JZ*

On 23 April 2020, Advocate General Szpunar delivered his Opinion in Case C-806/18, JZ, which concerns the compatibility of national criminal legislation on the illegal stay of third-country nationals with EU law.

With an order of March 2013, JZ, who had already been declared an undesirable foreign national by a Dutch order of April 2000 in accordance with Dutch legislation implementing Directive 2008/115, was subject to a five-year entry ban, which is regulated by Article 11 of that Directive. The order of March 2013 lifted the previous declaration of undesirability (from the moment in which the entry ban would take effect), but the effects of the two orders were the same: JZ had to leave the Netherlands immediately. As a matter of fact, JZ had not left the Netherlands neither after the order of April 2000 nor after that of March 2013. According to Article 197 of the Dutch Code of Criminal Law, foreign nationals who remain in the Netherlands while knowing, or having serious reason to suspect, that they have been declared to be undesirable pursuant to a statutory provision or that an entry ban has been imposed on them are liable to, inter alia, a term of imprisonment not exceeding six months. JZ had remained in the Netherlands despite the entry ban, hence he was sentenced to a prison term of two months by the Court of Appeal of Amsterdam. Since JZ had never left the country, however, the entry ban had not technically entered into force, as the case law of the Court of Justice has already clarified: in Case C-225/16, Ouhrami, the CJEU argued that ‘the starting point of the duration of an entry ban, as referred to in [Article 11 of Directive 2008/115], which in principle may not exceed five years, must be calculated from the date on which the person concerned actually left the territory of the Member States’ (emphasis added). Therefore, the question raised by the Dutch Supreme Court is whether the provisions of Directive 2008/115 preclude national legislation which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national when the conduct declared to be criminal is defined by reference to the imposition of an entry ban which has not yet taken effect.

The AG first reminds that, according to the established case law of the Court of Justice, the deprivation of liberty on an illegally staying thirdcountry national in principle frustrates the objectives of Directive 2008/115, which aims to ensure the orderly return of the person concerned. There are however two exceptions. First, if the competent national authorities follow the return procedure established by the Directive and the third-country national is still staying illegally with no justified ground for non-return, then an imprisonment sentence would not contradict the aim of the Directive. With reference to a previous case by the CJEU, this is called the ‘Achughbabian’ situation. While prima facie the situation of JZ seems similar, a closer examination leads to a different conclusion. The Dutch authorities followed the return procedure but JZ was not sentenced because such procedure was unsuccessful, but rather because he had violated the entry ban by continuing to stay in the Netherlands.

Second, the imprisonment of third-country nationals is compatible with EU law when the return procedure has been applied and they reenter the territory of an EU Member State in breach of an entry ban (the ‘Celaj’ situation). JZ’s position is however different since he has never left the Netherlands. In sum, the AG explains that ‘the present case does not concern the question whether a Member State can, in a situation such as that at issue in the main proceedings, provide for the imposition of a sentence of imprisonment (yes, it can), but rather the actual implementation of that possibility by the Netherlands legislature, in so far as Article 197 of the Code of Criminal Law penalises an illegal stay of a person who has knowledge of an entry ban which, in cases such as that in the main proceedings, has not yet begun to take effect for want of an initial return’ (para. 33; emphasis in the original).

Against this backdrop, AG Szpunar first argues that Article 197 of the Dutch Code of Criminal Law is not very clear, since it blurs the Directive’s distinction between a return decision and an entry ban. He then clarifies that the situation at hand falls within the scope of Directive 2008/115, which does not harmonise national criminal legislation on third-country nationals’ illegal stay but can preclude such legislation if it hampers the Directive’s objective to ensure an orderly return of the persons concerned. As a consequence, the issue raised by the Dutch Court falls within the scope of application of the Charter of Fundamental Rights of the European Union (CFREU). In essence, the question is whether the limitation of liberty that follows from the application of Article 197 of the Dutch Code of Criminal Law complies with the requirements set out in Article 52 of the Charter. According to the latter provision, any limitation on the exercise of the Charter’s rights and freedoms must be provided for by law, respect the essence of those rights and freedoms, and be subject to the principle of proportionality. Furthermore, when the Charter rights correspond to the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the meaning and scope of those rights shall be the same as those laid down by the ECHR.

Enshrined in Article 6 CFREU, the right to liberty is also laid down in Article 5 ECHR, which should therefore be taken into account as the minimum threshold of protection. The AG points out that, according to the case law of the European Court of Human Rights, ‘any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also in the sense that lawfulness concerns the quality of the law, implying that a national law authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness’ (para. 47). Similar guarantees are required by Article 49 CFREU, which lays down the principle of legality (nullum crimen sine lege).

The AG argues that it is for the national court to analyse the compatibility of Article 197 of the Dutch Code of Criminal Law with the Charter, read in conjunction with the ECHR as interpreted by the Strasbourg Court. In other words, the national court should assess whether Article 197 clearly criminalises the breach of the obligation to leave the territory of the Netherlands. If such an assessment gives a negative outcome, the principle of legality would not be complied with. The AG therefore draws the conclusion that Directive 2008/115 does not preclude a Member State’s legislation that provides for a sentence of imprisonment to be imposed on an illegally staying third-country national ‘when the offending conduct is defined by reference to the imposition of an entry ban which has not yet taken effect in the absence of the departure of the person concerned, provided that that that legislation is sufficiently specific to allow the scope and application of the offence to be identified and interpreted, which is for the national court to verify’ (para. 50; emphasis added).