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Press Release, Sofia, December 3rd 2009
For the first time the Court in Luxembourg passed a judgement concerning detention of immigrants
On 30th November 2009 the Court of the European Communities in Luxembourg passed its judgment in case С-357/09 PPU on the reference for a preliminary ruling made by Bulgaria concerning the prolonged detention of Said Kadzoev in the country. The Court's decision reads that no exceptions are allowed to the rule that the maximum 18-months period of detention according to the Law on the Foreigners in the Republic of Bulgaria (LFRB) cannot be extended.

Thus the Bulgarian advocates for human rights attorney Valeria Ilareva from the Legal Clinic for Refugees and Immigrants and attorney Diana Daskalova from the Center for Legal Help – Voice in Bulgaria Foundation won a victory in the Court of the European Communities for the rights of immigrants in Europe. This first and obligatory interpretation of the New Directive 2008/115/EC is a precedent in EC Law and is valid for immigrants in all 27 Member States of the EU. It creates guarantees against arbitrary interference with the right to liberty of third country nationals.

The case was heard by the Grand Chamber of the Court by a panel of 13 judges, which is an indicator of its importance.

According to the Court’s administration “the case is a precedent with the promptness of its hearing and the passing of a judgment in such short terms.” This demonstrates the attitude of the Court of the European Union towards cases that have as their object the human right to liberty and the foreigner is detained while awaiting the judgment.

“The decision of the Grand Chamber passed in less than three-months illustrates how a reference by a national court can lead to important guarantees for the broad immigrant community” says a respected European lector-expert in immigration law.

The interpretation of the EC Directive proposed by the Bulgarian judge in the reference for a preliminary ruling and supported by the Bulgarian government could have lead to an extension of the 18-month term for detention and would have allowed additional grounds for detention.

The position of the European Commission, as well as the one of the attorneys of Said Kadzoev, confirmed by the Court’s judgment, has been that the maximum period of detention is absolute and cannot be extended based on any circumstances, other than the ones explicitly provided for in the Directive.

The Court in Luxemburg drew attention to the fact that detention of immigrants is not a sanction for committing a crime, but serves the purpose of execution of the removal decision. Because of that, the Court emphasized that the foreigner could be under detention only while there is a real opportunity for successful deportation and only if the actions in execution of the deportation are taken with due diligence. The Court ruled that when a reasonable possibility for removal does not exist, the detainee shall be released IMMEDIATELY.

The national case, in relation to which the reference for a preliminary ruling was made, concerned the immigration detention of Mr. Said Kadzoev that lasted since October 2006.

The judgment of the Court of the European Communities in Luxemburg obliged the Bulgarian authorities to observe the absolute maximum 18-months period of immigration detention and to release Said Kadzoev immediately. On 3 December 2009 Mr. Kadzoev was released from the detention centre in Busmantsi, Sofia.

Press Release by “Justice 21” Civil Initiative at the Breakthrough Christian Centre

* Justice 21 Civil Initiative at the Breakthrough Christian Centre works in co-operation with the Legal Clinic for Refugees and Immigrants and the Center for Legal Aid – Voice in Bulgaria Foundation in support of refugees and immigrants in Bulgaria. For one year now, it has followed Said Kadzoev’s case as emblematic for grave violations of the right to liberty and has regularly informed the public about it. Mr. Kadzoev has also lodged a complaint before the European Court for Human Rights in Strasbourg.