who are fleeing a war or are fleeing their own government, in the vast majority of cases, do not have access to a legal way of travelling”, he said.

Falzon was asked by this newsroom on whether, following a now well-known case which saw two Turkish mothers jailed for passport offences after fleeing their homeland in the aftermath of the 2016 coup and the crackdowns that followed, Malta’s passport laws needed revising.

His words also have some significance as the situation in Afghanistan worsens, with the Taliban’s control of the country’s capital Kabul prompting thousands to make – sometimes desperate – attempts to flee.

Rabia Yavuz and Muzekka Deneri had been sentenced to 6 months in prison after they admitted to using fake identification documents to transit from Greece to Belgium, having escaped Turkey soon after the 2016 coup. The sentence caused outrage as it meant that the mothers’ two children would be left alone in a country where they neither knew the culture or even the language, and it sparked a discussion over whether Malta’s criminal law for passport offences was too harsh. The sentence was appealed and converted into a suspended sentence.

Since the appeal judgement, The Malta Independent counted no less than eight more passport-related cases finding their way to Malta’s courts.

In each case, the accused pleaded guilty, and six out of the eight accused were handed a six month prison sentence for their offences. 

Asked whether, after protests against the sentence handed down to the two Turks, he felt that Malta’s passport laws needed to be amended to be less harsh, Falzon said that in saying that such laws need to be amended, he was referring to a specific group of people and not to a general change in the law.

“What we have been pushing for in the last few years is that the government introduces, both in law and in practice, an exception to that criminal provision for persons who are actually refugees.  That’s what we would like to see introduced into the law”, he said.

Court judgements are such that it is difficult to identify whether one is a refugee or not, although out of the six who were sent to prison in the last two weeks for passport-related offences, one was a man from Chad who resided at the Hal-Far tent village.

In a more recent case however, a 16-year-old girl from the Middle East was given only a suspended sentence for similar passport offences, after she had been helped to escape her native country by family members – a case which even the prosecution said was “genuine.”

Asked whether the decision to overturn the Turkish mothers’ prison sentence by Judge Aaron Bugeja could set a precedent for future cases, Falzon said that aditus was still analysing the judgement to see the legal implications of it.

“We hope, though, that there are statements which could at least indicate a change in practice”, he said.

Falzon also noted that the fact that the two women both had children who would have been left alone and uncared for made the case more “complex.”