Father faces jail sentence over debt of €4,000
Friday January 02 2009
A FATHER-of-four who is facing one month in Mountjoy jail for a credit union arrears debt of €4,000 has brought High Court proceedings to prevent his imprisonment under an 82-year-old debtors' law.
The man, a former van driver who is unemployed and living on social welfare benefits, was not legally represented or advised when a court order seeking his committal to prison was made in July of last year.
The 28-year-old is the second member of Monaghan Credit Union in recent months to seek an injunction from the courts preventing their arrest and detention for debt arrears.
Three years ago, the District Court ordered the man to pay Monaghan Credit Union instalments of €100 a week in respect of an original debt of almost €30,000.
When the gardai sought to execute the committal warrant, the man sought the advice of the Money Advice and Budgetary Service who tried, unsuccessfully it is claimed, to negotiate directly with the credit union.
The man has claimed that he did not pay the instalments because of wilful failure of culpable neglect but simply because he does not have the financial resources to pay the amount of the instalment or the arrears of instalments outstanding which currently amount to €4,033.14.
The man is seeking injunctions pending the outcome of a landmark case to be heard this year involving another member of Monaghan Credit Union.
That case involves a single mother-of-two who is challenging the constitutionality of the Enforcement of Court Orders Acts that allows civil debtors to be sent to jail.
The woman, who borrowed to pay for the funeral of her baby son, is seeking a declaration that Ireland's archaic debt laws are incompatible with the Constitution and the European Convention of Human Rights which was incorporated into Irish law in 2003.
Complaint
Central to both claims is a complaint that the transformation of a civil wrong (a debt) into a criminal offence (resulting in someone being sent to jail) without necessary legal safeguards is unconstitutional and a breach of a persons human rights.
Under Article 38 of the Constitution, no person can be tried for a criminal offence except in due course of law.
Prison and deprivation of liberty are meant to be a sanction of last resort, a prospect that often requires a jury trial and is intended to be reserved for serious offences.
Legal and financial experts have predicted that debt enforcement will become a major headache for the Government and lenders as the recession deepens.
Applications to District Courts for committal orders, where creditors seek the ultimate sanction of sending a person to jail after exhausting all other avenues, are expected to soar in January following a seasonal Christmas reprieve.
- Dearbhail McDonald Legal Editor
