The applicant, an Algerian national who previously requested international protection in France and the Netherlands, was subject to a detention measure until 2 March 2023 by way of an interim order of the local court. On 24 February 2023, the Federal Office for Migration and Refugees (BAMF) requested the Dutch authorities to take back the applicant under the Dublin III Regulation, after France rejected the request. By decision of 1 March 2023, the local court ordered detention pending transfer until 3 April 2023.

The person of trust of the applicant requested the detention measure to be lifted, which the local court rejected on 16 June 2023 after the applicant was removed to the Netherlands on 24 March 2023. The court rejected the appeal lodged against this decision, which the applicant appealed by way of a legal complaint (Rechtsbeschwerde) before the Federal Court of Justice (Bundesgerichtshof- BGH).

The BGH rejected the legal complaint and found that the detention application met the reasoning requirements according to Section 417(2) FAMFG (Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction). The court held that detention for the transfer of an applicant to the responsible Member State, must be ordered in accordance with the conditions set out in Article 28 of the Dublin III Regulation, and not in accordance with national provisions. The BGH found that it was clear from the overall context that the detention order was based on the provision of Article 28(3) of the Dublin III Regulation and that no further substantiation in the detention order was required concerning the Netherlands' obligation to accept or readmit the applicant. The fact that the applicant stated that his application in the Netherlands had previously been rejected did not alter this assessment. Whether the Netherlands was legally obliged to accept or readmit him was in the responsibility of administrative courts. The court held that the detention judge was, in principle, not required to examine the substantive legality of the authority's decision on the transfer to the designated country.

The BGH further held that the detention order was not deficient merely because it did not explain why France and the Netherlands were not approached simultaneously with a request to take back the applicant. In the court's view, the absence of such an explanation did not amount to a failure to substantiate the detention order with respect to the anticipated duration of detention.

The BGH also found that there was no violation of the principle of fair proceedings regarding the participation of the lawyer in the hearing, as the latter was duly informed of the hearing date, but he did not request its postponement. Thus, the detention judge was entitled to proceed with the hearing in her absence. The court held that the judge was not obliged to contact the lawyer independently beforehand and to offer her the opportunity to attend the hearing.

Furthermore, the court found no evidence of any avoidable delay and that thus the authority did not violate the duty to proceed speedily in accordance with Article 5(4) and Article 6(1) of the ECHR as well as Art 2(2) sentence 2 and Article 104 of the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland – GG), reasoning that the requirement was not breached merely because individual procedural steps were not taken immediately. The court held that the decisive fact was whether the overall duration of the proceedings was consistent with the requirement of expedition. The court also found that the local court did not violate the duty to proceed speedily and that a delay in the judicial proceedings did not justify setting aside the lawfully ordered detention.

The court also found that there was no incorrect composition of the appeal chamber and thus no violation of the right to a lawful judge.

With regards to the responsible country, the BGH held that, when several Member States may be considered the destination country for a take back request under Article 28(3) of the Dublin III Regulation, the authorities  -  and in particular the BAMF - are not required to approach immediately and simultaneously all potentially responsible Member States for requests, even where doing so may shorten the applicant's duration of detention in an individual case. The court reasoned that, in such circumstances, only one request can ultimately succeed, while the remaining requests would create unnecessary administrative burdens for both the national authorities and the authorities of the Member States concerned. The court stated that it is therefore sufficient to initially submit a request to the Member State that, from the authorities' objective perspective, appears more likely to be responsible. The applicant's interest in an expeditious procedure is safeguarded by the requirement that the requested Member State must respond within two weeks as failure to reply within this period is tantamount to accepting the request pursuant to Article 28(3) of the Dublin III Regulation.

The court concluded that the fact that BAMF initially submitted a request to France alone did not constitute a reprehensible delay in the proceedings, as a search of the European Dactyloscopy Database (Eurodac) showed that the applicant was first registered in France. On that ground, BAMF was entitled to proceed on the assumption that France had primary responsibility for the applicant.