Blogpost: Prosecution and imprisonment of refugees entering Malta using false documents

As a Malta-based NGO aditus monitors, acts and reports on access to human rights in Malta. We provide information and assistance to persons seeking to secure enjoyment of their fundamental human rights, or attempting to obtain an effective remedy against violations. It is within this spirit, that we have and will continue to engage with stakeholders to ensure adherence to Malta’s international, regional and national obligations.

In recent news we have been seeing an increasing number of migrants who have been imprisoned for months after being found guilty or pleading guilty to entering or being present in Malta with false documentation. In the asylum field there is an understanding that refugees will frequently be unable to legally leave their countries, travel and enter a safe country and this blogpost attempts to expand on the legal and policy observations surrounding these issues.

Legal Observations

Article 31(1) of the Convention Relating to the Status of Refugees to which Malta is a Contracting State, stipulates the following:

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

Article 31(1) Geneva Convention

The inclusion of this article in the Geneva Covention is a recognition of the fact that frequently refugees make use of illegal means in order to leave their country of origin. This is due to the nature of their flight, which could include: persecution by their own State; failure of their State to protect them from persecution by a non-State entity (e.g. an armed militia) and also civil war. It is also important to highlight that clients from countries one would assume to be ‘safe’ (e.g. Turkey, Egypt, Iran, Nigeria) might be facing individual circumstances amounting to persecution in terms of the refugee Convention.

Elements of Article 31(1) of the Geneva Convention
  • Whilst the timing requirement of the article is relevant (“without delay”) its assessment is a matter of fact and degree depending on the circumstances of each case. This also includes the availability of appropriate information an advice on the very possibility to seek asylum. Clearly, those clients who immediately express a fear of being returned to their countries of origin fulfil these criteria as the expression of such fear is considered to trigger Malta’s obligation not to return and to assess the relevant claims. Clients who do not immediately express such fears, or intention to seek asylum, might require appropriate information and advice on the possibility of seeking protection in Malta;
  • “Coming directly from a territory” does not require a literal interpretation, but is intended to exclude those where real and effective protection could have been sought in a third country, again requiring an individual assessment of relevant circumstances. Importantly, these words do not exclude those clients who might have transited through a third country on their way to Malta, as for example a Libyan national flying to Malta either from Tunisia or via Turkey.
  • “Penalties” includes detention, imprisonment, fines and prosecution.
  • It is also important to note that when we refer to refugees in this context we also refer to those refugees who may still have not applied for asylum or who have their asylum claims pending.

Policy Observations

In the 2015 Strategy for the Reception of Asylum Seekers and Irregular Migrants, Malta had revised its migration and asylum policy and distanced itself from the automatic administrative detention of asylum-seekers who enter or are apprehended in Malta in an irregular manner. Malta had acknowledged the reality that asylum-seekers fleeing war and persecution are rarely able to enter Malta in a safe and legal manner, and that they are consequently obliged to resort to dangerous and irregular means of entry.

Although in recent years the Maltese government has shifted from the 2015 policy approach to a situation of detention by default, that document reflected the realities of asylum-seekers embarking on boat journeys across the Mediterranean without documentation.

However, the 2015 Strategy does not apply to those asylum-seekers who, possibly opting not to risk their lives at sea, procure and utilise false documentation in order to enter through border crossing points, such as Malta International Airport. On the contrary, the irregular crossing of this group of persons is criminalised, resulting in prosecution and imprisonment.

We wish to highlight the inconsistency of an approach that saves some refugees from punishment due to irregular entry, and whilst sending other refugees to prison for a period between 6 months to two years.

Procedural Issues

From a procedural point of view, international refugee law is not directly applicable in Malta’s Courts. Nonetheless, it does present legal obligations binding to Malta and its Courts. Until the relevant provisions in the Criminal Code and the Immigration Act are amended, this provision could be relied on in argumentation during criminal procedures brought against refugees holding fake passports or documents. Lawyers defending their clients, whilst relying on the Convention provision, can also:

  1. Explain the factual circumstances, focusing on the refugee’s impossibility to travel legally to Malta to seek safety;
  2. Highlight the refugee’s psychological condition, particularly the primary intention to escape war and/or persecution and seek safety;
  3. Underline the probability of the individual of being recognized as a refugee in order to stress the urgency that he or she faced in fleeing his or her country of origin or of habitual residence. To do so, reference may be made to statistics from the Office of the Refugee Commissioner or from UNHCR; and
  4. Make reference to the situation pertaining in the relevant country of origin, or of habitual residence.

Way forward

In practice, refugees in Malta apprehended with fake documents are brought before the Magistrates Court (Criminal Judicature) and in most cases condemned to serve a prison sentence. The prosecutions are based on the Maltese Criminal Code and Article 32(1)(d) of the Immigration Act, which foresee the use of false or forged documents as invariably constituting a criminal offence, with no exception for refugees in law, practice or jurisprudence.

Whilst a not guilty verdict might be difficult to secure due to the legal situation created by the above-mentioned local legislation, we have nonetheless observed judicial practice in handing down suspended sentences in cases emphasising the client’s circumstances and motivations in the past.

Futhermore, we will continue to advocate with stakeholders for the inclusion of an exception for refugees using false documentation to enter Malta. Providing safe and legal ways to reach a place of safety is the most effective way to prevent refugees from resorting to unsafe and irregular means of travel to access Europe, thereby saving lives.

This blog was written within the ambit of the project Strengthening Access to Justice for Improved Human Rights Protection which has as its objective improving access to justice for individuals wishing to strengthen their human rights protection in those instances when they feel that they have been violated. This project is supported by the Active Citizens Fund (ACF) in Malta established under the specific Programme Area for Civil Society part of the EEA Financial Mechanism 2014-2021.

The Matić Report: Joint Letter to MEPs on the situation of sexual & reproductive health and rights in the EU

On the 23rd June 12 NGOs and civil society organisations, including aditus foundation, sent a letter to our 6 MEPs asking them to support and vote in favour of the Matić Report. This Report on the situation of sexual and reproductive health and rights in the EU, in the frame of women’s health was presented for approval to the European Parliament by MEP Predrag Matić on the 24th June 2021.

The Matić report covers a number of areas relating to sexual and reproductive health and rights in the European Union. The report at the outset considers that sexual and reproductive health (SRH) is a state of physical, emotional, mental and social well-being in relation to all aspects of sexuality and reproduction. It furthermore declares that all individuals have a right to make decisions governing their bodies, free from discrimination, coercion and violence.

Primarily, it identifies SRH as an essential component of good health and calls on Member States to guarantee the enjoyment of SRH services and rights for all with consideration for marginalised groups, including women from ethnic, racial and religious minorities, migrant women, women with disabilities, women without health insurance, LGBTI persons and victims of sexual and gender-based violence.

The report identifies a number of key services in order to achieve this:

  • Access to safe, fair and circular menstrual products for all: widespread availability of toxin-free and reusable menstrual products and to counter the negative effects of the so-called tampon tax on gender equality.
  • Comprehensive sexuality education benefits young people: universal access to scientifically accurate, evidence-based, age-appropriate, non-judgemental and comprehensive sexuality education and information for all primary and secondary school children.
  • Modern contraception as a strategy for achieving gender equality: universal access to a range of high-quality and accessible modern contraceptive methods and supplies, family planning counselling and information on contraception for all, and addressing all barriers impeding access to contraception, such as financial and social barriers.
  • Safe and legal abortion care anchored in women’s health and rights: abortion should also be a voluntary decision based on a person’s request, given of their own free will, in accordance with medical standards and availability, accessibility, affordability and safety based. Importantly for Malta, in a watershed moment the Report:

Invites the Member States to review their national legal provisions on abortion and bring them into line with international human rights standards and regional best practices by ensuring that abortion at request is legal in early pregnancy and, when needed, beyond if the pregnant person’s health or life is in danger; recalls that a total ban on abortion care or denial of abortion care is a form of gender-based violence and urges Member States to promote best practices in healthcare by establishing available SRH services at primary-care level, with referral systems in place for all required higher-level care.”

para. 35 – European Parliament resolution of 24 June 2021 on the situation of sexual and reproductive health and rights in the EU, in the frame of women’s health (2020/2215(INI))
  • Access to fertility treatments: all persons of reproductive age have access to fertility treatments, regardless of their socio-economic or marital status, gender identity or sexual orientation.
  • Maternity, pregnancy and birth-related care for all:  access without discrimination to high-quality, accessible, evidence-based and respectful maternity, pregnancy and birth-related care for all, including midwifery, antenatal, childbirth and postnatal care, and maternal mental health support.

The Report was approved with 378 votes in favour, 255 votes against and with 32 abstentions. Only one Maltese MEP voted in favour, two abstained and two voted against.

Rule of Law: Justice

Strengthening Access to Justice for Human Rights Protection

In January 2021 aditus began working on the project Strengthening Access to Justice for Improved Human Rights Protection which has as its objective improving access to justice for individuals wishing to strengthen their human rights protection in those instances when they feel that they have been violated. This project is supported by the Active Citizens Fund (ACF) in Malta established under the specific Programme Area for Civil Society part of the EEA Financial Mechanism 2014-2021.

In several of our earlier projects, alone and also with several other NGO colleagues, we identified institutional obstacles to effective to justice for human rights protection. These obstacles have also been identified by several esteemed reports and research, including by the Venice Commission, the European Parliament, the European Commission and in the Vanni Bonello report on Malta’s justice system.

Whilst Malta has a relatively strong human rights regime that seeks to protect a long list of fundamental human rights, the practical protection offered to persons whose rights have been violated or might be violated is rather weak. Within the ambit of this project, we are looking at key publications and reports and the recommendations contained within them.

Recent Changes in the Maltese system

We cannot discuss rule of law within the justice system without mentioning the recent changes carried out further to the Venice Commission report on Malta. The reform process in carrying out these changes and the lackof consultation has already been discussed in another blogpost plublished last year. The Venice Commission highlighted that the Constitution allowed for the Prime Minister to retain the majority of the power, while other important actors (including the President, Parliament, the Cabinet of Ministers, the Judiciary, the Ombudsman etc) were not granted sufficient power to allow for checks and balances necessary for separation of powers.

The 6 legislative changes carried out by the Maltese government in 2020 and subect to another Venice Commission opinion were the following:

  • Reforms relating to the judicial review of decisions not to prosecute;
  • Amendments to laws regulating the Office of the Ombudsman;
  • Constitutional amendments relating to the appointment of the judiciary;
  • Constitutional amendments relating to the appointment of the President;
  • Constitutional and other amendments relating to the removal from office of the judiciary; and
  • Reforms relating to the appointments to the Permanent Commission Against Corruption.

Outstanding issues

The length of proceedings remains a problem in both civil and criminal cases. The length of proceedings is amongst the longest in the EU. These raise serious issues both for the rights of the general public in securing their rights, but also more worryingly for defendants and victims of crime. Malta also has the lowest number of judges per capita.

In 2018, the Maltese annual budget allocated to legal aid was reported to be €304,137, whilst in comparison that of public prosecution €2,656,005. Access to legal aid remains limited, specifically in civil cases where legal aid is only granted to persons who have (i) a probabilis causa litigandi and (ii) an income which does not not exceed the national minimum wage and total assets did not exceed €6,988.12.

Several Acts of Parliament grant individual Ministers the authority to appoint members of quasi-judicial bodies, committees, commissions and similar entities, these having the mandate to decide on appeals or applications presented to them by any person. Although the basic principles of natural justice apply to all deciding boards and quasi-judicial tribunals, there is no conformity or uniformity on the composition
of such bodies, on their basic rules of procedure and on the remedies available after the decision is taken.

The Maltese Courts have through their jurisprudence enshrined the principle that Constitutional Court judgements, including when the Constitutional Court declares that a specific law violates the Constitution or the European Convention, do not have erga omnes application. This principle enshrined by our Constitutional Courts goes against the principle of Article 6 of the Constitution, which proclaims the supremacy of the Constitution and that any law to the extent of its inconsistency with the Constitution, is null and void.

There is still a dire need for improvements in the use of IT tools in local Courts. E-filings are not available, except for filings in the Small Claims Tribunal. The public can access the acts of cases in relation to civil proceedings, but not criminal. Although we understand issues of data protection for criminal cases, we are not aware of any possibility of legal professionals being able to view the acts of criminal cases online.

These are just some of the systematic issues that this project will aim at addressing in the two years of its implementation.

For any information or queries email [email protected]


Refugee-led Community Organisations in Malta: Advocating about issues directly impacting refugees. In a way that really reflects refugees.

Carla Camilleri, Assistant Director

Arrival in Malta

Malta starting receiving significant numbers of refugees in the mid-90’s. However, it was not until 2001 and 2002 that large numbers started arriving by boat from North Africa, Libya in particular. Most of those arriving in Malta through this route were from Sub-Saharan Africa, however in recent years Syrians and Libyans make up the largest groups in terms of arrivals.

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Venice Commission: lack of public consultation akin to denying citizens their democratic entitlement.

Reform Process

Throughout this year we will be looking at Venice Commission Opinion CDL-AD(2020)019 adopted in October 2020 on the acts and bills that sought to implement the proposals for legislative changes which were the subject of Opinion CDL-AD(2020)006 adopted in June 2020. In this post we examine the Venice Commission’s reaction to the procedure used by the Government in adopting the first 6 Acts which are subject of the Opinion. .

Backdrop: Daphne Caruana Galizia’s assassination

On the 8th October 2020 the Venice Commission adopted an Opinion on the ten acts and bills implementing the legislative proposals put forward by the Maltese government. This is the 4th Opinion adopted by the Commission on Malta since 2018. The process relating to the Malta’s constitutional amendments, separation of powers and independence of the judiciary kicked off in October 2018 by a request of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE) to the Venice Commission.

The request to the Venice Commission from the PACE originated in a proposal by the Rapporteur of the report on “Daphne Caruana Galizia’s assassination and the rule of law, in Malta and beyond: ensuring that the whole truth emerges”. The Venice Commission had noted then that the request for should be understood against this backdrop, although its remit is exclusively limited to the examination of Malta’s constitutional amendments.

Reaction: A hidden & rushed parliamentary process

Interestingly, it can be noted that the Government transmitted the 10 bills to the Venice Commission as restricted documents which could not be circulated to the public without prior authorisation. The Minister requested an opinion by way of urgency, to which the Venice Commission replied by stating that it would not prepare an opinion by way of urgency but that it would be finalised at the beginning of October 2020.

The Venice Commission also recalled that it had insisted that the Maltese authorities should have a meaningful exchange with all stakeholders on the basis of texts that should be public. It strongly called:

… for wide consultations and a structured dialogue with civil society, parliamentary parties, academia, the media and other institutions, in order to open a free and unhampered debate of the current and future reforms, including for constitutional revision, to make them holistic. The process of the reforms should be transparent and open to public scrutiny not least through the media.” – paragraph 99 Opinion CDL-AD(2020)006.

The lack of publicity of the texts up until the last minute meant that bills, that will have profound and long-term impact on Maltese society, were not scruntised by civil society, parliamentary parties, academia, the media and other institutions. This was done against the repeated recommendations of the Venice Commission that called for wide consultations with society as a whole.

Cutting short any meaningful dialogue

In spite of this, on the 29th July 2020, the Maltese Parliament went ahead and approved 6 out of the 10 Bills it had previously presented to the Venice Commission. In reaction to this, the Opinion noted with regret that the Bills were adopted before the Opinion could be finalised and without any structured dialogue with all stakeholders as recommended.

The Venice Commission stressed that it was “critical of the procedure followed by the Maltese Government, which it regrets” and that the rushed and opaque procedures essentially cut short any meaning dialogue with Maltese society. It noted that the 6 wide-ranging bills were rushed through Parliament in just 29 days between the first reading and adoption. Furthermore, it noted that 4 bills were made public after 16 days from their presentation at first reading in Parliament.

Unanimity in the Maltese Parliament is an ambivalent matter

In scathing words, the Venice Commission noted that confining discourse to the political parties in parliament, without meaningful public consultation, was akin to denying citizens their democratic entitlement to have a say in the shaping of the constitutional order of Malta. The text of the Opinion goes so far as to say that although unanimity may be seen as a sign of broad consensus, it could also be interpreted as:

proving the closedness of the political system and the fact that common vested interests bind the majority and the opposition together.” paragraph 16 – Opinion CDL-AD(2020)019

Finally, the Venice Commission repeatedly states that the procedures adopted by the Maltese authorities in carrying out these reforms go against the literal and overall thrust of their previous opinions.

In a furture article we will look at the substantive comments to 6 acts adopted by Parliament relating to:

  • Reforms relating to the judicial review of decisions not to prosecute;
  • Amendments to laws regulating the Office of the Ombudsman;
  • Constitutional amendments relating to the appointment of the judiciary;
  • Constitutional amendments relating to the appointment of the President;
  • Constitutional and other amendments relating to the removal from office of the judiciary; and
  • Reforms relating to the appointments to the Permanent Commission Against Corruption.

In May 2020, aditus had the opportunity to discuss its views on the proposed changes, together with other local civil society actors, with the rapporteurs of the Venice Commission. This was followed by a publication of its feedback on Malta’s proposed legislative changes. We had already then noted our frustration at the lack of broad civil society involvement in the formulating any of the intended changes put forward by the Government.