Spain: Investigating Judge denies detention of migrants in light of CJEU C-36/20

Friday, September 25, 2020

A Spanish investigating judge (“Juzgado de Instrucción”) refused the detention of 31 asylum applicants. In the judgment AJI 55/2020, on the case of Mr. Ba, the judge applied the findings of C-36/20 Judgment VL v. Ministerio Fiscal. 

After migrants had arrived in boats, Spanish authorities had asked the investigating judge to detain them with a view on expulsion, and before a return order was issued.  She underlined that, when assessing the necessity of detention, all circumstances of the case must be taken into account and, in case the circumstances underlying a possible detention would cease to exist, the principle of proportionality would justify the release of a foreigner. Referring to, inter alia, Article 5 ECHR and Article 13 of the International Covenant on Civil and Political Rights, she reiterated that, in order for the deprivation of liberty to be in accordance with law, a number of guarantees should be respected and deprivation of liberty should be subject to judicial control. Finally, she noted that, the examination of the administrative file concerned and the hearing with Mr. Ba and the Minister Fiscal, made clear that the migrant applied for asylum.

Therefore, she did not authorize the placement of the migrant in a Detention Centre for Foreigners for a period of 60 days. In turn, applicants in all these cases were moved to an open center.

This item was reproduced with the permission of ECRE from the ELENA Weekly 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.