BRINGING UP THE BODIES (2)
A Habeas Corpus application must be made in the High Court. Article 40.4.2 of the Irish Constitution states that:
'Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.'
EX PARTE APPLICATION
In practice, the initial application is made ex parte, without notice to the respondent, and can be made to any judge of the High Court.
the applicant will have prepared an Ex Parte Docket, a Notice of Motion and a Grounding Affidavit with exhibits. The documents must be filed in the Central Office of the High Court. However, there is no Stamp Duty payable to the court Service in respect of papers relating to a Habeas Corpus application.
The Ex Parte application usually seeks Orders from the High Court such as the production of the detained person and an enquiry into the lawfulness of the detained person's detention. If the High Court makes these orders a hearing date is set. The hearing date is often very soon after the ex parte application. Service of notice of the hearing date on the respondent may be ordered to be done by email and telephone given the time constraints.
By the hearing date the respondent may have prepared and served a replying affidavit which will set out the respondent's position.
The full hearing of the matter may come before a different High Court judge from the one who heard the Ex Parte application.
Arguments and evidence from both sides will be heard at the hearing.
Article 40.4.2 of the Constitution stipulates that
' Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Court of Appeal by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Court of Appeal has determined the question so referred to it.'
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