Germany / Federal Court of Justice / ECLI:DE:BGH:2024:260324BXIIIZB85.22.0

An Algerian citizen v the Federal Republic of Germany
Deciding body type
National Court/Tribunal
Type
Decision
Decision date
26/03/2024
ECLI (European case law identifier)
ECLI:DE:BGH:2024:260324BXIIIZB85.22.0

Den Europæiske Unions charter om grundlæggende rettigheder

  • Germany / Federal Court of Justice / ECLI:DE:BGH:2024:260324BXIIIZB85.22.0

    Key facts of the case:

    The appellant, an Algerian citizen, entered Germany on 6 January 2022 without a passport or residence permit. Provisional preventive detention was ordered the next day and later extended. The appellant applied for asylum while in detention, which was rejected. After his deportation was prevented, he was released on 15 June 2022. The appellant claimed that his accommodation in the Hof facility for detention pending deportation (AHE-Hof) was similar to a prison. In particular, he objected to the restrictive detention conditions, including visiting times of only four hours per month and daily lock-up times from 7pm to 9am. He claimed that this contradicts the provisions of Art. 16(1) of the Return Directive (Directive 2008/115/EC), which requires humane treatment in special detention facilities.

    The Hof Local Court that initially ordered provisional preventive detention, later extended the detention to secure repatriation. The Regional Court of Hof rejected the appeal of the appellant against the extension of detention. It argued that the detention was lawful, as the AHE-Hof facility was structurally and organizationally separate from penal detention facilities and did not have prison-like conditions. The appellant lodged an appeal with the Federal Court of Justice against the decision to extend his detention. 

    Key legal question raised by the Court:

    The key legal issue was whether the placement of the appellant in the AHE-Hof facility for detention pending deportation complied with the requirements of Art. 16(1) of the Return Directive (Directive 2008/115/EC) and the fundamental rights under the Charter and the ECHR. Specifically, the question was whether the detention conditions went beyond what was absolutely necessary and therefore amounted to criminal detention, which is not permitted under EU law.

    Outcome of the case: 

    The Federal Court of Justice held that the placement of the appellant in the AHE-Hof deportation detention facility was unlawful. The detention conditions - in particular visiting times of only four hours per month and daily lock-up times from 7pm to 9am - exceeded the mandatory requirements for an effective return procedure in accordance with Art. 16(1) of Directive 2008/115/EC and Art. 62a of the Residence Act. This violated the requirement to clearly distinguish detention pending deportation from criminal detention and violated fundamental rights under the Charter (Art. 6) and the ECHR (Art. 5). 

  • Paragraphs referring to EU Charter

    8. aa) When interpreting the concept of a special detention facility, Art. 6 CFR and Art. 5 ECHR must first be taken into account as a minimum standard of protection.

    9. The Member State must also respect the fundamental rights enshrined in the Charter of Fundamental Rights, in particular in Article 6 CFR, and consequently ensure that the conditions of detention of third-country nationals placed in ordinary detention facilities pending deportation differ as far as possible from the conditions of detention of criminal detainees held there.

  • Paragraphs referring to EU Charter (original language)

    8. aa) Bei der Auslegung des Begriffs der speziellen Hafteinrichtung sind zunächst Art. 6 GRCh sowie Art. 5 EMRK als Mindestschutzstandard zu berücksichtigen.

    9. Der Mitgliedstaat muss ferner auch die in der Grundrechtecharta, insbesondere in Art. 6 GRCh verankerten Grundrechte beachten und folglich sicherstellen, dass sich die Haftbedingungen von in gewöhnlichen Haftanstalten in Abschiebungshaft untergebrachten Drittstaatsangehörigen so weit wie möglich von den Haftbedingungen der dort inhaftierten Strafgefangenen unterscheiden.