The Justice Ministry insisted this evening that Malta’s laws on the detention of illegal migrants are in line with the rules of the European Union and the European Convention on Human Rights.

The ministry was reacting to a statement by the Jesuit Refugee Service which called for an updated of the laws.

“The government sees no need to depart from its current detention policy, a policy which is also practiced by other EU member states,” the ministry said.

It insisted that a European Court case instituted against Malta by Khaled Louled Massoud had not established any principles which went against Malta’s policy.

It pointed out that Malta’s Immigration Act already provided remedies for those who felt that their detention was unreasonable.

The government, therefore, believed it would be wrong to dismantle the current system.

In its statement, the JRS urged the government to bring laws and policy on the detention of irregular migrants in line with Malta’s human rights obligations.

“The judgement of the European Court of Human Rights in the case of Khaled Louled Massoud against Malta clearly indicates that detention of irregular migrants in Malta falls short of the requirements of human rights law”, said Fr Joseph Cassar S.J., JRS Malta Director.

“Since there are so few people in detention it is easy to think that it is no longer an issue, but these laws and policies still affect the lives of people and they will continue to do so unless something is done.” The comments were given in a statement to mark Human Rights Day.

In this judgment, which became final on 27 October 2010, the Court upheld Massoud’s claim that his 18 month detention pending his deportation from Malta violated his fundamental human right to freedom from arbitrary detention in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

"Although the case focused on the detention of one particular individual, the findings of the Court and the principles it enunciated when passing judgment also shed light on the adequacy of the legal and policy framework regulating detention in Malta," JRS said.

“This ruling makes clear that no one should be arbitrarily detained, even if they have no legal right to be in Malta and are subject to removal proceedings,” said Fr Cassar. “It is a cause of great concern to JRS that people fleeing war, persecution, torture and other serious violations of their human rights too are subjected to prolonged detention, without adequate guarantees of protection from arbitrariness, because of their irregular immigration status”.

JRS Malta urged the government to conduct a holistic review of the national legal and policy framework regulating detention in order to ensure that it is in line with human rights law.

In particular, the organization called upon the government to amend the law in order to ensure that:

"Detention is not used where removal is not feasible.

Even where removal is possible, detention is only used as a last resort, in specific cases where other less coercive measures have proved insufficient to secure the individual’s removal from national territory.

Alternative measures are provided, so that detention does not remain the only option.

Detainees are protected from arbitrariness through the introduction of legal guarantees, including:

A requirement that detention is only implemented after a specific order to that effect, supported by reasons in fact and in law, has been issued by a judicial authority;

A fixed time-limit on detention established by law;

A speedy judicial remedy to challenge the lawfulness of detention, offering sufficient guarantees of procedural fairness and accessibility, which satisfies the requirements of article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

An automatic, independent review of detention at regular intervals, in order to ensure that proceedings for removal are being carried out with due diligence.

Where detention is resorted to, detainees are held in humane conditions in line with basic standards which should be established by law."

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