A SUSPECT in an alleged conspiracy to murder a Swedish cartoonist over his drawing of the prophet Muhammad has won a Supreme Court challenge to a law under which a warrant to search his home was issued by a Garda detective superintendent.
Cartoonist Lars Vilks’s depiction of Muhammad provoked serious unrest in several Muslim countries, the court was told.
Ali Charaf Damache (45), an Algerian with an address at John Colwyn House, High Street, Waterford, was arrested after his house was searched because it was suspected he was involved in an alleged international conspiracy to kill Mr Vilks along with several others.
As a result of the search in Dublin, he was also charged with threatening the life of an American lawyer who protested in Detroit to say that most Muslims were against terrorist attacks.
Mr Damache claimed the warrant for his arrest in Ireland should have been issued not by a Garda superintendent but by an independent authority, such as a judge or a peace commissioner. The State opposed his application.
Last May, the High Court dismissed his challenge and he appealed to the Supreme Court, which yesterday upheld his appeal.
It is up to the Director of Public Prosecutions to decide whether the case can proceed, legal sources say. “A member of the Garda Síochána who is part of an investigating team is not independent on matters related to the investigation,” Chief Justice Susan Denham said. The person authorising a search warrant is required to be able to assess the conflicting interests of the State and the person whose home is to be searched, the judge said. In this case, the detective superintendent was not independent, she added. Article 40.5 of the Constitution expressly provides that one’s home is inviolable and shall not be forcibly entered except in accordance with the law, she said. This meant entry had to be effected “without stooping to methods which ignore the fundamental norms” of the legal order as contained in the Constitution.
The court granted a declaration that section 29(1) of the Offences Against the State Act (as inserted by section 5 of the Criminal Law Act, 1976) was repugnant to the Constitution as it allowed a search contrary to the Constitution on foot of a warrant not issued by an independent person.