Criminal proceedings against Md Sagor.
Date: 2012-12-06
29. That line of argument must be rejected. The fact that Mr Sagor has, hitherto, not been sentenced to the fine laid down by Article 10a of Legislative Decree No 286/1998 and that, consequently, it is not yet possible to ascertain whether, if that fine were to be imposed, the conditions for its conversion into an order for expulsion or home detention would be met, is attributable specifically to the fact that the referring court is unsure as to the compatibility of those various sanctions with EU law and is thus refraining from imposing them in the absence of clarity in that regard. In the order for reference, it is stated that the offence of illegal stay has been established in the present case and that the penalising mechanism provided for in the legislation at issue in the main proceedings will, providing it is compatible with EU law, have to be applied to Mr Sagor. It follows that that legislation, and the question of its compatibility with EU law, are relevant in the main proceedings (see, by analogy, Case C-329/11 Achughbabian  [2011] ECR I-12695, paragraph 42).
31. Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. Therefore, that directive does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down criminal sanctions to deter and penalise such an infringement ( Achughbabian , paragraph 28).
32. However, a Member State may not apply criminal law rules which are liable to undermine the application of the common standards and procedures established by Directive 2008/115 and thus to deprive it of its effectiveness (see Case C-61/11 PPU El Dridi  [2011] ECR I-3015, paragraph 55, and Achughbabian , paragraph 39).
33. The Court has already had occasion to state that those standards and procedures would be undermined if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution which could lead to a term of imprisonment during the course of the return procedure. Such a step would risk delaying the removal (see El Dridi , paragraph 59, and Achughbabian , paragraphs 37 to 39 and 45).
43. It follows both from the duty of loyalty of the Member States and from the requirements of effectiveness referred to in Directive 2008/115 that the obligation imposed on the Member States by Article 8 of that directive to carry out the removal must be fulfilled as soon as possible ( Achughbabian , paragraph 45).
44. Clearly, the imposition and enforcement of a home detention order during the course of the return procedure provided for by Directive 2008/115 do not contribute to the achievement of the removal which that procedure pursues, namely the physical transportation of the relevant individual out of the Member State concerned. Such an order does not therefore constitute a ‘measure’ or a ‘coercive measure’ within the meaning of Article 8 of Directive 2008/115 (see, by analogy, Achughbabian , paragraph 37).
48. If the referring court were required, on the basis of the answers to the first and second questions and following the examinations described in paragraphs 41 and 46 of this judgment, to conclude that the present case does not correspond to one of the situations referred to in Article 7(4) of Directive 2008/115 and that the option provided by Article 16 of Legislative Decree No 286/1998 cannot therefore be made use of, or to conclude that Directive 2008/115 precludes the application of Articles 53 and 55 of Legislative Decree No 274/2000 to illegally staying third-country nationals, it would be for that court to refuse to apply those provisions of national law (see, by analogy, El Dridi , paragraph 61).