CJEU: AG Sharpston delivers her opinion on the state of a detention challenge subsequent to the detainee’s release (Case C‑704/17)

Thursday, January 31, 2019

On 31 January, Advocate General Eleanor Sharpston delivered her opinion on whether judicial proceedings challenging a detention decision must be discontinued if the person concerned is released.

The referral was submitted by the Supreme Administrative Court of the Czech Republic (SAC) and concerned the proceedings resulting from an applicant’s challenge against the decision to detain him, on the grounds that he had applied for asylum to avoid deportation. After the applicant was released and left the country, the authorities requested that the appeal proceedings be discontinued. The SAC then asked the Court of Justice of the European Union to rule on whether Article 9 of Directive 2013/33/EU and Articles 6 and 47 of the Charter of Fundamental Rights of the EU allowed for automatic discontinuance of proceedings in such cases.

The Advocate General first observed that, when national courts implement national legislation transposing an EU Directive, they are bound by the rights to liberty and effective judicial protection enshrined in Articles 6 and 47 of the Charter in the meaning and scope of their ECHR equivalents. In the light of the Charter’s provisions, neither Article 9 of the Directive nor its aim to discourage arbitrary interference with the right to liberty should be restrictively interpreted. Accordingly, the applicant should be able to seek a declaration from the court that an unlawful deprivation of liberty took place even after their release, something that has also been found to establish a claim to compensation by the European Court of Human Rights.

In examining on whether the same can be said for appellate proceedings too, the Advocate General emphasised the Directive’s aim to introduce high standards of protection and that of Article 9 to ensure fair and effective procedures for detainees. Therefore, automatic discontinuance upon release could have arbitrary effects by treating differently an ex-detainee from a person currently in detention and allowing non-competent authorities to halt judicial proceedings. Recent jurisprudence may have clarified that effective judicial protection does not guarantee access to multiple levels of judicial review, but once a second instance of review is provided in national legislation the authorities must respect the aforementioned provisions. To conclude otherwise would potentially render courts incapable of reviewing detention decisions and would violate the principle of effectiveness.

Consequently, in the Advocate’s opinion EU law precludes national legislation that automatically discontinues judicial proceedings against detention, once the applicant has been released.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 



Effective access to procedures
Effective remedy (right to)