European human rights court identifies various failures in Malta’s asylum procedure

“…despite his further attempts, the applicant remained deprived of a rigorous individual assessment of his asylum claim, in particular at no stage did the authorities conduct a risk assessment in relation to his individual situation (as a journalist, reporting on election irregularities – facts established by Agency – and who possibly had already suffered at least one aggression related to his work, according to the documents he submitted the veracity of which had not been looked into), if he were to be returned to Bangladesh.”

“The Court considers that the present case has identified various failures in the domestic procedures, in particular in relation to the failures in the communication system, the provision of legal assistance and particularly the procedure and scope of the Tribunal’s review in accelerated procedures, in the light of which general measures could be called for.”

We are thrilled to publish this blogpost, at the end of a busy and intense year of legal activities!

The European Court of Human Rights (ECtHR) has today published an important judgement condemning a series of failings in Malta’s asylum procedure. In the landmark case S.H. v. Malta, the human rights Court declared that Malta violated the fundamental human rights of our client when it failed to properly assess his fear of being returned to his home country.

It is an extremely significant decision that confirms what we have been stressing for a number of years. In this judgement, the European Court of Human Rights has not only upheld the fundamental human rights of our client, S.H., but has also opened the door for hundreds of identical cases against Malta. S.H. v. Malta raises several red flags in Malta’s treatment of refugees from the moment of their arrival and throughout the procedure that is intended to protect them. This is a welcome judgement that we hope will lead to urgently-needed reforms.

Read more: European human rights court identifies various failures in Malta’s asylum procedure

Malta’s asylum procedure is simply not doing its most basic job: protecting refugees. This must change at once!

Neil Falzon, aditus foundation Director

Case Background

S.H. arrived in Malta by boat on 17 September 2019. Malta immediately placed him in detention, from where he filed his application for protection. Throughout his procedure, he insisted he was a journalist under serious threat from the Bangladeshi authorities because of his work exposing corruption in the 2018 electoral process.

Our lawyers only met S.H. at a late stage in this procedure, yet we immediately realised that something went terribly wrong with the way the authorities handled his case. We realised that his nationality was the over-riding consideration, instead of the ample evidence he had brought to substantiate his claims.

“The applicant comes from the Kishorganji District in the Dhaka Division of Bangladesh. He submitted that he was working for the local Kishoreganj branch of Vairab KTV Bangla, a popular news TV channel in Bangladesh and that he received training from the Bangladesh Press Institute and from the Bangladesh Media Institute.

He explained that during his career he reported on several news items and interviewed political leaders such as Nazmul Hassan Papon, a member of the Bangladesh Awami League (AL – the governing party). He submitted that he was well known in the region as a reporter that received several regional prizes for the quality of his work.

As such, his assignment to the 30 December 2018 general election was the highlight of his career and his most important to date. He considered that during these elections he had made the bold choice to report against the corruption and fraud committed by the AL. This had brought the anger of the AL upon him which attacked him while he was taking pictures of the events. After their victory, the AL vandalized his house and supporters 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 on 2 February 2019.”

How did Malta handle his asylum application?

S.H. filed a total of 3 asylum applications: a first one, followed by 2 subsequent ones. At all stages, S.H. provided ample evidence of all his claims. He was able to bring several photos, videos, media articles and other documents confirming that he was indeed a journalist, that he did cover the 2018 elections and that – as a result of this work – he was violently assaulted. The International Protection Agency (IPA) declared the first application to be ‘manifestly unfounded’, whilst it threw out the subsequent 2 as it decided that S.H. did not present any relevant new facts or information. All decisions were confirmed by the International Protection Appeal Tribunal (IPAT).

The Court questions how, at all stages, Malta’s asylum procedure simply dismissed S.H.’s claims without ever actually assessing their substance.

“However, the Court considers that the considerations made in the assessment report which provided the reasons behind the decision in the applicant’s case, are nonetheless disconcerting. From an examination of the interview of the applicant, during which he was unrepresented, it is apparent that the inconsistencies and lack of detail highlighted in the report are not flagrant, as claimed by the Government.

Clearly spelled out threats were also considered not to be detailed enough.”

Importantly, the Court underlined the “special situation in which asylum-seekers often find themselves” when it spoke about the far too high level of proof Malta required of S.H. This is a significant consideration, keeping in mind that most of our clients are rejected on the basis that they fail to provide sufficient evidence in support of their claims.

Also confirming our own observations on Malta’s asylum procedure, the Court had especially harsh words for the Appeals Tribunal:

“…the Court finds it hard to believe that anything but a superficial assessment of all the documentation presented could have been undertaken by the Tribunal within such a time-frame. The brief stereotype decision, confirming the incongruous conclusions reached at first instance and providing no further reasoning, support such a conclusion.”

Malta’s accelerated procedure

Malta’s asylum law contains a list of countries that the Home Affairs Minister designated as being ‘safe’. This means that asylum-seekers originating from these ‘safe’ countries are not given a full and proper asylum procedure, but they are channeled to the accelerated procedure. In this accelerate procedure, their claims are almost automatically rejected on the basis that the applicants come from a country the Home Affairs Minister has decided is safe.

Furthermore, rejected asylum-seekers are not permitted to appeal this negative decision. The IPAT merely reviews these decisions and, as noticed by the Court in this judgement, this is often an automatic and speedy rubber-stamping of the original rejection.

aditus foundation has on several occasions flagged that Malta’s accelerated procedure violates the rights of asylum-seekers. It determines applications on countries of origin, rather than on merits, and does not permit any real appeal. For refugees coming from countries designated as safe by the Home Affairs Minister, it is close to impossible to have their applications heard fully and fairly.

…if a Contracting State is made aware of facts relating to a specific individual that could expose him to a risk of ill-treatment…the obligations incumbent on the States Parties…entail that the authorities carry out an assessment of that risk of their own motion.

This applies in particular to situations where the national authorities have been made aware of the fact that the asylum-seeker may plausibly be a member of a group systematically exposed to practice of ill-treatment…

Para. 88.

We also underline that Malta’s accelerated procedure applies to persons coming from countries the Home Affairs Minister has designated as safe, including when these countries criminalise LGBTIQ+ behaviour or identities. In our #Safe4All campaign, we are flagging this incongruity in Malta’s system by stressing that a country may and should not be considered safe if it has laws and national practices that imprison people simply for their LGBTIQ+ identity! Without a change to this system, Malta runs the risk of returning refugees to places where they might be arbitrarily arrested, detained, beaten or even killed.

Detention and lack of legal assistance

“In the Court’s view, bearing in mind that the applicant was unrepresented and that he had been in detention in the prior months, it stands to reason that his answers had not been more prepared, nor excessively technical…”

Throughout its judgement, the European Court of Human Rights flags that S.H. was unrepresented for parts of his asylum procedure. It also notes that he underwent this important procedure whilst in detention.

The Court makes ample reference to the 2021 report by the Council of Europe’s anti-torture Committee (CPT), zooming in on those report sections where the CPT had made important observations on how Malta detains asylum-seekers. In particular, the Court focused on the lack of asylum-related information, no contact details of NGOs or other supporting entities, difficulties contacting lawyers and confiscation of mobile phones. The CPT had noted that these elements create a situation of “de facto incommunicado”.

…the Court has repeatedly expressed its concerns in the Maltese context about concrete access to legal aid for persons in detention.

Para. 82

“The CPT also recommends that the right of access to a lawyer be subject to external oversight, ideally incorporating the involvement of legal non-governmental organisations and the Malta Chamber of Advocates.”

The inadequacy of Malta’s Constitutional remedy

Why did S.H. take his case to the European Court of Human Rights? Why did he not file a human rights case before Malta’s own national Courts?

Significantly, the human rights Court once again lamented the inadequacy of the Malta’s own system for the protection of human rights: the Constitutional remedy. It noted that S.H. was not able to receive protection from Malta’s judicial system. This because Malta’s Constitutional regime that not automatically suspend the deportation of a person who is alleging that such deportation could lead to a violation of their rights.

The Strasbourg Court has repeatedly insisted that the European Convention on Human Rights requires this automatic suspensive effect in order to prevent human rights violations occurring as a result of a forced removal. If a judicial system does not offer automatic, albeit temporary, suspension of a removal until it fully examines all relevant claims, then that judicial system is simply not up to the Convention’s standards.

The conclusion is clear: until Parliament strengthens Malta’s Constitutional protection of the fundamental human rights of a person facing removal to perilous places, the Strasbourg Court will continue to declare our system “ineffective”.

So what happens next?

The judgement confirmed a violation of S.H.’s fundamental human rights and awarded him a sum by way of compensation. Yet whilst we are super happy at today’s decision, there is much work to be done.

We will now have to harness the strength of this judgement to urge the Government to bring about the necessary changes to the laws and practices that led to this awful situation. In particular, we will be focusing our energies on those points that we have been underlining for several years with the Home Affairs Ministry:

  • Guarantee full and proper access to legal information and services to all asylum-seekers, particularly those who are detained.
  • Amend the International Protection Act and related law to ensure a real appeal against all negative decisions.
  • Amend the legal framework establishing and regulating Malta’s Constitutional protection of fundamental human rights to automatically suspend removals following human rights Court applications.