Voraussetzungen für die Rechtmäßigkeit der Abschiebungshaft:
Ein nationales Gericht, das über die Rechtmäßigkeit der Inhaftierung eines ausreisepflichtigen Drittstaatsangehörigen zum Zweck der Abschiebung aufgrund einer endgültigen Rückführungsentscheidung zu entscheiden hat, muss prüfen, ob der Grundsatz der Nichtzurückweisung im Sinne von Art. 5 RL 2008/115/EG, das Kindeswohl oder familiäre Bindungen im Sinne von Art. 5 Buchst. a bzw. b RL 2008/115/EG der Abschiebung entgegenstehen.
(Leitsätze übersetzt)
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45 By its first question, the referring court seeks, in essence, to ascertain whether Articles 5 and 15 of Directive 2008/115, read in conjunction with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the principle of non-refoulement precludes that removal. [...]
57 Accordingly, the competent national authority must, inter alia, determine, in accordance with the conditions governing the lawfulness of detention laid down in Article 15 of Directive 2008/115, whether there is a reasonable prospect of the illegally staying third-country national concerned being removed or whether such legal considerations preclude his or her removal. [...]
60 In particular, Article 5 of Directive 2008/115 obliges the competent national authority to observe, at all stages of the return procedure, the principle of non-refoulement, which is guaranteed, as a fundamental right, in Article 18 of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees, and in Article 19(2) of the Charter (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C-69/21, EU:C:2022:913, paragraph 55, and of 17 October 2024, Ararat, C-156/23, EU:C:2024:892, paragraph 35).
61 According to settled case-law, Article 19(2) of the Charter, read in conjunction with Article 4 thereof, prohibits in absolute terms, irrespective of the conduct of the person concerned, removal, expulsion or extradition to a State where there is a serious risk of that person being subjected to the death penalty, torture or inhuman or degrading treatment or punishment. Therefore, Member States may not remove, expel or extradite a foreign national where there are substantial grounds for believing that he or she will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by those two provisions of the Charter (judgment of 17 October 2024, Ararat, C-156/23, EU:C:2024:892, paragraph 36and the case-law cited).
62 Thus, where there are substantial grounds for believing that an illegally staying third-country national will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by those provisions of the Charter, that national cannot be removed while such a risk persists, as is expressly provided for in Article 9(1)(a) of Directive 2008/115 (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C-69/21, EU:C:2022:913, paragraphs 58and 59).
63 That is the case even where the third-country national concerned is the subject of a return decision that he or she has not contested and that has thus become final.
64 The competent national authority must take account of the principle of non-refoulement at all stages of the procedure, from the time of the adoption of a return decision until the judicial review of the enforcement of that decision (see, to that effect, judgment of 17 October 2024, Ararat, C-156/23, EU:C:2024:892, paragraph 46), irrespective of the conduct of the third-country national concerned and, in particular, of whether he or she challenged that decision, as is apparent from paragraph 61 above. [...]
66 It follows that, where the competent national authority is called upon to order, review or extend a detention measure for the purpose of the removal of an illegally staying third-country national, it must verify that the principle of non-refoulement does not preclude removal of that national.
67 As regards, in the second place, the right of third-country nationals who have been detained to effective judicial protection, it is settled case-law that, under Article 47 of the Charter, the Member States must ensure effective judicial protection of rights which individuals derive from EU law (judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C-704/20 and C-39/21, EU:C:2022:858, paragraph 81). [...]
71 In order that such a system of protection effectively ensures compliance with the strict conditions which a detention measure covered by Directive 2008/115 is required to satisfy in order to be lawful, the competent judicial authority must be in a position to rule on all matters of fact and of law relevant to the review of that lawfulness. To that end, it must be able to take into account the facts stated and the evidence adduced by the administrative authority which ordered the initial detention. It must also be able to take into account any facts, evidence and observations which may be submitted to it by the person concerned. Furthermore, that authority must be able to consider any other element that is relevant for its decision should it so deem necessary. The powers which it has in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority (judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C-704/20 and C-39/21, EU:C:2022:858, paragraph 87and the case-law cited). [...]
73 In those circumstances, and having regard to the grounds set out in paragraphs 54 to 66 above, it must be held that the judicial authority with the power to review detention or continued detention of an illegally staying third-country national must satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude the removal of that third-country national. If it were to conclude that that principle precludes the removal, it would be required, in accordance with the fourth subparagraph of Article 15(2) and Article 15(4) of Directive 2008/115, to release that national immediately.
74 It also follows from the foregoing that a national rule or practice under which the full examination of the principle of non-refoulement may be carried out only in the context of a procedure for international protection would be contrary to Articles 5 and 15 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter. That directive, including Article 5 thereof, applies to any third-country national staying illegally, irrespective of the reasons for that situation (see, to that effect, judgments of 3 June 2021, Westerwaldkreis, C-546/19, EU:C:2021:432, paragraph 45, and of 17 October 2024, Ararat, C-156/23, EU:C:2024:892, paragraphs 32and 40). [...]
