CJEU judgment in G. and R., C-383/13

(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - legal consequences of failing to respect the rights of the defence in a decision extending detention for the purpose of removal - does not automatically lift the detention)

Facts of the case

G and R were detained for the purpose of removal by the Netherlands authorities. They then requested judicial challenge to the decision to extend their detention, on the ground that their defence was not properly heard. The court of first instance accepted that their rights to a defence were infringed, but declined to rule the extension unlawful. This ruling was upheld on appeal by the Raad van State on the basis of Dutch case-law, which establishes that the legal consequences for detention of an infringement of defence rights will depend on the interest served by the extension of detention. The Raad van State, uncertain as to the compatibility of this case law with EU law, made a request to the CJEU for a preliminary ruling. An additional request for the urgent procedure was granted.

Questions referred for a preliminary ruling

1. Does infringement by the national administrative authority of the general principle of respect for the rights of the defence, which is also given expression in Article 41(2) of the Charter of Fundamental Rights of the European Union, 1 in (the course of the preparation of) an extension decision within the terms of Article 15(6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, automatically and in all cases mean that the detention must be lifted?

2. Does that general principle of respect for the rights of the defence leave scope for a balancing of interests in which, in addition to the seriousness of the infringement of that principle and the interests of the foreign national adversely affected thereby, the interests of the Member State served by the extension of the detention measure are also taken into account?

Consideration of the questions referred

The Court saw it as established that the right to be heard had been infringed. It focused therefore on the consequences of that infringement. The Court's starting point was that the right to be heard, though fundamental, could be subject to proportionate and effective restrictions that pursue the general interest. In addition, the consequences of an infringement must be determined case by case. In this context, not every breach of the rights of the defence will result in the detention being rendered unlawful, and require the release of the detainee. In determining the lawfulness of continued detention after a breach of defence rights, the domestic authorities must ask whether, in light of all factual and legal circumstances, the outcome of the administrative procedure at issue could have been different if the third-country nationals in question had been able to put forward information which might show that their detention should be brought to an end.

Read the full text of the Judgment (in French) or the Press Release (in English) on the website of the Court of Justice of  the European Union.

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