On 3 September 2026, Advocate General Norkus delivered his opinion in the Case C-218/25 (Wompou) following a request for a preliminary ruling from the District Court of The Hague, sitting in Amsterdam (Rechtbank Den Haag, zittingsplaats Amsterdam). It concerned the interpretation of Article 16 of Directive 2008/115/EC (the ”Return Directive”) regarding the conditions of detention of third-country nationals pending return.
The Advocate General first recalled that detention in the context of a return procedure constitutes a serious interference with the right to liberty under Article 6 of the Charter of Fundamental Rights of the EU and must therefore remain exceptional and strictly circumscribed. He noted that such detention must, as a rule, take place in specialised facilities and differ from imprisonment since its purpose is neither prosecution nor punishment. Nevertheless, Article 16(5) of the Return Directive allows the imposition of rules and obligations beyond restrictions on freedom of movement provided that they comply with Article 52(1) of the Charter. The assessment of proportionality of such restrictions must take account of their individual and cumulative effects and the duration of detention. The national court must carry out a comprehensive assessment to ensure that the overall conditions are not carceral or punitive in nature or undermine human dignity. He also emphasised that detention conditions must comply with the absolute prohibition of inhuman or degrading treatment under Article 4 of the Charter.
Regarding the specific detention conditions examined, the Advocate General considered that shared cells and restrictions on movement and out-of-cell activities are not in themselves incompatible with Article 16 Return Directive, but must be assessed together in light of the detainees’ non-criminal status and the duration of those restrictions. It is for the national court to determine whether night-time confinement pursues an objective of general interest and whether it is proportionate, especially regarding its duration. Access to a lawyer under Article 16(2), read in light of Articles 47 and 48(2) of the Charter, must be practical, effective and timely, and access to medical care under Article 16(3) must be provided without undue delay, taking into account the gravity and urgency of the medical treatment. Staff accompaniment in both cases does not in itself infringe those rights, provided that consultations remain private.
He further considered that security screening and video surveillance may interfere with the rights to private life and protection of personal data under Articles 7 and 8 of the Charter and, where personal data are processed, must comply with the applicable requirements of the General Data Protection Regulation (GDPR). Restrictions on access to personal mobile phones and internet interfere with the right to freedom of expression under Article 11 of the Charter. Although certain restrictions on mobile phones may be justified to protect the privacy and personal data of detainees and staff, an almost blanket prohibition would be disproportionate. Given the non-punitive nature of detention, detainees should, in principle, have unrestricted internet access, subject to legitimate, necessary and proportionate restrictions on specific websites or downloads when necessary.
Regarding judicial review, the Advocate General considered that the intensity of review of restrictions on Charter rights depends on the nature of the rights affected, the nature and seriousness of the interference and the objective pursued. He considered that the restrictions affecting the rights protected by Articles 7, 8 and 11 of the Charter in the present case require strict judicial review to ensure compliance with Article 52(1) of the Charter. He further concluded that the cumulative conditions of detention must be subject to strict judicial review where there are cogent indications that Article 16(1) of the Return Directive may have been infringed.