Two Armenians lose appeal against repatriation

The Constitutional Court yesterday dismissed an appeal filed by two Armenians facing deportation and found that their fundamental human rights had not been violated.

The judgment was delivered in the case filed by Luiza and Simony Merujian Zakarian against the Minister of Home Affairs and the Principal Immigration Officer.

Luiza and her brother Simony had attempted to prevent their repatriation to Armenia. They had alleged that if they were sent back, as the Principal Immigration Officer was planning to do after their request for refugee status was turned down, their fundamental human rights would be violated.

The First Hall of the Civil Court had heard that the appellants, both of whom were Armenian nationals, had applied for refugee status.

They claimed that if repatriated they would be subjected to political persecution and oppression by the Armenian police. They added that the Armenian state would be unable to protect them. It resulted that the Zakarian family were deeply involved in politics. Their aunt, it was alleged, had been forced to flee the country after she was threatened by the Armenian police.

Luiza and Simony's father, it was claimed, had been subjected to political persecution and in 2000, he was assassinated by the police of Armenia. Following the alleged murder, the brother and sister fled to Malta and applied for refugee status.

But their application was dismissed by the Refugees Commissioner and by the Refugee Appeals Board because they did not satisfy the criteria to be declared refugees.

After examining the constitutional application, the First Hall of the Civil Court concluded that it was satisfied that the political and human rights situation in Armenia had improved following the events they had mentioned. Armenia was now a member of the Council of Europe, and that was guarantee enough that human rights were observed.

Luiza and Simony appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti. They claimed the first court had made a wrong assessment and appreciation of the evidence.

The Constitutional Court said it ought to be made clear that the right to political asylum was not contained in either the European Convention of Human Rights nor its protocol.

In terms of article 3 of the Convention, the obligation of the state extended in respect of everyone within its jurisdiction and was a duty not to expose such persons to an irremediable situation of objective danger.

Alleged risk to life was generally considered to fall within the parameters of article 3.

The mere possibility of ill treatment, however, was not enough to warrant the application of the European Convention. The applicant had to prove he faced a specific personal risk of inhuman and degrading treatment. It was not sufficient to show merely that in the country to which a person was going to be sent the political situation was unsettled.

What had to be proven, even at least on a balance of probabilities, was that the applicant faced a specific personal and significant risk of ill-treatment.

The Constitutional Court declared it had examined in minute detail all the evidence and had examined the evidence shown to the Refugees Commissioner and the Appeals Board.

After careful deliberation, the court concluded there was not sufficiently strong evidence to confirm the Zakarians would face such a personal and specific risk of ill treatment if they were repatriated.

There was no doubt they had had a very difficult childhood and youth, mainly due to the fact that they were suffering the consequences of their father's political involvement.

They grew up in Armenia at a time when that country, a republic of the former Soviet Union, was attempting to get to grips with democracy. But Armenia became a member of the Council of Europe in 2001.

The court added that the circumstances surrounding the death of the father were not clear. An unauthenticated document, supposedly a copy of his death certificate, stated he had been beaten by the police and was suddenly killed.

But this did not tally with what Luiza had said when interviewed by the Refugee Commissioner.

It also appeared their decision to leave Armenia had not been precipitated by an imminent risk of ill treatment, but rather by the fact that they were living alone with an elderly grandmother when they had an aunt in the UK in relatively better circumstances.

The court pointed out that Luiza and Simony had never been personally involved in political activities. The question of whether or not they ought to be allowed to stay in Malta on humanitarian grounds or whether they ought to be allowed to join their aunt in the UK, was a matter that fell outside the parameters of this litigation.