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Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Applicability - Yes or no? Right to be heard in return proceedings

Citizen of third coutry was apprehended by the Police and detained as he stayed in EU irregularly (his visa expired month ago). Return decision was issued the same day. It was stated in the decision that he stay is clearly irregular. It is also stated that he doesn’t run family life in the EU and he is not in danger of human rights violations in case of return. Therefore, according to the authorities, there is no need to protract the proceedings.

He made an appeal against return decision. He argued that his right to good administration (specifically - the right to be heard) enshrined in Article 41 of the Charter was violated as was not heard by the authorities and deprived to possibility to express his views against deportation. He argued his state of health is really bad and bacause of lack of proper medical assistance in his country of origin his expulsion would lead to inhuman treatment.

May he refer to the Article 41 of the Charter in his appeal?

yes
no

In judgment C‑166/13, Sophie Mukarubega the Court stated that "it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union." So the third country citizen cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his return.

Hovewer in the same judgment, the Court stated that "observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent". The right to be heard in all proceedings is affirmed in Articles 47 and 48 of the Charter.

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