33/50/Add.1 Report of the Working Group on Arbitrary Detention on its follow-up visit to Malta - Note by the Secretariat
Document Type: Final Report
Date: 2016 Oct
Session: 34th Regular Session (2017 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-17374(E)
Human Rights Council Thirty-third session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Working Group on Arbitrary Detention on its follow-up visit to Malta*
Note by the Secretariat
The Working Group on Arbitrary Detention conducted a follow-up visit to Malta
from 23 to 25 June 2015 at the invitation of the Government. Throughout the visit, the
Working Group enjoyed the fullest cooperation of the Government. It had the honour to be
received by the President of the Republic and by some of the highest authorities of the
State. The Working Group was able to hold confidential interviews with prisoners and
detainees at the Corradino Correctional Facility, the main prison of the country; the Young
Offenders Unit Rehabilitation Services; the Safi detention centre in Safi Barracks; the Hal
Far open centre; the Forensic Unit at Mount Carmel Hospital; and the newly established
initial reception centre for children.
In the present report, the Working Group notes that the judicial system of Malta
continues to be affected by lengthy delays in the administration of justice, as well as
diminished access by individuals to due process. The Working Group notes with
satisfaction that, according to recent amendments to the Criminal Code, persons deprived of
their liberty now have the right to access to a lawyer immediately after their arrest and
during the first 48 hours of their detention, although this right does not apply to police
interrogation. Another positive development relates to the age of criminal responsibility,
which has been raised from 9 to 14. However, juveniles between 16 and 18 years of age,
who are children according the Convention on the Rights of the Child (to which Malta is a
State party), continue to be sent to General Courts for adults, instead of the Juvenile Court.
The Working Group takes note of the fact that, in 2012, a restorative justice act
entered into force. It established a new parole system, which has already allowed
38 persons to be released. However, this system still requires the financial resources
necessary to become fully operational, as well as improvements so that foreigners are able
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* The present document was submitted late so as to include the most up-to-date information possible.
United Nations A/HRC/33/50/Add.1
General Assembly Distr.: General 7 October 2016
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to benefit from it. The Government has also taken several measures to improve the
treatment of prisoners and detainees, such as providing them with educational programmes,
along with mental health and social services.
The Working Group reiterates that the rights to asylum and refugee status are
recognized as basic human rights. During the visit, it observed that asylum seekers,
immigrants and refugees who arrive in an irregular manner continue to be detained. The
drastic reduction in arrivals by sea and the improvement in internal administrative
procedures have allowed a reduction of the average period of detention to two months.
However, those whose applications are rejected may be detained for up to 18 months as
permitted by law.
The Working Group emphasizes that, instead of automatic and mandatory detention
of irregular immigrants, less restrictive measures should be applied, such as deposit of
documents, reporting conditions, community release or supervision, and designated
residence. According to the Working Group, detention should be applied only when all
other alternatives have proved it necessary, and be reasonable in all circumstances,
proportionate to a legitimate purpose, non-discriminatory and subjected to judicial
review.
In the report, the Working Group mentions that legislative changes have been
introduced to reform the automatic nature of detention for migrants in an irregular situation,
refugees and asylum seekers. Legislation concerning the application of the directive of the
European Parliament and of the Council on common standards and procedures in Member
States for returning illegally staying third-country nationals has been adopted, the
Immigration Act has been amended to open up the possibility of challenging such
detentions, temporary permits to work for up to three months have been established, and a
voluntary return programme has been designed. The Reception of Asylum Seekers
Regulation was also amended.
Among the positive new initiatives, the Working Group also highlights the attention
given to children and to immigrants with psychosocial and intellectual disabilities. Children
will no longer be detained. After an assessment of their identity, health and age by the
corresponding governmental agency, namely the Agency for the Welfare of Asylum
Seekers, they will be transferred to special houses or placed under the care of carefully
vetted families. For that purpose, a new initial reception centre for children has already
been set up.
The Working Group points out that the conditions of detention of migrants in the
Safi detention centre situated in Safi Barracks have improved. The drastic reduction in the
number of detainees has obviously contributed to that improvement. However, the Working
Group noted a lack of educational and social programmes and deficiencies in the legal aid
provided to detainees. In addition, the Working Group was concerned about the fact that a
detention facility for migrants was located in military barracks.
The Working Group was informed that there is an initial review of a detention after
a period of seven working days in detention. The Immigration Appeals Board shall grant
release when detention is no longer requested. An applicant should be provided with free
legal assistance and representation during the review of the lawfulness of his or her
detention. Free legal assistance before the Board would be extended, but such an extension
would not cover proceedings before the Civil, Constitutional or European Courts.
According to the Working Group, holding people in open centres without long-term
planning for their integration cannot be considered as a suitable solution for them or for
Maltese society. Authorities should facilitate the integration of these persons into society,
mainly through labour and education programmes but also through alternative housing
provided by other stakeholders. The Working Group notes that programmes for the
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integration of migrants, asylum seekers and refugees into Maltese society remain
inadequate.
The Working Group further recommends the incorporation of the Convention on the
Rights of the Child into domestic legislation.
The cooperation of civil society organizations, particularly religious institutions with
considerable expertise and experience in these areas, should be sought. No military
presence in the management of the detention centres should be authorized.
Long-term planning for people living in open centres should be undertaken. The
Government should explore alternative placement options. The Working Group considers
that community-based placement is more respectful of the human rights of migrants,
asylum seekers and refugees, and more likely to empower them to participate in case-
resolution processes. Free legal aid should be extended to migrants in an irregular situation,
even before the appeal stage of the review process. Such aid should not be limited to
applications before the Immigration Appeals Board but rather should be extended to
appeals before the Civil, Constitutional and European Courts.
Lastly, the Working Group highlights that a comprehensive solution to migration
flows, and to the situation of refugee and asylum seekers, should involve countries of
origin, transit and destination, especially the States members of the African Union and of
the European Union.
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Report of the Working Group on Arbitrary Detention on its follow-up visit to Malta**
I. Introduction
1. The Working Group on Arbitrary Detention, established pursuant to former
Commission on Human Rights resolution 1991/42, whose mandate was clarified by the
Commission in its resolution 1997/50 and extended for a further three-year period by the
Human Rights Council in its resolution 24/7 of 26 September 2013, conducted a follow-up
country visit to Malta from 23 to 25 June 2015 at the invitation of its Government. The
Working Group was represented by its Second Vice-Chair, Sètondji Roland Adjovi
(Benin), and Mads Andenas (Norway), and supported by the Secretary of the Working
Group, Miguel de la Lama, and a staff member from the Office of the United Nations High
Commissioner for Human Rights (OHCHR), Yiyao Zhang.
2. Throughout the follow-up visit and in all respects, the Working Group enjoyed the
fullest cooperation of the Government of Malta and all authorities with whom it dealt. The
Working Group would like to extend its gratitude and appreciation to the Government for
its positive response to the request of the Working Group to carry out its follow-up visit and
for its full cooperation before and during the visit. The Working Group would like to
continue the constructive dialogue with the Government of Malta on the issues mentioned
in the present report.
3. The Working Group was able to meet with and interview confidentially some
persons deprived of liberty, without the presence of authorities, guards or witnesses, as
required by its mandate.
4. The Working Group would like to thank the representatives of civil society
organizations, particularly the Jesuit Refugee Service and Malta Catholic Action, for their
support during the visit and for providing the Working Group with important information
and assistance. Additionally, the Working Group wishes to thank colleagues at the Office
of the United Nations High Commissioner for Refugees (UNHCR) for their valuable
assistance.
II. Programme of the follow-up visit
5. During its three-day visit, the Working Group met with various authorities from the
executive, legislative and judicial branches of the State. The delegation had the honour to
be received by the President of Malta; the Minister for Foreign Affairs; the Minister for
Home Affairs and National Security; the Minister of Justice, Culture and Local
Government; the Permanent Secretary of the Ministry for Home Affairs and National
Security; magistrates of the Juvenile Court; and the Social Affairs Committee of the
Parliament. The Working Group also met with representatives of the Armed Forces of
Malta, the Malta Police Force, the Agency for the Welfare of Asylum Seekers, the
Immigration Appeals Board, the Board of Visitors for Detained Persons, and the Board of
Visitors of the Prisons. The delegation also met with the Ombudsman, the Commissioner
for Children, and representatives from relevant United Nations agencies and civil society
organizations. The Working Group is very grateful for the cooperation of all the authorities
and interlocutors with whom it met during the visit.
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** Circulated in the language of submission only.
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6. The delegation visited the Corradino Correctional Facility, the Young Offenders
Unit Rehabilitation Services, the Safi detention centre situated in Safi Barracks, the Hal Far
open centre, the newly established initial reception centre for minors, and the Forensic Unit
at Mount Carmel Hospital.
7. The Working Group was able to visit all these places upon its request and to
interview, in private, a sample of individuals, some of whom were selected by the
delegation, without any restriction.
III. Status of the implementation of recommendations contained in the report on the 2009 visit of the Working Group
8. The following is the analysis of the implementation of the recommendations made
by the Working Group at the end of its 2009 visit (see A/HRC/13/30/Add.2, para. 79).
Recommendation made in relation to criminal justice
9. The Working Group recommended in 2009 allowing access to lawyers for persons
arrested on suspicion of having committed a criminal offence during the first period of up
to 48 hours while in police custody.
10. According to the Constitution, police should either file charges or release a detainee
within 48 hours. If the person is not released within the first six hours, the arresting police
officer must inform a magistrate. At the moment of the arrest, the arresting police officer
should inform the detainee of his or her right to have access to a lawyer and of his or her
entitlement to legal aid. During the 2009 visit by the Working Group, access to legal
counsel was permitted only after the initial 48-hour period of detention. The right to legal
assistance before police interrogation is one of the basic guarantees of a fair hearing.
According to article 6.1 of the European Convention on Human Rights, access to a lawyer
should be provided as from the first interrogation of a suspect by the police, unless it is
demonstrated in the light of the particular circumstances of each case that there are
compelling reasons to restrict this right.
11. According to article 355AT of the Criminal Code of Malta, a person arrested and
held in police custody at a police station or other authorized place of detention shall, if he
or she so requests, be allowed as soon as practicable to consult privately with a lawyer or
legal procurator, in person or by telephone, for a period not exceeding one hour (para. (1) of
article 355AT). Compliance with such a request may be delayed if the person making the
request is in police detention for a crime and if an officer not below the rank of
superintendent authorizes such delay (para. (3)). In no case, however, shall the delay exceed
36 hours from the time of the arrest (para. (7)).
12. During its follow-up visit, the Working Group noted that, according to the Maltese
authorities, amendments had been made to the Criminal Code guaranteeing that persons
deprived of liberty have the right to consult a lawyer immediately after the arrest. In 2014,
the Criminal Code was amended to include a provision which guarantees the right of the
suspects or accused to be informed without undue delay of their procedural rights. As
provided in article 534AB, these procedural rights include the right of access to a lawyer
and any entitlement to free legal advice (Right to information and Letter of Rights, added
by IV.2014.25).
13. Accordingly, authorities are now allowing detainees to have access to legal counsel
during the 48-hour detention period and prior to initial interrogation. The detainee is
currently entitled to speak to a lawyer in private, as soon as it is practicable, in person or by
telephone.
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14. The Working Group welcomes the change in the Criminal Code introduced in 2014.
It emphasizes that the right of access to a lawyer should be further elaborated and defined
by law. Particularly, it should include the right to be assisted by a lawyer during police
interrogation. The fact that one is able to contact a lawyer should not affect the right to
remain silent, contrary to the current practice as described to the Working Group.
15. The Working Group observed that suspects are still kept in detention for lengthy
periods before trial. The maximum time of pretrial detention is 12 months for those accused
of offences with a maximum sentence of less than four years, 16 months for sentences with
a maximum sentence of between four and nine years, and 20 months for sentences with a
maximum sentence of nine years or more. These time limits do not apply automatically;
detainees can still make a bail application once these periods have been completed. The
Working Group is of the view that the law should be more protective of the rights of the
accused and put the burden on the prosecution to prove why such a pretrial detention needs
to be prolonged and, more importantly, provide for judicial review of any extension.
Recommendations in relation to juvenile justice
16. The Working Group recommended in 2009 that the minimum age of criminal
responsibility for juveniles be increased to 12 years in accordance with paragraph 32 of
general comment No. 10 (2007) of the Committee on the Rights of the Child, that the
assumption that a juvenile aged between 9 and 14 years could act with “mischievous
discretion” be eliminated, and that the juvenile justice system be extended to children
between the ages of 16 and 18 years.
17. During the follow-up visit, authorities expressed their intention to address juvenile
criminality with a more social approach instead of a punitive one. On 14 February 2014, the
Criminal Code was amended to raise the age of criminal responsibility from 9 to 14 years.
According to article 35 (1), substituted by III.2014.2. Cap. 285, “a minor under fourteen
years of age shall be exempt from criminal responsibility for any act or omission”.
According to Act No. III of 2014, as cited by Justice Services in 2014, the age of criminal
responsibility was raised to 14 years. The Working Group welcomes the raising of the age
of criminal responsibility from 9 to 14 years.
18. In Maltese law, children are deemed to be capable of “malicious discretion”1 (doli
capax) and can be held responsible. The Working Group welcomes the fact that article 36
of the Criminal Code concerning “minors under fourteen but over nine years acting with
discretion” has been repealed by Act III.2014.3. It is noted by the Working Group that the
Criminal Code provides that minors under the age of 14 will be deemed incapable of
formulating the requisite criminal intent. Minors between the ages of 14 and 16 are also
exempt from criminal responsibility if they act without mischievous discretion. The
Working Group also welcomes the fact that article 37 of the Criminal Code, substituted by
III.2014.4., further provides that the penalty will be decreased if the act or omission is
committed by a minor who is aged between fourteen and sixteen years of age with
mischievous discretion and that, if the minor is aged between sixteen and eighteen years,
the applicable penalty shall be decreased by one or two degrees.
19. The Working Group was pleased to learn about amendments made to the Criminal
Code regarding the criterion of “mischievous discretion” for children between 14 and
16 years of age, shifting the burden of proof to the prosecution. “Mischievous discretion”
should also be proved and not simply assumed.
20. The Working Group remains concerned, however, about the fact that the Juvenile
Court can hear matters involving children who are in conflict with the law only if they are
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1 It appears to the Working Group that “malicious discretion” is intended to refer to “malicious intent”.
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under the age of 16, and that children between 16 and 18 years of age are still being tried as
adults and subject to criminal law and criminal courts for adults, in violation of the
Convention. According to article 2 of the Juvenile Court Act, “a child or young person
means a person who is under the age of sixteen years”. The Juvenile Court only hears
charges against and holds other proceedings relating to children under the age of 16 years.
21. The Working Group considers that children under 18 years of age should be treated
as children and not be brought before or sentenced by tribunals for adults. In this regard, the
Working Group concurs with the Committee on the Rights of the Child that Malta should
bring its juvenile justice system fully into line with international standards (see
CRC/C/MLT/CO/2, para. 66 (b)). In particular, the Working Group reiterates that Malta
should extend the scope of its juvenile justice system to include all children under the age
of 18. The Working Group also recalls that the arrest, detention or imprisonment of a child
not only should be in conformity with the law but also should be used only as a measure of
last resort and for the shortest appropriate period of time.
Recommendations in relation to detention under immigration authorities
22. Malta ranks second in the world in the number of refugees per square kilometre and
has Europe’s second-highest rate of granting asylum per capita. In 2008, the increase in the
immigrant population exceeded the national birth rate for the first time. Since 2002, more
than 19,000 people have reached Malta, a country with a population of 423,000 inhabitants
and an area of 316 km 2 . Between 2002 and 2012, UNHCR in Malta received 15,832 asylum
applications. In 2014, there were 2,200 applications for asylum submitted, mainly from
citizens of Libya.
23. The Working Group is fully aware that thousands of migrants, asylum seekers and
refugees, coming mainly from Africa, have arrived in Malta since 2002. At first, most
people arrived on boats carrying about 30 people. That trend changed during 2008 to larger
boats carrying between 100 and 400 persons. In 2008, 2,800 migrants arrived by sea. In
2013, there were 2,006 persons who arrived by sea. While the number declined drastically
in 2014, since most migrants were rescued at sea by the Italian and Maltese coast guards
and taken to Italian harbours, mainly in Lampedusa and Sicily, hundreds of asylum seekers
continued to arrive in Malta by plane, with or without proper documentation.
24. Today, asylum seekers arrive mainly by air. As of February 2016, 886 persons had
been granted refugee status in Malta, 11,243 individuals had received subsidiary protection,
and 1,694 persons had been granted other forms of complementary protection.2
25. In 2009, the Working Group recommended that Malta change its laws and policies
related to administrative detention of migrants in an irregular situation and asylum seekers,
so that detention would be decided upon by a court of law, on a case-by-case basis and
pursuant to clearly and exhaustively defined criteria in legislation, under which detention
might be resorted to, rather than being the automatic legal consequence of a decision to
refuse admission of entry or a removal order. It also recommended ruling out immigration
detention for vulnerable groups of migrants, including unaccompanied children, families
with children, pregnant women, breastfeeding mothers, elderly persons, persons with
disabilities, and people with serious and/or chronic physical or mental health problems.
During the follow-up visit in 2015, the Working Group noted that migrants belonging to
vulnerable groups were no longer subjected to detention.
26. Migrants who arrive in an irregular manner continue to be systematically and
routinely detained. The detention of these persons is based upon articles 5, 14 and 16 of the
Immigration Act related to the offence of illegal entry into Maltese territory and removal.
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2 See www.unhcr.org.mt/charts/category/17.
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The period of detention varies from 2 to 12 months pending adjudication of their asylum
requests. The drastic reduction in arrivals by sea and the improvement in internal
administrative procedures have resulted in a reduction of the average detention period to
about two months. Migrants whose applications are rejected can be detained for up to
18 months as permitted by law.
27. The detention policy of Malta affects migrants arriving irregularly in the country.
Under Maltese immigration laws, detention is the automatic consequence of a refusal to
grant admission to national territory. The practice therefore continues to be to detain all
migrants who arrive on the territory in an irregular manner. However, the Working Group
notes that the Government of Malta is making efforts to ensure that each case is studied on
its own merits, asylum seekers are detained only as a measure of last resort, and migrants
who have not applied for asylum or are rejected at all stages can be detained only as long as
there is a realistic prospect for removal.
28. The Working Group learned during its visit that even persons with a valid visa may
be detained if they cannot prove that they have sufficient financial means to stay in Malta.
It also learned that others arrive without valid documents or after having destroyed their
passports at the moment of their arrival in order to request political asylum or refugee
status.
29. It is provided in article 14 of the Maltese Procedural Standards in Examining
Applications for International Protection Regulations that a person declared to be a
beneficiary of international protection shall be entitled to remain in Malta and to be granted
a residence permit.
30. Aside from the peak observed in 2008, the number of asylum seekers and refugees
arriving in Malta has remained close to an average of 1,600 persons a year. The severe and
negative physical and psychological consequences of prolonged detention have been very
well documented.
31. The Working Group is of the view that detention should not be used to discourage
migrants at risk who wish to apply for asylum in Malta. The Working Group notes that
legislative changes are being introduced to reform the quasi-automatic nature of detention
for irregular migrants. The Working Group welcomes the further changes that relevant
authorities are currently working on, especially in relation to migrant children and removal
orders.
32. The Working Group was informed that the Ministry for Home Affairs and National
Security had prepared a bill to amend the Immigration Act of 1970. In the draft amendment
act, changes are proposed to article 14 of the Immigration Act, which sets out mandatory
pre-removal detention to ensure that removal orders are issued only when necessary.
According to the proposed revision of article 14 (4), all the effects of a removal order shall
be suspended if the person who is subject to it has filed an application for asylum and
pending the final determination of that application. The removal order shall again come into
force following the final rejection of the asylum application. In addition, the proposed
revision to article 14 (7) provides that the principal immigration officer shall not execute
any return decision or removal order if appeals proceedings before the Immigration
Appeals Board are pending.
33. However, the Working Group understood during its visit that civil society
organizations, especially those with several years of expertise in providing assistance to
refugees and asylum seekers, had not yet been consulted on the proposed legislative
changes. Thus, the Working Group encourages relevant authorities to fully consult such
organizations during this process. In this regard, the Working Group was pleased that the
Social Affairs Committee of the Parliament had expressed to the Working Group its
commitment in that respect.
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34. The Working Group acknowledges that some significant improvements have been
made concerning migrants, refugees and asylum seekers. The Working Group welcomes
the establishment of an initial reception system. It is anticipated that this will change the
practice of automatically detaining migrants in an irregular situation, refugees and asylum
seekers from the outset. A new initial reception centre for minors has already been
established and should prevent the detention of children. This centre will host
unaccompanied migrant children, as well as accompanied migrant children with up to two
family members, upon arrival, and allow for registration, medical clearance and age
assessment before their eventual transfer to an open centre.
35. According to information received from the authorities, plans are still under way to
convert Lyster Barracks detention centre into a temporary initial reception centre for adults.
The Working Group also received information that the construction of a new facility to be
used as an initial reception centre would soon be initiated. However, the Working Group
emphasizes that military facilities should not be used for the detention of irregular migrants,
especially children. After the visit, the Working Group was pleased to learn, through
official channels, that the plan to convert Lyster Barracks had been discarded and that the
initial reception centre for adults had been sited at Marsa instead.
36. The Working Group visited the Safi detention centre, situated in Safi Barracks, an
army base. The centre, distributed in four blocks, contains 134 beds; during the visit,
however, there were only six detainees. Some of them had arrived from Algeria or the
Syrian Arab Republic by plane and had spent 24 hours detained at Malta International
Airport in Valletta before being brought to the centre. One detainee had a valid visa but
insufficient financial resources for his stay in Malta. The tourist visa of another detainee
had expired. A Nigerian who reported having permanent resident status in Spain had spent
four months in the centre. All detainees had gone through identity checks and medical
examinations. During the follow-up visit, the Working Group learned that legal aid was
expected to be provided on Tuesdays, but that no detainees were seeking legal aid at the
time of the visit, which happened to be on a Tuesday. Detainees had access to a telephone
and were able to meet with relatives for five minutes a day. With regard to the legal aid
service, the Working Group notes that, according to the Government of Malta, legal aid is
provided upon request and there are no fixed days for it.
37. The Working Group also visited the Hal Far open centre for immigrants, outside
Valletta, run by the Agency for the Welfare of Asylum Seekers, which falls under the remit
of the Ministry for Home Affairs and National Security. The Centre has a capacity of 800
persons. During the visit of the Working Group, 260 persons were present. In the open
centres, migrants enjoy freedom of movement but are requested to undergo movement
registration three times a week. If an adult migrant residing in the open centre plans to be
absent for several days, the Agency requests to be informed of the absence in advance.
38. The Working Group received information that 889 persons were living in three open
centres, including the Hal Far open centre, which consisted of prefabricated container
housing units that had replaced scores of tents. Most of them were asylum seekers awaiting
decisions on their applications. Some migrants whose applications for asylum had already
been rejected were also hosted there. Residents reported that they suffered uncomfortable
living conditions, including inadequate ventilation and high temperatures in the summer
months, in addition to overcrowded conditions in some units. Residents had been referred
to the Centre by immigration authorities.
39. The Working Group was informed that, although the open centres were locked and
guarded by security officers, residents were allowed to enter and exit the premises freely.
Residents were allowed to stay for a maximum period of one year. Their beds would be
reassigned after three weeks of absence to other migrants in need. It was brought to the
attention of the Working Group that some residents had arrived at the centre in April 2014,
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which means that they had been held there for more than 12 months. The Working Group
was informed that, during their stay at the open centre, residents were offered
accommodation and free food, and were provided with a transportation allowance to enable
them to travel to the city centre. In addition, the Working Group was informed that the
centre would provide English-language courses, computer training and cultural orientation.
40. There were complaints from some residents that the food they were given lacked
variety. They had been offered chicken at every meal for a long time and there was an
absence of fruit. A man complained that his observation of religious dietary and fasting
rules had not been respected. In this regard, the Working Group was pleased to learn after
its follow-up visit that the offered meals had been replaced with a food allowance, which
allowed each resident to purchase food of his or her choice.
41. In this regard, the Working Group encourages the Government of Malta to take all
measures necessary to improve the living conditions in the open centres. The Working
Group notes the commitment of the Government to addressing the challenges related to the
detention of migrant children. The Working Group was informed that Malta had made a
commitment to ensuring that migrant children would no longer be subject to detention. It
was informed that, upon arrival, children, including unaccompanied children and families
with children, would be taken to an initial reception centre for minors. The Working Group
reiterates that children who find themselves without parental protection are dependent on
States to uphold their rights.
42. During its trip, the delegation visited a newly established reception centre for
children, which had not yet been used. The centre had been designed as a temporary facility
for registration, medical clearance and age assessment, when necessary. It could host a
maximum of 134 persons, and was equipped with family rooms, a playroom for children,
and offices for international organizations and agencies, such as UNHCR. Residents would
be provided with a welcome bag containing basic personal sanitation items and blankets.
Prepared meals would be provided free of charge to residents. Personnel at the reception
centre had collected some clothes and toys to be distributed to migrant children. These
items had been stored in two storage rooms that were shown to the Working Group.
43. In respect of migrants in an irregular situation whose age cannot be otherwise
determined, an age assessment and determination procedure has been implemented by the
Agency for the Welfare of Asylum Seekers. The Working Group noted that the procedure
involves a psychosocial assessment, with referral for a medical examination only if
necessary. Whenever the relevant assessment leaves room for doubt as to whether the
person is a child or not, the authorities consider and treat the person concerned as a child.
44. In its 2009 report, the Working Group also recommended that the Government
provide in all cases for automatic periodic review by a court of law of the necessity and
legality of detention.
45. The lack of an effective process for judicial review of immigration detention
constituted one of the main problems observed by the Working Group during its first visit
to the country.
46. The Government indicated that processes for reviewing the detention of migrants
had been introduced, including for those migrants who were due to be returned to their
countries of origin. Based on the proposed legislative changes, the first review was to be
conducted by the principal immigration officer within the first three months of the
detention, while the Immigration Appeals Board would have jurisdiction thereafter. The
Working Group was pleased to learn that, according to the proposed amendments, the
mandate of the Board would be expanded to providing a full review of the legality and
grounds of detention, and that a detainee would also be able to challenge his or her
detention before a court, with eligibility for legal aid throughout the process. The Working
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Group was informed that the Board would have the authority to grant release when
detention was no longer required.
47. The Working Group was not in a position to assess the efficiency of this mechanism
during its follow-up visit since it was not yet fully in force. However, the Working Group
looks forward to receiving information in this regard, including on the capacity of the
courts to review the proportionality of detention.
48. With respect to the recommendation made by the Working Group that the
Government provide for an effective remedy for detainees to challenge the necessity and
legality of detention at any point during a detention period and ex post facto and define the
circumstances, it was brought to the attention of the Working Group that effective and
speedy remedies for detainees to challenge the necessity and legality of detention at any
point during their detention were still lacking. Although free legal assistance and
representation before the Immigration Appeals Board will be provided once the law is
enacted, the future regime will not enable such public defence lawyers to bring procedures
before the civil and the constitutional courts or the European regional justice mechanisms.
The Working Group stresses that the amendments under discussion should ensure that the
judicial review of immigration cases covers the necessity and proportionality of the
measures taken in each individual case, in line with the requirements of international law.
In this regard, the Working Group encourages the Government of Malta to refer to relevant
principles and guidelines in the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court (see A/HRC/30/37, annex). The new amendments should also
allow a defence lawyer to bring cases before all existing tribunals or mechanisms, including
civil and constitutional courts, international human rights bodies and the European Court of
Human Rights.
49. The Working Group had recommended in 2009 that, where there remained a regime
of mandatory administrative detention for migrants in an irregular situation, the
Government should legally define the maximum period of such detention rather than
relying on Government regulations or policy to make such a determination. During its
follow-up visit, the Working Group welcomed the plan to define the maximum period of
detention. The amendments under discussion would establish a maximum period of
detention of 18 months for migrants in an irregular situation and 9 months for asylum
seekers, subject to administrative review introduced in 2014.
50. The Working Group notes that some alternatives to detention have been put in place.
It emphasizes that, instead of automatic and mandatory detention, less restrictive measures
should be applied, such as bail, home curfew, deposit of documents, reporting conditions,
and community release or supervision in a designated residence. Detention should be
applied only when necessary, reasonable in all circumstances, proportionate to a legitimate
purpose, non-discriminatory and subject to judicial review.
51. As to its recommendation that the Government provide for a system of legal aid for
immigration detainees, the Working Group observed during its visit that, while legal
assistance for asylum seekers was provided through the valuable work of non-governmental
organizations, such efforts were insufficient to ensure the provision of legal aid to all
detainees. The Government would need to invest more in providing such legal assistance,
as that was its international obligation.
52. The Working Group was informed that the Government provided asylum seekers
with free legal aid only at the appeal stage of the application process, before the
Immigration Appeals Board. Government officials indicated to the Working Group that
changes would be introduced in the legal aid system and that legal aid would be provided at
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all stages. An agency had been created to provide specialized legal aid prior to the appeal
stage.
53. However, at the time of its follow-up visit, it was brought to the attention of the
Working Group that, in practice, access to effective legal assistance, especially for indigent
foreigners, remained very limited. The Working Group noted that persons being held at the
immigration detention centre were not clearly aware of their status and rights and that their
access to legal aid appeared to be very limited.
54. In this regard, the Working Group recommends that Malta make additional efforts to
bring the legal aid system into compliance with international human rights standards, in
terms of both resources and effectiveness. Free legal aid should be also provided for
appeals before the Civil, Constitutional and European Courts, as well as for the presentation
of cases before international human rights bodies.
55. In 2009, the Working Group observed that Malta was carrying a disproportionate
burden and did not have the necessary financial and other resources at its disposal. The
Working Group therefore appealed to the international community to assist the Government
in bringing its immigration detention regime into conformity with applicable international
human rights law and standards while reminding Malta of its international human rights
obligations.
56. As of February 2016, 886 persons had been granted refugee status in Malta, 11,243
individuals had received subsidiary protection and 1,694 persons had been granted other
forms of complementary protection.3
57. The Working Group is also concerned that European States have ignored the
migration problem in the Mediterranean for too long. In 2014, European countries agreed to
receive only 150 migrants from Malta, while the United States of America agreed to receive
500. According to the Maltese authorities, Malta can accept only 200 asylum seekers and
refugees per year.
58. In this respect, the Working Group fully acknowledges the need for a
comprehensive response at the African, European and universal levels to the challenges
posed by irregular immigration worldwide. If shared responsibility in Europe were
effective, it could help identify solutions and alleviate suffering. Furthermore, the Working
Group calls on all countries in the vicinity, including countries in the Middle East, to accept
refugees and to consider giving financial contributions if they cannot host any.
Recommendations in relation to monitoring mechanisms
59. The Working Group recommended after its first visit to Malta, in 2009, that the
Government strengthen the status, powers and functions of the Board of Visitors of the
Prisons and the Board of Visitors for Detained Persons to provide for more effective
monitoring of detention facilities, as designated national preventive mechanisms under the
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The Working Group explained that this would include
the extension of their respective mandates to the aspect of legality of detention that had not
been ordered by a court, including administrative detention and “detention within
detention” as a form of disciplinary measure, as well as the publication of all their reports
addressed to the Ministers of Justice and Home Affairs. The Working Group further
recommended that the Government strengthen the status, powers and functions of the
Office of the Ombudsman in accordance with the principles relating to the status of national
institutions for the promotion and protection of human rights (the Paris Principles).
__________________
3 See www.unhcr.org.mt/charts/category/17.
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60. During its follow-up visit, the Working Group received information concerning the
monitoring mechanisms, namely the Board of Visitors of the Prisons and the Board of
Visitors for Detained Persons, the qualifications of the board members and their expertise
in relation to detention. The Working Group is convinced that the mandate of the two
Boards must be protected by law and that they should be given the authority to request
changes in detention conditions, when necessary.
61. The Board of Visitors for Detained Persons was established in 2007. It submits
reports and makes recommendations to the Minister for Home Affairs and National
Security. Staff of the Board visit detention centres every week, monitor detention
conditions, receive complaints from detainees and conduct interviews with the centre’s
authorities. A psychiatrist regularly accompanies Board members during their visits.
Members of the Board also visit detained persons when they are transferred for treatment,
for example to Mount Carmel Hospital for mental health treatment. As provided by Legal
Notice 266 of 2007, amended by Legal Notice 251 of 2012, “the Board and every member
thereof shall have access at any time to every part of the detention centres and to every
detainee and may interview any detainee out of the sight and hearing of all officers”. The
Working Group holds the view that the mandate of this Board could be extended beyond
the closed detention centres to other places, such as the mental hospital, elderly care
facilities and even private houses, whenever reliable information exists that individuals are
being deprived of their liberty.
62. The Working Group is aware that the jurisdiction of the Ombudsman is limited to
the Public Administration and that this mechanism reports to the Parliament. The Working
Group learned during its follow-up visit that the Ombudsman had proposed the
appointment of a commissioner on detention services to review complaints and investigate
detention-related issues. Although this proposal has not been taken up by the Government,
the Working Group understands that the current Ombudsman has the mandate under the
Ombudsman Act of 1995 to receive and act upon complaints regarding administrative
actions taken by or on behalf of Government and other authorities in relation to detention
and immigration detention. It has also been noted by the Working Group that the Office of
the Ombudsman has in the past investigated complaints lodged by migrants when their
fundamental human rights have allegedly been breached. In addition, the Working Group
has been informed by the Government that there is a presence of the Ombudsman’s office
at the Corradino Correctional Facility to ensure that complaints regarding public
administrative matters from persons deprived of their liberty are properly reviewed. In this
regard, the Working Group encourages the Ombudsman to play a more proactive role in
receiving and reviewing complaints regarding public administrative matters from persons
deprived of liberty.
63. The Working Group also takes note of the commitment of Malta to establish a
national human rights institution in full compliance with the Paris Principles, and
encourages Malta to speed up the establishment process of such an institution.
IV. Additional findings
64. In regard to correctional facilities, the Working Group visited the Corradino
Correction Facility, the main prison of the country, which operates under the auspices of
the Department of Correctional Services. It has the capacity to hold 540 inmates, although
in May 2014 640 inmates were residing there. At the time of the visit, there were 543
inmates, including 42 women, of which 345 inmates were citizens of Malta and 198 were
foreigners, including some asylum seekers, while 110 prisoners were in pretrial detention
and 433 had been convicted.
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65. Some improvements have taken place in the prison over the past three years. Some
qualified prisoners have been granted the authorization to work outside the prison. The
solitary confinement cells are now very rarely used and, even when they are used, the
Working Group was informed that it is only for a few hours.
66. The Working Group found a 15-year-old boy at the Young Offenders Unit of the
prison. He had spent two months there, awaiting trial before the Juvenile Court. Children
were following educational and integration programmes, provided with the assistance of
non-governmental organizations. However, the Working Group stresses that children and
young offenders should be separated, as recommended by the Committee on the Rights of
the Child in line with article 37 (c) of the Convention on the Rights of the Child and article
10 (2) (b) of the International Covenant on Civil and Political Rights.
67. The Working Group notes with concern the limitations on access to education and
training opportunities, especially for female inmates. The Working Group is also concerned
that pretrial detainees are detained together with convicted persons, in violation of article
10 (2) (a) of the International Covenant on Civil and Political Rights, to which Malta is a
party. The Working Group welcomes plans for a separate unit for female juveniles.
68. In January 2012, the Restorative Justice Act entered into force. The Act includes a
provision for granting parole to prisoners, and establishes an offenders assessment board, a
victim support unit, a remission board and a victim-offender mediation committee. The
parole board is headed by a retired judge. The Department of Probation and Parole is
currently supervising 23 persons. Thirty-eight persons have already been released on
parole. However, the parole system needs more financial resources to be fully developed.
The current requirements appear to lead to de facto discrimination because only citizens of
Malta can in practice benefit from parole, while foreigners serving sentences lack the
consolidated family environment to take advantage of such an opportunity for
rehabilitation. In this regard, the Government of Malta has explained to the Working Group
that the aim of parole is to facilitate the reintegration of offenders into the community
following their successful adherence to the individualized care plan developed while
serving their sentence in prison. For this purpose, those inmates who apply and have a
stable family and employment structure upon release have an advantage over others,
especially foreigners. Furthermore, as the Restorative Justice Act points out, all European
Union nationals are eligible to apply for parole. The Government of Malta informed the
Working Group that a number of European Union nationals, as well as inmates who have
humanitarian protection in Malta, have been granted a parole licence.
69. It is also essential that the pretrial detention period be shortened as much as possible.
70. During its visit, the Working Group was pleased to learn from the Government that
the military would no longer be involved in managing the detention centres for immigrants.
Its role would be restricted to search-and-rescue activities. However, the Working Group
emphasizes that an open reception facility for immigrants should not be established or built
on military premises.
71. The Working Group is concerned about the absence of a procedure to identify
stateless persons and persons at risk of statelessness.
72. It is of serious concern to the Working Group that, besides the limited resettlement,
assisted voluntary return and integration programmes that exist, there is a lack of long-term
planning for persons residing at the open centres. Given the limited resources and job
opportunities in Malta, many of them are experiencing difficulties integrating into Maltese
society. This precarious condition can only be a challenge for all, both for the migrants
themselves and for Maltese society in general, in the years to come, negatively affecting the
integration process but also exposing migrants to the misleading attraction that criminal
enterprises sometimes present. Whether those in the open centres enjoy effective liberty and
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humane conditions would be critical in any assessment of whether such centres are not
indeed a new form of deprivation of liberty.
73. In relation to long-term planning for migrants, asylum seekers and refugees residing
in Malta, the Working Group recommends that the Government explore alternative
placement options. It was brought to the attention of the Working Group that civil society
organizations and religious bodies in Malta have years of experience in providing
community-based placement for migrants, asylum seekers and refugees. In addition, from
observations on the ground, it appears that community-based placement can better meet the
needs of this group of people and empower them to participate in the case resolution
process. The Working Group thus suggests that the Government of Malta work together
with those civil organizations and religious bodies which have ample experience working in
this area to create more opportunities for migrants, asylum seekers and refugees to reside in
the community.
V. Conclusions
74. The Working Group is of the opinion that efforts should be made by the
judicial system of Malta to address challenges related to lengthy delays in the
administration of justice, as well as limited access by individuals to due process.
75. The Working Group notes with satisfaction the recent amendments to the
Criminal Code according to which persons deprived of their liberty now have the
right to access to a lawyer immediately after their arrest and during the first 48 hours
of their detention. However, this right should also applied in all cases in which a
person is detained by police forces, in order to ensure that police interrogations are
conducted in conformity with international human rights obligations.
76. The Working Group notes with concern that judicial authorities are, in
practice, interpreting that, if a detainee makes use of his or her right to have a lawyer,
he or she loses the right to remain silent.
77. The Working Group commends the authorities of Malta for the recent reforms
related to increasing the age of criminal responsibility, which has been raised from 9
to 14 years. However, the Group is concerned that juveniles aged between 16 and 18
years of age, who are children according the Convention on the Rights of the Child,
continue to be sent to General Courts for adults, instead of the Juvenile Court.
78. The Working Group acknowledges with satisfaction that in 2013 a new parole
system was established. Nevertheless, the Working Group is aware that the parole
system needs more financial resources in order to be fully operational.
79. The Working Group welcomes the measures adopted by the Government to
improve the treatment of prisoners and detainees, such as by providing educational
programmes, vocational training, mental health care and social services.
80. The significant reduction in the number of arrivals since 2013 has contributed
to an improvement in the situation. More people found at sea by the Maltese and
Italian coast guards are being transported to Italian harbours. Most migrants in an
irregular situation are now coming to Malta by air.
81. The Working Group reiterates that the right to seek and enjoy asylum should
be recognized as a basic human right in accordance with the Universal Declaration of
Human Rights and relevant applicable international law.
82. The Working Group was able to verify substantial changes in the system of
treatment of these persons compared with the situation prevailing during its first visit
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16
in 2009. The Working Group is nevertheless of the view that the Government of Malta
should employ more resources to enable its public servants to be sensitive to the fact
that refugees and asylum seekers have experienced traumatic events and are fleeing
their places of origin due to fear of persecution. Asylum seekers, immigrants and
refugees who arrive in Malta in an irregular manner continue to be systematically and
routinely detained.
83. The Working Group takes note of the legislative changes already introduced to
reform the automatic nature of detention for migrants in an irregular situation,
refugees and asylum seekers. Legislation concerning the application of the directive of
the European Parliament and of the Council on common standards and procedures in
Member States for returning illegally staying third-country nationals has been
adopted, the Immigration Act has been amended in order to allow for detentions to be
challenged, temporary permits to work for up to three months have been established,
and a voluntary return programme has been designed.
84. However, the period of detention still varies from 2 to 12 months pending
adjudication of an asylum request. The drastic reduction in arrivals by sea and the
improvement in internal administrative procedures have allowed the reduction of the
average detention period to two months. Those with rejected applications are still
detained for up to 18 months as permitted by law. Automatic detention continues to
be the norm and early release the exception, a situation which is not in conformity
with international law. Authorities asserted that initial detention was necessary in
order to identify the detainee, verify her or his nationality, and establish his or her age
and the state of his or her physical and psychological health. These reasons cannot
justify detention during long periods of up to 12 months. In cases involving people
whose application for asylum has been refused and who are awaiting deportation,
their detention can last for up to 18 months.
85. The Working Group is aware of the positive steps taken by the Government to
establish a new system of reception for asylum seekers, refugees and migrants in an
irregular situation, through the establishment of initial reception centres. After one
week in such a centre, immigrants, refugees and asylum seekers will be transferred
either to an open centre or to a detention centre, like Safi Barracks, on the basis of an
individual detention order, which can be appealed before the Immigration Appeals
Board.
86. The Working Group would like to highlight the positive measures taken in
relation to children and to migrants with psychosocial and intellectual disabilities.
Children will no longer be detained; after their identity, health and age is registered
by the corresponding governmental agency, the Agency for the Welfare of Asylum
Seekers, they will be transferred to special houses or placed in the care of foster
families.
87. The Working Group found migrants in an irregular situation and asylum
seekers in the Corradino Correctional Facility, the main prison of the country, where
543 persons are currently detained. The Working Group observed that people in
pretrial detention continued to be held together with convicts, in contravention of
international norms.
VI. Recommendations
88. The Working Group welcomes the cooperation received from the Government
of Malta during its follow-up visit and wishes to continue this cooperation. The
Working Group would like to make the recommendations listed below.
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In relation to migrants, asylum seekers and refugees
89. The Working Group recommends that the Government:
(a) End the regime of mandatory and automatic detention for asylum
seekers, refugees and migrants in an irregular situation and replace it with a reception
system;
(b) End the military presence in the management of the detention centres;
(c) Ensure that migrants in an irregular situation, refugees and asylum
seekers are informed about their rights, as well as the regulations and procedures,
following their arrival in Malta;
(d) Further reduce the duration of administrative detention of migrants in
an irregular situation. The Working Group recommends that detention should be
applied when necessary, reasonable in all circumstances, proportionate to a legitimate
purpose, non-discriminatory and subject to judicial review. The criteria of necessity
and responsibility should always be respected. In addition, the Working Group
recommends that less restrictive measures should be applied, such as bail, home
curfew, deposit of documents, reporting conditions, community release or supervision-
designated residence;
(e) Extend free legal aid to migrants in an irregular situation, refugees and
asylum seekers before the appeal stage of the review process. Such aid should not be
limited to recourse before the Immigration Appeals Board but rather extended to
appeals before the Civil, Constitutional and European Courts, as well as international
human rights bodies;
(f) Design long-term planning for people living in open centres. The
Government should explore alternative placement options. The Working Group
suggests that the Government of Malta work together with civil society organizations
and religious bodies that have ample experience in providing community-based
placement to create more opportunities for migrants, asylum seekers and refugees to
reside in the community;
(g) Prioritize the cooperation of civil society organizations, particularly
religious institutions with considerable expertise and experience in these areas. These
organizations have a substantial contribution to make regarding the legislative drafts
that the Government is preparing in order to design a new system for reception of
immigrants, refugees and asylum seekers that is not based on detention.
In relation to criminal justice
90. The Working Group recommends that the Government improve facilities and
provide educational, social and integration programmes in correctional facilities and
detention centres, while equal opportunities should be provided to female and male
inmates.
In relation to juvenile justice
91. The Working Group recommends that the Government:
(a) Incorporate the Convention on the Rights of the Child into domestic
legislation with regard to the scope of its juvenile justice system;
(b) Separate persons below the age of 18 from adults in correctional
facilities and detention centres. The Working Group stresses that children should
never be detained together with adults.