CJEU - C-357/09, PPU Said Shamilovich Kadzoev (Huchbarov)

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Country of Applicant: 
Russia
Date of Decision: 
30-11-2009
Citation: 
C-357/09
Court Name: 
CJEU
Headnote: 

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

Facts: 

This judgment concerns the detention pending removal by Bulgarian authorities of a man of disputed name, birthplace and nationality. Detention began on 3 November 2006. Bulgarian authorities corresponded with Russian authorities over a Russian birth certificate and a Chechen temporary identity card. Preventing his removal, the Russian authorities disputed the authenticity of the evidence and refused to accept his Russian nationality.

Between 31 May 2007 and 10 July 2009, the man applied for refugee status three times and was rejected each time. In June and October 2008, the man applied for his detention to be converted into a less coercive alternative, namely regular reporting to the police authorities, but these requests were rejected as the man had no actual address in Bulgaria.

Proceedings culminating in a decision of the Supreme Administrative Court resulted in the man being declared ‘stateless’ on the basis of the inability to determine his identity and nationality. UNHCR and Amnesty found it credible that the man was a victim of ill-treatment in his country of origin.

None of the attempts to obtain travel documents and get a safe third country to accept the man were successful and, at the time of the Grand Chamber’s judgment, the man was still in detention. The proceedings in which the preliminary reference arose concerned the continued detention of the man in light of Bulgaria’s transposition of the Returns Directive, which imposes time limits on and specific grounds for detention.

Questions referred to the CJEU:

‘1.      Must Article 15(5) and (6) of Directive 2008/115 … be interpreted as meaning that:

(a)      where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that directive and, on transposition of the directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the directive only apply and cause the period to start to run from their transposition into the national law of the Member State?

(b)      within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the directive, no account is to be taken of the period during which the execution of a decision of removal from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility, if the national law of the Member State so permits?

2.      Must Article 15(5) and (6) of Directive 2008/115 … be interpreted as meaning that within the periods laid down for detention in a specialised facility with a view to removal within the meaning of that directive no account is to be taken of the period during which execution of a decision of removal from the Member State was suspended under an express provision on the ground that an appeal against that decision is pending, even though during the period of that procedure the third-country national has continued to stay in that specialised detention facility, where he did not have valid identity documents and there is therefore some doubt as to his identity or where he does not have any means of supporting himself or where he has demonstrated aggressive conduct?

3.      Must Article 15(4) of Directive 2008/115 … be interpreted as meaning that removal is not reasonably possible where:

(a)      at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end?

(b)      at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return?

(c)      the possibilities of extending the detention periods provided for in Article 15(6) of the directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the directive?

4.      Must Article 15(4) and (6) of Directive 2008/115 … be interpreted as meaning that if at the time when the detention with a view to removal of the third-country national is reviewed there is found to be no reasonable ground for removing him and the grounds for extending his detention have been exhausted, in such a case:

(a)      it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence?

(b)      with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside?’

In view of the Applicant’s detention, the reference was accepted into the urgent procedure. The Second Chamber remitted the case to the Grand Chamber.

Decision & Reasoning: 

The Grand Chamber's consideration of the referred questions:

1(a). Article 15(5) and (6) of the Returns Directive fix the maximum period of detention for the purpose of removal. This question asks whether, when determining if the maximum period of detention has expired, the Member State must include the period of detention prior to the time when the Returns Directive has been transposed and becomes applicable. The Court noted that if the pre-Directive period is not included, persons such as Mr Kadzoev (the Court adopts this name for convenience) would be detained for longer than the maximum period, which is not consistent with the objectives of the Directive. The Court reasoned that the maximum periods ‘apply immediately to the future consequences of a situation that arose when the previous rules were in force’. As a result, a detention period pre-application of the Directive must be included.

1(b). The question is whether, when calculating the period of detention to ascertain if the maximum is exceeded, detention pending an asylum claim thereby suspending execution of removal is to be counted. The Court notes that detention for the purpose of removal is governed by the Returns Directive, whereas detention of asylum seekers is governed by the Reception Conditions Directive and the Procedures Directive. Whether or not the period of detention during a pending asylum claim is counted depends on under which Directive the asylum seeker is detained. If no decision is taken to switch Mr Kadzoev’s detention from ‘pending removal’ to ‘pending asylum claim’, then that period of detention will be counted under the maximum period for detention pending removal.

2. The Grand Chamber is asked whether, in ascertaining whether the maximum detention period has been transgressed, a period of detention pending judicial review of the deportation decision must be included. The Court notes that Articles 15(5) and 15(6) do not provide for any such exclusion from the calculation of the period of detention, nor is a pending judicial review a ground for extending detention. Therefore, the period pending a judicial review must be taken into account. To hold otherwise would result in variation across the Member States depending on the judicial review procedures.

3. This question seeks clarification on the meaning of ‘reasonable prospect of removal’ in Article 15(4). 3(c) envisages a situation in which the possibilities of extension of detention under Article 15(6) are exhausted, a judicial review of deportation is pending, and no readmission agreement has been reached with a third country. The Court answers that, where the maximum period has been reached, Article 15(4) is inapplicable and the person must be released immediately. When determining the existence of a ‘reasonable prospect of removal’, regard must be had for whether removal can be successful within the maximum periods of detention set out by the Directive. In other words, ‘a reasonable prospect of removal does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods’.

4. The final question asks whether a person must be released if the maximum period is exceeded even if he is not in possession of valid documents, his conduct is aggressive, he has no means of supporting himself and no accommodation or means is supplied by the Member State. The Court notes that Article 15(6) does not permit the maximum to be exceeded in any circumstances, including public order and public safety. None of the above circumstances are a ground for detention under the Returns Directive. The answer is therefore that the Returns Directive does not permit the individual to not be released in these circumstances.

Outcome: 

The operative part of the judgment is:

1. Article 15(5) and (6) must be interpreted as meaning that the maximum duration of detention laid down in those provisions must include a period of detention completed in connection with a removal procedure commenced before the rules in that directive become applicable.

2. A period during which a person has been held in a detention centre on the basis of a decision taken pursuant to the provisions of national and Community law concerning asylum seekers may not be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115.

3. Article 15(5) and (6) of Directive 2008/115 must be interpreted as meaning that the period during which execution of the decree of deportation was suspended because of a judicial review procedure brought against that decree by the person concerned is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned continued to be held in a detention facility during that procedure.

4. Article 15(4) of Directive 2008/115 must be interpreted as not being applicable where the possibilities of extending the periods of detention provided for in Article 15(6) of Directive 2008/115 have been exhausted at the time when a judicial review of the detention of the person concerned is conducted.

5. Article 15(4) of Directive 2008/115 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal, and that that reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods.

6. Article 15(4) and (6) of Directive 2008/115 must be interpreted as not allowing, where the maximum period of detention laid down by that directive has expired, the person concerned not to be released immediately on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose.

Other sources cited: 

Law on foreign nationals in the Republic of Bulgaria (DV No 153 of 1998), as amended on 15 May 2009 (DV No 36 of 2009) Article 44(6), 44(8), 46a(3) to (5)

Article 104b of the Rules of Procedure of the CJEU.

Authentic Language: 
Bulgarian
Country of preliminary reference: 
Bulgaria