On 8 November 2022, the Court of Justice of the European Union gave a judgment in C, B and X (joined cases C-704/20 and C-39/21). The preliminary ruling concerned the decision to detain third-country nationals, including two asylum applicants. The referring courts sought clarification on the requirements imposed by EU law on the nature and obligations concerning judicial review of detention measures.
The Court addressed whether a judicial authority, in the context of its review of compliance with the conditions laid down by EU law for the lawfulness of the detention of a third-country national must examine of its own motion whether a condition of legality has been infringed, even if not been invoked by the person concerned. The CJEU noted that the detention of a third-country national constitutes a serious interference with the right to liberty under Article 6 of the Charter and thus requires a high level of judicial protection. Consequently, the power conferred on the competent national authorities to detain third-country nationals is strictly limited and detention may only be ordered or extended in compliance with the rules governing those conditions. Furthermore, the Court highlighted that Member States must ensure effective judicial protection of the rights of individuals safeguarded in Article 47 of the Charter. The common EU rules on judicial protection regarding detention are Article 15(2) of the Returns Directive 2008/115 and Article 9 of Reception Conditions Directive 2013/33 and Article 28(4) of Dublin III Regulation No 604/2013. These provisions oblige the Member States to ensure the lawfulness of detention, of its own motion or at the request of the person concerned and require a periodic review for the maintenance of the detention. Therefore, the Court held that common procedural rules in EU law were designed to enable the competent judicial authority to release the person concerned, where appropriate after an ex officio examination, as soon as it appears that the detention is not lawful.
For this system of protection to effectively ensure the strict conditions governing the lawfulness of the detention, the competent judicial authority must be able to rule on all the matters of fact and law relevant for the review of that lawfulness. To that end, it must be able to consider (but must not be limited to) the factual circumstances and evidence relied on by the administrative authority which ordered the initial detention, as well as any facts, evidence and observations submitted to it by the person concerned and, finally, it must also be able to identify any other factor relevant to its decision if necessary.
Following this reasoning, the Court of Justice of the EU concluded that in the context of the review of compliance with the conditions for the lawfulness of the detention of a third-country national under EU law, a judicial authority must examine ex officio the conditions of legality on the basis of the circumstances of the case brought to its attention, even if this information or the condition of legality infringed has not been raised by the individual concerned.