Publication by a member of the Interest Group
by Sergio Mananashvili
In the Common Market Law Review, Sergio Mananashvili co-authored (with De Bruycker) an article on the right to be heard in immigration detention procedures and the consequences of the violation of this right in the light of Strasbourg and Luxembourg case-law. The authors critically examine recent decision of the ECJ in the G. and R. case in which the court decided that a failure to respect the rights of defence in a decision extending detention for the purpose of removal does not automatically bring about the lifting of the detention.
According to the Court, where the extension of adetention measure has been decided in an administrative procedure in breachof the right to be heard, a national judge may order the release only if theinfringement deprived the TCN concerned of the possibility of arguing hisdefence better, to the extent that the outcome of that administrative procedurecould have been different.
The authors wonder how this is possible in light of Article 41 of the EU Charter of Fundamental Rights.
You can access the article here.