Czech Republic - Supreme Administrative Court, S.A.CH, A.A.CH. and A.A.CH. v. Police of the Czech republic, Regional Directorate of Ústí nad Labem, 10 Azs 122/2015 - 88

Facts:

The applicant was detained by the national authorities together with his two minor children under § 129 (1) of the Aliens Act. The applicant applied to have the decision of the authority to detain the applicant quashed, arguing that § 129 (1) does not fulfil the condition regarding the quality of the law, as it does not list objective criteria for determining whether a serious risk of absconding exists, as required by Article 2(n) of the Dublin III Regulation.

The present case is an appeal against the decision of the Regional Court Ústí nad Labem 42A 12/2015-78, which held that the decision of the police was illegal. The police authority argued that it relied on the definition of a risk of absconding provided in Article 2(n) of Dublin III Regulation and that the absence of definition in the national act of parliament is not sufficiently serious to prevent its applicability.

Decision & reasoning:

The court started by pointing out inconsistencies between different language versions of Article 2(n). Whereas wording of the article in the Czech language version, similarly to Slovak, Polish and English versions, could be interpreted as encompassing not only acts of parliament, but also decisions of high courts or administrative practice, translations of the term “law” to German, Bulgarian and Spanish indicate that in those Member States solely an act of parliament was intended to serve this purpose.

Additionally, the ECtHR has adopted wide interpretation of “par la loi”, which also covers case-law developed by judges.  Its interpretation of Article 5(1)(f) ECHR suggests that it is not the form of the restriction that matters, but whether the law is accessible and sufficiently clear and precise to be “foreseeable” in its application.

The court proceeded to state that the police approach to identifying the existence of a risk of absconding was not arbitrary, that it was foreseeable and based in law as interpreted by the Supreme Administrative Court.  In the present case, the existence of the risk of absconding was assessed with great care, taking into account the fact that the applicants left Hungary before the decision on their international protection status could have been made and that they expressed an intention to continue to Germany.  

The requirement to define the criteria in an act of parliament would be unnecessarily formalistic, and the court expressed doubts that the proposed amendment of the act of parliament in question will improve legal certainty.  The court concluded by stating that the CJEU held that, unless the regulation or its subject matter clearly require otherwise, the form of implementing measures depended on legal culture of each Member State, and thus formulated the following preliminary question for referral to the CJEU:

 Does the absence of an act of parliament setting out  objective criteria for assessment of a significant risk of absconding (Article 2(n) of Regulation 604/2013) result in the inapplicability of the detention decision under Article 28(2) of the said Regulation?

Outcome:

A preliminary question has been referred to the CJEU.

Subsequent proceedings:

Reference number of the case before the CJEU: Case C-528/15.

Observations/comments:

This case summary was written by Viktoria Skrivankova, a gradute of LLB Law and Human Rights at Essex University and a graduate of LLM European Law at Leiden University.