A Dutch court asked through a preliminary ruling whether a national court may, when required to review the lawfulness of detention or continued detention, be limited by a procedural rule of national law which prevents it from taking into account pleas or arguments not put forward by the applicant. The CJEU found that EU directives should be interpreted as requiring courts to raise any failure to comply with conditions governing the lawfulness of detention, including those not invoked by the applicant.
- Article 6 of the Charter of Fundamental Rights of the European Union.
- Article 24 of the Charter of Fundamental Rights of the European Union.
- Article 47 of the Charter of Fundamental Rights of the European Union.
- Directive 2008/115/EC, Article 15 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348).
- Directive 2013/33/EU, Articles 9 and 21 on standards for the reception of applicants for international protection (OJ 2013 L 180).
- Regulation (EU) No 604/2013, Articles 6 and 28 on the criteria and mechanisms for determining the Member State by a third-country national or stateless person (OJ 2013 L 180).
The first set of proceedings concerned the detention of applicants B and C, who are both third-country nationals. In both cases, the applicants were detained by the State Secretary (for the purpose of establishing B’s identity after B expressed intention to apply for international protection, and for the purpose of C’s transfer to Italy) and the applicants then (separately) brought actions against the decisions. The District Court found in both cases that the State Secretary had not acted with due diligence and ordered the detention measure be lifted, despite ruling on grounds not raised by B or C during proceedings. The State Secretary appealed both judgments. The Council of State asked the Court of Justice for a preliminary ruling on the argument of B, C, and certain Dutch courts that EU law requires the courts to examine of their own motion all the conditions that a detention measure must satisfy to be lawful, referring the following question: "Does EU law require a court of its own motion to assess whether all the conditions pertaining to detention have been met, including those where the foreign national has not disputed that compliance occurred, despite having had the opportunity to do so?"
The second set of proceedings concerns X, a third-country national detained by the State Secretary to prevent X from avoiding checks and thus preventing his removal. A District Court dismissed X’s appeal in December 2020. In January 2021, X brought an appeal against the continuation of the detention measure on the grounds that there was no prospect of removal within a reasonable time. The District Court seeks guidance on the requirements, stemming from EU law, on the intensity of the judicial review of the lawfulness of detention measures. It asked the CJEU, inter alia, whether Member States are permitted to structure the judicial procedure for challenging the detention of a foreign national ordered by the authorities in such a way as to prohibit the courts from carrying out an assessment of all aspects of the lawfulness of the detention, and, where a court finds of its own motion that the detention is unlawful, from ordering that the unlawful detention be ended and the foreign national released immediately?
Staatssecretaris van Justitie en Veiligheid v. C, B (C-704/20)
In the Netherlands, detention provided for by EU legal instruments falls within the scope of administrative procedural law, which does not in principle allow domestic courts to examine of their own motion whether detention measures satisfy conditions pertaining to lawfulness which the person concerned has not claimed to have been infringed.
The only exception to the above principle made by the Council of State concerns the review of compliance with rules of public policy, such as those relating to, inter alia, jurisdiction, access to justice, right to fair trial. The Council of State (the referring court) argues that conditions relating to detention are not of the same rank as national rules of public policy and therefore do not meet this exemption.
That court argues, inter alia, that, in proceedings relating to the lawfulness of an administrative measure, EU law does not require courts to review of their own motion all conditions relating to compliance with EU law – unless the measure occupies a position comparable to rules of public policy in the EU legal order, or it is impossible for parties to put forward a plea alleging infringement of EU law in the proceedings concerned (referring to van der Weerd and Others, C‑222/05 to C‑225/05). Therefore, in accordance with the principle of procedural autonomy, Member States are entitled to prohibit national courts from raising, of their own motion, facts or pleas in law in the context of judicial review of detention measures adopted in respect of third-country nationals.
X v. Staatssecretaris van Justitie en Veiligheid (C-39/21)
The referring court (in this case, the District Court) states, inter alia, that it received for the present case only a very brief file, from which it was impossible to glean relevant facts for assessing whether the continuation of the detention measure was lawful. That court argues that, since it is not empowered to examine matters of its own motion, it has been denied the opportunity to assess the lawfulness of the continuation of the detention measure concerned in the light of all the relevant information – leading to a possible violation of the fundamental right o an effective remedy enshrined in Article 47 of the Charter.
Staatssecretaris van Justitie en Veiligheid v. C, B (C-704/20)
B and C argue that EU law requires the courts to examine, of their own motion, all conditions that a detention measure must satisfy to be lawful. This includes the numerous conditions that govern the lawfulness of a detention measure in respect of a third-country national: inter alia, the arrest of the person concerned, checks relating to his or her identity, nationality and right of residence, his or her right to consular, legal and linguistic assistance, his or her rights of defence, the existence of a risk of absconding or of evading checks, the prospect of removal or transfer of the person concerned, the signature and date of the adoption of that detention measure, whether that measure is consistent with the principle of proportionality, and – of particular relevance to their cases – the diligence shown by the State Secretary.
The Court found the question of C-704/20 and the first question of C-39/21 admissible. It considered these questions together: whether EU law must be interpreted as meaning that a judicial authority’s review of compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law must lead that authority to raise, of its own motion, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned [para 71].
The Court emphasised that any detention of a third-country national constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter of Fundamental Rights. The purpose of detention measures must be for the achievement of the objectives outlined in the returns directive (Directive 2008/115), to examine applications for international protection (Directive 2013/33), or to transfer of third-country nationals (Regulation No 604/2013) [para 72].
In view of the gravity of detention’s interference with the right to liberty, the power of competent national authorities to detain third-country nationals is strictly circumscribed. The Court reiterated that a detention measure may be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure [para 75]. When it is apparent that the conditions governing the lawfulness of detention provided by provisions of national law and EU law have not been or are no longer satisfied, including through a lack of due diligence, the person concerned must be released immediately [paras 79-80].
The Court demonstrated that EU legislature, through requiring that competent authorities carry out supervisions of conditions governing the lawfulness of detention at reasonable intervals, has established common procedural standards to ensure that in each Member State there is a system which enables the competent judicial authority to release a person, when appropriate, after an examination of its own motion [para 86].
The Court acknowledged that EU law does not require national courts to raise of their own motion pleas alleging infringement of EU law provisions in administrative proceedings relating to a dispute where it is for the parties to take an initiative (as argued by the Council of State, referring to van der Weerd and Others, C‑222/05 to C‑225/05, EU:C:2007:318). However, the Court stated that the strict circumscription of detention measures ‘leads to a situation which is not similar in every respect to administrative proceedings in which the initiative and delimitation of the dispute lie with the parties’ [paras 91-92]. In Member States where detention orders are taken by an administrative authority, judicial review must encompass the judicial authority’s determination on conditions governing lawfulness, just as in Member States where detention orders are made by a judicial authority.
The Court states that, to ensure systems of protection effectively ensure compliance, the competent judicial authority must be able to rule on all matters of fact and of law relevant to the lawfulness of detention, and therefore must be able to consider all facts stated and other elements it deems necessary for its decision. A competent judicial authority must be able to raise the failure to comply with a condition governing lawfulness arising from EU law, even if that failure has not been raised by the person concerned and is raised of its own motion [para 87].
The Court ruled that EU directives governing detention for third-country nationals and those seeking international protection must be interpreted as meaning that a judicial authority’s review of compliance with conditions governing the lawfulness of detention must lead that authority to raise any failure to comply, whether invoked by the applicant or of its own motion. In such a case, the authority may not be limited by procedural rules of national law which prevent it from raising a failure to comply with conditions governing the lawfulness of detention not invoked by the applicant [para 95].
This is a preliminary decision informing proceedings before national courts in the Netherlands.
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