CJEU Case C-150/24 / Opinion
Key facts of the case:

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.

Outcome of the case:

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.
Paragraphs referring to EU Charter

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.

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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 )

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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 )

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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.
Paragraphs referring to EU Charter (original language)