ASLAN v. MALTA
Inadmissible
Christos Rozakis
The applicant is a Turkish citizen, born in 1961 and living in Ankara. He is represented before the Court by Mr N. Göğüsdere, a lawyer practising in Ankara. The facts of the present case, as submitted by the parties, may be summarised as follows. A. At the material time the applicant was working in Libya as an international doctor for the General Management of Mesa Construction Company (“the company”), a Turkish construction company. The applicant, together with his two colleagues, Hasan Yıldız (one of the company engineers) and Ramazan Buber (the company accountant) decided to pay a four-day visit to Malta in May 1995. They took the ferry boat (“the Hanaa”) from Tripoli and arrived in Malta at 8 a.m. on 6 May 1995. When they reached the passport control point the police questioned them about their visit to Malta. The applicant replied that he would be staying for four days and that he had six hundred dollars on him. Despite the fact that the applicant had a valid visa for entering and leaving Malta, issued in Libya, the police claimed that there appeared to be a problem in respect of his return visa to Libya and that he had to wait. Although what the police said was unclear, the applicant did what he was told. His two colleagues were also faced with the same difficulties. While they were waiting one of the police officers, referred to as “Mario”, approached them and started to insult the applicant and his colleagues for being Muslims and Turks. The applicant tried to explain that religion was a matter of belief and that people should respect rather than judge or discuss religion. The police officer became agitated, raised the tone of his voice and stated that the barbarian Turks had tried in the past to conquer the whole of Europe, that they had attacked Malta in 1565 and that the brave, heroic Maltese people had resisted and beaten them back, that Europe had been saved by the Maltese and that the Maltese knew these matters to be true as they had been taught them at school. The Government maintain that this conversation never took place and stress that the “Mario” referred to by the applicant was not on duty at that part of the port at the time in question. The applicant again attempted to explain that he and his colleagues could not be held responsible for events which had occurred 450 years ago and that they could not be used to justify a decision to deny them entry into Malta. The police refused to listen. At 8.30 a.m. the police took the applicant and his colleagues to another building. The police acted violently towards them and placed them in a cell. The Government maintain that the applicants were at no stage assaulted by the police. When the applicant and his colleagues enquired about the crime they were supposed to have committed to warrant being locked up, the officer in charge replied that no mistake had been made and since they did not have a return visa for Libya they were going to be sent back to Libya on the same ferry. The applicant and his colleagues protested that their visas were valid and stated that even if they did not have a return visa for Libya, it was pointless to send them back there. They pointed out that if they were not allowed to enter Malta, they had enough money to buy plane tickets to fly to Turkey and indeed could have gone to Turkey for their holiday under those conditions. The officer in charge laughed at them, saying that they should have considered this before coming to Malta and that they would not be allowed out for any reason. The officer also forcibly seized their camera, removed the film and burned it. At about 2 p.m. the officers' shift changed. New officers took over. Although they explained their situation to the new officers, there was no change in the outcome. They told the police that they could not keep them in cells even if they did not grant them leave to enter Malta. The applicants were threatened that "worse" might happen if they did not shut up. At about 2.30 p.m. the "Hanaa" began embarking passengers for the journey to Libya. The applicant and his colleagues asked the police to let them get on it. The police said they would let them go to the ferry just before it departed. The Government state that it is the practice of the ferry master not to allow “inadmissible passengers” such as the applicant on board until one hour before sailing. The applicant and his colleagues were given nothing to eat or drink for thirty hours. Those who needed to use the toilet facilities had to call the warder who took them one by one. If it was not convenient for him, he simply said "later". The Government dispute these allegations and assert that the detention only lasted a maximum of ten hours. The applicant and his colleagues were taken out between 6.45 p.m. and 7 p.m. and brought to the ferry. Their passports were given to the Libyan officer in charge of the ferry. When the Libyan officer asked why they had not been granted leave to enter Malta, they explained that the Maltese officials had claimed that they did not have return visas for Libya. The Libyan officer, after having examined their passports and after having seen that everything was in order, went to the Maltese sergeant and asked why they had not been granted entry. The Maltese sergeant said that the applicant and his two colleagues did not have return tickets for Libya. The applicant insisted that they did have return tickets. The answer of the Maltese sergeant was "they came with this ship and they are going to go back with this ship". Following their return to Libya, the applicant complained to the General Consulate of Malta in Libya. The Consulate replied on 21 May 1995 stating that they would investigate the matter, but the outcome of this investigation is unknown. In a letter dated 14 June 1995 the Turkish Embassy to Libya raised the applicant’s complaints with the Embassy of Malta to Libya. On 10 October 1995 the latter Embassy replied that: “(...) the three passengers did not completely satisfy the requirements of the Immigration Authorities and on more than one account, there were reasons to believe that the Turkish passengers could not possibly be considered as bona fide travellers and were thus inadmissible under the immigration and national security regime (...)” The Embassy’s letter of reply also affirmed that the applicant and his colleagues had been treated with dignity and respect. B. Relevant domestic law Section 5(1) of the Immigration Act provides: “Any person who, not having been granted a residence permit, lands or is in Malta without leave of the Principal Immigration Officer shall be a prohibited immigrant.” Section (2)(a) of the same Act states: “Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he has been granted a residence permit, a person shall also be a prohibited immigrant if: (a) he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants are likely to become a charge on public funds;” Section 10 stipulates: “(1) Where leave to land is refused to any person arriving in Malta on an aircraft, such person may be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in the Government Gazette until the departure of such aircraft is imminent. (2) Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in the Government Gazette; Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is earlier. (3) Any person, while detained under subsections (1) or (2) of this section shall be deemed to be in legal custody and not to have landed.” Section 16 provides: “Any person who acts in contravention of section 5(1) of this Act or is reasonably suspected of having so acted, may be taken into custody without warrant by the Principal Immigration Officer or by any police officer and while he is so kept in custody he shall be deemed to be in legal custody: Provided that, without prejudice to prosecution for any offence under this Act, such person shall be released if he has not been charged with such offence within forty-eight hours of his having been so taken into custody.”