The Irish Human Rights and Equality Commission (the Commission) today welcomed the decision of the High Court in a case concerning the protection of an alleged victim of human trafficking, in which the Commission appeared as amicus curiae (friend of the Court). The High Court has found that the State’s administrative scheme for the protection of victims of human trafficking is inadequate under EU law aimed at combating trafficking in human beings.
Emily Logan, Chief Commissioner of Irish Human Rights and Equality Commission stated: “The Commission welcomes this important judgment which makes it clear that the State must not only take steps to eliminate human trafficking, but it must also prioritise the identification and protection of the victims of this extremely serious form of exploitation. Detection of trafficking and protection of victims must go hand in hand. The State system of recognition of suspected victims of trafficking, as found in this judgment, and as highlighted in the Commission’s submissions as amicus curiae, is too adversarial and places too heavy a burden of proof on the alleged victim. This approach risks excluding some victims from protection. This is particularly so where such victims come to the notice of Gardaí in the context of a criminal investigation.”
The Commission’s submissions in the case questioned the adequacy of the current protection regime for persons who claim to be victims of human trafficking. In particular the Commission raised concerns in relation to the administrative scheme for the identification of victims of trafficking and whether it met relevant human rights standards. In particular the Commission highlighted the relevant burden of proof under EU Law which applies a low threshold for access to the State system of protection and support, in circumstances where the Irish authorities appeared to be placing a much higher burden of proof on the alleged victim.
The State’s administrative scheme is intended to comply with its human rights obligations to victims of trafficking, but has never been put on a statutory footing and confers very wide discretion on the Gardaí as the relevant authority determining possible victims of trafficking. This practice has proved particularly problematic where the alleged victim is also being investigated for a criminal offence. The Judgment found that the same Gardaí being involved in dealing with the application for recognition as a victim of trafficking, and also investigating the same person under the criminal law, led to a conflict, and requires that the State put in place rules or protocols to deal with such a situation.
Ms Logan concluded by stating: “The Commission’s intervention as amicus curiae in this case was to highlight the State’s human rights obligations to suspected victims of trafficking, and the necessity for transparency and accountability in the system. The Commission recommends the State take a holistic approach to strengthening, protecting and upholding human rights of victims of trafficking in the State.”
The Applicant in the case is a Vietnamese woman charged with certain drugs offences having been found by Gardaί in a cannabis grow house, where she was found locked in from the outside. She claimed that she was a victim of human trafficking and that the failure of the Gardaí to recognise her as a victim of trafficking denied her the opportunity to avail of the protection regime for such victims. The Applicant has spent almost three years in detention in the Dóchas Centre, much of that time waiting for a decision on her application to be recognised as a victim of human trafficking.
ENDS/
For further information please contact Fidelma Joyce, IHREC, Mob: 087 783 4939. Twitter: follow us @_ihrec
Notes to editor
Trafficking in persons or human beings is defined in Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to the United Nations Convention against Transnational Organized Crime (‘the Palermo Protocol’) as:
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs…”
Ireland has defined human trafficking in sections 1to 4 of the Criminal Law (Human Trafficking) Act 2008 (as amended by the Criminal Law (Human Trafficking) (Amendment) Act 2013).
The Human Rights standards relevant to human trafficking are:
- The right to liberty protected under Article 40.4.1° of the Constitution and the un-enumerated right to freedom from inhumane and degrading treatment under Article 40.3.3˚;
- Article 4 of the European Convention on Human Rights prohibits slavery and forced labour, and has been interpreted as placing particular obligations on states to combat human trafficking;
- The Council of Europe Convention on Action against Trafficking in Human Beings (“the Warsaw Convention”).
- European Union law (Directive 2011/36/EU)
- The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to the United Nations Convention against Transnational Organized Crime (“the Palermo Protocol”)).
The Irish Human Rights and Equality Commission is an independent body, established in law on 1st November 2014.
The Chief Commissioner, Emily Logan was appointed through open competition; all fourteen members of the Commission were appointed through an independent selection panel.
The Chief Commissioner and all fourteen members of the Commission were appointed by President Michael D. Higgins on 31st October 2014 and account directly to the Oireachtas for their statutory functions.
Under Irish Human Rights and Equality Commission Act 2014 (2014 Act), the IHREC has a statutory remit to protect and promote human rights and equality in the State, to promote a culture of respect for human rights, equality and intercultural understanding, and to promote understanding and awareness of the importance of human rights and equality.
The 2014 Act was drafted and enacted with the stated intention of enabling the Commission to take account of new and emerging issues that are of relevance to human rights and equality. This is reflected in the definition of human rights in the 2014 Act which provides that the Commission’s mandate includes ‘the rights, liberties and freedoms that may reasonably be inferred as being inherent in persons as human beings, and necessary to enable each person to live with dignity and participate in the economic, social or cultural life in the State’.
Section 10 of the Irish Human Rights and Equality Commission sets out the functions of the IHREC. Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any persons and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”
This is the second occasion on which the IHREC appeared before the Superior Courts as amicus curiae.