Ex-post control Unlawful detention pending deportation A foreigner was arrested during a police search. Instead of allowing her to return to Germany, the Federal Police (now: Regional Police) Salzburg detained her in custody pending return for two days and violated her right to liberty according to Article 5 ECHR. Mr N.N. approached the AOB because his wife was detained by the Federal Police Salzburg for two days. During the investigative proceedings, the AOB found that Mrs N.N. worked in Salzburg illegally and that she was arrested by the police on 16 February 2010. The Federal Police Salzburg imposed custody pending return for this citizen of a third state on the same day to ensure that she would be subject to residence prohibition proceedings. The authorities released Mrs N.N. from custody pending return on 18 February 2010 and transferred her to Germany. Mrs N.N. had a valid residence permit, residence and family life in Germany and stated during her custody that she wished to leave Austria as soon as possible. Mr N.N. even agreed to provide the foreign police authority with his wife’s passport. Evidence of voluntary return According to Section 76 (1) of the Foreign Police Act (Fremdenpolizeigesetz), aliens may be arrested and detained if this is required to ensure a deportation. According to the jurisdiction of the Supreme Courts (e.g. Constitutional Court dated 2 May 2011, B 1700/10, Supreme Administrative Court dated 23 September 2010, 2007/21/0432), the authorities must verify in each case whether custody pending return is necessary and appropriate. Foreign police authorities must weigh up the interest of the general public in securing a return and the protection of the affected person’s personal liberty. If there is no need to secure the return, custody pending return must not be imposed. Section 46 (1) of the Foreign Police Act (Fremdenpolizeigesetz) allows for a return if the authorities issue a residence prohibition and are concerned that the alien might not leave Austria. The AOB found that in this specific case, custody pending return was neither necessary nor appropriate. The Federal Police Salzburg therefore violated Mrs N.N.’s constitutional right to liberty. Based on the AOB’s view, the conditions for a return were also not met. Need to secure return did not apply Individual case: VA-BD-I/0056-C/1/2012, BMI-LR2240/0371-II/3/2012 45