A Latvian man convicted of raping a woman a decade ago has won his High Court challenge to his removal and exclusion from the State.
Deniss Kovalenko, now aged 34, was convicted of the rape and oral rape of an American student in Galway on February 14th 2004.
In his judgment, Mr Justice Paul McDermott ruled the exclusion order was “fundamentally flawed” because Kovalenko was denied fair procedures in that he was given no opportunity to provide explanations concerning information used by officials in the Department of Justice when deciding to exclude him.
Kovalenko, whose family live in Ireland, claimed the exclusion decision was unfair and violated the rights of himself and his family under the European Charter for Protection of Fundamental Rights and Freedoms. As an EU citizen, he is entitled to reside in Ireland, it was claimed.
During his 2006 trial at the Central Criminal Court, the prosecution said Kovalenko met the woman in Shop Street in Galway city centre at about 3am and bought her a rose from a street seller.
He later raped her at Upper Canal Road.
Kovalenko, an unemployed stone mason denied rape and claimed his victim consented to sex. He was convicted by a jury, jailed for seven years and placed on the sex offenders register. Following his release from prison, he returned to Galway where members of his family reside.
In his High Court action, Kovalenko, with addresses at Krasta Jekabpils, Latvia, and Newcastle Road, Galway, said he was served with an exclusion order on June 17th, 2013 and removed from the State the following day.
He had previously been informed the Minister for Justice intended to remove him from Ireland and exclude him for 10 years and his solicitors sought a review of this decision.
Kovalenko was directed to report to Salthill Garda Station on June 17th, 2013 and, when he did, was told for the first time he was being excluded. He was brought to Dublin and the following day put on a plane and returned to Latvia, via Germany.
In his action against the Minister for Justice, the Garda Commissioner, Ireland and the Attorney General Kovalenko wanted the decision to remove and exclude him quashed.
Mr Justice McDermott ruled the Minister “had an obligation” to disclose to Kovalenko it was intended to use, when considering whether to remove him, material obtained from the Irish Prison Service concerning his conduct during his incarceration.
The failure to disclose the use of this material deprived the applicant of an opportunity to make submissions on, or offer any explanation of these matters, the judge said. This breached fair procedures and the exclusion order was fundamentally flawed for that reason.
A civil servant in the Department of Justice who was involved in the original decision on removal and exclusion was also involved in the appeal process, the judge noted. The review process set up by the Minister for such decisions had to be independent of the first decision maker, he said.
While the civil servant was just carrying out the job they were directed to do, the official’s involvement at “both levels” in the circumstances of this case was contrary both to fair procedures and “the spirit and intention of the regulations governing the review process”.
