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Summary: The violations highlighted are those issues raised with the State by more than one international mechanism. This is done with the intention of identifying children's rights which have been repeatedly violated, as well as gaps in the issues covered by NGOs in their alternative reports to the various human rights monitoring bodies. These violations are listed in no particular order.
Scroll to: ___________________________________________________________________________ The Committee notes as positive the amendment of the Civil Code which aims at ensuring equality of rights for children regardless of the marital status of their parent(s). However, the Committee remains deeply concerned about serious instances of discrimination against children in irregular migration situations. In accordance with article 2 of the Convention, the Committee urges the State party to increase its efforts to adopt a proactive and comprehensive strategy to eliminate discrimination on any grounds, including by considering targeted programmes for addressing discrimination against children in irregular migration situations. Furthermore, the Committee recommends that the State party develop, in consultation with the media, a code of conduct for the media with a view to eliminating stereotyping and stigmatisation of persons in irregular migration situations. Furthermore, the Committee requests that the State party provide specific information in its next periodic report on the measures and programmes relevant to the Convention on the Rights of the Child undertaken by the State party to follow up on the Declaration and Programme of Action adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, taking into account General Comment No. 1 on article 29, paragraph 1, of the Convention on the aims of education (CRC/GC/2001/1). (Paragraphs 28 and 29) UN Committee on Economic, Social and Cultural Rights The Committee notes with concern the distinction made between “legitimate” and “illegitimate” children in the Civil Code of the State party and the fact that children born out of wedlock do not have the same rights as children born in wedlock. (Paragraph 20). The Committee reiterates its previous concerns (CRC/C/15/Add.129, para. 49, 2000) that: The Committee recommends that the State party bring the juvenile justice system fully in line with the Convention, in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System; and the Committee’s general comment No. 10 (2007) on the rights of the child in juvenile justice. Furthermore, the Committee specifically recommends that the State party: (a) Adopt new legislation to, at the minimum, explicitly exclude all children under the age of 14 years and in conflict with the law from criminal proceedings UN Committee on Economic, Social and Cultural Rights The Committee expresses its concern at the relatively low age of criminal responsibility in the State party. (Paragraph 21) Working Group on arbitrary detention 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. Universal Periodic Review (May 2009) P 31. Consider raising the age of criminal responsibility (Azerbaijan); (pending) The Committee reiterates its previous concerns that: (b) Children in conflict with the law between 16 and 18 years of age [are] … tried as adults and subject to criminal law; The Committee recommends that the State party bring the juvenile justice system fully in line with the Convention, in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System; and the Committee’s general comment No. 10 (2007) on the rights of the child in juvenile justice. Furthermore, the Committee specifically recommends that the State party: (b) Consider extending the scope of its juvenile justice legislation to include all children under the age of 18 years; Working Group on arbitrary detention [The Working Group] shares the concern of the Committee [on the Rights of the Child] 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. The Committee notes as positive the Foundation for Social Welfare Services “Blue Ribbon” campaign to promote positive parenting that was launched in 2010. However, the Committee regrets that notwithstanding its previous recommendation (CRC/C/15/Add.129, para. 30, 2000) to explicitly prohibit corporal punishment, the State party continues to lack legislation explicitly prohibiting corporal punishment in all settings. The Committee is particularly concerned that corporal punishment is permitted and prevalent in the home and alternative care contexts as so-called “reasonable chastisement” under articles 229 and 339 of the State party’s Criminal Code and article 154 of its Civil Code. The Committee recommends that the State party take all appropriate measures to explicitly prohibit corporal punishment in all settings and ensure that the prohibition is adequately monitored and enforced. Furthermore, it recommends that the State party strengthen and expand awareness-raising and education campaigns, in order to promote positive and alternative forms of discipline and respect for children’s rights, with the involvement of children, while raising awareness about the adverse consequences of corporal punishment on children. (Paragraphs 36 and 37) UN Committee on Economic, Social and Cultural Rights While corporal punishment is prohibited in schools and other institutions, the Committee notes that corporal punishment within the family, in the form of “reasonable chastisement”, is not prohibited by law.40. (Paragraph 22). Universal Periodic Review (May 2009) R 32. Explicitly and entirely prohibit any kind of corporal punishment of children by law, even in cases of so-called "reasonable chastisement" within the family (Italy and Germany); and strengthen measures to prevent and combat child abuse and ill-treatment (Italy); (rejected) The Committee is concerned that unplanned adolescent pregnancies continue to be a significant problem in the State party. Furthermore, the Committee is gravely concerned that abortion is illegal in all cases and with no exception under the law of the State party and that girls and women who choose to undergo abortion are subject to imprisonment. In this context, the Committee is also concerned at this frequently resulting in girls and women in these situations seeking risky illegal abortions. Referring to its general comment No. 4 (CRC/GC/2003/4, 2003), the Committee recommends that the State party: (a) Develop and implement a policy which addresses the issues faced by adolescent mothers and protects them and their children from discrimination and violations of their rights; and in doing so, pay particular attention to ensuring that pregnant adolescents and adolescent mothers are supported and assisted in continuing their education; and UN Committee on Economic, Social and Cultural Rights The Committee observes with concern that abortion is illegal in all cases under the law of the State party. (Paragraph 23). The Committee urges the State party to review its legislation on abortion and consider exceptions to the general prohibition of abortion for cases of therapeutic abortion and when the pregnancy is the result of rape or incest. (Paragraph 41) UN Committee on the Elimination of Discrimination against Women The Committee is concerned at the lack of sexual and reproductive health-care services in the State party. (Paragraph 24) The Committee recommends that the State party strengthen education programmes on sexual and reproductive health and support sexual and reproductive health services. (Paragraph 42) UN Committee on the Elimination of Discrimination against Women While noting the free access to health care, the Committee is concerned about the insufficient access to reproductive health-care services for women. The Committee notes with concern that education on sexual and reproductive health and rights is not part of the curriculum. The Committee is further concerned that abortion is illegal in all cases under the law of the State party and that women who choose to undergo abortion are subject to imprisonment. The Committee further regrets that the data provided by the State party on the health and health care, including mental health care, of its population in its periodic report was not disaggregated by sex. (Paragraph 34). The Committee calls on the State party to increase its efforts to improve the availability of sexual and reproductive health services, including family planning, to mobilise resources for that purpose and to monitor the actual access to those services by women. It further recommends that the National Policy on Sexual Health, which is being finalised, ensure that family planning and reproductive health education are widely promoted and targeted at girls and boys, with special attention to the prevention of early pregnancies of under-age girls including the control of sexually transmitted diseases and HIV/AIDS. The Committee urges the State party to review its legislation on abortion and consider exceptions to the general prohibition of abortion for cases of therapeutic abortion and when the pregnancy is the result of rape or incest. It further urges the State party to remove from its legislation the punitive provisions for women who undergo abortion, in line with the Committee’s general recommendation No. 24 (1999) on women and health and the Beijing Declaration and Platform for Action. The Committee also requests the State party to provide, in its next report, sex-disaggregated data on health and the provision of health care, including mental health care. (Paragraph 35) The Committee regrets that: (b) Although the State party is a country of transit and destination of asylum-seekers and migrants, including children from countries affected by armed conflict, it has no measures for systematically identifying at the earliest possible stage, refugee, asylum-seeking and migrant children who may have been involved in armed conflicts and ensuring their physical and psychological recovery and social reintegration. The Committee urges the State party to undertake an assessment of its measures, if any, taken in follow-up to the previous concluding observations on the the State party’s initial report under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC/C/OPAC/MLT/CO/1, 2006) and ensure the inclusion of detailed information on it in its next report to the Committee. Furthermore, the Committee recommends that the State party: (c) Establish measures and procedures for systematically and promptly identifying at the earliest possible stage, refugee, asylum-seeking and migrant children who may have been involved in armed conflicts and ensuring their physical and psychological recovery and social reintegration. (Paragraphs 63 and 64) UN Committee on the Rights of the Child OPAC (Concluding Observations January 2013) The Committee notes that the State party is a country of transit and destination of asylum-seekers and migrants, including children, some coming from countries affected by armed conflict. In this respect, the Committee, while noting that the Children and Young Persons (Care Orders) Act has provisions taking care of unaccompanied minors and that the residential setup “Dar is Sliem” offers shelter and services to unaccompanied asylum seekers who are under 18, is concerned at the practice of automatic detention of all persons entering Malta in an irregular manner. While the duration of this detention has been recently reduced to a maximum of 18 months and despite the policy providing that children should not be detained, the Committee is concerned at the information that – in practice – some children and unaccompanied minors, including children coming from countries affected by armed conflict, are detained in certain cases pending the finalisation of the process for their release. The Committee recommends that the State party: a) identify at the earliest possible stage refugee, asylum-seeking and migrant children entering Malta who may have been involved in armed conflicts; UN Committee on the Elimination of Racial Discrimination While noting the large flow of immigrants and efforts made by the State party in dealing with it, the Committee is concerned about reports according to which their legal safeguards are not always guaranteed in practice. It is also concerned about the detention and living conditions of immigrants in irregular situation in detention centres, in particular of women and families with children. (art. 5). The Committee recommends that the State party strengthen its efforts to effectively guarantee the legal safeguards for all immigrants detained, in particular to inform them about their rights, including the legal assistance and to provide assistance to those who seek asylum. The Committee also recommends that the State party continue its efforts aimed at improving the living and conditions of detention of immigrants and thus comply with international standards, in particular the modernisation of detention centres and the placement of families with children in alternative open accommodation centres. The Committee further recommends that the State party adopt the project conducted by the Refugee Commissioner in order to improve the refugee system. (Paragraph 13) Working Group on arbitrary detention 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) 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) (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) 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. 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) Universal Periodic Review (May 2009) P 45. Deal with the influx of illegal migrants, taking a fair and humane approach, and treat these immigrants and asylum seekers, particularly the most vulnerable persons -- children and pregnant women -- in the most proper manner, especially by providing them with the medical and psychological assistance that they deserve and need (Palestine); (pending) The Committee notes that the State party has legislation criminalising forced inducement, violence, threats or deceit to coerce prostitution, international trafficking, child labour and sexual exploitation. However, the Committee remains concerned that notwithstanding this, the State party remains a significant source and destination country for women and children subjected to sex trafficking. UN Committee on the Elimination of Discrimination against Women The Committee remains concerned about the paucity of data with regard to trafficking of women and girls into the State party. As such, the Committee was not provided with sufficient information on the actual situation in the State party and on the institutional mechanism in place to fight against trafficking. The Committee is concerned that the granting of temporary residency permits to victims is based on cooperation with the authorities in legal proceedings. (Paragraph 26) The Committee notes as positive the various initiatives undertaken by the State party to combat abuse, including its adoption of a Child Protection Policy for Schools and its successful prosecution of two priests for perpetrating abuse at the Saint Joseph Home in the State party. The Committee reiterates its previous concern (CRC/C/15/Add.129, para 33, 2000) on the underreporting of child abuse and limited information available for determining the scope and frequency of it, the limited measures for the rehabilitation of child victims, and the insufficient awareness within society regarding the harmful consequences of ill-treatment and abuse, including sexual abuse, both within and outside the family. The Committee recommends that the State party undertake concrete measures to establish a national database on all cases of domestic abuse and/or violence against children with a view to undertaking a comprehensive assessment of the extent, causes and nature of it. The Committee also reiterates its previous recommendations (CRC/C/15/Add.129, para. 34) to the State party to strengthen awareness-raising and education programmes including campaigns with the involvement of children in order to prevent and combat child abuse. In addition, the State party should strengthen measures to encourage reporting of instances of child abuse and prosecute perpetrators of these acts. (Paragraphs 38 and 39) Universal Periodic Review (May 2009) R 32. Explicitly and entirely prohibit any kind of corporal punishment of children by law, even in cases of so-called "reasonable chastisement" within the family (Italy and Germany); and strengthen measures to prevent and combat child abuse and ill-treatment (Italy); (rejected)
Discrimination against children based on the marital status of their parents
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
Last reported: 9 November 2004
Concluding Observations issued: 14 December 2004
The Committee urges the State party to expedite the planned revision of the Civil Code so as to abolish the terminology “legitimate” and “illegitimate” children and ensure equality in the enjoyment of rights of children born both in and out of wedlock.39. The Committee encourages the State party to review its legislation with a view to raising the age of criminal responsibility. (Paragraph 38)
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Low minimum age of criminal liability
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
(a) The age of criminal responsibility remaining at nine years;
(c) The Criminal Code allows for an assumption that a child aged between nine and 14 years could act with “malicious intent” and subject them to trial under criminal law;
(c) Eliminate the criterion of "mischevous intent" for children between 14 and 16 years old (Paragraphs 65 and 66)
Last reported: 9 November 2004
Concluding Observations issued: 14 December 2004
Country visit: 19 to 23 January 2009
Report published: 18 January 2010
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)
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Treatment of 16 and 17-year-olds as adults in criminal proceedings
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
(d) The policy on so-called co-accused minors where children who are co-accused with a person older than 16 years of age can be subject to criminal proceedings;
(c) Eliminate the criterion of “mischievous intent” for children between 14 and 16 years old;
(d) Abolish its policy of co-accused minors which allows for children who are co-accused with a person older than 16 years of age to be subject to criminal proceedings; (Paragraphs 65 and 66)
Country visit: 19 to 23 January 2009
Report published: 18 January 2010
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)
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Corporal punishment
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
Last reported: 9 November 2004
Concluding Observations issued: 14 December 2004
The Committee encourages the State party to consider an explicit prohibition of corporal punishment within the family. (Paragraph 40)
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Criminalisation of abortion
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
(b) Review its legislation concerning abortion, and consider including specific exceptions which allow for abortions with appropriate counselling and aftercare when this is in the best interests of the pregnant adolescent. (Paragraphs 49 and 50)
Last reported: 9 November 2004
Concluding Observations issued: 14 December 2004
Last reported: 12 October 2010
Concluding Observations issued: 9 November 2010
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Inadequate sexual and reproductive health care for children
UN Committee on Economic, Social and Cultural Rights
Last reported: 9 November 2004
Concluding Observations issued; 14 December 2004
Last reported: 12 October 2010
Concluding Observations issued: 9 November 2010
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Inappropriate treatment of migrant and asylum-seeking children, including detention
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
b) carefully examine the situation of these children, prohibit their detention in any case and provide them with immediate, culturally sensitive and multidisciplinary assistance for their physical and psychological recovery and their social reintegration in accordance with article 6 (3) of the Optional Protocol;
c) systematically train authorities working for and with refugee, asylum-seeking and migrant children coming from countries affected by armed conflict;
b) engage in international cooperation in this respect and provide further information on this issue in its next report.
In this respect, the Committee further wishes to draw the State party’s attention to the Committee’s General Comment No. 6 (CRC/GC/2005/6) on treatment of unaccompanied and separated children outside their country of origin. (Paragraphs 12 to 14)
Last reported: 24 and 25 August 2011
Concluding Observations issued: 1 September 2011
Country visit: 19 to 23 January 2009
Report published: 18 January 2010
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:
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)
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Trafficking of children
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
The Committee recommends that the State party further intensify its efforts to raise awareness on sex trafficking and proactively identify trafficking victims among vulnerable populations, particularly migrants, women in prostitution, and foreign workers. It further recommends that the State party develop formal procedures for the identification and care of child victims of sale, sex trafficking and forced labour. The Committee recommends that the State party establishes mechanisms to detect, investigate and prosecute, with commensurate sanctions, cases of child sale, trafficking and abduction. Furthermore, the Committee recommends that the State party undertake a study on the potential linkages between tourism and sexual exploitation in its territory. (Paragraphs 61 and 62)
Last reported: 12 October 2010
Concluding Observations issued: 9 November 2010
The Committee encourages the State party to provide, in its next periodic report, comprehensive information on the prevalence of trafficking in Malta. The Committee calls upon the State party to take all appropriate measures to ensure better identification and investigation of trafficking cases, particularly through the establishment of a mechanism to pro-actively ensure identification of and support for trafficked persons as well as enhanced training and capacity-building efforts for law enforcement officials, including immigration officials, so as to increase their ability to identify potential victims of trafficking. The Committee also invites the State party to strengthen its measures to combat all forms of trafficking in women and children, including through increased international, regional and bilateral cooperation with countries of origin and transit, in line with article 6 of the Convention. In this respect, the Committee urges the State party not only to ensure the prosecution and punishment of individuals involved in trafficking, but also the protection and recovery of victims of trafficking. The Committee also urges the State party to consider using the Recommended Principles and Guidelines on Human Rights and Human Trafficking developed by the Office of the United Nations High Commissioner for Human Rights in 2002 as a basis for its plan of action. The Committee calls upon the State party to collect and analyse data on all aspects of trafficking, disaggregated by age, sex and country of origin, in order to identify trends. The State party is encouraged to undertake a study on the issue of trafficking, including the root causes, with a view to identifying priority areas for action, and to formulate relevant policies. (Paragraph 27)
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Abuse and ill-treatment of children
UN Committee on the Rights of the Child (Concluding Observations, January 2013)
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