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Conditions of detention may be ‘inhuman or degrading’ – jurists

It is reasonable to argue that conditions in detention amount to inhuman or degrading treatment, according to Massimo Frigo and Roisin Pillay, two human rights legal experts. Photo: Jason Borg

It is reasonable to argue that conditions in detention amount to inhuman or degrading treatment, according to Massimo Frigo and Roisin Pillay, two human rights legal experts. Photo: Jason Borg

Malta’s controversial policy of detaining asylum seekers for up to 18 months has been slammed by two human rights law experts who suggested conditions in detention centres could also constitute “cruel, inhuman or degrading treatment”.

There are serious issues with how much present conditions comply with international human rights standards

Massimo Frigo and Roisin Pillay, two lawyers with the International Commission of Jurists, said Malta’s detention policy was “concerning” and described living conditions at the hangar open centre in Ħal Far as “unhealthy, unsuitable and dangerous”.

The Geneva-based ICJ is one of the world’s pre-eminent human rights law NGOs. It seeks to promote and protect human rights through the rule of law.

Mr Frigo and Ms Pillay, who work within the ICJ’s secretariat as part of its Europe programme, spent a week in Malta on the invitation of Aditus, a local human rights NGO. Over the course of their visit, they met various government officials, visited a number of open and detention centres and held a series of workshops with local NGOs.

“Our visit here is part of a larger project concerning migration issues within EU border countries,” Ms Pillay explained. “In most European countries, legal standards protecting migrants’ rights already exist but the problem is in the application and implementation of those standards.”

Malta, it appears, would qualify as one such country. The Maltese government has signed and ratified almost every major international convention, from the European Convention of Human Rights to the UN’s various conventions on torture, racial discrimination and discrimination against women.

Most criticism of Malta’s asylum process has centred on the country’s mandatory detention policy, under which all arriving asylum seekers are locked up for anything up to 18 months while their asylum application is processed.

“There have obviously been difficulties in accommodating migrants here in Malta,” Ms Pillay concedes. “There seems to be considerable goodwill and effort directed at accommodating migrants but there are serious issues with how much present conditions comply with international human rights standards.”

Mr Frigo agrees: “Of course, Malta is a small country with particular difficulties, but this does not absolve the state of its legal obligations. Detention is not in itself prohibited by international law but there are very strict limits on when it can be used as a policy. Furthermore, international law clearly stipulates that countries must consider alternatives to detention before resorting to it,” he said.

That did not appear to be the case here, Mr Frigo added. “Mandatory detention seems to be used here as a first solution.”

The two also feel there is little justification for the 18-month length of detention. “It’s difficult to understand how one can consider 18 months a reasonable length of time for processing one’s application,” says Mr Frigo.

Ms Pillay nods. “The length of time which migrants are detained for concerns me a great deal. When coupled with living conditions, especially at Safi barracks...” she tailed off. “It’s not just the physical conditions. The consequences of detention on migrants’ mental health also need to be taken into account,” she said.

Last week, the EU Commission and European Court of Justice cranked up the pressure on member states to reform the existing Dublin II asylum rules.

Under the Dublin II system, asylum seekers apprehended illegally in a member state are sent back to the member state where they first entered the EU. Border countries such as Malta feel this places an unfair burden on them, and a legal opinion submitted by the ECJ’s Advocate General last week would appear to back this up.

The opinion, which the ECJ is likely to uphold, essentially obliges countries not to return asylum seekers to a country where their rights are likely to be violated.

“The Dublin II system has unmasked problems in the original assumptions of EU states,” Mr Frigo said. “The system was based on the notion that reception conditions were more or less on an equal footing in each member state, but this clearly isn’t the case.”

The Advocate General’s legal opinion comes on the back of a landmark judgment by the European Court of Human Rights earlier this year, which found that an asylum seeker apprehended in Belgium was likely to be subjected to inhuman and degrading treatment if he was returned to Greece, where he had first entered the EU.

Would conditions in Maltese detention centres amount to inhuman and degrading treatment as defined by the European Convention and UN Torture Convention?

An awkward silence hangs over the room. Eventually, Ms Pillay pipes up. “I couldn’t make a definite assessment – that would be for a court to decide – but I think there’s a high risk that they would.”

Asked whether she believed there were valid grounds for such a case to be brought forward, her answer was more succinct. “Yes.”

According to Mr Frigo, there had to be a shift in discourse, away from the language of emergency to a more rights-based approach to migration.

“When you speak of emergencies, you immediately think ‘contain and control’,” he said. “But migrants are human beings with their own dignity and rights, and people need to understand that.”

The shift needs to occur on a policy level too, he said. “Integration becomes difficult if a government thinks of the asylum process as ending the moment a migrant is granted refugee status or subsidiary protection.”

The workshops the two led while in Malta sought to develop such thinking patterns. Speaking separately, Aditus spokesman Neil Falzon explained how the training sessions focused on the international and regional human rights standards, actors and procedures relevant to the national asylum and migration discussion.

“We felt this was necessary to enable stakeholders to identify the human rights targets that are relevant for their work, and to behave with migrants and refugees as persons entitled to a set standard of treatment,” Dr Falzon said.

Discussions focusing on migration mainstreaming, empowerment and the overall relevance and effectiveness of human rights standards in Malta followed the presentations, and Dr Falzon felt the activities “gave all participants the opportunity to share operational and legal challenges”.

Sitting in their hotel lobby, Mr Friga and Ms Pillay also expressed satisfaction with their week in Malta.

“We’re very thankful to the local authorities, who were very accommodating. That’s not always the case,” Mr Frigo said.

Asked whether they thought migration flows to Europe would continue unabated, the two are circumspect.

“If you look at the migration flows due to the Libyan conflict, most of the migration there has been to other neighbouring countries, not to Europe,” Ms Pillay said.

Mr Frigo was even more matter-of-fact. “It’s been almost 15 years since Europe first started experiencing migration flows from sub-Saharan Africa. At this point, can we really keep describing the issue as an emergency? Migration is a historically human phenomenon. It is entirely ordinary – there is nothing exceptional about it.”

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