Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court clarified that even in the absence of explicit procedural guarantees in the EU secondary legislation the right to an effective remedy requires that the decision to extend the detention of third-country national be issued in writing and include the reasons in fact and in law for that decision.
Mr Mahdi was arrested in Bulgaria. He did not have any identity documents but presented himself as a Sudanese national. He was subsequently issued a deportation order and detained.
A Sudanese embassy official confirmed the identity of Mr Mahdi but refused to issue him documents permitting travel back to Sudan. The refusal was based on the fact that Mr Mahdi was not willing to return to Sudan. Without his consent it was not possible to obtain travel documents for him.
A Bulgarian national, swore an affidavit that Mr Mahdi would be provided with accommodation and his own means of support during his stay in Bulgaria.
Bulgarian court was asked to prolong the detention of Mr Mahdi above six months.
Is Article 15(3) and (6) of Directive 2008/115, in conjunction with Articles 6 and 47 of the Charter, must be interpreted as meaning that:
(1) the decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention, must be in the form of a written measure that includes the reasons in fact and in law for that decision.
(2) the ‘supervision’ that has to be undertaken by a judicial authority dealing with an application for extension of the detention of a third-country national must permit that authority to decide, on a case-by-case basis, on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released, that authority thus having power to take into account the facts stated and evidence adduced by the administrative authority as well as any observations that the third‑country national may submit.
The Court held that the requirement that a decision be adopted in writing must be understood as necessarily covering all decisions concerning extension of detention.
The obligation to communicate reasons for the extension of detention is necessary both to enable the third-country national to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and also to put that court fully in a position to carry out the review of the legality of the decision in question.
Any other interpretation would undermine the fundamental right to an effective remedy.
The Court also stressed that Member States retain procedural autonomy when regulation detention-review measure. Yet they are obliged to ensure that the fundamental rights are observed and that the provisions of EU law relating to that measure are fully effective.
While answering the second question the Court reminded the need to comply with the principle of proportionality and the requirement to observe the fundamental rights of the third‑country nationals concerned.
The Court held that the authority deciding on the extension of detention must be authorized to rule on the relevant matters of fact and of law in order to determine whether an extension of detention is justified. It requires an in-depth examination of the matters of fact specific to each individual case. Where the detention that was initially ordered is no longer justified in the light of those requirements, the judicial authority having jurisdiction must be able to substitute its own decision for that of the administrative authority or, as the case may be, the judicial authority which ordered the initial detention and to take a decision on whether to order an alternative measure or the release of the third-country national concerned. To that end, the judicial authority ruling on an application for extension of detention must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national. Furthermore, that authority must be able to consider any other element that is relevant for its decision should it so deem necessary. Accordingly, the powers of the judicial authority in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority concerned.
The Madhi decision also deals with three other points that must be emphasised: 1) the intensity of judicial control of the decision that extends the detention period; 2) the reasons why the TCN is detained and remains in detention; 3) the issuing of a residence authorization when there is no reasonable prospect of removal.
Judicial control of Detention: A deceptive upheaval? by Marie-Laure Basilien-Gainche, available at: http://eulawanalysis.blogspot.com/2014/06/marie-laure-basilien-gainche.html