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Summary: This report extracts mentions of children's rights issues in the reports of the UN Special Procedures. This does not include reports of child specific Special Procedures, such as the Special Rapporteur on the sale of children, child prostitution and child pornography, which are available as separate reports. Scroll to: _________________________________________________________________________ Detention of children: The mandatory detention legal regime applied to unauthorised arrivals and asylum- seekers does not seem to be in line with international human rights law. Migrants in an irregular situation are subjected to mandatory detention without genuine and effective recourse to a court of law. The length of their detention has not been clearly defined under law. Asylum-seekers are held in detention for up to 12 months if their asylum claim is still pending. Those migrants who do not apply for political asylum or those whose applications have been rejected may end up spending 18 months in custody at closed detention centres. The report acknowledges the Government’s efforts to apply a fast-track procedure for release of families of migrants with children, unaccompanied minors, pregnant women and breastfeeding mothers, persons with disabilities, as well as those with serious or chronic physical or mental problems, although it may still take up to three months to release them into open centres. (Summary) Juvenile justice: With respect to minors in conflict with the law, the Working Group shares the concerns of the Committee on the Rights of the Child about the extremely low age of criminal responsibility for juveniles, set at nine years. It also shares the concern of the Committee about the assumption contained in Maltese legislation that a juvenile between the age of 9 and 14 years could act with “mischievous discretion” and the exclusion of children between 16 and 18 years of age from the juvenile justice system. Despite the fact that, in practice, minors are rarely taken into detention or sentenced to prison terms, the Working Group invites the Government of Malta to reconsider the applicable laws, notwithstanding that it has already received indications from the Government that the current legislation on criminal responsibility of juveniles is considered appropriate. (Paragraphs 31 and 32) Recommendations: (b) Increase the minimum age of criminal responsibility for juveniles to 12 years in accordance with paragraph 32 of general comment No. 10 (2007) of the Committee on the Rights of the Child; Use of immigration detention: Vulnerable migrants in an irregular situation, such as families with children, unaccompanied minors, pregnant women, breastfeeding mothers, persons with disabilities, elderly persons, or people with serious and/or chronic physical or mental health problems, are also subjected to mandatory detention when arriving to Malta. They are released from detention under a fast-track procedure once the competent Government agency, the Organisation for the Integration and Welfare of Asylum Seekers, has assessed their situation and determined that they are indeed vulnerable. According to the Government, “manifestly vulnerable cases” are referred to the Organisation by the Principal Immigration Officer, whose authorisation for release upon recommendation by the Organisation is usually obtained within days. In cases concerning other than “manifestly vulnerable” individuals, the procedures usually take time to complete and authorities are faced with certain obstacles, prolonging the period of detention. Problems, for example, relate to the determination of the age of an individual who claims to be a minor, particularly when this contention is disputed by the authorities. The Working Group was informed that such procedures may take more than an unacceptable three months for individuals who may be unaccompanied minors. Once it has been determined that a person belongs to a vulnerable group eligible for early release, medical clearance and accommodation in one of the open centres must be obtained, which further adds to the length of detention. The Government has, however, informed the Working Group that progress has been made in this regard in the past years and medical clearance now takes only a few days. (Paragraphs 41 and 42) The detention regime to which migrants in an irregular situation are subjected falls far short of international human rights law, which requires that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” (art. 9, para. 4, of the International Covenant on Civil and Political Rights, to which Malta is a State party). Detention of vulnerable groups of persons cannot be deemed the last resort, as required by applicable international human rights law and European Union legislation. (Paragraph 58) The Working Group acknowledges the Government’s efforts to apply a fast- track procedure for the release of families of migrants with children, unaccompanied minors, pregnant women and breastfeeding mothers and people with disabilities, serious or chronic physical or mental problems. However, it observes that it may take up to three months to free them into open centres. It also notes the decriminalisation in 2002 of illegal entry into the country and the adoption of measures aimed at reducing the time required for the processing of asylum applications. (Paragraph 78) Recommendations: Conditions in immigration detention: Despite the efforts made by the authorities, the conditions of detention at the closed centres of Safi and Lyster Barracks are appalling, adversely affecting the health, including the mental health, of some of the detainees. These detention centres are overcrowded. At Lyster Barracks, families are not separated from men, women (including pregnant and nursing mothers) and children (including unaccompanied minors). The Government, in its comments to the draft of this report, noted that the policy followed by the Detention Service to separate single males from families and single females was already implemented during the visit of the Working Group. The Working Group, however, during its visit to Lyster Barracks interviewed inmates concerned who alleged that this was not always the case. (Paragraphs 53 and 54) Many detainees were living in tents. At the time of the visit, in the winter month of January 2009, 59 inmates did not even find a place to sleep in these tents. The Government, in its comments to the draft of this report, reported that only single males were accommodated in tents and that they contained enough beds for every single male migrant. The Working Group however received first-hand accounts from the inmates that a number f them slept in the buildings where the showers and toilet facilities were, or outside. At Lyster Barracks, the Working Group also met an 8-year-old boy who should not be detained at all, as well as a Somali man, suffering from HIV and chicken pox, who was held in one of the isolation cells to protect other inmates from infection when he should have been transferred to a hospital. (Paragraph 55) Upon the conclusion of the visit, the Working Group took these cases up with the Government and was informed that no migrant in detention is denied the necessary medical — including hospital — treatment. The Government further reported that the 8-year-old boy had been released less than two weeks after his arrival to Malta on the last day of the visit of the Working Group, following the medical clearance procedure routinely applied in all cases under the fast-track release procedure described above. The Government further informed the Working Group that irregular migrants in detention are afforded the same medical treatment as Maltese citizens and maintained that the Somali man had been separated from the other inmates with a view to avoiding the spread of chicken pox to the other migrants, but not by being placed in the isolation cell. The Working Group received a different account when interviewing the man, and considers that he should have been transferred to a hospital. The Working Group was also informed about measures taken by the Government of Malta after the visit of the Working Group to improve the conditions of detention at the various immigration detention facilities, including the removal of the tents section at Lyster Barracks. It looks forward to receiving a comprehensive report from the Government in a spirit of a continuous dialogue applied by the Working Group vis-à-vis all States it visits on official mission. (Paragraphs 55 and 56)
Please note that the language may have been edited in places for the purpose of clarity.
Working Group on arbitrary detention
(A/HRC/13/30/Add.2)
Country visit: 19 to 23 January 2009
Report published: 18 January 2010
c) Eliminate the assumption that a juvenile aged between 9 and 14 years could act with “mischievous discretion”;
(d) Provide that the juvenile justice system extends to minors between the age of 16 and 18 years; (Paragraph 79)
(f) Rule out immigration detention of vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems; (Paragraph 79)