Said Shamilovich Kadzoev (Huchbarov).
Date: 2009-11-30
36. If the period of detention for the purpose of removal completed before the rules in Directive 2008/115 become applicable were not taken into account for calculating the maximum period of detention, persons in a situation such as that of Mr Kadzoev could be detained for longer than the maximum periods mentioned in Article 15(5) and (6) of that directive.
37. Such a situation would not be consistent with the objective of those provisions of Directive 2008/115, namely to guarantee in any event that detention for the purpose of removal does not exceed 18 months.
38. Moreover, Article 15(5) and (6) of Directive 2008/115 apply immediately to the future consequences of a situation that arose when the previous rules were in force.
45. Detention for the purpose of removal governed by Directive 2008/115 and detention of an asylum seeker in particular under Directives 2003/9 and 2005/85 and the applicable national provisions thus fall under different legal rules.
56. That interpretation of Article 20(1)(d) of Regulation No 343/2003 cannot be transposed to the context of the interpretation of Article 15(5) and (6) of Directive 2008/115. While the period at issue in the Petrosian  case determines the time available to the requesting Member State for implementing the transfer of an asylum seeker to the Member State which is obliged to readmit him, the maximum periods laid down in Article 15(5) and (6) of Directive 2008/115 serve the purpose of limiting the deprivation of a person’s liberty. Moreover, the latter periods set a limit to the duration of detention for the purpose of removal, not to the implementation of the removal procedure as such.
60. It is clear that, where the maximum duration of detention provided for in Article 15(6) of Directive 2008/115 has been reached, the question whether there is no longer a ‘reasonable prospect of removal’ within the meaning of Article 15(4) does not arise. In such a case the person concerned must in any event be released immediately.
65. It must therefore be apparent, at the time of the national court’s review of the lawfulness of detention, that a real prospect exists that the removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and ( 6) of Directive 2008/115, for it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of Article 15(4) of that directive.
68. By this question the referring court asks essentially whether Article 15(4) and (6) of Directive 2008/115 allow the person concerned not to be released immediately, even though the maximum period of detention provided for by that directive has expired, on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose.
69. It must be pointed out that, as is apparent in particular from paragraphs 37, 54 and 61 above, Article 15(6) of Directive 2008/115 in no case authorises the maximum period defined in that provision to be exceeded.
70. The possibility of detaining a person on grounds of public order and public safety cannot be based on Directive 2008/115. None of the circumstances mentioned by the referring court can therefore constitute in itself a ground for detention under the provisions of that directive.