1.

This request for a preliminary ruling from the Riigikohus (Supreme Court, Estonia) concerns the interpretation of Article 15(1) of Directive 2008/115/EC. ( 2 )

2.

The request has been made in proceedings brought by I.L., a national of the Republic of Moldova, in respect of whom the Politsei- ja Piirivalveamet (Police and Border Guard Board; ‘the PPA’) issued an order obliging him to leave Estonia, against the decision to have him placed in a detention facility until his removal. He challenges the lawfulness of the grounds provided, namely that there is a real risk that, while at liberty and prior to removal, he will commit a criminal offence, the investigation and punishment of which may substantially impede the execution of the removal process.

3.

In this Opinion, I will set out the reasons why I take the view that Member States are not permitted to base the detention of illegally staying third-country nationals on grounds relating to the objective of ensuring the effectiveness of the return procedure provided for in Directive 2008/115, or to justify that detention based on the risk that the procedure will be postponed because the person concerned is likely to commit acts constituting criminal offences.

4.

Under Article 3(7) of Directive 2008/115, risk of absconding means ‘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’.

5.

Article 15(1), which is included in Chapter IV of that directive, entitled ‘Detention for the purpose of removal’, provides:

‘1.   Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.’

6.

Paragraph 68 of the väljasõidukohustuse ja sissesõidukeelu seadus (Law on forced departure and the prohibition on entry), ( 3 ) of 21 October 1998, entitled ‘Risk of absconding of foreign nationals’, is worded as follows:

‘The adoption of an order to leave the territory of Estonia or to have a foreign national placed in a detention facility shall require the assessment of the risk of absconding of the person concerned. A foreign national poses a risk of absconding if:

7.

Paragraph 72 of the VSS, entitled ‘Fixing the time limit to comply with the obligation to leave the territory’, provides:

‘…

(2) It is possible not to set a time limit for voluntary departure and the obligation to leave the territory may be enforced immediately if:

…

…’

8.

Under point 2 of Paragraph 73 of the VSS, ‘the obligation to leave the territory issued in respect of a foreign national shall be enforced by means of his detention and removal from Estonia’.

9.

Paragraph 15 of the VSS, entitled ‘Detention of foreign nationals and removal arrangements’, provides:

‘(1)   A foreign national may be detained in accordance with subparagraph 2 if the supervision measures provided for in this law cannot be applied effectively. The detention must observe the principle of proportionality and take into account, in each case, any relevant factors relating to the person concerned.

(2)   A foreign national may be detained if the application of the supervision measures provided for in this law does not ensure effective compliance with the obligation to leave the territory and, in particular, if:

…’

10.

I.L., a national of the Republic of Moldova, born in 1993 in Russia, was staying in Estonia on the basis of a visa exemption. On 12 October 2020, he was apprehended on suspicion of inflicting physical pain on his cohabiting partner and on another woman and causing harm to their health.

11.

By judgment of 13 October 2020, the Harju Maakohus (Court of First Instance, Harju, Estonia) found I.L. guilty of physical abuse in accordance with the Estonian Criminal Code, but he was acquitted of the charge of threatening behaviour alleged by his partner. The final sentence imposed by the judgment of the Court of First Instance on I.L. was imprisonment for one year, one month and 28 days with a probationary period of two years. The court released the person concerned from custody immediately.

12.

On the same day, the PPA prematurely terminated I.L.’s visa-exempted stay and re-arrested him on the premises of the Harju Maakohus (Court of First instance, Harju), in accordance with point 1 of Paragraph 15(2) of the VSS.

13.

That decision took into account the attitude of I.L. towards the offence committed and his behaviour after the sentencing, on the basis of which there were grounds to believe that he may abscond prior to his removal, despite his undertaking to depart voluntarily and his request for voluntary departure to be ordered.

14.

Accordingly, on the same day, the PPA issued an order obliging I.L. to leave Estonia immediately pursuant to points 1 and 4 of Paragraph 72 of the VSS, as he was staying there without a legal basis. The order was enforceable.

15.

By order of 15 October 2020, granting the request of the PPA, the Tallinna Halduskohus (Administrative Court, Tallinn, Estonia) granted authorisation for I.L. to be placed in a detention facility until his removal, but not beyond 15 December 2020, I.L. was removed from the Republic of Estonia to Moldova on 23 November 2020.

16.

That detention order was upheld by order of 2 December 2020 of the Tallinna Ringkonnakohus (Court of Appeal, Tallinn, Estonia), ruling on the appeal brought by I.L. requesting that the order of the Administrative Court be set aside and his release be ordered.

17.

The referring court, hearing an appeal against the order of the Court of Appeal, Tallinn by which I.L. requests that that order declaring his placement in a detention facility to be lawful be set aside, considers, in the first place, that the person concerned cannot be placed in a detention facility because of a risk of absconding pursuant to point 1 of Paragraph 15(2) of the VSS. It points out that the criteria to be met for there to be a risk of absconding are exhaustively provided for in Paragraph 68 of the VSS and must be examined in the light of the circumstances of each case. The referring court considers that the conditions for applying the criteria set out in points 1 and 4 of that paragraph have not been met in the present case. In that regard, the referring court notes the lack, on the one hand, of a written return decision setting a time limit for the voluntary departure of the person concerned and, on the other, of a final judgment convicting the person concerned at the time the detention order was issued.

18.

Moreover, the referring court clarifies that point 6 of Paragraph 68 of the VSS is not applicable either, on the ground that it cannot automatically be concluded from the statements made at the hearing in the proceedings for the issuance of a return decision that the person concerned does not intend to comply with the administrative act, if there are no further circumstances pointing to a risk that he will abscond prior to removal. Nor is a risk of absconding apparent, in the present case, from the desire expressed by the person concerned at the hearing before the Administrative Court to recover the belongings that he had left with his cohabiting partner and to receive the remuneration to be paid by his employer.

19.

In the second place, the referring court states that it is conceivable that the facts under consideration correspond to the ground referred to in Article 15(1)(b) of Directive 2008/115, the wording of which differs from that of points 2 and 3 of Paragraph 15(2) of the VSS, which transpose Article 15 of that directive, but that, notwithstanding the direct effect of that directive, a person’s rights cannot be directly restricted on the basis of a directive.

20.

Consequently, the referring court submits that the lawfulness of the detention of I.L. depends on the interpretation of Paragraph 15(2) of the VSS and the expression ‘in particular, if’ preceding points 1 to 3 setting out the grounds for detention. Considering it to be, on the basis of that wording, a non-exhaustive illustrative list, the referring court takes the view that I.L. could be detained on the basis of the general provision set out in Paragraph 15(2) of the VSS. The detention of the person concerned could thus be justified by the fact that ‘effective compliance with the obligation to leave the territory’ may be compromised. The lawfulness of that measure must also be assessed in accordance with the principles laid down in Paragraph 15(1) of the VSS.

21.

In that regard, the referring court notes that, in view of the temporal proximity between the events and the nature of the offence committed by I.L., there was sufficient reason to believe that he might make another attempt to resolve the conflict that had arisen with his cohabiting partner. Therefore, the referring court considers that there was a real risk that I.L., while at large, would commit a criminal offence before being removed. The delivery of a judgment finding that the person concerned had committed a criminal offence and possible subsequent execution of the sentence are likely to postpone his removal indefinitely and thereby make it considerably more difficult to remove him from the territory. Furthermore, owing to I.L.’s personal and material circumstances, it was not possible to ensure that successful removal could be carried as effectively by means of the supervision measures provided for in Paragraph 10(2) of the VSS.

22.

However, in so far as Paragraph 15 of the VSS seeks to transpose Article 15(1) of Directive 2008/115, the referring court has doubts as to its interpretation, on the ground that the Court has not yet ruled on whether one of the grounds listed in that provision must exist or whether the objective of ensuring effective removal is sufficient to justify detention if there is a real risk that the person concerned will commit a criminal offence which may substantially impede the execution of the removal process.

23.

In those circumstances, the Riigikohus (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the first sentence of Article 15(1) of [Directive 2008/115] to be interpreted as meaning that Member States may keep in detention a third-country national in respect of whom there is a real risk that, while at liberty and prior to removal, he or she will commit a criminal offence, the investigation and punishment of which may substantially impede the execution of the removal process?’

24.

Written observations were submitted by the Estonian and Spanish Governments and by the European Commission. They also presented oral argument at the hearing on 17 March 2022.

25.

By its question referred for a preliminary ruling, the referring court asks whether Article 15(1) of Directive 2008/115 must be interpreted as meaning that the detention of an illegally staying third-country national may be justified if there is a real risk that the person concerned will commit a criminal offence which may impede the effective execution of the removal process.

26.

That question arises from the finding of the referring court that the situation at issue in the main proceedings does not permit the detention of the person concerned to be justified on the basis of the risk of absconding provided for in the VSS.

27.

In view of the written observations submitted in that regard by the Estonian ( 4 ) and Spanish ( 5 ) Governments, I note, first, that it is not for the Court to challenge the assessment of the facts and the interpretation of national legislation by the referring court. ( 6 )

28.

Second, the discussion should not concern the application of Article 15(1)(b) of Directive 2008/115 either on the ground the principle of legal certainty precludes directives from being able by themselves to create obligations for individuals. ( 7 ) A directive cannot therefore be relied upon per se as against individuals. ( 8 ) However, such a finding is without prejudice to the requirement for all authorities of a Member State, in applying national law, to interpret it as far as possible in the light of the wording and purpose of directives in order to achieve the result pursued by those directives, and that those authorities are thus able to rely on a directive-compliant interpretation of national law against individuals. ( 9 )

29.

For reasons relating to the scope of the first sentence of Article 15(1) of Directive 2008/115 that I am now about to set out, Member States must define precisely the grounds which justify detention, whether or not they are provided for in that directive.

30.

I take the view, like all the parties that have submitted observations, that the wording of that provision requires that it be considered that Directive 2008/115 sets out, by way of example, grounds for the detention of an individual who is the subject of a return procedure. Those grounds are the risk of absconding or avoiding or hampering the preparation of return or the removal process. In my opinion it is sufficient to note that the expression ‘in particular’ precedes the list of grounds for detention set out in Article 15(1)(a) and (b) of that directive ( 10 ) and clearly indicates that the list is not exhaustive.

31.

The EU legislature’s decision is justified by the purpose of Directive 2008/115, which imposes the obligation on Member States to take all necessary measures to ensure the return of illegally staying third-country nationals. ( 11 )

32.

That analysis of the scope of Article 15(1) of Directive 2008/115 is consistent with the Court’s case-law on the interpretation of the first sentence of Article 8(3) of Directive 2013/33/EU, ( 12 ) according to which each of the grounds that may justify the detention of an applicant for international protection, listed exhaustively in that provision, meets a specific need and is self-standing. ( 13 )

33.

The same is true of Article 28(1) and (2) of Regulation (EU) No 604/2013, ( 14 ) which provides for a single ground for detention, namely the significant risk of the person concerned absconding. ( 15 )

34.

Consequently, Member States are free to adopt grounds for detention other than those referred to in Article 15(1) of Directive 2008/115 and to define the criteria for applying them, provided that they meet the objectives pursued by that directive.

35.

In that regard, the Court has consistently held that that directive seeks to establish an effective removal and repatriation policy with full respect for the fundamental rights and dignity of the persons concerned. ( 16 )

36.

The Court also notes that the provisions of Chapter IV of that directive strictly regulate any detention falling within the scope of that directive, in such a way as to ensure the observance both of the principle of proportionality with regard to the means used and objectives pursued and of the fundamental rights of the third-country nationals concerned. ( 17 )

37.

It is in this context that the referring court asks, in essence, whether national legislation which, for the purpose of justifying detention, merely states the objective of ensuring the effective execution of an obligation to leave the territory, without, moreover, providing for specific criteria, is consistent with the first sentence of Article 15(1) of Directive 2008/115.

38.

Owing to the lack of precision in Directive 2008/115 regarding the limits within which the Member States may add grounds for detention to those set out in Article 15(1) of that directive, or even amend them, the answer to the question posed by the referring court arises from a teleological interpretation of that provision, which makes it possible to identify the applicable principles and conditions for their implementation.

39.

I take the view that several principles should guide the choice made by Member States. First, the requirement, at the beginning of Article 15(1) of Directive 2008/115, to have primary recourse to less coercive measures reflects the intention of the EU legislature, set out in recital 16 thereof, that the use of detention should be strictly limited. ( 18 ) In that regard, the Court has held that ‘the order in which the stages of the return procedure established by Directive 2008/115 are to take place corresponds to a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility; the principle of proportionality must be observed throughout those stages’. ( 19 )

40.

Thus, it is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his or her liberty and detain him or her ( 20 ) and such a decision must be based on objective criteria. ( 21 )

41.

In that regard, the Court has noted that ‘when ordered for the purpose of removal, the detention of an illegally staying third-country national is intended only to ensure an effective return procedure and has no punitive objective. ( 22 )

42.

Second, the detention decision, constituting a serious interference with the right to liberty, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union, ( 23 ) is subject to compliance with strict safeguards, namely the existence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness. ( 24 ) Thus, if the execution of a measure depriving a person of liberty is to be in keeping with those conditions, that means, in particular, that there can be no element of bad faith or deception on the part of the authorities. ( 25 )

43.

The Court has held, with regard to the risk of absconding, that the objective criteria which must be defined by national law so that the authorities concerned may determine the existence of such a risk, provide the necessary guarantees, in so far as the discretion of those authorities is exercised within a framework of certain predetermined limits. Accordingly, those criteria must be defined by an act which is binding and foreseeable in its application. ( 26 )

44.

Third, the Court has held, in the judgment of 30 November 2009, Kadzoev, ( 27 ) that the possibility of detaining a person on grounds of public order and public safety cannot be based on Directive 2008/115. ( 28 )

45.

As noted by the Estonian Government, that interpretation was set out in a particular case concerning the duration of detention in the absence of a reasonable prospect of removal of the person which removes the legal basis for the detention. However, the decision of the Grand Chamber of the Court of Justice to exclude such grounds was formulated in general terms. It is based on the strict limitation of having recourse to the deprivation of individual liberty, in line with other provisions of Directive 2008/115 which provide for grounds based on public policy reasons, unlike Article 15(1) of that directive. ( 29 )

46.

I take the view that it can already be inferred from the general binding framework that I have described that Member States may supplement the provisions of Article 15(1) of Directive 2008/115 by providing for other grounds for detention precisely defined by law, which are based on objective, specific, real and current elements. ( 30 )

47.

Furthermore, I believe that such evidential requirements may be inferred from the ground for detention set out in Article 15(1)(a) of that directive, namely the risk of absconding, as defined in Article 3(7) of that directive, and that set out in Article 15(1)(b), namely the person concerned ‘avoiding’ or ‘hampering’ the preparation of return or the removal process. That wording implies that they are recognised and identified risks. In the absence of tangible evidence, it was not therefore intended to take into account solely the intention of the person concerned.

48.

It is not in line with the principle of legal certainty to accept that the detention of an illegally staying third-country national can be decided on the basis of imprecise grounds, not based on objective, pre-established criteria set out in a binding act in respect of which it is possible to foresee how they will be applied.

49.

Consequently, I agree with the Commission’s analysis that the first sentence of Article 15(2) of the VSS does not constitute a sufficient legal basis to justify detention.

50.

That provision is worded as follows: ‘A foreign national may be detained if the application of the supervision measures provided for in this law does not ensure effective compliance with the obligation to leave the territory and, in particular, if …’. ( 31 ) That reference to a failure to ensure the effective execution of the obligation to leave the territory does not therefore amount to a specific ground for detention, such as the risk of absconding or the failure to cooperate on the part of the person concerned, as set out by way of example following that phrase in points 1 and 2 respectively. That reference merely reiterates the essential condition for having recourse to detention measures, which already appears in Article 15(1) of the VSS, namely the ineffectiveness of supervision measures to ensure compliance with the obligation to leave the territory.

51.

Furthermore, the existence of a real risk that the person concerned will commit a criminal offence before being removed cannot make up for the vagueness of the general ground for detention.

52.

On one hand, such a criterion has no legal basis. To consider that an examination on a case-by-case basis may be sufficient to justify detention on the basis of the objective pursued, as suggested during the hearing by the Spanish Government in support of the arguments put forward by the Estonian Government, cannot be accepted because that would amount to adding a new ground for detention to the first subparagraph of Article 15(1) of Directive 2008/115, which does not meet the requirement of legal certainty. ( 32 )

53.

On the other, the concept of ‘risk that the person concerned will commit a criminal offence’ before being removed, which justifies the detention, raises serious questions.

54.

It must, in my opinion, be noted that the order for reference does not concern a criminal offence which has or is alleged to have been committed by the person concerned, but rather an offence which could be. It therefore relates to the likelihood that an offence is committed in the near future.

55.

That situation is very different to those on the basis of which the Court has ruled while criminal proceedings are ongoing, either at the investigation stage or at the judgment stage, by setting, moreover, strict requirements ( 33 ) and which assume that the offence has already been committed. According to my understanding of the situation at issue, there is also no question of using as a criterion the existence of preparatory acts for the commission of an offence or specific evidence that the person concerned poses a serious threat to the life and limb of others or to specific property. ( 34 )

56.

I observe, in the first place, that the objective of the ground adopted by the Estonian authorities is not to prevent the person concerned from evading the removal measure imposed on him, but rather to prevent the removal measure from being delayed or hampered by the criminal proceedings following the commission of the offence. ( 35 ) In that situation, the person concerned will remain under the supervision of the relevant authorities. Moreover, it is difficult to imagine – even if not impossible – that the person concerned manifests an intention to commit an offence for the sole purpose of hampering the removal process. It is also for that reason that I consider the suggestion made by the Spanish Government, in its written observations, to refer to Article 15(1)(b) of Directive 2008/115, must be disregarded.

57.

In the second place, nothing is more subjective than the risk of a breach of a social norm punishable as a criminal offence, to which all individuals are subject, even if a criminal conviction has been handed down or executed. I take the view that the risk of committing an offence, or even repeating it, is guesswork if it is not based on material facts, unlike, for example, the risk of absconding or hampering the removal process. It seems to me that an assessment of the likelihood that the person concerned will commit an offence, as suggested by the Commission in its written submissions, or an assessment based on the seriousness of the offence, according to the view taken by the Spanish Government at the hearing, is not consistent with the requirement of legal certainty and is, moreover, ineffective if it is not based on clear criteria and solid and reliable evidence.

58.

Having received the oral observations submitted in response to the Court’s questions relating to the identification of criteria, I was able to note the difficulty of outlining general standards. In those circumstances, it is not for the authority responsible for executing the return process to carry out the assessment, at the time of removal, of dangerousness of the individual or whether there is a real risk that the alleged breach will be repeated, but rather the authority responsible for instituting criminal proceedings.

59.

In the third place, vigilance is called for in order not to circumvent the exclusion of a justification based on reasons of public order, where, moreover, that assessment is made at the stage of the decision to grant a period for voluntary departure. ( 36 )

60.

In this instance, this was the case for I.L. His particular situation also illustrates the possible confusion between elements useful for the detention process and elements useful for criminal proceedings. I.L. was placed in a detention facility on the basis of death threats he made against his cohabitating partner, even though he was not convicted in that regard. In addition, it is not specified whether measures to prevent recidivism were in favour of the victim by the criminal courts.

61.

In the light of all the foregoing, I take the view that the interpretation of Article 15(2) of the VSS, as envisaged by the referring court, in so far as it is based on the finding that there is a real risk that a third-country national will commit a criminal offence before being removed, is not in line with Article 15(1) of Directive 2008/115.

62.

Having heard the concerns raised by the parties at the hearing, I fully acknowledge the effects, in practice, of such an analysis, based on the requirement to define by law specific criteria, where, failing a decision of the criminal courts providing for or resulting in the return of the third-country national concerned, ( 37 ) successive infringements of criminal law could occur. I take the view that Member States should be able to overcome such difficulties by having recourse to both criminal and social supervision.

63.

It seems possible to me, on the one hand, that in criminal matters, measures to protect the victim or person threatened could have a dissuasive effect on the perpetrator of the offence, especially in cases of domestic violence for which preventive measures have been implemented in many Member States.

64.

On the other, those measures have, in general, the advantage of being combined with different forms of social support, which constitute alternatives to detention. ( 38 ) In addition, such an arrangement could guarantee that the removal process is executed under conditions that respect the dignity of the person concerned, ( 39 ) where, as in the present case, that person expresses the need for his personal effects and to be paid salary arrears.

65.

In the light of all the foregoing considerations, I propose that the Court should answer the question referred by the Riigikohus (Supreme Court, Estonia) as follows:

Article 15(1) 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 precluding the detention of an illegally staying third-country national from being based on grounds relating to the need to ensure the effectiveness of the return procedure, in the absence of a legal provision that satisfies requirements relating to clarity, predictability, accessibility and, in particular, protection against arbitrariness, providing that the detention is justified by the need to prevent an offence from being committed.