MONITORING BOARD FOR DETAINED PERSONS REGULATIONS

MONITORING BOARD FOR DETAINED PERSONS

SUBSIDIARY LEGISLATION 217.08

MONITORING BOARD FOR DETAINED PERSONS

REGULATIONS

18th September, 2007

LEGAL NOTICE 266 of 2007, as amended by Legal Notices 251 of 2012

and 425 of 2015.

The title of these regulations is the Monitoring Board for

Detained Persons Regulations.

(1) There shall be a Monitoring Board for Detained

Persons, hereinafter referred to as "the Board", composed of a

Chairman, a minimum of two and a maximum of four members,

including the secretary, which members shall be appointed every

s e c o n d y e a r, b y t h e M i n i s t e r r e s p o n s i b l e f o r i m m i g r a t i o n ,

hereinafter referred to as "the Minister".

(2) Members of the Board shall be eligible for re-appointment

and shall be nominated from amongst persons who are preferably

experienced in law or human rights or social science or

immigration fields, and may include members of non-governmental

organisations.

(3) If any vacancy in the Board occurs during the year, on

account of death, resignation or for any other cause, the Minister

shall, as soon as practicable, appoint another person to fill the

vacancy

Provided that the Board and the members thereof may act

notwithstanding any such vacancy.

The Board shall have the following functions

(a) to satisfy itself as to the treatment of detainees, the

state of detention centres premises and the

administration of the detention centres;

(b) to monitor the administration of the detention centres’

disciplinary system and inform the Minister of its

findings; this includes the authority to attend

disciplinary hearings of detainees;

(c) to advise the Minister on any matter relating to the

care of detainees, as well as to the organisation and

improvement of the detention centres and the

Detention Service, which the Minister may refer to it

or any ancillary matter on which the Board deems it

opportune to tender its advice to the Minister;

(d) to advise the Minister on matters relating to work and

activity to be performed by detainees;

(e) to inquire into and report upon any matter which it

deems proper, or the Minister requests it, to enquire

into;

MONITORING BOARD FOR DETAINED PERSONS

(f)

to act as the body of persons responsible for a National

Preventive Mechanism for the prevention of torture, as

provided for in the Optional Protocol to the United

Nations Convention against Torture;

(g) to monitor the proceedings relating to the involuntary

return of illegally staying third country nationals in

accordance with the provisions of the Immigration Act

and of the Common Standards and Procedures for

Returning Illegally Staying Third Country Nationals

Regulations; and

(h) to perform such other functions as are assigned to it

under these regulations.

(1) The Board shall meet at least once a month at such

place as the Board may from time to time determine.

(2) Except where otherwise provided in these regulations, the

quorum for meetings of the Board shall be of half the number of

members plus one.

(3) The meetings of the Board shall be presided by the

Chairperson or, in his absence, another member appointed by the

Board to preside the meeting.

(4) The officer responsible for the administration of places of

migration detention, hereinafter referred to as "the Head", may

attend the whole or any part of a meeting of the Board if so invited

by the Board and shall give to the Board any information it may

require for the due exercise of its functions.

(5) Minutes of the proceedings and deliberations of the Board

shall be drawn up by the Secretary of the Board and the relative

Minutes Book shall be kept in his custody. Such minutes shall be

read and confirmed at the first meeting after the meeting to which

they relate, or any subsequent meeting, and shall be signed by the

Chairman or other member presiding the meeting at which they are

confirmed and by the Secretary

Provided that it shall be the responsibility of the Board to

retain all relevant information, including minutes of meetings and

of interviews with detainees, reports of visits and inspections and

any other document in order that they are made available to the

Committees established by the Optional Protocol to the Convention

against Torture.

(6) Evidence on oath, in connection with a complaint or an

enquiry under these regulations, may be heard by two or more of

the Board’s members as may be designated for that purpose by the

Board which shall also designate the member who will administer

the oath.

(1) The Board shall visit and inspect detention centres not

less than once a month in such manner as the Board deems

convenient.

(2) If the Board so requests, such visits and inspections shall be

attended by the Head and any other officer designated by the Head.

MONITORING BOARD FOR DETAINED PERSONS

(3) The detainees shall be asked if they have any complaints to

make with regard to their treatment in the detention centres and any

detainee wishing to make a complaint shall be heard in such part of

the centre as the Board may deem fit

Provided that no sanction shall be ordered, applied,

permitted or tolerated against any person or organization for having

communicated to the Board any information, whether true or false,

and no such person or organization shall be otherwise prejudiced in

any way.

(4) Neither the Head nor any other officer shall be present

while a detainee is making a complaint before the Board. The Head,

however, shall be heard on any such complaint.

(5) The Board shall keep a record of all complaints made to it

by detainees and its decision thereon, and shall, if it deems

necessary, take the sworn evidence of the complainant and of such

officers and other detainees or other persons as the Board may

deem relevant. The oath shall be administered by the Chairman or

other member presiding.

(6) Unless it is evidently frivolous or groundless, every request

or complaint shall be promptly dealt with and replied to without

undue delay.

(7) Where it is not considered practicable by the Board to carry

out a visit or an inspection under the foregoing provisions of this

regulation by all the members of the Board, a visit or an inspection

carried out by not less than two members designated for such

purpose by the Board shall be deemed a visit or an inspection

carried out by the Board, and the foregoing provisions shall apply

to any such visit or inspection in the same manner and to the like

effect as to one carried out by the Board. Any record kept by the

members carrying out such a visit or inspection and any complaint

received by such members shall be referred to the Board at its next

meeting and entered in the minutes, provided that if it is necessary

to hear any evidence on oath during any such visit or inspection the

oath may be administered by any one of the members conducting

the visit or inspection.

(8) The members of the Board may also make such visits or

inspections either together or separately at any time, whether by

day or night, whenever they consider it desirable to do so. Such

visits or inspections may also be made without prior notice to the

Head. A report of such visits or inspections shall be made to the

Board at its next meeting unless the members carrying out the visit

or inspection consider to inform the Board earlier through the

Chairman.

It shall also be the duty of the Board to hear and decide

upon, as soon as practicable, any request or complaint made to it by

a detainee, or any person on his behalf, other than those made

directly to it or to any of its members during the course of a visit or

inspection.

(1) The decisions of the Board shall be taken by a majority

of the members present and voting. In the case of an equality of

MONITORING BOARD FOR DETAINED PERSONS

votes the Chairman shall have a casting vote in addition to his

original vote.

(2) The decisions of the Detention Board shall not be binding

upon the Head but it shall be the duty of the Head to take serious

cognizance of the recommendations of the Board following a

decision taken as provided in subregulation (1) and to enter into a

dialogue with the Board on possible implementation measures.

When the Head, or any other officer acting on his behalf, is of the

opinion that the recommendations of the Board cannot be

implemented for reasons which are in the best interests of the

detention centre administration, an explanation in writing of these

reasons shall, within one month of the date of receipt of the Board’s

recommendations, be forwarded to the Chairman of the Detention

Board and copied to the Minister, or to a person delegated by him.

The Minister, or the person delegated by him, may confirm or vary

the decision of the Head.

(1) The members of the Board shall make a note in the

official Visitors’ Book of every visit or inspection made by them,

with such remark as they deem proper in regard to the detention

centres and the detainees.

(2) The official Visitors’ Book shall be produced to the Board

at each monthly meeting and at such other times as the Board may

require.

(3) The Minister may request to examine the official Visitors’

Book and the minutes book of the Board.

(1) No person having any interest in any contract for the

supply of goods or services to the detention centres shall be a

member of the Board.

(2) If any member of the Board is related by consanguinity or

affinity, up to the fourth degree inclusive, to any detainee or has

any professional interest in any detainee, other than as a member of

the Board, he shall forthwith make a declaration of such

relationship or interest to the Board and such declaration shall be

entered in the minutes. The said member shall thereafter abstain

from taking part in the proceedings and deliberations of the Board

on any question relating to such detainee and from voting thereon.

(3) A member who absents himself without valid reason for

more than three consecutive meetings shall be considered as having

resigned his post.

The Board shall draw the attention of the Head to any

matter which calls for his attention and shall report to the Minister

any matter which it considers expedient to report to him.

The Board shall inform the Minister immediately of any

abuse which comes to its knowledge and shall have power to

recommend to the appropriate authority the taking of disciplinary

action against any officer.

The Board shall arrange for the food of the detainees to be

inspected by a member of the Board at frequent intervals.

MONITORING BOARD FOR DETAINED PERSONS

The Board shall inquire into any report made to it, or any

information otherwise coming to its knowledge, that a detainee’s

health, mental or physical, has been or is likely to be injuriously

affected by any conditions of his detainment.

(1) The Board and every member thereof shall have access

at any time to every part of the detention centres and to every

detainee and may interview any detainee out of the sight and

hearing of all officers.

(2) The Board and every member thereof shall have access to

all detention centres’ records.

(1) The Board shall make an annual report to the Minister

at the end of each year concerning the state of the detention centres

and their administration and, generally, the carrying out of its

functions.

(2) Confidential information collected by the Board shall be

privileged and no personal data shall be published without the

express consent of the person concerned.