The Court of Justice ruled on Tuesday 8 November, in joined cases C-704/20 and C-39/21, that the national judge was obliged to review on his own initiative the legality of a detention measure taken in respect of an illegally staying foreigner or an asylum seeker.
Algerian, Moroccan and Sierra Leonean nationals have challenged detention measures taken against them in various Dutch courts. The Dutch Council of State and the District Court of the Hague asked the Court whether EU law obliges courts to examine on their own initiative whether a condition for the lawfulness of a detention measure, which has not been invoked by the person concerned, has been breached.
According to the Court, the judicial authority competent to review the lawfulness of a detention measure must take into consideration all the elements - in particular factual elements - brought to its knowledge, as supplemented or clarified in the context of procedural measures that it would consider necessary to adopt on the basis of its national law. The Court states that on the basis of these elements, the judicial authority must, where appropriate, find that there has been a breach of a condition of legality arising from Union law, even if that breach has not been raised by the person concerned.
See the Court’s judgment: https://aeur.eu/f/3ym (Original version in French by Camille-Cerise Gessant)