United Nations Working Group on Arbitrary Detention - Statement at the conclusion of its follow-up visit to Malta (23 – 25 June 2015)

At the invitation of the Government, the United Nations Working Group on Arbitrary Detention conducted its follow-up visit to Malta from 23 to 25 June 2015. The main purposes of this follow-up visit was to assess the implementation of recommendations made by the Working Group following its initial visit to Malta in 2009 and to continue its engagement with the Maltese Government in addressing issues related to detention and deprivation of liberty in the country. The delegation was composed of the Second Vice-Chair, Mr. Sètondji Roland Adjovi and Mr. Mads Andenas. They were accompanied by two members from the Secretariat, Mr. Miguel de la Lama, the Secretary of the Working Group, and Ms. Yiyao Zhang, both from the Office of the United Nations High Commissioner for Human Rights.

At the outset, the delegation would like to thank the Government of Malta for extending an invitation to the Working Group to conduct a follow-up visit and for its full cooperation before and during the visit. More importantly, the Working Group would like to continue the constructive dialogue with the Maltese Government on these issues.

During its three-day visit, the Working Group met with various authorities from different branches of the State. The delegation had the honour of meeting with Her Excellency, the President of Malta; the Minister for Foreign Affairs; the Minister for Justice; the Minister for Home Affairs and National Security; and the Permanent Secretary of the Ministry for Home Affairs and National Security; the Magistrate of Juvenile Court; the Social Affairs Committee of the Parliament in its setting on irregular immigration; and representatives from 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, representatives from relevant UN agencies and civil society organizations. The Working Group is very grateful for the cooperation of all the authorities and interlocutors that it met with during the visit.

The delegation visited the Corradino Correctional Facility, the Young Offenders Unit for Rehabilitation Services, Safi Barracks, Hal Far open centre, the newly established Initial Reception Centre for Children, and the Mount Carmel hospital.

The Working Group appreciates that it was allowed to visit all these places upon its request and to interview, in private, individuals some of whom were selected by the Working Group, without any restriction.

Positive changes in follow-up of the 2009 Recommendations

In 2009, the Working Group conducted its initial visit to Malta. On the basis of the findings during the visit, 13 recommendations were made to the Government of Malta concerning criminal justice, juvenile justice, detention under immigration power, and monitoring mechanisms in the country.

Six years after, we came back to Malta to examine the implementation of the recommendations. We are pleased to learn that the majority of the issues raised in 2009 have been followed up by the Government of Malta. Various measures have been taken to implement the recommendations made by the Working Group. We are particularly pleased to learn that there are several positive changes in the legislation and more are discussed.

For example, amendments have been made to the criminal code guaranteeing that persons deprived of liberty have the right to consult a lawyer immediately after the arrest. A parole system has also been set up since 2013 and has already allowed for some 38 inmates to be released.

Concerning juvenile justice, the Working Group welcomes that the age of criminal responsibility has been lifted from 9 to 14 years in Malta. We are also pleased to learn about amendments made to the criminal code regarding the criterion of “mischievous discretion” for children between 14 and 16 years, shifting the burden of proof to the prosecution.

As far as detention in relation to immigration is concerned, the Working Group notes the changes already introduced reform of the quasi-automatic nature of such a detention for irregular migrants in compliance with international but also European laws. The Working Group  notes with pleasure the further changes which the authorities are currently working on, especially in relation to minors and removal orders. The Working Group also welcomes the change envisaged in the length of detention: the amendments under discussion would establish the maximum at 18 months for irregular migrants and 9 months for asylum seekers, subject to administrative review introduced in 2014.

Review processes have also been introduced in the detention of migrants, including those who are going to be returned to their countries of origin. Based on the changes in the legislation, the first review is conducted by the principal immigration officer within the first three months of the detention, while the Immigration Appeals Board would have jurisdiction thereafter. Moreover, the Working Group is pleased to learn that the mandate of this Board has been expanded to a full review of the legality and grounds of the detention, and that the detainee can also challenge the detention before the court, with eligibility to legal aid throughout the process.

In addition to what has been mentioned earlier in terms of legislation changes, the Working Group welcomes the introduction of initial reception system which could hopefully change the practice of automatically detaining irregular migrants and asylum seekers from the starting point. A new initial reception centre has already been set up for minors. This centre will host unaccompanied migrant children and accompanied migrant children with up to two family members upon arrival, for medical clearance, age assessment and registration before a transfer to an open centre. This will allow for the non-detention of minors. Plans are still under way for a temporary initial reception centre for adults, while the Government is going to start the construction of a new facility to be used as an initial reception centre which is expected to be in compliance with European Union Directives on the subject.

The Agency for Welfare of Asylum Seekers (AWAS) implements an age assessment and determination procedure in respect of irregular migrants whose age cannot be otherwise determined. The procedure involves a psycho-social assessment, with the persons in question being referred to a medical procedure only if necessary. Whenever the relevant assessment leaves room for doubt as to whether the person is a minor or not, the authorities consider and treat the person concerned as a minor.

Finally, and in relation to the immigration focus, the Working Group wishes to acknowledge here the current dramatic situation around the Mediterranean Sea which has been part of its recent missions to Italy (2014), Germany (2014), Morocco (2013) and Greece (2013). We fully understand the challenges that Malta faces, as a country small in size and an island with a great population density. And the Working Group welcomes efforts made by the authorities in Malta to improve its response to the arrivals of immigrants.

Preliminary Recommendations of the Follow-up Visit

No doubt, all these changes in the legislation demonstrate serious commitment of the authorities of Malta to improving human rights in the country. But there is still a long way to go, and, during the visit, the Working Group learned that a number of issues of serious concern remain to be addressed.

On criminal justice, the access to an effective legal assistance especially for indigent foreigners needs to be improved. It is also essential that the pretrial detention period is shortened as much as possible.

In relation to juvenile justice, the Working Group notes with concern that children between 16 and 18 years old, who are in conflict with the law, are still being tried as adults and subject to criminal law. In this regard, the Working Group concur with the Committee on the Rights of the Child that Malta should bring juvenile justice system fully in line with international standards. In particular, Malta should consider extending the scope of its juvenile legislation to include all children under the age of 18 years.

With regard to the monitoring mechanisms, namely the Immigration Appeals Board, the Board of Visitors of the Prison and the Board of Visitors for Detained Persons, the qualification of the mandate-holders and their expertise in relation to detention and prison and the grounds for those conditions are critical, while the effectiveness of their mandate needs to be protected in law. For instance, in the case of the Board of Detained Persons, the change could be to expand its mandate beyond the closed detention centres, such as the mental hospital, the elderly care facilities but also the private houses whenever reliable information exists that individuals are deprived of their liberty.

On the deprivation of liberty in connection to immigration, the Working Group has noted that persons being held at the immigration detention centre are not clearly aware of their status, while their access to legal aid seems to be very limited. In addition, effective and speedy remedies seem to be lacking, including under the immigration appeals board, the constitutional court and the access to European regional justice mechanisms (because of extremely limited legal assistance). Moreover, the amendments under discussion should make clear that the judicial review in immigration cases cover the necessity and proportionality in each individual case of the measures, and compliance with the requirements of international law. Finally, the Working Group understood that civil society organizations have not yet been consulted on the proposed changes in legislation in the area of immigration detention and encourages relevant authorities to consult civil society organizations which have expertise on these matters. And the Working Group was pleased that the Social Affairs Committee has expressed its commitment to such a consultation.

During its visit, the Working Group was pleased to learn from the Government that the military will no longer be involved in managing the detention centre for immigrants.

Their role will 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 which do not allow for freedom of movement.
It is of serious concern to the Working Group that 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 to integrate into the Maltese society and this precarious condition can only be a challenge for all in the years to come, negatively affecting the integration process. Effective liberty and humane conditions for these open centres would be critical in any assessment of whether they are not indeed a new form of deprivation of liberty.

Furthermore, 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 a shared responsibility in Europe was effective, it could help identify solutions and alleviate the suffering.

On the correctional facilities, the Working Group notes with concern the limitation in the access to education and training opportunities especially for female inmates and the fact that pre-trial detainees are mixed with convicted persons. The Working Group is happy to learn that there are plans for a separate unit for female juveniles. It stresses that minors and young offenders should be separated, as recommended by the Committee on the Rights of the Child.

In conclusion and on the way forward, it is important to keep in mind that these are our preliminary observations which will be further assessed through continuous dialogue with the Government, and the report will provide the final say from the WG in the months to come.