# C_2011152EN.01001601.xml

| 21.5.2011 | EN | Official Journal of the European Union | C 152/16 |
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21.5.2011

EN

Official Journal of the European Union

C 152/16

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne

(Case C-140/11)

2011/C 152/28

Language of the case: Italian

Referring court

Referring court

Corte Suprema di Cassazione

Party to the main proceedings

Party to the main proceedings

Demba Ngagne

Questions referred

Questions referred

| 1. | Must Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1) of Directive 2008/115/EC (1) be construed as precluding a Member State from ordering a non-national who is unlawfully present on its territory to depart from that territory when it is not possible to proceed by means of deportation, whether immediate or following detention, thereby reversing the priorities and the order of procedure laid down in those provisions? |
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1.

Must Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1) of Directive 2008/115/EC (1) be construed as precluding a Member State from ordering a non-national who is unlawfully present on its territory to depart from that territory when it is not possible to proceed by means of deportation, whether immediate or following detention, thereby reversing the priorities and the order of procedure laid down in those provisions?

1

| 2. | Must Article 15(1), (4), (5) and (6) of Directive 2008/115/EC accordingly be construed as precluding a Member State from providing, as a consequence of unjustifiable non-cooperation on the part of a non-national in his own voluntary return, and on that ground alone, that that person is to be charged with an offence punishable by a custodial sentence (imprisonment) which is (up to 10 times) longer than the period of pre-deportation detention, which is no longer possible, or objectively impossible, to apply? |
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2.

Must Article 15(1), (4), (5) and (6) of Directive 2008/115/EC accordingly be construed as precluding a Member State from providing, as a consequence of unjustifiable non-cooperation on the part of a non-national in his own voluntary return, and on that ground alone, that that person is to be charged with an offence punishable by a custodial sentence (imprisonment) which is (up to 10 times) longer than the period of pre-deportation detention, which is no longer possible, or objectively impossible, to apply?

| 3. | Can Article 2(2)(b) of Directive 2008/115/EC be construed, in the light of Article 8 of that directive and the common policy areas identified, in particular, by Article 79 TFEU, as meaning that it is sufficient for the Member State to decide to categorise as a crime the non-national’s non-cooperation in his own voluntary return, because the directive does not apply? |
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3.

Can Article 2(2)(b) of Directive 2008/115/EC be construed, in the light of Article 8 of that directive and the common policy areas identified, in particular, by Article 79 TFEU, as meaning that it is sufficient for the Member State to decide to categorise as a crime the non-national’s non-cooperation in his own voluntary return, because the directive does not apply?

| 4. | Must, on the contrary, Article 2(2)(b) and Article 15(4), (5) and (6) of Directive 2008/115/EC be construed, in the light of Article 5 of the ECHR, as precluding a non-national who is unlawfully present on the national territory and in whose case pre-deportation detention is objectively impossible, or no longer possible, from being subjected to a spiral of voluntary departure orders and restrictions on his freedom, the legal basis for which is the fact that his disobedience of those orders is categorised as a punishable offence? |
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4.

Must, on the contrary, Article 2(2)(b) and Article 15(4), (5) and (6) of Directive 2008/115/EC be construed, in the light of Article 5 of the ECHR, as precluding a non-national who is unlawfully present on the national territory and in whose case pre-deportation detention is objectively impossible, or no longer possible, from being subjected to a spiral of voluntary departure orders and restrictions on his freedom, the legal basis for which is the fact that his disobedience of those orders is categorised as a punishable offence?

| 5. | In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return? |
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5.

In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return?

extrema ratio

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(1)  OJ 2008 L 348, p. 98.

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