Issue link: https://maltatoday.uberflip.com/i/187071
11 News maltatoday, SUNDAY, 29 SEPTEMBER 2013 e bargaining chips Neil Falzon sus Malta, July 2013) in which various aspects of Malta's blanket detention policy were ruled to be illegal. The judgment concluded that: "Mr Suso Musa's detention preceding the determination of his asylum request had been arbitrary. Indeed, the conditions of his place of detention had been highly problematic from the standpoint of Article 3 (prohibition of inhuman and degrading treatment). Moreover, it had taken the authorities an unreasonable amount of time to determine whether the applicant should have been allowed to remain in Malta. "As regards the period of detention following the determination of Mr Suso Musa's asylum request, it found that the deportation proceedings had not been prosecuted with due diligence. Moreover, the applicant had not been allowed to have a speedy review of the lawfulness of his detention." It would appear that the basic conditions leading to this judgment are still in place to this day, despite the European Court's insistence that the same situation is rectified as a matter of urgency. "The Court considered that the problems detected in this case could give rise to further similar applications. Therefore, it requested the Maltese authorities to establish a mechanism to allow individuals seeking a review of the lawfulness of their immigration detention to obtain a determination of their claim within a Roberto Formigoni reasonable time limit. It further recommended Malta to take the necessary steps to improve the conditions and shorten the length of detention of asylum seekers…" However, there has been no change to the detention policy since the ruling was delivered last July. Put your house in order In view of the fact that Malta's asylum process has been declared illegal on a number of counts by the ECHR, Muscat's official argument that Malta 'deserves' sympathy and solidarity start to look a little shaky. Aditus, a human rights advocacy group, adds its voice to a growing consensus – at least among similar NGOs – that Malta needs to put its own house in order, before turning to Europe for support. "Despite minimal efforts at improving material conditions and introducing appropriate policy measures, Malta's detention regime is one of Europe's harshest systems in terms of the way it is applied and also of the conditions in which asylum-seekers are kept," Aditus director Neil Falzon told MaltaToday. "It is also important to reiterate that it is not only Maltese NGOs saying this, but other organisations such as the Council of Europe's Committee for the Prevention of Torture, Amnesty International, Human Rights Watch, LIBE Committee of the EP and finally the European Court of Human Rights..." In view of these repeatedly high- lighted failures of Malta to comply with the most fundamental aspects of the treaties to which it is signatory – not least, the Universal Charter of Human Rights – Muscat's call for 'solidarity' has raised a few eyebrows. "We have repeatedly recommended that the Maltese government adopt a totally different stance visá-vis requesting solidarity from EU institutions and member states," Falzon said. "Insisting on maintaining the lowest possible standards for what the [European Court] has defined as one of the most vulnerable groups of persons in society, and then complaining about not being able to cope, does very little towards attracting sympathy and solidarity." Falzon reiterates his NGO's recommendation of an approach that conforms to human rights standards, and treats people with their due dignity and respect. "Malta cannot keep insisting on responsibility-sharing when it unashamedly shuns its own responsibilities. The recent Court judgements emphasise how serious the situation is: a very stern warning that every day an asylum-seeker is detained in Hal Far or Safi is a day of Malta acting illegally, a day of human rights violations. How this approach can be reconciled with aggressive insistence on solidarity is beyond imagination..." Detention as a deterrent For all this, there is mounting evidence that Malta may be deliberately infringing human rights by doggedly adhering to an asylum system that has been ruled illegal by the ECHR. In April 2009, Foreign Affairs Minister Tonio Borg (now a European Commissioner alongside Malmstrom) candidly admitted that his government's detention policy was viewed as a 'punishment' for asylum seekers. Outlining the reasons for the detention policy, Borg said: "The message needs to… be received by everyone that entering Malta illegally will not go unpunished." In the same interview Borg also said that it is "good to persuade [asylum seekers] that they have to go back home... it's good that they contact their relatives and say, listen, don't come to Malta because it's terrible here." Joseph Muscat Cecilia Malmstrom Separately, Home Affairs Minister Carm Mifsud Bonnici candidly admitted in 2009 that his government would consider defying international law by simply diverting migrants to other countries, if only this were logistically possible: "There isn't a convenient border which you can take them to and allow them to skip off to the other side as has been the case with several other countries... [detention is] our method of controlling and containing at the same time'. The administration of government has since changed, but there has been no departure from the preceding asylum policy that had in any case enjoyed the full backing of the Labour opposition – marking a rare instance of cross-party consensus, on a matter that technically involves multiple human rights violations. This much seems to have been noticed at international level: in a recent speech, Home Affairs Commissioner Caceilia Malmstrom strongly hinted that Malta's systematic failure to adhere to international law was among the reasons why other EU members were resisting Muscat's repeated calls for mandatory burden sharing. According to Malmstrom, other EU member states "are against relocation as a concept as they view it as a pull-factor and think that it is a disincentive to other member states from improving the quality of their asylum systems". With so much evidence that Malta is deliberately refusing to improve its asylum system specifically to create a 'crisis; situation that would force the EU to intervene, it is perhaps unsurprising that the rest of Europe has to date proved unsympathetic to Malta's complaints. Still, NGOs involved in the issue are reluctant to draw watertight conclusions. "Are they doing it on purpose?" Falzon muses when asked about the possibility that Malta is deliberately failing to meet its international obligations. "It is difficult for us to say this, at least conclusively. The status quo is a product of direct populism, coupled with a narrow and somewhat selfish understanding of what human rights actually mean and also what EU membership implies. As Malmstrom said during the relocation forum, solidarity comes with responsibility, and we cannot emphasize this enough. If Malta argues that it cannot cope because of the numbers, then relocation should logically result in a better-equipped system. We haven't seen this logical sequence in recent years."