Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 27 February 2024 - A v Rikoskomisario B

(Case C-150/24, Aroja) ¹

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: A

Defendant: Rikoskomisario B

Questions referred

1. (a)    Must Article 15(5) and (6) of the Return Directive 2008/115/EC ¹ be interpreted as meaning that all previous periods of detention must be taken into account when calculating the maximum durations of detention referred to therein? If such an obligation does not exist in all cases, what aspects are to be taken into consideration to determine whether the duration of the previous period of detention must be taken into account when calculating the maximum durations?

(b)    In particular, how is the situation to be assessed in circumstances such as those in the case in the main proceedings, where, on the one hand, the principal legal basis for detention, namely to secure the removal of an illegally staying third-country national, has remained essentially the same, but where, on the other hand, partly new factual and legal grounds have been put forward in support of the re-detention, the person concerned went, between the periods of detention, to another Member State from where he was returned to Finland, and several months also elapsed between the end of the previous period of detention and the re-detention?

2. (a)    Does the second sentence of Article 15(3) of Directive 2008/115/EC preclude national legislation which makes the initiation of a judicial review of the exceeding of the maximum duration of six months subject to a request by the person detained?

(b)    Must the judicial review referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, which concerns the decision of an administrative authority to exceed the initial maximum duration of detention of six months, be carried out before that maximum duration is reached and, if not, must it in any event be carried out without delay after the decision of that administrative authority?

3.    Does the absence of a judicial review as referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, where the maximum duration of detention of six months referred to in Article 15(5) is exceeded, entail an obligation to release the detained person, even if, at the time that belated judicial review is carried out, it is found that all the substantive conditions governing detention have been fulfilled and the case is then being dealt with properly from a procedural point of view? If there is no obligation relating to automatic release in such a situation, what aspects are to be taken into consideration from the point of view of EU law in order to determine the consequences of a judicial review carried out late, in particular in circumstances such as those in the main proceedings?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ 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).