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Matthew Vella
Detained, released, rearrested, and later released again. Karim Barboush, a 44-year old Iraqi asylum seeker, is seeking justice after enduring a fourteen-month long detention at the Hal-Far immigration reception centre.
Barboush was rearrested in October 2004 two days after a ruling of the Court of Magistrates had declared his detention illegal. His case was ordered to be taken back to the Court of Magistrates by the Criminal Court, after it decreed that the Police Commissioner had not been notified that a sitting had been postponed by a day, missing out on giving his evidence in the case.
The tables have now been turned for Home Affairs Minister Tonio Borg, whose specialisation in human rights cases during the seventies and eighties may have once earned him the 'champion' epithet. This time however, he faces a challenge to his detention policy, along with Police Commissioner John Rizzo, in the Constitutional Court.
Karim Barboush is asking the court to declare that his detention was against his fundamental human rights as enshrined in the European Convention for the Protection of Human Rights, and article 34 of the Maltese Constitution, on protection from arbitrary arrest and detention.
But Barboush's legal ordeal has already defied the logic of Malta's in detention policy. In December 2004, just two days before he was to appear in his first sitting in the case brought against the state, Barboush was released from detention, fourteen months after being first taken to Hal-Far.
A departure from Tonio Borg's rigid detention policy, which was already keeping asylum seekers detention for periods of over 20 months, there was no explanation for the unprecedented move.
Unprecedented because, it was not yet known that a government policy on irregular immigration was in the offing, laying down a maximum detention period of eighteen months. Only in February 2005, in the weeks running up to a national conference on immigration, and the start of an EU directive ordering that asylum seekers be given access to the labour market after a maximum of twelve months, was the policy clearly put in writing. Not even police inspector Sandro Zarb, in his witness in the Constitutional case, could give a reason for the Iraqi's release.
Escape from Libya
Karim Barboush arrived in Malta from Libya in the summer of 2003, another case of mistaken destination for the scores of refugees pointing towards Italy. He had left Iraq at the age of thirteen with his uncle. But in Libya, his situation became "critical". After arriving in Malta he was detained in August 2003 like all immigrants who do not bear passports, first at the police general headquarters in Floriana and then at the Hal-Far centre.
He applied for refugee status, and was interviewed in January 2004 by the Refugee Commissioner. His application denied for lack of proof of identity, he wrote to the Refugee Appeals Board in March to appeal the ruling.
But up until October 2004, Barboush had not yet received a definitive answer on his case, nor did he know whether he had actually been assigned a lawyer after asking for state-sponsored legal aid, a right given to all asylum seekers at the appeals stage.
Perhaps not without surprise, because according to an affidavit presented in court by one of his lawyers, Katrine Camilleri, also the assistant director of the Jesuit Refugee Service, until recently "the absolute majority of appellants who asked for legal aid were not given the service." Now, two lawyers assist the dozens of appellant asylum seekers.
Throughout his detention, Barboush was regularly admitted into hospital. His lawyers have presented signed medical certificates to the Ministry of Home Affairs and Justice's permanent secretary, asking for Barboush's case to be examined with urgency. There was no acknowledgement of the letter.
Doctors diagnosed Barboush as suffering from phobic anxiety disorder, a continuous state of depression and anxiety, compounded by problems with sleeping, breathing and digesting. His condition had become so dire that on one occasion, his breathing had to be assisted by a nebuliser. They recommended that the Iraqi be released and be able to live in the community for health reasons.
Challenging detention
In late 2004, Barboush managed to win freedom in the Court of Magistrates, which declared his detention illegal, but was rearrested two days later over failure to notify the Police Commissioner of a postponed sitting. The Criminal Court said the way the court had treated Karim Barboush's application was "not orthodox".
Barboush is now claiming that his detention was illegal and arbitrary. Although it was sanctioned under the Immigration Act, he claims it is illegal under article 5 of the European Convention on the Protection of Human Rights and article 34 of the Constitution of Malta.
In the affidavit presented by his lawyer, Katrine Camilleri also described her visit to the Hal-Far immigration reception: "rooms were crowded, with beds almost touching each other with a total lack of privacy. As in every other centre, detainees have absolutely nothing to do during the entire day. Additionally, they have no access to correct and impartial information of their situation and rights, their choices in the circumstance, and the progress of their cases, with the consequence of creating a lot of frustration amongst detainees."
matthew@newsworksltd.com
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