Az Európai Unió területén való jogellenes tartózkodás vagy az oda irányuló jogellenes beutazás szabadságvesztéssel történő szankcionálásának feltételei

Absztrakt

Amidst the ongoing migration crisis some Member States threaten non-EU citizens who illegally enter into or stay in their territory with a prison sentence. Although the EU has only very limited competences in the area of criminal law, the Return Directive (Directive 2008/115/EC) limits considerably the possibility of the Member States to impose a prison sentence for illegal stay. As the Court of Justice made it clear on several occasions, a prison sentence cannot be imposed in cases where it would jeopardise the attainment of the Directive’s main objective, namely the returning of illegally staying non-EU citizens to their countries of origin as fast as possible with respect for their fundamental rights and their dignity. Firstly, in the El-Dridi Case, the Court set out that the Directive precludes national rules imposing a prison term on an illegally staying non-EU citizen who does not comply with an order to leave the national territory. In this regard, the Court emphasised that the issuance of such an order constitutes only the first step in the return procedure and, should this measure fail to work, the Member States are obliged to make use of the other measures provided for by the Directive, which do not include a possibility to impose a prison sentence. Secondly, for the same reason, the Court pointed out in the Achughbabian Case that the preclusion of the Member States from applying such a sentence persists throughout the entire return procedure. Thirdly, in the Affum Case, the Court extended the scope of these prohibitions to the situations of persons who were intercepted entering the territory of a Member State illegally across an internal border of the Schengen area. By contrast, the Member States are entitled not to apply the Directive to non-EU citizens who have been apprehended by their authorities crossing illegally an external border of the Schengen area. Likewise, they can impose a prison term on illegally staying migrants to whom the return procedure has been applied and who continue staying illegally with no justified ground for doing so. The Member States can also impose a prison sentence on persons who, following their expulsion from their territory, unlawfully enter there in breach of an entry ban. They are also free to sanction offences other than the unlawful entry itself committed by illegally entering or staying non-EU citizens.