Bashir Mohamed Ali Mahdi.
Date: 2014-06-05
38. The Court observes first of all that, in accordance with Article 79(2) TFEU, the objective of Directive 2008/115 is, as is apparent from recitals 2 and 11 in the preamble thereto, to establish an effective removal and repatriation policy, based on common standards and common legal safeguards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.
40. Recital 6 in the preamble to Directive 2008/115 states that the Member States should ensure that the ending of the illegal stay of third-country nationals is carried out through a fair and transparent procedure. That recital also states that, according to general principles of EU law, decisions taken under Directive 2008/115 should be adopted on a case-by-case basis and be based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay.
41. Under Article 15(2) of Directive 2008/115, the initial detention of a third-country national, which may not exceed six months, must be ordered by administrative or judicial authorities, in writing with reasons being given in fact and in law for the detention decision (see, to that effect, G. and R. , C‑383/13 PPU, EU:C:2013:533, paragraph 29).
45. According to the case-law of the Court, the obligation to communicate those reasons is necessary both to enable the third-country national concerned to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and also to put that court fully in a position to carry out the review of the legality of the decision in question (see, to that effect, Heylens and Others , 222/86, EU:C:1987:442, paragraph 15, and Kadi and Al Barakaat International Foundation  v Council and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 337).
54. It must first of all be noted that the Court has already held that Article 15 of Directive 2008/115 is unconditional and sufficiently precise, so that no other specific elements are required for it to be implemented by the Member States (see, to that effect, El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 47).
55. As is apparent from recitals 13, 16, 17 and 24 of Directive 2008/115, every detention ordered which is within the scope of the directive is strictly circumscribed by the provisions of Chapter IV thereof so as to ensure, on the one hand, compliance with the principle of proportionality with regard to the means used and objectives pursued and, on the other, observance of the fundamental rights of the third‑country nationals concerned.
60. So far as the first requirement under Article 15(4) of that directive is concerned, the Court has already stated that, for it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of that provision, there must, at the time of the national court’s review of the lawfulness of detention, be a real prospect 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 (see, to that effect, Kadzoev , C‑357/09 PPU, EU:C:2009:741, paragraph 65).
62. It follows that a judicial authority deciding upon an application for the extension of detention must be able to rule on all relevant matters of fact and of law in order to determine, in the light of the requirements set out in paragraphs 58 to 61 of this judgment, whether an extension of detention is justified, which requires an in-depth examination of the matters of fact specific to each individual case. Where the detention that was initially ordered is no longer justified in the light of those requirements, the judicial authority having jurisdiction must be able to substitute its own decision for that of the administrative authority or, as the case may be, the judicial authority which ordered the initial detention and to take a decision on whether to order an alternative measure or the release of the third-country national concerned. To that end, the judicial authority ruling on an application for extension of detention must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national. Furthermore, that authority must be able to consider any other element that is relevant for its decision should it so deem necessary. Accordingly, the powers of the judicial authority in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority concerned.
65. By questions 2 and 3, which it is appropriate to consider together, the referring court asks, in essence, whether Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six-month period of detention may be extended solely because the third-country national concerned has no identity documents and, accordingly, there is a risk of him absconding.
66. It should first be observed that the concept of ‘risk of absconding’ is defined in Article 3(7) of Directive 2008/115 as the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third‑country national who is the subject of return procedures may abscond.
67. Second, the fact that such a risk exists is one of the reasons expressly specified in Article 15(1) of Directive 2008/115 as justification for keeping in detention a third-country national who is the subject of a return procedure in order to prepare the return or carry out the removal process. As has been observed in paragraph 61 of this judgment, that provision makes clear that recourse may be had to such detention only when other sufficient but less coercive measures cannot be applied effectively in a specific case.
68. Third, as has been recalled in paragraph 58 of this judgment, extension of detention may, under Article 15(6) of Directive 2008/115, be ordered only if the removal operation is likely to last longer owing either to a lack of cooperation by the third-country national concerned or to delays in obtaining the necessary documentation from third countries, no mention being made of the fact that the person concerned has no identity documents.
69. Furthermore, as has been stated in paragraph 61 of this judgment, any decision on the extension of the detention of a third-country national and, thus, on the existence of the circumstances described in Article 15(6) of Directive 2008/115 must be preceded by a re-examination of the substantive conditions which formed the basis for the initial decision to detain the third-country national concerned. That calls for an assessment by the judicial authority, in the course of the examination required under the second sentence of Article 15(3) of the directive, of the circumstances which gave rise to the initial finding that there was a risk of the third-country national absconding.
70. Moreover, as has already been stated by the Court, any assessment relating to the risk of the person concerned absconding must be based on an individual examination of that person’s case (see Sagor , C‑430/11, EU:C:2012:777, paragraph 41). Furthermore, as stated in recital 6 in the preamble to Directive 2008/115, decisions taken under the directive should be adopted on a case-by-case basis and based on objective criteria.
71. In the present case, it is apparent from the order for reference that Bulgarian law provides, in point 4c of paragraph 1 of the Supplementary Provisions to the Law on Foreign Nationals that there is shown to be a risk that a third-country national who is the subject of a coercive administrative measure may abscond where, taking account of certain facts, there is reason to believe that the person concerned will attempt to circumvent implementation of the measure ordered. The objective factors which may constitute such a risk are set out in point 4c and include, inter alia, the fact that the person concerned has no identity documents.
72. It is therefore for the referring court to assess the facts surrounding the situation of the third-country national concerned in order to determine, in the re-examination of the conditions laid down in Article 15(1) of Directive 2008/115, whether, as the direktor suggested in the case in the main proceedings, a less coercive measure may be applied effectively to that person and, should that not prove possible, to determine whether there continues to be a risk of that person absconding. Only in the last-mentioned case may the referring court take into account the lack of identity documents.
73. Accordingly, the fact that the third-country national concerned has no identity documents cannot, on its own, be a ground for extending detention under Article 15(6) of Directive 2008/115.
74. Consequently, the answer to questions 2 and 3 is that Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six-month period of detention may be extended solely because the third-country national concerned has no identity documents. It is for the referring court alone to undertake an individual assessment of the facts and circumstances of the case in question in order to determine whether a less coercive measure may be applied effectively to that third-country national or whether there is a risk of him absconding.
Question 4(a)
78. In this regard, it must be observed that is for the national court to ascertain the facts which have given rise to the dispute before it and to establish the consequences which they have for the judgment which it is required to deliver (see, inter alia, WWF and Others , C‑435/97, EU:C:1999:418, paragraph 32, and Danosa , C‑232/09, EU:C:2010:674, paragraph 33).
79. In the division of jurisdiction between the Courts of the European Union and the national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a rule of EU law are satisfied in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Haim , C‑424/97, EU:C:2000:357, paragraph 58; Vatsouras and Koupatantze , C‑22/08 and C‑23/08, EU:C:2009:344, paragraph 23; and Danosa , EU:C:2010:674, paragraph 34).
80. In those circumstances, the Court must answer the questions concerning the interpretation of EU law which have been referred for a preliminary ruling, whilst leaving to the referring court the task of establishing the specific elements of the case before it and, in particular, of determining whether the lack of identity documents can be attributed solely to the fact that Mr Mahdi withdrew the statement concerning his voluntary return (see, by analogy, Danosa , EU:C:2010:674, paragraph 36).
84. It follows that, in order to confirm that the Member State concerned has made reasonable efforts to carry out the removal operation and that there is a lack of cooperation on the part of the third-country national concerned, a detailed examination of the factual matters relating to the whole of the initial detention period is necessary. Such an examination is a question of fact which, as has already been recalled, falls outside the jurisdiction of the Court in proceedings under Article 267 TFEU and is a matter for the national court ( Merluzzi , 80/71, EU:C:1972:24, paragraph 10).