Malta’s “umpteenth condemnation” for violating migrants’ human rights shows how mechanisms to test the lawfulness of their detention are “flawed, inefficient and ridiculously slow”, according to a former European Court judge.
Judge Giovanni Bonello said the recent European Court of Human Rights ruling that two Somali migrants had their rights breached when they were wrongfully denied the right to challenge their detention could give rise to similar complaints unless something was done.
The court found that Malta had violated the human rights of the two applicants and the Maltese system did not provide them with an efficient mechanism to challenge their detention speedily and effectively.
“Any form of detention not ordered by a court judgment must go hand in hand with a parallel system, which allows that detention to be tested by an independent authority.”
The European court ordered Malta to pay two Somali migrant women €10,000 in compensation after it found they were wrongfully denied the right to challenge their detention.
Asked whether this could open the floodgates to similar complaints once the mechanism was missing, Judge Bonello said: “I have no patience with this open-the-floodgates concern.
“To keep the floodgates closed, all Malta has to do is adjust the law to make it conform to minimum human rights standards. Democratic States do not keep the floodgates closed by abridging individuals’ human rights.”
But Judge Bonello also seemed concerned about the European court’s decision not to uphold the migrants’ complaints that they had been subjected to inhuman and degrading treatment during their detention. “The judgment was lenient and favoured Malta by closing an eye to the human suffering endured by the wretched detainees. The conditions of detention were not found to be excessively degrading. If that means they could have been worse, I would agree. But no one doubts that they could have been better, and a lot better too.”
This creates an undesirable category of borderline human rights for borderline human beings
The judgment, he added, implied that the conditions of detention were on the borderline of inhuman and degrading, but did not quite cross that line, so everything was fine.
“This creates an undesirable category of borderline human rights for borderline human beings,” Judge Bonello said.
The judgment refused to condemn Malta for the conditions of the detention centre where Saamiyo Moxamed Ismaaciil, 27, and Deeqa Abdirahman Warsame, 23, were taken shortly after arriving in Malta by boat on August 16, 2012.
The same sentiment was expressed by two lawyers – Stefano Filletti and Albert Zerafa – who said the country had to urgently get its act together to ensure rights were protected.
They also believed this ruling could have a snowball effect and encourage claims from other migrants who, like the Somali women, were also denied the right to effectively challenge their detention.
The lawyers noted the European court’s remark that it had already ruled against Malta about the same loophole and yet, the island had not done anything to rectify it.
“The court’s remarks that it has repeatedly examined this issue implies that measures should be taken in the near future to ensure detainees are afforded a speedy and effective remedy,” Dr Zerafa said.
“Although the influx of illegal immigrants in our territory has decreased drastically, unless the government takes measures in the light of this ruling, there is an increased possibility that Malta will have to once again defend itself before the ECHR on the same subject matter, risking another ruling for compensation,” he said.
Similarly, Dr Filletti said the ramifications of this case were complex and opened the path to more challenges from migrants once they were released from detention.
“While it is not necessarily the case that many migrants would launch such a challenge, there is now a legal precedent for this to happen,” he said.
Sources close to the Attorney General’s office said that since the judgment could still be appealed, no comments would be made on the ruling.