Direct Provision Case Brief – Guerra v. Ireland
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.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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
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.
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