Migrants' Libya pushback case dismissed on procedural point

The allegations were 'serious and merited the greatest of attention', but the judge had to dismiss the case as the appointment of the plaintiff's proxy was not done properly

A human rights case filed by 52 asylum seekers who claimed that they were returned to Libya on a fishing vessel hired by the Maltese government has been dismissed because a crucial technicality had not been satisfied. 

The group of 52 who had been pushed back to Libya on the fishing vessel Dar al Salaam had filed the case in 2020, asking to apply for asylum and to receive compensation.

In the judgement handed down today by the First Hall in its Constitutional jurisdiction, Mr. Justice Lawrence Mintoff ruled that the documents appointing lawyer Paul Borg Olivier as their special mandatary or proxy could not be validly exhibited in the acts of the case because the documents had not been made according to law.

The law requires them to first be presented to the foreign authorities and a diplomatic or consular representative of the Maltese government for authentication and legalisation purposes. 

This procedural requisite had been highlighted by the defendants - the Prime Minister, Minister for Home affairs,  National Security and Law Enforcement and the Commanding Officer of the Armed Forces of Malta and was subsequently attested to in court by the Maltese Director of Consular Services, together with Foreign Ministry employees stationed abroad, as well as by a Libyan lawyer.

The judge ruled that, since the appointment of Borg Olivier as the plaintiff’s proxy had not been done in the manner required by the Code of Organisation and Civil Procedure, as the documentation had not been first presented to and authenticated by a diplomatic representative of the Maltese government, the case could not continue.

“The court is of the opinion that the allegations made by the applicants are truly serious and therefore merited the greatest of attention in the management of the evidence. The defendants should not have been given the grounds to raise a plea about the proxy, and neither should this court have had to give a ruling on it, because it ought to have been the first evidence exhibited by the applicants, before every other piece of evidence.”

Without it, the proceedings could not be held in the manner proposed, as the plaintiffs are not in Malta. This meant that the court had no jurisdiction to hear or decide the case at hand. “The court considers these dispositions of the law to be matters of public order and therefore it cannot set them aside and carry on holding hearings in these proceedings as if nothing was wrong, also in the face of allegations of fundamental human rights breach of such a serious nature.”

The plaintiffs claimed to have been pushed back to Libya in April 2020 while fleeing Libya on an overloaded dinghy in Malta’s Search and Rescue zone. In an inquiry into the incident, it transpired that the NGO AlarmPhone informed the Maltese authorities of the overloaded vessel approaching Malta’s Search and Rescue (SAR) zone. A Frontex aircraft also reported spotting the vessel in that area.

Some 34 hours went by after the AlarmPhone call, before the AFM engaged a private fishing vessel, the Dar al Salaam, to pick up the migrants. The rescue operation took another five hours, according to the application.

Two of the migrants died on board and the remainder suffered dehydration and malnutrition, as well as psychological trauma due to their delayed rescue. Despite having UNHCR certificates attesting to their asylum seeker status, they were still returned to Libya where they were subsequently tortured and subjected to degrading treatment, they said.

Borg Olivier had argued that, as an agent of the State, the Dar Al Salaam had a duty of non-refoulement and could not simply be sent back to its home port in the manner described by the Prime Minister, as that would constitute a breach of the European Convention on Human Rights.

When contacted by the MaltaToday, Borg Olivier confirmed that he would be appealing the judgement.