Applicant (Morocco) v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid)
NL: The Council of State rules on COVID-19 restrictions affecting the right to be heard in person before the court
The case concerns a complaint regarding the right to be personally heard before a court during the COVID-19 pandemic. During the exceptional measures in the Netherlands, courts have been closed as of 17 March 2020 to prevent the spread of the virus. No hearings could be held in courts.
The applicant, who challenged his detention measure pending expulsion to Morocco, argued that the court wrongly did not use the facilities available in detention centres available to hear him from a distance. His appeal against the detention measure was scheduled to be heard on 18 March 2020 but, because of the COVID-19 restrictions, it was temporarily impossible to hold physical hearings in person with the applicant, his lawyer, interpreter and an employee of the Immigration and Naturalisation Service (IND). In addition, a video connection or conference call was not possible due to limited capacity and unsuitable facilities at the detention centres. The court settled the case in writing, without a hearing of the applicant.
The Council of State ruled that, if the court received permission from both the applicant and the State Secretary, the settling of a case in writing is an acceptable temporary solution limited to the exceptional period of COVID-19 restrictions (and not in the period before or after the COVID-19 measures of 17 March 2020). The Council highlighted that respect for the fundamental right to be heard is important. In addition, if the two parties do not agree to have a written procedure but they agree for their representative to be heard by phone, then this is also an acceptable temporary hearing method. If the applicant or the legal representatives of the parties state that they do not waive the right to be heard before the court, the court must make every effort to personally hear the party but it may conclude that in a particular case a hearing is not possible. The court must not take an automatic decision but it must consider the individual circumstances of the case, the practical possibilities to hear the parties and the fundamental rights at stake (e.g. the right to a speedy decision on the lawfulness of detention, the right to health, the general public health). In this case the court deemed that in the individual circumstances it was not possible to personally hear the applicant.
COVID-19/Emergency measures; Effective remedy; Second Instance determination;
Raad Van State (Council of State Official Website)
EASO Courts and Tribunals Network
Netherlands, Council of State [Afdeling Bestuursrechtspraak van de Raad van State], Applicant (Morocco) v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), case 202001949/1/V3, ECLI:NL:RVS:2020:991, 07 April 2020. Link redirects to the English summary in the EASO Case Law Database.