Mohammad Khir Amayry v Migrationsverket.
Date: 2017-09-13
25


It follows from Article 28(1) and (2) of the Dublin III Regulation that, if Member States may not detain a person in order to secure transfer procedures for the sole reason that that person is subject to the procedure established by that regulation, the Member States may, however, under certain conditions, detain a person when there is a significant risk of that person absconding.
26


That power is, in particular, regulated by Article 28(3) of that regulation, which specifies, in its first subparagraph, that detention is to be for as short a period as possible and is to be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer is carried out.
27


In order to give specific expression to that principle, the second and third subparagraphs of Article 28(3) of the Dublin III Regulation lay down specific periods for submitting a take charge or take back request and for carrying out the transfer. It is also clear from the fourth subparagraph of Article 28(3) of that regulation that, when the requesting Member State fails to observe with those deadlines, the person is no longer to be detained.
29


That being said, it is clear from the settled case-law of the Court that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part (judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraph 34 and the case-law cited).
37


In light of those considerations, it is apparent that the interpretation envisaged in paragraph 33 above, first, would be such as to appreciably limit the effectiveness of the procedures provided for by that regulation and, second, would risk encouraging the person concerned to abscond in order to prevent their transfer to the Member State responsible, thus barring the application of the principles and procedures of the same regulation (see, by analogy, judgments of 17 March 2016, Mirza, C‑695/15 PPU, EU:C:2016:188, paragraph 52, and of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 37).
41


Failing any maximum duration of detention being set out in the Dublin III Regulation, such detention must nonetheless be compatible with, first of all, the principle laid down by the first subparagraph of Article 28(3) of that regulation that the detention be for as short a period as possible and not for longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer is carried out.
43


Lastly, that authority must take account of Article 6 of the Charter of Fundamental Rights of the European Union, in so far as Article 28(2) of the Dublin III Regulation provides for a limitation on the exercise of the fundamental rights to liberty and security (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 49, and of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 36).
44


In that context, it is therefore incumbent upon the competent authority, under the supervision of national courts, to carry out diligently the transfer procedure and not to extend the detention for a period of time beyond what is necessary for the purposes of that procedure, assessed by taking account of the specific requirements of that procedure in each specific case (see, by analogy, judgment of 16 July 2015, Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraphs 58 and 59).
45


Furthermore, the person concerned may not be detained for a period vastly in excess of six weeks during which the transfer could be reasonably carried out, in so far as it follows from the third subparagraph of Article 28(3) of the Dublin III Regulation that that period is, in principle, sufficient as regards, in particular, the simplified nature of the transfer procedure between the Member States established by that regulation so that the competent authorities proceed with the transfer (see, by analogy, judgment of 16 July 2015, Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 60).
55


As long as an appeal or review lodged against a transfer decision has suspensive effect, it is, by definition, impossible to carry out the transfer, hence the deadlines set out for that purpose can, in that case, begin only when the future implementation of the transfer is in principle agreed upon and only the details of the transfer remain to be determined, namely from the date on which that suspensive effect is lifted (see, by analogy, judgment of 29 January 2009, Petrosian, C‑19/08, EU:C:2009:41, paragraph 45).
56


In such a situation, each of the two Member States is confronted with the same practical difficulties in organising the transfer as those that it would have had to confront if the transfer had been carried out immediately following the acceptance of the take charge or take back request and should thus have the same six week period in which to determine the practical details of the transfer and carry out that transfer (see, by analogy, judgment of 29 January 2009, Petrosian, C‑19/08, EU:C:2009:41, paragraphs 43 and 44).
64


It must moreover be noted that the EU legislature refers to the lifting of the suspensive effect ‘in accordance with Article 27(3)’ of the Dublin III Regulation, without drawing a distinction between the Member States which have decided to give an appeal or a review an automatic suspensive effect pursuant to Article 27(3)(a) and (b) of that regulation and the Member States which have chosen to make the grant of that suspensive effect subject to the intervention of a judicial decision to that effect on the request of the person concerned within the meaning of Article 27(3)(c) of that regulation.
65


In this respect, it should be recalled that the EU legislature did not intend the judicial protection enjoyed by applicants for international protection to be sacrificed to the requirement of expedition in processing applications for international protection (see, to that effect, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 57).
66


It follows that Member States wishing to strengthen the judicial protection of applicants by giving automatic suspensive effect to an appeal or a review brought against a transfer decision may not, for the sake of meeting the requirement of expedition, be placed in a less favourable situation than those Member States which did not deem it necessary to do so. Such would be the case if the former Member States did not have a sufficient period in which to carry out the transfer when the person concerned is detained and that person has decided to lodge an appeal (see, by analogy, judgment of 29 January 2009, Petrosian, C‑19/08, EU:C:2009:41, paragraphs 49 and 50).
68


However, in such a case, the person concerned finds himself in a situation in every respect comparable to that of a person whose appeal or review is recognised as having suspensive effect pursuant to Article 27(3) of that regulation.