Updated: Government snubs JRS call to amend law on detention policy

Updated 6:25pm with reaction from Ministry of Justice and Home Affairs.

“The judgement of the European Court of Human Rights in the case of Khaled Louled Massoud against Malta clearly indicates that detention of irregular migrants in Malta falls short of the requirements of human rights law,” said Fr Joseph Cassar, JRS Malta Director.

“Since there are so few people in detention it is easy to think that it is no longer an issue, but these laws and policies still affect the lives of people and they will continue to do so unless something is done.”

In this judgment, which became final on 27 October 2010, the Court upheld Massoud’s claim that his 18 month detention pending his deportation from Malta violated his fundamental human right to freedom from arbitrary detention in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Although the case focuses on the detention of one particular individual, the findings of the Court and the principles it enunciated when passing judgment also shed light on the adequacy of the legal and policy framework regulating detention in Malta. 

“This ruling makes clear that no one should be arbitrarily detained, even if they have no legal right to be in Malta and are subject to removal proceedings,” said Fr Cassar.

In a reaction, the Justice and Home Affairs Ministry declared that the country’s laws were alread in conformity with the EU’s and the European Convention of Human Rights. “Our rules don’t violate these laws. The government does not believe it should change its detention policy, a policy that is operate by various other member states.”

The ministry said the Louled Massoud case “did not establish any principle” that required a change in laws, and said the Immigration Act gave a remedy to challenge detention.”

“It is a cause of great concern to JRS that people fleeing war, persecution, torture and other serious violations of their human rights too are subjected to prolonged detention, without adequate guarantees of protection from arbitrariness, because of their irregular immigration status”, Fr Cassar said.

In the light of the Court’s findings in this case, JRS Malta urged the government of Malta to conduct a holistic review of the national legal and policy framework regulating detention in order to ensure that it is in line with human rights law.

In particular, the organization called upon the government to amend the law in order to ensure that: detention is not used where removal is not feasible; even where removal is possible, detention is only used as a last resort, in specific cases where other less coercive measures have proved insufficient to secure the individual’s removal from national territory.

It also called for alternative measures so that detention does not remain the only option; and that detainees are protected from arbitrariness through the introduction of legal guarantees.

These guarantees include a requirement that detention is only implemented after a specific order to that effect, supported by reasons in fact and in law, has been issued by a judicial authority.

It also called for a fixed time-limit on detention established by law; and a speedy judicial remedy to challenge the lawfulness of detention and an automatic, independent review of detention at regular intervals.