Court dismisses migrants' constitutional plea

A constitutional application filed by 32 individuals against the chairman and members of the Appeals Board for Refugees and against the Attorney General has been dismissed by Mr Justice Giannino Caruana Demajo in the First Hall of the Civil Court.

The applicants, who had entered the country illegally, filed their application against Henry Frendo, Tonio Grech and Carmelo Testa, on behalf of the Appeals Board. The Attorney General was later called into the suit.

They claimed that after they had entered Malta, the Gozo court had, in March 2002, ordered their repatriation to their country of origin as they were in violation of the law.

The applicants had filed an application to the Commissioner for Refugees requesting refugee status but their request was dismissed. They had then appealed to the Appeals Board for Refugees which in turn dismissed their appeal.

Applicants submitted in their constitutional application that their fundamental human right to a fair hearing had been violated by the Appeals Board as the proceedings had been heard behind closed doors without applicants being summoned to appear.

They further submitted that they had not been allowed to attend the hearings, to produce evidence or to make submissions.

The First Hall of the Civil Court was requested to provide applicants with a remedy.

Respondents pleaded that the proceedings before the Appeals Board did not determine any criminal charge or any civil right or obligation and therefore neither the constitutional right to a fair hearing nor that contained in the European Convention of Human Rights were applicable.

Mr Justice Caruana Demajo pointed out that various judgments of the European Court of Human Rights had reiterated that decisions regarding the entry, stay and deportation of aliens did not concern the determination of that individual's civil rights or obligations or of a criminal charge against him.

Consequently, article 6(1) of the convention, governing the right to a fair hearing, was not applicable to such cases.

The court added that applicants had complained of the fact that the decisions of the Appeals Board were final and conclusive and were not subject to appeal before the courts.

However, the court pointed out that such decisions could be contested on the basis of an alleged violation of the Constitution or of the European Convention of Human Rights where such were applicable.

Applicants' case, the court noted, was based upon a violation of the right to a fair hearing. Once it was established that this did not apply to their case, their contestation about the right to appeal from the board's decision was also inapplicable.

The constitutional application was therefore dismissed.