Czech Republic - Supreme Administrative Court, 15 April 2009, K.K. v Ministry of Interior, 1 As 12/2009-61

Facts:

The applicant came to the Czech Republic in 2007 using a false travel document. After passing border control and entering the territory, he went to the police station and requested asylum. However, he was detained under Art 124 of the Aliens Act, as the police considered he might be a threat to public order and there was a risk of him absconding (the police anticipated the applicant would be subject to administrative deportation). He was permitted to request asylum only in the detention facility. The applicant appealed against the decision of the Regional Court ordering his detention, however his appeal was dismissed. Therefore he appealed to the Supreme Administrative Court.

Decision & reasoning:

The Court, referring to its prior case-law, first noted that the sole fact that an alien arrived in the Czech Republic with a false passport and stayed illegally does not mean that the conditions for detention under law are met. More importantly, the Court rebuked the police for their ignorance of the obvious fact that the applicant came to seek asylum. Therefore, the police were obliged to allow the applicant to request asylum and then proceed under the Asylum Act.

Also, the detention could not be considered legal as the expulsion of the applicant wasn´t possible as he was an asylum seeker. If the expulsion could not be enforced, the detention failed to fulfil its approved purpose. The Court noted that procedure of expulsion and detention cannot be considered as two strictly separate administrative procedures. The authorities must always take into consideration if enforcement of an expulsion order is potentially feasible.

Outcome:

The appeal was successful and the Regional Court decision cancelled.

Observations/comments:

Case available on the website of the Supreme Administrative Court - www.nssoud.cz

The Court also noted that in the court procedure the requirements of Art 5(4) of the European Convention on Human Rights had not been met, as the review of detention was longer than the maximum limit of detention (180 days).

By stating that police should proceed under the Asylum Act, the Supreme Administrative Court most likely meant that the claimant should firstly have been allowed to ask for asylum and subsequently be transferred into an asylum facility (not detention). However this was not stated explicitly.

The question of feasibility of expulsion in relation to detention has been resolved in further judgments of Supreme Administrative Court. However, it has been rather disparate. Different senates decide the question differently. Therefore the SAC advanced the question to the extended bench under decision n. 7 As 79/2010-134. The extended bench should conclude on the matter of the relationship between expulsion and detention procedures. It should also give its opinion on another issue - to what extend should the police while considering detention look into the protection of family life.