The Screening Regulation - [Regulation (EU) 2024/1356]

Independent Monitoring Mechanism 

Art 10 of the Regulation is extremely important as it deals with the monitoring of fundamental rights.

Structure

Art 10(2) binds Member States to provide for an independent monitoring mechanism.  The Regulation does not impose an institutional model for Members States to follow but leaves the matter to the Member States themselves to determine. This flexible approach is intentional because Member States differ in their institutional landscapes. 

Nonetheless the body – whatever its name – must be independent from the government authorities conducting the screening, has to ensure  respect for fundamental rights, monitor borders and transit zones, access relevant locations and information, and make recommendations.

Functions

The Regulation determines the functions:

a)    to monitor compliance with Union and international law, including the Charter, in particular as regards access to the asylum procedure, the principle of non-refoulement (i.e.  prohibiting a country from returning by deportation, expulsion or extradition of persons to a place where they would face serious threats to their life or freedom) the best interest of the child and the relevant rules on detention, including relevant provisions on detention in national law, during the screening. 

b)    to ensure that substantiated allegations of failure to respect fundamental rights in all relevant activities in relation to the screening are dealt with effectively and without undue delay, trigger, where necessary, investigations into such allegations and monitor the progress of such investigations.

Oversight

The essence of Art 10 is the requirement is that the monitoring mechanism must be independent, sufficiently empowered, and adequately funded to enable the body to operate well and efficiently to fulfill its mandate. Independent oversight does not hinder or obstruct border management but acts as a safeguard, protecting the State from unlawful practices, preventing reputational harm and unnecessary litigation.  Effective border procedures that respect fully the rights of persons make decisions more acceptable and reassure the public. One has to keep in mind that children, victims of human trafficking, persons with disabilities, and trauma survivors may not be able to defend themselves during screening. Independent monitoring is there to ensure that these people are not invisible or lost in quick procedures that they are unable to understand.

Obligation

The standard on how the Executive in Malta should act when constituting the monitoring mechanism is established in Art 10 itself:

“Member States shall put in place adequate safeguards to guarantee the independence of the independent monitoring mechanism. 

National Ombudspersons and National Human Rights Institutions, including national preventive mechanisms established under the OPCAT, shall participate in the operation of the independent monitoring mechanism and may be appointed to carry out all or part of the tasks of the independent monitoring mechanism. 

The independent monitoring mechanism may also involve relevant international and non-governmental organisations and public bodies independent from the authorities carrying out the screening. 

Insofar as one or more of those institutions, organisations or bodies are not directly involved in the independent monitoring mechanism, the independent monitoring mechanism shall establish and maintain close links with them. 

The independent monitoring mechanism shall establish and maintain close links with the national data protection authorities and the European Data Protection Supervisor.”

Participation

Art 10 speaks of mandatary participation of National Ombudspersons and national human rights institutions, including national preventive mechanisms established under the OPCAT in the independent monitoring mechanism.  

The institutions

Reference is being made to the institutions in the order mentioned in Art 10. 

The Ombudsman

Although the Ombudsman is an institution that enjoys the protection of the Constitution of Malta and is independent of Government, its present mandate is to investigate complaints of maladministration by the public service and the public authorities.  That notwithstanding the Ombudsman has increasingly engaged with human rights issues, including those arising in the migration context, primarily but not only because the Ombudsman can find maladministration when an act, omission or practice of Government “was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a law or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory” [Art 22(1)(b) of the Ombudsman Act 1995].  In fact, the Ombudsman has investigated complaints submitted by migrants and asylum seekers, either directly or through representatives, concerning detention conditions, access to procedures, delays, and treatment by public authorities. 

The National Human Rights Institution

Malta is still without a National Human Rights Institution. Malta is one of the only three (3) Members States of the EU that does not have an NHRI established by law.  This is a structural weakness.

The National Preventive Mechanism – OPCAT

Malta ratified the Optional Protocol to the UN Convention against Torture (OPCAT) on the 24 September 2003. OPCAT places an obligation on Contracting States to designate one or more National Preventive Mechanisms (NPMs) to regularly and independently visit all places where persons are deprived of their freedom, with the aim of preventing torture and other cruel, inhuman or degrading treatment or punishment. 

In Malta two are the designated monitoring bodies:

a)    Board of Visitors for Detained Persons
b)    Board of Visitors of the Prisons

These bodies are there to conduct regular visits to places of detention and monitor conditions and treatment of persons deprived of their freedom in line with the Convention requirements. The two Boards perform preventive monitoring and report on their findings. 

International observers have had occasion to note limitations regarding full independence and have recommended strengthening the NPM’s mandate and powers to fully align with OPCAT standards:

A delegation from the United Nations Subcommittee on Prevention of Torture (SPT) visited Malta from 6 to 9 October 2014. At the end of that visit, the SPT welcomed progress in establishing the NPM but stated that “significant work needs to be done to make these bodies fully independent and effective in line with OPCAT and other relevant international standards.”  

A delegation from the Committee for the Prevention of Torture (CPT) of the Council of Europe conducted a periodic visit to Malta from 26 September 2023 – 5 October 2023.  In its observations following that visit, it was noted that the two Boards making up the NPM for Malta had a limited legal mandate and could only report to the Minister rather than operating fully independently. The NPM did not cover all places covered by OPCAT.  The Committee reaffirmed its concern on the lack of formal independence and full functional powers of the NPM.

Other matters

a)    Powers

Art 10 refers to the powers of the independent monitoring mechanism .The independent monitoring mechanism shall cover all activities undertaken by the Member States in implementing this Regulation. The independent monitoring mechanism shall have the power to issue annual recommendations to Member States, carry out its tasks on the basis of on-the-spot checks and random and unannounced checks.

b)    Member States

Member States shall provide the independent monitoring mechanism with access to all relevant locations, including reception and detention facilities, individuals and documents, insofar as such access is necessary to allow the independent monitoring mechanism to fulfil the obligations set out in this Article. 
Furthermore, they are bound to equip the independent monitoring mechanism with appropriate financial means.

c)    The Fundamental Rights Agency 

Art 10 directs the FRA to issue general guidance for Member States on the establishment of a monitoring mechanism and its independent functioning. On their part, Member States may request the Fundamental Rights Agency to support them in developing their independent monitoring mechanism, including the safeguards for independence of such mechanisms, as well as the monitoring methodology and appropriate training schemes.

d)    The EU Commission

Art 10 is bound to take into account the findings of the independent monitoring mechanisms for the purposes of its assessment of effective application.

Conclusion

Member States should have every interest to ensure the monitoring process becomes operational and does not remain a paper exercise.  The fear that strong independent oversight could hinder operational efficiency is not the case.  Borders are not zones exempt from independent oversight. The rule of law cannot be dismissed at borders. Independent monitoring ensures that the fundamental rights of the persons are protected while allowing the State to exercise legitimate control over entry and security.  The EU Screening Regulation introduces an important innovation by embracing independent monitoring within the pre-entry screening framework. The effectiveness of this safeguard will depend on how Member States design and shape their national mechanisms.