Updated 8.26am with PN statement below.

A decision to jail two Turkish mothers for making use of forged passports – resulting in their young sons being placed in state care – “seriously infringes” Malta’s international legal obligations, a human rights expert has warned.

The court’s decision to incarcerate for six months the two women, who say they fled their country to avoid harsh consequences because of their political beliefs, is serious and worrying on several levels, John Pace told Times of Malta.

Pace is an international human rights law practitioner with over 50 years experience and served the United Nations in various capacities, including in Iraq and Lebanon.

In court, Rabia Yavuz, 27, and Muzekka Deneri, 29, had admitted using forged travel papers as they sought to avoid repatriation to Turkey, after having fled in the attempted 2016 coup. The two are in the process of applying for asylum.

Last week, their boys, Akif Yavuz, 3, and Sina Deneri, 4, were heard crying outside the courtroom as their mothers were jailed on pleading guilty.

The two mothers on Monday filed an appeal contesting the punishment as “disproportionate and excessive”.

The women will soon be applying for bail in court in the hope to be reunited with their young sons.

Pace said the disregard of the fundamental principle of “the best interests of the child” is particularly serious. This principle is fundamental to the implementation of the UN Convention on the Rights of the Child and its Optional Protocols.

Other international procedures, such as the Special Rapporteur of the Human Rights Council and several other related institutions monitoring child welfare, further strengthen this principle.

“The decision seriously infringes Malta’s obligations as state party and speedy action is required in order to redress the damage that this court decision is causing to these children.”

Of special concern also is the wider refugee context of the case, which appears to ignore the risk of aiding and abetting the other international obligation of Malta under the Refugee Convention, which embodies the principle of ‘non-refoulement’ of refugees.

In the appeal, lawyers Gianluca Cappita and Jason Grima argued that the punishment was excessive in the circumstances: the women belonged to the Gulen movement – blamed for the 2016 failed coup on the Turkish government. Apart from that, they had two young children who had no other family connections in Malta.

Speedy action in order to redress the damage that this decision is causing to these children

“The appellants are not criminals… they are in need of the protection of the state. In these circumstances, a six-month jail term was of no benefit and goes against the reformative aspect of our justice system,” the lawyers wrote in the appeal.

Tying in with Pace’s arguments, they also noted that the women – who started the process to apply for refugee status – were covered under the Geneva Convention, of which Malta was a signatory.

The convention states: “Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees... coming directly from a territory where their life or freedom was threatened...”

The magistrate heard that the women, both teachers, were arrested at the airport on July 26.

They had been travelling from Greece to Belgium via Malta when they were stopped.

The women had presented false French and Italian identity cards and one of them also had two illegal Romanian cards.

Appoġġ director of child protection services, Steve Libreri said the children were placed in alternative care after their mothers agreed to hand them over to the state until they served their time.

The judgment was described as “inhumane and unjust” by NGO Moviment Graffitti, which said the courts could have chosen a community-based sanction.

Meanwhile, the Maltese Association of Social Workers said it was “appalled” by the judgment.

The association called on politicians to immediately reform the criminal justice system, following consultation with key stakeholders, so that it is child-centred.

The women belonged to the Gulen movement, blamed for the 2016 failed coup on the Turkish government. Photo shows supporters of the government. Photo: Shutterstock.com Inset: John Pace, an international human rights law practitioner with over 50 years’ experience.The women belonged to the Gulen movement, blamed for the 2016 failed coup on the Turkish government. Photo shows supporters of the government. Photo: Shutterstock.com Inset: John Pace, an international human rights law practitioner with over 50 years’ experience.

What does the law say?

The women were charged with using forged passports under three chapters of the law: the Criminal Code, the Passport Ordinance and the Immigration Act.

According to the Criminal Code and the Passport Ordinance, anyone found guilty of making use of such forged comments is liable to imprisonment for a term from six months minimum to two years.

According to the Immigration Act the punishment can be a fine (maximum €11,647) or a maximum two-year jail term.

However, lawyer Etienne Calleja explained that the law does not exclude the courts from applying a suspended jail term, conditional discharge or even probation.

Calleja noted that in a case in February, a Brazilian national was given a one-year jail term suspended for four years for making use of forged documents. The court noted the circumstances, the early guilty plea and the cooperation with police.

Why flee Turkey?

Turkey witnessed the bloodiest coup attempt in its political history on July 15, 2016, when a section of the Turkish military launched a coordinated operation in several major cities to topple the government and unseat President Recep Tayyip Erdogan.

The Turkish government blames the failed coup attempt on Fethullah Gulen, a Turkish preacher and businessman who has lived in self-imposed exile in the United States since 1999.

Turkey wants his extradition to face trial.

The Hizmet movement, led by Gulen, has been branded a “terrorist” organisation by Erdogan.

Over the years, Erdogan carried out a sweeping purge of state institutions after the plot, sacking or suspending more than 100,000 public sector employees, including teachers and judges, who were accused of links to the coup attempt and Gulen.

There have been many trials of alleged plotters and courts have issued more than 2,500 life sentences.

PN calls for government investigation

The Nationalist Party in a statement on Tuesday urged the government to investigate whether protocols for the protection of young children and protection of victims of trafficking had been observed in this case.

Had the Directorate for the Protection of Children played any role in this case? Why had the children been exposed to dramatic proceedings in court, possibly traumatising them? What contact was there now between the mothers and their sons, the party asked.

Had enough been done to establish whether or not the mothers and their children were effectively victims of human trafficking?

 

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