Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 5 September 2024 (1)

Case C‑387/24 PPU [Bouskoura] (i)

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands))

( Reference for a preliminary ruling – Urgent preliminary ruling procedure – Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning third-country nationals – Article 15(2)(b) – Detention of an illegally staying third-country national for the purposes of removal – Directive 2013/33/EU – Standards for the reception of applicants for international protection – Article 9 – Guarantees for detained applicants – Regulation (EU) No 604/2013 – Determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national – Article 28(4) – Detention for the purpose of transfer – Unlawful detention – Charter of Fundamental Rights of the European Union – Article 6 – Right to liberty and security – Article 47 – Right to an effective remedy and to a fair trial )

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 15(2) of Directive 2008/115/EC, (2) the second subparagraph of Article 9(3) of Directive 2013/33/EU (3) and Article 28(4) of Regulation (EU) No 604/2013 (4) (‘the relevant provisions’), read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. Those relevant provisions of secondary EU law – which fall under Title V of Part Three of the TFEU on the area of freedom, security and justice – give concrete form to the principle that, in that area of law, where it appears that the conditions for lawful detention are not or are no longer met, the detained third-country national must be immediately released. (5)

3. The request for a preliminary ruling was made in proceedings between C, a third-country national who is the subject of a return procedure, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, the Netherlands; ‘the State Secretary’) concerning the lawfulness of continuous detention on the basis of two consecutive detention measures adopted by that authority.

4. More specifically, the Rechtbank Den Haag, zittingsplaats Roermond (District Court, the Hague, sitting in Roermond, Netherlands), the referring court, questions whether, under the relevant provisions, an error affecting the lawfulness of the first detention – namely the fact of having exceeded the time limit laid down in national law for adopting the second detention measure consecutively – should lead to the immediate release of the interested party, despite the fact that, at the time of the judicial review, it is common ground that the conditions justifying the second detention measure were satisfied.

II. Legal context

A. European Union law

1. The Return Directive

5. Recitals 16 and 17 of the Return Directive state:

‘(16) The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.

(17) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension … detention should, as a rule, take place in specialised detention facilities.’

6. Article 15 of that directive, entitled ‘Detention’, 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:

(a) there is a risk of absconding or

(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.

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.

2. Detention shall be ordered by administrative or judicial authorities.

Detention shall be ordered in writing with reasons being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;

(b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

The third-country national concerned shall be released immediately if the detention is not lawful.

3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.

6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

(a) a lack of cooperation by the third-country national concerned, or

(b) delays in obtaining the necessary documentation from third countries.’

2. The Reception Conditions Directive

7. Article 2(h) of the Reception Conditions Directive defines the concept of ‘detention’ as ‘confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement’.

8. Article 9(1) and (3) of that directive states:

‘1. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable.

…

3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. When conducted ex officio, such review shall be decided on as speedily as possible from the beginning of detention. When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted.

Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately.’

3. The Dublin III Regulation

9. Article 28(2) and (4) of the Dublin III Regulation is worded as follows:

‘2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.

…

4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of [the Reception Conditions Directive] shall apply.’

B. Netherlands law

10. Article 59(1)(a) of the wet tot algehele herziening van de Vreemdelingenwet (Vreemdelingenwet 2000) (Law on foreign nationals of 2000) (6) sets out that, if required in the interests of public policy or national security, a foreign national staying illegally may be placed in detention by the State Secretary with a view to his or her removal from the territory of the Netherlands.

11. Article 59a of that law states that foreign nationals to whom the Dublin III Regulation applies may, in compliance with Article 28 of that regulation, be detained with a view to their transfer to the Member State responsible for examining their application for international protection lodged in the Netherlands.

12. Article 94(1) and (6) of the Law on Foreigners provides:

‘1. Where [the State Secretary] has taken a decision imposing a measure involving deprivation of liberty referred to in Articles … 59, 59a and 59b, he or she shall notify the [court with jurisdiction] thereof no later than the twenty-eighth day following service of that decision, unless the foreign national has by then brought an appeal. As soon as the court has been notified, the foreign national shall be deemed to have lodged an appeal against the decision imposing a measure involving deprivation of liberty. That appeal shall also seek an award of compensation.

…

6. If the court before which proceedings are brought finds that the application or enforcement of the measure concerned is contrary to this Law or, after weighing up all the interests involved, that the measure is not justified, it shall uphold the appeal. In those circumstances, the court shall order that the measure be lifted or that the conditions of its enforcement be varied.’

13. Article 96(1) and (3) of that law provides:

‘1. If the appeal referred to in Article 94 is declared unfounded and the foreign national lodges an appeal against the extension of the deprivation of liberty, the court shall terminate the preliminary investigation within one week of receipt of the application. … The court may also decide, without the consent of the parties, that the inquiry hearing will not take place. …

…

3. If the court before which proceedings are brought finds that the application or enforcement of the measure concerned is contrary to this Law or, after weighing up all the interests involved, that the measure is not reasonably justified, it shall uphold the appeal. In those circumstances, the court shall order that the measure be lifted or that the conditions of its enforcement be varied.’

III. The dispute in the main proceedings and the question referred for a preliminary ruling

14. On 1 May 2024, C, a Moroccan national, after being subject to a ticket inspection on an international train from Belgium to the Netherlands, was detained for questioning by Dutch immigration officers since he was unable to produce a valid train ticket. On the same day, he lodged an application for international protection in the Netherlands.

15. On 2 May 2024, C was detained at the Rotterdam Detention Centre (Netherlands) on the basis of a measure adopted by the State Secretary under Article 59a(1) of the Law on foreign nationals, in accordance with Article 28 of the Dublin III Regulation (‘the first detention measure’). By adopting that measure, the State Secretary considered that C fell within the scope of the Dublin III Regulation, that the measure was intended to secure the transfer of C to Spain – that is to say, the Member State responsible for examining his application for international protection – and that the detention was necessary given the significant risk of C absconding.

16. On 3 May 2024, the State Secretary asked the Spanish authorities to take charge of C under Article 18(1)(a) of the Dublin III Regulation.

17. On 6 May 2024, C withdrew his application for international protection and the Kingdom of Spain was informed two days later, on 8 May 2024.

18. On 14 May 2024, the Spanish authorities rejected the take charge request. The State Secretary did not ask the Spanish authorities to review their rejection decision.

19. On 16 May 2024, C was informed that the request for his transfer to Spain had been rejected and was asked to cooperate in the return to his country of origin, namely Morocco, which he refused to do.

20. On 17 May 2024, C was heard as regards the intention of the State Secretary to impose a return decision and an entry ban on him, and to detain him once more under Article 15 of the Return Directive.

21. At 14.51 on 17 May 2024, following that hearing, C was the subject of a return decision, designating Morocco as the country of destination (‘the return decision’), and was banned from entering the Netherlands for a period of two years. At 14.52 on the same day, the State Secretary, finding that there was a real risk that C could ‘evade surveillance and avoid or hamper the preparation of return or the deportation process’, adopted a new detention measure on the basis of Article 59(1)(a) of the Law on foreign nationals (which transposes Article 15(1) of the Return Directive into Netherlands law). That measure, which was intended to ensure C’s removal to his country of origin, remains in force (‘the second detention measure’). Lastly, at 14.55, the State Secretary lifted the first detention measure and, at 15.00, detained C on the basis of the second detention measure.

22. As is apparent from the facts previously set out, C has been held in detention continuously since 2 May 2024. (7)

23. C brought two actions against both detention measures taken in his respect before the referring court, which examined them at a single hearing. According to C, the detention imposed on the basis of the first detention measure ceased to be justified from 14 May 2024, since, following the rejection of the take charge request by the Spanish authorities, the reason for his detention could no longer be to secure his transfer to Spain. Therefore, that detention should have ended as soon as possible. In that regard, according to a practice derived from the case-law of the Raad van State (Council of State, Netherlands), (8) prior to release, the State Secretary has a maximum of 48 hours after the first detention measure expires to adopt a new detention measure on another basis. However, it is common ground that, in the present case, that time limit was breached because the State Secretary adopted the second detention measure on 17 May 2024, the day after the maximum period of 48 hours expired. C considers that that circumstance tainted both the first and second detention measures with illegality, infringing his fundamental right to liberty. Consequently, in order to remedy that breach, the referring court is required to release him immediately, despite the fact that the first measure has since been lifted or that he is currently being held in detention on the basis of the second detention measure. In other words, the unlawfulness of the first detention measure due to a lack of care affected the legality of the second detention measure. (9)

24. The State Secretary maintains that the error in the enforcement of the first detention measure cannot affect the legality of the second measure, since C’s detention is based on the decision to return him to Morocco, a reason that remains valid. However, the State Secretary acknowledged that there had been a lack of care in enforcing the first detention measure before adopting the second measure, since the first measure had breached the maximum period of 48 hours by one day. As is the State Secretary’s customary practice, in order to remedy that breach, C was offered by the latter EUR 100 as compensation for infringement of his right to liberty. However, the State Secretary stated that the first detention measure had already been lifted when the case was brought before the referring court, and that therefore that measure could no longer be set aside. Accordingly, as that court was no longer able to lift the first detention measure and the second measure was imposed lawfully, C could not be released.

25. In that regard, the referring court confirms that, according to national practice, confirmed by the case-law of the Raad van State (Council of State), the unlawfulness of a detention measure cannot affect the legality of a detention measure adopted subsequently, (10) with the result that the competent court cannot order a release given the existence of a subsequent detention measure. However, under Article 15(2) of the Return Directive and Article 9(3) of the Reception Conditions Directive, the person concerned should be released immediately if the detention is found to be unlawful. In those circumstances, according to that court, the question of effective judicial protection arises in a situation, such as that characterising the main proceedings, in which a person was detained for more than the 48-hour period despite the first detention being found to be unlawful. In essence, that question involves assessing whether the unlawfulness (at least in part) of the first detention measure can be ‘regularised’ by that measure being lifted and by damages being awarded to the person concerned. (11)

26. It is in that context that the Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Article 15(2)(b) of [the Return Directive], Article 9(3) of [the Reception Conditions Directive] and Article 28(4) of [the Dublin III Regulation], read in conjunction with [Articles 6 and 47 of the Charter], to be interpreted as meaning that the judicial authority is always obliged to release the detained person immediately if [that] detention has been or has become unlawful at any time during the continuous implementation of a series of successive detention measures?’

IV. The urgent procedure before the Court

27. The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court. In support of that request, it argued that the case concerns the interpretation of provisions of EU law covered by Title V of Part Three TFEU.

28. As regards the criterion relating to urgency, the referring court stated that, first, C was detained on 2 May 2024 and was still being held in detention at the time when the request for a preliminary ruling was submitted, and secondly, that the Court’s answer to the question referred for a preliminary ruling is decisive in determining whether that court is required to release C immediately under EU law.

29. In those circumstances, the First Chamber of the Court decided, on 14 June 2024, to grant that court’s request for the present case to be dealt with under the urgent preliminary ruling procedure.

30. Written observations were submitted by C, the Netherlands Government and the European Commission. Those parties also presented oral observations at the hearing held on 15 July 2024.

V. Analysis

A. Preliminary observations

31. First of all, I think it is useful, before beginning my analysis, to provide an overview of the applicable regulatory framework and of the relevant case-law (1), and to clarify the scope of the question referred, as raised by the referring court (2).

1. The applicable regulatory framework and the relevant case-law

(a) Overview of the legal regimes relating to detention

32. It seems important at the outset to distinguish between the different legal regimes relating to detention within the framework of the common asylum and immigration policy and, more specifically, first, detention ordered against an applicant for international protection, in particular under the Reception Conditions Directive, or in the context of the transfer of an applicant for such protection to the Member State responsible for examining his or her application under the Dublin III Regulation, and, secondly, detention for the purpose of removal under the Return Directive, which concerns illegally staying third-country nationals. Although the regimes are similar as regards the guarantees offered and their implementation, they differ in that they pursue their own specific objectives. (12)

33. In the first place, as regards applicants for international protection, it should be noted, first, that the detention of such applicants must respect the underlying principle that no one should be detained for the sole reason that they are seeking such protection. (13) Thus, Article 8(3) of the Reception Conditions Directive contains an exhaustive list of the six grounds for detention of an applicant for international protection, and each of those grounds answers a specific need and is independent of the others. (14) That provision states that an applicant may be detained only on specific grounds, which are laid down in national law. (15) In the case of applicants for international protection subject to the Dublin III Regulation procedure, point (f) of that provision refers to Article 28 of that regulation. Specifically, Article 28(2) of the regulation provides that when there is a significant risk of absconding, Member States may detain the persons concerned in order to secure transfer procedures in accordance with that regulation. In addition, Article 8(2) of the Reception Conditions Directive states that detention may be applied only when, following an individual assessment, it proves necessary, and if other less coercive alternative measures cannot be applied effectively. The national authorities cannot therefore place an applicant for international protection in detention without having previously determined, on a case-by-case basis, whether such detention is proportionate to the aims which it pursues. (16)

34. Secondly, as regards the guarantees relating to the period of detention, under Article 9(1) of the Reception Conditions Directive, an applicant for international protection is to be detained only for as short a period as possible and only for so long as the ground for his or her detention is applicable, while the administrative procedures relevant to the ground for detention are to be executed with due diligence and delays in those procedures that cannot be attributed to that applicant are not to justify a continuation of detention. (17) Article 9(3) of the directive further states that, where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned must be released immediately. That provision does not impose a period after which the detention of an applicant for international protection would be automatically considered unlawful, provided that the Member State concerned ensures that, first, the detention lasts only so long as the ground on which it was ordered continues to apply and, second, the administrative procedures linked with that ground are carried out diligently. (18) The same provisions apply, under Article 28(4) of the Dublin III Regulation, to detention measures taken in order to guarantee the transfer to the Member State responsible under that regulation. (19)

35. In the second place, as regards illegally staying third-country nationals, first, it should be emphasised that the use of detention for the purpose of removal must be limited and subject to compliance with the principle of proportionality as regards the means used and the objectives pursued. As a reminder, the aim of the Return Directive is, according to recital 2 thereof, to establish an effective removal and repatriation policy based on common standards, so that the persons concerned are repatriated in a humane manner and with full respect for their fundamental rights and dignity. Thus, detention is permitted solely ‘to prepare the return or carry out the removal process’ and if the application of less coercive measures would not be sufficient. (20) Article 15(1) of that directive provides that 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: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process’. The Court has explained that those two grounds are not exhaustive, since Member States may provide for other specific grounds for detention, in addition to the two grounds explicitly set out in that provision. (21) Nevertheless, the adoption of additional grounds for detention must be strictly limited both by the requirements deriving from the Return Directive itself and by those arising from the protection of fundamental rights, and in particular the fundamental right to liberty enshrined in Article 6 of the Charter and the principle of proportionality. (22) For example, a third-country national cannot be detained for the sole reason that he or she is the subject of a return decision or is unable to provide for his or her needs. (23) However, the Court has also established that Article 15 of that directive does not preclude that third-country national from being detained, pending his or her removal, where he or she represents a genuine, present and sufficiently serious threat to public policy or domestic security. (24)

36. Secondly, as regards guarantees relating to the period of detention, as with the detention of applicants for international protection, Article 15 of the Return Directive provides that such detention must be ‘for as short a period as possible’ and ‘only maintained as long as removal arrangements are in progress and executed with due diligence’. The requirement that that detention must be so brief has been reiterated on several occasions in other provisions of the Return Directive. First, according to the final subparagraph of Article 15(2) of that directive, ‘the third-country national concerned shall be released immediately if the detention is not lawful’. Second, pursuant to Article 15(4) of that directive, ‘when it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately’. Third, Article 15(5) of that directive provides that ‘detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months’. Fourth, under Article 15(6) of the Return Directive, Member States may not extend that period of six months, ‘except for a limited period not exceeding a further twelve months’ and under strict conditions, namely, in the event that the non-execution of the return decision during those six months is due to a lack of cooperation by the person concerned or delays in obtaining the necessary documentation from third countries. (25)

(b) Relevant case-law

37. Although regimes relating to detention may differ in their objectives, they also have features in common. By its judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention) (C‑704/20 and C‑39/21; ‘the judgment in Ex officio review of detention’, EU:C:2022:858), the Grand Chamber of the Court provided general guidance on the conditions of detention of a third-country national under those various regimes, both in terms of respect for the right to liberty enshrined in Article 6 of the Charter and the right to effective judicial protection under Article 47 thereof.

38. In the first place, as regards respect for the right to liberty guaranteed by Article 6 of the Charter, the Court recalled, first, that any detention of a third-country national under the abovementioned provisions constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter. (26) As Article 2(h) of the Reception Conditions Directive provides, a detention measure consists in the confinement of a person within a particular place. It is apparent from the wording, origin and context of that provision, the scope of which can, moreover, be transposed to the concept of ‘detention’ in the Return Directive and in the Dublin III Regulation, (27) that detention requires the person concerned to remain permanently within a restricted and closed perimeter, thus isolating that person from the rest of the population and depriving him or her of his or her freedom of movement. However, it follows from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. (28)

39. Second, the Court has also pointed out that the purpose of detention measures, within the meaning of the Return Directive, the Reception Conditions Directive and the Dublin III Regulation, is not the prosecution or punishment of criminal offences, but the achievement of the objectives pursued by those instruments. (29) Such detention measures therefore do not pursue any punitive purpose. (30) Thus, the Return Directive provides that detention must, as a rule, take place in specialised detention facilities, which are to be distinguished from prison accommodation, (31) and that, where this is not possible, in prison accommodation, provided that the detained person is kept separated from ordinary prisoners. (32)

40. In the third place, in view of the gravity of the interference with the right to liberty enshrined in Article 6 of the Charter and given the importance of that right, the power of the competent national authorities to detain third-country nationals is strictly circumscribed. (33) That provision, like Article 5(1) ECHR, imposes a restrictive reading of situations where deprivation of liberty is permitted, since those situations constitute exceptions to the fundamental right to liberty and security. (34) A detention measure may thus be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure. (35)

41. Those general and abstract rules lay down, as common EU standards, the conditions pertaining to detention set out in Article 15(1), (2), second subparagraph, (4), (5) and (6) of the Return Directive, Article 8(2) and (3) and Article 9(1), (2) and (4) of the Reception Conditions Directive and Article 28(2), (3) and (4) of the Dublin III Regulation. (36) Those rules, on the one hand, and the provisions of national law implementing them, on the other, are the rules, arising from EU law, which lay down the conditions governing the lawfulness of detention, including in the light of Article 6 of the Charter. (37)

42. In that regard, the Court has held, first of all, that the third-country national cannot, as the first subparagraph of Article 15(1) of the Return Directive, Article 8(2) of the Reception Conditions Directive and Article 28(2) of the Dublin III Regulation specify, be detained where a less coercive measure can be applied effectively. Second, where it is apparent that the conditions governing the lawfulness of detention referred to in point 41 of this Opinion have not been or are no longer satisfied, the third-country national concerned must, as the EU legislature indeed expressly states in the fourth subparagraph of Article 15(2) and in Article 15(4) of the Return Directive and the second subparagraph of Article 9(3) of the Reception Conditions Directive, be released immediately. Lastly, that is also the case, inter alia, where it is found that the procedure for return, for examination of the application for international protection or for transfer, as the case may be, is no longer being carried out with due diligence. (38)

43. In the second place, as regards the right to effective judicial protection of third-country nationals being detained, it is settled case-law that, under Article 47 of the Charter, the Member States must ensure such protection of rights which individuals derive from EU law. (39)

44. With regard to detention, the conditions governing the lawfulness of detention identified in point 41 of this Opinion are intended to protect third-country nationals against arbitrary detention (40) and give concrete form, in the sphere in question, to the right to effective judicial protection safeguarded in Article 47 of the Charter. (41) Furthermore, common EU standards in the matter are set out in the third subparagraph of Article 15(2) of the Return Directive and Article 9(3) of the Reception Conditions Directive. The latter provision also applies, pursuant to Article 28(4) of the Dublin III Regulation, in the context of the transfer procedures governed by that regulation. According to those provisions, each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review of the lawfulness of that detention, either ex officio or at the request of the person concerned. (42)

45. As regards the judicial review of the lawfulness of a detention measure, the Court has held that, since the EU legislature requires, without exception, that supervision that the conditions governing the lawfulness of the detention are satisfied must be effected ‘at reasonable intervals of time’, (43) the competent authority is required to carry out that supervision of its own motion, even if the person concerned does not request it. Thus, the EU legislature has not merely set out common substantive standards, but has also established common procedural standards, the purpose of which is to ensure that, in each Member State, there is a system which enables the competent judicial authority to release the person concerned, where appropriate after an examination of its own motion, as soon as it is apparent that his or her detention is not, or is no longer, lawful. (44)

46. In order that the system of protection effectively ensures compliance with the strict conditions which a detention measure is required to satisfy in order to be lawful, the competent judicial authority must be in a position to rule on all matters of fact and of law relevant to the review of that lawfulness, even if the unlawfulness of such measure has not been raised by the person concerned. That interpretation ensures that judicial protection of the fundamental right to liberty is guaranteed effectively in all Member States, whether they provide for a system in which the detention order is taken by an administrative authority subject to judicial review or a system in which that decision is taken directly by a judicial authority. (45)

47. It is in the light of those points that I propose to examine the question referred for a preliminary ruling.

2. The scope of the question referred for a preliminary ruling

48. By its question referred for a preliminary ruling, the referring court asks the Court whether, under the relevant provisions, a judicial authority ‘is always obliged to release the detained person immediately if [that] detention has been or has become unlawful at any time during the continuous implementation of a series of successive detention measures’.

49. For the reasons that follow, I believe that that question should be amended.

50. First, the question, as set out, fails to mention why the initial detention ‘has been or has become unlawful’, namely the fact that C was not released within the period laid down in national law. However, each of the grounds justifying a detention order must answer a specific need and the ground for unlawfulness may also be linked to that need, so that the analysis cannot be carried out in an abstract manner. (46)

51. Second, the question is based on a judicial interpretation according to which there is a ‘continuous implementation of a series of successive detention measures’. Although, from a temporal point of view, successive detention measures may be perceived as a single detention, this is not the case from the point of view of the judicial review. As is apparent from points 32 to 35 of this Opinion, the legal regimes relating to detention are subject to separate conditions, each measure being independent in nature. The judicial interpretation on which the referring court relies therefore disregards the fact that each of the ‘successive detention measures’ may be based on different legal bases and/or grounds, which, moreover, justifies, from a procedural point of view, the fact that those measures are, as in the present case, the subject of separate appeals.

52. Third, the wording chosen by the referring court does not take into account the temporal aspect of the legal status of C, who, at the time of the appeal, was no longer an ‘applicant for international protection’. As is apparent from the case file submitted to the Court, since 14 May 2024 – namely the date of the rejection of the transfer request by the Spanish authorities, which C did not appeal – C was no longer an applicant for international protection within the meaning of Article 2(b) of the Reception Conditions Directive, and thus no longer fell within the scope of that directive, nor a fortiori, of the procedure provided for by the Dublin III Regulation. (47) Similarly, since it does not appear from the case file submitted to the Court that C was granted a right to stay or a residence permit, within the meaning of Article 6(4) of the Return Directive, it must be considered that, from 14 May 2024, C has been staying illegally in the Netherlands (48) and therefore falls within the scope of the Return Directive. (49) Additionally, a detention measure taken on the basis of a return decision, within the meaning of Article 3(4) of the Return Directive, could not have been applied concomitantly, even if it had been adopted on an alternative basis, prior to the Spanish authorities refusing to take charge of C. (50)

53. Fourth, the question referred for a preliminary ruling expressly refers to ‘Article 15(2)(b)’ of the Return Directive, and not to paragraph 4 of that provision which requires the immediate release of the person concerned, in particular when ‘the conditions laid down in paragraph 1 no longer exist’ and ‘detention ceases to be justified’ – a circumstance that more closely reflects the facts of the main proceedings.

54. Lastly, it is also important to make a terminological clarification. The referring court, in the order for reference, describes the unlawfulness as pertaining to the first detention measure. Such a characterisation does not accurately reflect the facts of the main proceedings in that, because C was not released within 48 hours, it was the detention itself that became unlawful, and not the first detention measure ordering it, which had become irrelevant (null and void) because, since it was no longer justified.

55. In view of the foregoing, and to provide a useful answer to the questions raised by the referring court, I propose rewording the question as follows:

‘Must the fourth subparagraph of Article 15(2) and Article 15(4) of the Return Directive, read in conjunction with Articles 6 and 47 of the Charter, be interpreted as imposing on a judicial authority, when reviewing the lawfulness of a detention measure, the obligation to immediately release a third-country national detained in accordance with the rules laid down by the Return Directive on the sole ground that another detention to which that national was subject, prior to it and without any interruption, under the Dublin III Regulation, no longer fulfils the conditions of legality because he was not released immediately upon finding that the first detention measure ceased to be justified, pursuant to Article 9(3) of the Reception Conditions Directive, read in conjunction with Article 28(4) of that regulation?’

B. The question referred for a preliminary ruling

56. The Court must, in essence, decide whether the unlawfulness of the first detention as a result of the failure to release the applicant within the prescribed period could affect the legality of the second detention measure, with the result that the referring court should immediately release the person concerned.

57. That question requires the Court to examine three separate aspects of the implementation of the detention measures: the consequences of ending the detention and the various options available to the administration (1); the temporal scope of the obligation for immediate release (2); and the remedies available for any unlawfulness due to an error in implementing a detention measure (3).

1. The consequences of ending the detention

58. In the first place, it seems essential to clarify whether detention under the Return Directive can be authorised following detention under the Reception Conditions Directive or the Dublin III Regulation.

59. The answer to this is yes.

60. First, recalling that each detention measure is self-standing, the Court has already expressly recognised that, when retention is no longer justified, in addition to the immediate release, a judicial authority may order an alternative measure to detention. Indeed, when the detention is held to be unlawful, the person concerned must be released immediately and, in such a case, the national court must be able to substitute its own decision for that of the administrative authority that ordered the detention and to order ‘either an alternative measure to detention or the release of the person concerned’. (51) However, an alternative measure to detention can be envisaged only if the reason that justified the detention remains valid and if that detention no longer seems necessary or proportionate in the light of that reason. (52) This approach is also compatible with the case-law of the ECtHR on the application of Article 5(1) ECHR, which recognised that continued detention may be fully justified, provided that it satisfies the principle of legal certainty. (53)

61. In that sense, the Court has held that, although the Return Directive is not applicable during the procedure in which an application for asylum is examined, that does not mean that the return procedure is thereby definitively terminated, as it may continue if the application for asylum is rejected. In effect, the objective of that directive, namely the effective return of illegally staying third-country nationals, would be undermined if it were impossible for Member States to prevent the person concerned from automatically securing release by making an application for asylum. (54)

62. Next, the fact that once detention has ended, re-detention on a different basis may be permitted, is supported – albeit indirectly – in section 14.5 of the ‘Return Handbook’, which states that ‘the maximum period of detention prescribed by the Return Directive must not be undermined by re-detaining returnees immediately, following their release from detention’. (55)

63. Lastly, and by analogy, I note that, in practice, Member States are often faced with a situation in which a third-country national, who is detained under the Return Directive lodges an asylum application. This requires the detention to be continued, this time under the Reception Conditions Directive, in order to determine the elements on which the application for international protection is based when there is a risk of absconding.

2. The temporal scope of the obligation for immediate release

64. In the second place, it should be noted that, in its request, the referring court submits that the national legal practice in which the administrative authority is granted a period of 48 hours – while the person concerned is still held in detention – in which to impose a new detention measure on another basis after it has become certain that the objective pursued by the first measure can no longer be achieved, does not seem compatible with the obligation to ‘immediately’ release the person concerned.

65. In the present case, the State Secretary expressly acknowledged that the detention measure had not been executed with due diligence because the maximum period of 48 hours had been exceeded by a day before the second detention measure was adopted, and that as a result, the first detention had become unlawful due to the failure to comply with that period. It was also on that basis that he offered C compensation of EUR 100. That analysis is not disputed by C, who agrees that the unlawfulness lasted for one day.

66. Nevertheless, for the sake of completeness, and since that question was raised by the referring court, it is worth examining the exact scope of the implementation of the obligation for immediate release prescribed by the relevant provisions.

67. In that regard, first, it follows from the wording of the relevant provisions, which apply to applicants for international protection, that the obligation for immediate release is imposed on the judicial authorities. Indeed, Article 9 of the Reception Conditions Directive, to which Article 28(4) of the Dublin III Regulation refers, provides for immediate release ‘where, as a result of the judicial review, detention is held to be unlawful’. (56) Similarly, as regards illegally staying third-country nationals, although Article 15(2) of the Return Directive states that detention measures may be ordered by administrative or judicial authorities, it also provides, that those measures are to be subject to a speedy judicial review of the lawfulness of detention. (57) Therefore, the provision requiring that ‘the third-country national concerned shall be released immediately if the detention is not lawful’ entails a prior judicial review, which means that the obligation for release is also imposed on the judicial authorities. That reasoning applies to the obligation for release referred to in paragraph 4 of that article.

68. Second, it must be noted that neither the Return Directive nor the Reception Conditions Directive or the Dublin III Regulation provide for a maximum period before ‘immediate’ release. Indeed, the term ‘immediate’ usually means something that occurs that very instant, or that must occur without delay. (58) It would therefore be contradictory to set a time limit, however brief, for immediate release.

69. That interpretation is also consistent with the case-law of the ECtHR, which, with regard to the delay in the enforcement of a release decision, held that it is inconceivable that in a State subject to the rule of law a person should continue to be deprived of his or her liberty despite the existence of a court order for his or her release. (59) That court held that some delay in implementing a decision to release a detainee is ‘understandable, and often inevitable’, in view of practical considerations relating to the running of the courts and the observance of particular formalities. However, the national authorities must attempt to keep this to a minimum. (60) Administrative formalities connected with release cannot justify a delay of more than a few hours. (61) The wrongful arrest of individuals when the basis for their detention had ceased to exist, as a result of administrative shortcomings in the transmission of documents between various State bodies, amounts to a violation of Article 5, even if the detention is only for a brief period. (62)

70. Second, it should be examined whether the obligation to release the person concerned could apply to administrative authorities which are competent to impose detention measures (under the Return Directive, for example). In that regard, when the administrative authorities consider that a new consecutive detention measure is necessary, both the lifting of the first detention measure and the review of and reasons for the new detention measure involve various administrative acts that take time because they entail not only a certain amount of reflection and internal consultation, but also the exercise of the rights of defence of the person concerned (if, in particular, the detention is imposed on a different basis). On that point, practically, EU law makes no provision for such acts or their duration. Indeed, imposing a specific time limit would be inappropriate, given that there are different reasons for re-detaining a person and the period of detention may vary accordingly. That question has thus been left to the discretion of the Member States.

71. It should be recalled that, relying in particular on recital 17 of the Return Directive, which specifies that the ‘initial apprehension’ of third-country nationals suspected of staying illegally in a Member State remains governed by national law, the Court ruled that that directive does not preclude detention with a view to determining whether or not the stay of a third-country national is lawful. In this respect, the Court has recognised that the objective of the Return Directive, namely, the effective return of illegally staying third-country nationals, would be compromised if it were impossible for Member States to prevent, by deprivation of liberty such as police custody, a person suspected of staying illegally from absconding before his or her situation could even be clarified. However, although the competent authorities must have a brief but reasonable time to identify the person under constraint and to research the information enabling it to be determined whether that person is an illegally staying third-country national, they are also required to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned. (63) It follows, by analogy and implicitly, that the Court has already granted the administrative authorities of the Member States a reasonable period of time to impose any (new) detention, if there are grounds justifying such detention, and provided that they act swiftly. (64)

72. Third, it will be for the national court to assess, on a case-by-case basis, whether, having regard to the average duration of the administrative acts invoked by the administration, a period such as 48 hours constitutes a reasonable time limit. At first glance, (65) that would seem to be the case. However, it is important that the administrative authority state why it needs 48 hours, while taking into consideration the relevant factual and legal circumstances. In the present case, it was the risk of absconding that justified, in essence, the detention on the basis of, first, the Dublin III Regulation, and then of the Return Directive. Such ground for detention, by its nature, is not affected by the fact that the person concerned ceases to be an applicant for international protection. Lastly, it is important to emphasise that, beyond the present case, where there is no reason to adopt a new detention measure, the State Secretary does not have 48 hours either to end the detention, but must do so as soon as possible (usually the same day).

3. The right to compensation

73. In the third and final place, it should be emphasised that, contrary to what has been stated by the referring court, in national administrative systems, as well as in EU law, when an act is deemed unlawful, that does not necessarily imply full restitution (restitutio in integrum) – in this case, immediate release – allowing the person concerned to have his or her rights re-established, when this is no longer materially possible. In effect, given its nature, the failure to comply with the period of release from detention cannot entitle the person concerned to additional days outside a detention centre, particularly when the detention has already ceased. In other words, the person concerned cannot recover the days spent in unlawful detention. Hence, compensation is generally provided for people who have been detained without ultimately being convicted to remedy the material and non-material damage suffered during the deprivation of liberty. The solution proposed by the referring court is therefore purely judge-made and proactive, but cannot be easily justified legally. (66)

74. In the present case, the Netherlands Government has confirmed that in the context of the procedure during which the court rules on the lawfulness of the detention – and after the detention measure has already ended – the person concerned may claim compensation and the court may order the State Secretary to pay compensation, where applicable, which may be greater than the compensation offered by the administration on a tariff basis. Such a system seems not only capable of remedying any unlawfulness arising from a lack of care in enforcing a detention measure, but also of having a deterrent effect for the administration.

75. Lastly, the duty of care requires that the administration should not systematically resort to delaying the release and offering compensation in exchange, since Article 6 of the Charter seeks to protect the person concerned against arbitrariness, which means, inter alia, that he or she is free from any bad faith or deception on the part of the authorities, and that there is a proportional link between the ground relied on and the deprivation of liberty.

VI. Conclusion

76. In light of the foregoing, I propose that the Court of Justice answer the question referred for a preliminary ruling by the Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, the Netherlands) as follows:

The fourth subparagraph of Article 15(2) and Article 15(4) 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 conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that a judicial authority, in the context of the review of the lawfulness of a detention measure, is not required to immediately release a third-country national detained in accordance with the rules laid down by that directive, on the sole ground that another detention to which that national was subject, prior to it and without any interruption, under Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, no longer fulfils the conditions of legality because that national was not released immediately, upon finding that the first detention ceased to be justified, in accordance with Article 9(3) of Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection, read in conjunction with Article 28(4) of that regulation.

1 Original language: French.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 Directive 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; ‘the Return Directive’).

3 Directive of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96; ‘the Reception Conditions Directive’).

4 Regulation of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31; ‘the Dublin III Regulation’).

5 The principle originates in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). It is also enshrined in Article 6 of the Charter, which provides that ‘everyone has the right to liberty and security of person’.

6 Stb. 2000, No 497, as amended with effect from 31 December 2011 for the purpose of transposing the Return Directive into Netherlands law.

7 During that period, C left the detention centre only once before the adoption of the second detention measure: to appear before the referring court and to be heard in person about his deprivation of liberty.

8 See judgments of the Raad van State (Council of State) of 7 April 2021 (ECLI:NL:RVS:2021:705); of 23 December 2021 (ECLI:NL:RVS:2021:2963); and of 6 May 2024 (ECLI:NL:RVS:2024:1869).

9 At the hearing, C confirmed that the lack of care as regards the period of the first detention is the sole ground for contesting the legality of the second detention measure.

10 See judgment of 8 November 2017 (ECLI:NL:RVS:2017:3059, paragraph 3.2). According to the referring court, that practice reflects the content of national legislation, namely Articles 59, 59a, 94 and 96 of the Law on foreign nationals, which does not expressly provide for the obligation for the competent judicial authority to release the person concerned immediately if it considers that the detention is unlawful. On the basis of those provisions, a judicial authority would be required to release the detained person immediately only if the specific measure on which the detention was based was unlawful when the court carried out the judicial review.

11 In those circumstances, the referring court asks whether it should proceed with the release of C when the second detention order is not, in itself, tainted with illegality. In that regard, it notes, first, that that question requires it to determine whether the object of the review by the competent judicial authority is the lawfulness of the ‘detention’ – that is to say, the continuous period of deprivation of liberty – or alternatively, whether that authority should limit its review to the detention measures in force. Second, EU law does not afford the possibility of continuing the detention for administrative reasons or to prepare for the adoption of a new decision, but requires the immediate release of the detained person, irrespective of when the lawfulness of the detention is reviewed. Third, the seriousness and duration of the unlawfulness of the detention order are irrelevant for the purposes of its assessment, since any infringement of the right to liberty should be considered serious. Fourth, in that respect, the fundamental importance of the right to liberty as guaranteed by Article 6 of the Charter and the principle of effective judicial protection enshrined in Article 47 thereof is an argument in favour of the view that C must be immediately released if the detention was unlawful, even if it was only unlawful in the past. Accordingly, the referring court concludes that the only measure able to remedy the unlawfulness of the detention is the release of the person concerned, the payment of compensation being insufficient in that regard.

12 See, to that effect, judgment of 30 November 2009, Kadzoev (C‑357/09 PPU, EU:C:2009:741, paragraphs 45 and 47), in which it was established that prior or subsequent detention under the Reception Directive is not taken into account in calculating the period of detention under the Return Directive. See, to that effect, section 14.4.2. of Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ 2017 L 339, p. 83; ‘the Return Handbook’).

13 See Article 8(1) of the Reception Directive and Article 26(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60). That principle is reflected in Article 28(1) and recital 20 of the Dublin III Regulation.

14 See judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 250 and the case-law cited; ‘the judgment in FMS and Others’).

15 Namely: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory; (d) when he or she is detained subject to a return procedure under the Return Directive, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; and, (f) in accordance with Article 28 of the [Dublin III Regulation].

16 Judgment in FMS and Others (paragraph 258).

17 Judgment in FMS and Others (paragraph 262). Nevertheless, the Court has observed that, contrary to the proposal for a directive [COM(2008) 815 final], which expressly provided that the detention order should specify the maximum period of detention, there is no provision in the Reception Directive that sets a specific time limit after which Member States would be required to end the detention of applicants for international protection.

18 Judgment in FMS and Others (paragraph 265).

19 See recital 20 of the Dublin III Regulation.

20 See recitals 16 and 17 of the Return Directive and judgments of 6 October 2022, Politsei- ja Piirivalveamet (Detention – Risk of committing a criminal offence) (C‑241/21, EU:C:2022:753, paragraph 30; ‘the judgment in Risk of committing a criminal offence’), and of 27 April 2023, M.D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraph 72).

21 Judgment in Risk of committing a criminal offence (paragraphs 35 and 36).

22 Judgment in Risk of committing a criminal offence (paragraphs 37 and 40 to 43).

23 Judgment in FMS and Others (paragraph 281).

24 Judgment of 21 September 2023, ADDE and Others (C‑143/22, EU:C:2023:689, paragraph 43 and the case-law cited).

25 See also Return Handbook, Chapter 14 (entitled ‘Detention’) and Chapter 15 (entitled ‘Detention Conditions’).

26 See judgments in Ex officio review of detention (paragraph 72) and in Risk of committing a criminal offence (paragraph 46).

27 Judgment in Ex officio review of detention (paragraph 73). In paragraph 224 of the judgment in FMS and Others, the Court found that ‘there is nothing to support the view that the EU legislature intended to give the concept of “detention”, in the context of [the Return Directive], a different meaning from that which it has in the context of [the Reception Directive]’.

28 Judgment in Risk of committing a criminal offence (paragraphs 47 to 50). See, to that effect, also, judgment of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraphs 37 to 40), which refers to the judgment of the European Court of Human Rights (‘the ECtHR’) of 21 October 2013, Del Río Prada v Spain (CE:ECHR:2013:1021JUD004275009). In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, Article 52(3) of the Charter provides that the meaning and scope of those rights must be the same as those laid down by the ECHR, while specifying that EU law may provide more extensive protection. For the purpose of interpreting Article 6 of the Charter, account must therefore be taken of Article 5 ECHR as the minimum threshold of protection. The detention of a third-country national, constituting a serious interference with his or her right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.

29 Judgment in Ex officio review of detention (paragraph 74).

30 See, to that effect, judgments in Risk of committing a criminal offence (paragraph 32 and the case-law cited) and of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraph 38; ‘the judgment in Landkreis Gifhorn’).

31 Judgment in Landkreis Gifhorn (paragraph 36).

32 Article 16(1) of the Return Directive. On the conditions of detention, see judgments of 17 July 2014, Pham (C‑474/13, EU:C:2014:2096, paragraph 23), of 2 July 2020, Stadt Frankfurt am Main (C‑18/19, EU:C:2020:511, paragraph 46) and in Landkreis Gifhorn (paragraphs 32 to 57).

33 See, to that effect, judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others (C‑72/22 PPU, EU:C:2022:505, paragraphs 83 and 86 and the case-law cited). See also paragraph 26 of the ECtHR ‘Guide on Article 5 of the European Convention on Human Rights – Right to liberty and security’, updated on 29 February 2024.

34 It is important to note that recital 3 of the Return Directive refers to ‘Twenty guidelines on forced return’, adopted on 4 May 2005 by the Committee of Ministers of the Council of Europe. According to the seventh of those guidelines, detention prior to removal ‘shall be justified only for as long as removal arrangements are in progress. If such arrangements are not executed with due diligence the detention will cease to be permissible.’ The ECtHR recalled that ‘any deprivation of liberty under Article 5 para. 1(f) (art. 5-1-f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para. 1(f) (art. 5-1-f)’ (ECtHR, 15 November 1996, Chahal v the United Kingdom (22414/93, § 113)). This implies that, when the removal of a person within a reasonable time seems unrealistic, detention ceases to be justified and a discharge must be carried out (European Commission of Human Rights, 3 March 1978, Caprino v the United Kingdom, (CE:ECHR:1978:0303DEC000687175)).

35 Judgment in Ex officio review of detention (paragraph 75 and the case-law cited).

36 See the rules set out in points 33 to 36 of this Opinion.

37 Judgment in Ex officio review of detention (paragraphs 76 and 77).

38 Judgment in Ex officio review of detention (paragraphs 78 to 80).

39 Judgments in FMS and Others (paragraph 142) and in ‘Ex officio review of detention’ (paragraph 81).

40 In that regard, in the judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraph 81), the Court pointed out that it is clear from the case-law of the ECtHR relating to Article 5(1) ECHR that, if the execution of a measure depriving a person of liberty is to be in keeping with the objective of protecting the individual from arbitrariness, that means, in particular, that there can be no element of bad faith or deception on the part of the authorities, that execution of the measure is consistent with the purpose of the restrictions permitted by the relevant subparagraph of Article 5(1) ECHR and that the deprivation of liberty concerned is proportionate in relation to the ground relied on (see, to that effect, ECtHR, 29 January 2008, Saadi v the United Kingdom (CE:ECHR:2008:0129JUD001322903, §§ 68 to 74).

41 Judgment in FMS and Others (paragraph 289).

42 Judgment in Ex officio review of detention (paragraphs 82 to 83 and the case-law cited).

43 Article 15(3) of the Return Directive and Article 9(5) of the Reception Directive.

44 Judgment in Ex officio review of detention (paragraphs 85 and 86).

45 Judgment in Ex officio review of detention (paragraphs 87 to 89 and the case-law cited).

46 See point 33 and the case-law cited in footnote 14 to this Opinion. The same analysis cannot be performed if, for example, the first detention measure has ‘become unlawful’ as a result of an erroneous assessment of the risk of absconding (within the meaning of Article 8(3)(b) of the Reception Directive) and the second detention measure is also based on the same risk of absconding (within the meaning of Article 15(1) of the Return Directive), on the one hand, or on a radically different ground (for example, the protection of national security or public order under Article 8(3)(b) of the Reception Directive), on the other hand.

47 See, to that effect, judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection) (C‑36/20 PPU, EU:C:2020:495, paragraph 96 and the case-law cited).

48 See, by analogy, judgment of 21 September 2023, ADDE and Others (C‑143/22, EU:C:2023:689, paragraph 31 and the case-law cited).

49 See, by analogy, judgment in FMS and Others (paragraphs 208 to 210).

50 On that point, the Court has clarified that a return decision cannot be adopted during the period from the submission of the application for international protection until the adoption of the first-instance decision on that application, since the existence of an authorisation to remain precludes the applicant’s stay from being regarded as illegal and, accordingly, the application of the Return Directive to him or her (see judgment of 9 November 2023, Odbor azylové a migrační politiky MV (Scope of the Return Directive) (C‑257/22, EU:C:2023:852, paragraphs 39 and 40, as well as the case-law cited)). The adoption of a detention measure on an alternative basis for a reason other than that justifying the first detention measure would also be problematic from the point of view of exercising the rights of defence of the applicant since the latter would have to contest two grounds for detention, one on a principal basis, and the other on an alternative (and speculative) basis.

51 See judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 62). Emphasis added.

52 Judgment in FMS and Others (paragraphs 292 and 293).

53 In particular, the ECtHR ruled that the practice of keeping a person in detention under a bill of indictment amounted to a breach of Article 5(1) ECHR (ECtHR, 28 March 2000, Baranowski v. Poland (CE:ECHR:2000:0328JUD002835895, §§ 50 to 58)). Similarly, it considered that the automatic extension of pre-trial detention, a practice with no precise legislative basis, was contrary to Article 5(1) ECHR (ECtHR, 9 March 2006, Svipsta v Latvia (CE:ECHR:2006:0309JUD006682001, § 86)). By contrast, it considered that the continued detention of a person on the basis of a judgment of an indictment division ordering further investigations without a formal ruling on the continued detention did not constitute a violation of Article 5 ECHR (ECtHR, 8 November 2001, Laumont v France (CE:ECHR:2001:1108JUD004362698, § 50)). Lastly, the absence of satisfactory justification for a substitution of a legal basis for detention may lead to a violation of Article 5 ECHR (ECtHR, 1 July 2008, Calmanovici v Romania (CE:ECHR:2008:0701JUD004225002, § 65)).

54 See judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343, paragraph 60), and of 6 December 2011, Achughbabian (C‑329/11, EU:C:2011:807, paragraph 30).

55 Emphasis added.

56 Emphasis added.

57 See Article 15(2), third subparagraph, points (a) and (b) of the Return Directive. In practice, the Commission considers that, when detention is ordered by administrative authorities (for example, the police), the time limits for a speedy judicial review are between 24 and 72 hours.

58 See dictionary entry in Collins, available at https://www.collinsdictionary.com/dictionary/english/immediate#:~:text=(%C9%AAmi%CB%90di%C9%99t%20),is%20done%20without%20any%20delay.

59 See ECtHR, 8 April 2004, Assanidzé v Georgia (CE:ECHR:2004:0408JUD007150301, §§ 173 to 175). For the ECtHR, ‘to detain a person for an indefinite and unforeseeable period, without such detention being based on a specific statutory provision or judicial decision, is incompatible with the principle of legal certainty … and arbitrary, and runs counter to the fundamental aspects of the rule of law’.

60 See ECtHR, 4 June 2015, Ruslan Yakovenko v Ukraine (CE:ECHR:2015:0604JUD000542511; ‘the judgment in Yakovenko’, § 68).

61 See judgment in Yakovenko (concerning a delay of two days) and ECtHR, 22 March 1995, Quinn v France (CE:ECHR:1995:0322JUD001858091, §§ 39 to 43) (delay of 11 hours).

62 See ECtHR, 21 September 2021, Kerem Çiftçi v Turkey (CE:ECHR:2021:0921JUD003520509, §§ 32 to 34), where the applicant had been illegally detained for approximately one and a half hours.

63 Judgment of 6 December 2011, Achughbabian (C‑329/11, EU:C:2011:807, paragraph 31).

64 See, to that effect, the Opinion of Advocate General Wathelet in Arslan (C‑534/11, EU:C:2013:52, point 73).

65 At the hearing, the Commission indicated, in essence, that the maximum period of 48 hours appears to be the average for the Member States.

66 By analogy, the Court has held that not every breach of the right to be heard systematically renders the decision taken unlawful, for the purposes of the final subparagraph of Article 15(2) of the Return Directive, and therefore not every such breach will automatically require the release of the third-country national concerned (judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraphs 39 and 40).