The Supreme Court of Estonia requested the CJEU a preliminary ruling concerning the interpretation of Article 15(1) of the Return Directive and whether Member States may detain a third-country national who, while at liberty prior to removal, presents a real risk of committing a criminal offence the establishment and punishment of which are likely to make the removal process considerably more difficult.
The CJEU held that Article 15(1) of the Return Directive does not allow a Member State to order the detention of an illegally staying third-country national solely on the basis of the general criterion of a risk that the effective execution of the removal will be jeopardised, without satisfying one of the specific grounds for detention provided in the national law that transposes this provision.
The court noted that, under the Return Directive, detention is permitted only “in order to prepare the return and/or carry out the removal process” and detention must be proportionate and respectful of fundamental rights. The court cited the ECtHR case of Del Río Prada v. Spain (ECLI:CE:ECHR:2013:1021JUD004275009), according to which a national law authorising deprivation of liberty must, in order to meet the requirements of Article 52(1) of the Charter, be sufficiently accessible, precise and foreseeable in its application in order to avoid any danger of arbitrariness. Thus, the detention of a third-country national who is the subject of return procedures, constituting a serious interference with his right to liberty, must comply with strict safeguards, namely a legal basis, clarity, foreseeability, accessibility and protection against arbitrariness.
The court further noted that the detention measure based on the risk that the effective execution of the removal will be jeopardised, without one of the specific grounds for detention laid down by that national legislative provision being satisfied, is contrary to the requirements of clarity, predictability and protection against arbitrariness. The CJEU observed that such a criterion does not enable the persons concerned to foresee, with the requisite level of certainty, the situations in which they might be detained and such a criterion does not offer adequate protection against arbitrariness.