Opinion of Advocate General Norkus delivered on 3 September 2026.

Provisional text

OPINION OF ADVOCATE GENERAL

NORKUS delivered on 3 September 2026 ( 1 )

Case C ‑ 218/25 [Wompou] ( i )

BC v Minister van Asiel en Migratie

(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands))

( Reference for a preliminary ruling – Immigration policy – Directive 2008/115/EC – Detention for the purposes of return – Conditions of detention – Article 16(1) – Specialised detention facility – Constraints necessary to ensure effective removal – Legality of additional limitations or constraints – Articles 1, 6, 7 and 11 of the Charter of Fundamental Rights of the European Union – Scope of judicial review )

I. Introduction

1. The present request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands) concerns the conditions of detention of a third-country national who is the subject of return procedures pursuant to Directive 2008/115/EC. ( 2 ) It requires the Court to clarify and develop its existing case-law on the first sentence of Article 16(1) of Directive 2008/115 which stipulates that the detention of such a third-country national shall take place as a rule in ‘specialised detention facilities’.

2. The term ‘specialised detention facilities’ is not defined in Directive 2008/115. However, in the judgment in Landkreis Gifhorn , ( 3 ) the Court held, inter alia, that such a facility is ‘characterised by the arrangement and equipment of its premises and by organisational and operational arrangements which are such as to constrain the illegally staying third-country national who is detained there to remain permanently within a restricted and closed perimeter, while limiting such a constraint to what is strictly necessary in order to ensure effective preparation for his or her removal’. ( 4 ) Moreover, detention in such a facility does not have a punitive purpose and must avoid, as much as possible, resembling detention in a prison environment.

3. The Court is now asked to further specify, inter alia, what is meant by the requirement to limit such constraint to what is ‘strictly necessary in order to ensure effective preparation for … removal’. In addition, the Court is asked whether and, if so, to what extent additional constraints which are not directly related to the purpose of detention ( 5 ) may be imposed by Member States. The Court is further asked to clarify the scope of judicial review that national courts should apply when assessing such constraints.

4. The request was made in the context of proceedings between BC, a third-country national, and the Minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands; ‘the Minister’) concerning the applicant’s detention at the Justitieel Complex Schiphol (Schiphol Judicial Complex; ‘the JCS’).

II. Legal context – European Union law

5. Article 16 of Directive 2008/115, entitled ‘Conditions of detention’, states:

‘1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.

2. Third-country nationals in detention shall be allowed – on request – to establish in due time contact with legal representatives, family members and competent consular authorities.

3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided.

…

5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations …’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

6. By decision of the Minister of 21 February 2025, BC was refused entry to the Netherlands under Article 14 of Regulation 2016/399, ( 6 ) read in conjunction with Article 6 thereof. On the same day, BC was detained at the JCS on the basis of a separate decision adopted pursuant to Article 6(1) and (2) of the Vreemdelingenwet 2000 (Law on foreign nationals of 2000), of 23 November 2000 ( 7 ) in conjunction with Article 6(6) thereof.

7. BC lodged an appeal against his detention before the referring court. ( 8 ) He claimed that his detention was unlawful as the JCS is not a ‘specialised detention facility’ within the meaning of the first sentence of Article 16(1) of Directive 2008/115. BC relied on a judgment adopted by the referring court in another case on 31 January 2025, in which that court ruled that the JCS was not a ‘specialised detention facility’. ( 9 ) The referring court based its assessment on an inspection of the JCS that it had conducted in the context of two cases pending before it. ( 10 ) The Minister contended that, by judgment of 26 February 2025, ( 11 ) the Raad van State (Council of State, Netherlands) overruled the judgment of the referring court of 31 January 2025 and held that the JCS constitutes a ‘specialised detention facility’. According to the Minister, the JCS must be regarded as a ‘specialised detention facility’ within the meaning of the first sentence of Article 16(1) of Directive 2008/115. The Minister considers that the conditions of BC’s detention are not unlawful.

8. The referring court notes that, in its judgment of 26 February 2025, the Raad van State (Council of State) ruled that limitations aimed at guaranteeing the safety of third-country nationals or staff may be necessary, even where they are not directly related to the purpose of returning a detainee. The referring court acknowledges that, in principle, it is bound by the case-law of the Raad van State (Council of State), which is the highest administrative court of the Netherlands. However, given that the referring court must apply EU law, and in the light of its ongoing doubts regarding the interpretation of the term ‘specialised detention facility’ contained in the first sentence of Article 16(1) of Directive 2008/115, that court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a Member State acting in accordance with Article 16 of [Directive 2008/115] by routinely using a detention facility where both foreign nationals as referred to in [Directive 2008/115] and criminal detainees are held – separately from each other – in different units, and the units are identical in terms of construction and decor and, where necessary, are also interchangeable in practice?

(2) Would the answer to the previous question be different if shared facilities were used for both criminal and immigration detention and contact between immigration detainees and criminal detainees could therefore take place? What should be understood by “held separately from each other” in this context? Does that mean that no form of contact is allowed? If not, which forms of contact are allowed?

(3) What should be understood by “limiting to what is strictly necessary” for the purpose [of the detention], as determined by the Court of Justice in the [judgment in Landkreis Gifhorn ]? Does that mean that if there is no direct relationship between the limitation and the purpose of the detention – an effective preparation for the removal – the limitation is by definition not allowed?

(4) If a Member State were allowed to impose additional limitations not directly related to the purpose of the detention, to what should these limitations then adhere, in view of the fact that full respect for the fundamental rights of the foreign national must be guaranteed, in particular the right to human dignity, freedom, private and family life and information as described in Articles 1, 6, 7 and 11 of the Charter of Fundamental Rights of the European Union?

(5) If a Member State were allowed to impose additional limitations not directly related to the purpose of the detention, how should the court review the legality of those? Is that a comprehensive or a [limited] review?

(6) What circumstances should the court consider when assessing whether the conditions of detention at the facility are such that they avoid, as much as possible, the detention resembling detention in a prison environment, suitable for detention for punitive purposes?

(7) When determining whether a detention facility is specialised, can the court simply compare the way in which immigration detention and criminal detention are organised?’

IV. Procedure before the Court of Justice

9. The referring court asked that the present request for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice. On 7 April 2025, the referring court, in response to questions from the Court of Justice, indicated that BC was no longer in detention at the JCS following his return to his country of origin. By decision of 8 April 2025, the Second Chamber of the Court of Justice rejected the request for urgent treatment of the present request for a preliminary ruling as it was not apparent that the conditions laid down in Article 107 of the Rules of Procedure were satisfied.

10. The referring court also asked that the present request for a preliminary ruling be dealt with under the accelerated procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice. By order of 3 June 2025, the President of the Court of Justice rejected that request.

11. Written observations were submitted by BC, the German and Netherlands Governments, and the European Commission.

12. In the light of the request of the Court, I shall confine my Opinion in the present case to the third, fourth and fifth questions referred by the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam).

V. Analysis

A. The third and fourth questions referred

13. By its third and fourth questions, which it is appropriate to examine together, the referring court essentially seeks to ascertain whether, and if so under what conditions, additional limitations or constraints, other than those which are strictly necessary in order to ensure the effective preparation of an illegally staying third-country national for his or her removal and/or to carry out the removal process, are permitted. In that regard, the referring court listed a number of specific limitations placed on detainees at the JCS which it observed during the inspection referred to in point 7 of the present Opinion.

14. The referring court found that detainees are routinely locked up in a cell at night between 22:00 and 08:00. Given that detainees cannot leave the unit where they are being held of their own accord, the referring court queries whether such nocturnal confinement is necessary for the purpose of returning them to their country of origin. The referring court found that a number of other limitations also apply. These include the requirement for two people to share a cell, the requirement to be accompanied when using the outdoor spaces, the inability to freely attend the medical service or consult a lawyer, the requirement to be ‘screened by a security detector’ after meeting third parties, the use of camera surveillance during visits, the lack of free access to personal mobile telephones, limited access to the internet and the requirement to seek the assistance of a prison officer to carry out daily activities such as cooking or removing food from the freezer.

15. The main objective of Directive 2008/115 is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned. ( 12 ) Article 15 of Directive 2008/115 permits the detention of illegally staying third-country nationals in certain specified circumstances to ensure the effectiveness of the return procedure. Thus, in accordance with Article 15(1) of Directive 2008/115, unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular where ‘there is a risk of absconding’ or where ‘the third-country national concerned avoids or hampers the preparation of return or the removal process’. Any detention is to be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. Recital 16 of Directive 2008/115 states that ‘the use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. …’ Thus, it is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his or her liberty and detain him or her. ( 13 )

16. Detention under Directive 2008/115 in the context of a return procedure as a result of an illegal stay constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’). ( 14 ) Such detention is thus a strictly circumscribed and exceptional measure which is permitted only when less coercive measures prove inadequate.

17. Article 16 of Directive 2008/115 establishes the material conditions of such detention. In accordance with the first sentence of Article 16(1) of Directive 2008/115, the detention of illegally staying third-country nationals for the purpose of removal must, as a rule, take place in ‘specialised detention facilities’. In accordance with the second sentence of Article 16(1) of Directive 2008/115, ‘where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.’ The second sentence of Article 16(1) of Directive 2008/115 thus lays down a derogation from the principle that the detention of illegally staying third-country nationals for the purpose of removal must take place in ‘specialised detention facilities’, which, as such, must be interpreted strictly. ( 15 ) In the judgment in Landkreis Gifhorn , the Court held that detention in such specialised detention facilities constitutes a coercive measure that deprives the person concerned of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter. ( 16 ) Given that the purpose of detention measures, within the meaning of Directive 2008/115, is not the prosecution or punishment of criminal offences, the Court required that the facilities and the conditions of detention must be different from the normal conditions under which custodial sentences are enforced in prison accommodation. ( 17 ) Moreover, the conditions of detention must be designed in such a way that both the fundamental rights guaranteed by the Charter and the rights enshrined in Article 16(2) to (5) and Article 17 of Directive 2008/115 are respected. ( 18 ) In that regard, recital 17 to Directive 2008/115 provides, inter alia, that ‘third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. …’

18. While the Court stated in the judgment in Landkreis Gifhorn that the constraint of an illegally staying third-country national’s freedom of movement must be limited to what is strictly necessary in order to ensure effective preparation for his or her removal and must avoid having a punitive character, Article 16(5) of Directive 2008/115, by requiring that third-country nationals kept in detention be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations, expressly contemplates the imposition of rules ( 19 ) and obligations other than a limitation on freedom of movement within a closed perimeter. ( 20 ) Such rules and obligations are also clearly contemplated in the judgment in Landkreis Gifhorn. ( 21 )

19. However, in the light of the fact that detention under Directive 2008/115 is in itself a coercive measure which constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter, ( 22 ) I consider that other rules and obligations which further limit that right or limit other rights and freedoms enshrined in the Charter must comply with Article 52(1) thereof. It must also be emphasised that such rules and obligations may not be punitive in nature or render detention under Directive 2008/115 similar to the normal conditions under which custodial sentences are enforced in prison accommodation. ( 23 )

20. In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law, respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ( 24 ) I consider that necessary and proportionate limitations on the rights of detainees may thus be imposed in order, inter alia, to prevent disorder within a detention facility and protect the rights and freedoms of other people, in particular those of other detainees and members of staff. Such limitations are a necessary and inherent aspect of ensuring the effective preparation of a detainee’s removal as required by the judgment in Landkreis Gifhorn .

21. When examining the proportionality of limitations on the exercise of the rights and freedoms recognised by the Charter, both the individual effect and the cumulative effect of limitations should be examined. Moreover, the average period of duration of detention at a facility should be taken into account.

22. The right to impose such limitations is subject to an important caveat. Member States are required to comply with the prohibition of inhuman or degrading treatment, as laid down in Article 4 of the Charter, when implementing Directive 2008/115. That prohibition is absolute and not subject to any exception. ( 25 ) Article 4 of the Charter requires that a person detained under the criminal justice system must be detained in conditions which guarantee respect for his or her human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and welfare are adequately secured. ( 26 ) These minimum requirements apply, a fortiori, to the detention of third-country nationals under Directive 2008/115. ( 27 )

23. I consider that rules and obligations adopted in accordance with Article 16(5) of Directive 2008/115 comply, in principle, with the requirement under Article 52(1) of the Charter of being ‘provided for by law’, ( 28 ) if they respect the requirements of clarity, predictability, accessibility and protection against arbitrariness. ( 29 ) In order to ensure compliance with those requirements, a third-country national kept in detention should be systematically provided upon arrival at a detention facility or very shortly thereafter with a written copy in plain language ( 30 ) of ‘information which explains the rules applied in the facility and sets out [his or her] rights and obligations’. ( 31 ) That information must also be provided in a language he or she understands or may reasonably be expected to understand. ( 32 ) In addition, on request, reasonable efforts should be made by the staff of a detention facility to further explain such rules. ( 33 ) In the report to the Government of the Netherlands on the periodic visit to the Kingdom of the Netherlands carried out by the CPT from 10 to 25 May 2022, ( 34 ) it was noted that, at the JCS, ‘the delegation could itself observe that staff spent quite some time explaining the rights and the house rules to newly arrived persons who had also received some written documents’. ( 35 )

24. Prior to examining the specific concerns raised by the referring court in relation to the conditions of detention in the JCS, it must be recalled that in the context of Article 267 TFEU, the Court has no jurisdiction to apply the rules of EU law to a particular case. It is, therefore, for the referring court to carry out the legal classifications necessary for the resolution of the dispute in the main proceedings. On the other hand, it is for the Court to provide the referring court with all necessary information with a view to offering guidance in that determination. ( 36 )

25. It must be emphasised at the outset that, as regards the physical conditions in which third-country nationals are detained at the JCS, there is no suggestion ( 37 ) that those conditions are unhygienic or in a state of disrepair. ( 38 ) Furthermore, contrary to BC’s observations, the fact that the detention conditions in the JCS differ or are more restrictive than those in other detention centres in the Netherlands is not, in itself, an indication that the conditions in the JCS are inadequate under, inter alia, Article 16 of Directive 2008/115.

26. On the matter of BC’s specific situation, he is a male adult who does not appear to be accompanied by his family. There is no indication in the file before the Court that he is a vulnerable person as defined in Article 3(9) of Directive 2008/115 or that he suffers from any illness which would warrant emergency health care. It follows, subject to verification by the referring court, that neither the first sentence of Article 16(3) nor Article 17 of Directive 2008/115 applies in the present case. There is also no indication that BC poses a risk to himself or to other detainees or poses a threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned. Moreover, the rules on emergency situations pursuant to Article 18 of Directive 2008/115 which permit, inter alia, derogations from the conditions set out in Article 16(1) of that directive do not appear to be of relevance in the present case. In addition, the duration of BC’s detention at the JCS would appear not to have been excessively long as it lasted a maximum of one month and a half.

27. The referring court, however, raised concerns, inter alia, about the double-occupancy of cells and limitations placed on the freedom of movement of detainees within the JCS. According to that court, the double-occupancy cells at the JCS, which measure 13.4 m 2 , permit limited movement due to the presence of a bathroom and furniture.

28. The existence of multi-occupancy rooms/cells is clearly contemplated in the CPT factsheet, provided that they are ‘equipped with tables and chairs commensurate with the number of persons detained’. ( 39 ) There is no indication in the file before the Court ( 40 ) that the cells in question are ill-equipped for double-occupancy. ( 41 ) By requiring detainees to share cells, the JCS must take adequate steps to ensure that sufficient safeguards are in place to protect their safety and welfare. Such steps could include, for example, a cell share risk assessment, ( 42 ) a rapid alert and intervention system, or other such precautionary measures. ( 43 ) It is for the referring court to verify the existence and adequacy of such measures.

29. While there is a strong presumption of ill-treatment under Article 4 of the Charter when the personal space available to a detainee in a carceral context ( 44 ) is below 3 m 2 in multi-occupancy accommodation, ( 45 ) it is clear that the double-occupancy cells in the JCS exceed twice that ‘minimum’ space. In addition, reduced personal living space can be compensated by sufficient freedom of movement outside the cell and adequate out-of-cell activities. ( 46 )

30. In its request for a preliminary ruling, the referring court indicated that the JCS is divided into zones with a maximum of 45 to 48 detainees per zone. Detainees in each zone of the JCS have access, from 08:00 to 21:30, to a central area (154.4 m 2 ), a place of silence or contemplation (82.3 m 2 ), a kitchen (15.9 m 2 ) and an indoor recreational area (53.2 m 2 ). There is also an open-air recreational area (644.8 m2) which is partially covered and to which detainees have access during the day when accompanied by an available member of staff of the JCS.

31. Aside from watching television, listening to music and reading, ( 47 ) the referring court also indicated that detainees had the possibility of engaging in a range of activities such as cooking, table tennis, table football, Dutch shuffleboard, video games (PlayStation), board games, football, basketball and gardening. ( 48 ) The requirement of the presence or assistance of members of staff to carry out certain activities such as cooking or using outdoor spaces ( 49 ) may be permitted, provided it is justified by legitimate objectives ( 50 ) and is not unduly denied or delayed. ( 51 )

32. It is thus for the referring court to carry out a comprehensive assessment of the adequacy of personal living space available to detainees coupled with the possibility of freedom of movement outside the cell and out-of-cell activities and the effective duration of that freedom in order to verify that the conditions in question are adequate in the light of detainees’ (non-criminal) status. In particular, the referring court should verify that the overall or cumulative conditions of detention are not carceral or punitive in nature or do not undermine human dignity.

33. On the matter of the confinement of detainees in the JCS between 22:00 and 08:00, that constitutes a limitation on a detainee’s free movement within the JCS itself. In its request for a preliminary ruling, the referring court indicated that the Minister considered that confinement necessary to ensure the safety of third-country nationals as their detention may give rise to feelings of anxiety or frustration. The Minister considers that by detaining third-country nationals, he or she assumes responsibility for their well-being. ( 52 ) The referring court considers that the security concerns raised by the Minister could possibly be remedied by less intrusive measures such as allowing detainees to lock their cells from the inside at night or by increasing staffing levels. ( 53 )

34. In my view, the confinement in question may be required not only to ensure the safety of detainees but also to protect their health and welfare by ensuring that they are in an environment where they can obtain adequate sleep, both in terms of quality and duration, in a calm and relatively noise-free environment. ( 54 ) The referring court should thus verify, inter alia, the objective(s) of the limitation and whether it is in the general interest or protects the rights of detainees and examine the proportionality of the limitation, with particular regard to its duration. ( 55 ) The Netherlands 2023 CPT report states that ‘it is positive that, at [the JCS], foreign nationals deprived of their liberty were able to benefit from an open-door policy throughout the day (cells were open from [08:00] to [21:00]) under the regular regime.’ ( 56 ) In addition, the referring court indicated that each double-occupancy cell has a sanitary area, so that access to such facilities is not restricted at night. ( 57 ) Moreover, there is no indication in the file before the Court that detainees cannot contact staff of the JCS if necessary during the times in question or that they are prevented from reading or watching television in their cells at night.

35. With regard to the ability of detainees to consult a lawyer, Article 16(2) of Directive 2008/115 explicitly provides that detainees ( 58 ) shall be allowed to establish in due time contact with legal representatives. In my view, Article 16(2) of Directive 2008/115 gives concrete expression to Article 47 of the Charter, which enshrines the right to an effective remedy and to a fair trial, and to Article 48(2) of the Charter, which guarantees respect for the rights of the defence. Detainees thus have a right of access to a lawyer in such time and manner as enables them to exercise their rights practically and effectively. ( 59 ) The referring court must verify whether such access is effective and timely. The fact that a detainee must be accompanied by a member of staff of the JCS to meet his or her lawyer in a room designated, inter alia, for that purpose does not undermine the right of access to legal representation provided that the meeting itself may take place in private. ( 60 )

36. As regards the ability of detainees to freely attend the medical service, the second sentence of Article 16(3) of Directive 2008/115 states that ‘emergency health care and essential treatment of illness shall be provided.’ Moreover, it is apparent from Article 35 of the Charter and from Article 9 TFEU, Article 114(3) TFEU and Article 168(1) TFEU that a high level of human health protection must be ensured in the definition and implementation of all the European Union’s policies and activities. ( 61 ) In my view, medical treatment should be provided in a timely manner without undue delay taking into account the gravity and urgency of the matter. In the absence of an emergency situation, it is not unreasonable that a detainee would be expected to make an appointment to visit the medical service and consult a qualified medical practitioner such as a doctor or nurse. ( 62 ) It is for the referring court to verify whether the requirements laid down in the second sentence of Article 16(3) of Directive 2008/115 are adequately complied with. The fact that a detainee must be accompanied by a member of staff of the JCS to visit the medical service does not undermine the right of access to medical treatment provided that the visit itself may take place in private. ( 63 )

37. The referring court also raised concerns about the screening of detainees by a ‘security detector’ ( 64 ) after meeting third parties ( 65 ) and the use of video surveillance during visits. The screening and surveillance in question, in principle, limits detainees’ right to respect for private life pursuant to Article 7 of the Charter and the protection of personal data concerning him or her pursuant to Article 8 of the Charter. ( 66 )

38. While the screening of detainees by a security detector after visits is undoubtedly aimed at detecting any concealed, illicit objects, ( 67 ) the referring court has not provided any details on the nature of that screening. Moreover, the referring court has not indicated the purpose, nature, extent or duration of video surveillance in the JCS, in particular during visits.

39. In principle, the screening of detainees by a security detector and the video surveillance of visits constitute automatic processing of personal data, within the meaning of Article 4(2) of the GDPR, ( 68 ) where the device in question enables personal data, inter alia, to be collected, recorded or stored. ( 69 )

40. In accordance with the Court’s settled case-law, any processing of personal data must observe the principles governing the processing of such data and the rights of the ‘data subject’, within the meaning of Article 4(1) of the GDPR, which are set out, respectively, in Chapters II and III of that regulation. In particular, it must comply with the principles relating to the processing of those data provided for in Article 5 of that regulation and satisfy the conditions for lawfulness of processing listed in Article 6 thereof. ( 70 )

41. While the referring court must verify that the screening and surveillance in question fully comply with the provisions of the GDPR, I would highlight a number of salient issues. In accordance with Article 5(1)(a) of the GDPR, personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Processing is lawful, inter alia, if it is necessary for the performance of a task carried out in the public interest. ( 71 ) The screening of detainees by a security detector after visits and the video surveillance of visits and in certain zones of the JCS may be warranted by safety and security concerns and by the need to protect the rights of detainees and members of staff and may, thus, be lawful. However, in accordance with the principle of data minimisation, personal data should be limited to what is necessary in relation to the purposes for which they are processed. ( 72 ) As regards transparency, such processing is subject to the requirements laid down in Article 13 of the GDPR on the information to be provided where personal data are collected from the data subject. ( 73 )

42. The referring court also highlighted detainees’ lack of free access to their personal mobile telephones and their limited access to the internet. That court referred, in particular, to the judgment of 26 February 2025 of the Raad van State (Council of State) which raised concerns about the restricted access to the internet at the JCS. Moreover, according to the referring court, detainees at the JCS are required to hand over their mobile telephone, laptop or other devices upon arrival and only have very limited access to them, for example, when they consult a lawyer. However, each cell has a fixed telephone which permits detainees to make external calls provided he or she has sufficient credit. The referring court indicated that detainees receive a stipend of EUR 20 per week. ( 74 )

43. Article 11(1) of the Charter provides that ‘ everyone has the right to freedom of expression’ ( 75 ) which includes ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Thus, illegally staying third-country nationals detained under Directive 2008/115 also benefit from the rights granted under Article 11 of the Charter. ( 76 ) It is settled case-law that the rights and freedoms enshrined in Article 11 of the Charter are not absolute rights, but must be considered in relation to their function in society. Limitations are thus permitted in accordance with Article 52(1) of the Charter. However, given that Article 11 of the Charter constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the European Union is founded, interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary. ( 77 ) In my view, the lack of access to a personal mobile telephone and to the internet constitutes a clear limitation on the rights referred to in Article 11 of the Charter and may greatly enhance a detainee’s sense of isolation.

44. The referring court noted that the Minister claimed that the limitation on access to a personal mobile telephone was justified for data protection purposes. The Minister did not indicate the purpose(s) of the limitation on detainees’ access to the internet at the JCS. ( 78 )

45. Given that the use of a personal mobile telephone, for example, to record ( 79 ) other detainees and members of staff of facilities such as the JCS, may, in principle, infringe their right to respect for private life pursuant to Article 7 of the Charter and to the protection of personal data concerning them pursuant to Article 8 of the Charter, ( 80 ) I consider that certain limitations on access to personal mobile telephones with a camera and recording functions by a facility such as the JCS, ( 81 ) aimed at protecting the rights and interests of other detainees and members of staff, may be legitimate, necessary and proportionate in accordance with Article 52(1) of the Charter. ( 82 )

46. It strikes me, however, that an almost blanket ban on access to personal mobile telephones and other such devices constitutes a disproportionate interference with the rights granted under Article 11 of the Charter which is not warranted by the need, inter alia, to protect the general interest or the rights of others. Moreover, that limitation is not alleviated to any great extent by the fact that detainees at the JCS have access to a fixed telephone which permits the making of external calls provided that detainees have sufficient credit. It must be emphasised that access to a fixed telephone only seeks to address ( 83 ) one of the multiple functionalities of modern personal mobile telephones and other such devices. In any event, without access to such a device a detainee may not even remember the number(s) he or she wishes to call. ( 84 ) Moreover, the retention by a facility of such a device may greatly hamper the receipt of calls, text messages or emails by a detainee.

47. The referring court must assess whether it is reasonably possible for a detention facility to disable or block cameras and recording devices on detainees’ personal mobile telephones and other such devices. Alternatively, measures could be put in place by such a facility to allow detainees reasonable access to their personal mobile telephones and other such devices during certain hours and in certain locations. The use, for example, of booths adapted to prevent the recording of other detainees and members of staff could be envisaged. If such measures are not feasible, I consider that detainees should, in principle, be permitted to use their own SIM cards on devices provided by the facility with disabled camera and recording functionalities.

48. Given that the purpose of detention measures, within the meaning of Directive 2008/115, is not the prosecution or punishment of criminal offences, persons detained under that directive should, in principle, ( 85 ) have unrestricted access to the internet at all times. ( 86 ) Such access should be facilitated by reasonable access to a computer terminal particularly where detainees do not have access to a smart phone or other such devices. Facilities such as the JCS may block access to certain websites or restrict downloads where such action is legitimate, necessary and proportionate in accordance with Article 52(1) of the Charter.

49. It follows from all the foregoing considerations that the answer I propose that the Court give to the third and fourth questions is that Article 16 of Directive 2008/115 should be interpreted as meaning that rules and obligations other than a limitation on freedom of movement within a closed perimeter may be imposed on third-country nationals detained under that directive provided that they are not punitive in nature or render detention similar to the conditions under which custodial sentences are enforced in prison accommodation. Where such rules and obligations limit rights and freedoms guaranteed by the Charter, they must comply with the requirements set out in Article 52(1) thereof and the prohibition of inhuman and degrading treatment laid down in Article 4 thereof.

B. The fifth question referred

50. By its fifth question, the referring court seeks to ascertain the intensity of judicial review to be applied in respect of additional limitations imposed on third-country nationals detained under Directive 2008/115. In the light of my proposed answer to the third and fourth questions of the referring court, I consider that the fifth question relates to the intensity of judicial review to be applied in respect of rules and obligations imposed pursuant to Article 16(5) of Directive 2008/115.

51. The referring court indicated that when assessing whether additional limitations were necessary, the judicial review conducted by the Raad van State (Council of State) in its judgment of 26 February 2025 was limited in nature. The Raad van State (Council of State) thus examined whether the Minister was entitled to consider that such limitations were necessary, rather than assessing their necessity itself by means of ‘strict judicial review’. In the light of the fundamental rights at stake, the referring court queries whether the limited judicial review conducted by the Raad van State (Council of State) is appropriate. The referring court considers that in the light of the judgment in Landkreis Gifhorn , it may be argued that a national court must conduct ‘strict judicial review’ and must thereby weigh up all relevant factual and legal circumstances.

52. The intensity of judicial review of EU and Member State legislation and action is not an anodyne matter, as it touches on overlapping fundamental constitutional issues such as the separation of powers, the role of the judiciary, the margin of appreciation enjoyed by the legislature and executive, the level of protection of fundamental rights and the right to an effective remedy. As regards rights enshrined in the Charter, the intensity of judicial review is intrinsically linked to the review of compliance with the conditions laid down in Article 52(1) thereof.

53. In the judgment of 8 April 2014, Digital Rights Ireland and Others , ( 87 ) the Court stated, in essence, that with regard to judicial review of compliance with the conditions laid down in Article 52(1) of the Charter, where interferences with fundamental rights are at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, ( 88 ) the nature and seriousness of the interference and the object pursued by the interference. ( 89 )

54. It must be noted at the outset that while the first sentence of Article 16(1) of Directive 2008/115 requires that the detention of third-country nationals under Article 15 of that directive take place as a rule in specialised detention facilities and Article 16(5) thereof contemplates the imposition of additional limitations, that directive is silent on the intensity of judicial review applicable when assessing whether a facility such as the JCS complies with those provisions or with provisions of the Charter.

55. In addition, the Charter itself is silent on the question of the intensity of judicial review of limitations on the rights and interests protected thereunder. Moreover, the Charter does not draw any distinction between or ascribe any particular hierarchy to those rights and interests, ( 90 ) or to the objectives of general interest recognised by the European Union referred to in an abstract manner in Article 52(1) thereof. That hierarchy is established by the Court in a casuistic manner when a case thereon is presented.

56. On the matter of detention measures adopted pursuant to Article 15(1) and (3) of Directive 2008/115, the Court has stated that they must comply with strict conditions to be lawful. In order to ensure compliance with those conditions, 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, the competent judicial 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. ( 91 ) In addition, the competent judicial authority ( 92 ) must be able to substitute its own decision for that of the administrative authority that ordered the detention and to order either an alternative measure to detention or the release of the person concerned. ( 93 )

57. In view of the gravity of the interference with the right to liberty enshrined in Article 6 of the Charter and of the importance of that right, the power of the competent national authorities to detain third-country nationals is strictly circumscribed. A detention measure may thus be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure. ( 94 ) Limitations on the exercise of that right may apply only in so far as is strictly necessary ( 95 ) and the intensity of judicial review applicable in such instances is strict.

58. As regards the conditions of detention, in the judgment in Landkreis Gifhorn , the Court held, in essence, that the possibility under Article 18(1) of Directive 2008/115 of derogating from the first sentence of Article 16(1) of Directive 2008/115 ( 96 ) where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of a Member State’s detention facilities, is subject to an equivalent intensity of judicial review as detention itself under Article 15(1) and (3) of Directive 2008/115. ( 97 )

59. That judgment demonstrates the crucial importance which the Court attaches to the requirement that detention under Article 16(1) of Directive 2008/115 should, as a rule, take place in specialised detention facilities and, by extension, the requirement that the cumulative conditions of detention thereunder should not be punitive in nature. Given the extremely diverse nature of the rules and obligations that may potentially be imposed pursuant to Article 16(5) of Directive 2008/115, a strict level of judicial review is only warranted where there are cogent indications that Article 16(1) of that directive may have been infringed.

60. It must also be recalled that the referring court raised a number of cogent concerns in respect of limitations on ‘core’ rights enshrined in the Charter, such as the right to respect for private life (Article 7 of the Charter), the protection of personal data (Article 8 of the Charter) and the right to freedom of expression (Article 11 of the Charter). In my view, such limitations require a strict level of judicial review in order to ensure compliance with the conditions laid down in Article 52(1) of the Charter. It follows that the intensity of judicial review of rules and obligations imposed pursuant to Article 16(5) of Directive 2008/115 may vary depending on their effect on the cumulative conditions of detention of third-country nationals under that directive and on the existence of limitations on rights enshrined in the Charter together with, inter alia, the nature of those rights.

61. I consider that it follows from the foregoing considerations that the Court should answer the fifth question by stating that, given the impact which detention pursuant to Article 15 of Directive 2008/115 has on the right to liberty of third-country nationals and which rules and obligations imposed under Article 16(5) of that directive may have on that right and on other fundamental rights, ( 98 ) the cumulative conditions of detention of such third-country nationals must be subject to strict judicial review by the competent national judicial authority where there are cogent indications that Article 16(1) of that directive may have been infringed.

VI. Conclusion

62. In the light of all the foregoing considerations, I propose that the Court answer the third, fourth and fifth questions referred by the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands) as follows:

Article 16 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 should be interpreted as meaning that:

– rules and obligations other than a limitation on freedom of movement within a closed perimeter may be imposed on third-country nationals detained under that directive provided that they are not punitive in nature or render detention similar to the conditions under which custodial sentences are enforced in prison accommodation. Where such rules and obligations limit rights and freedoms guaranteed by the Charter of Fundamental Rights of the European Union, they must comply with the requirements set out in Article 52(1) thereof and the prohibition of inhuman and degrading treatment laid down in Article 4 thereof;

– the cumulative conditions of detention of third-country nationals detained under that directive must be subject to strict judicial review by the competent national judicial authority where there are cogent indications that Article 16(1) of that directive may have been infringed.

1 Original language: English.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 Directive 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).

3 Judgment of 10 March 2022 (C‑519/20, EU:C:2022:178; ‘the judgment in Landkreis Gifhorn ’).

4 See the judgment in Landkreis Gifhorn , paragraph 45.

5 In paragraph 37 of the judgment in Landkreis Gifhorn , the Court stated that the purpose of such detention is to prepare the return and/or carry out the removal process in respect of an illegally staying third-country national.

6 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016, L 77, p. 1).

7 Stb. 2000, No 495.

8 According to the request for a preliminary ruling, that appeal also constitutes a claim for compensation under national law.

9 ECLI:NL:RBDHA:2025:1161. That ruling was based on Article 10(1) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) which provides that ‘detention of applicants shall take place, as a rule, in specialised detention facilities. …’

10 NL25.511 and NL25.512. As regards Case NL25.511, pictures of the JCS can be found at: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBDHA:2025:1161.

11 ECLI:NL:RVS:2025:789.

12 Judgment of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465, paragraph 48 and the case-law cited). See recitals 2 and 4 of Directive 2008/115.

13 Judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 269).

14 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 72 and the case-law cited).

15 Judgment of 17 July 2014, Bero and Bouzalmate (C‑473/13 and C‑514/13, EU:C:2014:2095, paragraph 25). Article 16(1) of Directive 2008/115 does not preclude national legislation which allows an illegally staying third-country national to be detained in prison accommodation for the purpose of removal, separated from ordinary prisoners, on the ground that he or she poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned (judgment of 2 July 2020, Stadt Frankfurt am Main, C‑18/19, EU:C:2020:511, paragraph 48).

16 See the judgment in Landkreis Gifhorn,paragraph 35.

17 See the judgment in Landkreis Gifhorn , paragraph 36, and 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 74).

18 See the judgment in Landkreis Gifhorn , paragraph 46.

19 These are, in essence, the internal or house rules of the detention facility.

20 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which was established under Article 1 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment adopted by the member states of the Council of Europe on 26 November 1987, refers to such rules and obligations as ‘house rules’. See the CPT factsheet on immigration detention, March 2017, CPT/Inf(2017)3 (‘the CPT factsheet’). The CPT factsheet and CPT reports are non-binding legal sources. See, by analogy, Opinion of Advocate General Pikamäe in Stadt Frankfurt am Main (C‑18/19, EU:C:2020:130, footnote 65). See also Opinion of Advocate General Ćapeta in GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:582, footnote 16).

21 See paragraph 54.

22 Judgment of 4 October 2024, Bouskoura (C‑387/24 PPU, EU:C:2024:868, paragraph 41).

23 I consider that such rules and obligations should not alter the nature of the facility in question such that it no longer complies with the mandate of being a ‘specialised detention facility’ pursuant to the first sentence of Article 16(1) of Directive 2008/115.

24 Judgment of 3 July 2025, Al Nasiria (C‑610/23, EU:C:2025:514, paragraph 55 and the case-law cited).

25 See also Article 1 of the Charter which provides that ‘human dignity is inviolable. It must be respected and protected.’

26 See to that effect, judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 90 and the case-law cited).

27 See to that effect, judgment of 12 September 2024, Changu (C‑352/23, EU:C:2024:748, paragraph 74). The referring court has not indicated that Article 4 of the Charter was infringed in the present case.

28 See, by analogy, judgment of 16 November 2023, Roos and Others v Parliament (C‑458/22 P, EU:C:2023:871, paragraphs 59 to 73). In that judgment, the Court considered that a decision of the Bureau of the European Parliament on exceptional health and safety rules governing access to the Parliament’s buildings at its three workplaces constituted a measure ‘laid down by law’ in accordance with Article 8(2) of the Charter.

29 See, by analogy, judgment of 6 October 2022, Politsei- ja Piirivalveamet (Detention – Risk of committing a criminal offence) (C‑241/21, EU:C:2022:753, paragraph 50 and the case-law cited). Protection against arbitrariness means, in particular, that there can be no element of bad faith or deception on the part of the authorities. Ibid., paragraph 49.

30 Thus, the use of complicated terms or ‘legalese’ should be avoided. See Article 34(6) of the Commission’s proposal for a Regulation of the European Parliament and of the Council establishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC (COM(2025) 101 final/2), which states that ‘third-country nationals kept in detention shall be provided in writing with information which explains the rules applied in the facility and sets out their rights and obligations in plain intelligible language and in a language they understand. …’ Such a requirement, although not specifically imposed by Article 16(5) of Directive 2008/115, is necessary in order to ensure effective access to the information in question.

31 See Article 16(5) of Directive 2008/115.

32 With the emergence of artificial intelligence and neural machine translation, that requirement does not place an unreasonable burden on the facility in question.

33 The referring court indicated that detainees in the JCS have access to the staff’s working space in order to ask questions. See paragraph 9.3 of the Dutch-language version of the request for a preliminary ruling.

34 CPT/Inf (2023) 12 (‘the Netherlands 2023 CPT report’).

35 Paragraph 70. A delegation of the CPT also inspected the JCS in October 2025. The report of that inspection was published on 19 June 2026. See CPT/Inf (2026) 17 (‘the Netherlands 2026 CPT report’). In that report, the CPT noted that ‘detained foreign nationals were only informed verbally of the house rules upon induction to their accommodation unit, with no written information provided’. See paragraph 33.

36 See the judgment in Landkreis Gifhorn , paragraph 47 and the case-law cited.

37 Subject to verification by the referring court.

38 For example, it is not alleged that the JCS is damp or that the lighting (both natural and artificial) or ventilation of the installations is inadequate.

39 See the CPT factsheet, page 5.

40 Subject to verification by the referring court.

41 The Netherlands 2023 CPT report, after describing in detail the material conditions at the JCS, concluded that they were ‘very good’. See paragraphs 61 to 63. The Netherlands 2026 CPT report noted that ‘material conditions at [the JCS] were good and remained broadly in line with the findings of the CPT 2022 periodic visit.’ See paragraph 35.

42 See report to the United Kingdom Government on the visit to the United Kingdom carried out by the CPT from 27 March to 6 April 2023, CPT/Inf (2024) 08, paragraph 41.

43 The Netherlands 2026 CPT report observed that the double-occupancy regime was in place at the JCS despite the existence of empty cells. According to that report, ‘the mandatory two-person cell policy was a source of tension and conflict, a point corroborated by unit staff and medical and solitary confinement records. [A] refusal to share a cell could result in disciplinary sanctions.’ The CPT considered that ‘given that many persons remain in immigration detention for weeks or months, the mandatory two-person cell policy risks contributing to tensions on the units.’ The CPT recommended that ‘the Dutch authorities consider a more flexible approach, which would better support safety, privacy and the overall atmosphere on the units, to the benefit of detained persons and staff alike’. See paragraph 44.

44 Which must be distinguished from detention pursuant to Directive 2008/115.

45 See, to that effect, judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraphs 90 to 93 and the case-law cited). See also judgment of the European Court of Human Rights (ECtHR) of 20 October 2016, Muršić v. Croatia , CE:ECHR:2016:1020JUD000733413, § 124.

46 Ibid., paragraph 93.

47 Access to televisions, music equipment and a library with books in different languages is provided by the JCS. See paragraphs 9.6.1 and 9.6.2 of the Dutch-language version of the request for a preliminary ruling.

48 See paragraphs 9.1, 9.5, 9.6.1, 9.6.2 and 11.3 of the Dutch-language version of the request for a preliminary ruling. The Netherlands 2026 CPT report noted the absence of a structured activity programme at the JCS. It reiterated ‘its long-standing recommendation that the Dutch authorities take the necessary measures to ensure that all administrative detention centres for foreign nationals provide an appropriate daily regime, including a structured programme of organised and purposeful activities’. See paragraphs 45 to 47. Moreover, in paragraph 62 of that report, the CPT observed that the effectiveness of treatment of ‘depression, psychosis or trauma-related disorders … was undermined by the conditions of detention, in particular the lack of meaningful activities and physical exercise’.

49 The Minister considered that the measure in question was necessary to ensure the safety of detainees. See paragraph 33.2 of the Dutch-language version of the request for a preliminary ruling.

50 Such as avoiding disorder and the preservation of the health and safety of detainees and members of staff.

51 The Netherlands 2023 CPT report noted that ‘access to the outside exercise yards was dependent on the availability of sufficient staff for supervision’. See paragraph 67. See also the Netherlands 2026 CPT report, paragraph 43.

52 See paragraph 33.1 of the Dutch-language version of the request for a preliminary ruling.

53 See paragraph 34.5 of the Dutch-language version of the request for a preliminary ruling.

54 There is no EU legislation on noise disturbance from household activities and neighbours. In that regard, Article 2(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (OJ 2002 L 189, p. 12) provides that ‘this Directive shall not apply to noise that is caused by the exposed person himself, noise from domestic activities, noise created by neighbours, noise at work places or noise inside means of transport or due to military activities in military areas.’ That matter may be regulated by national or local legislation.

55 I consider that reports of the CPT, the World Health Organisation (WHO) and the wider scientific community may provide useful guidance on that matter. According to the WHO technical meeting on sleep and health, Bonn, Germany, 22-24 January 2004, page 28, adults average seven to nine hours of sleep per night; available at: https://iris.who.int/server/api/core/bitstreams/c4704090-10c6-4a08-bf58-06b87cc213f7/content . See also the WHO’s Night Noise Guidelines for Europe, published in 2009, page 23; available at: https://iris.who.int/server/api/core/bitstreams/43bf485d-2771-4297-86fe-6284430090ef/content .

56 The Netherlands 2023 CPT report, paragraph 67.

57 Given that, according to the referring court, the sanitary area only has a half door which permits the use of the shower and toilet to be seen and heard by another occupant, the right to privacy of detainees guaranteed in Article 7 of the Charter is limited. Moreover, subject to verification by the referring court, it is difficult to perceive what legitimate interest is served by that limitation and why the sanitary area cannot be fully partitioned.

58 See also Article 13(3) and (4) of Directive 2008/115.

59 See, by analogy, judgment of 14 May 2024, Stachev (C‑15/24 PPU, EU:C:2024:399, paragraph 47 and the case-law cited). The Netherlands 2023 CPT report observes that ‘detained persons were able to benefit from access to a lawyer free of charge and had the right to talk with the lawyer in private.’ See paragraph 73.

60 The ECtHR has stressed that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. For that reason, the lawyer-client relationship is, in principle, privileged. In a carceral context, that court has many times stressed the importance of a prisoner’s right to communicate with counsel out of earshot of the prison authority (ECtHR, 17 April 2012, Piechowicz v. Poland , CE:ECHR:2012:0417JUD002007107, § 239).

61 Judgment of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application) (C‑823/21, EU:C:2023:504, paragraph 55 and the case-law cited).

62 The Netherlands 2023 CPT report observes that healthcare staffing levels were adequate at the JCS and that access to the medical service appeared to be rather easy. General practitioners were working on rotation, ensuring the presence of a medical doctor throughout the day from Monday to Friday. At night and during the weekend, a general practitioner remained on-call. Furthermore, a nursing presence was ensured 24/7. See paragraphs 77 and 78. See also the Netherlands 2026 CPT report, paragraph 49.

63 The Netherlands 2026 CPT report observed that ‘medical consultations were conducted out of the hearing and sight of custodial staff’. See paragraph 60. See however observations about interpretation.

64 The exact nature of the detector is not indicated by the referring court.

65 The Netherlands 2023 CPT report observed that ‘it is positive that a body scanner was used to carry out security checks of [detainees], including for illicit objects, such as drugs.’ That report stated that national legislation required a detainee’s consent for the use of the body scanner and consent forms were available in different languages in all facilities. Detainees who refused to use that procedure were strip searched. See paragraph 102. See also the Netherlands 2026 CPT report, paragraph 73.

66 See, by analogy, Opinion of Advocate General Ćapeta in Italy v Parliament and Council (Surveillance cameras on fishing vessels) (C‑194/24, EU:C:2026:161, point 60).

67 There is no indication that such screening occurs in other circumstances.

68 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) (‘the GDPR’).

69 See, by analogy, judgment of 11 December 2019, Asociaţia de Proprietari bloc M5A-ScaraA (C‑708/18, EU:C:2019:1064, paragraph 35). See also, to that effect, judgment of 11 December 2014, Ryneš ( C212/13 , EU:C:2014:2428 , paragraphs 23 and 25 ).

70 Judgment of 4 September 2025, Quirin Privatbank (C‑655/23, EU:C:2025:655, paragraph 39 and the case-law cited).

71 See Article 6(1)(e) of the GDPR.

72 See Article 5(1)(c) of the GDPR.

73 See, to that effect, judgment of 18 December 2025, AB Storstockholms Lokaltrafik (C‑422/24, EU:C:2025:980, paragraphs 38, 39 and 42).

74 The Netherlands 2023 CPT report indicated that videoconference calls with family via Voice over Internet Protocol (VOIP) were also possible. The CPT nonetheless encouraged the Netherlands authorities to consider the possibility for detainees to have regular access to their mobile telephones. See paragraph 98 of that report. In paragraph 72 of the Netherlands 2026 CPT report, the CPT notes that ‘despite being available in the past, [VOIP] contact was not possible at the [JCS], contrary to what was stated in the response of the Dutch authorities to the report on the CPT 2022 visit to the Netherlands. … The CPT was informed by officials from the Custodial Institutions Agency that steps would be taken to reinstate computer and internet access.’

75 Emphasis added.

76 See, by analogy, ECtHR, 29 April 2025, Tergek v. Türkiye , CE:ECHR:2025:0429JUD003963120, § 53, concerning prisoners’ rights. The same analysis applies, a fortiori, to detainees under Directive 2008/115. At page 5 of the CPT factsheet, it is stated that ‘immigration detainees should have access to computers along with [VOIP] or Skype facilities and basic internet access.’ No mention is made therein of access to personal telephones. It must be underscored that the factsheet is from March 2017 and societal norms relating to the use of personal telephones and access to the internet have, in my view, evolved in the meantime. That is ultimately a matter for the referring court to assess. See, in that regard, Opinion of Advocate General Collins in Procura della Repubblica presso il Tribunale di Bolzano and Others (C‑178/22, EU:C:2023:463, footnote 69) on the importance of personal mobile telephones in the daily life of their owners.

77 Judgment of 4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraphs 45, 47 and 49 and the case-law cited).

78 See paragraph 33.2 of the Dutch-language version of the request for a preliminary ruling.

79 For example, by taking photos or by making video or voice recordings.

80 Such recordings constitute, in principle, the processing of personal data pursuant to Article 4(2) of the GDPR. See, by analogy, judgment of 14 February 2019, Buivids (C‑345/17, EU:C:2019:122, paragraphs 44 and 46). On the importance of a person’s image, see judgment of 8 December 2022, Google (De-referencing of allegedly inaccurate content) (C‑460/20, EU:C:2022:962, paragraph 95).

81 In the absence of such functions – which is admittedly rare today given the prevalence of smart phones – I do not perceive how the limitation in question may be justified under Article 52(1) of the Charter. However, that is ultimately a matter for the referring court to determine.

82 Subject to verification by the referring court. It is worth noting that recording is often banned or strictly limited in certain environments such as hospitals, court rooms, school rooms, changing rooms, etc. Such recordings do not fall under the exemption in Article 2(2)(c) of the GDPR for purely personal or household activity.

83 To a limited extent, not least due to the cost of making a call from a fixed telephone as compared to that of a VOIP call.

84 Or the email address to which he or she wishes to send an email

85 Save, for example, where a detainee poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned.

86 See, by analogy, principle 3 of Chapter II of the European Declaration on Digital Rights and Principles for the Digital Decade (OJ 2023 C 23, p. 1), which states that ‘everyone, everywhere in the EU, should have access to affordable and high-speed digital connectivity.’

87 C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 47. In that case, the Court held that in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC ( OJ 2006 L 105, p. 54 ), the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict. Ibid., paragraph 48.

88 Not all rights enshrined in the Charter are treated equally in the Court’s case-law. Tridimas notes that that ‘the right to judicial protection stands at the very apex of the constitutional edifice’ while the ‘right to personal data enjoys an elevated rank’. Tridimas, T., ‘Wreaking the Wrongs: Balancing Rights and the Public Interest the EU Way’, Columbia Journal of European Law , 2023, Vol. 29.2, p. 185.

89 Gutiérrez-Fons notes that ‘such a number of factors makes the intensity of proportionality review subject to “a variable geometry”.’ Gutiérrez-Fons , J.A., ‘ The Margin of Appreciation in the Case Law of the Court of Justice : Proportionality and Levels of Fundamental Rights Protection’, in Izquierdo Sans, C. , Martínez Capdevila , C. and Nogueira-Guastavino , M. (eds), Fundamental Rights Challenges Horizontal Effectiveness, Rule of Law and Margin of National Appreciation , Springer, 2021 , p. 231.

90 With the exception of Article 1 of the Charter.

91 See, to that effect, 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, paragraphs 84 to 87 and the case-law cited).

92 Or in the absence thereof, a national court seised of a dispute on the matter.

93 Judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 293 and the case-law cited).

94 Judgment of 4 October 2024, Bouskoura (C‑387/24 PPU, EU:C:2024:868, paragraph 43 and the case-law cited).

95 Judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others (C‑72/22 PPU, EU:C:2022:505, paragraph 83).

96 Which requires that detention take place as a rule in specialised detention facilities.

97 See the judgment in Landkreis Gifhorn , paragraphs 64 and 65 and the case-law cited.

98 The importance of the fundamental rights of detainees protected, inter alia, by Articles 7, 8, 11 and 47 of the Charter must be highlighted.