62024CC0150
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 4 September 2025 (
1
)
Case C‑150/24 [Aroja] (
i
)
A
v
Rikoskomisario B
(Request for a preliminary ruling from the Korkein oikeus (Supreme Court, Finland))
(Reference for a preliminary ruling – Asylum and immigration – Directive 2008/115/EC – Return of illegally staying third-country nationals – Detention for the purpose of removal – Article 15(5) and (6) – Detention extended beyond the initial maximum period fixed pursuant to Article 15(5) – Extension of the initial maximum period of detention – Calculation of the period of detention already carried out – Aggregation of previous periods of detention – Circumstances to be taken into account – Second sentence of Article 15(3) – Review of the decision to extend the period of detention – Review by a judicial authority – National legislation making the initiation of that review subject to a request made by the person detained – Timing and effectiveness of the judicial review – Absence of a timely judicial review – Release of the detained third-country national)
1.
By its three questions, the Korkein oikeus (Supreme Court, Finland) seeks clarification from the Court on the interpretation of Article 15 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, (
2
) with specific regard to the calculation of maximum periods of detention for third-country nationals and the procedural safeguards applicable to extended periods of detention.
2.
This request for a preliminary ruling has been made in proceedings between A, a third-country national staying illegally in Finland, and Rikoskomisario B (Detective Inspector B) concerning the lawfulness of the third period during which the third-country national concerned was detained for the purpose of removal to his country of origin.
3.
The case is characterised by the fact that the third-country national concerned was subject to four periods of detention in Finland, for the purpose of his removal to his country of origin, Morocco. More specifically, he was detained from 10 September 2022 to 23 November 2022; from 5 December 2022 to 15 March 2023 (‘the second period of detention’); from 11 September 2023 to 18 January 2024 (‘the third period of detention’); and from 7 February 2024 to 13 March 2024. The question raised before the Korkein oikeus (Supreme Court), the referring court, concerns the lawfulness of the third period of detention, which has now ended, and the lawfulness of the police decision of 11 September 2023. (
3
)
4.
The present case highlights the challenge that the Court faces in balancing two conflicting objectives: safeguarding the humane treatment and individual rights of migrants, while also ensuring their effective removal. The tension between these objectives remains unresolved and inherently difficult to reconcile. (
4
)
I. Legal framework
A.
European Union law
1. Directive 2008/115
5.
Recitals 2, 4, 9, 13 and 16 and Article 15 of Directive 2008/115 are relevant to the present case.
6.
Article 15 of Directive 2008/115, entitled ‘Detention’, provides:
‘1.   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 when:
(a)
there is a risk of absconding or
(b)
the third-country national concerned avoids or hampers the preparation of return or the removal process.
Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
2.   Detention shall be ordered by administrative or judicial authorities.
Detention shall be ordered in writing with reasons being given in fact and in law.
When detention has been ordered by administrative authorities, Member States shall:
(a)
either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;
(b)
or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.
The third-country national concerned shall be released immediately if the detention is not lawful.
3.   In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.
4.   When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
5.   Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.
6.   Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:
(a)
a lack of cooperation by the third-country national concerned, or
(b)
delays in obtaining the necessary documentation from third countries.’
2. The Dublin III Regulation
7.
Article 17 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (
5
) (‘the Dublin III Regulation’), headed ‘Discretionary clauses’, provides in paragraph 1 thereof:
‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. …
…’
8.
Article 24(3) of the Dublin III Regulation concerns the making of a take-back request by a Member State in whose territory the person concerned is without a residence document and in which no new application for international protection has been lodged. In accordance with that provision, ‘where the [take-back] request is not made within the periods laid down in paragraph 2, the Member State on whose territory the person concerned is staying without a residence document shall give that person the opportunity to lodge a new application.’
B.
Finnish law
9.
The ulkomaalaislaki (301/2004) (Law on foreign nationals (301/2004)) of 30 April 2004, in the version applicable to the dispute in the main proceedings (813/2015) (‘the Law on foreign nationals’), provides, in Paragraph 117a:
‘General conditions for the adoption of precautionary measures
A foreign national may be subject to a precautionary measure under Paragraphs 118 to 122 of this law, if it is necessary:
(1)
to clarify the conditions of entry into or stay in the country; or
(2)
to prepare or ensure the enforcement of a removal decision concerning him or her or to monitor his or her departure from the country in any other way.
…
Unless otherwise provided below, a precautionary measure shall remain in force until the conditions of entry into or stay in the country have been established, until the decision to leave the country has been enforced or until the case is otherwise closed. However, the precautionary measure must be lifted as soon as it is no longer necessary to ensure the adoption of the decision or its enforcement.’
10.
Paragraph 121 of the Law on foreign nationals provides:
‘Conditions for detention
If the precautionary measures referred to in Paragraphs 118 to 120 are not sufficient, the foreign national may be detained on the basis of an individual assessment if:
(1)
having regard to the foreign national’s personal or other circumstances, there are reasonable grounds to believe that he or she is likely to go into hiding, abscond or otherwise significantly hinder the adoption of a decision concerning him or her or the enforcement of a removal decision;
(2)
detention is necessary in order to establish the identity of the foreign national;
(3)
the foreign national has committed or is suspected of having committed a criminal offence and detention is necessary to ensure the preparation or enforcement of the removal decision;
(4)
during detention, the foreign national lodged a new application for international protection primarily with the aim of delaying or preventing the enforcement of a removal decision;
…’
11.
Paragraph 123 of the Law on foreign nationals defines the administrative authorities competent to decide on detention. Paragraph 124(1) and (2) thereof lays down the obligation for the competent administrative authority to notify the käräjäoikeus [(district court)] of the detention without delay and the obligation for that court to deal with the detention case within four days of the detention. Under Paragraph 126(1) of the Law on foreign nationals, the käräjäoikeus [(district court)] is to order the immediate release of the foreign national who has been detained if the conditions governing detention are not met.
12.
Paragraph 127 of the Law on foreign nationals, entitled ‘Release of the detained person’, states:
‘The authority dealing with the case must order the release of the detained person as soon as the conditions governing detention are no longer fulfilled. The detained person must be released no later than six months after the detention decision was adopted. However, the period of detention may be longer, but may not exceed 12 months, if the detained person does not cooperate in the enforcement of the return or if the necessary return documents have not been obtained from the third country and the enforcement of the removal is delayed for these reasons.
…’
13.
Paragraph 128 of that law sets out as follows:
‘If the release of the detained foreign national has not been ordered, the käräjäoikeus [(district court)] in whose territorial jurisdiction the place of detention of the detained person is situated must, at the request of that person, review the case concerning the detention … The case must be heard without delay and at the latest within four days of the request being made. However, it shall not be necessary to review a case concerning detention before the expiry of a period of two weeks starting from the decision of the käräjäoikeus [(district court)] ordering the extension of the detention of the person concerned at the place of detention concerned. For the purposes of calculating the time limits referred to in this subparagraph, Paragraph 5 of the laki säädettyjen määräaikain laskemisesta [(Law on the calculation of time limits), [(150/1930)] shall not apply.
At the request of the detained person, the käräjäoikeus [(district court)] must review the case even before the time limit referred to in subparagraph 1 if it is necessary to do so on account of a fact that has come to light after the previous examination. The authority dealing with the case must immediately inform the detained person and his or her representative of any significant change in the circumstances giving rise to a review, unless the detained person has been the subject of a release decision pursuant to Paragraph 127(1).
…’
II. The dispute in the main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court of Justice
14.
A, a Moroccan national, arrived illegally in Finland on 10 September 2022. At the time, he was subject to an entry ban covering the Schengen area, issued by the Kingdom of the Netherlands after his disappearance during the asylum procedure which he had initiated there. Before arriving in Finland, the third-country national concerned had also applied for asylum in Sweden and Switzerland.
15.
On the day of his arrival, he was detained in Finland on the grounds set out in Paragraph 121(1)(1) to (3) of the Law on foreign nationals, which transposes Article 15(1) of Directive 2008/115. That period of detention ended on 23 November 2022.
16.
By decision of 25 October 2022, the Maahanmuuttovirasto (Immigration Office, Finland; ‘the Immigration Office’) ordered that the third-country national concerned be returned to Morocco.
17.
On 29 October 2022, the third-country national concerned lodged an application for asylum in Finland. On 24 November 2022, the Immigration Office rejected that application as manifestly unfounded, ordered his return to Morocco and imposed an entry ban on him for a period of two years.
18.
On 5 December 2022, the third-country national concerned was detained for a second time, which period of detention ended on 15 March 2023.
19.
By order of 5 January 2023, the Turun hallinto-oikeus (Administrative Court, Turku, Finland) rejected the application of the third-country national concerned for a prohibition on enforcement of the decision ordering his removal.
20.
On 11 September 2023, the third-country national concerned was detained for a third time. According to the decision of Detective Inspector B of 11 September 2023, which ordered that third period of detention, the third-country national concerned had, on that date and taking into account his previous periods of detention, already been detained for a total period of 5 months and 23 days; however, the conditions for exceeding the initial maximum period of six months were met, given that the enforcement of the return decision had been delayed on account of the lack of cooperation on the part of the third-country national concerned in the enforcement of the return, and the fact that the documents necessary for that return had not been obtained from the Kingdom of Morocco. The police then brought an action before the Helsingin käräjäoikeus (District Court, Helsinki, Finland) for examination of the conditions of detention, and submitted the aforementioned decision of 11 September 2023 to that court. According to the information contained therein, the third-country national concerned was also notified of that decision. A hearing took place before that court on 15 September 2023.
21.
That third period of detention was assessed again on 7 December 2023 by the Etelä-Karjalan käräjäoikeus (District Court, South Karelia, Finland), which held a hearing of its own motion when it became apparent that the initial maximum period of detention of six months may have been exceeded. In its judgment, delivered on the same date, that court took the view, first, that the time periods of the various detentions were to be aggregated, since the purpose of those detentions was to ensure enforcement of the same return decision. Second, it ruled that the conditions for exceeding the six-month period and all the other substantive conditions for extending the detention had been met. Third, that court held the third-country national concerned should not be released solely on the ground that a hearing had been held ex officio only once the total period of detention had exceeded six months. It therefore ordered that the third-country national concerned remain in detention.
22.
On the same day, the third-country national concerned brought an appeal against that judgment before the Itä-Suomen hovioikeus (Court of Appeal, Eastern Finland, Finland), which appeal was dismissed by judgment of 19 December 2023, inter alia, on the ground that, in accordance with Paragraph 128 of the Law on foreign nationals, the review of a detention case by the käräjäoikeus (district court) is to be conducted on request of the detained person and that, while the police decision of 11 September 2023 referred to the conditions for exceeding the six-month period of detention, the third-country national concerned had not applied for such a review. The Itä-Suomen hovioikeus (Court of Appeal, Eastern Finland) therefore held that the third-country national concerned should not be released on the sole ground that the käräjäoikeus (district court) had not ruled of its own motion on those conditions before the expiry of the maximum period of detention of six months.
23.
The third-country national concerned appealed to the Korkein oikeus (Supreme Court), challenging the lawfulness of the detention solely on the ground that the question of whether the maximum duration of six months had been exceeded had not been dealt with in accordance with the procedure. Detective Inspector B contends that the appeal should be dismissed. That detective inspector submits that, in view of the developments in the case, the third period of detention, which began on 11 September 2023, is new, and therefore the original maximum period of six months has not even been exceeded in this case, and the third-country national concerned should not be released on the grounds on which he relies, since the conditions for detention are satisfied in any event.
24.
That third period of detention continued until 18 January 2024, the date on which the third-country national concerned fled to Denmark.
25.
On 7 February 2024, after being returned from Denmark to Finland pursuant to the Dublin III Regulation, the third-country national concerned was detained for a fourth time. He was released on 13 March 2024 by decision of a detective inspector.
26.
The referring court states, at the outset, that the dispute before it concerns the lawfulness of the third period of detention alone. Next, it states that the periods of detention of the third-country national concerned were all based on the need to ensure preparation for removal, or the enforcement of the decision on that removal, in accordance with Paragraph 121(1)(1) and (3) of the Law on foreign nationals, and also on the need to establish that person’s identity, in accordance with point 2 of that provision. The referring court adds that, for the periods of detention between 29 October 2022 – the date on which the application for asylum was lodged – and 5 January 2023 – the date of the order of the Turun hallinto-oikeus (Administrative Court, Turku) rejecting the application of the third-country national concerned for a prohibition on the enforcement of the decision ordering his removal – the detention was also based on the need to ensure processing of the asylum application, in accordance with Paragraph 121(1) of the Law on foreign nationals.
27.
The referring court states that the evidence relied on by the police to justify detaining the third-country national concerned included his disappearance in several Member States, including Finland, during the asylum procedure, his negative attitude towards his return to Morocco, the criminal offences which he had committed during his stay in Finland, his false declaration concerning his age and identity when he arrived in Finland and the failure to comply with the obligation to report to the authorities in the summer of 2023 as an alternative to detention. That court points out that some of those grounds did not emerge until after the end of the second period of detention and therefore constituted new grounds justifying the third period of detention, which began on 11 September 2023. However, in its view, the conditions for exceeding the maximum period of six months in the light of the evidence submitted were not examined at the hearing held on 15 September 2023 before the Helsingin käräjäoikeus (District Court, Helsinki), nor were those conditions set out in the decision delivered by that court.
28.
In that context, the referring court first seeks guidance on how to calculate the maximum periods of detention under Article 15(5) and (6) of Directive 2008/115. Second, that court queries whether the second sentence of Article 15(3) of Directive 2008/115 permits national law to require that judicial review concerning the extension of the initial maximum period of detention of six months be initiated at the request of the third-country national detained. It also raises concerns about the timing of such a review, and specifically whether it must occur before the six-month time limit elapses or whether it may be carried out once the period of detention has already been extended. Finally, if it is established that the six-month limit was unlawfully exceeded without proper judicial review, the court seeks clarification on the consequences under EU law, particularly whether the national court should have released the third-country national concerned immediately, even though the substantive conditions for detention were still met. The referring court points out that the present case involves an infringement of a provision with direct effect, potentially limiting judicial discretion in cases of procedural irregularities.
29.
In those circumstances, the Korkein oikeus (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
(a)
Must Article 15(5) and (6) of [Directive 2008/115] be interpreted as meaning that all previous periods of detention must be taken into account when calculating the maximum durations of detention referred to therein? If such an obligation does not exist in all cases, what aspects are to be taken into consideration to determine whether the duration of the previous period of detention must be taken into account when calculating the maximum durations?
(b)
In particular, how is the situation to be assessed in circumstances such as those in the case in the main proceedings, where, on the one hand, the principal legal basis for detention, namely to secure the removal of an illegally staying third-country national, has remained essentially the same, but where, on the other hand, partly new factual and legal grounds have been put forward in support of the re-detention, the person concerned went, between the periods of detention, to another Member State from where he was returned to Finland, and several months also elapsed between the end of the previous period of detention and the re-detention?
(2)
(a)
Does the second sentence of Article 15(3) of Directive [2008/115] preclude national legislation which makes the initiation of a judicial review of the exceeding of the maximum duration of six months subject to a request by the person detained?
(b)
Must the judicial review referred to in the second sentence of Article 15(3) of Directive [2008/115], which concerns the decision of an administrative authority to exceed the initial maximum duration of detention of six months, be carried out before that maximum duration is reached and, if not, must it in any event be carried out without delay after the decision of that administrative authority?
(3)
Does the absence of a judicial review as referred to in the second sentence of Article 15(3) of Directive [2008/115], where the maximum duration of detention of six months referred to in Article 15(5) is exceeded, entail an obligation to release the detained person, even if, at the time that belated judicial review is carried out, it is found that all the substantive conditions governing detention have been fulfilled and the case is then being dealt with properly from a procedural point of view? If there is no obligation relating to automatic release in such a situation, what aspects are to be taken into consideration from the point of view of EU law in order to determine the consequences of a judicial review carried out late, in particular in circumstances such as those in the main proceedings?’
30.
Written observations were submitted to the Court by the Finnish, Czech and Netherlands Governments, as well as by the European Commission. The appellant in the main proceedings, Detective Inspector B, the Finnish Government and the Commission also presented oral argument at the hearing that took place on 30 April 2025.
III. Analysis
A.
The first question
31.
By its first question, the referring court asks, in essence, whether Article 15(5) and (6) of Directive 2008/115 must be interpreted as meaning that, in order to determine whether the maximum periods of detention have been reached, all periods during which the person concerned was previously detained under Article 15 – with a view to enforcing the same return decision – must be aggregated. If that is not the case, that court asks whether it is relevant, for the purposes of deciding whether previous periods of detention must be taken into account, that new legal and factual grounds have been relied upon in support of a new period of detention; that the person concerned went to another Member State from which he was returned to Finland; and that several months elapsed between the end of the previous period of detention and the new period of detention.
32.
Specifically, the referring court questions whether separate periods of detention, interrupted by periods of liberty, should be aggregated automatically or whether certain previous periods may be excluded. According to that court, although existing case-law and in particular the judgment of 30 November 2009, Kadzoev, (
6
) points to a uniform approach, the Court has not definitively ruled on this matter. (
7
)
1. Must all periods of detention under Article 15 of Directive 2008/115 for the same return decision be aggregated without exception?
33.
Under Article 15(1) of Directive 2008/115, the detention of a third-country national who is illegally staying on the territory of a Member State can, in the absence of other sufficient but less coercive measures that could be applied effectively, be justified only in order to prepare the return of that national and/or to carry out the removal process, in particular where there is a risk of absconding or where the national avoids or hampers the preparation of return or the removal process. (
8
)
34.
Furthermore, it follows from the last subparagraph of Article 15(1) and Article 15(4) of Directive 2008/115 that the detention of an illegally staying third-country national is to be for as short a period as possible and maintained only as long as removal arrangements are in progress and executed with due diligence, (
9
) it being understood that, when it appears that a reasonable prospect of removal no longer exists or that the conditions that justified the detention no longer exist, detention ceases to be justified and the person concerned is to be released immediately. (
10
)
35.
In addition, Article 15(5) and (6) of that directive provides that each Member State is to set a limited period of detention, which may not exceed six months, and which may not be extended except for a limited period not exceeding, under any circumstances, a further 12 months and only in cases where, regardless of all the reasonable efforts of the national authorities, the removal operation is likely to last longer owing to a lack of cooperation by the third-country national concerned or delays in obtaining the necessary documents from third countries. (
11
) Thus, Article 15(1) and (6) of Directive 2008/115 sets out distinct grounds for detention and for its prolongation. Under paragraph 1, detention may be ordered where there is either a risk of absconding or the person avoids or hampers the removal process. If removal cannot be carried out within 6 months, paragraph 6 permits an extension – up to a total of 18 months – in cases of lack of cooperation by the person concerned or delays in obtaining documentation from third countries. In the judgment in Kadzoev, the Court emphasised that Article 15(6) of Directive 2008/115 in no case authorises the maximum period defined in that provision to be exceeded. (
12
)
36.
In particular, the last sentence of Article 15(2) of Directive 2008/115 states that ‘the third-country national concerned shall be released immediately if the detention is not lawful.’ The immediate release of the person concerned is also required by Article 15(4) of that directive when detention is no longer justified, that is to say ‘when it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist’. The detained person must therefore be released immediately as soon as the maximum detention period of 18 months or the national time limit (in the present case, it is 12 months in Finland) is reached. (
13
)
37.
Accordingly, the Court has ruled that Article 15(1) and (4) to (6) of Directive 2008/115 precludes national legislation of a Member State which, on the one hand, does not provide that the detention of an illegally staying third-country national must be automatically considered unlawful at the end of a maximum period of 18 months and, on the other hand, does not ensure that that detention is maintained only for as long as removal arrangements are in progress and executed with due diligence. (
14
)
38.
Such an interpretation stems directly from the fact that the maximum period laid down in Article 15(5) and (6) of Directive 2008/115, as the Court clarified in the judgment in El Dridi, (
15
) serves the purpose of limiting the deprivation of liberty of a third-country national in a situation of forced removal. Indeed, since the detention of that individual, particularly within the framework of Directive 2008/115, in the context of return proceedings following an illegal stay, constitutes a serious interference with the fundamental right to liberty, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (
16
) the power conferred on the competent national authorities to detain third-country nationals is strictly circumscribed by the provisions of Chapter IV of Directive 2008/115, in such a way as to ensure, first, compliance with the principle of proportionality as regards the means used and the objectives pursued and, second, respect for the fundamental rights of third-country nationals.
39.
It therefore follows from the settled case-law of the Court, in particular from the judgment in Politsei- ja Piirivalveamet, (
17
) that a detention measure under Article 15 of Directive 2008/115 may be ordered only where the conduct of the person concerned is liable to jeopardise the enforcement of the return decision, and that that measure must have the sole objective of ensuring the effectiveness of the return procedure, (
18
) in strict compliance with the principle of proportionality. (
19
) Accordingly, when ordered for the purpose of removal, the detention of an illegally staying third-country national does not pursue any punitive purpose. (
20
) In addition, as highlighted by the third-country national concerned, due to the seriousness of such interference, it is subject to strict safeguards, including predictability and protection against arbitrariness. (
21
)
40.
In conclusion, the principle of proportionality enshrined in EU law, the principle of detention as a last resort and the prohibition of arbitrary deprivation of liberty all underscore the exceptional nature of detention under Article 15 of Directive 2008/115. While those principles do not, in themselves, explicitly lay down any specific method for calculating periods of detention, their combined effect – when read together with the requirement that detention serve solely to ensure the effectiveness of the return procedure – implies that the method of calculation must reflect and uphold those fundamental safeguards. Only a cumulative approach ensures that the total period of deprivation of liberty remains strictly confined to what is necessary and proportionate in the individual case. Any alternative approach that disregards previous periods of detention runs the risk of circumventing the time limits imposed by Article 15(5) and (6) of that directive, thereby undermining the three aforementioned principles. In practice, if successive periods of detention relating to the same return procedure were not to be aggregated, this could allow Member States to circumvent the maximum period of 18 months by resuming detention under the same return decision. Such a practice would lead to indefinite detention, which is incompatible with the aforementioned principles. Thus, periods of detention relating to the same return procedure must, in principle, be aggregated in order to comply with the strict time limits laid down by Directive 2008/115.
2. The relevance of factual circumstances when calculating periods of detention
(a) Interruptions between detention periods
41.
The referring court states that, in the present case, prior to the third period of detention, the third-country national concerned had been released for nearly six months, during which he failed to comply with the less severe coercive measure imposed on him – namely, the reporting obligation – left Finland for Sweden, and was subsequently returned to Finland from that Member State.
42.
At the hearing, Detective Inspector B argued that, if some time has elapsed since the last detention, if other legal arguments have been raised or if new facts have arisen, and if the successful return of the person can be regarded as likely, it should be possible to start a new period of detention independently of any previous detention. Any other interpretation could give rise to a situation in which it would become impossible to give effect to return measures during the lifetime of the person concerned. This would run counter to the effective pursuit of the objectives of Directive 2008/115.
43.
The question therefore arises as to whether a long interruption, accompanied by the unlawful departure of the third-country national concerned from the Member State issuing the return decision, constitutes a basis for resetting the calculation to zero.
44.
In that respect, as I have already stated, in accordance with Article 15(1) of Directive 2008/115, any detention must be as short as possible and be maintained only for as long as removal arrangements are in progress and executed with due diligence. Under Article 15(4) of that directive, detention is no longer justified and the person concerned must be released immediately where it appears that there is no longer a reasonable prospect of removal for legal or other reasons or that the conditions laid down in paragraph 1 are no longer met. (
22
) In addition, it follows from the judgment in Kadzoev that Article 15(6) of Directive 2008/115 does not in any circumstances permit the maximum period of detention it lays down to be exceeded. (
23
) The case-law stemming from that judgment confirms that Article 15 of that directive requires all periods of detention related to a return procedure to be aggregated when assessing compliance with the maximum duration. (
24
) The underlying logic, as inferred from that case-law, is that such detention measures are part of a single return process and must be treated as a whole for the purpose of calculating the permissible duration. Therefore, when detention is connected to the same return procedure covered by Directive 2008/115, restarting the calculation of the authorised detention period from zero after an interruption would run counter to the cumulative nature of the time limit established in that provision.
45.
Such an interpretation is supported by the judgment in John v. Greece, (
25
) where the European Court of Human Rights found that the applicant’s continued detention, even following a formal release and re-detention, amounted to an arbitrary deprivation of liberty contrary to Article 5(1) ECHR. In that judgment, that court found that the new expulsion order repeated the same grounds as the previous one and did not present any fresh justification for renewed detention. (
26
) In other words, the second period of detention was not genuinely distinct, as it was based on the same expulsion grounds and lacked fresh justification, and was executed in a manner that gave only the appearance of legality.
46.
It follows, in my view, that the calculation of periods of detention cannot be ‘restarted’ during the enforcement of a return decision within the single removal process when the underlying purpose and the procedural context remain unchanged. If the return decision remains in force, an interruption in the detention – irrespective of its duration – does not justify restarting the calculation of the period of detention from zero.
47.
The situation would be different if the detention were based on a new return or removal decision, adopted on entirely new grounds, independent of the initial return decision, and subject to judicial review. In such a case, the detention could be treated as part of a separate removal process. Otherwise, the detention must be regarded as part of the same removal procedure, and the time already spent in detention must count toward the maximum duration under Article 15(5) and (6) of Directive 2008/115. For instance, where a return procedure has been genuinely and definitively abandoned, and a third-country national re-enters the Member State irregularly many years later, that re-entry may give rise to a new set of legal and factual circumstances, such as the unlawful presence of the individual in the territory without a residence permit or any legal basis for stay. Such circumstances may justify the adoption of a new return decision under Article 6 of Directive 2008/115, thus initiating a new return procedure. Any detention measure based on that new decision would relate to a separate and distinct return procedure, rather than being a continuation of the earlier one. However, such a scenario presupposes a genuine abandonment of the first procedure following a prolonged period of absence of the person and, therefore, inactivity on the part of the authorities, typically measured in years, not months. Otherwise, the return procedure cannot be regarded as having been definitively abandoned. In other words, in order for a new procedure to be started, the circumstances must go significantly beyond procedural delay or temporary obstacles.
48.
Consequently, the fact that the third-country national may have temporarily left the territory of the Member State in charge of the return, or failed to comply with less coercive measures, does not interrupt the continuity of the return procedure unless it is demonstrated that the procedure was genuinely and definitively abandoned by the competent authorities.
49.
In the present case, the Finnish Government stated at the hearing that there is no formal decision declaring the return procedure abandoned; rather, the case remains open until the third-country national concerned has been removed, with the competent authorities actively pursuing return throughout. Accordingly, in the absence of a genuine and definitive abandonment of the return procedure, and given the continuous efforts by the authorities to remove the third-country national concerned, the detention measures must be viewed as relating to a single, ongoing return procedure. It follows that the maximum duration of detention under Article 15 of Directive 2008/115 cannot be reset upon re-detention, as the underlying purpose and the procedural context of the removal procedure remain unchanged. The fact that the third-country national concerned may have temporarily left the territory of the Member State in charge of the return – lawfully or unlawfully – or failed to comply with less coercive measures does not interrupt the continuity of the return procedure unless it is demonstrated that the procedure was genuinely and definitively abandoned by the competent authorities.
(b) Actions preventing return
50.
As I have stated, (
27
) the fact that the third-country national may have temporarily left the territory of the Member State in charge of the return or failed to comply with less coercive measures does not interrupt the continuity of the return procedure unless it is demonstrated that the procedure was genuinely and definitively abandoned by the competent authorities.
51.
While unauthorised movements or non-compliance with the adopted measures may justify renewed detention based on a fresh assessment under Article 15(1) of Directive 2008/115, these do not warrant resetting the period of detention. A new calculation arises only if the return procedure has been genuinely and definitely abandoned and subsequently reinitiated, for example, through a new return decision. (
28
) This must be clearly established to uphold the principle of limited and proportionate detention required by that directive and the case-law, avoiding arbitrariness in detention (
29
) and, thus, arbitrary extensions of the period of detention.
52.
Therefore, as I have already stated, where there has been a long interruption in the enforcement of the return decision, the key factor in determining whether a new return decision may be adopted is whether the return process has been genuinely and definitively abandoned. (
30
) In the absence of such circumstances, all previous periods of detention continue to count toward the maximum duration permitted under Directive 2008/115.
53.
Furthermore, although acts committed by the third-country national concerned during the return procedure are to be taken into account, in particular as an indicator of a potential risk of absconding under Article 15(1) of Directive 2008/115, such conduct cannot in itself justify either the initial detention or its extension under Article 15(6) of that directive. In that respect, detention for the purposes of return must remain strictly limited to the objective of facilitating return or removal and must be proportionate and time-limited. (
31
)
54.
Importantly, when removal is no longer realistically feasible – for example, on account of prolonged inaction by the third country – the continued detention of the individual becomes unlawful, irrespective of the individual’s behaviour in connection with the enforcement of the return decision. In such cases, that person’s conduct, even if non-cooperative, cannot override the requirement that detention be strictly linked to a realistic prospect of removal.
55.
In that respect, the Court heard legal argument at the hearing as to whether measures may be taken after the return procedure has been concluded unsuccessfully, which was the subject of the judgment in JZ, (
32
) applying the judgment in Achughbabian, (
33
) in which the Court essentially ruled that Directive 2008/115 allows Member States to impose criminal penalties, including imprisonment, after the return procedure has been completed and removal has failed, including where there was obstruction on the part of the person concerned. (
34
) However, I should emphasise that the judgment in JZ (
35
) does not contradict the position that successive periods of detention related to the same return procedure should be aggregated under Article 15 of Directive 2008/115, but rather addresses a different legal context: it concerns the situation after a return procedure that has been completed without success; that is, the individual has not left the territory despite the end of the return process and the expiry of the maximum detention period. During the enforcement of a return decision, while that directive is still applicable, the principle of aggregation of periods of detention should remain applicable.
56.
In the present case, there is no indication that the third period of detention of the third-country national concerned is independent of the previous two periods. Accordingly, a period of detention imposed after a cumulative total of 5 months and 23 days cannot be regarded as a new period that ‘resets the clock’ on his detention unless the removal procedure was lawfully and effectively terminated by a genuine and definitive abandonment, and a new return process has been initiated on a new legal basis and in the light of new circumstances, which go significantly beyond procedural delay or temporary obstacles. To rule otherwise would be to undermine the limits and protective purpose of Directive 2008/115. The referring court must determine whether the return decision remained effective and enforceable following the earlier periods of detention.
(c) The failure of the third country to cooperate
57.
Under Article 15(6) of Directive 2008/115, a lack of response or cooperation by the third country_such as its failing to issue travel documents, may justify an extension of detention, provided the Member State can demonstrate that it has made reasonable efforts to secure the return. If the delay is not solely attributable to the third country’s inaction, and the Member State has neither actively pursued alternatives nor followed up or escalated its efforts, it may not meet the ‘reasonable efforts’ threshold, and the extended detention may become unlawful. This issue is closely related to the efficiency and due diligence required under Article 15(1) and (4) of that directive.
58.
As I have already mentioned, where there is no reasonable prospect of removal, detention must be as short as possible and come to an end once the time limits set out in Article 15(5) and (6) of Directive 2008/115 have elapsed. A mere lack of response from a third country is therefore not, by itself, a licence to continued detention without limit. The Member State must show that it continued to act diligently and proactively – for example, through repeated contacts, use of consular means or cooperation agreements – to secure the return of the third-country national concerned.
59.
Thus, in the present case, while delays in obtaining documentation from the authorities of a third country may, under Article 15(6) of Directive 2008/115, justify an extension of detention beyond the initial six-month period, such an extension remains strictly subject to the condition that the competent Finnish authorities have made all reasonable efforts to ensure the removal of the third-country national. Where it becomes apparent that the third country in question is not cooperating within a reasonable time frame, or where there is no reasonable prospect of removal, detention must be brought to an end, in accordance with Article 15(4) of Directive 2008/115 and the principle of proportionality. (
36
)
60.
Finally, I should observe that, in the general scheme of Directive 2008/115, (
37
) read in the light of the principle of proportionality, detention is not to be applied automatically or pre-emptively but must be a measure of last resort, used only where no alternative exists that can ensure the effectiveness of the return procedure. (
38
) Given that the return process may involve delays not attributable to the third-country national concerned – such as third-country non-cooperation or diplomatic obstacles – Member States must assess whether less coercive measures are more appropriate, at least during periods when the asylum process is still pending or removal is not yet practicable. Otherwise, there is a risk that the limited duration available for detention may be expended prematurely, potentially undermining the effectiveness of removal once it becomes feasible.
61.
In that regard, with respect to the absence of a realistic prospect of removal, I should observe that Directive 2008/115 fails to address the situation of non-returnable third-country nationals – those who cannot be deported for practical reasons but are not granted any legal status by Member States. (
39
) As a result, they remain in a state of legal exclusion. (
40
) Such a gap undermines both the effectiveness of the return policy and the protection of the fundamental rights of third-country nationals. In such a scenario, third-country nationals are exposed to repeated detention.
3. Validity of detention where the conditions for applying Directive 2008/115 were not met in the first place, and premature use of return procedures
62.
As regards the legal basis relied on in support of detention, in the judgment in Kadzoev, (
41
) the Court held that detention for the purposes of removal governed by Directive 2008/115 and the detention of applicants for international protection, in particular under Directive 2013/33/EU, (
42
) were subject to separate legal regimes. The period during which a person is detained on the basis of a decision taken under the provisions of EU law on international protection cannot be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115.
63.
However, the situation at issue in the main proceedings, as is apparent from the clarifications set out in the order for reference, (
43
) is one in which all previous periods of detention were carried out pursuant to Article 15 of Directive 2008/115 and for the purpose of enforcing the same return decision. In that respect, the referring court states that it excluded from its reference for a preliminary ruling the question of how to calculate the maximum detention period when the detention was based both on Directive 2008/115 and on a different legal ground (either simultaneously or intermittently). (
44
) In other words, the referring court points out that it chose not to ask the Court whether or how such overlapping or mixed legal bases should affect the calculation of the detention period, because the detention of the third-country national concerned was based – at least primarily and most of the time – on Directive 2008/115 alone. It follows that, in the referring court’s view, the issue of mixed legal bases is of no practical relevance to the present case.
64.
Thus, since the referring court has explicitly excluded that question from its reference for a preliminary ruling, the Court should consider it irrelevant or hypothetical, particularly given that the detention appears to have been based primarily on Directive 2008/115.
65.
However, the present case raises a separate issue: that of whether the application of Directive 2008/115 was valid with respect to the period of detention from 10 September to 29 October 2022, particularly in the light of the procedural guarantees set out in Article 24(3) of the Dublin III Regulation.
66.
Under Article 24(3) of the Dublin III Regulation, where a third-country national who has previously been refused international protection in other Member States enters a new Member State without lodging a further application for asylum and if the take-back request is not made within the time limits laid down in Article 24(2) thereof, the latter Member State (in this case, the Republic of Finland) must give the person the opportunity to lodge a new application for international protection in the Member State on whose territory he or she is staying illegally. (
45
) For that reason, the person concerned cannot be returned to his or her country of origin until such a possibility has actually been granted to him or her.
67.
In the present case, with respect to the period of detention from 10 September to 29 October 2022, the referring court has stated that, before arriving in Finland, the third-country national concerned had also applied for asylum in the Netherlands, Sweden and Switzerland. The take-back requests made by the Finnish Immigration Office to the other Member States were not successful and the Turun Hallinto-oikeus (Administrative Court, Turku) held that that authority was entitled to consider that it was the competent authority to examine that person’s asylum application under Article 17 of the Dublin III Regulation.
68.
Since it appears that the third-country national concerned was entitled to make a new application under Article 24(3) of the Dublin III Regulation and could not be returned to his country of origin before having such an opportunity, it is possible that the detention under Article 15 of Directive 2008/115 should not have been ordered for the period from 10 September to 29 October 2022, which is for the referring court to ascertain. In that regard, I should recall that in its judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), (
46
) the Court held that judicial authorities reviewing detention under Directive 2008/115 must ex officio verify whether the conditions for lawful detention are met, even if the detained person does not raise them.
69.
That said, if detention was incorrectly based on the provisions of Directive 2008/115, the relevant period (or the relevant parts of that period) must be taken into account for the calculation of the maximum period of detention referred to in Article 15(5) and (6) of that directive. Indeed, the maximum period of detention laid down in those paragraphs reflects an absolute temporal limit on the deprivation of liberty under that directive for the purposes of removal. If time spent in detention incorrectly based on the provisions of Directive 2008/115 was excluded from the calculation, Member States could circumvent those maximum time limits by reclassifying or reassessing the legal basis ex post, which would undermine the effectiveness (effet utile) of Article 15 of that directive and be in breach of procedural safeguards for the third-country nationals concerned. It follows that, where detention was not lawful due to the incorrect legal basis thereof – for example, because return proceedings were not yet pending on account of the right to lodge a new asylum application – then that period must be included in the assessment of the total duration permitted under Article 15(5) and (6) of Directive 2008/115.
4. Interim conclusion
70.
In view of the foregoing, I take the view that Article 15(5) and (6) of Directive 2008/115 must be interpreted as meaning that, in order to determine whether the maximum periods of detention laid down in those provisions have been reached, all periods during which the third-country national concerned was previously detained under Article 15 of that directive, with a view to enforcing the same return decision, must be taken into account. If the return decision remains in force and the removal procedure has not been genuinely and definitively abandoned, an interruption in the detention does not justify restarting the calculation of periods of detention from zero. This is the case even if the third-country national concerned has been released between periods of detention or has temporarily left the territory for another Member State. In addition, an assessment must be made as to whether, taking into account Article 17 and Article 24(3) of the Dublin III Regulation, the detention under Article 15 of Directive 2008/115 may have been lawful, for the period from 10 September to 29 October 2022.
B.
The second question
71.
By its second question, which consists of two parts, the referring court asks, in essence, (i) whether the second sentence of Article 15(3) of Directive 2008/115 must be interpreted as precluding national legislation which makes the initiation of a judicial review of whether the initial maximum period of detention provided for under paragraph 5 of that article has been exceeded subject to the request of the detained person, and (ii) at what point the judicial review referred to in that second sentence must be carried out when it concerns the decision of the competent administrative authority to extend the detention beyond that initial maximum period.
72.
At the request of the Court of Justice, I propose to focus my analysis on the second part of the second question, (
47
) which raises the issue of judicial review under the second sentence of Article 15(3) of Directive 2008/115 regarding the extension of a period of detention beyond six months.
73.
Article 15(2) of Directive 2008/115 requires that the lawfulness of detention be subject to judicial review carried out as speedily as possible from the beginning of detention. Where detention is extended beyond six months under Article 15(6) of Directive 2008/115, such an extension must be supported by specific reasons, such as a lack of cooperation by the third-country national concerned or delays in obtaining the necessary documentation from third countries.
74.
The case-law of the Court recognises that both the initial detention and the extension thereof are similar in nature, in that both entail a deprivation of liberty for the purpose of preparing the return and/or carrying out the removal of the third-country national concerned. (
48
) The decision to extend detention must therefore be subject to the same procedural safeguards as those applying to the initial detention under Article 15(2) and (3) of Directive 2008/115. (
49
) These include the right to judicial oversight and proportionality, and the requirement that detention be necessary in the individual case.
75.
That said, an extension of detention constitutes a continuation of a serious interference with the individual’s right to liberty, (
50
) and, as it prolongs that interference beyond the initial period justified under Article 15(5) of Directive 2008/115, it requires a new judicial assessment to ensure that it remains lawful, necessary and proportionate in the light of the specific grounds set out in Article 15(6) of that directive. (
51
) Those safeguards give effect to the fundamental rights enshrined in Articles 6 and 47 of the Charter, namely the right to liberty and the right to an effective remedy. (
52
)
76.
In particular, under Article 15(2) of Directive 2008/115, which give concrete form to the right to effective judicial protection safeguarded in Article 47 of the Charter, each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention. (
53
) Since the initial decision to detain must be subject to judicial review, any extension of that detention – representing an even more substantial interference with the fundamental right to liberty – necessarily calls for an equally, if not more, rigorous judicial review. A judicial review that is unduly delayed cannot function as an effective check on the lawfulness of the continued deprivation of liberty. Therefore, such review should be carried out without undue delay and as speedily as possible. (
54
)
77.
In that respect, as I have already recalled, each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention. (
55
) Accordingly, it is consistent with the scheme and objectives of Article 15 of Directive 2008/115 that such judicial review in the context of extending detention beyond six months should, in principle, be initiated before the expiry of the initial period, in order to ensure effective protection of the right to liberty. This approach helps to ensure that the maximum duration laid down in Article 15(5) of that directive remains effective and that the exceptional conditions under paragraph 6 of that article are subject to meaningful scrutiny.
78.
However, it should be noted that Directive 2008/115 does not expressly require that judicial review of an extension of detention be initiated before the expiry of the initial six-month period. The second sentence of Article 15(3) merely requires that such detention be subject to judicial review, without prescribing a specific time frame or procedural form. In line with the principle of procedural autonomy, Member States retain discretion to determine those procedural arrangements. Thus, a review conducted after the expiry may still comply with the directive, provided that it is carried out promptly and effectively, thereby offering adequate safeguards against arbitrary detention. Nonetheless, given the gravity of any continued deprivation of liberty, a delayed review must be conducted with particular urgency to ensure compliance with the right to liberty. (
56
)
79.
In the present case, the referring court states that the conditions justifying an extension of detention were not examined in the light of the evidence submitted, or referred to in the decision adopted by the Helsingin käräjäoikeus (District Court, Helsinki). The referring court thus appears to take the view that it was only when another judicial authority, the Etelä-Karjalan käräjäoikeus (District Court, South Karelia), subsequently intervened of its own motion, on 7 December 2023, that the judicial review required under the second sentence of Article 15(3) of Directive 2008/115 was actually carried out. It should be observed that the third-country national concerned submitted at the hearing that the six-month threshold was exceeded by 2 months and 19 days before any judicial assessment of the lawfulness of the extension of his detention took place.
80.
In the absence of EU rules concerning the procedural requirements relating to the time limits of the judicial review required under the second sentence of Article 15(3) of Directive 2008/115, the Member States remain competent, in accordance with the principle of procedural autonomy, to determine those requirements. (
57
) In that connection, in the light of the seriousness of the interference with the fundamental right to liberty, enshrined in Article 6 of the Charter, a period of 2 months and 19 days during which no proper judicial review of the detention took place appears manifestly excessive. Such a delay risks undermining the effectiveness of the judicial protection required under the second sentence of Article 15(3) of Directive 2008/115, which requires that Member States ensure that, in the case of prolonged detention periods, reviews of detention, which must take place at reasonable intervals, are to be subject to the supervision of a judicial authority. (
58
)
81.
In the light of the foregoing, I take the view that, where the decision to extend a period of detention is taken by an administrative authority, the judicial review required under the second sentence of Article 15(3) of Directive 2008/115 should be initiated, in principle, before the start of the extended period. However, if the judicial review takes place after the expiry of the initial detention period, given the gravity of any interference with the fundamental right to liberty, that review must nevertheless be conducted speedily, in accordance with the requirement of a timely judicial review of the lawfulness of detention, as laid down in Article 15(2) and (3) of that directive.
C.
The third question
82.
At the outset, it should be noted that it would appear that the referring court is asking the Court of Justice more broadly about the relevant elements, in EU law, in order to establish the consequences of a delayed judicial review. However, in my view, an answer to such a broad question would go beyond what that court needs in order to resolve the dispute in the main proceedings.
83.
That is why I propose to reformulate that question in such a way as to narrow its scope, to the effect that it is necessary to determine whether the second sentence of Article 15(3) of Directive 2008/115 must be interpreted as meaning that the absence of a timely judicial review of the administrative decision extending the detention of the detained person beyond the initial maximum period provided for under Article 15(5) entails the obligation to release that person immediately, even if, at the time when the belated judicial review is carried out, all the substantive conditions justifying detention, as laid down in Article 15 of that directive, are satisfied. If that is not the case, the referring court seeks to ascertain which elements are relevant in order to determine whether, in such circumstances, the person detained should be released immediately.
84.
In that regard, I would observe that in the judgment in FMS and Others, the Court has already held that Article 15 of Directive 2008/115 is unconditional and sufficiently precise and that it therefore has direct effect. (
59
) Furthermore, that provision must be interpreted in the light of Article 47 of the Charter, which guarantees the right to effective judicial protection. (
60
) In that connection, the Court has held that Member States must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention. (
61
) A lack of judicial review or a substantial delay of such review therefore undermines the essence of Article 47 and thus is in breach of EU law. (
62
) Accordingly, where no judicial review is carried out in a timely and effective manner, the detention becomes incompatible with Article 15(2) and (3) of Directive 2008/115 and Article 47 of the Charter, regardless of whether the substantive grounds for detention may later be satisfied.
85.
In addition, the Court has explicitly stated that where detention is held to be unlawful, the person concerned is to be released immediately, (
63
) and that national courts must be able to substitute their judgment and order immediate release or an alternative to detention. (
64
) The Court has confirmed that courts may order release directly, in the absence of another competent court, when detention is in breach of EU law. (
65
)
86.
In that respect, it should be observed that the Court has distinguished between situations in which detention is currently unlawful and those in which it was unlawful only for a prior period. Where detention lacks a lawful basis at the time of judicial review, the person must, in principle, be released immediately, as is confirmed in the judgment in FMS and Others. (
66
) However, where a person’s detention was initially unlawful but has since become justified under a new, independent legal ground, as discussed in the judgment in Bouskoura, (
67
) immediate release is not required. That judgment specifically addresses a change in legal regime, from detention under the Dublin III Regulation to detention under Directive 2008/115, involving distinct legal bases. In such cases, the third-country national may instead be entitled to compensation for the earlier unlawful deprivation of liberty. (
68
) By contrast, the present case involves successive periods of detention imposed under the same legal regime, that is Article 15 of Directive 2008/115. In that respect, it is for the national authorities to justify each new period, particularly any extension under Article 15(6) of that directive.
87.
I would argue that the principles set out in the case-law of the Court, cited in points 84 and 85 of the present Opinion, apply equally to the judicial review of decisions to extend detention under Article 15(6) of Directive 2008/115, which follows an initial detention ordered pursuant to a measure adopted on the basis of Article 15(1) of that directive, since any deprivation of liberty under Article 15 thereof must be accompanied by effective and timely judicial review.
88.
It follows that, if judicial review is unduly delayed, and the extension of detention beyond the initial six-month period under Article 15(6) of Directive 2008/115 takes place without timely judicial review, such detention must be regarded as unlawful. The procedural safeguard of speedy judicial review, enshrined in Article 15(2) of that directive, is an essential condition for the lawfulness of continued detention. A subsequent finding that the substantive conditions for detention are satisfied cannot retroactively heal the breach. Therefore, where this procedural requirement is not complied with, the third-country national must be released immediately, irrespective of whether the substantive conditions for detention are satisfied at the time of the belated review.
IV. Conclusion
89.
In view of all of the foregoing, I propose that the Court answer the questions referred by the Korkein oikeus (Supreme Court, Finland) as follows:
Article 15(3), (5) and (6) 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, read in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that:
–
it requires that, in order to determine whether the maximum periods of detention laid down in Article 15(5) and (6) thereof have been reached, all periods during which the third-country national concerned was previously detained under that provision, with a view to enforcing the same return decision, must be taken into account. If the return decision remains in force and the removal procedure has not been genuinely and definitively abandoned, an interruption in the detention does not justify restarting the calculation of periods of detention from zero. This is the case even if the third-country national concerned has been released between periods of detention or has temporarily left the territory for another Member State;
–
the judicial review required under the second sentence of Article 15(3) of Directive 2008/115, when the initial period of detention is to be extended, should be carried out, in principle, before the start of the extended period. However, if the judicial review takes place after the expiry of the initial detention period, given the gravity of any interference with the fundamental right to liberty, that review must nevertheless be conducted speedily, in accordance with the requirement of a timely judicial review of the lawfulness of detention, as laid down in Article 15(2) and (3) of that directive;
–
if judicial review is unduly delayed, and the extension of detention beyond the initial six-month period under Article 15(6) of Directive 2008/115 takes place without timely judicial review, such detention must be regarded as unlawful. The procedural safeguard of speedy judicial review, enshrined in Article 15(2) of that directive, is an essential condition for the lawfulness of continued detention. A subsequent finding that the substantive conditions for detention are satisfied cannot retroactively heal the breach. Therefore, where this procedural requirement is not complied with, the third-country national must be released immediately, irrespective of whether the substantive conditions for detention are satisfied at the time of the belated review.
(
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
)	OJ 2008 L 348, p. 98.
(
3
)	More specifically, the referring court appears to have been called upon to rule not on the lawfulness of the police decision of 11 September 2023, by way of which the third-country national concerned was detained a third time, but rather on that of his continued detention beyond the maximum period of six months laid down under Article 15(5) of Directive 2008/115. The appeal brought before that court is directed against the decision of the Itä-Suomen hovioikeus (Court of Appeal, Eastern Finland, Finland) dismissing the appeal brought by the third-country national concerned against the judgment of the Etelä-Karjalan käräjäoikeus (District Court, South Karelia, Finland) of 7 December 2023, which held, inter alia, that the mere fact that a hearing had been held ex officio only once the total period of detention had (potentially) exceeded six months was not sufficient to justify his release.
(
4
)	According to Peers, S., Directive 2008/115, while originally intended as a strict tool for detaining and removing irregular migrants, has evolved through the case-law of the Court to reflect a more balanced approach (see Peers, S., ‘Irregular migrants – Can humane treatment be balanced against efficient removal?’, European Journal of Migration and Law, Vol. 17, No 4, 2015, pp. 289 to 304).
(
5
)	OJ 2013 L 180, p. 31.
(
6
)	C‑357/09 PPU, EU:C:2009:741 (‘the judgment in Kadzoev’).
(
7
)	When replying to a question asked by the Court of Justice, the referring court specifies that, as to the application of Paragraph 127 of the Law on foreign nationals, in relation to Directive 2008/115, it is unclear on whether separate periods of detention should be aggregated or treated independently when calculating the maximum duration of a period of detention. On account of the lack of established national case-law, decisions on releasing detained individuals currently depend on how the police or the courts interpret the law in each case.
(
8
)	See, to that effect, 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 268) (‘the judgment in FMS and Others’). Directive 2008/115 thus seeks to align with the case-law of the European Court of Human Rights (ECtHR), according to which the detention of a person in the context of a deportation or extradition procedure is not subject to the condition that that measure is ‘necessary, for example to prevent the individual from … absconding’ (see, inter alia, ECtHR, 15 November 1996, Chahal v. the United Kingdom (CE:ECHR:1996:1115JUD002241493, §§ 112 and 113); 10 July 2014, Rakhimov v. Russia (CE:ECHR:2014:0710JUD005055213, §§ 119 and 120); and 27 November 2014, Khomullo v. Ukraine (CE:ECHR:2014:1127JUD004759310, § 52)).
(
9
)	Judgment of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 40; ‘the judgment in El Dridi’).
(
10
)	See, to that effect, the judgment in FMS and Others, paragraph 278.
(
11
)	See, in particular, judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 58), where the Court held that an extension granted pursuant to Article 15(6) of Directive 2008/115 must be decided upon in accordance with national law and may not, under any circumstances, exceed a further 12 months.
(
12
)	See paragraph 69 of that judgment referring to paragraphs 37, 54 and 61 of the same judgment. See also Section 15.4 of the Commission’s Return Handbook (annex to Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ 2017 L 339, p. 83)).
(
13
)	See, inter alia, the judgment in FMS and Others, paragraphs 279 and 280 and the case-law cited.
(
14
)	Ibid., paragraph 280.
(
15
)	In the judgment in El Dridi, paragraph 43, the Court added that Directive 2008/115 is thus intended to take account both of the case-law of the ECtHR, according to which the principle of proportionality requires that the detention of a person against whom a deportation or extradition procedure is under way should not continue for an unreasonable length of time, that is, its length should not exceed the period that is required for the purpose pursued (see, inter alia, ECtHR, 29 January 2008, Saadi v. the United Kingdom (CE:ECHR:2008:0129JUD001322903, §§ 72 to 74)), and of the eighth guideline of the ‘Twenty guidelines on forced return’ adopted on 4 May 2005 by the Committee of Ministers of the Council of Europe, referred to in recital 3 of Directive 2008/115. According to that guideline, any detention pending removal is to be for as short a period as possible. For a commentary on the judgment in El Dridi, see Raffaelli, R., ‘Criminalizing irregular immigration and the Returns Directive – An analysis of the El Dridi case’, European Journal of Migration and Law, Vol. 13, No 4, 2011, pp. 467 to 489, and Mitsilegas, V., The Criminalisation of Migration in Europe – Challenges for Human Rights and the Rule of Law, Springer, Cham, 2015, pp. 57 to 76.
(
16
)	See judgments of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio examination of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 72 and the case-law cited, and of 4 October 2024, Staatssecretaris van Justitie en Veiligheid, C‑387/24 PPU, EU:C:2024:868, paragraph 41 (‘the judgment in Bouskoura’). In so far as detention constitutes a serious interference with a third-country national’s right to liberty, enshrined in Article 6 of the Charter, it is subject to strict safeguards, including predictability and protection against arbitrariness (see, to that effect, judgment of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 40).
(
17
)	Judgment of 6 October 2022, Politsei- ja Piirivalveamet (Detention – Risk of committing a criminal offence) (C‑241/21, EU:C:2022:753, paragraphs 30 to 33, 38 and 40 to 43).
(
18
)	See, to that effect, the judgment in FMS and Others, paragraphs 268 and 269.
(
19
)	For a discussion on the case-law of the Court concerning Directive 2008/115, see Molnár, T., ‘The place and role of international human rights law in the EU Return Directive and in the related CJEU case-law – Approaches worlds apart?’, in Carrera, S., et al. (eds), EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes, Brill Nijhoff, Leiden, 2018, pp. 105 to 124.
(
20
)	See, to that effect, judgment of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraph 38).
(
21
)	See, to that effect, judgment of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraph 40). See also ECtHR judgment of 19 February 2009, A. and Others v. the United Kingdom (CE:ECHR:2009:0219JUD000345505, § 164).
(
22
)	The concept of a ‘reasonable prospect’ was interpreted, inter alia, in the judgment in Kadzoev (paragraphs 64 to 66), in which the Court held that a reasonable prospect of removal did not exist where it appears unlikely that the person concerned would be admitted to a third country having regard to the time limits laid down. See also the judgment in FMS and Others, paragraph 278.
(
23
)	See point 35 above.
(
24
)	See points 37 to 40 above.
(
25
)	10 May 2007, CE:ECHR:2007:0510JUD000019905.
(
26
)	Ibid., §§ 33 and 34.
(
27
)	See points 44 to 47 above.
(
28
)	See points 46 and 47 above.
(
29
)	See point 39 above.
(
30
)	See point 46 above.
(
31
)	See, inter alia, the judgment in Kadzoev, paragraph 37, and judgment of 6 October 2022, Politsei- ja Piirivalveamet (Detention – Risk of committing a criminal offence) (C‑241/21, EU:C:2022:753, paragraphs 40 to 42).
(
32
)	Judgment of 17 September 2020, JZ (Custodial sentence in the case of an entry ban), C‑806/18, EU:C:2020:724, paragraphs 27 to 29 and the case-law cited).
(
33
)	Judgment of 6 December 2011, Achughbabian (C‑329/11, EU:C:2011:807, paragraphs 46, 48 and 50).
(
34
)	Judgment of 17 September 2020, JZ (Custodial sentence in the case of an entry ban), C‑806/18, EU:C:2020:724, paragraphs 27 to 29 and the case-law cited).
(
35
)	Ibid.
(
36
)	See the judgment in Kadzoev, paragraphs 63 to 67. In paragraph 65 of that judgment, the Court directly links proportionality to the reasonable prospect of removal, by ruling that the detention of a person with a view to removal must not be prolonged beyond the time strictly necessary to ensure successful removal. If it appears that a reasonable prospect of removal no longer exists, detention ceases to be justified and the person concerned must be released immediately.
(
37
)	See Article 15(1) and (4) of Directive 2008/115.
(
38
)	See Article 8(4) of Directive 2008/115, according to which ‘where Member States use – as a last resort – coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.’ See also Peers, S., footnote 4, op. cit., pp. 289 to 304.
(
39
)	Majcher, I. and Strik, T., ‘Legislating without evidence – The recast of the EU Return Directive’, European Journal of Migration and Law, Vol. 23, No 2, 2021, pp. 103 to 126.
(
40
)	Ibid.
(
41
)	Paragraph 45. See also the judgment in Bouskoura, paragraph 46.
(
42
)	Directive of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ L 180, p. 96). Directive 2013/33 replaced Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18).
(
43
)	It is apparent from paragraph 22 of the order for reference that the provision on the maximum period of detention of six months laid down in Article 127(1) of the Law on foreign nationals, which corresponds to Article 15(5) of Directive 2008/115, applies to any detention of a foreign national, irrespective of whether the legal basis for detention is based on EU or national law. Paragraph 23 of the order for reference states that ‘it is clear from the case file that [the] detention [of the third-country national concerned] was based, all or most of the time, at least principally, on the [system of Directive 2008/115].’
(
44
)	Detention for the purpose of removal under Directive 2008/115 and detention of applicants for international protection are subject to separate legal regimes. See point 60 above.
(
45
)	As regards the difference in detention regimes under Directive 2008/115 and the Dublin III Regulation, see the judgment in Bouskoura, paragraphs 46 to 50.
(
46
)	C‑704/20 and C‑39/21, EU:C:2022:858 (paragraphs 83, 84, 88 and 92).
(
47
)	It follows from the settled case-law of the Court, in particular from the judgments of 10 September 2013, G. and R. (C‑383/13 PPU, EU:C:2013:533), and of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320), that the judicial review required by the second sentence of Article 15(3) of Directive 2008/115 must be carried out ex officio, without the detained person having to make a request to that effect. This interpretation ensures the effective protection of the fundamental right to liberty and security, enshrined in Article 6 of the Charter.
(
48
)	See judgments of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 44), and of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraph 59).
(
49
)	See, to that effect, judgment of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraph 59 and the case-law cited).
(
50
)	See footnote 17 above.
(
51
)	See, to that effect, judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 44), in which the Court held, in essence, that any extension of detention under Article 15(6) requires a new, individualised assessment and cannot be automatic (paragraphs 44 to 46). Furthermore, the reviewing court must assess the conditions justifying the extension, and not merely rely on the administrative authority’s conclusions (paragraph 60).
(
52
)	The Court has held that it would be contrary to the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter, if no court were able to examine whether a decision ordering detention, under Directive 2008/115, is in compliance with the rights and freedoms guaranteed by EU law to third-country nationals staying illegally on the territory of a Member State (see, to that effect, the judgment in FMS and Others, paragraph 290).
(
53
)	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, paragraph 83 and the case-law cited).
(
54
)	See Article 15(2) of Directive 2008/115, which explicitly requires that detention be subject to judicial review ‘as speedily as possible from the beginning of detention’ and that extensions be reviewed by a judicial authority. It follows from the systemic rationale of that directive that since detention must be necessary, proportionate, and time-limited, the review of continued detention under the second sentence of Article 15(3) of that directive must be subject to the same judicial safeguards as initial detention, including speediness.
(
55
)	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 83).
(
56
)	This interpretation is further reinforced by Article 15(4) of Directive 2008/115, which provides that detention must cease immediately when the conditions set out in Article 15(1) of Directive 2008/115 are no longer met. It would be inconsistent with that provision if an extension were imposed automatically or belatedly.
(
57
)	See judgment of 8 May 2014, N. (C‑604/12, EU:C:2014:302, paragraph 41).
(
58
)	See the judgment in FMS and Others, paragraph 276.
(
59
)	See, to that effect, the judgment in FMS and Others, paragraph 288 and the case-law cited.
(
60
)	Ibid., paragraph 289.
(
61
)	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 83).
(
62
)	Ibid., paragraphs 81 and 83.
(
63
)	See, to that effect, the judgment in FMS and Others, paragraph 292.
(
64
)	Ibid., paragraph 293 referring to the judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 62). See also 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 79), and the judgment in Bouskoura, paragraph 44.
(
65
)	See the judgment in FMS and Others, paragraph 294.
(
66
)	Ibid., paragraph 278.
(
67
)	See the judgment in Bouskoura, paragraphs 58 to 61.
(
68
)	Ibid.