Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court found that Article 8(3)(a) and (b) of Directive 2013/33 is compliant with Article 6 and Article 52 (1) and (3) of the Charter.
Detention of asylum seekers to establish their identity or nationality and to obtain information necessary for the assessment of the application for international protection must meet the test of “strict necessity”.
K. came to Netherland on 2015. He was suspected of using a false passport. After applying for international protection he was detained in order to establish his identity or nationality and to obtain data necessary for the assessment of his application, as there was a risk of him absconding.
K. challenged his detention decision and applied for compensation.
He had been heard once in relation to his asylum application. No decision in this regard was taken. Also no return decision had been adopted in relation to him.
Is Article 8(3)(a) and (b) of Directive 2013/33 valid in the light of Article 6 of the Charter:
(1) in a situation where a third-country national is detained under the first subparagraph of Article 8(3)(a) and (b) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and
(2) given the Explanation relating to the Charter of Fundamental Rights that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f), and the interpretation by the European Court of Human Rights of the latter provision in, inter alia, the judgment of 22 September 2015, Nabil and Others v. Hungary no. 62116/12, § 38, that the detention of an asylum-seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to deportation?’
The Court stated that fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law.
Article 8(3)(a) and (b) of Directive 2013/33 limits the right to liberty entrenched in article 6 of the Charter. Therefore it should be analyzed in the light of article 52 (1) of the Charter. The Court held that the limitation of liberty is provided by law and does not affect the essence of the right to liberty. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.
The Court found that the limitation of liberty in this case meets the objective of a general interest recognized by the EU, namely proper functioning of the Common European Asylum System.
The Court further analyzed whether the limitation of liberty meets the criteria of proportionality. The test of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued.
As to the requirement of necessity the Court held that every limitation of personal liberty must be strictly necessary. The Court also held that the grounds for detention need to be laid down in national law, detention cannot be based solely on the fact of applying for asylum, detention should be always a measure of last resort after individual assessment of each case, detention should be ordered for as short a period as possible and may be kept only for as long as the grounds for detention are applicable, and the directive provides for significant procedural and legal safeguards.
Finally, the Court held that article 8 (3)(e) of the directive 2013/33 is proportionate as it struck the fair balance between the general interest and interference with the right to liberty.
In the end the Court stressed that this interpretation is compatible with the protection afforded by article 5 (1)(f) ECHR and thus does not infringe article 52 (3) of the Charter. The Court found that the European Court of Human Rights does not preclude the detention of g third-country nationals who have made an application for international protection, provided that such a measure is lawful and implemented in accordance with the objective of protecting the individual from arbitrariness.
Reception Conditions Directive 2013/33/EU (Recast)
Case Study - Restriction of liberty in asylum proceedings I