Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Salah Al Chodor and Others.
Date: 2017-03-15
25


It should be noted at the outset that the Dublin III Regulation, pursuant to Article 28(2) thereof, permits the detention of applicants, in order to secure transfer procedures in accordance with that regulation, when there is a significant risk of absconding on the basis of an individual assessment, and only in so far as the detention is proportional and where other less coercive alternative measures cannot be applied effectively. Article 2(n) of that regulation defines, in turn, the term ‘risk of absconding’ as the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that the person concerned may abscond.
27


In that regard, it must be recalled that, according to well-established case-law of the Court, pursuant to Article 288 TFEU and by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application. Nonetheless, some of those provisions may necessitate, for their implementation, the adoption of measures of application by the Member States (see, to that effect, judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, C‑42/10, C‑45/10 and C‑57/10, EU:C:2011:253, paragraphs 47 and 48 and the case-law cited).
30


In accordance with the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, C‑550/14, EU:C:2016:354, paragraph 27 and the case-law cited).
32


Where the various language versions differ, the scope of the provision in question cannot be determined on the basis of an interpretation which is exclusively textual, but must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, C‑550/14, EU:C:2016:354, paragraph 28 and the case-law cited).
33


With regard to the general scheme of the rules of which Article 2(n) of the Dublin III Regulation forms part, the Court has previously held that it is apparent from recital 9 of that regulation that, while confirming the principles underlying it, that regulation is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded to applicants under that system, to be achieved by, inter alia, the judicial protection enjoyed by asylum seekers (judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, paragraph 52).
36


As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, it must be recalled that, by authorising the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter (see, by analogy, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 49).
37


In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. 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 must be the same as those laid down by that convention, while specifying that EU law may provide more extensive protection. For the purpose of interpreting Article 6 of the Charter, account must therefore be taken of Article 5 of the ECHR as the minimum threshold of protection.
38


According to the European Court of Human Rights, any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness (see, to that effect, judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, CE:ECHR:2013:1021JUD004275009, §125).
39


Furthermore, according to the case-law of the Court of Justice in that regard, it must be noted that the objective of the safeguards relating to liberty, such as those enshrined in both Article 6 of the Charter and Article 5 of the ECHR, consists in particular in the protection of the individual against arbitrariness. Thus, 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, this means, in particular, that there can be no element of bad faith or deception on the part of the authorities (see, to that effect, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 81).
40


It follows from the foregoing that the detention of applicants, constituting a serious interference with those applicants’ right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.