Tuesday 20 October 2015

Victims are used in the Trafficking of Drugs By Lorraine Lally Barrister at Law



Victims are used in the Trafficking of Drugs
By Lorraine Lally
Barrister at Law

When discussing this issue with a young Irish teenager she looked at me and said the same thing that happened to Bridget Jones in the movie where Mr. D’Arcy came to save her. As a lawyer I would not have made that comparison but it is a good example where a person is of significance they receive assistance. The EU Directive was designed to protect a vulnerable group of persons who are often forgotten within the Justice system.  The transposition of the EU Directive  2011/36/EU was considered in the recent case of P v Chief Superintendent Garda National Immigration Bureau & Ors [2015] IEHC 222 where the applicant argued that there had been a breach of her rights under Directive and that it had not been properly transposed into Irish law.  The Directive confers a right to ‘assistance and support’ to persons recognised as victims, whether or not they are prosecuted
The applicant had been arrested on suspicion of committing offenses under s.15 of the Misuse of Drugs Act. Her evidence was that she had been recruited by deception and transported to Ireland for the purposes of exploitation. Judicial review was sought seeking an order of certiorari quashing a decision not to identify her as a victim of trafficking and an order of mandamus requiring her identification as a victim.
O’Malley J. referred to the Council of Europe Convention on Action Against Trafficking in Human Beings, 2005 and the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000. These instruments do not have direct effect in the Irish State but it was accepted that the standards established by them were those that the Ireland had undertaken to apply ([2015] IEHC 222, paragraph 19). Reference was also made to the “Dehli Indicators” ([2015] IEHC 222, para. 20). Judge O’Malley reviewed the legal context including the existing law ([2015] IEHC 222, paras 12-13) Administrative Immigration Arrangements for the Protection of Victims of Human Trafficking ([2015] IEHC 222, paras 21-27) and also referred to the National Plan (paras 28-34), its review (paras 35-37), the DPP Guidelines (para.38)  and the GRETA Report (paras 39-44).
In relation to the transposition of the Directive in Ireland, she held:
198. The Directive does not purport to prescribe any particular procedure, stating only that “appropriate mechanisms” are required. It does not seek to interfere with the criminal process, apart from requiring that the competent authorities should have the necessary discretion.
199. In my view “appropriate” must mean appropriate to the issues to be determined. In this context, the interests sought to be furthered will in all cases include both the State’s interest in investigating the potential crime of human trafficking and the interests of a victim in receiving assistance and support.
201. In my view the Directive confers a right in all circumstances to an ‘appropriate’ mechanism for determination of the question of the applicant’s status. The mechanism must be one that will facilitate early identification, and where identification is made consequential rights arise. This, therefore, being a Directive intended to confer rights on individuals, it may be relied upon directly.
202. It seems to me that the mechanism adopted in circumstances such as the present case cannot be considered to be “appropriate” unless it deals clearly with the interaction between the application for recognition and the criminal investigation into the applicant’s alleged activities.
The Judge held that what is required is the making of policy decisions within the area of discretion left by the Directive in cases involving suspected criminal activity on the part of the applicant. This discretion does not affect the overall obligation to implement an ‘appropriate mechanism.’ She concluded therefore that the current mechanism as it is “must be held to be inadequate in terms of the transposition of the Directive”. The Court invited the parties to address the court further on the issue of an appropriate remedy in the circumstances.
This case is one of many that will be dealt with by the Courts and the GardaĆ­ what is required is legislation to ensure that victims of trafficking are adequately protected and identified as soon as is practicable. This is not an election issue because the victims of trafficking are poor and often are non-EEA nationals as an immigration lawyer I have met many victims and the system is not in place to provide protection which is unacceptable with the increase in exploitation of human beings.

#humanTrafficking  # GE2016 #HumanRights  #drugs #Ireland

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