Brussels, 11/09/2013 (Agence Europe) - A failure to respect the rights of defence in a decision extending detention for the purpose of removal does not automatically bring about the lifting of the detention, but national courts must verify whether non-violation of the rights of defence (by releasing the immigrant rather than keeping him or her detained) would have led to a different outcome.
This is the substance of a ruling on 10 September by the European Court of Justice in Case C-383/13, sent as a matter of urgency to the Court of Justice by the Dutch Raad van State (Council of State), which wanted to know whether Dutch legislation complied with EU Directive 2008/115 (setting procedural guarantees on removal decisions for illegal immigrants from outside the EU). Directive 2008/115 lays down the procedural safeguards as regards decisions on the removal of illegally staying third-country nationals. In this connection, it requires member states to put in place effective remedies against those decisions and provides, moreover, that the third-country nationals concerned are to be released immediately if the detention is not lawful, but Dutch laws give Dutch courts the right to extend the detention of illegal immigrants, even if the rights of defence have been infringed (in the case in question, the individuals were not able to regularly express themselves) if they believe it is more important for the individuals to remain in detention.
In the ruling, the Court of Justice says that fundamental rights, like respect of the rights of defence, “do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. Moreover, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case”. It follows that it is not every irregularity in the observation of the rights of the defence in an administrative procedure extending the detention of a third-country national with a view to his removal that constitutes an infringement of those rights. To make such a finding of unlawfulness, the referring court must assess whether, in the light of the factual and legal circumstances of the case, 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. The Court of Justice explains that not to acknowledge such a power of assessment on the part of the national court and to require that every infringement of the right to be heard automatically brings about the annulment of the decision extending the detention and the lifting of that measure would be liable to undermine the effectiveness of the directive. In that respect, the Court notes that the directive is intended to establish an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.
Likewise, the Court explains that the use of coercive measures should be expressly subject to not only the principle of proportionality, but also to the principle of effectiveness, with regard to the means used and objectives pursued. Therefore, the national court can order the lifting of the measure of detention only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of better arguing its defence to the extent that the outcome of that administrative procedure could have been different. (FG/transl.fl)