Brussels, 17/07/2014 (Agence Europe) - Member states cannot rely on the fact that there are no specialised facilities in a part of their territory to justify detaining third-country nationals in prison pending their removal and the same applies even if the third-country national concerned has given his consent to being accommodated in prison, ruled the European Court of Justice on Thursday 17 July in three joint cases (C-473/13, C-514/13 and C-474/13).
The three cases were referred to the European Court of Justice by two German courts. In Germany, each federated state (Land) is responsible for carrying out the detention of illegally staying third-country nationals. There are no specialist detention facilities in the Land of Bavaria, so the federal authorities detain people in prisons, and the Land of Hesse has no specialised detention facilities that could accommodate women.
The return directive (2008/115/EC) provides that any detention of third-country nationals pending their removal must, as a rule, take place in a specialised facility and can take place only on an exceptional basis in prison accommodation, the member state then having to ensure that the third-country national is kept separated from ordinary prisoners. The Court of Justice was asked whether a member state is required to detain illegally staying third-country nationals in a specialised detention facility when the federated state competent to decide upon and carry out such detention does not have such a detention facility.
The Court of Justice said yes. The return directive makes member states' authorities responsible irrespective of the country's administrative or constitutional structure. A specialist detention centre does not necessarily have to built in each federated part of that country (each Land in this case), but the competent authorities of the federated states without such facilities can provide accommodation for non-EU nationals in specialised detention facilities located in other federated states. The Court of Justice stated that this responsibility is not removed by the fact that the detained individual gives his or her consent to being held in a prison. (JK)