17 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA
Rights, severely reprimanding Malta for violating,
primarily, Article 5(1)(f).69
Furthermore, given that an aspect of the detention
regime is premised on the return of prohibited
immigrants and that it is almost impossible to return a
stateless person to his country of residence or to the
country of origin,70 it would be correct to conclude that
this form of detention of stateless persons is not only in
violation of the ECHR, but also of EU law, particularly the
Return Directive. In fact, it is pertinent to refer to the
above-described automatic review process introduced in
2014 following a more correct transposition of the
Directive, resulting in an assessment of the returnability
of detained migrants and their consequential release in
cases of unreturnability.
Whilst it is impossible for this report to state whether this
review actually had an impact on stateless persons, due to
the extremely limited number of persons confirmed to be
stateless, it is clear that the review would benefit this
category of persons and also persons at risk of
statelessness. In fact, it could be suggested that the
second transposition effort of the Return Directive, in
2014, was a reaction to the condemnation from the
European Court of Human Rights in the three abovementioned cases (Louled Massoud, Aden Ahmed and
Suso Musa).
At the time of writing this report, the Ministry for Home
Affairs and National Security was in the process of
transposing the recast Reception Conditions Directive.
Although the report is not in a position to comment on the
contents of the proposed transposing legislation, 71 the
meeting with the Minister confirmed that the
transposition process is intended to be a major reform of
the detention system, shifting from a system of automatic
detention to an individual assessment process resulting in
decisions not to detain, to detain or to impose
alternatives to detention. The Ministry also confirmed the
strengthening of the procedural guarantees allowing a
detained person to challenge the legality of his/her
detention. Whilst this news is of course well received, it is
too early to comment on these developments, also since it
would be important to see how such changes will be
implemented on the ground.
With regard to procedural guarantees available to
detained persons (including the stateless or those at risk
of statelessness) to challenge the legality of their
detention, the three Strasbourg Court judgements clearly
highlighted Malta’s failures to comply with the basic
guarantees required in ECHR Article 5(4).
“In the instant case the Court considers that it is necessary, in
view of its finding of a violation of Article 5(4), to indicate the
general measures required to prevent other similar violations
in the future. It observes that it has found a violation of Article
5(4) on account of the fact that none of the remedies
available in Malta could be considered speedy for the purpose
of that provision. Thus, the Court considers that the
respondent State must above all, through appropriate legal
and/or other measures, secure in its domestic legal order a
mechanism which allows individuals taking proceedings to
determine the lawfulness of their detention to obtain a
determination of their claim within Convention-compatible
time limits, but which nevertheless maintains the relevant
procedural safeguards. The Court reiterates that…it must
have a judicial character and provide guarantees appropriate
to the type of deprivation of liberty in question.”72
First of all, in terms of Article 409A of the Criminal
Code,73 a detained person can lodge an application in
order to request to the Court of Magistrates to examine
the lawfulness of detention and order release from
custody. The European Court agreed with the claimants
in saying that the courts entrusted with hearing
applications under the said Article have acknowledged
their limited competence in holding that they were not
competent to look into other circumstances which could
render detention illegal, such as an incompatibility with
the rights granted by the Constitution or the Convention,
when there was a clear law authorising continued
detention. Therefore this remedy did not provide an
effective review of the lawfulness of detention.74
The second remedy existing under domestic law is an
application to the Immigration Appeals Board if a
detained migrant feels that his or her detention is no
longer reasonable. Due to excessive duration of
proceedings, as well as the limitations on the remedy the
Board could give to applicants, these proceedings were
considered by the European Court not to comply with the
requirements of Article 5(4) of the Convention.75
Another remedy potentially available to detained
individuals is a constitutional application before the Civil
Court (First Hall), followed, if necessary, by an appeal to
the Constitutional Court. However, in its jurisprudence
the European Court of Human Rights held that this
procedure was rather cumbersome and that lodging such
a constitutional application would not ensure a speedy
review of the lawfulness of the applicants' detention. 76
Consequently, in the cited cases the Court held that the
applicants had not had at their disposal, under domestic
law, a remedy for challenging the lawfulness of their
detention under Article 5(4).
The 2014 amendments to the Return Regulations
imposed an automatic review of detention at reasonable
intervals, although in practice these reviews are not
triggered by the individual who remains largely unaware
of the review process and conclusion. It is most likely that
this review will not fulfil the requirements of an effective
remedy under ECHR Article 5(4).
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