CJEU - C-61/11, PPU El Dridi

The Directive 2008/115 pursues the establishment of 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 fundamental rights and also their dignity.

The order in which the stages of the return procedure established by Directive 2008/115 are to take place corresponds to a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility; the principle of proportionality must be observed throughout those stages.

It is clear that even the use of the latter measure, which is the most serious constraining measure allowed under the Directive under a forced removal procedure, is strictly regulated, pursuant to Articles 15 and 16 of that Directive, inter alia in order to ensure observance of the fundamental rights of the third‑country nationals concerned.

In particular, the maximum period laid down in Article 15(5) and (6) of Directive 2008/115 serves the purpose of limiting the deprivation of third-country nationals’ liberty in a situation of forced removal (Case C‑357/09 PPU Kadzoev [2009] ECR I‑11189, paragraph 56). Directive 2008/115 is thus intended to take account both of the case-law of the European Court of Human Rights, according to which the principle of proportionality requires that the detention of a person against whom a deportation or extradition procedure is under way should not continue for an unreasonable length of time, that is, its length should not exceed that required for the purpose pursued and of the eighth of the ‘Twenty guidelines on forced return’ adopted on 4 May 2005 by the Committee of Ministers of the Council of Europe, referred to in Recital 3 in the preamble to the Directive. According to that guideline, any detention pending removal is to be for as short a period as possible.

It should be observed in that regard first that, as is apparent from the information provided both by the referring court and by the Italian Government in its written observations, Directive 2008/115 has not been transposed into Italian law.

According to settled case-law, where a Member State fails to transpose a Directive by the end of the period prescribed or fails to transpose the Directive correctly, the provisions of that Directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise may be relied on by individuals against the State. Moreover, a person in Mr El Dridi’s situation comes within the personal scope of Directive 2008/115, since, under Article 2(1) thereof, that Directive applies to third-country nationals staying illegally on the territory of a Member State.

As observed by the Advocate General in points 22 to 28 of his View, that finding is not affected by Article 2(2)(b) of that Directive, which allows Member States to decide not to apply the Directive to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. The order for reference indicates that the obligation to return results, in the main proceedings, from a decree of the Prefect of Turin of 8 May 2004. Moreover, the criminal penalties referred to in that provision do not relate to non-compliance with the period granted for voluntary departure.

It must be observed, second, that even though the decree of the Prefect of Turin of 8 May 2004, in so far as it establishes an obligation for Mr El Dridi to leave the national territory, is a ‘return decision’ as defined in Article 3(4) of Directive 2008/115 and referred to, inter alia, in Articles 6(1) and 7(1) thereof, the removal procedure provided for by the Italian legislation at issue in the main proceedings is significantly different from that established by that Directive.

Thus, whilst that Directive requires that a period of between seven and 30 days be granted for voluntary departure, Legislative Decree No 286/1998 does not provide for recourse to that measure.

As regards the coercive measures which the Member States may implement under Article 8(4) of Directive 2008/115, it is clear that in a situation where such measures have not led to the expected result being attained, namely, the removal of the third-country national against whom they were issued, the Member States remain free to adopt measures, including criminal law measures, aimed inter alia at dissuading those nationals from remaining illegally on those States’ territory.

It follows that, notwithstanding the fact that neither point (3)(b) of the first paragraph of Article 63 EC, a provision which was reproduced in Article 79(2)(c) TFEU, nor Directive 2008/115, adopted inter alia on the basis of that provision of the EC Treaty, precludes the Member States from having competence in criminal matters in the area of illegal immigration and illegal stays, they must adjust their legislation in that area in order to ensure compliance with European Union law. Those States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a Directive and, therefore, deprive it of its effectiveness.

The Directive 2008/115 makes the use of coercive measures expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued.

Consequently, the Member States may not, in order to remedy the failure of coercive measures adopted in order to carry out forced removal pursuant to Article 8(4) of that Directive, provide for a custodial sentence on the sole ground that a third-country national continues to stay illegally on the territory of a Member State after an order to leave the national territory was notified to him and the period granted in that order has expired; rather, they must pursue their efforts to enforce the return decision, which continues to produce its effects.