Spain: Court of Instruction of Santa Cruz de Tenerife, 25th September 2020, Appeal No. 1722/2020
| Country of Decision: | Spain |
| Court name: | Court of Instruction of Santa Cruz de Tenerife |
| Date of decision: | 25-09-2020 |
| Citation: | Court of Instruction of Santa Cruz de Tenerife, Case 55/2020, of 25 September 2020. |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
The governmental authority is requesting an authorization to detain an immigrant after an alleged infraction of article 53 of the Organic Law 4/2000 in order to guarantee the enforcement of a possible return procedure. Following the procedures detailed in article 62 of said law, the Court assessed the particular circumstances of the case, including the risk of nonappearance and the possible existence of previous administrative sanctions of the subject, concluding that the lack of roots in the Spanish territory and the fact that he already filled in an asylum application show that the detention is not necessary in this case.
Facts:
The applicant arrived at Santa Cruz de Tenerife by boat and claimed asylum. Having informed the Public Prosecutor, the authorities brought the applicant before the Court following the legal procedures; the applicant was able to make a statement, assisted by a lawyer.
The Public Administration is now requesting authorization for his detention due to a commission of a serious offence contained in article 53 of the Organic Law 4/2000, in order to guarantee the application of the return procedure, whenever it can be executed.
Decision & reasoning:
According to the Organic Law 4/2000, the governmental authority can request from the Court of Instruction the preventive custody of a third-country national while a sanctioning file is being processed. In this context, the issuance of a decision of expulsion is not necessary.
The Judge ruled on the basis of the principle of proportionality and assessed the circumstances of the case, particularly the risk of non-appearance due to a lack of residence or identity, as well as the actions of the applicant aimed at hindering or avoiding expulsion. The existence of conviction or prior administrative sanctions, or other criminal or administrative proceedings was taken into account.
The Court assessed whether the preventive custody of the applicant is according to law, by examining the formal administrative requirements and the testimony of both the applicant and the public prosecutor. The Court contained that the fact that the applicant did not have any connecting link with the Spanish territory, any means of livelihood and had already claimed asylum were sufficient grounds to deny his preventive custody.
Outcome:
Request of preventive custody denied.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Aksoy v Turkey, Application No. 21987/93 |
| ECtHR - Mehemi v. France, no. 53470/99 |
| ECtHR - Ahmed v. Austria, Application No. 25964/94, 17 December 1996 |
Other sources:
Domestic Case Law cited
Judgment of the Constitutional Court n. 174/1999 (Section 2), of November 3, 1999 (appeal 1374/1999) – (Sentencia del Tribunal Constitucional n. 174/1999 (Sala 2ª), de 3 de noviembre de 1999 (recurso de amparo 1374/1999)).
Judgment of the Constitutional Court n. 179/2000 (Section 2), of June 26, 2000 (appeal 5317/1999) – (Sentencia del Tribunal Constitucional n. 179/2000 (Sala 2ª), de 26 de junio de 2000 (recurso de amparo 5317/1999)).