The court was taken to task in an appeal on Thursday over a breach of rights case by 52 asylum seekers pushed back to Libya four years ago.

In their appeal, lawyers argued that if the court truly believed that the asylum seekers' allegations were “serious”, it should “never have thrown out the case with the excuse of a procedural shortcoming”, raising the degree of proof to “impossible” heights.

That was one of the arguments put forward by lawyers assisting the group of mainly Eritrean migrants and surviving relatives who have been waging a constitutional battle against the Maltese state over the incident, which took place at Easter in April 2020.

Maltese authorities had been alerted to the boatload of migrants who were heading to the Maltese search and rescue area, with the vessel being located by Frontex aircraft and later also by an AFM seacraft.

A private fishing vessel, the Dar El Salam 1, was engaged to assist in the rescue operation which resulted in the migrants being returned to Libya.

They were placed in a detention centre where they faced further inhuman and degrading treatment.

Through the assistance of lawyer Paul Borg Olivier, who acted as mandate on behalf of the group, the migrants filed constitutional proceedings claiming that their fundamental rights were breached through the rescue operation coordinated by the Maltese state which had failed to observe international, European and Maltese laws.

But earlier in March, the First Hall, Civil Court in its constitutional jurisdiction threw out the case over a technicality.

Mr Justice Lawrence Mintoff upheld a preliminary plea raised by the State Advocate who challenged Borg Olivier’s mandate to represent the asylum seekers in the case.

The court concluded that the powers of attorney could not be validly exhibited in evidence since they had not been drawn up according to law.

Their authenticity had not been ascertained by foreign authorities and a diplomatic or consular representative of the Maltese government according to prescribed rules of procedure.

Since such formalities were a matter of public order they could not be waived aside, “also in the context of serious allegations of breaches of their fundamental human rights”, the judge ruled.

That ruling is now set for review by the Constitutional Court following an appeal filed by Borg Olivier.

Court ignored “flexible nature” of constitutional proceedings

The first court stated that the migrants’ claims were “indeed serious” and deserved “utmost attention in handing every [piece of] evidence”.

And precisely such “most serious allegations” about the migrants’ plight called for “more flexibility” in tackling procedural issues, argued the appellants’ lawyers.

This did not mean that the party claiming breach of rights was to be believed outright by the court without any scrutiny.

But the degree of proof ought to take into consideration the nature of the case and the particular circumstances involved.

In this case, the evidence, including detailed affidavits and written submissions concerning Borg Olivier’s power of attorney, “clearly” reflected his “genuine, meticulous and professional commitment” built upon the reciprocal trust between him and those he represented.

When the asylum seekers were returned to a Libyan detention centre, they initially gave verbal authorisation to Borg Olivier to institute the case.

Given the scenario at the time, the lawyer knew that it would not be easy to prove that he had been verbally authorised by more than 50 individuals who were being detained in a war-torn country, under difficult sanitary conditions made worse by the COVID-19 pandemic and after a traumatic pushback.

Embassies and consulates were also locked down.

The migrants’ only refuge was the UNHCR, the United Nations Refugee Agency.

Borg Olivier had, therefore, followed adopted practice by calling upon the agency for assistance, fully anticipating such pleas by the Maltese state.

After giving a verbal mandate, each migrant put his/her authorisation in writing through documents that were drawn up and explained to them by agency officials.

The majority of the applicants had also signed a paper that was produced in the records of the case.

Moreover, the Civil Code provides that such a mandate may be done by public deed, private writing, a letter, verbally or even tacitly, argued the appellants.

And in this case the first court also ignored the “flexible nature” of constitutional proceedings, insisting that the powers of attorney had not been duly authenticated in terms of law.

'A very dangerous situation'

Such line of reasoning gave rise to a “very dangerous situation”, went on the appellants.

The State could easily deny authentication through its diplomats or consuls, thereby blocking judicial proceedings against the State itself.

The court’s reasoning also upset the trust between the attorney and the persons issuing the mandate, subjecting these “vulnerable victims” to the State - the defendant in the proceedings.

One of the purposes for roping in the UNHCR was precisely for the agency to act as intermediary between the migrants and the State which allegedly violated their rights.

First court could have ‘salvaged’ the case

While insisting that the mandate satisfied all legal requisites, the appellants argued that the court itself could have appointed a person to represent them in the case.

The Constitution granted the court the power to do so.

Instead, the court threw out the case “with the excuse of a procedural shortcoming which did not exist” and “arbitrarily” raised the degree of proof to “impossible” heights.

When stating that the powers of attorney had to be authenticated, the court applied a provision of law applicable to “official” documents issued by a foreign state.

The appellants called upon the Constitutional Court to revoke the judgment and send back the case to the first court to proceed on the merits.

Lawyers Evelyn Borg Costanzi and Michael Camilleri signed the appeal.