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When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ Everyone shall have the possibility of being advised, defended and represented. ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Įveryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
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Under Article 6 of the Charter, ‘everyone has the right to liberty and security of person’.Īrticle 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, provides as follows: To my mind, the same is true of Article 6 of the Charter and Article 5 ECHR. ( 5) So far as Article 7 of the Charter and Article 8(1) ECHR are concerned, the Court has confirmed that ‘Article 7 of the Charter must … be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights’. ( 4) The first sentence of Article 52(3) of the Charter stipulates that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR. That Article corresponds to Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That case-law relates to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). In this View I shall make several references to the case-law of the European Court of Human Rights (‘EHR Court’) because Directive 2008/115 rightly aims to take into account the case-law of that Court ( 3) concerning detention.
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This is the fourth ( 2) occasion on which the Court has found it necessary to use the urgent procedure in relation to a request for a preliminary ruling concerning the interpretation of certain provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals ( OJ 2008 L 348, p. 98), usually known as the ‘Return Directive’. ‛Area of freedom, security and justice - Return Directive - Removal of an illegally staying third-country national - Detention - Extension of detention - Whether permissible to exceed the maximum period of detention because of a lack of identity documents - Obstacles to implementation of the removal decision - Reasonable prospect of removal - Refusal of the embassy of the country of origin of the person concerned to issue the document required for the return journey - Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned’ (Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria))
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Visas, asylum, immigration and other policies related to free movement of persons - Directive 2008/115/EC - Return of illegally staying third-country nationals - Article 15 - Detention - Extension of detention - Obligations of the administrative or judicial authority - Review by a judicial authority - Third-country national without identity documents - Obstacles to implementation of a removal decision - Refusal of the embassy of the third country concerned to issue an identity document enabling the third-country national to be returned - Risk of absconding - Reasonable prospect of removal - Lack of cooperation - Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned.ĭigital reports (Court Reports - general)ĭirektor na Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti Reference for a preliminary ruling: Administrativen sad Sofia-grad - Bulgaria. View of Advocate General Szpunar delivered on.