Detention of third-country nationals in return procedures The present report also shows that domestic law usually provides for an appeal possibility, also when the deprivation of liberty is ordered or prolonged by a judge.186 There are four countries where this is limited. In Finland and Hungary detention orders endorsed by the competent court are final.187 In Romania, detention decisions of persons with an expulsion order over 30 days are issued by the territorially competent court of appeal against which no appeal is possible.188 In Cyprus, the only possibility of judicial review is the extraordinary recourse to the Supreme Court under Article 146 of the Cypriot Constitution. Depending on the domestic legal system, detention decisions are usually reviewed by general (civil or criminal) courts or by administrative courts. Three countries, France, Sweden and the UK, have established specialised bodies, namely the juge de liberté et de la détention in France, the Migration Courts in Sweden and the First-tier Tribunal (Asylum and Immigration Chamber) in the UK. In some countries, it has been argued that the judges entrusted with the review of detention decisions are not sufficiently equipped to determine the lawfulness of detention. The Spanish Ombudsmen189 and researchers in Hungary190, for example, have expressed concerns about the involvement of the criminal courts in ordering pre-removal detention. In Italy, detention decisions are taken by a justice of the peace who, being a non-professional judge, may not have the adequate legal competence and specialized knowledge of foreigner’s rights. The following paragraphs will examine four different aspects of the review process, including the requirement of a speedy review, the accessibility of review procedures, the principle of equality of arms and the scope of the review. five months.” The UN WGAD (ibid at paragraph 50) further reported that it “is unaware of a single case in which a legal challenge to immigration detention was successful” which may be another reason why in practice such remedy is not often used. 186 See Denmark, Administrative of Justice Act, Chapter 43a, Section 475; German Residence Act, Section 106.2 read in conjunction with Article 7 of the Federal Law on the judicial procedure in case of deprivation of liberty [Gesetz über das gerichtliche Verfahren bei Freiheitsentziehungen], dated 29. June 1956 (BGBl. I S. 599), last amended by Article 8.6 of Law 27.04.2001 (BGBl. I, S. 751); Estonia, OLPEA, at Section 13; France, CESEDA at Article L552-9; Italy, LD 1998/286 at Article 13.5bis; Lithuania, Aliens Act, Article 117; Latvia, Immigration Law at Article 56.1; Netherlands Aliens Act at Articles 94 and 95; Poland, Act on Aliens at Article 106.4; Portugal, Articles 27.1 and 31 of the Portuguese Constitution as clarified by the Portuguese Supreme Court on 19 July 2007, decision 07P2836; Spain, Law 4/2000 Article 21. 187 Finland, Aliens Act at Article 129; Hungary, TCN Act, Section 59 (10). 188 See Aliens Act Article 97.5. However, an appeal against decisions taken by the Prosecutor’s Office of the Bucharest Court of Appeal is possible (Emergency Ordinance, Article 97.9). 189 See Informe sobre asistencia jurídica a los extranjeros en España, Defensor del Pueblo, Madrid, text in Spanish available online at: http:// www.defensordelpueblo.es/ index.asp?destino=informes2.asp. 190 J. Mink, Detention of asylum seekers in Hungary, Legal framework and practice, Budapest: Hungarian Helsinki Committee, 2007, p. 41. 42 Speedily In order to be considered effective, judicial review processes must fulfil certain conditions. First, the review procedure has to be swift. Article 5.4 of the ECHR requires that decisions be taken speedily. While the concrete circumstances of the case may impact on the length of time, such reviews are normally relatively simple. In one case, the ECtHR found a delay of thirtyone and forty-six days to review the lawfulness of detention to be excessive.191 As indicated above, short deadlines are usually given to courts when they need to approve the first detention decision. In approximately half of the EU countries, it is also possible to find a commitment in law for swift detention appeal reviews. In these cases relatively short time frames of five to 14 days from the moment the file reaches the court are given to the court to hear and decide on the case.192 A few states, more generally, provide that such complaints be given priority or dealt with urgently.193 General references to the need for courts to decide with no delays do not necessarily lead to short appeals procedures. For example, according to information provided by NGOs in the Czech Republic and in Slovakia, court proceedings may last longer than the six months foreseen by law as maximum time limit for detention.194 Accessibility Several EU Member States have established time limits for appealing the detention order.195 These are in some case rather short, such as 72 hours in Hungary196, three days in Romania or Bulgaria,197 seven days in Poland,198 191 ECtHR, Sanchez-Reisse v. Switzerland, No. 9862/82, 21 October 1986, paragraphs 59 and 60. 192 Austrian Aliens Police Act at 83.2(2) (1 week from the time the appeal is handed in; if submitted to the aliens police, the latter has two days to forward it to the court, in which case the court has effectively five days to decide); Belgium, Law on Foreigners at 72 (five days): Estonia, OLPEA at 13.3 (10 days); Lithuania, Aliens Act at 117.2 (10 days); Slovenia, Aliens Act at 58.3 (8 days). In the Netherlands the total period is 14 days (hearing not later than 7 days; decision not later than 7 days), Dutch Aliens Act at 94.2-3. In other cases, the time given to the court can be substantially longer, such as in Bulgaria, where it amounts to one month (Law on Foreigners, Article 46a). 193 See Sections 200o and Sec. 200u of Czech Civil Procedure Code; Section 129.2 of Finnish Aliens Act; Slovakia Aliens Act at Article 62 (no delay); Hungary, TCN Act at Section 57.6(a) (immediately). 194 Information provided by NGOs in the Czech Republic and Slovakia to the FRALEX national experts. According to information received from the Czech Ministry of Interior, a proposed amendment to the Aliens and Asylum Act foresees a 7 working days for the court to review the detention decision. 195 See, for example, Bulgaria, Law on Foreigners, Article 46a; Denmark (every four weeks the detention order is automatically reviewed by the court); Hungary, TCN Act at Section 57; Ireland, Section 5(2)(a), Illegal Immigrants (Trafficking) Act 2000; Italy (60 days), LD 286/98 at Article 14; Lithuania, Aliens Act, Article 55.7; Luxemburg, Immigration Law, Article 123.3 (one months); Poland, Act on Aliens at Article 106.4; Romania, Emergency Ordinance, Article 97.9; Slovakia, Aliens Act Article 62. 196 Hungary, TCN Act at Section 57. 197 Romania, Emergency Ordinance, Article 97.9; Bulgaria. Law on Foreigners at 46a. 198 Poland, Act on Aliens at Article 106.4.