26 January 2009 A group of independent United Nations human rights experts today voiced concern about the length of time immigrants rescued off the coast of Malta spend in custody, saying it is not “in line with international human rights law.”
The human rights experts noted that illegal immigrants arriving in Malta after enduring risky voyages from North African shores are subject to long periods of automatic detention without genuine legal recourse.
“We consider that the detention regime applied to them is not in line with international human rights law,” said Chairperson of the Working on Arbitrary Detention Manuela Carmena Castrillo.
“We have met an 8-year-old boy, who should not be detained at all, and a Somali man, suffering from HIV and chicken pox, vegetating in a cell in complete isolation, who should rather be in hospital,” added Ms. Carmena Castrillo.
The Maltese Government releases asylum-seekers after 12 months of detention, at the latest, if their asylum claim is still pending. Those who do not apply or whose applications are rejected can end up in custody for 18 months under appalling conditions, the Working Group said at the conclusion of its five-day fact-finding mission to the country.
Although disagreeing with the mandatory detention of immigrants in an irregular situation, the experts said that if incarceration is necessary, its length should at least be clearly defined under law, adding that there appears to be no connection between the specifics of an individual case and the length of custody.
The Group questioned the legitimacy of mandatory detention, pointing out that under Maltese immigration law detention is resorted to in order to carry out removal from its territory.
The Government, however, informed the Working Group that out of the 12,000 immigrants detained since 2002, only around 2,000 have been repatriated.
“In particular, we cannot accept how detention of vulnerable groups of persons can be deemed to be the last resort, as required by applicable international human rights law and also by the so-called ‘EU Return Directive,’ which the Government of Malta has to transpose into national law now,” said Ms. Carmena Castrillo.
Malta applies a fast-track procedure for the release of families with children, unaccompanied minors, pregnant women and breast-feeding mothers, and people with disabilities, serious or chronic physical or mental health problems. However, according to the Government, it may take up to three months to free them and those who are considered a health risk for the community must stay in detention.
“We must not forget that immigrants arriving without proper documentation are not criminals. What we must not forget, either, is that Malta is a small country with by far the highest population density in Europe and limited financial and human resources at hand,” stressed Ms. Carmena Castrillo, stressing that the country cannot manage the large increase of arrivals without the help of the international community.
“We are facing a truly human tragedy here, but we sense that the Government can and should do better already at this point in time.”
The experts also noted the relatively long periods of time defendants spend in detention while awaiting trial and the high rate of detainees on remand in comparison to the overall prison population.
“We are concerned about the figures we have heard: more than 50 per cent of the prisoners in Malta are pre-trial detainees, which is a comparably high rate,” said Vice-Chair of the five-member Group El Hadji Malick Sow.
“We are also concerned about allegations received that the rules of release on bail were not to be equally applied by courts to Maltese citizens and foreigners alike,” he added.
Mr. Malick Sow recommended that “the Government considers establishing a system of release on parole,” recalling the fundamental right of the accused to be presumed innocent until proven guilty and the right to be tried without undue delay, both of which are well-entrenched in international human rights law.
During its mission to Malta, the Group met with senior government authorities of the executive, legislative and judicial branches, as well as with representatives of UN agencies, international organizations, civil society and the Chamber of Advocates.
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