Updated 9pm

Nine asylum seekers were awarded €20,000 in non-pecuniary damages after a court ruled that their rights had been breached when they were detained on board tourist boats during the coronavirus pandemic in 2020. 

The nine men were among 32 who sued the state, claiming that their rights had been breached when they were detained on board Captain Morgan boats after they were rescued at sea.

They claimed that their right to liberty and right to seek asylum had been breached. They also claimed they had been subjected to inhuman treatment.

The plaintiffs fled their home countries in search of a better life. They then fled Libya due to the ongoing civil unrest and travelled to Europe. The plaintiffs were among 425 migrants who left Libya on small boats seeking safety in Europe.

They did so on different days, and among those fleeing the North African country were women and children. 

Their journey was cut short due to faults in the boats or adverse weather conditions, and they asked for assistance while in Malta’s search-and-rescue region.

The migrants were first rescued by a private vessel, which was possibly acting on instructions given by Malta’s Search and Rescue Coordination Centre, before they were transferred to tourist boats operated by Captain Morgan and Supreme Cruises.

The plaintiffs were detained for several weeks at 13 nautical miles – just outside Malta’s territorial waters. 

During their detention on the vessels, the plaintiffs claimed that they were never informed about the reason for their detention and of the government's plans.

They also claimed that they were not informed how to exercise their right to asylum or served with a detention order.

Additionally, they claimed that at a certain point, the captains asked them which European Union Member State they would like to relocate to, since this was the government’s plan. 

They also claimed they had no contact with the outside world except for when the captain switched on the wifi. Moreover, the plaintiffs’ lawyers were not granted permission to visit the migrants aboard the tourist boats.

They had requested permission in writing, but the request remained unanswered. In their application, the men claimed that their detention was unlawful and that they were subjected to inhuman and degrading treatment.

The plaintiffs argued that the boats were overcrowded and there was no privacy. 150 people aboard the boat had to make use of two to three toilets and showers.

They had no beds and were given sleeping beds only after they complained, recalling that sometimes they could not lie down due to the lack of space.

They also complained that there were no doctors, nurses or medical services on the boat.

One of the plaintiffs said he had been unwell for days and had to wait to be seen by a doctor. The captain allegedly gave him medicine, and he was only seen to some 10 days later.

The plaintiffs were given a soap bar, toothbrush and toothpaste.

Some were also given a change of clothes, but the majority remained in the same clothes they had on since they left Libya.

The last three days on board the vessel were very difficult due to adverse weather conditions.

In May 2020, the European Commission had asked the government to provide it with details about the migrants aboard the vessels. In June, a spokesperson for the EC said that they should be disembarked without delay.

The Council of Europe Commissioner for Human Rights Dunja Mijatović had also called for action.

The government announced that they will be disembarking on June 6, 2020 or 37 days after the first vessel sailed outside Malta’s territorial waters. The migrants were taken to the Safi Detention Centre and the Marsa Initial Reception Centre without being informed as to why they were being detained.

Their detention lasted for several weeks or months, with some of the plaintiffs having filed an application claiming unlawful detention.

Nine out of 32 migrants presented affidavit

In its considerations, the court observed that only nine out of 32 plaintiffs testified in the proceedings through an affidavit.

It also observed that only some of them appeared in court during the first two sittings, and said it did not feel it was right that many of the plaintiffs relied on the affidavits presented by the other nine individuals.

This point was taken into account when establishing whether they had juridical interest in the case, with the court quoting case law saying that juridical interest is based on evidence and not suppositions or pretensions.

“The court cannot suppose that those who testified [via affidavits] did so in the interest of others because when one examines the affidavits there are particular facts, such as when the cook allegedly threw the food into the sea or when one of them tried to drink shampoo.

"These are so specific that they refer to the person who chose to testify via an affidavit,” the court said.

It noted that the rule was that whoever made an allegation needed to prove that allegation, and that the rest did not confirm the contents of the application on oath.

“More time was wasted on how the tenders for the vessels were issued - which in the opinion of the court was irrelevant to the case - instead of bringing evidence relevant to each plaintiff to substantiate their claim once they decided they would not testify,” the court said.

It ruled that the juridical interest of many of the plaintiffs - aside from the nine individuals who testified in their affidavits - was missing.

Court sympathises but says they had no permission to end up in Malta

When dealing with the merits, quoting case law, the court said that one could not accept a complaint as gospel. A complaint needed to be corroborated unless the evidence could not be produced because it lied in the exclusive possession of the state or if it was up to the state to bring forth credible evidence to contradict the complaint. 

The court went on to say that from the application filed before the First Hall of the Civil Court in its constitutional jurisdiction, the migrants' complaints were mainly based on their detention at sea.

The court said it sympathised with the plaintiffs who had escaped "misery" in their country, however, they ended up in Malta without relative permission.

This did not change anything from the fact that they were brought to Malta following a rescue operation, and the Maltese state could not act differently since it has obligations under international treaties and natural law that requires saving human life.

It continued that plaintiffs were rescued when “Malta was besieged by the coronavirus pandemic and like other countries, there were many restrictions on everybody”.

“When the plaintiffs were disembarked, the ports were closed off to everyone except for those transporting essential provisions,” the court observed, adding that the resources of the country “were stretched to the limit and the government was caught off guard in this unexpected event and therefore had to see how to host, feed and provide for their needs".

It said that from the evidence brought forward, there was no doubt it was not a case where they suffered torture.

However, it had to decide whether they were subjected to inhumane or degrading treatment.

The court added it was convinced that the Maltese Government acted in good faith and did not premeditate to subject the plaintiffs to inhumane or degrading treatment.

“However, the absence of malice does not necessarily exonerate the government from being held responsible of breaching this fundamental right,” the court observed.

“In a few words, the acts have to be examined from an objective perspective. It would be worse if there was bad faith on the part of the authorities - something which the court is absolutely excluding in this case.”

The court said the burden of proof that there was no mistreatment fell on the state, which has to rebut the allegations made against it, unless such evidence can be brought forward by those who are alleging the breach.

The court then looked at the evidence and noted that one of the plaintiffs said no one tested positive for coronavirus, however, health superintendent Charmaine Gauci had testified that some had tested positive.

It also observed that the plaintiffs complained there were some 120 people of different nationalities on the boat, who were arguing among themselves due to stress.

“The court understands they were stressed and sympathises with them, after days adrift on the open sea, in overcrowded conditions on a vessel which mostly likely lacked all facilities.

"The court cannot exclude that their presence at sea after they were rescued did not diminish the stress,” the court said, adding it could not conclude that the stress was solely due to the conditions on board the boat.

It observed the plaintiffs claimed they were not given enough food and the cook threw the food overboard, however, no evidence was brought forward to substantiate this claim.

The court noted that Captain Morgan’s General Manager Kevin Zammit Briffa, had testified that the migrants were given food, cigarettes, sweets, medicine, drinks, telephones, clothes and blankets.

The cook was not summoned to testify in these proceedings.

Referring to the mirants' complaint regarding privacy, the court held this was not an essential element to determine whether there was inhumane or degrading treatment.

It referred to a claim by one of the plaintiffs who said he remained with the same clothes for two weeks while at sea. However, this could not be considered as inhumane treatment, according to the court, adding that the respondents had testified that they had given them clothes.

Another plaintiff claimed he had been mistreated by a security officer and that he jumped overboard. However, no evidence was brought to substantiate the claim.

The court reiterated it was up to the plaintiffs to bring such evidence forward.

A plaintiff who was detained between May 22 and June 6, 2020, told the court he had been informed they were kept on boats due to quarantine. The court said the respondents did not lie when they said so.

The same plaintiff said that during that fortnight, doctors only accessed the boat twice, while no lawyers nor social workers visited them.

The court observed that the testimony of one of the paramedics, as well as that of the captain, showed otherwise. The captain told the court that whenever it was needed, he would call up his boss and a nurse was sent on board.

Kevin Mahoney also testified that Red Cross would spend four to five hours on board whenever they visited the migrants detained at sea.

On limited internet access, the court observed that the respondents testified that the plaintiffs had been provided with mobile phones and they ensured they had water.

The court said it could not decide whether internet did not function due to technical issues or their position at sea, or if the authorities halted the service from time to time.

“This court believes that whoever finds himself in such a situation cannot expect all the commodities one would find in a normal situation.

"The court truly believes that the respondents were doing all they could in the circumstances which were unexpected and new,” the judgement reads.

Mr Justice Toni Abela referred to prime minister Robert Abela’s testimony, who had said the “government found itself in an emergency that the world had never seen before”.

Abela had said the decision was taken because the centres were full and could not take any more individuals. Moreover, there was an order that no one could enter the country.

Home affairs minister Byron Camilleri had meanwhile said he never received the plaintiffs’ complaints.

He said that doctors and nurses were sent on the boat and the plaintiffs were given the right to apply for asylum.

In the case of another plaintiff, who drank shampoo and was taken to Mount Carmel hospital, the man failed to summon the psychologist to confirm the facts.

The man had told the court he drank shampoo after he went to Ħal Far and tried to hang himself.

However, the judge said the court could not establish whether his mental state existed from before he fled his home country.

The court also noted that adverse weather did not amount to inhumane treatment since, after all, the health authorities had closed the ports, and the state was not to blame for natural weather conditions.

'Vessels not made to host so many people'

“A circumstance that worries the court, is that the vessels were not made to host so many people to sleep on them,” the court observed, saying that they were packed like sardines and sometimes had sea water on them.

Zammit Briffa testified that tables and chairs were removed to turn the vessel into a dormitory. Toilets were added; however, the court said the sanitary facilities were not even minimally adequate to provide for the amount of people on board.

The court observed the European Court of Human Rights made it clear that “the prohibition of torture and inhumane or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity”.

Moreover, the prohibition is absolute and the right to derogate can be invoked only in time of war or other public emergency threatening the life of the nation, and requires the state availing itself of this derogation to fully inform the Secretary General of the Council of Europe.

The court referred to case law from the Strasbourg court, and said the phrase “public emergency” should not be interpreted in the wide sense to avoid situations were a public authority abuses of such situations to suspend the protections afforded through human rights law.

It added that a statement by the prime minister showed it was an emergency, however, not within the strict meaning of the law.

“However, hand on heart, we cannot say that the organic life of the Maltese community was threatened and that there was a dismantling of the institutions.

"This court, however, notes that this was a moment when the Maltese state and the Maltese nation rose to the occasion,” the court said, adding it believed that Article 15 of the European Convention on Human Rights which dealt with derogation in time of emergency was not applicable in this case. For the derogation to be valid, the state had to notify the secretary general.

The court took into consideration the specifics of the case and found that the plaintiffs were subjected to degrading treatment insofar as the space provided for sleeping and the sanitary facilities.

When it came to decide on whether they had been unlawfully detained on the boats, the court said it disagreed with the argument put forward that the plaintiffs had to be disembarked once the ports were closed, since “they were not enjoying a privilege above others”.

“At the time, no vessel could enter the ports except for merchant ships bringing essential provisions,” the Court said.

It argued that in this case one needed to distinguish between detention and restriction of movement, arguing that the latter hit the majority of the nation as they were bound to their homes and were threatened with fines and imprisonment.

The court took into consideration the two decrees on the unlawful detention of two of the plaintiffs, but said these were delivered on the fact that the men were being detained at Ħal Safi and not at sea.

It ruled that their detention at sea was a measure to restrict their movement and not detention, but declared that they were unlawfully detained on land.

The court ruled that the nine individuals were subjected to degrading treatment and that they had been unlawfully detained on land.

It ordered the state advocate to pay €20,000 in damages.

Lawyers Cedric Mifsud, Neil Falzon, and Carla Camilleri assisted the applicants.

State Advocate Chris Soler is assisting the Prime Minister and the Home Affairs Minister as respondents.

Government welcomes judgment

In a statement, the government welcomed the court's decision and said the sentence acknowledged that the state had acted in good faith.

It said the government had no intention of preventing the migrants from seeking asylum and were given access to the application process once in the Maltese territory. Some had been relocated to other EU countries or returned to their country of origin, it added.

It said while it took note of the criticism of the sanitary and dormitory facilities on board the vessels, the court had dismissed claims about medical care, internet access and basic living provisions.

'Malta intentionally violated human rights': aditus

Reacting to the judgment, aditus said the court confirmed on Thursday that when Malta kept people out at sea for weeks, it had done so in a degrading manner.

"In doing so, Malta intentionally violated their fundamental human rights. The court also confirmed that, after carrying out this degrading experience at sea, Malta illegally detained our clients.

"Again, Malta intentionally violated their fundamental human rights. These are significant pronouncements on how Malta insists on treating migrants and refugees. This dehumanisation process needs to stop. Malta can do better than this.”