Debrief: CONTENTION Kick-Off Meeting

The Kick-Off Meeting of the project ‘CONTENTION’ (CONtrol of DeTENTION), co-funded by the European Union in the framework of the European Return Fund, took place at the European University Institute (EUI) on 28 February-1 March 2014. The project is implemented by the Migration Policy Centre (MPC) at the Robert Schuman Centre for Advanced Studies (RSCAS) at the EUI, in partnership with the Odysseus Network (Université Libre de Bruxelles) and will run until December 2014.

The main objectives of CONTENTION are to inform, analyse and compare judicial control of pre-removal detention according to the EU Return Directive (2008/115/EC) with a view to improving the judicial control, and to identifying and exchanging best practices among legal experts and practitioners. Furthermore, it aims to launch the first basis for European networking among national judges hearing return cases.

The meeting aimed to bring together its project participants, who are judges and academic experts, from eleven EU member states as well as members of the project’s Scientific Committee and a representative from the European Commission. Over the two-day meeting, the participants debated the project’s concept note on the extent of judicial control of pre-removal detention in the EU and discussed the building blocks of the questionnaire, which will serve as a basis for 11 national reports to be written by project participants.

The meeting opened with welcome messages from Professor Joseph Weiler, President of the EUI, Professor Philippe De Bruycker, Deputy-Director of the MPC and Mr. Olivier Bergeau, Policy Officer at the European Commission’s DG Home Affairs.

Mr. Bergeau underlined the project’s significance for the Commission in terms of the post-Stockholm guidelines and the practical implementation of the Return Directive. On potential outcomes of the CONTENTION project, he added that it could lead to formulating recommendations on the steps to be followed by judges when exercising judicial control on detention decisions.

During the discussion of the concept note, developed by the project coordination team, several issues were raised by participants. Concerning the intensity of judicial control regarding the concepts of “due diligence”, “reasonable prospect of removal” and “detention as short as possible”, despite different conceptual terms, all participants considered there should be a full review of such criteria. However, it appears that the institutional context within which the judge is working may have an influence on the extent of the control exercised. Some participants also reported that in certain countries, the judicial practice on detention is characterised by a lack of consistency, efficiency and autonomous methodology when deciding on particular cases. As for judicial control relating to whether the administration considers effective alternatives to detention (ATD) before deciding in favour of pre-removal detention, the most problematic issue is the availability of ATD in national legislation, which is not at the judge’s discretion. The final issues discussed in the framework of the concept note was that of extended judicial control, i.e. ex officio vs. limited to the arguments raised by the detainee and his/her lawyer.

On the second day of the meeting, participants discussed the CONTENTION database, which will become publically accessible once all the national judgements and European case law have been collected, and the draft questionnaire for writing national reports.

The CONTENTION Kick-Off meeting will be followed up by an intermediate closed conference in October 2014 to discuss the draft European synthesis report, to be prepared on the basis of the national reports by the project’s coordination team. The project’s final meeting will take place in Brussels in December, which will be combined with the kick-off meeting of CONTENTION’s follow-up project “REDIAL” (Return Dialogue).

As regards the latter, it is worth mentioning that by further expanding the scope of CONTENTION beyond detention issues, the project REDIAL will aim at establishing a broader European network of judges dealing with return cases and corresponding legal academics from all EU Member States with a view to exchanging knowledge and experience regarding the proper implementation of the EU Return Directive. Building on the CONTENTION database, it will also pursue the goal of creating a comprehensive knowledge platform on the EU Return Directive, comprising of national and CJEU landmark judgments, their analysis and the pertinent general academic writings.

The presentation of the coordination team can be found here.