The High Court has refused a Romanian woman’s application to stop prosecutions arising from her arrival at Dublin Airport using an Irish passport that authorities believed was a photo substitute.
The woman, identified in the judgment as Nicoleta Sofineti, sought judicial review of the prosecution decisions and asked the court to prohibit the cases, quash the charges or direct a permanent stay. She also sought declarations about the treatment of her asylum application and her treatment in custody. Those treatment-related grounds were not pursued, and the request to compel processing of her asylum application was withdrawn because it was being processed.
The judgment by Mr Justice O’Higgins, delivered on 18 November 2004, records that the flight arrived from Milan on 25 April 2002. The passport was in the name Adele Kerr. Authorities refused the woman leave to land because she had no passport or travel documents establishing her identity and nationality. Two attempts to return her to Milan failed after the aircraft captain refused to carry her; the judgment says the circumstances of that refusal were disputed.
She was charged under section 26 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and later faced a further charge under section 18. The judgment describes the first charge as involving use of a false instrument and the second as possession of stolen property. The court recounts the prosecution’s allegation that the passport was stolen from an Irish citizen and used to pass the woman off as an Irish citizen. Those were allegations, not findings made in the judicial review judgment.
The applicant argued that Article 31 of the 1951 Refugee Convention protected asylum seekers from penalties for qualifying unauthorised entry, and that the Refugee Act 1996 provided a scheme that displaced ordinary criminal prosecution in these circumstances. She also argued that the State’s ratification of the Convention created a legitimate expectation that Article 31 would be respected.
The judge held that the Refugee Act’s inclusion of the Convention in a schedule was for convenience of reference and did not incorporate the Convention into Irish law. He rejected the legitimate-expectation argument, reasoning that it could not be used to give an unincorporated treaty domestic legal effect in a way that displaced the Director of Public Prosecutions’ statutory role.
The court also found that section 9 of the Refugee Act did not expressly or by implication prevent prosecution under the criminal law. It said the asylum provisions address matters including detention where a person is suspected of possessing forged documents, while the charges alleged conduct—using a false instrument to induce an act and possessing stolen property—not covered by that section.
The judge said it was unnecessary to decide other disputed matters, including whether the woman came within Article 31 or whether charging her amounted to a penalty. He refused the relief sought. The judgment did not determine the criminal charges or the woman’s guilt.