Category: Direct Provision Briefs

Direct Provision Case Brief - Guerra v. Ireland
Direct Provision Briefs

Direct Provision Case Brief – Guerra v. Ireland

Feb 15, 2023 by Quianna Canada 0 Comments , ,

Direct Provision Case Brief – Guerra v. Ireland

Facts: Maria Guerra is a citizen of Barcelona, Spain. She is a feminist who engaged in several gender protests at Puerta del Sol square in 2021, where she carried a placard that read: “Male violence is also a pandemic.” In November 2021, three male law enforcement officers stopped Guerra while she was driving home. During the stop, they taunted Guerra for her activism. Guerra attempted to record the incident, but law enforcement officers yanked her out of the car. The law enforcement officers pinned Guerra to the pavement while each officer proceeded to sexually assault her.

Guerra fled to Ireland in 2022 and was transferred to the Baleseskin Reception Centre. While residing in Direct Provision, Guerra claims she suffered repeated acts of harassment by male asylum seekers. Guerra also claims her e-mail and website accounts were hacked into and that individuals used her real name to send false e-mails from her personal accounts. Although Guerra reported the incidents to numerous NGOs in Dublin, none took action. She also sent correspondence to the Department of Children, Equality, Disability, Integration and Youth, requesting a formal meeting. However, no action was taken. The conduct transpired over a year.

Issue: Whether Ireland’s conduct rises to the level of degrading treatment and lack of respect for private life.

Rule:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

“2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Analysis of Direct Provision Case Brief – Guerra v. Ireland

Repatriation Efforts

Guerra believes her experience in direct provision is part of Ireland’s interdiction effort to drive her back to Spain. Guerra has come to this conclusion because she has launched several complaints to authority figures that has been disregarded. It is settled law that any repatriation through coercive means is a breach of Art. 33 of the Refugee Convention. Repatriation efforts, such as the repeated hacking into an applicant’s devices to intimidate and drive them back to their country, can violate Ireland’s positive obligations to protect the applicant against the real and immediate risk of forcible transfer to Spain.

Cybercrime

In Opuz v. Turkey, hacking was defined as:

“The use of technology to gain illegal or unauthorized access to systems or resources for the purpose of acquiring personal information, altering or modifying information, or slandering and denigrating the victim. It also takes the form of violating passwords and controlling computer functions.” “Surveillance/tracking was defined as the use of technology to monitor a victim’s activities and behaviors either in real-time or historically (such as GPS tracking, or tracking keystrokes in order to recreate the victim’s computer activity).” See Opuz, no. 33401/02, §§ 72-82, ECHR 2009.

When individuals use technology to gain illegal or unauthorised access to systems or resources for the purpose of altering or modifying information and denigrating the victim, the ECtHR is likely to find a breach. In the present case, Guerra has submitted extensive documentary evidence and screenshots of changed passwords, lost e-mails, and the tracking of her keystrokes in order to recreate her computer activity. The question that must be answered is whether this conduct violates the Convention.

Guerra alleges that a man, who she once dated, is involved in the improper interception of her personal files from her laptop and e-mails. She claims Ireland dismissed the connection between her activism in Spain, the harassment in Dublin that has not been adequately addressed by officials, and the failure to take into consideration the many forms of intimidation that she had encountered while awaiting a determination on her asylum application. In Buturugă v. Romania, a cybercrime case, the ECtHR found a violation of Article 3 and Article 8 of the Convention on account of the State’s failure to fulfil its positive obligations under those provisions as it relates to cyber-harassment.

Conclusion: The ECtHR could find Ireland in violation of Article 3 and 8 of the Convention on account of its coerced repatriation efforts, and its failure to fulfil its positive obligations under those provisions.

Guerra v. Ireland is part of a series of fictional cases based on true events that have occurred in Direct Provision

Direct Provision Case Brief - Gelashvili vs. Ireland
Direct Provision Briefs

Direct Provision Case Brief – Gelashvili vs. Ireland

Feb 11, 2023 by Quianna Canada 1 Comments , ,

Direct Provision Case Brief – Gelashvili vs. Ireland

Facts: Tamaz Gelashvili is a foreign national from Georgia. In 2016, Gelashvili went to the supermarket to buy some eggs and milk. On his way home, he witnessed an effeminate man being assaulted by a group of men. He recorded the incident on his iPhone and uploaded the footage to TikTok. The video went viral. Gelashvili soon learned the group of men were undercover police officers. Hours later, investigative police arrived at his door demanding Gelashvili turn over the footage. Gelashvili refused, as police officers did not display a warrant. The following month, Gelashvili received threatening phone calls from a variety of individuals calling him homophobic slurs. When Gelashvili reported the incident to the police, they laughed and did the same. A week later, Gelashvili was severely beaten on his way home.

In June 2016, Gelashvili filed asylum in the country of Ireland. The International Protection Accommodation Service transferred Gelashvili to the Baleseskin accommodation centre in August of 2016. In October, Gelashvili travelled back to Baleseskin from Dunne’s Supermarket and found a homophobic slur written boldly on his door. He reported the incident to management, who took no action. Days later, someone slid pornographic images of gay men under Gelashvili’s door, which implicated him in homosexuality. Other images included killings of homosexual men. Gelashvili found the images threatening. Gelashvili visited several asylum NGOs in Ireland and reported the incident. However, instead of investigating his concerns, they took no action.

Gelashvili vented to a Georgian man about his problem, one who never seemed to leave Balseskin. However, the older Georgian man accused Gelashvili of being homophobic. Gelashvili found this extremely odd. Through a confidential source, Gelashvili learned the older Georgian man was a diplomatic official behind each incident who had been sent to drive him back to Georgia.

Issue: Whether the treatment rises to the level of degrading treatment or punishment.

Rule: Article 3 of the Convention states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Analysis of Direct Provision Case Brief – Gelashvili vs. Ireland

Gelashvili believes his experience in direct provision is part of Georgia’s interdiction effort to drive him back to Tbilisi. Countries within the EU, such as Ireland, often take interdiction efforts to drive asylum seekers back to their home country. The EU has been especially active in establishing shared interdiction arrangements with Eastern European states to combat “irregular” migration by the establishment or intensification of exit control.[1] Countries may also engage in interdiction from within the territory of a cooperating state.[2] Indeed, ejections are often carried out by non-state actors with the encouragement or toleration of authorities.[3] When Liberian and Sierra Leonean refugees fled to Guinea in late 2000, President Lansana Conté encouraged citizens to form militia groups to coerce refugees to “go home.”[4]

Nonetheless, any repatriation through coercive means is a breach of Art. 33 of the Refugee Convention. In MSS v. Belgium and Greece[5], the Belgian authorities engaged in coercive repatriation efforts to force the applicant back to Greece, where he lived in permanent fear of being attacked and robbed. He also submitted that his vulnerability and psychological deprivation in the State amounted to inhuman or degrading treatment or punishment,[6] and the ECtHR agreed.

Contracting Parties have an obligation under Article 1 of the Convention, to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. See Kasymakhunov v. Russia, where the ECtHR stated this obligation includes taking measures to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill treatment administered by private individuals.[7] In Kasymakhunov, the ECtHR held that the Russian authorities repatriation efforts violated its positive obligation to protect the applicant against the real and immediate risk of forcible transfer to Uzbekistan, including ill-treatment in the State.[8]

Conclusion: The ECtHR could find Ireland in violation of Article 3 of the Convention on account of its coerced repatriation efforts, and its failure to protect Gelashvili against a real and imminent risk of ill-treatment in Georgia.

References

[1] Hathaway, J.C. (2021). The Right to Enter and Remain in an Asylum State. The Rights of Refugees under International Law. Cambridge University Press. p. 320.

[2] Id., p. 321.

[3] Id., p. 325.

[4] Id.

[5] MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011), at paras. 238-239

[6] Id.

[7] Kasymakhunov v. Russia, Dec. No. 29604/12 (ECtHR, Nov. 14, 2013), at para. 134.

[8] Id., paras. 137-141.

Direct Provision Case Brief - Joseph v. Ireland
Direct Provision Briefs

Direct Provision Case Brief – Joseph v. Ireland

Feb 6, 2023 by Quianna Canada 0 Comments , , ,

Stress Him With Stench in Direct Provision. The Case of Joseph v. Ireland.

Direct Provision Case Brief – Joseph v. Ireland

Facts: Paul Joseph is a Canadian animal rights activist who filed asylum in Ireland in 2017. The International Protection Accommodation Service transferred Joseph to the Clare Centre in 2018. One day while Joseph was on a walk, he witnessed a group of friends bludgeoning a stray dog with a tree branch. When he arrived at Clare Centre, he reported the incident to management. Management informed Joseph they could not intervene. As a result, Joseph posted a message on the community board that read “Attacking animals is cruel, inhumane and wrong. It is a serious animal rights violation. If you see attacks of cruelty on animals contact me.” During the following week, Joseph’s call-to-action was taken down from the community board.

Days later Joseph noticed a foul smell in his room. He search for the scent throughout his room but could not locate evidence of a dead carcass. The pungent smell—what smelt to Joseph like roadkill—grew stronger as the days increased and seemed to be coming from the vent within his room. On this account, Joseph called an exterminator. However, the exterminator found no carcass within the vent; he only found blood. The exterminator instructed staff to report the incident to management as soon as practicable, as the blood could potentially spread diseases such as Salmonellosis, Campylobacter and Clostridium perfringens.

The staff in direct provision took no action. The next day, Joseph aired his concerns on his animal rights blog. He also called in the exterminator for a second time, who articulated they could not take action. After he did so, he noticed the smell became more pungent. It deprived him of sleep and also triggered his asthma.

Issue: Whether the pungent smell deprives Joseph of his right to peacefully exist within his home.

Rule: Article 8 of the European Convention on Human Rights protects the right to respect for an individual’s private life, their family life, their home and their correspondence (letters, telephone calls and emails). Further, Article 1(1) of the UN Convention Against Torture (1984) defines torture as:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ”

Analysis of Joseph v. Ireland — Stress Him With Stench in Direct Provision

Article 8 ECHR

In Airey v. Ireland, the ECtHR examined Article 8 of the Convention and stated “The Convention is a living instrument, to be interpreted in the light of present-day conditions” (para. 26). The ECtHR further stated, Article 8 embraces the right to a healthy environment. This includes but is not limited to protection against pollution, nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noises and so on. See also, Guerra and Others v. Italy, where the Court was concerned by nuisances (smells, noise and fumes) caused by a waste-water treatment plant close to the applicant’s home, which affected her daughter’s health. 

In the present case, the Authorities did not take necessary measures to ensure the effective protection of Joseph’s home. Here, the Authorities did not provide Joseph with essential information about the risks of the smell or about emergency procedures. In Deés v. Hungary, the ECtHR recalled that the Convention protected an individual’s right, not only to the actual physical area of his home, but also to the quiet enjoyment of that area from interferences such as noise, emissions or smells. In that case, the ECtHR found a violation of Article 8 of the ECHR (right to respect for private life and home).

Article 3 ECHR

Joseph complains of insufficient sleep over several consecutive days due to the smells and being awaken at what he refers to as “odd hours of the night.” He further alleges the treatment occurred on a continuous basis— weeks before his interview with the International Protection Office. In Strelets v. Russia, the ECtHR found similar conditions to constitute inhuman and degrading treatment:

the cumulative effect of malnutrition and inadequate sleep on the days of court hearings must have been of an intensity such as to induce in the applicant physical suffering and mental fatigue. This must have been further aggravated by the fact that the above treatment occurred during the applicant’s trial, that is, when he most needed his powers of concentration and mental alertness. (para 62).

In Strelets, the ECtHR found an Article 3 violation on account of the failure of the domestic authorities to provide the applicant with adequate sleep on the days leading up to his court hearing.

Conclusion: Based on the above, the ECtHR could likely find Ireland in violation of Article 3 and 8.

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