Netherlands - Council of State, 14 December 2012, 201208906/1/V3

Facts:

In a decision dated 20 July 2012, the duration of the detention measure imposed on the foreigner was extended to a maximum of twelve months. The appeal against this decision was dismissed. The foreigner appealed against this judgment to the Administrative Jurisdiction Division of the Council of State. The foreigner said that he should have been heard before the decision was made to extend his detention. As this did not happen, the principle of the rights of the defence, enshrined in EU law, had been breached.

Decision & reasoning:

The Council of State found the decision to extend the detention to be one that adversely affected the individual. As this decision was made under Article 59(6) of the Foreigners Act (2000), which transposes Article 15(5) and (6) of the Returns Directive, the principle of the rights of the defence, which is enshrined in EU law, applies to the preparation for this decision. The Sopropé judgment states that an administrative authority, before making a decision that will adversely affect a particular person, must offer that person the opportunity to submit observations on the matter. This is stipulated also in Article 4(8) of the General Administrative Law Act (AWB). Article 2(1) of the General Administrative Law Act furthermore enshrines the right of the person in question to be represented by a representative in his communications with an administrative authority. The principle of the rights of the defence enshrined in EU law obliges the state secretary, in such a case, simply to comply with Articles 4(8) and 2(1) of the General Administrative Law Act when arriving at an extension decision. The Council of State found that, in the departure interview, during which the foreigner was served with the extension decision, it was not explained expressly and clearly to him what facts and circumstances had formed the basis for the extension decision and what the legal consequences of that decision would be. The documents relating to the case also fail to show that this happened at any other time. Based on this, the foreigner claims rightly that, in part based on the importance of the extension decision, he has been afforded insufficient opportunity to express his views about it. Furthermore, it is not contested that the foreigner is represented by a representative, who is known to the state secretary. In these circumstances, the state secretary should also have told the representative of the intention to make the decision to extend the foreigner's detention, to afford the representative the opportunity to support the foreigner in his response to the decision to extend his detention. In this case, the principle of the rights of the defence has been therefore breached by the failure to apply Articles 4(8) and 2(1) of the General Administrative Law Act at all or correctly. The grounds of the appeal are sound, therefore, but it is the Council of State's view that this cannot result in the contested judgment being overturned, for the following reasons. The Council of State also found that it follows from the Sopropé judgment that, in the context of the principle of the rights of the defence, the run-up period to the decision that adversely affected the foreigner also has to be taken into account. As the Court of Justice of the European Union found in that case, if an inspection period lasts a number of months, on-the-spot checks are carried out, the person in question is heard, and their declarations are placed on file, it may be rightly assumed that the person knew the reasons why the inspection procedure was being carried out and the nature of the facts alleged against it. The decision to extend detention was also preceded by a protracted run-up period, as the decision was made when the foreigner had been detained for six months, during which time several meetings were held with him. Therefore, the foreigner can certainly be considered to have known why he was in detention and what was expected of him to limit the duration of the detention as far as possible. The reports drawn up on the basis of the various departure interviews held with the foreigner furthermore show that he knew that merely repeating that he did not want to return was not sufficient, that he had to return to his country of origin, that the travel documents required to this end had been requested from the relevant authorities, and that he was furthermore expected to make efforts to facilitate his return. It is also clear from the reports of these meetings that the foreigner was afforded sufficient opportunity, should he have so desired, to contact his representative to discuss any developments in his situation. In these circumstances, there are no grounds for finding that the foreigner was so disadvantaged by the deficiency identified in the decision-making process that overturning the extension decision would be justified.

Outcome:

The Council of State dismissed the appeal and upheld the contested judgment with amended grounds.

Observations/comments:

The Council of State, on 5 July 2013, referred the following questions for a preliminary ruling in case no. 201304861/1/T1/V3 and case no. 201305033/1/T1/V3:

‘(1)      Does infringement by the national administrative authority of the general principle of respect for the rights of the defence (Article 41 of the CFREU), in the course of (the preparation for) an extension decision within the meaning of Article 15(6) of Directive 2008/115/EC, automatically and in all cases mean that the detention must be lifted?

(2)      Does that general principle of respect for the rights of the defence leave scope for a weighing up of interests in which, in addition to the seriousness of the infringement of that principle and the interests of the foreigner adversely affected thereby, the interests of the Member State served by the extension of the detention measure are also taken into account?’

These questions were responded to by the Court of Justice of the European Union in a judgment dated 10 September 2013 in case C-383/13/PPU.