Bulgaria, Sofia city Administrative Court, 20 June 2014 1535/2014

Identification of the case

• DV No 108 of 17 December 2013; ‘the Law on foreign nationals

• Return Directive, Article 15(4)
• Article 47

Summary of the case

Mr. M. was arrested on 09.08.2013 at the border post Bregovo in Bulgaria – he was officially returned from the Serbian competent authorities as he crossed illegally the border between Bulgaria and the Republic of Serbia. Mr. M. did not have any identity documents but presented himself as Bashir Mohamed Ali M.. The same day Mr. M. was made a subject of a coercive administrative measure “coercive taking to the border” and an “entry ban”. For the purpose of the implementation of these measures Mr. M. was detained in a special facility for foreigners on 10.08.2013. On 12.08.2013 Mr. M. singed a statement whereby he consented to return voluntary to Sudan. On 13.08.2013 the competent authorities sent a letter to the Embassy of the Republic of the Sudan informing him of the measures which had been taken in respect to Mr. M. Subsequently, at a date not specified in the documents before the Court, a meeting took place between an embassy official and Mr. M. in the course of which the official confirmed Mr. M. identity but refused to issue him with an identity document permitting him to travel outside Bulgaria. The refusal was motivated by Mr. M.’s unwillingness to return on his own free will to his country of origin. On 16.08.2013, Ms. R., a Bulgarian national, swore in an affidavit that accommodation and means of support during his stay in Bulgaria would be provided to Mr. M. On 26.08.2013 police checked and validated the statement. On 27.08.2013 the competent authority suggested to his superior to revoke Mr. M’s detention order and replace it with a less coercive measure – namely “reporting every week to the local office of the Ministry of Interior”. On 09.09.2013 that proposal was rejected by the Director of the Directorate “Migration” on the grounds that Mr. M. had not entered in Bulgaria legally, that he was not in possession of a residence permit, that he has been refused refugee status on 29.12.2012 and that he had committed a criminal offence by crossing the border between Bulgaria and Serbia at the places prescribed for that purpose. Mr. M. stayed in the special centre six months and the Court had been seized of a request to prolonged the initial six months detention.

• Administrative judicial enforcement

The first issue raised by the national court is whether art. 15 of 2008/115 directive, read in conjunction with art. 6 and 47 of the European Charter of Fundamental Rights, requires that the decision of a national administrative authorities, deciding on the further course of the detention of a third country national, after expiry of the initial maximum period allowed for detention, must be written, and motivated in facts and in law.

The second issue raised by the Bulgarian judicial authority concerns the nature and scope of the mandatory review carried out by a judicial authority in relation to the administrative decision that extends detention after the expiry of the initial period of detention.

A third issue raised by the national court deals with the substantive conditions required by the 2008/115 Directive in order to allow prorogation of detention. Namely, the national court enquired the CJEU whether the lack of identity documents may be the sole ground for extending detention of a third country national and whether the very fact he has not obtained such documentation fulfils the notion of lack of cooperation for the purpose of extending detention.

Finally, the national court asked the CJEU whether the Directive 2008/115 obliges Member States’ authorities to issue a residence permit to a third-country national when a reasonable prospect of removal no longer exist.

1. The ECJ held that art. 15.3 and 15.6 of the 2008/115 directive, read in the light of Articles 6 and 47 of the Charter, must be interpreted as meaning that such a decision must be written and motivated in facts and in law.
2. Basing its reasoning only on a systematic interpretation of Article 15.3 and 15.6 of Directive 2008/115, with no explicit reference to Article 47 of the Charter, despite the opinion of the AG, the ECJ holds that the judicial review of a decision that extends initial detention must permit the judicial authority to decide on a case-by case basis. Judges must have full jurisdiction on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person should be released. The judicial authority must have the power to take into account not only the facts and the elements adduced by the administrative authority but also any other facts, evidence and observation submitted by the person concerned.
3. The CJEU held that the lack of an identity document cannot be on its own a ground for extending detention. In such a case, it is for the national court to determine in light of the individual case whether less coercive measures may be applied effectively. The fact that a third national country has not obtained an identity document does not mean in itself that the person concerned has demonstrated a lack of cooperation that allows for the extension of the initial detention. The CJEU requires the national court to pursue a detailed examination of the factual matters in order to evaluate if other reasons have determined the delay in the implementation of the removal order. This would include the effective efforts of the competent national authority to negotiate the individual’s rapid readmission in its country of origin.
4. The CJEU, in line with its previous case law (Kadzoev), rejected the interpretation of an obligation incumbent on Member States to issue a residence permit to a third-country national when a reasonable prospect of removal no longer exists. However, States’ authorities must provide the person concerned with a written confirmation of his current situation.

Role of the Charter and role of the general principles on enforcement

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)

According to the CJEU, Articles 6 and 47 EU Charter do not require that every decision taken in the course of administrative proceedings on returning irregular third country nationals be in a written form and give reasons of fact and law. However, the CJEU stresses that Member States’ discretion in the implementation of the Directive and their procedural autonomy are not unlimited, since they must ensure the respect of fundamental rights and the full effectiveness of the EU law they implement (para. 50).

To that extent, the CJEU underlines that article 15 of Directive 2008/115 states that a (initial) detention decision of a third country national must be written and motivated in facts and in law. According to the Court, these requirements are needed both to enable the third country national to defend his rights and to put the Court in a position to carry out the judicial review of the decision (para. 45).

The decision to detain initially a third country national and the decision to extend the term of this detention are similar in nature since both deprive the person concerned of his liberty (para. 44).

It follows, then, that in order to ensure the individual to exercise its fundamental right to an effective remedy (para. 46) and the judge to effectively conduct his judicial review, the decision to extend initial detention must fulfil the same requirements that the directive requires for a decision establishing initial detention. Thus, the former must be written and motivated in facts and laws. This would guarantee the individual the same safeguards he enjoys when challenging the legality of an initial detention decision.

As to the nature and the scope of the judicial review of an administrative decision that extends initial detention of a third country national, the Court highlights (para. 57) that Article 15(3) of 2008/115 directive states that in case of prolonged detention periods, reviews must be subject to the supervision of a judicial authority. However, this provision does not specify the nature of this examination.

The AG in its opinion had suggested to interpret Article 15(3) of the directive in light of Article 47 of the EU Charter in order to grant the judicial authority a full jurisdiction with regard the supervision of administrative decisions that extend initial detention. While reaching the same conclusion of the AG, the ECJ has followed a different reasoning. The Court prefers to ground its reasoning primarily on Article 15(4) and (6) of the Return Directive:

As a consequence, the judicial authority has unlimited jurisdiction with regard to the merits of the decision and it may substitute its own evaluation for that of the administration, including the possibility to determine alternative measures to detention, even if such an alternative has not been requested by the administration. Besides, the judge is not limited to evaluate only the elements and facts provided by the administration, but he must take into consideration evidence adduced by the person concerned. 

• Effectiveness
• Proportionality

The principle of proportionality was invoked in regard to establishing a less coercive measure to the prolongation of immigration detention.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• C-61/11 PPU, EU:C:2011:26
• С-383/13PPU, EU:C:2013:533
• C-279/09, EU:C:2010:811
• C-312/93, EU:C:1995:437

• Z. v Bulgaria, Appl. N 57785/00, 15.06.2006
• C. v the United Kingdom, Appl. N22414/93, 15.11.1996

Preliminary reference  and consistent interpretation technique

The Sofia city Administrative Court addressed a preliminary reference to the CJEU for the purpose of  clarifying whether art. 15 of 2008/115 directive, read in conjunction with art. 6 and 47 CFR requires that the decision of a national administrative authorities, deciding on the further course of the detention of a third country national, after expiry of the initial maximum period allowed for detention, must be written, and motivated in facts and in law.

The second issue raised by the Bulgarian judicial authority concerns the nature and scope of the mandatory review carried out by a judicial authority in relation to the administrative decision that extends detention after the expiry of the initial period of detention.

A third issue raised by the national court deals with the substantive conditions required by the 2008/115 Directive in order to allow prorogation of detention. Namely, the national court enquired the CJEU whether the lack of identity documents may be the sole ground for extending detention of a third country national and whether the very fact he has not obtained such documentation fulfils the notion of lack of cooperation for the purpose of extending detention.

Finally, the national court asked the CJEU whether the Directive 2008/115 obliges Member States’ authorities to issue a residence permit to a third-country national when a reasonable prospect of removal no longer exist.

In the follow-up judgment, the referring court consistently applied the preliminary ruling, quashing the administrative detention and on the basis of, also of the principle of proportionality, established less coercive measures - obligation to report.

Additional notes on the decision

The main effect of the CJEU Judgment of 05 June 2014 in the M. Case has been that the administrative authority began to issue decisions on extending the length of detention giving the factual and legal grounds, which are automatically submitted to the court for review. Thus, detainees now are not in a disadvantaged position with regard to the right to effective remedies. As noted above, the second level judicial authority in Bulgaria had a limited scope of judicial review, that is, it establishes only the conformity of the judgment of the first level jurisdiction with the law and does not carry out fact-finding work. 

As regards the CJEU conclusion that Article 15 (1) and (6) RD do not allow for national regulations like the Bulgarian one, according to which renewal of detention could be done solely on the ground that the TCN has no identity documents, the domestic jurisprudence was divergent (at least until January 2017). The Bulgarian Supreme Administrative Court gives preference to the CJEU conclusion, while other national courts follow a strict application of Article 44, Para.6 of the Law on Foreign Nationals in the Republic of Bulgaria, which provides for the lack of identity documents of the TCN as a separate (autonomous) ground of detention.

The CJEU pronouncement that the sole fact of refusing to sign a declaration for voluntary return by the TCN does not amount to a ‘lack of cooperation’ within the meaning of Article 15 (6) of the Return Directive also has a similar divergent judicial implementation in Bulgaria.

Last, but not least, in relation to the preliminary ruling that Member States must provide the third country national with written confirmation of his situation in cases when the TCN has no identity documents and has not obtained such documentation from his country of origin, the Bulgarian authorities started to provide TCNs, upon release from detention, with a written confirmation as to the grounds on which they have been released.  

The M. preliminary ruling impacted on the Dutch judiciary in regard to the requirements of judicial motivation. The Dutch Council of State changed its view on the deference of the court regarding the control of the lawfulness of detention. According to the Dutch Council of State, the question as to whether less coercive measures can be applied is to be judged in full by Dutch courts (Dutch Council of State, Decision No. 201408655/1/V3)