22 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA evidence and arguments submitted by the detaining authority, without hearing the detainee. In 2010 in a precedent-setting case on appeal against extension by six more months of the already year-long immigration detention of a person who had lived in Bulgaria for thirty years and was non-returnable, the SAC of Bulgaria stipulated that the national law providing for review of the length of detention in a closed ‘hearing’, contradicted the right to a fair trial under Article 47 of the Charter of Fundamental Rights of the European Union.92 As a result, many of the lower court judges started to hold open hearings, although the detainees are not always escorted to and present at the hearing in the court. Court practice however has remained inconsistent as many other judges continue to apply the national law strictly and decide cases in absentia.93 3.3 THE RELATIONSHIP BETWEEN ACTIONS FOR REMOVAL AND THE LENGTH OF DETENTION Removal94 is one of the two legitimate objectives which can justify detention (the other one is preventing unlawful entry). Unless removal is carried out with due diligence, detention is unlawful. Article 15, paragraph 1 of the EU Return Directive requires that detention shall be “only maintained as long as removal arrangements are in progress and executed with due diligence”. On the one hand, under Article 15, paragraph 6 of the Return Directive, member states are allowed to extend detention in cases where “regardless of all their reasonable efforts, the removal operation is likely to last longer owing to: (a) a lack of cooperation by the thirdcountry national concerned, or (b) delays in obtaining the necessary documentation from third countries”. On the other hand, Article 15, paragraph 4 of the Return Directive, holds that 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. In the case of Mr. Auad, cited above, the ECtHR concluded that the Bulgarian authorities could “hardly be regarded as having taken active and diligent steps” with a view to deporting the detainee.95 The Court noted that the only steps taken by the authorities during the eighteen months of Mr. Auad’s detention were to write three times to the Lebanese embassy in Sofia with requests to issue a travel document for the applicant. “While the Bulgarian authorities could not compel the issuing of such a document, there is no indication that they pursued the matter vigorously or endeavoured entering into negotiations with the Lebanese authorities with a view to expediting its delivery.”96 However, neither the national law, nor the case law has elaborated any time-frames within which a reasonable prospect of removal must exist (e.g., within which the embassy should reasonably provide an answer, etc.). Usually the courts follow the general time limits of detention itself (six + six + six months). In Bulgaria the authorities frequently refer to the refusal of the detainee to sign a declaration for voluntary return to the destination country as an impediment to obtaining travel documents necessary for enforcement of the removal. This is often interpreted as lack of collaboration by the third country national and a delay in obtaining the necessary documentation by third countries, both grounds for extension of the period of detention under Article 15, paragraph 6 of the EU Return Directive.97 Thus, in the case of Mr. T., in its Ruling of 25 April 2016 in case C-8/2016, the SCAC concluded that both grounds for extension of Mr. T.’s detention by six more months were present, because he had refused to attend a meeting with representatives of the Afghan consulate in Bulgaria. The Afghan embassy however does not issue travel documents to persons who refuse to return voluntarily. The court did not discuss at all whether the authorities had made reasonable efforts to carry out the removal operation during the period of detention of the person, which amounted to eleven months at the time of issuing the court ruling. The only actions for removal that the authorities had reported were 1) a note from a talk held with the detainee ten days after his detention and 2) the organisation of a meeting of the Afghan consul with detainees at the centre on 09 October 2015, which the detainee refused to attend. Despite this failure to establish due diligence, the judge allowed the extension of the period of detention of Mr. T. In relation to the above, it is important to reflect on the Mahdi case before the SCAC,98 and the CJEU.99 The refusal of Mr. Mahdi to voluntarily return to his country of origin led to the refusal of the third country to issue him identity documents necessary for his return. In its judgment of 5 June 2014 the CJEU firstly reiterated that for it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of Article 15, paragraph 4 of the Return Directive, there must, at the time of the national court’s review of the lawfulness of detention, be a real prospect that the removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6) of Directive 2008/115 (paragraph 60 of the judgment). Secondly, the CJEU noted that Article 15(6) of Directive 2008/115 requires that, before it considers whether the detainee has shown that he has failed to cooperate, the authority concerned should be able to demonstrate that the removal operation is lasting longer than anticipated, despite all reasonable efforts of the removing authorities: “that means that, in the case before the referring court, the Member State in question should have sought, and should still actively be