Case summaries
Limiting the possibility to access classified information to the third country national does not automatically mean that their right to an effective remedy with regard to a return order was infringed. By the same token there has been no infringement of Article 47 of the Charter.
Internal borders of the EU Schengen zone can be crossed without submitting persons to any border control. However it does not mean that a third country national is not subject to any requirements while crossing the border. Interpretation of the Schengen Border Code, the Convention applying the Schengen Agreement and the Law on Foreigners leads to a conclusion that the third country national should hold a passport and a residence card while crossing the border. Holding these documents beyond doubt means possessing them, ie carrying them.
The Court found that the national legal provision was incompatible with the Returns Directive. Lodging a complaint against the return decision to the court cannot be a reason for prolonging detention under the Directive.
Any deprivation of liberty must fall within the exceptions set out in Art. 5 of the Convention, and must be lawful, namely in compliance with domestic law, and free from arbitrariness. For this latter purpose, domestic law must be sufficiently accessible, precise and foreseeable in its application.
After a certain time of mere waiting for the detainee’s cooperation, detention ceases to be genuinely imposed for the purpose of detention, in accordance with art. 5.1(f) of the Convention.
An Uzbeck national who had fled to Turkey was deported to Iran which constituted a violation of Article 3 of the European Convention on Human Rights. He then returned to Turkey and lives in hiding for fear of deportation.
The detention of a Somalian national is declared by the European Court of Human Rights to constitute a violation of Articles 3, 5 (4) and 5 (1). The cumulative effects of the detention conditions amounted to inhuman and degrading treatment and the detention could not be deemed lawful due to the lack of an effective remedy during detention and insufficient justification under Article 5 (1) (f).
Detention of migrants for criminal offences subject to return is lawful even if asylum-seeker status is subsequently acquired. The application of 2008/115/EC is then not mandatory and the detention’s duration is not addressed under Article 5 (1)(f) therefore is to be judged ad hoc.
The Supreme Court has requested two preliminary rulings to the Court of Justice of the European Union. The time of onset and the determination of the duration of the suspect’s ‘undesirable declaration’, which is considered equal to an entry ban, are under discussion since this statement had already been issued before the Return Directive was operational.
An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim. Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu.