Justice demands that we do not ignore the stories: comments From MalTA
Defence team El Hiblu 3, Director of aditus foundation
Before the El Hiblu 1 reached Malta’s territorial waters, and long before we got the phone call that started our relationship with Abdalla, Amara and Kader, it was clear that this was going to be a rough ride. A dramatic series of events, intense human stories and backstories, one of Europe’s most problematic – and certainly its most dangerous – borders, and a heavily politicised context. We knew that defending the three would be strenuous and challenging, yet we were not expecting the transformation into a veritable battle for justice to be so quick and relentless.
To date, almost three years after their arrest, our clients’ age remains an unresolved issue. Despite their statements that they were children and notwithstanding clear recommendations from the Court to the authorities to protect their rights as such, Amara and Kader have from the outset been treated as adults. Following their arrest, they were placed in Division 6, the high security division of Malta’s prison. At a minimum, they should have benefitted from the age-sensitive protective clauses in the Prisons Regulations, although it is clear that any time they spent in prison should have been spent in Malta’s specialised facility for children. For their first hearing, they were escorted into and out of the Laws Courts via the building’s main entrance on one of Malta’s busiest pedestrian streets, instead of via the back entrance as is standard practice. It was only after several rather aggressive communications and the involvement of Malta’s Commissioner for Children, that the three were finally moved out of Division 6: Abdalla moving into a regular division, Amara and Kader to the youth facility.
The Prosecution was – and remains – not happy with the conclusion that Amara and Kader were children at the time of the incident. This despite an in-depth assessment made by professionals within the State’s own entity responsible for age assessments, and the Care Order placing the two under the State’s wing as unaccompanied children in need of care. Nevertheless, the prosecution requested that the Court appoint an independent expert to reassess their age, a request that was upheld by the Court. Ignoring international and European good practice for age assessment procedures, the expert conducted a simple wrist X-ray and concluded that Amara and Kader were adults, a conclusion that impinges on our clients’ credibility.
As in most jurisdictions, the age of the accused is a very relevant consideration for issues such as privacy, bail, criminal responsibility and punishment. Throughout the proceedings, we have been required to repeatedly remind the Prosecution that, until revoked, the Care Orders remain in force and require Amara and Kader to be treated and have their rights recognised as children. Another key challenge our clients have faced is an apparent reluctance on the part of the Prosecution to call up to testify around 100 eyewitnesses who were on the El Hiblu 1 with Abdalla, Amara and Kader, living every moment with them. In the first days of the proceedings, we heard testimonies from key witnesses, including the Captain, the crew, officials from the Armed Forces of Malta and from the team that had boarded the vessel after it had entered Malta’s territorial waters. The first witness from amongst the group of rescued people was only summoned in March 2021 – almost two years into the proceedings. This only occurred after our repeated complaints to the Court, including formal applications urging the Court to ensure the Prosecution fulfils its legal obligation of impartiality by bringing all evidence at its disposal: that against the accused as well as that in their favour.
We knew what anyone who works with migrants and refugees in Malta knows: once out of the open reception centres, most people do their utmost to get on with their lives here or elsewhere. No efforts were made by the Prosecution to keep track of this group of valuable witnesses. So today, nearly three years after the incident, our fears have been proven correct: the Prosecution is only able to locate a handful of the people rescued by the El Hiblu 1. With them, we have forever lost their precious stories of what really happened during those crucial hours. The price for Abdalla, Amara and Kader is simply staggering.
In terms of stories, so far all we have heard is a story of three young terrorists fuelling and leading a group of violent people to turn their anger onto the ship and its fearful crew. As the case started to unfold, the Prosecution attempted to stifle the stories that were emerging outside the Court’s confines. An application was submitted lamenting the voices of Amnesty International and a group of local NGOs, amongst them Integra Foundation, African Media Association, Jesuit Refugee Service, Kopin, Migrants Commission, Malta LGBTIQ Rights Movement and Moviment Graffitti. Through the application, the Prosecution requested that the Court silence the media and thereby prevent the publication of opinions similar to those expressed by these organisations. The level of our shock at this attack on press freedom was only matched by the intensity of our response, on paper and in open Court. We welcomed the Court’s decision, finding no reason to repress the media’s publication of case proceedings as well as of expressed views and opinions.
The few stories the Court has so far managed to hear from the rescued persons add indispensable dimensions to the Captain’s narrative. They underline the Captain’s betrayal of their trust. They evoke harrowing screams of panic and desperation. They position Abdalla, Amara and Kader as calming influences, trusted mediators, and unsuspecting heroes.
Importantly, they remind us of the bigger story that was unfolding, the one that we are all too familiar with yet will keep on recounting for as long as it is relevant and needed. It speaks of rules and policies made far from the Mediterranean, yet setting it up to be one of Europe’s mass graves. But, for now, our priority is to ensure justice for the El Hiblu 3 – one story at a time.
The legal principle of self-defence describes the right to prevent suffering, violence and imminent danger to one’s life or the life of a fellow human being, using force if necessary. If they are to be judged, the actions of the El Hiblu 3 must be seen as an act of self-defence – in conversing with the crew they resisted having their human rights trampled on and righteously protested against an illegal pushback. No person on the ship was harmed and, thanks to their actions, they and their 105 fellow travellers reached a place of safety in Malta. Even with their own lives at stake, they sought to protect their own human rights and freedom, as well those of the people they travelled with. This must be seen as a tremendously courageous act. But instead of being celebrated, the El Hiblu 3 are prosecuted.
Immediately thrown into a high security wing in Malta’s prison, they were only moved to regular facilities for juvenile offenders and adults two weeks later. Months passed. Almost eight months after their arrival, the three young men were finally released on bail in November 2019. Today, Abdalla, Amara and Kader have been released for over two and a half years, awaiting a trial that could lead to their imprisonment for life. They are allowed to work and pay taxes, but they are not allowed to go for a swim on Malta’s beaches as their bail conditions dictate that they must stay 50 metres away from the coastline. If they miss signing in with the police one day, they risk going back to jail. In 2020, most of their hearings were postponed, after they were left to wait for hours in the Courts of Justice in Valletta. The prosecution only began to invite El Hiblu 1 survivors as witnesses in March 2021, two years after they had arrived in Malta and too late for many to be located.
In early 2020, we started to campaign collectively with survivors from the El Hiblu 1 rescue as the farcical proceedings against the El Hiblu 3 dragged on. On the first anniversary of their arrival in Malta, we released a documentary, where several survivors of the journey expressed their frustration about the proceedings against their three friends. In 2021, among many others Der Spiegel, the BBC and the Times of Malta reported on the case and its absurdity. Founding the El Hiblu 3 Freedom Commission, we took another step towards a transnational mobilisation to keep our promise to Abdalla, Amara and Kader: to leave nothing undone until we achieve justice and their freedom.
Resisting human rights abuses is not only ethically and morally justified but also protected by law. This resistance deserves not only our attention but our celebration. We bear collective responsibility to oppose the dismantling of all human rights achievements: to guarantee that human rights are the same for everyone, to guarantee that people do not drown or disappear in their attempt to reach Europe. Regardless of origin, economic status, personal belief or skin colour. Human rights belong to everyone. That is not negotiable. Free the El Hiblu 3.