Court rules that detention is authorised by law

The Magistrates' Court has dismissed a writ of habeas corpus filed by an Ethiopian man waiting for word on his refugee status after ruling that his detention was authorised by a law which was in line with the constitution and Malta's international obligations.

Magistrate Lawrence Quintano heard Napoleon Mambrahutu claim he had arrived in Malta on July 25, 2002 and had been kept in detention at the Safi Barracks and recently at Ta' Kandja.

Mambrahutu said he had applied for refugee status but his application was still pending.

He had a right to his claim being determined within reasonable time but he had been held prisoner since July 25 last year.

Mambrahutu quoted an immigration law practitioner who had come to Malta from the UK to give training on asylum and border management.

She had said that, in the UK, applicants for refugee status were not kept in detention indefinitely while their application was being determined.

Mambrahutu said he wanted to avail himself of the habeas corpus remedy and called on the court to order the police commissioner to bring him before the court so that it could order his release from illegal detention.

But the police commissioner replied that Mambrahutu came to Malta without papers and was alleging he was Ethiopian. He had arrived with another 207 persons and was not given permission to enter or stay in Malta.

The commissioner, through immigration officer Inspector Neville Xuereb, argued that the detention was in line with local immigration law.

The detention was even authorised by the European Convention on Human Rights which, in Article 5 (1) laid down that:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

The immigration officer also argued that Mambrahutu's allegation that his application had not been determined within a reasonable time was totally acceptable because he was the one to ask the Commissioner for Refugees to stay the proceedings.

Mambrahutu applied for refugee status on October 9, 2002. When, towards the end of the interview, he was asked whether he wanted the proceedings to continue or whether he wanted to stay them until he spoke to his lawyer, Mambrahutu chose to speak to his lawyer and asked for the temporary stay of the proceedings to enable him to provide more documents in support of his application.

The documents were only provided on June 20 and his lawyer had actually asked for more time to check some things and make further submissions.

Magistrate Quintano noted that section 10(2) of the Immigration Act (which authorised detention) had already been perused by the European Court in the case "Aslan v. Malta" and that court had found nothing to censure in the law and had dismissed the application. On the hearing of an application within reasonable time, the court noted that the Constitution and the European Convention required that an arrested person was to be brought before a judicial authority within a short time if he was suspected of committing a crime or about to commit a crime.

But in the case of a person coming to Malta without the required authorisation, the law was silent.

Magistrate Quintano said, however, that the Magistrates' Court could not decide matters of a constitutional nature like the delay of the proceedings for refugee status.

He also ruled that the writ of habeas corpus applied only when a person had requested to leave the island and was detained without any reason according to law.

Mambrahutu could ask to be sent to another country and this would automatically mean his release from custody.