The case concerned the right to a fair trial and to legal assistance by a chosen lawyer in procedures concerning detention for the purposes of removal of a rejected asylum applicant.
The applicant is a national of Serbia, whose asylum application was rejected and by decision of 1 December 2020, the BAMF issued a renewed return decision with threat of forced removal in case of non-compliance with the decision. Several attempts to implement the return failed and the applicant was detained on 2 September 2024, on the basis of an order which was confirmed in court of Ravensburg for detention until 17 September 2024 for the purposes of securing the removal. The applicant was appointed a lawyer for the procedure before the local court of Ravensburg as an authorised representative while the applicant as still in custody in the police and was unable to contact him previous lawyer by telephone and the police officers informed him by telephone that the court should appoint him a lawyer. The applicant as heard before the court in the morning of 2 September 2024 in the presence of the appointed lawyer who did not discuss with the applicant. The local court of Ravensburg decided on 2 September 2024, that the detention was ordered with immediate effect until 17 September 2024.
The applicant’s lawyer, acting as his representative, submitted an appeal on 10 September 2024 arguing that the applicant’s rights have been infringed by the order of 2 September 2024, asked for the appointed lawyer to be discharged of duties and that he be appointed as a mandatory lawyer for the applicant. The applicant was deported on 11 September 2024 and the first appeal was rejected. The lawyer applied further before the District Court of Ravensburg which allowed the appeal and found a violation of the applicant’s right to a fair trial.
The court noted that the governing principles according to which the principle of fair trial guarantees the right to be represented by a lawyer of his choice in order to safeguard his rights in cases related to deprivation of liberty and to be assisted by that chosen lawyer at the hearing. If the court learns or knows that the individual has a lawyer, the court has a duty to ensure that the person is informed of the term in court and allowed to participate in the hearing. If necessary, a new date must be set under temporary injunction of only short period in order to establish contact with the lawyer.
In the present case, the District Court found that the lower court was aware or should have been aware, by a good administration of the file, that the applicant had a chosen lawyer. The court should have at least asked the applicant by which lawyer he wanted to be represented, in order to ensure the right to a fair trial. The court further took into consideration the exceptional psychological situation of the applicant in the given context as result of detention, so it was not to be assumed that the applicant, by agreeing to a court appointed lawyer, waived his right to choose a lawyer who would have been present to the hearing.
The contested decision was annulled.