Legal Update on the Captain Morgan Incident

This week aditus foundation, Jesuit Refugee Service Malta and Integra foundation filed three complaints in three different fora with respect to the situation of around 167 migrants currently being held aboard the private vessels Europa II and the Atlantis, just outside Malta’s territorial waters. The Maltese government chartered a number of private pleasure craft vessels to accommodate migrants rescued in Malta’s SAR zone in the period between the 28th and 29th April 2020 and 6th May 2020. The migrants were transferred from private and AFM vessels involved in the rescue to the chartered vessels and have remained there since the beginning of May.

UN Mechanisms

Two complaints were sent respectively to the UN Special Rapporteur on the Rights of Migrants and to the UN Working Group on Arbitrary Detention. Both procedures are UN Special Procedures which means they don’t operate on the basis of any treaty but on the basis of the Charter of the United Nations and, as such, have a broader scope. In this sense, they are not considered to be judicial bodies, but they have a strong political authority.

The UN Special Rapporteur on the Rights of Migrants is special rapporteur on the human rights of migrants and has the mandate to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of this vulnerable group. Special rapporteurs are in charge of holding inquiries into violations and to intervene on specific issues or urgent situations.

The Working Group on Arbitrary Detention has as its mandate to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments.

Legal considerations

In both complaints we highlighted that their situation is an urgent one in view of their rapidly deteriorating physical and psychological state. The complaints were based on the assertion that Malta’s actions breached a number of articles contained in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, in particular:

  1. Right to be free from torture or to cruel, inhuman or degrading treatment or punishment
  2. Right to liberty and security of the person
  3. Right to be treated with respect for inherent dignity of the human person
  4. Right to an effective remedy, and
  5. Right to seek and to enjoy asylum from persecution.

In particular, we noted that the duration and the conditions on board the ferries, which are not adequate to host persons for a length of time on the high seas, amount to on-going de facto detention that is reaching the severity necessary for the situation to be considered as inhuman treatment. The reason for such detention remains unclear, if at all existent and it appears to have no time limitation and thus indefinite. As a result, the detention of such migrants cannot but be considered as arbitrary. Moreover, the decision to detain the migrants upon such vessels does not appear to have taken into consideration relevant factors on an individual basis, nor to have taken into consideration the physical and mental health effects and vulnerabilities of the persons concerned.

We furthermore noted that they have no access to adequate national remedies due to the fact that from the moment of their detention aboard the two vessels, the migrants have been denied access to UNHCR and other organisations. It remains impossible for them to seek recourse to the national legal system without such information and support. The migrants have no opportunity to demand reassessment, re-evaluation or access safeguards against unlawful and arbitrary detention.

In view of the above, we maintain that that the decision to keep migrants detained on private vessels, is unreasonable, unnecessary and disproportionate.

Lastly, we highlighted that the individuals aboard the vessels left their countries origin for various reasons, which reasons may include fear of persecution, violence, war or civil strife. In Libya, refugees are unable to secure protection for a number of reasons. Not only has Libya not ratified the 1951 Refugee Convention, but the State has not established a functioning asylum procedure to identify and protect refugees from return to their countries of origin. However, over 3 weeks from their interception and detention, no steps have been taken by Malta to register or process the asylum claims of the persons aboard. Thus, by denying access to territory to asylum-seekers, Malta is violating their fundamental right to seek and enjoy asylum in Malta.

European Commission for breaches of European Union Law

A complaint for breaches of European Union law was filed with the European Commission. The European Commission is the EU’s politically independent executive arm and in addition to proposing legislation, it is also tasked with ensuring that EU law is properly applied in all the Member States.

Any individual or group can file a complaint with European Commission about any law, administrative action, absence of measure or practice by a Member State that may be in breach of Union law. The Commission will then assess the complaint and will decide whether to initiate formal infringement procedure against the country. It can either decide not to initiate proceedings, or close proceedings if they feel that there are other mechanisms that are more appropriate. However, if the Commission feels that there is a breach it may take a country to the Court of Justice and if it wins the case, the country will have to take all actions to remedy the violations which may also include financial penalties.

Legal considerations

Although search and rescue operations remains a Member State exclusive competence regulated by international law, we argued that the current situation calls into play EU external border control and should be guided by the applicable relevant human rights law and EU acquis. It is clear that with Malta’s actions at sea in relation to these incidents it is engaging in EU external border control affecting the interests of the European Union.

Article 77(1)(b) of the Treaty on the Functioning of the European Union provides for the implementation of a common policy on the crossing of external borders. This has translated into a number of measures, primarily the Schengen Borders Code (SBC) which lays down common measures on border control at external borders that reflect the Schengen acquis. In this regard, we considered that Malta’s decision to place the groups of rescued persons on vessels just outside national and, by consequence, European Union territory, is unequivocally one of border surveillance, border check and border control as defined by the SBC.

Article 4 of the SBC lays down clearly that, in applying the Regulation, Member States shall act in full compliance with relevant Union law, relevant international law and obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. The provisions of the Refugee Convention and of the EU Charter of Fundamental Rights are therefore not of a merely indicative nature, but a binding one.

The moment SBC applies, effect must be given to the safeguard provisions in Article 4 of the Regulation, and to Articles 6, 18 and 47 of the Charter in particular. Firstly, Malta is exercising full control and authority over the individuals being kept on board the vessels. It is clear that this is not a mere restriction of movement for the purposes of border control but a deprivation of personal liberty contrary to Article 6 of the Charter. Secondly, we contended that the right to asylum, guaranteed under Article 18 of the Charter, would be rendered theoretical when border control and surveillance results in the prevention of asylum-seekers from physically accessing and exercising their rights. Lastly, the persons on board do not have access to legal counsel and do not have any access to an effective remedy for the rights that have been breached.

Europa II – Credit: MaltaToday


Larger than Life! Online Gallery

In ‘Larger Than Life!’ we commissioned 6 human rights posters from established local artists: Ed DingliSarah Maria SciclunaMagda AzabSeb Tanti BurlóLuke CaruanaDaniela Attard. Our idea was to produce posters unlike our usual NGO poster. Instead, we wanted stunning artworks that happen to be posters grappling with a human rights theme.

PURCHASE YOUR POSTER:

These posters are now available for sale, with proceeds going towards our human rights work. The artworks come in 2 sizes and are perfect for filling up your home or office space!

  • Limited edition of 3: 1m x 0.7m, printed on FineArt Baryta paper (350gsm) @ €250
  • Limited edition of 25: A3, mounted on foamboard @ €25.

If you are interested in the artworks for your home or office, get in touch.


Born UN/equal
Seb Tanti Burló

Article 1 – All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

This article sets the tone for the United Nations Declaration of Human Rights. It’s a nice boomer belief, but seventy years later it is very, very, very far from our reality. Just look around you.

Born UN/equal is a riff off of Philip Castle’s famous poster design for Stanley Kubrick’s film Full Metal Jacket.


Remembrance
Sarah Maria Scicluna


This work is a memorial for all those who lost their lives crossing the Mediterranean Sea, in support of all those who have lost family and friends in such tragedies. While newspapers and official reports mostly focus on statistics of lost lives, many times the people left grieving are forgotten and left without a place for mourning.


This work is done line-by-line in a very repetitive manner, which is representative of both the surface of the sea and the ever-rising tally numbers.


Architects of our destiny
Magda Azab

Despite close to 100 years having passed since the adoption of the Universal Declaration of Human Rights, rights that seem obvious to me are unfortunately not always guaranteed for everyone in this world.

Wondering which aspects to highlight, I decided to represent what I think they all have in common and make them fundamental, namely to guarantee us the possibility of being architects of our destiny and none of us should be denied that. We are all human beings worthy of happiness and justice regardless of where we’re born, of our cultures, customs, lifestyles or religions.


Global Injustice
Luke Caruana

The wealthiest and most developed countries in the world are largely to blame for the cataclysmic effects of climate change. However, as we have already seen, these countries are not the ones that will suffer the most from these drastic weather changes. It is the impoverished countries that are facing the gravest consequences. Ecological disasters and poor harvests are increasing inequality and political instability.

The melting globe interprets the climate injustice we are experiencing as the rich (Global North) are able to buy their way out of the climate crisis while the poor (Global South) are forgotten.


The Promised Land
Ed Dingli

Entire lives left behind. Moments, memories, families, friends left behind. There is no choice except to make the journey to the promised land. We can see it so clearly now, on the horizon. The human rights declaration a beacon of hope, our moral compass by which the ship should sail. Except, between us and safety, a few more obstacles to overcome. The sea, in all its power and unpredictability, the coast guards, whose side will they be on?

And the locals, our new neighbours, will they welcome us? Will they understand our ways, our language, our culture? Hopefully they will understand that all we want, is to be safe.


27
Daniela Attard

Article 27 of the Universal Declaration of Human Rights states that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

In this digital piece we explore visually the interconnectivity of the arts, culture and sciences and their ability to grow and flourish in any community. That is, given that anyone and everyone is allowed to participate and contribute.


With the support of:

KK & ACM logo2


National Media Report on the representation in the media of suspects and accused persons

Project Partners: Hungarian Helsinki Committee (Lead Partner), aditus foundation, Fair Trials Europe, Human Rights House Zagreb, Mérték, Rights International Spain, Vienna University. Supported by: This project is funded by the European Union’s Justice Programme (2014 – 2020)

According to EU Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceeding proceedings, Member States must ensure that suspects and accused persons are not presented as being guilty, in court or in public through the use of measures of physical restraint such as handcuffs, glass boxes, cages and leg irons.

aditus, together with the Hungarian Helsinki Committee and partners (Fair Trials Europe, Human Rights House Zagreb, Mérték, Rights International Spain and the Vienna University), have been working together to increase knowledge and sensitivity to the presumption of innocence among professionals and the public. The Importance of Appearances: How Suspects and Accused Persons are presented in the Courtroom, in Public and in the Media project page can be accessed on this link.

Over the past year the aditus team, coordinated by our Assistant Director Carla Camilleri, has been carrying out a media review in order to collect and analyse data on the media representation of suspects and accused persons at all stages of the arrest and subsequent legal proceedings in Malta. This process included a sampling phase spanning a number of months of all news reporting relating to arrests of suspects or criminal court proceedings in printed newspapers, online portals and TV broadcasts in both the Maltese and English language press. The ultimate purpose of the research was to identify good and bad practice regarding the presumption of innocence in various sectors of the media. Stories were selected and coded by all project partners in their respective countries in accordance with the guidelines and procedures developed by the Vienna University team.

The results of the Maltese media review were collated into a National Media Report, which can be read in full here. The Report gives an overview of the laws, legal guidelines and legal framework relating to the media and criminal justice. It also gives a contextual outline of the media landscape in Malta, focusing on printed media and their websites, online news portals and also television broadcasts.

In the course of the research, the main legal provisions regulating the portrayal of suspects in the media that were identified are the following:

  • Requirements as to Standards and Practice applicable to News Bulletins and Current Affairs: persons accused of criminal matters should not be projected as if they are already found guilty and the principle of presumption of innocence must be fully respected. Trial by the media before any court judgement is delivered must be avoided at all times and care should be taken to avoid broadcasting repetitive footage that might prejudice the accused’s right to a fair trial.
  • Juvenile Court Act: newspaper reports, or sound or television broadcasts are prohibited from revealing the name, address or school, or include any particulars that may lead to the identification, of any child or young person under the age of 16 in criminal proceedings. The publication of any picture in any newspaper or on television as being or including a picture of any child or young person in any criminal proceedings, before the Juvenile Court and also the Criminal Court, is also prohibited.
  • Code of Journalistic Ethics: all reports of crimes and court proceedings should be strictly factual and a clear distinction should be made and explained between the facts and the expression of opinion. The naming of minors in court reporting is prohibited.

The findings of the media review of the reports and broadcasts from the selected television programmes, newspapers and online websites resulted a number of trends that may negatively influence the perception of suspects or accused persons as guilty. In this regard, a worrying trend was noted in relation to the use of images and film of the suspect on entering the Court building. Several incidences were recorded in which suspects were led by the Police through a pedestrian area and into the Court buildings through the front doors, as opposed to the back entrance. In this way reporters and journalists would publish or broadcast photographs or footage of suspects being led into Court handcuffed and escorted by a number of police officers. The negative portrayal of suspects or accused persons could potentially influence a person’s perception of their guilt and any future trial.

In one extreme example, a suspect was charged in Court the day after he was arrested, wearing a white forensic suit with his hands handcuffed behind his back. The suspect was made to walk in a busy pedestrian area, escorted by 3 police officers and enter the Court through the front doors as opposed to through the back entrance

Suspect being escorted to Court through a pedestrian street handcuffed and in white forensic suit

The research also highlighted that reporters and journalists from all media types consistently made explicit reference to the ethnicity and nationality of the alleged perpetrators. Frequently, the headlines would use nationality as the descriptor, for example “A Serb”, “Two Syrians” or “Russian with Maltese citizenship“, whilst no further descriptors are used for Maltese suspects, for example “double murder suspect still to be questioned”.

The use of visual representation which shows police officers, handcuffs and otherwise threatening representation of the defendants is also very common to newspapers, online portals and television broadcasters. However, it was also noted that only a few examples in which explicit reference to previous convictions were mentioned, whilst no explicit reference to guilt of the defendant were found in the sampled reports.

In the coming months an in-depth report on the legal framework regulating the use of restraining measures on suspects and accused persons, which also includes practical experiences of stakeholders in the field, will be published.

For more information contact our project contact point, Carla ([email protected]). You can also Subscribe to our News and Updates to be kept updated on this and all other projects and initiatives.

Measures of Restraints


YOUTH, NOT STATUS: Erasmus+ project

TO DISCOVER DIFFERENT WAYS OF ACTING AND BEING INVOLVED IN THE

PROMOTION OF A MULTICULTURAL SOCIETY

JULY 2017– MAY 2018

 

Call for applications

Funded by Erasmus +, Youth, Not Status is the new project of aditus foundation.

Youth Not Status aims to bring together young Europeans and young refugee/migrants to include them in conversations about human rights. Youth, Not Status is comprised of a series of workshops focusing on the social inclusion of refugee and migrant youth in Malta.

Our idea is to stimulate and facilitate communication between young people of different backgrounds, and to encourage them to engage with decision-makers so as to arrive at practical solutions and ideas. The programme is a unique opportunity to acquire practical tools to support youth in developing common perspectives for sustainable strategies.

They will be guided on how to formulate political demands, comment and provide input on how Malta’s youth policy can be used as a tool to promote and encourage integration. Throughout the project, we will be focusing on human rights, advocacy skills, intercultural learning and active participation. The project will include:

  • social events to act as ice-breakers and relationship-building;
  • a Youth Camp weekend; and
  • a series of workshops, leading to a policy encounter with the Minister for Education and Employment. Some workshops will be held before the Youth Camp weekend, others will follow.

Applications will go live on June 1st 2017.

Further details can be seen on the project page:

http://aditus.org.mt/our-work/projects/youth-not-status/

Complete the online application form:

http://aditus.org.mt/our-work/projects/youth-not-status/registration-form/

For more information get in touch with us:

[email protected]

 


Transnational Conference “Education, Participation, Integration – Erasmus+ and Refugees”

From 19 till 20 April 2016 I took part in the Transnational Conference “Education, Participation, Integration-Erasmus+ and Refugees”, hosted by the German Erasmus + National Agency NA-BIBB “Nationale Agentur Bildung für Europa beim Bundesinstitut für Berufsbildungin”, in Essen, Germany.

The Conference hosted 280 people coming from 25 different European countries, including representatives of educational institutions (higher education, vocational and adult education and schools), the youth sector, local authorities, employment agencies, chambers, enterprises and stakeholders involved in the employment and education integration of refugees into.

The Conference offered an innovative networking opportunity to support institutions and organizations with facilitating the integration of refugees, focusing on the validation of new appropriate methods (like non-formal and informal learning methods), unconventional training activities for refugees and to integrate them in the Europe’s education systems, and innovative approaches for vocational and educational staff.

The conference included two sessions with practical actions in small thematic groups, conversations with artists and keynote contributors, and presentation of good practises emphasizing cross-cultural experiences.

Also, there was a market-place for projects and a cultural dinner for social networking. The final panel discussion gave an overview of the Erasmus+ programme and the challenges of Member States to remove multiple barriers faced by refugees in terms of access to education and employment.