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Concerns in Europe and
Central Asia
July - December
2002
MALTA
The detention and deportation
of asylum-seekers
September letter to the government
On 27 September AI wrote to the Maltese Minister
for Home Affairs and the Environment, expressing concern about issues
surrounding the reception and treatment of hundreds of recently arrived
asylum-seekers in Malta, many of them Eritrean, and fears that, unless
their claims for protection were adequately examined, many could be at risk
of serious human rights violations and abuses upon return to their
countries of origin.
In
order to uphold the principle of non-refoulement, a principle of
customary international law which is reflected in the 1951
Convention relating to the Status of Refugees and its 1967 Protocol, to
which Malta is a State Party, AI urged the Maltese government to refrain
from returning any of these asylum-seekers to their countries of origin
until their claims for refugee status had been examined in a full, fair
and satisfactory asylum procedure.
AI
noted that a legal procedure had commenced in the Maltese Constitutional
Court wherein over 50 claimants (the vast majority Eritreans) were
calling for a deportation order issued by a Magistrates’ Court in March 2002
to be revoked, on the grounds that their enjoyment of human rights would
be threatened upon return to their countries of origin. The claimants were apparently
also arguing that they were deprived of a fair hearing in the processing
of their application for refugee status and when submitting appeals
against initial rejections before the Refugee Appeals Board. The
deportation orders were suspended pending the Constitutional Court’s
ruling.
AI
warned of the disturbing human rights situation in Eritrea, and drew
attention to a report it had published on some of its concerns in Eritrea
on 18 September (See AI Index: AFR 64/008/2002). The organization said that in the
current human rights crisis in Eritrea, anyone deported there who was
suspected of opposition to the government or having evaded military
service or deserted from the army would be arrested and possibly
subjected to torture or ill-treatment. They could be detained for an
indefinite period without charge or trial, without any protection against
unlawful detention. If tried, they would face lengthy imprisonment or
possibly the death penalty. Their relatives could also be detained on
suspicion of assisting them to escape. At the same time AI appealed to the Eritrean President
for assurances that the returnees from Malta would not be ill-treated or
arbitrarily detained as a result of conscientious objection to military
service.
AI
also stressed the limited nature of the declaration of cessation of
refugee status for Eritrean refugees which was made by the United Nations
High Commissioner for Refugees (UNHCR) in May 2002, taking effect from 31
December 2002. It is applicable to only two specific categories of
Eritrean refugees and people in both categories still have the right to
have any individual claim for further protection examined in a full and
fair procedure.
AI
also raised concerns about the conditions of detention for asylum-seekers
of all nationalities in Malta, including many children, and expressed
particular concern that the Ta’ Kandja Police Complex at Siġġiewi was
again being used as a detention centre for aliens held under the
provisions of the Immigration Act.
AI
pointed out that in August 2002, the Council of Europe’s Committee for
the Prevention of Torture (CPT) issued a report on the findings of a
visit to various places of detention in Malta in May 2001, including the
Ta’ Kandja Police Complex.
The report indicated that, at the time of the CPT’s visit there
were plans for an imminent transfer of the detainees to the new Hal Far
Detention Centre but said that “a miserable situation scarcely different
from the one observed in 1995 ... was found to prevail: premises -
particularly the sanitary facilities - characterised by filth and
disrepair, as well as an utter absence of purposeful activities for detainees
whose stays at the complex could range from a few days to periods longer
than two years.” The CPT
sought confirmation that detainees were no longer being held in the Ta’
Kandja complex and that the new detention facility at Hal Far had become
operational. In its interim reply, also published in August 2002, the
Maltese government confirmed that the Hal Far Complex was now fully
functional and all detainees previously held at Ta’ Kandja had been
transferred there. It added
that:
“... the Ta’ Kandja Detention Centre was closed down at
the end of February 2002.
However, in view of an emergency situation created by the landing
in Malta of 208 illegal immigrants on 4 March 2002, it was temporarily
used to house about 50 of these immigrants. By now the number has been reduced to a mere handful.”
AI drew attention to reports it had received
that, following the landing of a further group of some 251 asylum-seekers
in July 2002, over 50 people were being detained in Ta’ Kandja by
September and that the number might have increased following the reported
landing of over 140 asylum-seekers in the days immediately preceding the
organization’s letter.
AI also recalled correspondence it had exchanged
with the Maltese government in 1999, when it had expressed concern about
a recurrent overcrowding situation in Ta’ Kandja, appalling conditions of
detention, the inappropriate use of police officers from a special
intervention group to supervise inmates and use of excessive force by
some such officers.
In its September letter AI said that its concern
about the conditions in Ta’ Kandja was exacerbated by the apparent
conclusion of the Maltese Ombudsman, in a report presented to parliament
in May 2002, that the conditions in Ta’ Kandja did not meet the relevant international
standards. AI also noted that the Council of Europe’s Commission against
Racism and Intolerance (ECRI), in its Second report on Malta, made public
in July 2002, also expressed concern about the conditions of detention in
Ta’Kandja and the “lack of specialized staff with appropriate training.”
AI asked to be informed of the steps being taken
to ensure that asylum-seekers were not detained in conditions violating
international standards and sought the Minister’s assurances that the
conditions of detention of all asylum-seekers held in detention
facilities were subject to regular review to ensure their compliance with
relevant international standards. Furthermore, AI called on Malta not to
impose penalties on asylum-seekers solely for their illegal entry or
presence and to ensure that
any decision to detain an asylum-seeker be taken on an individual basis,
be necessary and proportional and subject to regular and automatic review
before a court of law. It
also pointed out that relevant international standards emphasize that the
detention of children should only take place as a measure of last resort
and for the shortest possible time.
AI also sought assurances that any asylum-seeker or refugee held
in circumstances not fulfilling the criteria drawn from international
standards would be released immediately.
Following its letter, AI received reports that
some 220 Eritreans were forcibly deported between 30 September and 3
October 2002. They were said to have been immediately arrested on arrival
in Asmara and taken to a military camp and placed in incommunicado
detention.
October letter to the
government
On 10
October, in view of the above reports and fears of further deportations,
AI wrote to the Minister and issued a public appeal (see AI Index: EUR
33/001/2002) reiterating the concerns raised in its September letter and
pointing out that, at that time, the Eritrean authorities had neither
acknowledged the detention of the deportees nor revealed their
whereabouts to their families or the public. It called on the government
to suspend deportations of Eritreans back to Eritrea until a thorough,
independent investigation had been made as to their fate and an
assessment made as to whether Eritreans could be forcibly returned in
safety and in dignity, with full respect for their human rights.
Following AI’s letter,
a statement attributed to the Eritrean Director of Refugees claimed that
the deportees were not detained and were well treated, but requests for
access by journalists and diplomats were refused and families remained
without information or access.
AI received reports that the deportees were held initially at Adi
Abeito military detention centre near Asmara, although this was not
officially acknowledged.
According to unofficial sources, most of them were army deserters
and many were said to have been later moved to other unknown military
centres for punishment and return to military duties. There were unconfirmed reports
that some tried to escape and were fired at by guards.
The deportees were among over 400 Eritreans who had arrived
in Malta from March 2002 onwards and were detained on arrival. About half
had applied for asylum in Malta but had their claims rejected. Although
some 50 Eritreans had submitted an appeal to the Maltese Constitutional
Court (see above), others did not apply for asylum, reportedly hoping to
be able to proceed to another country. AI received claims that, when faced with deportation,
many reportedly wanted to apply for asylum but were ignored by the
authorities.
In view of unconfirmed reports of alleged use of excessive
force during at least one of the forcible deportation operations, AI’s
October letter also urged the government to ensure that police officers
have clear instructions that no more force should be used in deporting a
person than is reasonably necessary, in line with international standards
on the use of force by law enforcement officials. It also urged a review
of police restraint techniques and of relevant guidelines and training
for police and other personnel involved in deportation operations in
order to ensure that such operations are carried out in accordance with
relevant Council of Europe recommendations.
Government
response
The
Minister replied to AI’s correspondence by two separate letters dated 4
and 14 October, both received on 21 October.
In the first letter the Minister gave information regarding
Maltese refugee law and stated that the Refugee Act 2000 provided a fair
and satisfactory asylum procedure and that, since its enactment, no
asylum seeker could be deported as long as his/her refugee application
was pending, including during appeal proceedings. As the European
Convention on Human Rights is incorporated into the country’s domestic
legislation, a deportation order could also be suspended by court order,
pending the outcome of human rights proceedings, in spite of the
exhaustion of ordinary remedies under the Refugee Act. The Minister gave
assurances that no deportation had taken place in violation of these
provisions.
The Minister said that the observations which AI had made
about the human rights situation in Eritrea in its September letter had
been noted and that each case presented by an asylum-seeker, including
Eritrean asylum- seekers, was carefully examined on its own merit.
He stated that the arrival of “more than 800 irregular
immigrants in the short space of 6 months” during 2002 had put an
“unbearable strain” on Malta’s limited resources and had created “an
emergency as regards accommodation.” He said that because of the unprecedented number of
arrivals “all persons arriving in Malta in breach of the Immigration Act
1970 were accommodated at the new Hal Far Centre (which can accommodate
100 persons) at the Armed Forces of Malta Barracks at Hal-Safi and
Hal-Far, and unfortunately, as an emergency measure again at Ta’
Kandja.” He said that
“Following the recent repatriation of 220 Eritrean nationals, and a
slight easening of the situation by the repatriation of other immigrants,”
Ta’ Kandja Detention centre” had been closed and would be refurbished to
meet CPT requirements.
He stated that the authorities were obliged by law to keep
in detention any person who was the subject of a removal order issued by
a court but that the situation of children was being examined. He had been informed that they
were “being temporarily released to attend school” and that “Further
developments may occur in this regard as regards families with
children.”
He also pointed out that under an amendment to the
Immigration Act 1970, then under consideration by parliament but in force
since December, the mere act of entering Malta illegally would cease to
be a criminal offence.
The second letter from the Ministry for Home Affairs, in
reply to AI’s October letter,
stated that the government was “not in possession of any evidence
that any ill-treatment was afforded to the Eritreans repatriated from
Malta” and that the Eritrean Director of Refugees “was reported to have
rejected any allegations of ill-treatment.” The letter confirmed that the majority of
Eritreans still in Malta had not applied for refugee status but stated
that, in view of AI’s
recommendations, “ the Maltese Refugee Commissioner and authorities
intend to examine any asylum application which may be filed even at this
late stage.”
The letter said that the findings of an investigation
“emphatically refuted” the alleged use of excessive force during forcible
deportation operations:
“Only a very few, around 8-10, offered resistance, and the minimum
of force was used to control the use of violence by a very few of the
detainees. No tear gas or other riot gear or equipment was used.”. No details were provided as
to whether the investigation was carried out by an independent body and
as to the precise steps taken to establish the facts.
The Maltese government subsequently reported that “1,686
irregular immigrants” arrived in Malta during 2002, compared to 57 in
2001 and 24 in 2000.
Local non-governmental organizations continued to express
concern about the asylum process, calling for improved mechanisms to
ensure asylum-seekers can exercise their rights, especially the right to
legal aid; greater transparency in the appeals process and better quality
information to be provided to asylum seekers about their rights, in a
language understood by them. Further concerns were expressed about the
detention of unaccompanied minors, conditions within the detention
facilities with reports of severe overcrowding with 18 people sleeping in
a room designed for six, lack of access to the open air for even one hour
a day in some instances and, in others, people sleeping in tents in cold
temperatures and rain. There were calls for professional social workers
to start visiting the detention facilities and for improved training for
immigration officers, police and members of the armed forces in contact
with asylum-seekers.
This country entry has been extracted from a
forthcoming Amnesty International report, CONCERNS IN EUROPE AND
CENTRAL ASIA: July - December 2002 (AI Index: EUR 01/002/2003). Anyone
wishing further information on other Amnesty International concerns in
Europe and Central Asia should consult the full document.
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