Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The applicant, a Nepali national, applied to the Court to challenge the detention order issued against him and to request measures alternative to detention or his immediate release. He had come to Cyprus with a student visa which expired in September 2020. In March 2021 he was stopped by the police to check compliance with the measures against the pandemic and he was arrested when the police realised that he was residing illegally in Cyprus. The following day, detention and deportation orders were issued against him upon which he filed for asylum. He claimed, amongst others, that his detention was not the result of an individual examination of his personal circumstances and infringed the principles of necessity, proportionality and equality. He also claimed that his right to a hearing, protected by articles 41 and 42 of the Charter, had been infringed as he was not given the right to be heard before the administrative order of detention was issued.
Legal question raised by the Court:
According to CJEU precedent cited by the judge, the criterion whether the failure to grant a hearing prior to the issue of the arrest warrant should invalidate the arrest warrant is whether under the factual and legal circumstances of the case, the administrative procedure for the issue of the detention order would have yielded a different result. The adoption of alternative to detention measures is possible only if the reason justifying detention remains in force except that the detention itself is no longer necessary. The Court has the power not only to review the challenged administrative act but to replace the decision of the administrative authority with its own. Citing the CJEU ruling in C-534/11 Mehmet Arslan v. Policie CR, the court held that, for the purpose of evaluating the risk of abscondment, it can evaluate the circumstances which characterise personal conduct before and after submitting the asylum application, always provided the detention was not the result of the filing of an asylum application; if the detainee’s personal circumstances suggest a high risk of absconding, then detention is lawful. The applicant’s visa expired on 20/9/20 and yet he did not take steps for its renewal nor did he file for asylum then; according to the Court this was sufficient indication that he filed an asylum application in order to delay or obstruct his deportation.
Outcome of the case:
The Court held that the wording of the arrest warrant clearly provides the individual reasons why detention was necessary: he had failed to comply with an earlier return decision, he did not declare his residence address and his case entailed a high risk of absconding. The Court paid particular attention to the fact that he had plenty of time to apply for asylum before his arrest and yet he did not. The Court rejected the applicant’s argument that not all of the reasons set out in the arrest warrant were included in the English document handed to him, because his right to a judicial evaluation of his claim were not prejudiced by this; for this, the Court cited an ECtHR decision that the reasons for one’s detention need not be communicated in their entirety at the very moment of the arrest (Khlaifia and others v Italy, No.16483/12) especially if they can be presumed. The criteria foreseen in the law in order to evaluate the risk of absconding do not differ from the facts of the present case. The Court acknowledged the significance of the right to be heard but concluded that the failure to grant this right before the issue of the detention order does not invalidate the order.
The applicant’s unwillingness to comply with the rules regarding lawful resident and the absence of any bond with Cyprus indicated a high risk of absconding and therefore his release or the adoption of measures alternative to detention were ruled out. The application was rejected and the detention order remained in force.
The above binding case law of the CJEU specifically on detention orders of applicants for international protection as expressed by the ruling in FMS (above) with reference to the decision in Mahdi (above) paragraph 62, and seen in light of the interpretation of Article 9(3) of Directive 2013/33 - the transposition of which is Article 9F of the Law - and Article 47 of the Charter of Fundamental Rights of the European Union, clarifies that in the present proceedings the Court has not only the power to exercise effective review but, where this is deemed necessary on the basis of the evidence before it, “to substitute its own decision for that of the administrative authority that ordered the detention” (see para. 293 of the FMS decision, above) and, further, to impose alternative detention measures when and where needed “if the reason that justified the detention of the person concerned was and remains valid, but that detention does not seem or no longer seems necessary or proportionate in the light of that reason."
Η ανωτέρω δεσμευτική νομολογία του ΔΕΕ ειδικώς επί διαταγμάτων κράτησης αιτητών διεθνούς προστασίας ως εκφράζεται από την απόφαση FMS (ανωτέρω) με αναφορά στην απόφαση, Mahdi (ανωτέρω) σκέψη 62, και ιδωμένη υπό το φως της ερμηνείας του άρθρου 9 (3) της οδηγίας 2013/33/ΕΕ - του οποίου μεταφορά στο εθνικό δίκαιο αποτελεί το επίδικο άρθρο 9ΣΤ του Νόμου - και του άρθρου 47 του Χάρτη Θεμελιωδών Δικαιωμάτων της Ευρωπαϊκής Ένωσης, καθιστά σαφές ότι στην παρούσα διαδικασία το Δικαστήριο κέκτηται όχι μόνο της εξουσίας να ασκήσει ουσιαστικό έλεγχο της προσβαλλόμενης πράξης αλλά και, όταν τούτο κριθεί απαραίτητο στη βάση των στοιχείων που έχει ενώπιον του, «[.] να υποκαταστήσει με τη δική του απόφαση την απόφαση της διοικητικής αρχής με την οποία διατάχθηκε η θέση υπό κράτηση [.]» (βλ. σκέψη 293 της απόφασης FMS, ανωτέρω) και, περαιτέρω, να επιβάλει εναλλακτικά της κράτησης μέτρα όταν και όπου «[.] ο λόγος που δικαιολόγησε την κράτηση του ενδιαφερομένου ήταν και παραμένει σε ισχύ, πλην όμως η κράτηση αυτή δεν παρίσταται ή δεν παρίσταται πλέον αναγκαία ή αναλογική υπό το πρίσμα του λόγου αυτού.».