Czech Republic - Supreme Administrative Court, 17 June 2015, 1 Azs 39/2015 - 56
| Country of Decision: | Czech Republic |
| Country of applicant: | Kosovo |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 17-06-2015 |
| Citation: | 1 Azs 39/2015 - 56 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The criteria for detention under Article 28(2) of Dublin III Regulation must be assessed against the length and conditions of detention and must be precisely evaluated with regard to the impact on a child. Failure to do so renders the decision to detain unlawful.
Facts:
The facts of the case pertain to Kosovan nationals, one of whom was a minor. Before arriving in the Czech Republic they applied for international protection in Hungary. The Czech authorities lodged a take back request under the Dublin III Regulation and subsequently ordered their detention under Article 28(2) of the Regulation on grounds of a significant risk of absconding for a period of 90 days.
Upon appeal against the administrative decision the Brno Regional Court found that such detention did not interfere with the family rights of the applicants, it was not against the best interests of the child as the applicant could, with the permission of the parents, leave at any time and that the detention of the parents was warranted due to the serious risk of absconding in light of the applicant’s intention to leave for Germany.
The applicants subsequently appealed to the Supreme Administrative Court advancing that the Court’s finding that there was no deprivation of liberty of the minor was inconsistent with Article 5(1) of the ECHR and relevant jurisprudence, such as Muskhadzhiyeva and others vs Belgium, which found that a deprivation of liberty occurs when a minor cannot leave the facility as they have nowhere else to go. De facto detention was therefore imposed on the child and as such against the UN Convention on the Rights of the Child.
Moreover, the decision to detain was in violation of Article 28(2) of the Dublin III Regulation as less coercive means were available. Indeed, the criteria relating to the risk of absconding in national law is imprecise and is therefore in violation of Article 5 of the ECHR.
Decision & reasoning:
The Supreme Administrative Court first assessed the three conditions required to be met under Article 28(2) Dublin III for detention to be lawful. The Court found a risk of absconding in light of the onward journey from Hungary and attempted onward movement to Germany.
With regards to the second criterion, the Court also found that the detention was proportional given that there were no other detention facilities in the Czech Republic and that the family would be kept together. This was also viewed against the serious risk of absconding.
The Court thirdly assessed the requirement of other less coercive alternative measures. Highlighting that the Regional Court had solely engaged with Article 123b of the Immigration Act which does not provide for alternative measures to detention, the Supreme Administrative Court referenced Muskhadzhiyeva and others v Belgium and Popov v France advancing that both cases do not rule out that detention of minors is unlawful, instead illegality of detention hinges on the suitability of detention conditions for the child. Referencing an Ombudsman report from 2015 which found conditions for children in detention to breach Article 3 ECHR the Supreme Administrative Court found that the criteria for detention under Article 28(2) of Dublin III must be assessed against the length and conditions of detention and must be precisely evaluated with regard to impact on the minor child.
The Court found that the administrative authority and regional court had not taken into account the impact of conditions on the child. Moreover, whilst the regional court denied that any alternatives to detention were open to the applicants other families had been previously transferred out of the facility to a reception centre. As this alternative was available at all times the administrative authority was obliged to take this into account in its decision to detain.
The Supreme Administrative Court concluded that the decision of the regional court, which completely failed to examine the conditions in which the minor was detained in, along with the parents, was unlawful.
Outcome:
The judgment of the regional court is annulled and the case is referred back for further proceedings.
Observations/comments:
This case summary was written by Vladimira Vysna, a student at BPP Law School.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Aliens Act (326/1999 Coll.) |
| Czech Republic - Administrative Procedure Code (500/2004 Coll) |
Cited Cases:
| Cited Cases |
| ECtHR - Muskhadzhiyeva and Others v. Belgium, Application No. 41442/07 |
| ECtHR - Popov v France, Application Nos. 39472/07 and 39474/07 |
Other sources:
Ombudsman report on conditions in detention following on from a visit on the 13-14 October 2014, Ref. 27/2014 / NZ / IP.