The Irish Human Rights Commission (IHRC) appears today before the High Court as amicus curiae (non-partisan friend of the court) in human rights proceedings entitled E.D. v. The Director of Public Prosecutions. The case concerns the operation of Section 12 of the Immigration Act 2004. This provision makes it a criminal offence for a non-national to fail to produce a valid passport or identity document when asked to do so by a member of An Garda Síochána unless the person can provide a "satisfactory explanation" for failing to do so. It is not a crime for Irish citizens to fail to produce such documentation.
The IHRC’s intervention in the case will address the Court on two important human rights principles. The first principle relates to whether the operation of Section 12 of the Immigration Act respects fair procedures and natural justice rights as protected by the Constitution and by Articles 5 and 6 of the European Convention on Human Rights which have strict standards governing criminal offences. The second principle concerns the extent to which the special situation of asylum seekers under Articles 27 and 31 of the United Nations Convention relating to the Status of Refugees needs to be taken into account.
The President of the IHRC, Dr. Maurice Manning, stated: "This case raises important issues about the extent to which the State’s legislation protects vulnerable groups, in this case a law which potentially criminalises non-nationals who cannot produce a valid document of identification on demand or provide a reason for this which satisfies Gardaí."
Mr Éamonn Mac Aodha, Chief Executive of the IHRC stated: "One of the priorities of the IHRC is to address legal measures which impact on the human rights of asylum seekers, refugees and immigrants. In its role as amicus curiae in this case, the IHRC will draw relevant international human rights standards to the attention of the Court".
The full text of the IHRC’s written submissions will be made available on the IHRC’s website www.ihrc.ie on the final day of trial.
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For further information, please contact:
Fidelma Joyce
Irish Human Rights Commission
Tel: 01 8589601 Mobile: 087 7834939
Notes to Editors
Under section 8(h) of the Human Rights Commission Act 2000, the IHRC may, at the discretion of the High Court or the Supreme Court, appear as amicus curiae in proceedings that involve or are concerned with the human rights of any person.
Section 2 of the Human Rights Commission Act, 2000 defines "human rights" to include those rights conferred on or guaranteed to persons under the Constitution and under any agreement, treaty or convention to which the State is a party.
The IHRC first appeared as amicus curiae before the Supreme Court in April 2005 in the case of Dublin City Council v Fennell which involved issues regarding the interpretation and effect of the European Convention on Human Rights Act. Since then it has been granted liberty to appear before the Supreme Court and High Court in twelve cases.
The IHRC was put on notice of these proceedings pursuant to section 6(1) of the European Convention on Human Rights Act 2003 which require certain human rights cases to be notified to the Commission.
The IHRC’s Strategic Plan 2007-2011 Promoting and Protecting Human Rights in Ireland addresses highlights the importance of promoting a society that values inclusiveness and diversity through respect for human rights in its Goal 4 including in relation to asylum seekers, refugees, immigrants and migrant workers.
Section 12 of the Immigration Act 2004 stipulates that a non-national is guilty of an offence should he or she fail to produce a valid passport or equivalent document on the demand of any immigration officer or member of the Garda Síochána, or not provide "a satisfactory explanation of the circumstances which prevent him or her from so doing".
The European Convention of Human Rights provides the following:
Article 5 Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Article 6 Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7 No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
The 1951 Convention relating to the Status of Refugees provides the following:
Article 27 Issuance of identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.
Article 31 No penalties merely on account of illegal entry presence
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
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