J. N. v Staatssecretaris van Veiligheid en Justitie.
Date: 2016-02-15
40


Secondly, at the time consideration was given to whether the present reference should be dealt with under the urgent preliminary ruling procedure, Mr N. was deprived of his liberty. Although it is true that, at that point, his incarceration was not based on point (e) of the first subparagraph of Directive 2013/33, since Mr N. was serving out a prison sentence, that sentence, which began on 23 October 2015, followed on from a period of detention under Directive 2013/33. Moreover, the national authorities anticipated that Mr N. would be returned to detention, within the meaning of Article 2(h) of Directive 2013/33, once he had served his prison sentence.
41


Taking the foregoing into account, the Fourth Chamber of the Court decided, on 24 November 2015, on the Judge-Rapporteur’s proposal and after hearing the Advocate General, to grant the referring court’s request that the present reference be dealt with under the urgent preliminary ruling procedure. It also decided to request that the Court assign the case to the Grand Chamber.
45


As a preliminary point, it should be recalled that, whilst, as Article 6(3) TEU confirms, 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 (judgments in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45).
46


Thus, an examination of the validity of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (see, to that effect, judgments in Otis and Others, C‑199/11, EU:C:2012:684, paragraph 47, and Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 46).
47


In that regard, the explanations relating to Article 6 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to that effect, judgments in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 20, and Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 54), make clear that the rights laid down in Article 6 of the Charter correspond to those guaranteed by Article 5 of the ECHR and that the limitations which may legitimately be imposed on the exercise of the rights laid down in Article 6 of the Charter may not exceed those permitted by the ECHR, in the wording of Article 5 thereof. However, the explanations relating to Article 52 of the Charter indicate that paragraph 3 of that article is intended to ensure the necessary consistency between the Charter and the ECHR, ‘without thereby adversely affecting the autonomy of Union law and ... that of the Court of Justice of the European Union’.
48


Furthermore, in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (judgments in McDonagh, C‑12/11, EU:C:2013:43, paragraph 44, and Review of Commission v Strack, C‑579/12 RX-II, EU:C:2013:570, paragraph 40).
49


In permitting an applicant to be detained when the protection of national security or public order (‘ordre public’) so requires, point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 provides for a limitation on the exercise of the right to liberty entrenched in Article 6 of the Charter.
50


Under Article 52(1) of 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. 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 European Union or the need to protect the rights and freedoms of others.
51


It should be stated in this regard that since the limitation in question derives from a directive, which is a legislative act of the European Union, that limitation is provided for by law.
52


In addition, point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 does not affect the essence of the right to liberty laid down in Article 6 of the Charter. That provision of the directive does not render the guarantee of that right less secure and — as is apparent from the wording of the provision and recital 15 of the directive — the power that it confers on Member States enables them to detain an applicant only on the basis of his individual conduct and under the exceptional circumstances referred to in the same provision, those circumstances also being circumscribed by all the conditions set out in Articles 8 and 9 of the directive.
54


As regards the proportionality of the interference with the right to liberty that has been found to exist, it should be recalled that the principle of proportionality requires, according to settled case-law of the Court, 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 (see, to that effect, judgments in Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 45; Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 71; and Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 50).
56


As to whether the power which that provision confers on Member States to detain an applicant on grounds related to the protection of national security or public order is necessary, the Court stresses that, in view of the importance of the right to liberty enshrined in Article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary (see, by analogy, with regard to the right to respect for private life, judgment in Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 52).
57


On that point, it can be seen both from the wording and context of Article 8 of Directive 2013/33 and from its legislative history that the possibility — provided for in point (e) of the first subparagraph of paragraph 3 — of detaining an applicant for reasons relating to the protection of national security or public order is subject to compliance with a series of conditions whose aim is to create a strictly circumscribed framework in which such a measure may be used.
59


It should also be noted that the first subparagraph of Article 8(3) of Directive 2013/33 lists exhaustively the various grounds, including the ground relating to the protection of national security or public order, which may justify recourse to detention and that each of those grounds meets a specific need and is self-standing.
60


The second subparagraph of Article 8(3) of Directive 2013/33 provides, in addition, that the grounds for detention are to be laid down in national law. It should be recalled in that regard that, when a directive allows the Member States discretion to define transposition measures adapted to the various situations possible, they must, when implementing those measures, not only interpret their national law in a manner consistent with the directive in question but also ensure that they do not rely on an interpretation of the directive that would be in conflict with the fundamental rights or with the other general principles of EU law (see, to that effect, judgments in Promusicae, C‑275/06, EU:C:2008:54, paragraph 68, and N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 77).
61


Secondly, as is indicated by recitals 15 and 20 of the directive, the other paragraphs of Article 8 of Directive 2013/33 place significant limitations on the Member States’ power to detain a person. Article 8(1) of the directive makes clear that Member States may not hold a person in detention for the sole reason that he has made an application for international protection. Furthermore, under Article 8(2) of the directive, detention may be ordered only when it proves necessary and on the basis of an individual assessment of each case, if other less coercive alternative measures cannot be applied effectively. Article 8(4) of Directive 2013/33 provides that Member States are to ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.
62


Similarly, Article 9(1) of Directive 2013/13 provides that an applicant is to be detained only for as short a period as possible and may be kept in detention only for as long as the grounds set out in Article 8(3) of that directive are applicable. Moreover, when a decision is taken to detain an applicant, significant procedural and legal safeguards must be observed. Thus, under paragraphs 2 and 4 of Article 9 of Directive 2013/13, the decision must state, in writing, the reasons in fact and in law on which it is based and certain information must be provided to the applicant in a language he understands or is reasonably supposed to understand. Paragraphs 3 and 5 of Article 9 set out the procedures which the Member States must establish for review by a judicial authority of the legality of the detention.
63


Thirdly, it is apparent from point 4 of Section 3 of the Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM(2008) 815 final), which formed the basis for Directive 2013/33, that the ground for detention relating to protection of national security and public order — like the other three grounds included in the proposal and subsequently incorporated in points (a) to (c) of the first subparagraph of Article 8(3) of the directive — is based on the Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers of 16 April 2003 and on the United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of 26 February 1999. It is clear, in particular from points 4.1 and 4.2 of those guidelines, in the version adopted in 2012, that detention may be used only exceptionally and for a legitimate purpose and that there are three reasons which may render detention necessary in an individual case and which are generally in keeping with international law, namely public order, public health or national security. Moreover, detention is to be used only as a last resort, when it is determined to be necessary, reasonable and proportionate to a legitimate purpose.
65


The Court has thus held that the concept of ‘public order’ entails, in any event, the existence — in addition to the disturbance of the social order which any infringement of the law involves — of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (judgments in Zh. and O., C‑554/13, EU:C:2015:377, paragraph 60 and the case-law cited, as regards Article 7(4) of Directive 2008/115, and T., C‑373/13, EU:C:2015:413, paragraph 79 and the case-law cited, as regards Articles 27 and 28 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34)).
66


So far as the concept of ‘public security’ is concerned, it is apparent from the Court’s case-law that this concept covers both the internal security of a Member State and its external security and that, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security (see, to that effect, judgment in Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 43 and 44).
67


Thus, placing or keeping an applicant in detention under point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 is, in view of the requirement of necessity, justified on the ground of a threat to national security or public order only if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned (see, to that effect, judgment in T., C‑373/13, EU:C:2015:413, paragraphs 78 and 79).
75


The referring court has pointed out that, in accordance with its own case-law, the introduction of an asylum application by a person who is subject to a return decision automatically causes all return decisions that may previously have been adopted in the context of that procedure to lapse. It is important to stress in that regard that, in any event, the principle that Directive 2008/115 must be effective requires that a procedure opened under that directive, in the context of which a return decision, accompanied, as the case may be, by an entry ban, has been adopted, can be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance. Indeed, the Member States must not jeopardise the attainment of the objective which Directive 2008/115 pursues, namely the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals (see, to that effect, judgment in El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 59).
76


In this regard it follows both from the duty of sincere cooperation of the Member States, deriving from Article 4(3) TEU and referred to in paragraph 56 of the judgment in El Dridi (C‑61/11 PPU, EU:C:2011:268), and from the requirements for effectiveness referred to, for example, in recital 4 of Directive 2008/115 that the obligation imposed on the Member States by Article 8 of that directive, in the cases set out in Article 8(1), to carry out the removal must be fulfilled as soon as possible (see, to that effect, judgment in Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 43 and 45). That obligation would not be met if the removal were delayed because, following the rejection at first instance of the application for international protection, a procedure such as that described in the preceding paragraph could not be resumed at the stage at which it was interrupted but had to start afresh.
77


Finally, it must be recalled that in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, Article 52(3) of the Charter provides that the meaning and scope of those rights are to be the same as those laid down by that convention. Account must therefore be taken of Article 5(1) of the ECHR for the purpose of interpreting Article 6 of the Charter. In fact, the EU legislature, in adopting point (e) of the first subparagraph of Article 8(3) of Directive 2013/33, did not disregard the level of protection afforded by the second limb of Article 5(1)(f) of the ECHR.
78


As the wording of the last-mentioned provision indicates, it permits the lawful detention of a person against whom action is being taken with a view to deportation or extradition. In this regard, although the European Court of Human Rights held in the judgment in Nabil and Others v. Hungary (§ 29) that a deprivation of liberty based on Article 5(1)(f) ECHR will be justified only for as long as deportation or extradition proceedings are in progress and that if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under that provision, that judgment does not exclude the possibility of a Member State ordering — in such a way that the guarantees provided for by that provision are observed — the detention of a third-country national in respect of whom a return decision accompanied by an entry ban was adopted prior to the lodging of an application for international protection.
80


Thus, as has been held in paragraphs 75 and 76 of the present judgment, a procedure opened under Directive 2008/115, in the context of which a return decision, accompanied, as the case may be, by an entry ban, has been adopted, must be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance and, accordingly, action under that procedure is still ‘being taken’ for the purposes of the second limb of Article 5(1)(f) ECHR.
81


It should also be noted that, according to the case-law of the European Court of Human Rights relating to Article 5(1) of the ECHR, if the execution of a measure depriving a person of liberty is to be in keeping with the objective of protecting the individual from arbitrariness, that means, in particular, that there can be no element of bad faith or deception on the part of the authorities, that execution of the measure is consistent with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5(1) ECHR and that the deprivation of liberty concerned is proportionate in relation to the ground relied on (see, to that effect, judgment of the European Court of Human Rights in Saadi v. the United Kingdom, no. 13229/03, § 68 to 74, ECHR 2008). As is apparent from the reasoning set out in connection with the examination of its validity in the light of Article 52(1) of the Charter, point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 — whose scope, in view of the context of the provision, is strictly circumscribed — satisfies those requirements.
83


Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.