A foreigner was ordered to leave French territory without delay. He is finally placed in administrative detention and the measure is extended. The health crisis linked to the coronavirus prevents any prospect of removal to Algeria, a country that has closed its borders. Continued detention under these conditions is a serious and manifestly illegal infringement of the fundamental freedom to come and go. The emergency health conditions complicate the procedure for removal to a country likely to receive the person concerned within the maximum period of detention. The closure of the borders of the states concerned deprives the court of the possibility to assess the merits of keeping the person in detention within the legal time limit. In these circumstances, in view of the length of detention already elapsed, the administrative detention was ordered to be released.
With regard to the due process of law and compliance with access to the courts and respect for the rights of the defense, it was considered that the use of videoconferencing does not deprive the person concerned of the guarantees. The Public Prosecutor's Office maintains that, in application of the regulations implemented by the Government in the context of the state of health emergency, which impose the imperative protection of persons placed in the administrative detention center and those working in the judicial courts, the principle of proportionality is considered to be respected in that the use of videoconferencing strikes a fair balance between this health imperative and the maintenance of sufficient guarantees for the benefit of the applicant; contrary to what is argued, the person held in the detention center is not deprived of access to the judge and to the rights to organize his defense - access to the file, access to a lawyer, time limit for organizing his defense etc- by the use of this means of communication.
Case reported by Inès Giauffret, Université de Versailles Saint-Quentin-en-Yvelines (UVSQ)