A foreigner may not have concerns about his/her detention, a judge must review its legality ex officio

On 8 November 2022, the Grand Chamber of the Court of Justice of the European Union ruled in Joined Cases C-704/20 PPU and C-39/21 PPU that national courts must review the legality of a detention measure of a third country national ex officio, of its own motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned. This follows from Articles 15(2) and (3) Return Directive, 9(3) and (5) of the Reception Conditions Directive and 28(4) Dublin Regulation read in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the Europen Union.

In the case concerned an Algerian national, who expressed his intention to apply for international protection in the Netherlands was detained for the purpose of establishing his identity and of obtaining the information necessary to assess that application. A national of Sierra Leone was detained for the purpose of his transfer to Italy and a Moroccan argued that there was no prospect of removal within a reasonable time and thus the detention measure on account of the risk that X would avoid checks and prevent his removal was not grounded. CJEU was asked to produce a preliminary ruling regarding the obligation of the courts to carry out an active and thorough ex officio review and assessment of all the facts and factors relevant to the lawfulness of the detention measure concerned beyond the grounds indicated by the claimant.

The court reasoned e contrario that it cannot, in particular, be accepted that, in Member States where detention orders are taken by an administrative authority, judicial review does not encompass the judicial authority’s determination of whether a condition governing lawfulness, failure to comply with which has not been raised by the person concerned, has been satisfied, whereas, in Member States where detention orders must be made by a judicial authority, that authority must carry out such a determination of its own motion on the basis of those elements (para 89). That will include the cases, in particular, where it is found that the procedure for return, for examination of the application for international protection or for transfer, as the case may be, is no longer being carried out with due diligence (para 80).

Very similar arguments were used in recent ReLex case where Supreme Administrative Court of Lithuania affirmed that when deciding on the restriction of a person’s freedom of movement courts must examine individually each case and must give reasons for its decision, taking into account all the factual circumstances of the specific situation. In its resoning in the present case CJEU also referred to the importance of the right to liberty, limiting the power of the competent national authorities to detain third-country nationals  as referred in CJEU judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others, C‑72/22 PPU.

Advocate General in essence observed in point 95 of his Opinion, that in view of the importance of the right to liberty, the gravity of the interference with that right which the detention of persons on grounds other than the prosecution or punishment of criminal offences represents and of the requirement, highlighted by the common rules laid down by the EU legislature, of a high level of judicial protection which enables compliance with the imperative need to release such a person, where the conditions governing the lawfulness of detention are not, or are no longer, satisfied, the competent judicial authority must take into consideration all the elements, in particular the facts, brought to its knowledge, as supplemented or clarified in the context of procedural measures which it deems necessary to adopt on the basis of its national law, and, on the basis of these elements, raise, where appropriate, 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. That requirement is without prejudice to the obligation, for the judicial authority thus called upon to raise of its own motion such a condition governing lawfulness, to invite each party to express its views on that condition in accordance with the adversarial principle.

As indicated by the CJEU judicial protection of the fundamental right to liberty is guaranteed effectively in all Member States, whether they provide for a system in which the detention order is taken by an administrative authority subject to judicial review or a system in which that decision is taken directly by a judicial authority (para 90).




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