A judge has thrown out a human rights case by a group of asylum seekers who were returned to Libya on a vessel hired by the Maltese government after it could not be ascertained whether their lawyer had the mandate to represent them. 

The mandate of lawyer Paul Borg Olivier was questioned in the case he filed on behalf of a group of migrants claiming human rights violations when they were taken back to Libya.

In April 2020, 52 asylum seekers were picked up at sea by a boat commissioned by the Maltese government and taken back to Libya.

Borg Olivier, appearing for the migrants, filed a case against the government, arguing that the decision to push them back to Libya violated human rights under the Constitution, the European Convention and the EU Charter of Human Rights because Libya was not considered to be a safe country.  

The 50 applicants, together with two siblings of two other migrants who died in the operation coordinated by Malta, claimed that it was the state’s failure to observe international, European and local laws which resulted in the migrants suffering inhuman and degrading treatment.

The court heard how NGO AlarmPhone had alerted the Maltese authorities about a boatload of migrants who were heading to the Maltese search and rescue area (SAR). 

The vessel was also located by a Frontex aircraft and 24 hours later, by an AFM vessel.

Yet, it was ten hours after the vessel had entered the Maltese SAR that the AFM engaged a private fishing vessel, the Dar Al Salam 1, to rescue the migrants whose physical and psychological condition was deteriorating.

The AFM engaged a private fishing vessel, the Dar Al Salam 1, to rescue the migrants.

It was three days after the first alert on April 11, 2020, and 39 hours since the migrant boat had entered the Maltese SAR that the fishing vessel, described in the court application as an 'agent of state', reached them.

Once taken on board, they were totally abandoned by the crew and ordered to stay on deck, without being able to take cover from the cold or rain, the migrants claimed.

After being ‘pushed back’ to Libya, they were placed in a detention centre where they were made to suffer further inhuman and degrading treatment.

Two of the migrants had died on board and the remainder had suffered dehydration and malnutrition, as well as psychological trauma as a result of the delays to their rescue. 

The condition of the migrants was certified by a UNHCR official whose report was annexed to the records of an inquiry into the rescue operation conducted by Magistrate Joseph Mifsud.

The migrants argued that Maltese authorities’ argument that the boat had returned to its home port, was not justified and indeed went against Malta’s international obligations to take migrants in distress to a safe port.

Their pushback resulted in a breach of rights, and therefore the applicants called on the Maltese authorities to provide an effective remedy, to liquidate damages and to place the migrants in the position they had been prior to the push back.

Before entering into the merits of the case, State Advocate Chris Soler challenged Borg Olivier’s mandate to represent the migrants through the power of attorney they granted him, according to law. 

Taking the stand as a witness in a previous sitting, Borg Olivier explained that he had initiated first contact with the migrants through various individuals and NGOs who worked with asylum seekers. Subsequently, some members of the group contacted him directly through Facebook Messenger while they were still being held in a detention centre. 

Asked how he had carried out due diligence on the people contacting him for assistance, Borg Olivier said that he had been given footage showing that the people were on the vessel that carried out the pushback. 

Later, these individuals were processed through the UNHCR and re-issued their asylum seeker certificates. Through the assistance of an employee of the organisation, Borg Olivier said he was able to speak to the migrants in small groups over video conference. It was during such meetings that employees and translators would facilitate the signing of the power of attorney agreements, a process which took roughly six months to complete. 

In a judgment handed down on Wednesday by the First Hall of the Civil Court in its Constitutional jurisdiction, Mr Justice Lawrence Mintoff ruled that the documents appointing Borg Olivier as their special mandatory or proxy could not be validly exhibited in the acts of the case because they had not been made according to law.

This would have required them to first be presented to the foreign authorities and a diplomatic or consular representative of the Maltese government for authentication and legalisation purposes. 

The judge ruled that since the appointment of Borg Olivier as the proxy had not been done in the manner required by law, the case could not continue. 

“The court believes that the allegations made by the applicants are truly serious and therefore merit the greatest of attention in the management of the evidence," the judge ruled.

He observed that the case could not continue, especially since the group of migrants was not in Malta. 

This meant that the court had no jurisdiction to hear or decide the case at hand. 

“The court considers these dispositions of the law to be matters of public order and therefore it cannot set them aside and carry on holding hearings in these proceedings as if nothing was wrong, also in the context of serious allegations of breaches of their fundamental human rights," the judge continued as he threw out the case.

Borg Olivier has confirmed he will be appealing.