Migration in Europe and the Problems of Undercriminalisation

 

By Amanda Spalding, Lecturer in Law, University of Sheffield

Photo credit: Gzen92, via wikicommons media

Introduction

As five million refugees enter Europe having fled Ukraine, Denmark and the UK prepare for off-shore processing of asylum applications and Frontex tells us that in the first half of 2022 irregular entries to the European Union are up 84%, it is difficult to keep up with rapid and ever-changing laws and policies on migration. However, it is important to continue to reflect on the broader legal context that these developments are situated within, especially the human rights framework that will be crucial in providing some level of protection. This protection, though, is far from robust and subject to being increasingly undermined by other trends in the law.

The following blog post summarises some of the main themes of my new book, The Treatment of Immigrants in the European Court of Human Rights.

The Criminalisation of Immigration

The criminalisation of immigration has long been noted by scholars across Europe and beyond. The criminalisation of immigration – sometimes called ‘crimmigration’- refers to the increased entwining overlap of the criminal justice system and the immigration system. This entwining takes multiple different forms including the law. The legal framework surrounding immigration increasingly draws on the criminal law by creating a huge number of immigration offences. This includes the criminalisation of the most basic immigration offences such as irregular entry or stay which is widely criminalised in Europe with varying levels of seriousness (see the Country Profiles by the Global Detention Project). For example, the level of fine for such an offence can be relatively low such as in the Czech Republic and Estonia where maximum fines are below €1,000 whereas in countries such as Austria, Cyprus, Italy and the UK maximum fines exceed €4,000. Most European states, including the UK, Sweden, Norway, the Netherlands, Ireland, Germany, France, Finland and Denmark, set the maximum prison term for these types of crime at between six months to one year. In practice though some states such as Germany and Finland rarely use imprisonment whereas in others such as Bulgaria and the Czech Republic there is evidence of extensive inappropriate use of imprisonment against asylum seekers.

Criminalisation is not confined to migrants themselves but also affects those who facilitate their irregular entry and stay. Article 1(1)(a -b) of the EU Facilitation Directive requires Member States to create appropriate sanctions for those who deliberately assist irregular entry to or stay in a Member State with Article 1(1)(b) requiring the imposition of sanction on anyone who does so for financial gain. The aim of these measures was, at least in part, to tackle organised crime. Article (1)(2) of the Facilitation Directive does allows Member States to provide exceptions for those who provide such assistance for humanitarian reasons but it does not require them to do so. Thus, there are varying standards across Europe as to when the facilitation of entry or stay is a punishable offence with some countries allowing for broad criminalisation including situations of humanitarian assistance. The prosecution of individuals providing help such as Lisbeth Zornig Andersen in Denmark, the criminalisation of rescue where those who aid migrant boats in distress as sea have faced criminal charges and extensive criminalisation of NGO organisations providing asylum and humanitarian assistance have all been incredibly controversial. Many states have also gone further and criminalised other interactions with migrants such as the letting of accommodation to those with irregular status.

Immigration and criminal law have become further entwined by the increased use of immigration measures as a consequence of criminal conviction. Although public security has long been a ground for deportation in many European countries, its use in recent years have become increasingly punitive and severe. Over the last twenty years states such as the UK, Denmark and Germany have all passed laws that make deportation an automatic result of many criminal convictions and the UK and Norway now have separate prisons to hold foreign national prisoners.

There has also been a significant increase in the immigration detention estate across the EU with varying types and uses as explored by Elspeth Guild in her ‘Typology of different types of centres in Europe’ for the European Parliament. There has also been a huge increase in surveillance of migration. The EU has created a ‘plethora of systems’ regarding border control including the EURODAC database which holds migrant fingerprint data, the Visa Information System (VIS) which stores the biometric information on all third country nationals who apply for a visa in the Schengen area and Eurosur which is a surveillance system which uses drones, sensors and satellites to track irregular immigration. The use of fingerprint and other surveillance technology in immigration control in and of itself has connotations with the criminal law but this is further compounded by Europol (European Police Office) and national law enforcement agencies being given access to some of this data.

The Problem of Undercriminalisation

There are thousands of other elements to the criminalisation of immigration trend, not least the rhetoric surrounding migration in many European states, but there is a possibility that focusing too much on criminalisation is actually a bit of red herring. The complex powers and systems in immigration law and policy mean that much of the stigma and severity of the criminal law is being endured by migrants but often without the concurrent procedural safeguards that the criminal law provides. The problem for immigrants may be then conceptualized as a problem of ‘undercriminalisation.’ Ashworth and Zedner offer a clear definition of this practice: “undercriminalisation can be said to occur when the state sets out to provide for the exercise of police power against citizens in alternative (non-criminal) channels which are subject only to lesser protections inadequate to constraining an exercise of power of the nature and magnitude involved… undercriminalisation occurs where the failure to designate a preventative measure as criminal deprives the citizen of what is due to her, in view of the substance of the restrictions on liberty and possible sanctions involved in the ostensibly preventative measure.”

Thus, in a perverse way, immigrants might be better off if the whole system was being criminalised as they’d benefit from far more procedural safeguards and judicial oversight than they do now. It is also possible that this is not simply ‘undercriminalisation’ but the beginnings of a two-tier system in both criminal justice and human rights. The intersection of these two can already been seen in the UK government’s proposed Bill of Rights Bill which seeks to severely limit certain human rights for migrants, particularly foreign national offenders.

The ECtHR and Migration

In order to appreciate the risk of this two-tier system, it is important to understand how the European Court of Human Rights has responded to the increasingly harsh immigration system and where there are significant gaps in protection. For example, the lack of a proper necessity and proportionality test when considering the arbitrariness of immigration detention means it has the lowest level of protection of any form of detention and as Professor Costello put it: has been left “in its own silo.” Likewise the failure of the Court to apply the right to a fair trial contained in Article 6 to immigration decisions has barely been discussed by academics and advocacy organisations despite the fact that this is an incredibly powerful and fundamental right that would serve as a crucial check on state power. The fact that immigration decisions and detention are becoming increasingly bound up with the criminal law means that we should be especially careful to scrutinise the legal approach to such issues, with many criminological and sociological scholars challenging the long-held legal conception of immigration measures as non-punitive.

Finally, it is important to continuous reflect on the fact that the criminalisation phenomenon is part of a wider trend of very harsh immigration regimes in Europe and the two are often related. The criminalisation phenomenon may increase the harshness with which immigrants are dealt with and exacerbate existing issues, but it is not always the root problem in the failure of the Court to protect migrants fully.  As already demonstrated in depth by others such as Professor Costello and Professor Dembour, there are significant issues with how the European Court of Human Rights approaches migrants’ rights and that to truly understand the treatment of immigrants in Europe, the criminalisation of immigration framework may be insufficient. This is a trend that must be subject to rigorous scrutiny. Beyond the clear moral issues with having a two-tier human rights and criminal justice system, the Court’s approach poses other dangers. The general failure of the Court to engage in proper scrutiny of state immigration power and policies means that it may allow racial discrimination to go unchecked. The approach of the Court to immigration matters may also seep into other areas of its case-law and mean a general erosion of rights for everyone, immigrants and citizens.

 

 

 

Creating procedural obligations under EU law: a way forward to enhanced protection of fundamental rights in the field of migration?

 

Opinion of AG de la Tour in Joined Cases C, B (C‑704/20) and X (C‑39/21)

Alicja Słowik, Assistante de recherché, Centre d’études juridiques européennes (CEJE), Université de Genève

Photo credit: Abouttt, via Wikimedia commons

 

Striking a fair balance between the principle of national procedural autonomy and the necessity to guarantee effective judicial protection of rights derived from EU law has never been an easy task for the European Court of Justice (‘the ECJ’/’the Court’). Yet, the task becomes particularly complex when what is at stake is effective judicial protection of rights of fundamental nature.  How could the concern for protection of EU fundamental rights affect the application of national procedural rules? Can national rules limit the power of the judge to assess the lawfulness of detention of foreign national or would such a limitation lead to serious encroachment on the fundamental right to liberty? The recent Opinion of AG Jean Richard de la Tour in the Joined cases Staatssecretaris van Justitie en Veiligheid v. C, B (C‑704/20, ‘Case C, B’) and X v. Staatssecretaris van Justitie en Veiligheid (C‑39/21, ‘Case X’) concerning the issue of ex officio review of detention measures provides for precious insights on the possible answers to these questions.

 

Legislative background and facts of the Joined cases

The two Joined cases at hand concern the scope of powers of national judges to examine the lawfulness of detention of third country nationals. In EU law, such a detention may be exceptionally imposed with regard to asylum seekers or migrants staying illegally on the EU territory. Articles 15 to 17 of the Return Directive, 8 to 11 of the Reception Conditions Directive and Article 28 of Dublin III Regulation provide for legal basis and conditions pertaining to detention. It is thus by reference to these provisions that the judge examines the lawfulness of detention of third country nationals (‘TCNs’).

In the Netherlands, detention of foreign nationals is governed by administrative procedural law which does not allow national courts to examine the conditions of the lawfulness of detention of their own motion (ex officio). This means that it is impossible for a national judge to review detention measure on the grounds other than those relied on by the foreign national during the proceedings. Moreover, the judge cannot release the detainee even after having found that the detention is unlawful on grounds different than those put forward by the person concerned. The preliminary questions addressed by two Dutch jurisdictions: the Council at State (Raad van State) and the District Court in the Hague (Rechtbank Den Haag) related to the problem of compatibility of Dutch legislation with EU law, especially, with the right to an effective remedy and right to liberty.

The first case, C and B, concerned detention measures imposed with regard to two TCNs. The first individual concerned was put in detention for the purpose of determining the elements necessary for the examination of his application for international protection. The second applicant was placed in detention with the aim of securing his transfer to Italy in accordance with Dublin III Regulation. Both contested the detention orders before the District Court which ordered their release on the ground relating to the non-respect of the obligation of due diligence. Importantly, the argument concerning the non-respect of due diligence obligation was not raised by the detainees during the proceedings.

The Secretary of State brought an appeal against the judgements ordering the release of two foreign nationals before the Council of State. The two TCNs argued that, by virtue of EU law, the national jurisdictions had a duty to examine the lawfulness of detention measure of its own motion. Yet, as explained above, such an ex officio review of detention was impossible to perform under the Dutch legislation. In these circumstances, the Council of State decided to ask the ECJ for clarifications on the interpretation of Article 15, paragraph 2, of Return Directive and Article 9 of the Reception Conditions Directive in light of Article 6 of the Charter of Fundamental Rights of the EU (‘the Charter’) which guarantees the right to liberty.

The second case, X, concerned the application of the Return Directive. A TCN had been put in detention on grounds relating to the maintenance of public order. The applicant challenged the decision on the continuation of detention before the District Court. The judge again had doubts on the compatibility of Dutch legislation prohibiting the ex officio review of detention with EU law.

 

Opinion of the Advocate General

At the very beginning of the Opinion, the AG noticed that the role of the judge does not differ much depending on whether he assesses the lawfulness of the detention order or of the order on the continuation of detention (§68). Further, relevant provisions of Return Directive, Reception Conditions Directive and Dublin III Regulation embody the same key principles concerning the power of the judge called upon to assess the lawfulness of detention (§68). For this reason, it was possible to jointly examine the compatibility of Dutch legislation with regard to all these three instruments.

Subsequently, the AG presented briefly a set common rules concerning the judicial control of detention orders. He recalled in particular that detention of the TCN ordered by an administrative or judicial authority shall be subject to judicial review (§70). The requirement of judicial control serves primarily to protect the TCN against arbitrary deprivation of liberty (§72). Nonetheless, the rules concerning the extent of judicial control have not been harmonised so far at the EU level. The modalities of such a control are therefore covered by the principle national procedural autonomy of Member States (§73). The national legislation determining the extent of judicial control must nonetheless comply with the principles of effectiveness and equivalence. (§75).

Focusing on the assessment of  compatibility of national rule with the principle of effectiveness the AG briefly referred to the so called ‘procedural rule of reason test’ . According to this test, while examining the question of whether national procedural rule renders the application of EU law ‘impossible’ or ‘excessively difficult’, the judge must take account of ‘the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies’ (see eg. XC and Others, C‑234/17, §49). In that context, must be considered, in particular, ‘the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure’ (XC and Others, C‑234/17, §49)

Yet, this test was not of particular relevance in the cases at hand, as the AG indicated that the ‘effectiveness requirement’ would not be satisfied if a procedural rule at stake was incompatible with the right to an effective judicial protection enshrined in Article 47 of the Charter (§78). The central problem in the Joined cases boiled down to the question of whether a national rule prohibiting ex officio assessment of conditions pertaining to detention infringed the right to an effective judicial protection.

The Court has ruled on different occasions that the principle of effectiveness ‘does not preclude a national provision which prevents national courts from raising of their own motion an issue as to whether the provisions of Community law have been infringed, where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves’ (Van Schijndel, C-430/93 and C-431/93,§22). Yet, none of the so-far examined situations on ex-officio application of EU law has dealt directly with protection of the right to liberty guaranteed by Article 6 of the Charter (§80).

Relying on Mahdi case (C-146/14 PPU), the AG recalled that the Court assessing the lawfulness of the detention measures ‘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’ (Mahdi, §62). He then drew attention to the paramount importance of the right to judicial protection in guaranteeing respect of the right to liberty (§86). Detention ordered on the basis of Return Directive, Reception Conditions Directive or Dublin III Regulation must respect the principle of proportionality and fundamental rights of the individuals concerned (§87).   

Plunging into the analysis of possible infringements on fundamental rights, the AG observed that the limitation on the scope of judicial control of detention measures constitutes a restriction of fundamental right to a remedy which shall be examined under Article 52 of the Charter. He underlined that the very essence of the right to effective judicial protection as well as protection against arbitrary detention would be infringed if the judge could not release a person detained even after having come to conclusion that detention was illegal (§91).

The impossibility for a judge to examine all relevant issues concerning the lawfulness of detention, may result in person being detained in situation where the conditions pertaining to detention are not (or are no longer) met (§92). This is inadmissible given that Article 15, paragraph 2, of the Return Directive and Article 9, paragraph 3, of the Reception Conditions Directive state clearly that when the detention is unlawful, the person concerned shall be released immediately. The release shall be thus an immediate consequence of finding that detention is illegal (§92).

The AG insisted again on the importance of the right to liberty and underlined that national procedural rules shall not allow doubts as to the lawfulness of detention to persist (§95). In a nutshell, the jurisdiction called upon to assess the lawfulness of detention order must control respect of general and abstract rules setting the conditions and modalities of detention. The limitation on the possibility for a judge to examine the issues and arguments which were not raised by the parties does not respect the principle of effectiveness. The Dutch legislation is incompatible with Article 15 of the Return Directive, Article 9 of the Reception Conditions Directive and Article 28 of the Dublin III Regulation read in conjunction with Articles 6 and 47 of the Charter.

 

Comments

The Opinion of AG de la Tour deserves attention for several reasons. Most importantly, the Joined cases would be the first occasion for the Court to directly adjudicate upon the question of an obligation to apply EU law ex officio in the context of detention of TCNs. Should the Grand Chamber follow the solution proposed by the AG, the judgement will be another example of the increasing influence of EU law on shaping national procedural rules in the field of migration (I). Furthermore, the Opinion sheds more light on the potential of EU fundamental rights to play a key role in setting limits of national procedural autonomy (II). 

 

Obligation of ex officio review of detention: a sign of ‘progressive revolution’ in the ECJ’s approach towards national procedural rules?  

The AG underscored the unprecedented nature of the subject-matter in the cases at hand.  This will be the first time when the Court will rule on the obligation of ex officio application of EU law in the context involving the application of the fundamental right to liberty (§1 and §80). As mentioned above, the Court has already stated that, in principle, national courts do not have obligation to raise points of EU law of their own motion. There are some exceptions to this rule, for instance in the field of consumer law (see eg. case Mostaza Claro, C-168/05). The AG proposed that in the situations concerning fundamental right to liberty the judge must proceed to assessment of all conditions pertaining to detention of his own motion, establishing thus a new exception to the rule on the lack of obligation to apply EU law ex officio. Importantly, the AG referred to obligation rather than a simple possibility for a national judge to review the lawfulness of detention on the grounds different from those relied on by the parties. In this regard, he opted for a more intrusive interference with the national procedural rules.

The creation of positive obligations and direct intervention into national procedures are a fairly rare phenomenon in the ECJ’s case law which has nonetheless become more visible in the recent years, at least as far as the field of migration and asylum law is concerned. Suffice it to mention for instance Országos (C‑924/19 PPU and C‑925/19 PPU) case in which Court stated that the national judge had to declare himself competent to examine detention measures decided by administrative body even though he did not have such a power under national law. In that judgement, the right to fundamental remedy enshrined in Article 47 of the Charter as well as in the relevant provisions of secondary law (Article 15 of Return Directive and Article 9 of Reception Conditions Directive 2013/33) played an eminent role in the Court’s reasoning.

Importantly, the developments regarding the significance of the right to an effective remedy in protection of procedural rights of migrants are not confined to the cases dealing with detention: they are also present in other areas of EU migration law. In a relatively recent case H. A. v État belge (C‑194/19)  concerning the scope of the right to a judicial remedy as guaranteed under Dublin III Regulation, the Court ruled that, when examining the lawfulness of transfer decision, the national judge shall be able to take due account of circumstances subsequent to the adoption of that decision. These findings were similarly the fruit of generous interpretation of the right to an effective remedy and a limited application of the doctrine of national procedural autonomy. Earlier, in the context involving the application of the Visa Code, building on the potential of Article 47 of the Charter, the Court interpreted the provision on the right to bring appeal against the refusal of visa (Article 32(3)) as requiring the establishment of judicial (and not solely administrative) remedy (El Hassani, C‑403/16). On several occasions, Article 47 of the Charter has thus served as a tool for unearthing the ‘creationist’ side of the principle of effective judicial protection which allows the Court to readjust or directly establish new remedies for the protection of rights guaranteed by EU law.

Given that, in the past, the Court directly conferred to national judges’ power to review the legality of detention (Országos), the imposition of duty to raise the point of EU law of their own motion would not constitute a revolutionary move in the Court’s case law on national procedural rules. Yet, cumulatively, case law on procedural rights and obligations is a significant step forward for enhanced protection of fundamental rights which may lead to renewal of the Court’s approach towards the doctrine of national procedural autonomy.

 

Concern for protection of fundamental rights as a key rationale for further limitation of national procedural autonomy in EU migration law

The principle of national procedural autonomy has traditionally been subject to requirements resulting from the principles of equivalence and effectiveness, subsequently complemented by the principle of effective judicial protection currently enshrined in Article 47 of the Charter. It has been argued that analysis focused on the respect of Article 47 of the Charter had a vocation to replace the ‘traditional test’ of effectiveness. The present opinion does not provide much clarification on the blurred relationship between effectiveness and effective judicial protection. The principle of national procedural autonomy, effectiveness and the ‘procedural rule of reason test’ are the starting point of the AG’s examination of compatibility of national legislation with EU law. Yet, very quickly the focus shifts towards the assessment of the effects the said legislation may have on the protection of fundamental right to liberty and right to a judicial remedy. All in all, fundamental rights-based analysis trumps the ‘procedural rule of reason test’. Whereas Article 47 constitutes a natural benchmark for assessing the compatibility of national procedural rules with EU law, the extensive reliance on the fundamental right to liberty in the AG’s reasoning illustrates a new trend in the field.

At the very beginning of his Opinion, AG de la Tour underlined that the importance of the right to liberty and the essential role of judges in protection of the latter justify a certain distrust (‘une certaine méfiance’) towards national procedural rules limiting the powers of judges (§1). The reasoning of the AG conspicuously marked by the concern for protection of the fundamental right to liberty (see in particular §86 and following).

On many occasions the AG refers to Article 6 of the Charter and to the provisions of secondary law concerning the detention conditions. The intrinsic links between the effective access to judge and adequate protection against arbitrary detention underlie a more demanding approach towards national procedural rules. The prominent role of the right to remedy in the protection of fundamental right to liberty justified the creation of obligation for national judge to examine the respect of all detention conditions of his own motion.

The Opinion illustrates that the concern for protection of fundamental rights may significantly affect the process of drawing the boundaries of national procedural autonomy. Presumably, in the future, the Court will leave less margin of manoeuvre for the application of national procedural rules in situations where the protection of EU fundamental rights is at stake. Such a stricter approach towards national rules could have been observed in previous case law. In the aforementioned cases Mahdi and Országos, the extension of powers of national judges served primarily as a mean of protection of fundamental right to an effective remedy and right to liberty. In those two cases however, the Court relied mostly on the sources of secondary law, making only minor references to Article 6 of the Charter. By contrast, the latter provision, together with Article 47 of the Charter constituted the very basis of the AG’s analysis. The Opinion confirms that the limitation of constantly shrinking area of national procedural autonomy may result not solely from the large scope Article 47 of the Charter but also, the necessity to protect substantive fundamental rights such as the right to liberty.

Finally, it is worth noting that, as the Council of State accurately pointed out (§39), ex officio examination of the conditions of lawfulness of detention has not been so far imposed by the European Court of Human Rights (‘ECtHR’). Assuming that the Court will follow the solution proposed by the AG, the standard of protection of fundamental right to liberty and right to an effective remedy under EU legal framework will be arguably higher than the one guaranteed within the system of the European Convention of Human Rights. In this regard, the joined cases at hand have potential to become another example of judgement in which the CJEU did not hesitate to go further than the ECtHR in terms of protection of basic freedoms of migrants.

It will be interesting to observe whether the Grand Chamber’s judgement in C, B and X will be, alike the AG’s Opinion, centred around the concern for protection of fundamental rights and whether such an approach would result in a more thorough review of national procedural rules. Should the ECJ decide to impose a new duty to national judges, the judgement will confirm the tendency in recent case law on adjusting the application of national procedural rules for the sake of protecting the fundamental rights. Independently of the of the outcome of the judgement, the Opinion of AG de la Tour confirms that Article 47 of the Charter has already become as a powerful tool for boosting effective judicial protection, in particular in situations where it is relied upon for purposes of securing the respect of substantive fundamental rights. 

 

 

But What’s Detention After All? Strasbourg, Luxembourg and the Hungarian Transit Zones

 

Victor Davio,* PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels

That Europe has gone from one crisis to another over the past decade has become almost self-evident. Since the economic and financial crisis of 2008-2010, the European continent has been shaken not only by an identity crisis through the British departure, but also by a rule of law crisis and an unprecedented sanitary crisis. Most of these crises have called for drastic measures on the part of governments to address these unexpected situations, frequently putting fundamental rights under severe strain.

The migration crisis is a case in point. In response to the influx of asylum-seekers into Europe in the mid-2010s, the EU institutions and the Member States introduced highly questionable measures. If the EU-Turkey deal might be a telling example, another that has recently been in the spotlight is that of the so-called ‘transit zones’ in Hungary. In the last two years, the European Court of Human Rights (‘ECtHR’) and the Court of Justice of the European Union (‘CJEU’) have rendered several groundbreaking judgments on this issue.

At first glance, it is perhaps not surprising that both courts have had to deal with this highly sensitive question. Depicted as a crowded house, the European fundamental rights architecture is characterised by the coexistence of several layers of norms and institutions that protect fundamental rights. In recent years, EU law has become a prominent source of fundamental rights. Since 2000 for instance, the EU has its own Bill of Rights, the Charter of Fundamental Rights (‘Charter’). This has inevitably led to an intensification of fundamental rights litigation before the EU courts and an ever-growing overlap with Strasbourg. 

More striking in the judicial saga surrounding the Hungarian transit zones is that, for once, the EU legal order seems to offer a higher level of protection of fundamental rights than the ECHR system. As will be discussed below, this appears to be the case in particular with regard to the concept of detention, a major component of the right to security and liberty protected by Article 5 of the ECHR and Article 6 of the Charter. This may seem somewhat unexpected. Traditionally, the EU legal order has lagged behind the ECHR system as regards the protection of fundamental rights and has often sought to accommodate its specificities, such as the principle of mutual trust.

The aim of this short contribution is twofold. Firstly, I will highlight the differences in the interpretation of the concept of detention between Strasbourg and Luxembourg in their case-law on the Hungarian transit zones. Secondly, I will take this judicial saga as an invitation to reflect on the interactions between the ECHR and the EU in light of the growing role of the latter in the field of fundamental rights.

The Start of the Journey: From Hungary to Strasbourg

Our legal journey starts in Hungary in 2015. Amidst the rise of asylum applications in Europe, Hungary adopted a series of measures to limit drastically migrants’ access to its territory. One of these measures consisted of the establishment of transit zones. Located on the southern border between Hungary and Serbia, these no-man’s-lands were not only the place where asylum-seekers had to apply for asylum but also where they were accommodated during their asylum application. The living conditions in these areas were spartan, to say the least. The largest transit zone, Röszke, was reported to be ‘a compound with mobile containers and a narrow open-air area surrounded by approximately four-metre high fencing with barbed wire on the top. The entire zone was guarded by police officers and armed security guards.’ (ECtHR(GC) Ilias and Ahmed, §15)

It was not long before the legality of stay in these transit zones was contested before the ECtHR in the Ilias and Ahmed v. Hungary case. Ilias and Ahmed, two Bangladeshi nationals, arrived in Hungary from Serbia and entered the Röszke transit zone. On the day of their arrival, their asylum requests were rejected as being inadmissible since Serbia was deemed to be a safe third country. Following an appeal against these decisions, they spent 23 days in the transit zone while the procedure was underway. The rejections were upheld on appeal and the applicants were then escorted out of the transit zone. One of the most significant legal issues was whether the stay of asylum-seekers in the transit zone was to be considered as ‘detention’ under Article 5 of the ECHR, thereby triggering a series of important procedural guarantees.

While the Chamber of the European Court of Human Rights found this to be the case, the Grand Chamber of the Court, in a landmark judgment of 21 November 2019, held that Article 5 of the ECHR was not applicable since the applicants could not be deemed in detention. To reach this conclusion, the Grand Chamber gave special emphasis to the following elements:

-          The applicants entered the Röszke transit zone of their own initiative, with the aim of seeking asylum in Hungary (ECtHR(GC) Ilias and Ahmed, §220);

-          The duration of the stay, namely 23 days, was not unreasonable for the purpose of examining the asylum applications (ECtHR(GC) Ilias and Ahmed, §226-227);

-          The applicants had a concrete and effective possibility to leave the transit zone and go to Serbia (ECtHR(GC) Ilias and Ahmed, §237).

This part of the judgment was fiercely criticised. Not only is it difficult to grasp how one may consider that migrants chose to come to Hungary or that they were free to leave, but the ruling is also hardly reconcilable with the previous case-law of Strasbourg. In particular, in its well-known Amuur v. France (1996) judgment on stay in airport transit zones, the ECtHR held that: ‘The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including one’s own’ (ECtHR Amuur v. France, §48).

The Bumpy Road: From Strasbourg to Luxembourg

Shortly afterwards, the legal journey resumed and arrived in Luxembourg in 2020 in the Országos case. The facts were fairly similar to those in the Ilias and Ahmed case. In late 2018 and early 2019, two Iranian and two Afghan nationals arrived in Hungary from Serbia and submitted applications for asylum from the Röszke transit zone. All four applications were rejected as inadmissible and return decisions to Serbia were adopted. However, Serbia refused the readmission of these persons, which led the Hungarian authorities to change the country of destination mentioned in the original return decisions to the country of origin of the persons. Subsequently, the four persons brought an action before a Hungarian court where they argued among other things that their stay in the Röszke transit zone constituted unlawful detention. The Hungarian court referred several preliminary questions to the CJEU, including one on the concept of detention.

In this respect, both the CJEU, sitting in Grand Chamber, and the Advocate General Pikamaë depart from the ECtHR approach in the Ilias and Ahmed case. The CJEU does so implicitly: it mentions the Strasbourg judgment (CJEU Országos, §71) but does not take into account the interpretation of Article 5 of the ECHR proposed in it. The AG is more explicit and states, for instance, that: ‘The Court can therefore leave aside the case-law of the [ECtHR] and examine the questions referred in the light of the Charter, provided its interpretation of the rights (…) leads to a higher level of protection than that guaranteed by the ECHR. I invite the Court to take that approach in the present case.’ (AG Országos, §150-151)

In a nutshell, the CJEU defines the concept of detention, both within the meaning of the Receptions Conditions Directive and the Return Directive, as a ‘coercive measure that deprives [the] applicant of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter’ (CJEU Országos, §223). The obligation imposed on a third-country national to remain permanently in a transit zone with a restricted and closed perimeter, within which the movements of that national are limited and controlled, and which he or she cannot legally leave voluntarily meets this definition (CJEU Országos, §231).

 

The CJEU expressly rejects the idea that the applicants were free to leave the Röszke transit zone to go to Serbia (CJEU Országos, §228-231). In this regard, the CJEU relies on two arguments, namely that any entry of these applicants into Serbia would be considered illegal (CJEU Országos, §229), and that, if they had left Hungarian territory, they would have risked losing any chance of obtaining refugee status in Hungary (CJEU Országos, §230). This is in stark contrast to the approach of Strasbourg which acknowledges these two elements but considers them not to be decisive (ECtHR(GC) Ilias and Ahmed, §238 and §247).

The consequences of characterising the stay in the Hungarian transit zones as detention are not minor. From that moment onwards, the numerous guarantees regarding detention, provided for in particular in the above-mentioned directives, are applicable. In the Országos case, the CJEU judged, for instance, that the Receptions Conditions Directive precludes an applicant for international protection from being detained on the sole ground that he or she is unable to provide for his or her needs (CJEU Országos, §256).

The Next Journey: Back to Strasbourg?

A few days after the Országos case on 21 May 2020, Hungary decided to dismantle its transit zones. More recently, the CJEU has reiterated its reasoning on the concept of detention in the Commission v. Hungary (C-808/18) case. Taken together, the overall picture is that of a happy ending. Yet, one may be a little sceptical about this conclusion. In particular, it can be argued that significant risks may arise from the discrepancies between Strasbourg and Luxembourg case-law. Not only may these rulings create conflicting signals for national judges who are bound to apply both EU law and the ECHR, but they can also serve as a ‘false excuse’ for recalcitrant States to refuse to comply with the judicial decision unfavourable to them, arguing that they respect the other one.

While the issue of diverging fundamental rights standards is by far not new in Europe, the specific feature of the transit zones judicial saga is that EU law seems to offer a higher level of protection than the ECHR system. This phenomenon is likely to increase in the future given the proactive stance of the EU legislator in the field of fundamental rights. Although the EU does not have a general competence dedicated to fundamental rights, the EU legislator has increasingly developed fundamental rights standards in areas ranging from criminal law to data protection. The recent Whistleblower Directive is one example among many.

 

How should Strasbourg (re)act in such a situation? The most logical way might be to align itself with the CJEU case-law, which would allow for a process of mutual enrichment between the two legal orders. The ECtHR has already taken this path. For instance, in its landmark Bayatyan v. Armenia (2011) case, it referred to several instruments, including Article 9 of the Charter, to establish an emerging consensus on the right of conscientious objection to military service. Similarly, Article 49(1) of the Charter was the key factor in recognising the retroactivity of the more lenient criminal law under Article 7 of the ECHR in the Scoppola v. Italy (No. 2) (2009) case. Yet, despite its power of attraction, the incorporation of EU fundamental rights standards into the Strasbourg case-law is not an obvious process. In particular, the reception of these standards entails the risk of marginalisation of the non-EU Council of Europe States. If EU standards were to be incorporated systematically into the definition of the ECHR rights, these States would be bound by EU standards without having been able to participate in the deliberative process, which points to a clear danger of majority hegemony. This is all the more so given that the value of EU fundamental rights standards as an indicator of consensus at pan-European level is not limitless. By way of illustration, it suffices to recall that the Charter binds the EU Member States only when they are implementing Union law (Article 51(1) of the Charter).

An avenue that could be used as a way out in the event of such a conflict is Article 53 of the ECHR, which reads as follows: ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.’ In light of the proliferation of EU fundamental rights standards, there is nothing to prevent national judges from considering EU law as one of the sources that can go further than the ECHR within the meaning of this provision. Although this could lead to the development of a ‘differentiated Europe’ of fundamental rights where the EU and non-EU Council of Europe States abide by different rules, relying on this provision would ensure that one of the foundational principles of the ECHR system is respected, namely the principle of subsidiarity. The latter entails not only that the Council of Europe States have the primary responsibility to guarantee the ECHR rights, but also that they enjoy a certain discretion to regulate and restrict these rights according to their national preferences. Given the high sensitivity of fundamental rights, it may sometimes be preferable for the EU and non-EU Council of Europe States to move at different speeds.

 

[*] I would like to thank Prof. Elise Muir, Cécilia Rizcallah, Gérald Fierens and Alicja Slowik for their insightful comments. This blog post is part of the RESHUFFLE research project, supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621).

 

JHA4: chapter I:6

Barnard & Peers: chapter 26

Photo credit: Rebecca Harms, via Wikimedia Commons

Photographer: Bence Jardany

 

 

 

 

 

Pilate washing his hands. The CJEU on pre-trial detention

By Adriano Martufi (Assistant Professor, Leiden University) and Christina Peristeridou (Assistant Professor, Maastricht University)

Introduction

The very recent ruling of the CJEU in DK (C-653/19 PPU, 28 November 2019) came to verify two quite depressing suspicions about the current status of European criminal law. First, Directive 2016/343 on the presumption of innocence remains an instrument with staggeringly limited applicability especially in the field of pre-trial detention. Second, pre-trial detention stands as a political and legal hot potato: neither the CJEU nor the EU legislator are eager to provide common standards on pre-trial detention, even if the lack of these standards is partly to blame for problems of mutual trust between judicial authorities in the Member States.

The facts

In DK, the Bulgarian Specialised Criminal Court requested a preliminary ruling for the compatibility of the national code of criminal procedure with Article 6 of the Directive on the presumption of innocence, and Articles 6 (right to liberty) and 47 (fair trial and effective remedy) of the EU Charter of Fundamental Rights. In Bulgarian criminal procedure, when the case of an already detained suspect reaches trial, the trial court is responsible to deal with the detention, next to the merits of the case. Once the trial court finds the detention lawful, it becomes indefinite and can only be reviewed on application of the defendant; in such application the defendant must convince the court of changed circumstances that would justify release.

The Bulgarian court wonders whether this national rule shifts the onus from the prosecution to the defendant in providing evidence for release, thereby conflicting with Article 6 of the Directive on the burden of proof, which states that the burden of proof in proving guilt is for the prosecution. DK has been in custody since 11 June 2016 and has filed various applications for release to the trial courts (first and second instances). All of these were rejected since he failed to provide evidence of changed circumstances pointing towards release.

The ruling

The Court, ruling under the urgent procedure, delivered a short and to the point judgement where it found that Article 6 of the Directive on the presumption of innocence and Articles 6 and 47 of the Charter do not apply to the situation at hand (para 42). The syllogism is based on a collection of arguments from the wording of the Directive together with previous jurisprudence. First, the Directive only provides for minimum harmonisation and it does not lay down rules on pre-trial detention exhaustively. Indeed, in previous case law the Court verified that the examination of reasonable suspicion, the evidence used and the judicial reasoning in ordering pre-trial detention remain subject to national law (Milev). Second, a grammatical reading of Articles 4 and 6, and recitals 16 and 22 of the Directive reveals, according to the Court, an implicit distinction between judicial decisions on guilt and other procedural acts such as remand procedures. Following AG Pitruzzella’s Opinion, the argument is that, in contrast with Article 4 (public reference of guilt) which applies only to decisions of pre-trial nature, Article 6 (burden of proof) applies solely to decisions on guilt. Thus, the burden of proof must be borne by the prosecution only for judicial decisions pertaining to a finding of guilt, and not for other decisions of pre-trial nature. Third, since this case falls outside the realm of the Directive – and thus EU law – the Charter is not applicable (Article 51). Articles 6 and 47 of the Charter cannot be invoked ad hoc, as there is no application of EU law.

Commentary

The Court in DK confirms the European Union legislator’s view on the presumption of innocence being a thin, limited concept. The Directive on the presumption of innocence had little ambition, putting forward a minimalistic presumption. To this extent, DK has no transformative effect: there is no brave expansion of EU law with some sort of judicial activism. The Court upholds the status quo. Yet this mundane result does not sit well with the increasing discomfort of having judicial cooperation without common pre-trial detention standards. Given that the overuse of detention on remand has become increasingly problematic in numerous EU legal systems – even leading to exceptions to the once unyielding mutual trust in Aranyosi – one could hope that this Directive would form a stepping stone to regulate certain aspects of pre-trial detention.

After all, the ECtHR has repeatedly linked the presumption of innocence and pre-trial detention, as the latter may negatively affect the former. In the absence of legislative harmonisation, it would arguably fall to the CJEU to fill the ‘gaps’ of protection left by the EU legislator. DK could offer such opportunity: very recent ECtHR case law has taken aim at practices of shifting the burden of proof within remand proceedings similar to those seen in DK. It would have been quite easy for the CJEU to fall back to ECHR standards, which seemed tailored to the problem raised in DK. Yet the Court did not engage into a carpe diem moment. What is more, the arguments developed by the Luxembourg judges are far from flawless and deserve closer scrutiny.

Interpretation of the Directive

To begin with, the Court held that the situation in DK escapes the scope of the Directive in a simplified and incomplete manner. The Court draws the strength of its arguments from the grammatical reading of the Directive as provided by AG Pitruzzella. According to the latter, while some provisions of the Directive cover trial and pre-trial measures alike, others target exclusively trial measures. This is extracted from references made in Article 4 (public references to guilt) to all ‘judicial decisions’ other the one on guilt. An all-encompassing notion is surely not repeated by Article 6 (burden of proof) and the elucidations on this article provided by the preamble. This grammatical analysis, according to the AG and the Court, points to the conclusion that the two provisions are meant to apply to different stages of criminal process. It is indeed the case that Article 6 speaks of the ‘burden of proof for establishing the guilt’ of the suspect, and not of any burden of proof. Having said that, one could argue that if the legislator had made such distinction between pre-trial and trial stage pertinent for the applicability of these articles, it would have made that more explicit in the text.

In light of the above, it is perplexing that in the previous case of RH the Court dealt with the issue quite differently. There it provided a different reading of Article 6 of the Directive by stating that this provision broadly refers to ‘any obligation on the judge or the competent court to seek both elements of inculpatory and exculpatory evidence’ (para 56 in RH). In doing so, it established a conceptual connection between Articles 4 and 6 of the Directive, implying that Article 6 would be relevant for pre-trial detention. By contrast, the Court in DK tried to nuance this link, in an effort to rule out the relevance of Article 6 for pre-trial detention proceedings. This is however surprising as, in reality, the presumption of innocence does indeed apply to those proceedings under ECHR standards and under most, if not all, national legal systems.

Conclusively, even if the Court’s reading of the Directive is not prime facie implausible, the lack of any further argumentation against extending Article 6 to pre-trial detention leaves much to be desired. All in all, the AG’s Opinion offers a more complete and holistic account to support such a thin understanding of the presumption of innocence. The travaux preparatoires showed that the Commission had insisted on excluding pre-trial detention from this Directive all together (point 33 of Opinion). The Court's reading of the Directive would have appeared less legalistic and more convincing, had it explained its change of heart from RH by referring to the telos of the Directive as intended by the drafters.

The Charter

But the Court was also asked to interpret Articles 6 (right to liberty) and – surprisingly – 47 (effective remedy and fair trial) of the Charter. Based on the facts of the case, one would have expected the Bulgarian court to request the interpretation of Article 48 (presumption of innocence). It is not apparent why the right to an effective remedy (or generally to a fair trial) is relevant here, although one may argue that the shift of the burden of proof described above challenges the effectiveness of the remedy: being in custody, DK could not easily provide new circumstances to challenge his detention. Having said that, an (additional) argument including the presumption of innocence (Article 48 Charter) would have been stronger. This is confirmed by the Opinion, as AG Pitruzzella groups Articles 47 and 48 together although no reference to Article 48 was made by the referring court.

In spite of these inconsistencies, the Court’s way of dealing with the interpretation of the Charter is bizarrely introvert. With a few laconic sentences (para 40-41), it dismisses the national court's requests stating that the situation at hand did not fall under EU law (the Directive) and therefore the Charter's safeguards could not be consistently triggered. Relying on Article 51, the Court aseptically reiterates that the Charter comes into play only when national authorities are ‘implementing EU law’.

Yet, the Court has taken the view in the past that the Charter could be applicable not only when EU law is implemented, but also when a more tenuous connection exists. In our case, whereas pre-trial detention is not exhaustively regulated by the Directive, some parts are indeed affected (Article 4 prohibits references to guilt in pre-trial detention orders). Thus, a connection with EU law does exist, and there could be an argument in favour of using further the Charter following Åkeberg Fransson. Furthermore, the Charter has been used in the past to cover lacunas. In Aranyosi, while the EAW Framework Decision did not provide any ground for refusal on grounds of (potential) fundamental rights' violations, the Court used the Charter to fill up this lacuna and substantially created one.

In Aranyosi, the Court followed a more principled approach, even going against a literal or teleological interpretation of the legal instrument in question. Remarkably, this happened even though the Luxembourg judges were under huge pressure to uphold mutual trust and maintain the EAW procedure unaltered. Why didn’t the Court do the same in DK?

Notably, we are not the only ones to raise this question. AG Pitruzzella himself criticises heavily (and in a rather strong tone) the lack of common standards for pre-trial detention and urges the EU legislator to move forward with this subject (points 20-22). Quite interestingly, however, he concedes that he has ‘no choice’ but to conclude that the facts in DK fall outside Union law. Similar remarks were expressed by the Opinion in Milev, with AG Wathelet disagreeing strongly with the Commission’s view that the Directive did not include any substantial provisions for pre-trial detention (points 55-57).

Explanation of Court’s approach

So why didn’t the Court extend Article 6 application on the burden of proof to pre-trial detention, following an application of the Charter?

One plausible explanation is that the Charter is not automatically conducive to an expansion of the protective scope of this Directive. The Court has reiterated in Milev (para 47) and in DK that harmonisation is not exhaustive. In this sense, this Directive provides for a partial (and minimum) harmonisation as only certain aspects of the presumption of innocence are dealt with. Thus, in this case the Charter cannot expand the scope of the harmonisation more than the way the Directive already defines it. In constitutional terms, one could argue that the Court may have been wary to step beyond the red lines set by the principles of subsidiarity and conferral. Of course, the Luxembourg judges could easily shield themselves behind the inherent vagueness of the presumption of innocence. This is a notoriously elusive concept, poorly implemented in practice and theoretically divisive. Some national laws hardly go any further that a statement of principle and, despite sincere and sophisticated efforts, scholarship is deeply divided on its meaning. In this sense, the EU legislator was quite brave to consider touching upon it. In our view, the Directive would have enjoyed more success and less uncertainty, had the harmonisation of the presumption of innocence been complete.

A second explanation for not following a principled approach may derive from a general unwillingness to engage in judicial activism, especially in light of the delicate legal issue underlying the preliminary ruling. Pre-trial detention is a controversial topic, as the debate on its harmonisation at EU level clearly reveals. On multiple occasions, the EU has indicated that it may adopt minimum rules in these matters (Green Paper, EP Resolution), and yet so far the reaction by Member States has been lukewarm. Pre-trial detention is regarded as being incredibly diverse and therefore complicated to harmonise, so that EU legislator has chosen to focus on the less troubling alternative measures (with the so-called ESO Framework Decision).

Arguably, in the case at hand, the Court is reluctant to touch upon pre-trial detention given the strong opposition of both the Commission and the Council to include this within the scope of the Directive. But pre-trial detention does have a strong human component that is difficult to ignore: before excluding the situation at hand from Union law, AG Pitruzzella half-heartedly admits that the defendants in the domestic proceeding had as only option to bring their case before the ECtHR – a scenario which, as the AG himself recognises, may take years to materialise (point 21). This is a simple but powerful remark, shifting the perspective from the European courts, with their intricacies and conflicts, to the one of the defendant. The question – implicitly but ever so powerfully posed – is whether or not the time has come for the EU to address pre-trial detention as an EU matter.

A third explanation invites us to look at DK in the light of the prior case law concerning references issued by Bulgarian courts. Before DK, two more cases were raised by the same court, challenging the compatibility of domestic pre-trial detention regime with EU law. Both in Milev and in RH, the Bulgarian court requested clarification for the same national legislation and its relation to the Directive. As explained by AG Wathelet in Milev, the pre-trial detention regime had been amended due to ECtHR developments but the status quo divided the judges. In RH, the Bulgarian court even revealed some details of the internal judicial struggles amongst the Bulgarian Supreme Court and the lower courts: the former had ordered the latter not to wait for the response of the preliminary reference procedure, in order to rule on the pending status of the detention ‘within reasonable time’. Due to the defiance of the lower court, even disciplinary proceedings were launched. This occurrence was even put forward as a question to the CJEU regarding judicial independence (a rather fashionable topic these days), with regard to the power to prevent lower courts from waiting for the CJEU’s response in preliminary reference procedure. With this background in mind, we could see DK as a request for the CJEU to play the referee for a national debate. This may provide further leads to understand the Court's reluctance to rule on this topic.

But leaving aside the domestic quarrels between Bulgarian courts, the fact remains that a struggle is taking place in that country to uphold human rights standards and enhance their level of protection in criminal proceedings. It is only natural that the Directive on the presumption of innocence – especially in light of the wider interpretation given in RH – would be used by Bulgarian judges as a breeding ground to achieve that result. DK could in fact be the opportunity for the CJEU to exercise its role as ‘competence regulator’ – aiguilleur des compétences (point 21 Opinion). Referring to Vedel’s theory of constitutional control, AG Pitruzzella advised the Court to seize this opportunity and give an indication to the national authorities of the right path for reforming their national procedure on pre-trial detention. As has become apparent, the Court did not follow his advice.

DK might have the effect of discouraging national courts to follow up with more questions on the application of the Directive in relation to pre-trial detention. Yet it is a wonderful addition to previous case law, demonstrating that pre-trial detention is increasingly becoming a candidate for intervention by the EU; the question of harmonising pre-trial detention cannot be ignored much longer if national courts keep asking the CJEU to intervene.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:4
Art credit: Jan Lieven, via Wikicommons 

Prison Break? The CJEU rules on clashing EU and national law obligations on detention time limits

Joske Graat, PhD candidate, Utrecht University

If EU law provides for a longer period of detention of a person subject to a European Arrest Warrant, and national law provides for a shorter period, which prevails? If national law is vague about the issue, is that a violation of the ECHR (and therefore also the EU Charter of Fundamental Rights), which provides that detention needs to be ‘lawful’, and so relevant national laws must be precise?

In the recent TC judgment the Court of Justice of the European Union (CJEU) provided an answer to the preliminary question posed by the Amsterdam District Court in July 2018, which raised these issues. The preliminary ruling was supposed to aid in resolving the devilish dilemma in which the Amsterdam District Court and Amsterdam Court of Appeal currently find themselves. As described in an earlier contribution, these national courts are stuck between national rules and EU law obligations regarding detention pending surrender proceedings. Article 22 of the Dutch Surrender Act (SA) transposes Article 12 of the Framework Decision on the European Arrest Warrant (FDEAW) into an automatic and absolute obligation to release the requested person if no decision on the execution of the EAW is made after 90 days have passed.

In other words, the decision to extend the time to rule on the execution of an EAW after 90-days have lapsed needs to be accompanied by the decision to (provisionally) release the requested person. The application of this national rule became problematic after the Lanigan judgment wherein it was established that national judicial authorities are not obliged to provisionally release the requested person after 90 days as this may threaten the effectiveness of the FDEAW. To avoid a violation of the obligation in article 17 FDEAW, which requires that the substantive conditions for surrender are guaranteed at all times, both the Amsterdam District Court and the Amsterdam Court of Appeal adopted – on the basis of different legal reasonings – a broad interpretation of article 22 SA. They concluded that article 22 SA not only contains the power to extend the decision term after 90-days, but also includes the competence to suspend the 90-day term before it has lapsed. In case of the latter, the 90-day term is barred, which may result in a de facto detention duration beyond 90 days. In its request for a preliminary ruling the Amsterdam District Court asked whether this new interpretation violates legal certainty as protected by Article 6 Charter of Fundamental Rights of the European Union (CFR), which lays down the right to liberty, and which corresponds to Article 5 ECHR.

In its preliminary ruling the CJEU first determines that the FDEAW precludes the unconditional obligation to release after 90 days as it undermines the effectiveness of the FDEAW. As we will see, this determination plays an important role in relation to the second conclusion, which is that Article 22 SA and its current interpretation by the national courts does not constitute a sufficiently clear and predictable legal basis for continued detention after 90 days. In my view the legal reasoning underlying this conclusion gives rise to certain questions and does in the end not provide the necessary solution to the dilemma in which the national courts find themselves. 

The CJEU bases its violation of Article 6 CFR on two main arguments; the variation in the legal reasonings of the national courts that may result in different periods of continued detention and the fact that the current national case law does not ensure full conformity with the FDEAW.  With regard to the second argument it is, in my view, first of all interesting that the CJEU does not only consider the clarity and predictability of Article 22 SA, but of the relevant provisions in the FDEAW, as interpreted in Lanigan, as well. This gives rise to the question in what way the individual is concerned with the clarity of the rules in the FDEAW, as it is an instrument that imposes obligations on the member states, is not directly applicable and does not have direct effect? Does this mean that an individual should be able to understand the rules on the duration of detention as they follow from the FDEAW interpreted in the case law of the CJEU? Absent legal counsel this seems like an almost impossible task. 

Secondly, in the context of the second argument the CJEU concludes that ensuring clear and predictable rules on the duration of detention requires a broader application of the power to suspend the decision term by the national courts. The CJEU firmly reminds the national courts of their obligation to do all within their jurisdiction to interpret Article 22 SA in conformity with the FDEAW as explained in Lanigan. The current interpretation fails in this regard as it only allows for a suspension in three particular situations, including the referral or awaiting of a preliminary ruling and when the issuing state is requested to provide information contradicting a possible violation of article 4 or 47 CFR. However, when the preliminary ruling is made or information is provided by the issuing state the suspension is lifted, and the 90-days term once again applies. According to the CJEU, in order to ensure full conformity with the FDEAW, national law should allow for a suspension of the decision term in all cases in which a serious risk of absconding cannot be sufficiently limited by non-custodial measures.

An obligation to (provisionally) release only arises when after balancing the factors laid down in Lanigan continued detention becomes excessive. This message of the CJEU brings the national courts, in my opinion, back to square one. Despite the CJEU’s firm emphasis on the duty of conform interpretation (indirect effect) and the fact that a suspension of the decision terms is not prohibited by the FDEAW, it is still for the national courts to determine whether a conform interpretation is in fact possible. In this light, I would argue that interpreting Article 22 SA in full conformity with the FDEAW would clash with the intent of the Dutch legislator to establish an unconditional obligation to release after 90 days and would be contra legem. Suspending a decision means in common parlance ‘halting or stopping’ an ongoing term which has not yet lapsed, whereas extending means ‘adding’ time to a term which has already lapsed. Hence a fully conform interpretation of Article 22 SA would require a contra legem explanation of this provision, which would in itself not contribute to the protection of an individual’s legal certainty. In other words, the national courts are still stuck between EU obligations and national rules whose wording do not allow a conform interpretation. As the CJEU did not answer the question whether the primacy rule applies to the FDEAW as well, this preliminary ruling does not provide the necessary solution for the dilemma of the national courts. However, this may change when the CJEU answers this question in the Poplawski II case which is still pending (Opinion of the AG November 27, 2018).

It can be concluded that the CJEU seems to use the TC case to send a message of its own. Despite the clear fundamental rights angle of the initially referred question, the judgment is, in my view, predominantly a slap on the wrist of the Dutch legislator and the national courts for not ensuring full compatibility with EU law. In addition, the dilemma in which the national courts find themselves is not solved. This reaffirms the conclusion made in my previous contribution, which is that the Dutch legislator needs to step in to solve this situation as it is the only public authority with the necessary means to do so. To end on a more positive note, the strong focus on the incompatibility of national law with EU law might just be the necessary push for the Dutch legislator to come to the rescue of the national courts by adapting article 22 SA in conformity with the FDEAW.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: IBtimes.uk