Article 1 - Human dignity
Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 6 - Right to liberty and security
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Conditions of detention — Article 16(1) — Detention in prison accommodation for the purpose of removal — Third-country national who poses a serious threat to public policy or public security.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Article 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 15 of that directive and in the light of Articles 1 to 4, 6 and 47 of the Charter of Fundamental Rights of the European Union is to be interpreted as not precluding national legislation which allows for the detention in prison accommodation of a third-country national awaiting removal who poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, or the internal or external security of the Member State concerned, which is for the competent national authority to ascertain, subject to a prohibition of contact with convicted detainees.
It is likewise for the competent national authority, before which an action is brought relating to the decision to detain or extend the detention of a third-country national awaiting removal in prison accommodation, to examine specifically and in detail the conditions of detention of that third-country national in order to ensure compliance both with the principles of effectiveness and proportionality and with the minimum safeguards provided for in Article 16 of Directive 2008/115 as well as with the fundamental rights of the third-country national, as enshrined in Articles 1 to 4, 6 and 47 of the Charter of Fundamental Rights.
93) It should be recalled that, in accordance with Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms, in the present case the right to freedom enshrined in Article 6 of the Charter, only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
94) Since the limitation at issue has its origin in Paragraph 62a(1) of the AufenthG, it has a legal basis. That provision does not affect the essence of the right to liberty enshrined in Article 6 of the Charter. It does not render the guarantee of that right less secure and, as is apparent from its wording, it allows a migrant to be detained in prison accommodation only on the basis of his individual conduct and under the exceptional circumstances referred to in the same provision. ( 59 )
106) As has been stated above, the purpose of Article 16(1) of Directive 2008/115 can be understood solely in a manner compatible and consistent with the rights enshrined in the Charter and more specifically in Articles 1 to 4 thereof, which guarantee respect for human dignity and the right to life and to integrity of the person and prohibit inhuman and degrading treatment. Those references are necessarily read into the reference to fundamental rights contained in Article 1 of Directive 2008/115.
108) It is therefore in the light, first, of the requirements of Directive 2008/115 and, second, of the fundamental rights proclaimed in the Charter that it is necessary to determine whether, in circumstances such as those at issue in the case in the main proceedings, the detention of WM in prison accommodation respects the rights afforded to him in the European Union.
123) The meaning and the scope of Article 4 of the Charter, which corresponds to Article 3 ECHR, are, in accordance with Article 52(3) of the Charter, the same as those laid down by the ECHR. ( 78 )
124) As regards the prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, it is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter. That the right guaranteed by Article 4 of the Charter is absolute is confirmed by Article 3 ECHR. As is stated in Article 15(2) ECHR, no derogation is possible from Article 3 ECHR. ( 79 ) Articles 1 and 4 of the Charter and Article 3 ECHR enshrine one of the fundamental values of the Union and its Member States. That is why, in any circumstances, including those of the fight against terrorism and organised crime, the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. ( 80 )
140) It should be recalled that any interpretation of Directive 2008/115 must, as is apparent from recital 24 and Article 1 thereof, be consistent with the fundamental rights and principles recognised, in particular, by the Charter. As regards, more specifically, the remedies against decisions related to detention, as set out in Article 15 of Directive 2008/115, the characteristics of such remedies must be determined in a manner that is consistent with Article 6 of the Charter on the right to liberty of every person and with Article 47 of the Charter, which provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. ( 89 )
144) In addition, the provisions of Article 15 of Directive 2008/115 must be read not only in the light of Articles 6 and 47 of the Charter but also the provisions of the ECHR to which the Charter refers; the corresponding rights in the present case are enshrined in Articles 5 (right to liberty and security), 6 (right to a fair trial) and 13 (right to an effective remedy) ECHR. ( 93 )
145) In that context, the view must be taken that the application for individual review made by the migrant concerned, as provided for in the first sentence of Article 15(3) of Directive 2008/115, must, in order to ensure compliance with the requirements under Articles 6 and 47 of the Charter, allow for the examination, at an early stage and regardless of whether the time limit fixed for an ex officio review of the detention has not expired, of the conditions of detention of the person concerned for the purposes of establishing whether there has been any affront to the dignity of that person contrary to Articles 1 to 4 of the Charter, read in conjunction with Article 3 ECHR.
149) In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows: