CJEU: Case C-601/15 (PPU) J.N. v Staatsecretariat van Veiligheid en Justitie

Monday, February 15, 2016

The case C-601/15 (PPU) J.N. relates to a third country national who entered the Netherlands in 1995. After the rejection of his third asylum claim in 2014 he was ordered to leave the territory of the EU, with a 10 year entry ban. He had been convicted 21 times for criminal offences, mainly for theft, and was sentenced to terms of imprisonment and fines. In January 2015 he was arrested for theft and for breach of the entry ban and was sentenced to a term of imprisonment, during which he made a fourth asylum claim. After serving his sentence he was placed in detention as an asylum seeker under domestic law transposing Article 8(3)e) of the recast Reception Conditions Directive (RCD), on the basis that this was required for the protection of national security or public order. He challenged his detention and when the matter came before the Raad van State it referred questions to the CJEU on the validity of Article 8(3) e) RCD in light of Article 6 of the EU Charter.

The Grand Chamber of the CJEU considered that Article 8(3) e) was a limitation on the right to liberty guaranteed by Article 6 of the Charter (which had the same meaning and scope as Article 5 ECHR).  It emphasised the legitimate interest and objective of detaining persons to protect national security and public order, which also contributed to protecting the rights and freedoms of others, noting that Article 6 also guaranteed the right to security.

It considered that there were a number of limitations which strictly regulated the use of detention under Article 8(3)e). It could only be imposed when ‘required’ to protect national security and public order; detention grounds must be laid down in national law; Article 8(1) prevents detention solely on the ground of having lodged an application for international protection; and Article 8(2) requires detention to be ordered only where necessary, on the basis of an individualised assessment, and where no less coercive measures could be effectively applied.Further limitations and procedural safeguards are set out in Article 9. In addition, this power was limited by the CJEU jurisprudence which strictly interpreted the concepts of interference with national security and public order (see Case C-145/09 Tsakouridis and Case C-373/13 H.T.).

The CJEU concluded that the EU legislature had struck the correct balance between the right to liberty of the applicant and the requirements of protection national security and public order. Detention in this case was proportionate given the offences committed by J.N. and that he had been issued an entry ban of over 5 years, meaning that national authorities had already deemed his individual behaviour to constitute a threat to public order, public safety or public security according to Article 11 of the Return Directive.

The effectiveness of the objectives pursued by the Return Directive required that if return procedures were suspended due to the lodging of application for international being lodged, they should be continued from the point of interruption after such application is dismissed, rather than starting return proceedings again. With regard to the ECtHR ruling in Nabil v. Hungary, the CJEU found that this judgment did not rule out the possibility for a Member State to detain a third country national against whom a return decision with an entry ban had already been taken prior to his/her lodging an application for international protection. Pending asylum proceedings did not preclude that detention was for the purpose of deportation, as a rejection could lead to implementation of a deportation order that had already been ordered, so return proceedings were still ‘in progress’ according to Article 5(1) f) ECHR.

As such Article 8(3) e) RCD was considered to be valid in the light of Article 6 of the Charter.

Based on an unofficial ELENA translation. A press release issued by the CJEU in English is available here.

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Serious non-political crime