Asylum workers call for comprehensive detention policy, not incremental changes

As government wrangles with the European Commission over a non-existent "burden sharing mechanism" - and argues with human rights agencies about the legality of otherwise of its proposed push-back policy - life in detention centres goes on as usual both, for the detained migrants and also for the personnel tasked with their supervision.

'Usual', in this context, refers to a situation in which almost a third of the detainees have reported being physically assaulted (often by other inmates) at least once during their detention; where access to basic medical facilities is severely limited and inadequate; where migrants are held in overcrowded conditions characterised by a mix of often antagonistic nationalities; and where entire sections reserved for female detainees are to this day guarded by an almost exclusively male security staff.

These are among a few of the systemic shortcomings identified by inspections carried out by the UN's Committee for the Prevention of Torture in 2012, and which - despite limited improvements in certain areas since the report was compiled - have been separately confirmed by voluntary workers who, unlike the media or the general public - have regular access to the same centres.

Katrine Camilleri, legal counsel to the Jesuit Refugees Services, points out that while the overall conditions have improved - especially in the more problematic areas, such as the notiorious 'tent city' or Lyster Barracks' 'Hermes Block' - many of the basic infrastructural problems facing Malta's detention policy have yet to be overcome.

"There have been considerable improvements in the physical conditions at Hermes Block in Lyster Barracks, particularly when compared to the state of the building at the time of the CPT's previous visit in 2008," Camilleri confirmed when asked to react to the CPT report. "But despite the refurbishments carried out since last year - which include the installation of proper toilet and shower facilities instead of mobile ones - the conditions in the warehouses still remain far from acceptable."

This, she adds, is primarily because these facilities are inherently unsuitable to detain people in the long term.

"As the name suggests, the warehouses were not built to accommodate people, much less to detain them for up to 18 months, which is a long time by any standard. Despite the modifications made to the structures to convert them into detention centres - e.g., partitions to divide the space into smaller sections, the creation of a common area, and the periodic 'refurbishments' - the facilities remain far from adequate."

Of far greater concern, however, is the situation at the Irregular Migrants'/Asylum Seekers' Unit in Mount Carmel Hospital - which had been separately singled out for criticism in a report by Medecines Sans Frontieres in 2009, and untouched ever since.

JRS upholds the CPT's view that conditions at this facility are "completely unacceptable... particularly when one considers that this is meant to be a therapeutic facility".

Katrine Camilleri is further concerned by the government's response to this criticism. "It is extremely worrying, to say the least, as it indicates that migrants receiving in-patient treatment in the ward are seen first as detainees, then as patients in need of care and support..."

Access to health care inside the detention centres is considered to be inadequate by both by the Council of Europe and local NGOs, especially when the centres are full. This situation does not seem to have changed in any insignificant way since 'Medecins Sans Frontieres' temporarily pulled out of Malta on protest at the same conditions in 2009.

In addition to the physical conditions of detention, Camilleri points towards other issues directly impacting the quality of life of detainees that need to be taken into account when assessing the conditions of detention.

As also noted in the CPT report, it would appear that the sections reserved for female detainees in Malta's closed centres are still for the most part supervised by men, in violation of the most basic standards of human rights protection.

"It remains a matter of serious concern that women are guarded by an almost exclusively male staff," Camilleri says, adding that the number of female members of the DS has not increased since the time of the CPT visit.

"The situation is even more worrying when one considers that there is no effective complaints mechanism in place for detainees."

This latter concern has been manifest in another of the frequently aired complaints about detention: that of violence among detainees.

Although this is a problem common to all detention centres, including prisons, in Malta's holding centres for migrants it is often greatly exacerbated by the conditions in which detainees are held: namely large numbers of people of different and often antagonistic nationalities held in difficult conditions.

"It is indicative that 28% of respondents (89 detainees) interviewed in 2009, reported being physically assaulted while in detention, of whom 68% by other detainees. Of those who claimed to have experienced such incidents, 18% said that they filed a complaint about the physical assault, but none reported any change as a result..."

This has to be counter-balanced by a considerable decline in complaints regarding violence or abuse by Detention Services Staff.  which detainees claimed ill-treatment by Detention Services staff (as opposed to other detainees). 

"Regarding ill-treatment in custody, we too have noted a very significant decrease in the number of complaints of deliberate physical ill-treatment by DS staff, and rarely receive any complaints of this nature during our regular visits to detention," Camilleri confirmed.

"We are however concerned about the use of excessive force in particular contexts, usually to control detainees - e.g., where there are riots or escapes from detention. This is particularly worrying in a context where there is no structure in place for systematic review of DS conduct, and no effective remedy to receive and investigate detainee complaints of ill-treatment or abuse and provide for some kind of remedy in the case of a finding of abuse."

As things stand, Camilleri adds, the decision to conduct an inquiry rests solely with the ministry concerned.

"In fact, no independent inquiry was conducted into the incidents in detention July 2009 and August 2011, where ill-treatment or use of excessive force was alleged. This is worrying, as such investigations are essential to establish the facts, ensure redress in case of abuse and set up the structures necessary to prevent a repetition..."

The apparent lack of any independent body to investigate detention services staff has also resulted in cases were apparent crimes - including possible homicides - have not been given the same importance as they would had the victims not been immigrants.

There are at least two cases in which potential murders have not been properly investigated: those of Christian Ifeanyi in April 2011 and Mamadou Kamara in June 2012.

Despite the intense publicity surrounding these two cases at the time, the relevant inquests are apparently incomplete to this day.

"It is also completely unacceptable that the results of the various inquiries into the deaths of two migrants in detention [Ifeanyi and Kamara] have not yet been completed, or not published," Camilleri notes.

"At the end of the day, all are responsible for the consequences of their actions before the law - it is not only the conduct of the migrants that should be scrutinised in such circumstances for action taken against them if necessary; the conduct of the DS and security forces should also be subject to similar scrutiny. Given that, within a detention context, the balance of power is weighed heavily in favour of the authorities, it is essential that the decision to conduct an independent investigation is not left exclusively in the hands of the authorities but is guaranteed by law."

Elsewhere, it has been observed that despite forcing migrants to spend as much as 18 months in detention, Malta's detention policy does not provide for any activities within the centres... other than those implemented as part of projects - and which are, by definition, temporary.

Many of these activities have been part of EU-funded projects - examples include the SPARKLET Project, run by government agency AWAS: and this in turn also means that they may not be not available to all detainees.

Camilleri explains that EU funded activities often target only a specific category of migrant: e.g., the European Refugee Fund funds activities for asylum seekers and beneficiaries of protection, so rejected asylum seekers would be excluded.

"The fact that activities end with the project and only start again once more funding is obtained also means that trained and committed staff is lost, and much energy has to be wasted recruiting and training new staff if and when funding becomes available."

Moreover there are no projects ongoing at the moment, apart from those run by NGOs, so there are no activities.

"This is a great pity, as SPARKLET was extremely positive and made a big difference to the detainees, through the regular presence of welfare officers and the organization of a programme of activities..."

Limited improvements

Nonetheless, both JRS and the United Nations Human Rights Commission (UNHCR) concur that some improvements have been registered since the CPT report in June 2012.

Camilleri notes how the previous administration had initiated a review of the detention system following the death of Malian migrant Mamadou Kamara in June 2012. The outcome of this review included a complete upgrading of the conditions in detention.

"Although we (refugee-assisting NGOs) were concerned that the review did not address the lawfulness or appropriateness of the detention policy per se, we welcomed the proposed improvements in conditions."

Likewise, the UNHCR's Fabrizio Ellul expresses moderate satisfaction at the same improvements.

"UNHCR has on several occasions expressed its concerns about the detention system in Malta. The CPT report does acknowledge important improvements in the material conditions, and UNHCR agrees that there have been significant positive changes, in particular within the Lyster Barracks centre," he told MaltaToday.

"The CPT report also concludes that some of the facilities at Safi should be used only in emergencies. And while there have been improvements also there since the CPT visit in 2011 (for example as regards the sanitation facilities), UNHCR agrees that it is not acceptable to detain people in big halls holding several hundred people for prolonged periods of time."

Nonetheless, both the UNHCR and JRS reiterate that the system as a whole - and not just individual conditions of detentions - is in urgent need of an upgrade.

"It is UNHCR's view that some of the problems identified in the CPT report (riots, mental health, incidents relating to escape) can only be effectively addressed through a comprehensive review of the detention system. Few European countries have a system that prescribes detention during the whole period of the asylum procedure for asylum seekers arriving irregularly; in fact such a practice is at odds with EU regulations and UNHCR's guidelines."

Ellul stresses that a systemic overhaul would also benefit the personnel tasked with supervising detention.

"In our view, both refugees and the Maltese authorities would benefit from a better managed system which makes more use of viable alternatives to detention. Placing people behind bars for prolonged periods has a high cost - both in human and financial terms."