Ireland / High Court / [2015] IEHC 222 P (Otherwise P) v The Chief Superintendent of the Garda National Immigration Bureau, the Director of Public Prosecutions, Ireland and the Attorney General, The Irish Human Rights Commission, Amicus Curiae

Key facts of the case:

The applicant is a Vietnamese woman who at the time the case was being heard was in custody in the Dóchas Centre (a committal prison for females committed on remand or sentenced from all Courts outside the Munster area) on charges relating to the alleged possession and cultivation of cannabis plants in November 2012. The circumstances of her arrest, in what is known as a “growhouse”, gave rise to an application in December 2012 to the first named respondent to be identified as a victim of trafficking of human beings. She says that in September 2013 he refused her application, and that in so doing he failed to give reasons and acted in breach of her right to fair procedures in a number of other respects under national law, the Charter and the European Convention on Human Rights. The applicant argues in particular that there has been a breach of her rights under Directive 2011/36/EU (which relates to the victims of trafficking) and that the directive has not been properly transposed into Irish law.

This case concerns the administrative arrangements in place in Ireland for the protection of persons who are accused of committing a criminal offence but who are also suspected to be the victims of human trafficking. The mechanism in operation in Ireland, as established in 2008, is an administrative scheme drawn up by the Department of Justice and Law Reform. Pursuant to its terms, the determination of an application for recognition as a victim of trafficking is allocated to a Garda officer not below the rank of Superintendent of the Garda National Bureau of Immigration. The first named respondent is the Chief Superintendent in the Bureau. When the applicant was arrested she applied to be considered as a victim of human trafficking but this application was refused by the respondent and the applicant claimed that in so doing he failed to give reasons and so acted in breach of her right to fair procedures in a number of other respects under national law, the Charter and the European Convention on Human Rights. The applicant also argued that there has been a breach of her rights under Directive 2011/36/EU (which relates to the victims oftrafficking) and that the directive has not been properly transposed into Irish law. The respondent contended the applicant lacked standing to bring the claim, and that the claim for review was without merit.

Outcome of the case:

It was held that the provisions of the Directive had not been adequately transposed into Irish law by the existing administrative arrangements set out by the State. However, the means by which the State would do so were a matter for the Parliament and not the Courts. The parties were asked to make further submissions on the appropriate orders for relief.

Paragraphs referring to EU Charter: 

 

4. The applicant is a Vietnamese woman who is currently in custody in the Dóchas Centre on charges relating to the alleged possession and cultivation of cannabis plants in November, 2012.The circumstances of her arrest, in what is known as a “growhouse”, gave rise to an application in December, 2012 to the first named respondent to be identified as a victim of trafficking of human beings. She says that in September, 2013 he refused her application, and that in so doing he failed to give reasons and acted in breach of her right to fair procedures in a number of other respects under national law, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. On 4th November, 2014, the applicant obtained the leave of the High Court (Peart J.) to seek the following reliefs by way of judicial review:

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c. A declaration that Articles 40.4.1 and 40.3 of the Constitution, Article 4 of the European Convention on Human Rights 1950 (‘ECHR’), section 3 of the ECHR Act 2003, Article 5 of the Charter of Fundamental Rights of the European Union (‘Charter’), Directive 2011/36/EU, and/or the principle of good administration in EU law require the first named respondent to observe fair procedures – including the requirements to act within a reasonable time and to give reasons for decisions – in respect of the applicant's application for identification as a victim of trafficking;

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143. The Commission observes that this is primarily a matter for the court. However, it does submit that the applicant has locus standi to bring the current proceedings. She has a right to an effective remedy uIt nder Article 13 of the European Convention on Human Rights and under Article 47 of the Charter of Fundamental Rights of the European Union, in circumstances where she contends that her rights have been violated, whether by reason of refusal to recognise her as a victim or because of delay in the process, if her proceedings are not manifestly unfounded or an abuse of process. The “right to a remedy” arises if she has an “arguable claim” and does not depend upon verification of that claim.

158. It is denied by the second named respondent that either the European Convention on Human Rights and Fundamental Freedoms, Article 5 of the Charter of Fundamental Rights of the European Union, Article 82(2) and 83(1) of the Treaty on the Functioning of the European Union or Directive 2011/36/EU impose upon the Director of Public Prosecutions a positive procedural obligation or a separate function of identifying or assisting victims of human trafficking.

Deciding body (original language): 
High Court
Language: 
English