Detention of asylum-seekers - violation of human rights laws?

In the first part of this article we considered the facts dealing with the detention of asylum-seekers in Malta. Today we will briefly analyse whether detention, including the conditions of detention, violates human rights law.

The EU considers refugee protection as a subsidiary means of human rights protection in general. Once admitted to any EU territory, third-country nationals constitute an especially sensitive category of concern in human rights terms because of their particular vulnerability.

Philip Alston (The EU and Human Rights, 1999, page 63) states: "Progress should be made towards equal treatment of third-country nationals and European citizens - building on the jurisprudence of the European Court of Justice as regards third-country nationals covered by a Community agreement.

"The fragmented nature of certain rights might be an argument to extend them (a) to fields other than just conditions of employment and social security; and (b) to nationals of countries beyond those covered by specific agreements."

The living conditions in detention facilities have been a recurrent source of reproach directed at state practices. Within the EU context, the 1996 Annual Report of the Committee on Civil Liberties and Internal Affairs of the European Parliament criticised the deplorable conditions under which asylum-seekers are kept in detention for expulsion purposes.

It has been held that detention conditions must correspond to relevant international standards, especially those flowing from Articles 3 and 5 of the European Convention on Human Rights (ECHR), Article 10 (1) and (2) of the International Covenant on Civil and Political Rights, the 1955 UN Standard Minimum Rules for the Treatment of Prisoners and the 1988 UN Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment.

In most cases throughout the EU, rejected asylum seekers are not separated from other groups in detention. Therefore the findings in the discourse on detention conditions for asylum seekers are largely applicable to the detention conditions prevailing for rejected asylum-seekers as well. (J. Hughes and F. Liebaut, 1998, Detention of Asylum Seekers in Europe: Analysis and Perspectives, passim.)

Caselaw has shown that although under international law sovereign states can regulate the entry of aliens into their territory, this right must be exercised in accordance with the provisions of the ECHR (Ammur v France, June 25, 1996, 22 EHRR 553).

At the outset, however, it must be established that these asylumseekers are being deprived of their liberty, and thus enjoy the protection of Article 5 ECHR. This is because there can be a fine line between confinement in a locked prison cell and, on the other hand, less absolute forms of restrictions, such as restrictions on one's freedom of movement.

This distinction is however more a matter of degree and intensity than of nature or substance. (Guzzardi v Italy, November 6, 1980, Ser. A, No. 39, para 93). Thus, the European Court of Human Rights looks at factors such as type, duration and manner of implementation of the measure in question to assess whether the restriction of freedom is tantamount to a deprivation of liberty.

An examination of the criteria mentioned in the first article a fortnight ago will probably lead the European Court to conclude that the detention of asylum-seekers in Malta does constitute a deprivation of liberty. It thus remains to be seen whether such a deprivation is justified at law.

Confinement, accompanied by sufficient guarantees for the detainees, is acceptable only to enable states to prevent unlawful immigration while respecting the international obligations emerging from the 1951 Geneva Convention Relating to the Status of Refugees and the ECHR itself.

States' legitimate needs to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum seekers of the protection afforded by the ECHR and other international instruments. Thus, such detention should not be excessively prolonged. Otherwise it automatically transforms itself into arbitrary detention.

It must once again be kept in mind that the detention is applicable not solely to those who have been found guilty of having committed criminal offences but to persons who, often fearing for their lives, have fled from their homeland. This necessitates a speedy review of applications for humanitarian and refugee status.

Both under our Constitution and under the ECHR, the exceptions in which deprivation of liberty is permitted are exhaustively enlisted and narrowly interpreted by courts. In pursuance of this, the following requirements protect asylum-seekers from arbitrary detention:

the detention must be lawful; and
the detention must be implemented with a view to deportation.

As to the first requirement, the ECHR refers to domestic law and lays down the obligation to conform to the substantive and procedural rules of national law. Thus, every arrest or detention must have a legal basis in domestic law.

The domestic law, in turn, must be conducive to respecting the ECHR itself. In other words, it cannot be drafted in such as manner as to facilitate arbitrary detention or permit absolute discretionary powers of the immigration authorities. The laws must therefore be sufficiently accessible and precise in accordance with the principles of legal certainty and legitimate expectations.

Sufficient guarantees against arbitrariness must therefore exist at law (Chahal v UK, November 15, 1996, 23 EHRR 413). The European Court of Human Rights has already considered the habeas corpus remedy, Section 137 of the Maltese Criminal Code, as insufficient at law, because it does not enable a review of the lawfulness of the detention (Sabeur Ben Ali v Malta, June 29, 2000, Application 35892/97).

As to constitutional applications, since this involves initial proceedings before the First Hall of the Civil Court in its Constitutional jurisdiction and an appeal before the Constitutional Court, it entails a cumbersome and lengthy procedure. Moreover, since issues dealing with bail only arise when the detention is lawful, applicants cannot obtain review of the lawfulness of their detention by applying for bail.

The second requirement necessitates that action is being taken by the competent authorities with a view to deportation, or rather that a speedy review of the lawfulness of the detention occurs. It is thus irrelevant whether the underlying decision to expel can be justified under domestic or European law.

The European court has reiterated that any deprivation of liberty will be justified only for as long as deportation proceedings are in progress. Thus, if such proceedings are not undertaken with due diligence, the detention will become arbitrary and illegal (Quinn v France, March 22, 1995, Ser. A No. 311, para 48).

It is therefore necessary to assess whether the duration of the deportation proceedings was excessive or otherwise. In some cases proceedings lasting five months have been considered as excessive by the European Court (Van der Leer v The Netherlands, February 21, 1990, Series A No. 170).

At times, some of our asylumseekers have had to wait for many months until they were interviewed by our only Refugee Commissioner.

No doubt, although our Refugee Commissioner has been exemplary in the amount of hours and hard work he has put into assessing the hundreds of applications brought before him, it is at this stage necessary to have at least another Refugee Commissioner, Assistant Commissioner or Sub-Commissioner who is vested with the same powers and performs the same task as the Refugee Commissioner himself.

The conditions of asylum-seekers' detention, as analysed in the first article a fortnight ago, may constitute inhuman and degrading treatment at law. They fall short of being considered as torture prohibited by Article 3 ECHR and Article 36 of our Constitution, since they do not satisfy all of the following criteria, namely:

the treatment must cause mental or physical suffering;
the suffering must be severe;
the treatment must be deliberately inflicted; and
the treatment must (seemingly) be unjustifiable in the particular situation.

Degrading treatment is treatment which grossly humiliates a person before others or drives him to act against his will or conscience. Inhuman treatment comprises degrading treatment and is treatment which deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable (The Greek case, 1969, ECHR Year Book, p 186).

In conclusion, it is debatable whether the detention procedure in Malta, together with its corresponding conditions, constitutes a violation of human rights legislation in force in our country.

However, a number of lawyers believe that Malta is skating on thin ice in this respect. From a purely legal point of view, much more can be said about this topic. Many local institutions have already forwarded various recommendations to prompt our competent authorities to fall in line with their international obligations.

It is high time such recommendations, reports and works be given the attention they deserve from all the social partners.