K. v Staatssecretaris van Veiligheid en Justitie.
Date: 2017-09-14
32


First of all, it should be noted 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 that convention, 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 of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 15 and the case-law cited). Therefore, the examination of the validity of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 46 and the case-law cited, and of 28 July 2016, Council of Ministers, C‑543/14, EU:C:2016:605, paragraph 23).
35


In that regard, it should be noted that the limitation on the exercise of the right to liberty resulting from the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 is provided for by EU legislation and that it does not affect the essence of the right to liberty laid down in Article 6 of the Charter. The first subparagraph of Article 8(3)(a) and (b) of that 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 (see, by analogy, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraphs 51 and 52).
37


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 the 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 (judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 54 and the case-law cited, and of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 48 and the case-law cited).
38


In the assessment of the proportionality of that interference, it is necessary to take account, in accordance with Article 13(1) of Directive 2013/33, of the fact that applicants for international protection are obliged to cooperate with the competent authorities, in particular for the purpose of determining their identity, their nationality, and the grounds justifying their application, which amounts to supplying, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested.
39


In those circumstances, the detention of an applicant in order to determine or verify his identity or nationality, or in order to determine the elements on which the application for international protection is based which could not be obtained without that detention, in particular where there is a risk that that applicant will abscond, allows the applicant to be available to the national authorities so that they are able, inter alia, to interview him and, consequently, to contribute to the prevention of possible secondary movements of applicants referred to in recital 12 of Directive 2013/33 and pursued by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31) (see, to that effect, judgment of 17 March 2016, Mirza, C‑695/15 PPU, EU:C:2016:188, paragraph 52). It follows that that measure is, by its very nature, able to ensure the proper functioning of the Common European Asylum System and also capable of contributing to the achievement of the objective pursued by the first subparagraph of Article 8(3)(a) and (b) of that directive, as identified in paragraph 36 of the present judgment.
40


As regards the power which that provision confers on Member States to detain an applicant, 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 (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 56 and the case-law cited).
42


First, the first subparagraph of Article 8(3) of Directive 2013/33 lists exhaustively the various grounds which may justify recourse to detention and each of those grounds meets a specific need and is self-standing (see, to that effect, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 59). In that regard, it is apparent from the wording of the first subparagraph of Article 8(3)(a) of that directive that an applicant may be subject to such a measure only where he has failed to communicate his identity or nationality or the identification papers justifying that, notwithstanding his obligation to cooperate. Likewise, it results from the first subparagraph of Article 8(3)(b) of that directive that an applicant may be detained only where certain elements on which his application for international protection is based ‘could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant’.
43


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 fundamental rights or with the other general principles of EU law (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 60 and the case-law cited).
44


Secondly, the Court has already held that 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 (see judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 61).
45


Similarly, Article 9(1) of Directive 2013/33 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, in accordance with Article 9(2) to (5) of that directive, when a decision is taken to detain an applicant, significant procedural and legal safeguards must be observed. Thus, under Article 9(2) and (4) of Directive 2013/33, 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. Article 9(3) and (5) of Directive 2013/33 sets out the procedures which the Member States must establish for review by a judicial authority of the legality of the detention (see judgment of 15 February 2016, N., C 601/15 PPU, EU:C:2016:84, paragraph 62).
46


Thirdly, the Court has also held that the grounds for detention provided for in the first subparagraph of Article 8(3)(a) to (c) of Directive 2013/33 are 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, from which it is clear, in the version adopted in 2012, that, first, detention may be used only exceptionally and that, secondly, detention is to be used only as a last resort, when it is determined to be necessary, reasonable and proportionate to a legitimate purpose (see, to that effect, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 63).
48


Although the proper functioning of the Common European Asylum System requires, in practice, that the competent national authorities have at their disposal reliable information relating to the identity or nationality of the applicant for international protection and to the elements on which his application is based, that provision cannot justify detention measures being decided without those national authorities having previously determined, on a case-by-case basis, whether they are proportionate to the aims pursued. Such a determination involves ensuring that all of the conditions referred to in paragraphs 44 to 46 of the present judgment are satisfied and, in particular, that, in each individual case, detention is used only as a last resort. Moreover, it must be ensured that that detention does not exceed, in any case, as short a period as possible.
50


Finally, it should be noted that, in so far as the Charter contains rights corresponding to the rights guaranteed by the ECHR, Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, to that effect, judgment of 28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraph 50 and the case-law cited). Account must therefore be taken of Article 5(1) of the ECHR for the purpose of interpreting Article 6 of the Charter. By adopting the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33, the EU legislature did not disregard the level of protection afforded by the second limb of Article 5(1)(f) of the ECHR.