Issue link: https://maltatoday.uberflip.com/i/1527021
8 maltatoday | WEDNESDAY • 25 SEPTEMBER 2024 NEWS MATTHEW AGIUS magius@mediatoday.com.mt A judge has called upon the au- thorities to reconsider the deci- sion to withdraw humanitarian protection from a Ukrainian mother and daughter that was originally granted in 2016, in a decision which however, re- jected their claim that their fundamental rights had been breached by it. Oksana Volodymyrivna Sol- opko and Aryna Tsovma had filed constitutional proceedings against the International Pro- tection Agency (IPA), the Min- ister responsible, as well as the State Advocate in December 2021, arguing that the agency's decision to revoke their Tem- porary Humanitarian Protec- tion (THP) was null because they were not given an oppor- tunity to make submissions be- fore it was taken. The plaintiffs argued that Malta's Procedural Standards for Granting and Withdrawing International Protection Regu- lations, which was meant to im- plement the corresponding EU directive, did not implement the right to an effective remedy before a court or tribunal as is specified in the directive. They argued that in terms of the directive, any decision to withdraw a person's inter- national protection must be preceded by a written notice, informing that person that their protection was being re- considered. It also obliged the Member State to ensure that the per- son under protection be given an opportunity to explain why they believe their protection should continue, either in writ- ing or through an individual in- terview. In addition, any decision by the competent authority to revoke THP must be made in written form and include a dec- laration of the factual and legal reasons behind it, as well as in- formation on how to contest it. They pointed out that Mal- ta's International Protection Act specifically precludes the possibility of doing so, stating that "no appeal shall lie from a decision by the International Protection Agency to revoke, end or not renew temporary humanitarian protection." This, the plaintiffs argued, ran contrary to the fundamental le- gal principles of hearing both parties and of not having an ar- biter decide a case in which he is also a party. They asked the court to declare that this pro- vision of the law breached their human rights, order the rein- statement of their THP status, as well as to provide a means for them to appeal the IPA de- cision. The defendants: the IPA, the Minister responsible and the State Advocate, rebutted the claims, pointing out that the Ukrainian plaintiffs had applied for international protection in March 2016. Temporary pro- tection had been granted the following month in order for them to be able to safely return to Ukraine or be accepted by another safe country. This temporary protection had been granted on the basis of internal policy, argued the defendants. In 2017, the IPA had concluded that there was no basis for their claim for in- ternational protection, because the persecution they were al- leging did not correspond with the accepted definition of per- secution under the Geneva Convention. Neither was there a reason to believe that their return to Ukraine would result in a serious risk of serious harm under Maltese law, they said. However, in view of docu- mented improvement in the child's asthma due to Malta's climate, the agency had granted THP to the mother and daugh- ter with the intention that their documentation be updated on an annual basis. This was the state of play until August 2021, when the agency, after consulting with the ap- plicants' Medical Country of Origin Information, discovered that the medicine that was being used to treat the child's asthma was available in Ukraine's cap- ital city, Kyiv. The reply adds that many places in Ukraine had good air quality, "in particular Kharkiv and Donetsk," where the mother and daughter had previously resided. These factors had led the agency to conclude that the ap- plicants could safely return to Ukraine, and on September 3, 2021 it revoked their THP on the basis that they no longer qualified it. The defendants argued that the right to a fair hearing did not apply because neither the agency, nor the tribunal were there to determine rights, civil obligations or criminal charges. In his judgement in this case, Mr. Justice Toni Abela made reference to a number of pre- vious court decisions, both at the local and at European lev- el, concluding amongst other things, that the right to appeal in civil matters was not the same right to appeal in the crimi- nal law sphere. "That which is guaranteed outside the area of criminal law is the respect for the procedural safeguards to a fair hearing (the objective test) and of the integrity of the judge himself, [who should be] ideal and free of every partiality and prejudice (the subjective test)." "...Even the Convention allows the right to appeal as a right protected by article 6 which deals only with appeals from criminal cases and not civil ones," said the judge. Quoting from a Constitutional Court decision in a similar case, he wrote: "In essence, the Constitutional Court observed that ' the entire process - both before the Agen- cy as well as before the Tribu- nal - is handled as a process that it not about the determination of civil rights or obligations or criminal charges, and therefore is not subject to article 39 of the Constitution or article 6 of the Convention [which enshrine the right to a fair hearing]. "Essentially, the plaintiff's argument is based on the as- sertion that 'applications for asylum status are dealt with as a civil right.' and that the pro- ceedings before the Tribunal are 'procedures against her,' which is not the case." But while dismissing the wom- an's case and claims on these grounds, the judge said he was "rather concerned about the fact that if the applicants are to be sent back, they would have to return to Ukraine." Judge Abela also noted that the two places specified by the Medical Country of Origin Information as having ideal air quality were Kharkiv and Donestsk, which are currently war zones. "For this reason, this Court appeals to the defendants to reconsider their decision in the light of these wartime circum- stances." Judge calls on authorities to reconsider withdrawal of humanitarian protection from Ukrainian mother, daughter The humanitarian protection order for a Ukrainian mother and daughter was originally granted in 2016, in a decision which however, rejected their claim that their fundamental rights had been breached by it "Essentially, the plaintiff's argument is based on the assertion that 'applications for asylum status are dealt with as a civil right.' and that the proceedings before the Tribunal are 'procedures against her,' which is not the case."