Issue link: https://maltatoday.uberflip.com/i/1500237
6 maltatoday | SUNDAY • 28 MAY 2023 NEWS MATTHEW VELLA THE European Court of Human Rights ruled against Malta and its system of asylum determination and awarded a Bangladeshi journalist de- nied protection €7,000 in damages. The ECHR in Strasbourg said the claim by the persecuted journalist, SH, who reached Malta by boat in 2019, had revealed various failures in the way Malta's International Protec- tion Agency and the appeals tribunals communicate and assess their deci- sions. The Court said that deporting the journalist, who reported on election irregularities in his region in 2018, would breach his human rights, and demanded that the IPA carries out a fresh assessment of his well-docu- mented claim. The journalist complained that the IPA had set out to reject him from the outset due to his nationality, with the case revealing deficiencies in Malta's asylum procedure which the Europe- an Court said were "disconcerting". Denied asylum despite evidence The journalist was denied asylum because the IPA deems Bangladesh to be a safe country of origin, which at law allows it to deem such claims as "manifestly unfounded". The IPA us- es an accelerated procedure in asylum claims from so-called 'safe countries of origin'. The applicant, SH, however sub- mitted 40 pictures and documents, including first-hand accounts of the events that led him to flee his coun- try of origin, as well as his press cards, photos of him receiving several jour- nalistic prizes and awards, and news- paper articles. His file included copies of him carry- ing out interviews, receiving awards, hospital discharge notes, news items of him saving a student from an at- tack, a picture of him in a news item relating an attack on him after the elections, his ID card and passport, and a certificate of training from the Bangladeshi Press Institute. The journalist explained that in 2018 he made the bold choice to re- port against the corruption and fraud committed by the Bangladesh Awa- mi League (AL). This provoked the AL into attacking him while he was taking pictures. After their victory, the AL vandalized his house and sup- porters of the AL threatened to kill him. No action was taken by the local authorities in fear of the ruling party. In these circumstances the applicant had no other choice than to leave the country in February 2019. In December 2020, the IPA rejected his claim, insisting his submissions had been "clearly inconsistent and contradictory, clearly false or obvi- ously improbable"; and that the au- thenticity of the documents could not be established since they were only copies of the original documents. It said his claim to be a journalist was not sufficiently credible because his explanation of his articles did not reach the expected level of detail, and many of them did not cover political issues. In 2021, furnishing new evidence to bolster his rejected claim, he pre- sented two videos in which he was seen acting as a journalist, covering the 2018 elections and corruption in Bangladesh, and eight online newspa- per articles. But the IPA declared the evidence inadmissible. Court decision The European Court found SH had not benefited from legal assistance for his asylum claim until only a few days before the first decision. While the asylum interview had not been rushed or otherwise conducted in a superficial manner, the ECHR said the considerations in the decision on his case had been "disconcerting". The IPA also provided no reasoning as to why the evidence presented by the applicant had not been consid- ered. "Importantly, at no point did the authorities express the view that the material was false, they limited them- selves to noting that their authenticity had not been established as they were only copies." mvella@mediatoday.com.mt Journalist Malta wanted deported wins right for fresh claim FIAU penalties unconstitutional, court says European Court of Human Rights stops deportation of Bangladeshi journalist who submitted 40 pieces of text and visual evidence but was refused protection (File photo) MATTHEW VELLA THE Court of Appeal has dead-legged the pow- ers of Malta's Financial Intelligence Analysis Unit (FIAU), saying the regulator cannot assume on itself the power to issue onerous fines against the firms it regulates. Mr Justice Lawrence Mintoff granted a 'luxu- ry credit card' company – Insignia – €10,000 in damages after finding that the FIAU's powers to act as prosecutor, judge, jury and executioner, breached fair hearing rights. The FIAU is tasked with anti-money laundering investigative pow- ers. It was the second decision by a Maltese Court that has undermined the powers of the FIAU, after a financial services firm fined a record €1.2 million for its shortcomings won the right not to have its name published before a final court ap- peal upholds the FIAU's decision. This time however, the court found that the FIAU's powers to both inspect firms under its purview and then fine them, undermines consti- tutional and European fair trial rights. Insignia, which runs a membership-only credit card provider for ultra-rich spenders – and at one point recruited former Labour minister Chris Cardona as an advisor – was fined €373,670 over money-laundering compliance breaches by the FIAU. It had also been fined €147,000 by the Mal- ta Financial Services Authority. The FIAU said Insignia had failed to raise an internal investigation over a suspicious trans- action report. In one serious case, a PEP (polit- ically-exposed person) was rated as high-risk due to his adverse media links pertaining to ties with the Russian mafia. In one case, the company onboarded a client in April 2018 who was con- sidered to be 'medium risk', and later assigned a 'high' risk rating in January 2019. The risk in- crease stemmed from serious red-flags since the customer was in 2012 convicted of £2 million in illicit tickets' fraud. Insignia claimed its right to a fair trial meant that the FIAU's own administrative procedure had to be subject to a full judicial review of the decision. "Although these cases are not conventionally 'criminal', the accused should have a remedy be- fore a court, with the right to indicate substantive and legal points at least at a stage of appeal," the company's lawyers told the court. Insignia insisted that the FIAU was not an in- dependent and autonomous authority, being directly financed by a government ministry and governed by a hand-picked board of directors under the ministry's purview. "The FIAU can never be impartial because it is a public authority that acts as investigator, prosecutor and court at the same time." Insignia made reference to the 2018 case filed by the Nationalist Party's secretary-general against the Electoral Commission, which challenged the regulator's powers to act as investigator with the power to impose substantial fines on political parties falling foul of the party financing rules. In that case, the Constitutional Court found the na- ture of the offences were criminal in nature and had to be heard solely by a court and not by any other judicial organ. Insignia insisted that the FIAU investigative process does not grant it a proper remedy such as presenting submissions or written pleadings. In his decision, Mr Justice Lawrence Mintoff said EU member states could not disregard previ- ous decisions by the European Court of Justice on such regulators, when these take administrative decisions on matters that are of a criminal nature. "It is clear that since a fine is intended to serve as a penalty but also a deterrent vis-à-vis the per- son alleged to have breached their obligations, it can no longer be regarded as an administrative fine... where the penalty may even be within a maximum of €5 million, the intention of the leg- islator was to provide both a deterrent but also of a penalty... "The respondent State Attorney admits the FI- AU's decision may have 'serious effects' on the applicant society. Indeed this may give rise to the possibility of imposing an exaggerated and per- haps even unfair administrative penalty in the event of a minor infringement, and it is precisely to limit any arbitrary conduct by the FIAU that citizens must be protected by the Constitution and the European Convention of Human Rights," the judge said. The Court said that nowhere could Insignia present its evidence before the FIAU reached its decision, because the FIAU's compliance com- mittee "can never be regarded as independent and impartial in these circumstances, nor is it a tribunal established by law because it is the FI- AU itself which chooses to constitute it, and even regulates its proceedings arbitrarily, it leaves no doubt that there is no parity of the arms in terms of the respective parties." Insignia runs a membership-only credit card provider for ultra-rich spenders