1.

This is the fourth ( 2 ) occasion on which the Court has found it necessary to use the urgent procedure in relation to a request for a preliminary ruling concerning the interpretation of certain provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals (OJ 2008 L 348, p. 98), usually known as the ‘Return Directive’.

2.

In this View I shall make several references to the case-law of the European Court of Human Rights (‘EHR Court’) because Directive 2008/115 rightly aims to take into account the case-law of that Court ( 3 ) concerning detention. That case-law relates to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). That Article corresponds to Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The first sentence of Article 52(3) of the Charter stipulates that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR. So far as Article 7 of the Charter and Article 8(1) ECHR are concerned, the Court has confirmed that ‘Article 7 of the Charter must … be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights’. ( 4 )

3.

To my mind, the same is true of Article 6 of the Charter and Article 5 ECHR. ( 5 )

4.

Under Article 6 of the Charter, ‘everyone has the right to liberty and security of person’.

5.

Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, provides as follows:

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

6.

Recitals (6), (12) and (16) of Directive 2008/115 read as follows:

…

…

7.

The purpose of Directive 2008/115 is defined as follows in Article 1 of that directive:

‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’

8.

Article 3(7) of Directive 2008/115 defines ‘risk of absconding’ as ‘the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond’.

9.

Article 15 of Directive 2008/115, entitled ‘Detention’, provides as follows:

‘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.

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:

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:

10.

Article 5 ECHR, so far as relevant to this case, provides as follows:

‘1.   Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

…

4.   Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

…’

11.

Article 41, no.1, of the Law on foreign nationals in the Republic of Bulgaria (Zakon za chuzhdentsite v Republika Bălgaria, DV No. 153, 23 December 1998), in the version applicable to the facts of the present case (DV No. 108, 17 December 2013, ‘the Law on foreign nationals’), provides that a coercive administrative measure of ‘deportation’ may be imposed where ‘the foreign national is unable to prove that his entry to the territory was legal’.

12.

Article 42h(1), (3) and (4) of the Law on foreign nationals, in the version applicable to the situation in the main proceedings, when read in conjunction with Article 10(1), point 22, of the same Law, provides that a coercive administrative measure consisting in an ‘entry ban’ may be imposed where it appears that the foreign national’s entry to the territory aims to use the country as a transit route in order to emigrate to another third country.

13.

Under Article 44(5) of the Law on foreign nationals, ‘where there are obstacles to the foreign national immediately leaving the territory or entering another country, that national shall be required, by order of the authority which adopted the coercive measure, to report each week to the local office of the Ministry of the Interior, in accordance with the rules laid down by the decree implementing the present law, unless the obstacles to implementation of the measure ordering deportation or expulsion have been overcome and measures have been adopted with a view to his imminent removal’.

14.

According to Article 44(6) of the Law on foreign nationals:

‘Where a coercive administrative measure has been taken pursuant to Article 39a(1), points 2 and 3, against a foreign national whose identity has not been established or where the foreign national hinders the implementation of the order imposing the measure or where there is a risk of him absconding, the authority which adopted the measure may also order the foreign national to be placed in a detention facility for foreign nationals in order that his deportation from the Republic of Bulgaria or his expulsion may be arranged.’

15.

According to Article 44(8) of the Law on foreign nationals:

‘Detention shall continue as long as the conditions set out in paragraph 6 above are met but may not exceed six months. The competent authorities by virtue of Paragraph 1 shall, of their own motion, verify once a month, jointly with the Director of the “Migratsia” Directorate, that the conditions for detention are fulfilled. Exceptionally, where the person refuses to cooperate with the competent authorities, or where there is a delay in obtaining the documents essential for deportation or expulsion, the period of detention may be extended to 12 months. Where, having regard to the particular circumstances of the case, it is found that, for legal or technical reasons, there is no longer a reasonable prospect of removing the foreign national, the person concerned shall be released immediately.’

16.

According to Article 46a(1) of the Law on foreign nationals, ‘an action may be brought, in accordance with the rules laid down by the Code of Administrative Procedure [Administrativnoprotsesualen kodeks; “APK”]), within 14 days of the actual placement’.

17.

Article 46a(2) of the Law provides that the court before which an action is brought is to hear the case in open court, the person concerned not being required to enter an appearance, and that the court’s decision is itself amenable to appeal.

18.

Article 46a(3) of the Law on foreign nationals provides that ‘every six months the director of the detention centre for foreign nationals shall present a list of the foreign nationals who have been detained there for more than six months owing to obstacles to their removal from Bulgarian territory. The list is to be sent to the administrative court of the place where the detention centre is located’.

19.

Article 46a(4) of the Law on foreign nationals reads as follows:

‘At the end of each period of six months’ detention in a detention facility, the court, considering the case in camera, shall determine, either of its own motion or on the application of the foreign national concerned, whether the period of detention is to be extended, replaced by other measures, or terminated. An appeal may be brought against the court’s order in accordance with the rules laid down [by the APK].’

20.

According to Paragraph 1, point 4c, of the Supplementary Provisions to the Law on foreign nationals, there is shown to be ‘a risk that a foreign national who is the subject of a coercive administrative measure may abscond’ where, taking account of the facts, there are reasonable grounds for suspecting that the foreign national concerned will attempt to circumvent implementation of the measure ordered. Factual elements for that purpose may be the fact that the person concerned cannot be found at his stated address, the existence in his regard of previous breaches of public order, the existence of previous convictions, notwithstanding his rehabilitation, the fact that he has failed to leave the country within the period prescribed for his voluntary departure, the fact that he has clearly shown that he is not complying with the measure imposed on him, the fact that he is in possession of forged documents, or has none at all, the fact that he has provided incorrect information, that he has absconded in the past or that he has not complied with an entry ban.

21.

Article 128(1) APK, entitled ‘Jurisdiction ratione materiae’, provides as follows:

‘The administrative courts shall have jurisdiction for all proceedings relating to applications for:

1.   the adoption, amendment or annulment of administrative acts or a declaration as to their nullity;

…

3.   judicial protection against acts and omission of the administration which have no legal basis.’

22.

Under Article 168(1) APK, entitled ‘Object of judicial review’:

‘The court shall not confine itself to examining the grounds put forward by the applicant, but shall, on the basis of the evidence adduced by the parties, review the legality of the contested administrative act in the light of each of the grounds set out in Article 146.’

23.

Under Article 170(1) APK, entitled ‘Burden of proof’, ‘the administrative authority and the persons for whom the disputed administrative act is favourable must prove the existence of the reasons in fact given in that act and fulfilment of the legal requirements for its adoption’.

24.

Article 173(1) APK, entitled ‘Power of the court upon declaring the nullity of an administrative act or annulling that act’, provides as follows:

‘Where the question is not submitted for assessment by the administrative authority, the court to which the matter is referred shall decide the case after declaring the nullity of the administrative act or annulling it.’

25.

On 9 August 2013 Mr Mahdi was arrested at the border post at Bregovo (Bulgaria) while attempting to leave Bulgaria for Serbia. He had no identity papers and presented himself under the name of Bashir Mohamed Ali Mahdi, born on 5 November 1974 in Sudan and a national of that State.

26.

On the same day three administrative measures were taken against Mr Mahdi by the director of the Bulgarian border post, namely ‘deportation of a foreign national’, ‘a ban on entry to Bulgaria of a foreign national’, and an order for placement in detention pending implementation of the first two measures.

27.

On 10 August 2013 Mr Mahdi was placed in the special facility for the temporary accommodation of foreign nationals under the Direktsia ‘Migratsia’ (Migration Directorate) of the Ministry of the Interior, situated at Busmantsi (Bulgaria), in accordance with the detention order.

28.

On 12 August 2013 Mr Mahdi signed before the Bulgarian administrative authorities a statement whereby he consented to return voluntarily to Sudan.

29.

On 13 August 2013 the Direktor na Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti (Director of ‘Migration’ Department at the Ministry of the Interior; ‘the Direktor’) sent a letter to the Embassy of the Republic of the Sudan informing it of the measures which had been taken in respect of Mr Mahdi and of his detention. The Direktor added that it was necessary for the consular section of the Embassy to confirm Mr Mahdi’s identity and to provide him with a receipt in lieu of a passport so that he could leave Bulgaria and return to Sudan.

30.

At a date not specified by the referring court, but between 13 and 16 August 2013, Mr Mahdi orally informed the Bulgarian administrative authorities that he did not wish to return to Sudan voluntarily. It appears from the documents in the file that this statement was made following a meeting with a representative of the Embassy of the Republic of the Sudan, who confirmed Mr Mahdi’s identity but refused to provide him with an identity document permitting him to travel abroad. The refusal was apparently based on the fact that Mr Mahdi did not wish to return to Sudan. At the hearing before the Court, the Republic of Bulgaria confirmed that it had taken no further steps in the wake of that refusal.

31.

On 16 August 2013 Ms Ruseva, a Bulgarian national whose connection with Mr Mahdi is not otherwise stated, applied to the Direktor for Mr Mahdi to be released against provision of security. She attached a notarial declaration to the effect that he would be provided with accommodation and living expenses. She also gave an address.

32.

Following that application, on 26 August 3013 the Bulgarian authorities carried out a check at Ms Ruseva’s residence. They found that it was accommodation consisting of four rooms one of which, a bedroom, was occupied by Mr Mahdi.

33.

On 27 August 2013 the Direktor proposed to his superior, in reliance on Ms Ruseva’s declaration and the check which had been carried out, that the detention order should be revoked. The Direktor also proposed a less coercive measure against Mr Mahdi, namely an order to ‘report once a month to the local office of the Ministry of the Interior of the place of residence’, until the obstacles to the implementation of the return decision taken against him had been disposed of.

34.

On 9 September 2013 the director of the border post sent a letter to the same superior submitting that the order should not be revoked on the following grounds: Mr Mahdi had not entered Bulgaria legally, he had no permit to reside in Bulgaria, he had been refused the status of refugee by the National Agency for Refugees on 29 December 2012 and he had committed a criminal offence by crossing the national border between Bulgaria and Serbia outside the places prescribed for that purpose.

35.

According to the referring court, no action was brought against the detention order or the refusal to revoke it and replace it with a less coercive measure or against the decision refusing the grant of refugee status.

36.

It appears from the order for reference that the main proceedings were brought before the referring court by a letter from the Direktor, who applied to the referring court for a ruling of its own motion, on the basis of Article 46a(3) and (4) of the of the Law on foreign nationals, on the question of continuing Mr Mahdi’s detention.

37.

That is the context in which the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) decided to stay the proceedings and refer the following four questions to the Court of Justice for a preliminary ruling:

38.

By a separate order of 28 March 2014, the Administrativen sad Sofia-grad requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure, pursuant to Article 107 of the Rules of Procedure of the Court.

39.

The Third Chamber of the Court decided, on 8 April 2014, on the proposal of the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure.

40.

In view of the wording and the nature of the questions referred, it must be observed first of all that, on a reference for a preliminary ruling, the Court does not have jurisdiction under Article 267 TFEU to apply the rules of EU law to a particular case and, accordingly, does not have jurisdiction to make a determination in respect of a provision of national law in the light of those rules. ( 6 )

41.

The Court however may, in the framework of the judicial cooperation provided for by Article 267 TFEU, and on the basis of the material presented to it, provide a national court with guidance on the interpretation of EU law which may be useful to it in assessing the effects of provisions of that law. ( 7 ) I shall consider the questions referred by the national court in that spirit.

42.

In my view, all the questions are admissible, including the last, which relates to the possibility of releasing Mr Mahdi. That is not, according to the Court’s case-law, a hypothetical question. ( 8 ) On the contrary, it fits in with the logic of the previous questions and is a consequence of them. The referring court must be enabled to guide the administration if Mr Mahdi is released. That being so, I shall examine the questions in the order in which they have been put.

43.

The referring court asks a series of questions of procedure and substance concerning the interpretation of Article 15 of Directive 2008/115.

44.

In order to give a helpful reply to the questions from the referring court, it is necessary to give a brief account of the detention system, as well as of the review and judicial supervision of detention, established by Article 15 of Directive 2008/115.

45.

Directive 2008/115 has the objective, according to recital 2 thereto, of establishing an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. The directive seeks to ensure a balance between the rights and interests of the Member States in relation to controlling the entry, stay and removal of foreign nationals ( 9 ) and the individual rights of the persons concerned. With regard to the latter, Directive 2008/115 aims to take into account the case-law of the European Court of Human Rights relating to the right to liberty. ( 10 ) The same is true of ‘The Twenty Guidelines on Forced Return’ adopted by the Committee of Ministers of the Council of Europe on 4 May 2005, ( 11 ) to which Directive 2008/115 refers in recital 3. In the context of the legislative procedure, ( 12 ) Article 15 of the directive was one of the most hotly debated articles among the political institutions of the European Union. ( 13 )

46.

The principle underlying Article 15 of Directive 2008/115 is that only the procedures for return and removal justify the deprivation of liberty and that, if they are not conducted with the requisite diligence, detention ceases to be justified under that provision. ( 14 )

47.

It follows from Article 15(1) of Directive 2008/115 that detention can be only a last resort, in the absence of less coercive measures, and that, in any case, detention may be decided upon only if there is a risk of absconding or the third‑country national concerned avoids or hampers the preparation of return or the removal process. Detention for removal purposes is neither punitive ( 15 ) nor penal and does not constitute a prison sentence. ( 16 ) Article 15(1) of Directive 2008/115 requires narrow interpretation because enforced detention constitutes, as the deprivation of liberty, an exception to the fundamental right of individual freedom. ( 17 )

48.

The principle of proportionality requires the detention of a person against whom a removal procedure is taking place not to be prolonged for an unreasonable time, that is to say, not to exceed the period necessary for attaining the desired objective. ( 18 ) That principle is upheld in Article 15(5) of Directive 2008/115, which provides furthermore that each Member State is to set a limited period of detention which may not exceed six months. ( 19 )

49.

Provided that the initial detention conditions of Article 15(1) of Directive 2008/115 are still fulfilled, a Member State may exceptionally extend the initial maximum detention period if, in spite of all its reasonable efforts, the removal procedure is likely to take longer and if one of the supplementary conditions laid down in Article 15(6) is fulfilled, namely a lack of cooperation by the third‑country national concerned, or delays in obtaining the necessary documentation from third countries. Those supplementary conditions are exhaustive. Article 15(6) of Directive 2008/115 is, like Article 15(1), to be interpreted strictly.

50.

If, at any time, the detention conditions are no longer fulfilled, under Article 15(4) of the directive the person concerned must be released immediately.

51.

Article 15(2) of Directive 2008/115 provides for a judicial review of detentions ordered by administrative authorities. In that way the Member States are obliged either to provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention, or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention is subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. With that requirement, the EU legislature also sought to take into account the relevant case law of the EHR Court concerning detention for the purpose of removal ( 20 ) and Guideline No. 9 on forced return. ( 21 )

52.

In its written observations, the Republic of Bulgaria pointed out that it has selected the second option under Article 15(2)(b) of Directive 2008/115, implementing it by means of Article 46a(1) and (2) of the Law on foreign nationals.

53.

Under the first sentence of Article 15(3) of Directive 2008/115, in each case, detention is to be reviewed ‘at reasonable intervals of time’ either on application by the third-country national concerned or ex officio.

54.

According to the Republic of Bulgaria, those requirements of Directive 2008/115 are transposed by Articles 44(8) and 46a(3) and (4) of the Law on foreign nationals.

55.

Finally, under the second sentence of Article 15(3), ‘in the case of prolonged detention periods’, reviews are to be subject to the supervision of a judicial authority.

56.

It appears from the documents before the Court that Bulgaria transposed that obligation by means of Article 46a(3) and (4) of the Law on foreign nationals.

57.

By question 1(a) the referring court asks, in essence, whether Article 15(3) of Directive 2008/115 requires a review of detention to be carried out by means of an express decision, that is to say, whether a review must find, by an express decision, that the detention of the person concerned is to be extended or that the person should be released. Therefore the referring court wishes to know what are the obligations of the national administrative authority carrying out the periodic review of the legality of the detention.

58.

It appears from the documents before the Court that, under Bulgarian law, the reviewing administrative authority is not required to take an express decision regarding extending detention, either when it carries out mandatory monthly verifications ( 22 ) or before it sends the file to the court in connection with an application for the extension of detention beyond six months. ( 23 )

59.

The second sentence of Article 15(2) of Directive 2008/115 states that detention is to be ordered in writing, with reasons being given in fact and in law. However, it does not state which authority is to carry out the review nor what form such review must take.

60.

As I understand it, the word ‘review’ implies that the reviewing body must determine whether the initial grounds for detention laid down by Article 15(1) of Directive 2008/115 are still valid. In each individual case it must ascertain carefully whether there is (still) a risk of absconding or whether the person concerned is avoiding or hampering the preparation of return or the removal process. The reviewing body must also determine whether less coercive measures must be taken.

61.

Regarding an exceptional extension beyond the period referred to in Article 15(5) of the directive, the reviewing body must also take care that one of the supplementary conditions provided for in Article 15(6) is fulfilled.

62.

Any review must enable a judicial authority to exercise its power of review in accordance with Article 15(2) or (3) of the directive in order to guarantee an effective remedy for the person concerned, in accordance with Article 47 of the Charter. ( 24 )

63.

What is the consequence of those requirements with regard to the form of a review?

64.

On that point, I propose to differentiate between the reviews ‘at reasonable intervals of time’ referred to in the first sentence of Article 15(3) and the reviews ‘in the case of prolonged detention periods’ referred to in the second sentence of Article 15(3).

65.

The reviews at reasonable intervals of time referred to in the first sentence of Article 15(3) are to be carried out during the period specified by the initial detention decision. A further decision appears unnecessary if detention is not extended beyond the initial period and if the grounds have not changed.

66.

The reviews ‘in the case of prolonged detention periods’ referred to in the second sentence of Article 15(3) are, as I read the provision, to be carried out when it is sought to obtain an extension of the initial period, regardless of whether the extension begins during the period referred to in Article 15(5) of Directive 2008/115 ( 25 ) or on its expiry. ( 26 ) In those cases a new decision must be adopted which is in the same form as the initial decision and thus meets the formal requirements of the second sentence of Article 15(2) of the directive. That formal requirement is necessary so as to permit a subsequent judicial review.

67.

It follows that the reply to question 1(a) should be that Article 15(3) of Directive 2008/115 must be interpreted as meaning that, where the initial period of detention has expired, the competent authority must give a ruling on the extension of an initial detention by a decision in writing, with reasons being given in fact and in law.

68.

In essence, with parts (b) and (c) of question 1, which are to be considered together, the referring court asks the Court of Justice whether it must give a ruling on the merits when it examines a review decision or when it decides to extend the detention and what facts it may take as a basis. Thus the referring court seeks to establish the nature and scope of the mandatory review carried out by a court in respect of extension of the measure when the maximum detention period initially imposed has expired.

69.

It appears from this question that the referring court is uncertain as to its role in the context of ‘supervision’ of a review pursuant to the second sentence of Article 15(3) of Directive 2008/115.

70.

The nature of a judicial review means that the judicial authority must be in a position to determine whether the grounds forming the basis of the detention decision are still valid and, as the case may be, whether the conditions for extending detention are fulfilled. In order to comply with Article 47 of the Charter, the national court must have unlimited jurisdiction with regard to the decision on the merits. Consequently it must be able to decide on an extension of detention, on replacement of detention by a less coercive measure or on the release of the person concerned.

71.

In my opinion, Directive 2008/115 does not in itself preclude a situation where it is the judicial authority itself that decides on the extension of detention, provided that it has available all the elements mentioned above.

72.

The Court has confirmed that Article 15 of Directive 2008/115 is unconditional and sufficiently precise, so that no other specific elements are required for it to be implemented by the Member States. ( 27 ) It may therefore be applied directly by the referring court in favour of an individual.

73.

By virtue of Article 15(2) and (3) of Directive 2008/115, as interpreted in the light of Article 47 of the Charter, the judicial authority must have power, if necessary, to require the administrative authority to provide it with all the material concerning each individual case and to require the third-country national concerned to submit his observations.

74.

On the other hand, certain measures such as coordination with carriers and correspondence with the authorities of third countries, fall within the functions of an administrative authority and not those of the referring court.

75.

Consequently it is for the national court to assume unlimited jurisdiction with regard to the substance of the case. Thus, as it may apply Article 15 of Directive 2008/115 directly it must, if necessary, disregard the provisions of national law which have the effect of preventing the assumption of unlimited jurisdiction. On that point I draw attention to the Court’s settled case-law which states that a national court must apply EU law in its entirety and protect the rights which the latter confers on individuals, disapplying any provision of national law which may conflict with EU law. ( 28 )

76.

By way of example, if the procedure laid down by Article 46a(4) of the Law on foreign nationals meant that, under national law, the person concerned was prevented from submitting his comments regarding the detention decision, the referring court would have to disregard that obstacle and request the person concerned to submit his comments.

77.

I therefore propose that the reply to question 1(b) and (c) should be that, in the context of Article 15(2) and (3) of Directive 2008/115, every decision by the national administrative authority concerning the extension of detention must be the subject of a judicial review, which is to be undertaken in order to ensure observance of the right of the person concerned to an effective remedy, as provided for in Article 47 of the Charter. Any judicial authority carrying out such a review or deciding on an extension of detention must be able to act with unlimited jurisdiction and to give a ruling on the substance of the case, taking into account all the specific circumstances and considerations raised in the course of the main proceedings, and must be able to take its decision on the basis of the facts stated and evidence adduced by the administrative authority as well as the objections and facts presented by the third-country national. The judicial authority must be in a position to decide on the substitution of a less coercive measure for detention or on the release of the person concerned.

78.

With questions 2 and 3, which are to be considered together, the referring court asks in essence whether Article 15(1) and (6) of Directive 2008/115 precludes a national practice whereby an initial period of six months’ detention may be extended solely on the ground that the third-country national concerned has no identity documents and whether, where the facts are as in the main proceedings, there is a risk of absconding, as referred to in Article 15(1) and (6) of the directive.

79.

First of all, it must be observed that the ground that the person concerned has no identity documents is not one of the grounds relating to the initial detention decision, which are referred to in Article 15(1) of the directive, nor one of those relating to an extension of the period of detention, referred to in Article 15(6).

80.

In that connection, I note that it is only where implementation of the return decision in the form of removal is likely to be jeopardised by the conduct of the third-country national that he may continue to be deprived of his liberty and detained. ( 29 )

81.

The fact that that person has no documents is quite obviously one of the factors that the referring court will take into account when it determines whether there is a risk of absconding or whether the person concerned is avoiding or hampering the preparation for return or the removal procedure. Paragraph 1, point 4c, of the Supplementary Provisions to the Law on foreign nationals seems to me also to reflect that requirement.

82.

Furthermore, I must point out that Article 3(7) of Directive 2008/115 defines ‘risk of absconding’ as ‘the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond’.

83.

In relation to Article 7(4) of Directive 2008/115, ( 30 ) the Court has held that any assessment concerning a risk of absconding must be based on an individual examination of that person’s case. ( 31 ) An individual examination of the necessity of depriving a person of his liberty in order to ensure compliance with a removal decision is in keeping with the broader purpose of protecting the individual from arbitrariness. ( 32 )

84.

Consequently I propose that the reply to questions 2 and 3 should be that Article 15(1) of Directive 2008/115 precludes detention solely on the ground that the third-country national does not possess identity documents. However, that may be taken into account as a relevant factor for the purpose of establishing the existence of a risk of absconding within the meaning of Article 15(1).

85.

By question 4(a) the referring court asks, in essence, whether, in the circumstances of the case before it, for the purposes of determining whether the Bulgarian authorities may extend the detention of the third-country national, the latter has demonstrated ‘a lack of cooperation’ and/or whether there were ‘delays in obtaining the necessary documentation from [the] third country’, as provided for in Article 15(6) of Directive 2008/115.

86.

In my opinion, the reply to question 4(a) follows directly from Article 15(6), which aims to regulate situations where the Member State carrying out the removal operation must have made every reasonable effort, that is to say, taken all the necessary steps, before considering an extension of detention. If, in spite of that, it is likely that the removal operation will last longer (because of a lack of cooperation by the third-country national, or delays in obtaining the necessary documents from the third country), the Member State may, exceptionally, extend the period of detention beyond the period laid down by Article 15(5) of Directive 2008/115.

87.

The referring court must assess the facts of the main proceedings in the light of that provision.

88.

In that connection, even if the facts of the main proceedings described by the referring court indicate a lack of cooperation on the part of Mr Mahdi and/or delay in obtaining the necessary documents from Sudan, the Bulgarian authorities must continue to make ‘all reasonable efforts’, as required by Article 15(6) of Directive 2008/115.

89.

During the entire detention period they must actively and continuously, on an ongoing basis, take steps to obtain travel documents from the embassy and must negotiate Mr Mahdi’s admission to Sudan as soon as possible. I must repeat that removal of the person concerned is the only reason justifying detention and that detention is not of a punitive nature.

90.

The case-law of the EHR Court confirms that conclusion. That Court has held that there was an infringement of the right to liberty by Bulgaria in a case where, for a period of 18 months, the Bulgarian authorities merely wrote three times to the embassy of the third country concerned to ask for a travel document to be issued to the applicant. According to the EHR Court, the three letters were insufficient for the purpose of demonstrating that the Bulgarian authorities had followed up the case actively or that they had made every effort to negotiate the applicant’s rapid transfer or admission to a third country. ( 33 )

91.

It seems from the order for reference that Bulgaria transposed the provision relating to maximum detention in Paragraph 44(8) of the Law on foreign nationals to the effect that ‘the period of detention may be extended to 12 months’. ( 34 ) If that implies that Bulgaria chose to limit the total detention period to 12 months and not to exhaust the maximum period permitted by Article 15(5) and (6) of the directive, ( 35 ) it cannot apply that provision in such a way as to enable it to extend the detention period beyond a total of 12 months. A Member State cannot invoke a provision of a directive against an individual. ( 36 )

92.

The answer to question 4(a) should therefore be that, under Article 15(6) of Directive 2008/115, the authorities of a Member State may extend a detention period beyond the period referred to in Article 15(5) only if the removal operation lasts longer by reason of factors which are not attributable to those authorities. Even if the facts of the main proceedings indicate a lack of cooperation on the part of the third-country national and/or delay in obtaining the necessary documents from the third country, a Member State must actively pursue, continuously and without interruption, its efforts to carry out the removal operation.

93.

This final question from the referring court is whether, if the third-country national is released and the authorities of that State still do not issue an identity document, the Member State must issue a temporary document relating to the status of that person.

94.

As the Commission pointed out in its observations, there is no harmonisation of the conditions for residence on the territory of Member States by nationals of a third country staying illegally and in relation to whom the removal system cannot be used. In particular, Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third‑country nationals (OJ 2002 L 157, p. 1) applies, according to Article 1(2) thereof, only to persons staying legally on the territory.

95.

If the Bulgarian authorities decided that Mr Mahdi should not return to Sudan, they would be free, in accordance with Article 6(4) of Directive 2008/115, to grant him a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons.

96.

In the absence of any such decision, I consider that it follows logically from Directive 2008/115 that the Member States have an obligation to provide the person concerned with a written confirmation of his situation. Such a document would prevent that person from being arrested once again by the Bulgarian authorities if he were subsequently asked to prove his specific situation in the event of a check or administrative control.

97.

I therefore propose that the reply to question 4(b) should be that Article 15(4) of Directive 2008/115 must be interpreted in the light of recital 12 in the preamble thereto as meaning that if a third-country national is released, the Member State must provide him with written confirmation of his situation so that he will be able to demonstrate his specific situation in the event of an administrative control or check.

98.

In the light of the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Administrativen sad Sofia-grad to the following effect: