A stateless person of Chechen origin, whose real identity could not be determined with certainty, was detained in Bulgaria for several years. His application for asylum was rejected, but he stayed in detention as several countries denied him the right to enter. By the time the case reached the CJEU, the applicant had been in detention for 37 months. The court ruled that where there is no reasonable prospect of successful expulsion, individuals cannot be detained. The Court ruled on several points regarding the interpretation of Article 15(4) to (6) of Directive 2008/115/EC (EU Returns Directive), including on the calculation of the maximum period of detention. The Court also interpreted the concept of a (lack of) reasonable prospect of removal within the meaning of Article 15(4) of the Returns Directive, according to which detention ceases to be justified and the person concerned must be released immediately when it appears that, for legal or other considerations, a reasonable prospect of removal no longer exists.
- Article 15(4) to (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 (OJ 2008 L 348, p. 98)
- Article 44(6) and Article 46a(3) to (5) of the Law on foreign nationals in the Republic of Bulgaria
"The main proceedings and the reference for a preliminary ruling
13 On 21 October 2006 a person was arrested by Bulgarian law enforcement officials near the border with Turkey. He had no identity documents and said that his name was Said Shamilovich Huchbarov, born on 11 February 1979 in Grozny (Chechnya). He stated that he did not wish the Russian consulate to be informed of his arrest.
14 By decree of 22 October 2006 of the competent police department, a coercive administrative measure of deportation was imposed on him.
15 He was placed in the detention centre on 3 November 2006, to be detained until it was possible to execute the decree, that is, until documents were obtained enabling him to travel abroad and sufficient funds guaranteed to purchase a ticket to Chechnya. The decree became enforceable on 17 April 2008, following judicial review proceedings.
16 On 14 December 2006 he declared to the authorities of the detention centre that his real name was not Huchbarov but Kadzoev.
17 In the course of two administrative proceedings before the Administrativen sad Sofia-grad, a birth certificate was produced showing that Mr Kadzoev was born on 11 February 1979 in Moscow (former Soviet Union) of a Chechen father, Shamil Kadzoev, and a Georgian mother, Loli Elihvari. However, a temporary identity card for a national of the Chechen Republic of Ichkeria, valid until 3 February 2001, issued in the name of Said Shamilovich Kadzoev, born on 11 February 1979 in Grozny, was also produced. The person concerned nevertheless continued to present himself to the authorities under the names of either Kadzoev or Huchbarov.
18 In the period from January 2007 to April 2008, there was an exchange of correspondence between the Bulgarian and Russian authorities. Contrary to the view of the Bulgarian authorities, the Russian authorities claimed that the temporary identity card in the name of Said Shamilovich Kadzoev came from persons and an authority unknown to the Russian Federation, and could not therefore be regarded as a document proving the person’s Russian nationality.
19 On 31 May 2007, while he was detained in the detention centre, Mr Kadzoev applied for refugee status. The action he brought against the refusal of the Bulgarian administrative authorities to grant that application was dismissed by judgment of the Administrativen sad Sofia-grad of 9 October 2007. On 21 March 2008 he made a second application for asylum, but withdrew it on 2 April 2008. On 24 March 2009 he made a third application for asylum. By decision of 10 July 2009, the Administrativen sad Sofia-grad dismissed his action and refused him asylum. No appeal lies against that decision.
20 On 20 June 2008 Mr Kadzoev’s lawyer applied for the detention to be replaced by a less severe measure, namely the obligation for Mr Kadzoev to sign periodically a register kept by the police authorities at his place of residence. As the competent authorities considered that he had no actual address in Bulgaria, they rejected the application on the ground that the necessary conditions were not satisfied.
21 On 22 October 2008 a similar application was made, which was likewise rejected.
22 Following an administrative procedure brought at the request of Mr Kadzoev before the Commission for Protection against Discrimination, which gave rise to proceedings in the Varhoven administrativen sad (Supreme Administrative Court), that court, in agreement with the commission, accepted in its judgment of 12 March 2009 that it was not possible to establish with certainty the identity and nationality of Mr Kadzoev, so that it considered him to be a stateless person.
23 According to the order for reference, the help centre for survivors of torture, the office of the United Nations High Commissioner for Refugees and Amnesty International find it credible that Mr Kadzoev was the victim of torture and inhuman and degrading treatment in his country of origin.
24 Despite the efforts of the Bulgarian authorities, several non-governmental organisations and Mr Kadzoev himself to find a safe third country which could receive him, no agreement was reached, and he has not as yet obtained any travel documents. Thus the Republic of Austria and Georgia, to which the Bulgarian authorities applied, refused to accept Mr Kadzoev. The Republic of Turkey, to which the Bulgarian authorities also applied, did not reply.
25 The Administrativen sad Sofia-grad states that Mr Kadzoev is still detained in the detention centre.
26 The main proceedings were commenced by an administrative document filed by the director of the Directorate for Migration at the Ministry of the Interior, asking the Administrativen sad Sofia-grad to rule of its own motion, pursuant to Article 46a(3) of the Law on foreign nationals, on the continued detention of Mr Kadzoev."
Mr. Kadzoev noted that the procedural rules in the main proceedings before the national court did not allow him to be heard and therefore the presentation of the facts by the national court was based solely on the statement of facts as drawn by the detaining authority. Mr. Kadzoev therefore strongly challenged the allegations that he was aggressive and noted that his prolonged solitary confinement while he was placed in removal detention in Bulgaria had led to his retraumatisation as a victim of torture in Russia. Mr. Kadzoev also noted that there was no reasonable prospect for his removal and that was self-evident by the fact that, throughout his detention lasting for three years in Bulgaria, the authorities never suspended the futile efforts to remove him, regardless of his asylum claims. The latter were examined in an accelerated procedure while Mr. Kadzoev was kept in removal detention.
The Migration Directorate requested the court to take into account that some of the time spent in removal detention by Mr. Kadzoev coincided with the appeal of his removal order and the examination of his asylum claims and therefore these periods should be excluded from counting the 18-months time limit of detention.
"47 Should it prove to be the case that no decision was taken on Mr Kadzoev’s placement in the detention centre in the context of the procedures opened following his applications for asylum, referred to in paragraph 19 above, so that his detention remained based on the previous national rules on detention for the purpose of removal or on the provisions of Directive 2008/115, Mr Kadzoev’s period of detention corresponding to the period during which those asylum procedures were under way would have to be taken into account in calculating the period of detention for the purpose of removal mentioned in Article 15(5) and (6) of Directive 2008/115."53 The period of detention completed by the person concerned during the procedure in which the lawfulness of the removal decision is the subject of judicial review must therefore be taken into account for calculating the maximum duration of detention laid down in Article 15(5) and (6) of Directive 2008/115."
54 If it were otherwise, the duration of detention for the purpose of removal could vary, sometimes considerably, from case to case within a Member State or from one Member State to another because of the particular features and circumstances peculiar to national judicial procedures, which would run counter to the objective pursued by Article 15(5) and (6) of Directive 2008/115, namely to ensure a maximum duration of detention common to the Member States."
"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.
66 Thus a reasonable prospect of removal does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods."
"On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 15(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 must be interpreted as meaning that the maximum duration of detention laid down in those provisions must include a period of detention completed in connection with a removal procedure commenced before the rules in that directive become applicable.
2. A period during which a person has been held in a detention centre on the basis of a decision taken pursuant to the provisions of national and Community law concerning asylum seekers may not be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115.
3. Article 15(5) and (6) of Directive 2008/115 must be interpreted as meaning that the period during which execution of the decree of deportation was suspended because of a judicial review procedure brought against that decree by the person concerned is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned continued to be held in a detention facility during that procedure.
4. Article 15(4) of Directive 2008/115 must be interpreted as not being applicable where the possibilities of extending the periods of detention provided for in Article 15(6) of Directive 2008/115 have been exhausted at the time when a judicial review of the detention of the person concerned is conducted.
5. Article 15(4) of Directive 2008/115 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal, and that that reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods.
6. Article 15(4) and (6) of Directive 2008/115 must be interpreted as not allowing, where the maximum period of detention laid down by that directive has expired, the person concerned not to be released immediately 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."
Three days after the judgment of the CJEU, on 3 December 2009, Mr. Kadzoev was unconditionally released from the migrant detention centre, after having spent over three years in removal detention.
Case C‑19/08 Petrosian