The Strasbourg court action that thwarted the Government’s planned deportation of a group of Somalis may now have put the push-back policy into deep freeze. The application was filed via fax – as per procedure – about 15 minutes before the 5pm deadline on Tuesday. Around one-and-a-half hours later, the European Court of Human Rights issued a ruling, ordering the Maltese Government to halt its planned deportation for the duration of the procedures in court.
The Government now has until July 30 to respond to the ruling during which time the lawyers fronting the NGOs action will have to file a more detailed application, but in the meantime, the Maltese Government does not have many options, legal experts agree.
The only option left to the Government at that point would be to breach the ECHR order or leave the Council of Europe
Moreover, the hearings could take as long as two years. According to one of the lawyers fronting the case, Michael Camilleri, “it’s difficult to say in this case, as the procedure is relatively unusual. Moreover, the time it takes the ECHR to process an application is going down but yes, in normal circumstances it takes about two years.”
Beyond the timing, experts in the field agree that there is a high probability that the complaint will be upheld.
The action, in fact, is hemmed in by two important judgments. The first is one by the ECHR itself, which in February 2012 ruled that the Berlusconi era push-back policy breached immigrants’ fundamental human rights because, among other things, it did not give them the opportunity to file a request for asylum as is their right under the Geneva Convention.
The second is a ruling given locally by the Constitutional Court which concluded that the deportation of two Somali men in 2004 was also illegal.
In their application to the ECHR, the lawyers, which included Katrine Camilleri and Jean-Pierre Gauci, referred to these judgments, arguing that the Government’s planned action breaches the Convention on grounds that it would deny migrants the right to apply for asylum and expose them to inhumane treatment.
In fact, the ECHR, in Tuesday’s decision, asked the Maltese government for explanations on both these points. It demanded to know whether the Government considered the migrants’ claim of exposure to the risk of inhumane treatment in Libya and also how the government planned to make sure each migrant got an opportunity to request protection and seek redress should this be turned down.
Still, whichever way this ECHR procedure goes, the JRS would still be able to battle the policy itself and on a more permanent basis, through a court case which will have to start in Malta.
If that goes badly, the decision can be appealed and taken to the Strasbourg again. In the meantime, any moves to deport migrants could be blocked through temporary actions such as the one filed on Tuesday.
“The only option left to the Government at that point would be to breach the ECHR order or leave the Council of Europe. The only time that happened to the best of my knowledge is when Greece, then run by the military junta, pulled out before they faced certain expulsion,” a legal expert told Times of Malta.
Asked why he had not opted to institute a prohibitory injunction in Malta rather than go straight to the Strasbourg court, Dr Camilleri said experience showed they did not have much success with such injunctions locally.
Moreover, he said, there was a specific provision in the Immigration Act which barred prohibitory injunctions on deportation orders. “More than anything, however, the clock was ticking and we felt that the ECHR was the best option at that point, also because a case in the Maltese courts would have entailed opening the courts with urgency which in itself takes time.”
mmicallef@timesofmalta.com