26 January 2009
GENEVA -- The United Nations Working Group on arbitrary detention concluded on 23 January a five-day mission to the Republic of Malta at the invitation of the Government. Its Chairperson-Rapporteur, Manuela Carmena Castrillo (Spain), and El Hadji Malick Sow (Senegal), Vice-Chair of the five-member Group, expressed their gratitude to the Government of Malta for the invitation and for the full cooperation extended to the Group in the conduct of its mission.
While noting a number of positive aspects with respect to the institutions and laws safeguarding against cases of arbitrary detention from occurring, the Working Group raised concerns about the detention of immigrants in an irregular situation arriving in the country mainly by sea. “We consider that the detention regime applied to them is not in line with international human rights law,” said Manuela Carmena. “We have met an 8-year-old boy, who should not be detained at all, and a Somali man, suffering from HIV and chicken pox, vegetating in a cell in complete isolation, who should rather be in hospital,” she added.
These immigrants rescued from the sea after a risky passage from the North-African shores are subjected to automatic detention without genuine recourse to a court of law in Malta. In the case of asylum seekers, it is the policy of the Government to release them, at the latest, after 12 months of detention, if their asylum claim is still pending. Those who do not apply or whose applications are rejected may end up 18 months in custody under appalling conditions generally at the closed centres of Safi and Lyster Barracks, which have been visited by the Working Group. Although disagreeing with administrative detention of immigrants in an irregular situation, if there has to be detention, its length should at least be clearly defined under law.
It would appear to the Working Group that there is no legal link between the specifics of each individual case to be considered and the length of detention. Even the imposition of mandatory administrative detention as such is questionable since, according to Maltese immigration law itself, detention is resorted to in order to carry out removal from its territory. The Working Group has, however, been informed by the Government that of almost 12,000 individuals since March 2002, only approximately 2000 nationals from certain countries have been repatriated, prompting the Working Group to conclude that detention is used as a deterrent and as a sanction.
“In particular, we cannot accept how detention of vulnerable groups of persons can be deemed to be the last resort, as required by applicable international human rights law and also by the so called ‘EU Return Directive’, which the Government of Malta has to transpose into national law now,” the Chairperson argued. Malta applies a fast-track procedure for release of families with children, unaccompanied minors, pregnant women and breast-feeding mothers, and people with disabilities, serious or chronic physical or mental health problems, but according to the Government it may take up to three months to free them into open centres and those who are considered a health risk for the community must stay in detention.
“We must not forget that immigrants arriving without proper documentation are not criminals. What we must not forget, either, is that Malta is a small country with by far the highest population density in Europe and limited financial and human resources at hand. The country can tackle the large increase of arrivals experienced since 2002 only with the help of the international community. We are facing a truly human tragedy here, but we sense that the Government can and should do better already at this point in time”, Manuela Carmena said.
During its official visit the Working Group also visited Corradino Correctional Facility, the holding cells of the General Headquarters of the Police and Valletta police station, the closed wards of Mount Carmel Hospital, and the cell at the guardroom at Luqa Barracks at the Headquarters of the Armed Forces.
Within the criminal justice context the Working Group noted the relatively long periods accused spend in pre-trial detention and the high rate of detainees on remand in comparison to the overall prison population. “We are concerned about the figures we have heard: More than 50% of the prisoners in Malta are pre-trial detainees, which is a comparably high rate. We are also concerned about allegations received that the rules of release on bail were not to be equally applied by courts to Maltese citizens and foreigners alike,” said Malick Sow. He recalled the fundamental right of the accused to be presumed innocent until proven guilty and the right to by tried without undue delay, both of which are well-entrenched in international human rights law. Malick Sow also recommended that “The Government considers establishing a system of release on parole.”
During its fact finding mission to Malta, the Working Group on Arbitrary Detention met with senior Government authorities of the executive, legislative and judicial branch as well as with representatives of United Nations agencies, international organisations, members of civil society, and of the Chamber of Advocates. All five members of the Working Group will consider a report on this visit during its May session in Geneva.
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