32 The referring court justified its request by stating that the case raises the question
whether Mr Kadzoev should be kept in detention in the detention centre or released. In view
of his situation, the court stated that the proceedings should not be suspended for a prolonged
period.
33 The Second Chamber of the Court, after hearing the Advocate General, decided to
grant the referring court’s request for the reference for a preliminary ruling to be dealt with
under an urgent procedure, and to remit the case to the Court for it to be assigned to the
Grand Chamber.
The questions referred for a preliminary ruling
Question 1(a)
34 By Question 1(a) the referring court essentially asks whether Article 15(5) and (6) of
Directive 2008/115 must be interpreted as meaning that the maximum duration of detention
laid down in those provisions must include also the period of detention completed before the
rules in the directive become applicable.
35
It must be observed that Article 15(5) and (6) of Directive 2008/115 fix the maximum
period of detention for the purpose of removal.
36
If the period of detention for the purpose of removal completed before the rules in
Directive 2008/115 become applicable were not taken into account for calculating the
maximum period of detention, persons in a situation such as that of Mr Kadzoev could be
detained for longer than the maximum periods mentioned in Article 15(5) and (6) of that
directive.
37 Such a situation would not be consistent with the objective of those provisions of
Directive 2008/115, namely to guarantee in any event that detention for the purpose of
removal does not exceed 18 months.
38 Moreover, Article 15(5) and (6) of Directive 2008/115 apply immediately to the future
consequences of a situation that arose when the previous rules were in force.
39 The answer to Question 1(a) is therefore that Article 15(5) and (6) of Directive
2008/115 must be interpreted as meaning that the maximum duration of detention laid down
in those provisions must include a period of detention completed in connection with a
removal procedure commenced before the rules in that directive become applicable.
Question 1(b)
40 By Question 1(b) the referring court seeks to know whether, when calculating the
period of detention for the purpose of removal under Article 15(5) and (6) of Directive
2008/115, the period must be included during which the execution of the removal decision
was suspended because of the examination of an application for asylum by a third-country
national, where, during the procedure relating to that application, he has remained in the
detention centre.