Interview with Maltese lawyer Neil Falzon, who defended the defendants, by ProAsyl.de

Five years after their arrest, the trial of the three refugees known as 'El Hiblu 3' continues in Malta. Accused of 'terrorism' and other crimes, they will be honoured this Saturday, 13 April, by an international coalition as human rights defenders. As is well known, the three defendants, rescued in March 2009 from the Turkish merchant ship EL HIBLU, reacted with courage and solidarity towards the hundred other survivors on board, avoiding deportation to Libya and persuading the captain to set course for Malta. But when they disembarked in Valletta, they were arrested. Maltese lawyer Neil Falzon explains the case.

Mr Falzon, you are part of the legal team defending two of the three El Hiblu 3 defendants in Malta. After five years, formal charges were only brought at the end of 2023. What are Amara Kromah, Abdalla Bari and Koni Tiemoko Abdoul Khader charged with?

The Maltese Attorney General's Office finally formalised its charges against the three in November 2023, after literally begging for many years. There are several charges, the most serious of which relate to the commission of terrorist acts or activities. In addition to these charges, there are other equally serious charges, such as "forcibly removing people from one country and taking them to another". As a legal team, we are currently representing only two of the defendants in 'El Hiblu 3', as we do not know the whereabouts of the third.

The 'El Hiblu 3' case has been highly politicised from the start. Some portray the three as pirates and kidnappers, while others see them as heroes who prevented an illegal deportation to Libya. This weekend, as part of an international campaign, the Coalition for El Hiblu even gave them an award as human rights defenders.

We believe the three saved the lives of over a hundred people. It is a shame that the Maltese legal system has no laws to recognise this heroic act. Three brave young men stood up to an attempted illegal deportation to Libya and thus to the European Union's appalling border policy, which refuses to consider Libya an unsafe place.

So they did nothing wrong?

Their only fault, in the end, was that one of them - Amara - could speak English. He had been chosen by the captain out of more than a hundred people to calm the situation. As an interpreter, he had to mediate between the captain and a group of very angry people, some of whom were threatening to commit suicide or jump off the ship. When I look at my son, who is the same age as Amara at the time - 16 - he must have had a lot of courage to come forward and try to calm the situation after such a terrible voyage, having spent a long time in Libya and having experienced the same traumas as all the other survivors. They wanted to make sure that people were not taken back to Libya. This is certainly a heroic act that needs to be recognised.

In your opinion, have the judicial proceedings so far met the principles of a fair and just trial? Former President of the Republic of Malta, Marie-Louise Coleiro Preca, who is campaigning for the 'Three of El Hiblu', describes the trial as a 'farce'...

There are certainly serious problems with the way the trial has been conducted so far. For example, the police and the prosecution have long resisted calling as witnesses the more than one hundred migrants who, as survivors of the shipwreck, were rescued and brought on board with the defendants. It was only after our repeated complaints and appeals to the court that the investigating police officers were ordered to make a list of the passengers and try to trace them. This took a long time and many people could not be traced.

Were there any other problems?

The two accused, who were minors at the time of the events, were not treated as minors when they were arrested. For the first few months, for example, they were held in a high-security section of an adult prison in Malta. And throughout the trial, they were denied the rights and procedural guarantees that the court should have afforded minors.

Cosa succederà ora? Dopo cinque anni di udienze preliminari, ci sarà davvero un processo, o si può ancora evitare?

La prossima udienza si terrà il 30 maggio prossimo a La Valletta. Quel giorno, il giudice deciderà se Malta ha giurisdizione su tutti o alcuni dei reati. Si tratta quindi di questioni procedurali prima del passo successivo, ovvero l'eventuale rinvio a giudizio con l’apertura di un processo vero e proprio. Abbiamo argomenti legali molto forti a favore del fatto che Malta non abbia competenza sul caso. Questo perché la protesta denunciata dal pubblico ministero è avvenuta molto lontano da Malta, in acque territoriali libiche. Tecnicamente, la Procura Generale potrebbe ritirare le accuse in tutto o in parte in qualsiasi momento.

For this reason, the supporters of the "Three of El Hiblu" have been calling for the charges to be dropped for years, as part of an international campaign involving numerous movements and civil society organisations. At the moment, however, this does not seem to be happening. In your opinion, what interests do the Maltese authorities have in continuing the trial?

I think it is more a political question than a legal one. We have the impression that by pursuing the 'El Hiblu Three', Malta is trying to show strength and a zero-tolerance policy towards migrants and refugees who arrive in Malta irregularly. Let us not forget that Malta is a very small EU member state on the EU's southernmost external border. I believe that by taking action against the 'El Hiblu Three', Malta wants to show that it is capable of controlling this border, even though it is such a small member state.

At the time of their arrest, the three defendants were 15, 16 and 19 years old. How are Amara Kromah, Abdalla Bari and Koni Tiemoko Abdoul Khader today?

The whole trial so far has been very traumatic for all three. Their lives have been suspended indefinitely and for no good reason. In spite of everything, they tried to get on with their lives: they worked, studied, took exams, one of them became a father. But of course the process, which has been very slow for five years, has always been suspended. They are under immense psychological pressure, they are afraid and they cannot relax. They desperately want the process to be completed, not least so that they can overcome the trauma of the accident itself and the past five years. Instead, they have had to live with very strict conditions for years, even after their imprisonment, such as restrictions on leaving the country and daily signatures at the police station.

Not only in Malta, but also in other EU countries such as Italy and Greece, refugees or solidarity activists are routinely criminalised - think of #Moria6, #FreeHomayoun or the cases against Syrian Sara Mardini and German Seán Binder. Are there similarities with the case of El Hiblu 3?

There are certainly similarities between these cases. However, compared to other EU countries, Malta has so far made limited use of the instruments of law and criminalisation against refugees and their supporters, but has mainly used other methods to restrict the rights of refugees and make their lives as miserable as possible.

For example?

Malta has a very harsh detention policy against all migrants rescued from the sea. This also restricts the work of our NGO 'Aditus Foundation' in Maltese detention centres, where we provide legal advice.

And how is Malta dealing with the fact that people seeking protection in Europe continue to find themselves in danger on boats in distress off its shores?

In recent years, we have seen a sharp decline in Malta's coordination of rescue operations. This is not because fewer people are leaving Libya, but because Malta is trying in various ways to prevent people from reaching the island. To this end, it has stepped up cooperation with the so-called Libyan coastguard and signed a formal memorandum of understanding with the Libyan authorities to better coordinate 'search and rescue' operations. In practice, however, this means that Malta and Libya are working together to push people back into Libya before they reach the search and rescue zone under Maltese jurisdiction.

Are there other methods used to prevent arrivals in Malta?

Yes, one is particularly cruel: we know of a large number of incidents involving shipwrecks where people were already in Malta's search and rescue zone - so Malta was clearly responsible for them. But the Maltese authorities very often refuse to coordinate rescues, to rescue themselves, or even to release information about the decision-making process. Alarm Phone or NGOs like Sea-Watch and others have observed this time and time again. The result is that some people die, or the boats simply disappear - and there is no information about what happened to them. This failure to rescue is simply unacceptable. We are talking about an EU member state that is supposed to protect basic human rights!

Malta, 12 April 2024

Dr Neil Falzon is part of the legal team representing two of the three defendants. Neil Falzon is the founder and director of the Aditus Foundation, a non-governmental organisation in Malta. He is also Professor of Human Rights at the University of Malta and co-ordinator of the Malta Refugee Council, a network of Maltese NGOs. He previously headed the Malta office of the United Nations High Commissioner for Refugees (UNHCR).

MEDITERRANEA Saving Humans supports and participates in the "Three of El Hiblu" award ceremony to be held in Valletta on Saturday 13 April 2024 by the Coalition for El Hiblu 3 and will continue to monitor the process. This interview has been translated from the website of the organisation Pro Asyl, for which we thank them.