Opinion of Advocate General Sharpston delivered on 31 January 2019.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2019:85
• Date: 31 January 2019

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 31 January 2019(1)

Case C‑704/17

D. H.

joined party:

Ministerstvo vnitra

(Request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic))

(Reference for a preliminary ruling — Area of freedom, security and justice — Charter of Fundamental Rights of the European Union — Articles 6 and 47 — Common policy on asylum and subsidiary protection — Directive 2013/33/EU — Article 9 — Guarantees for applicants for international protection who are subject to administrative detention — Judicial review of such decisions — Right to an effective remedy — National rules discontinuing process of judicial review upon release of applicants for international protection)

1. By this request for a preliminary ruling the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) asks the Court for guidance on the interpretation of the provisions of Directive 2013/33/EU (2) which provide guarantees for applicants for international protection placed in administrative detention pursuant to a decision of the competent national authorities. The referring court seeks to ascertain whether that directive, read in conjunction with the Charter of Fundamental Rights of the European Union, (3) in particular the rights to liberty and security and to an effective remedy enshrined therein, precludes national rules which provide that proceedings challenging a detention decision must be discontinued if the person concerned is released.

2. The question raised by the referring court requires, inter alia, this Court to examine the fundamental right to an effective remedy together with the general principles of EU law of equivalence and effectiveness in the context of national procedural autonomy.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’)

3. Article 5(1) of the ECHR (4) provides that ‘everyone has the right to liberty and security of person’. Article 5(4) states that ‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. Pursuant to Article 5(5), ‘everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation’.

EU law

The Charter

4. Article 6 provides that ‘everyone has the right to liberty and security of person’. (5) The remaining provisions of Article 5 of the ECHR are not specifically replicated.

5. The first paragraph of Article 47 states that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal. (6)

6. In accordance with Article 51(1), the provisions of the Charter apply to the Member States ‘only when they are implementing [EU] law’.

7. Pursuant to Article 52(1), ‘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. Subject to the principle of proportionality, limitations may be made 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’. Article 52(3) states that ‘in so far as [the] Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by [the ECHR]. This provision shall not prevent [EU] law providing more extensive protection’. Article 52(7) provides that the courts of the European Union and of the Member States shall give ‘due regard’ to ‘the explanations drawn up as a way of providing guidance in the interpretation of [the] Charter’. (7)

8. The Explanations make clear that ‘the rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope’. Consequently, ‘the limitations which may legitimately be imposed on [those rights] may not exceed those permitted by the ECHR’. The Explanations indicate that the protection guaranteed in Article 47 of the Charter is more extensive than that provided by Article 13 of the ECHR, since it guarantees the right to an effective remedy before a court.

Directive 2013/32

9. Article 26(2) of Directive 2013/32/EU on common procedures for granting and withdrawing international protection (8) provides that ‘where an applicant is held in detention, Member States shall ensure that there is a possibility of speedy judicial review in accordance with Directive 2013/33’.

Directive 2013/33

10. The recitals of Directive 2013/33 include the following statements:

– The European Council adopted the Stockholm Programme (9) which reiterated a commitment to the objective of establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection based on high protection standards and fair and effective procedures (recital 5);

– With respect to the treatment of applicants for international protection, Member States are bound by obligations under instruments of international law to which they are party (recital 10);

– Such persons may be detained only in very clearly defined exceptional circumstances laid down in Directive 2013/33 and subject to the principles of necessity and proportionality with regard both to the manner and the purpose of such detention; where an applicant for international protection is held in detention he should have effective access to the necessary procedural guarantees, such as judicial remedy before a national judicial authority (recital 15); and

– Directive 2013/33 respects the fundamental rights and observes the principles recognised in particular by the Charter; it seeks to promote the application of, inter alia, Articles 6 and 47 of the Charter and should be implemented accordingly (recital 35).

11. Article 2 includes the following definitions. An ‘application for international protection’ is ‘a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of [Directive 2011/95], that can be applied for separately’. (10) The ‘applicant’ means ‘a third-country national or stateless person who has made an application for international protection in respect of which a final decision has not yet been taken’. (11) Finally, ‘detention’ means the ‘confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement’. (12)

12. Article 3 states that Directive 2013/33 applies to ‘… all third-country nationals and stateless persons who make an application for international protection on the territory, including at the border, in the territorial waters or in the transit zones of a Member State, as long as they are allowed to remain on the territory as applicants …’.

13. In accordance with Article 4, Member States may introduce or retain more favourable provisions as regards reception conditions for applicants.

14. Article 8 lays down the substantive conditions governing detention of applicants for international protection. Applicants may be detained only on the grounds laid down in Article 8(3). In particular, Article 8(3)(d) allows the Member States to detain an applicant for international protection in the context of a return procedure under Directive 2008/115/EC (13) ‘in order to prepare the return and/or carry out the removal process’, where the Member State concerned ‘can substantiate on the basis of objective criteria, including that [the person concerned] already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision’. The grounds for detention are to be laid down in national law.

15. Article 9 is entitled ‘Guarantees for detained applicants’. It provides:

‘1. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable.

…

2. Detention of applicants shall be ordered in writing by judicial or administrative authorities. The detention order shall state the reasons in fact and in law on which it is based.

3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. When conducted ex officio, such review shall be decided on as speedily as possible from the beginning of detention. When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted.

Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately.

4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation.

5. Detention shall be reviewed by a judicial authority at reasonable intervals of...