Germany – Federal Court of Justice by order of 26 June 2014, V ZB 31/14

Facts:

The applicant, a Pakistani citizen, was detained by the police on the 26 December 2013 after his entry by train as he was not in possession of a passport or another valid document authorising him to cross the border.

A EURODAC data request showed that the applicant had already requested asylum under a false name and a false nationality in Hungary in November 2013. He then travelled to Germany via Italy and France. When questioned by the police he stated his intention to apply for asylum in Germany. The police ordered the applicant’s transfer back to Hungary and requested his detention from the 27 December 2013 until 6 January 2014. The application was granted by the local court. The expressed intention of the applicant to request asylum was referred to the Federal Office for Migration and Refugees by the police on 30 December 2013. The Federal Office for Migration and Refugees requested Hungary to take the applicant back on 2 January 2014.

Upon request by the police the local court extended his detention on 6 January 2014 until 10 February 2014 in order to secure his transfer. The applicant filed a complaint against the decision. On 16 January 2014 Hungary denied the request to take bake the applicant indicating that they already requested Bulgaria to take charge on 12 December 2013.

The district court overruled the detention order and found that the local court’s order had infringed the applicant’s rights since 17 January 2014. However, it dismissed an infringement of the applicant’s rights since 6 January 2014. The applicant appealed in relation to the period of detention since 6 January 2014. 

Decision & reasoning:

The Federal Court allowed the appeal stating that the requirements of Article 28(3) Dublin III Regulation No 604/2013 were not fulfilled.

The Federal Court argued, contrary to the District Court’s position, that detention in accordance with Art. 28 (3) of the  Dublin III Regulation cannot be ordered on the basis of national provisions on the deportation of foreigners.

Whilst this may have been possible under Dublin II, Dublin III Regulation No 604/2013 now provides provisions on the lawfulness of detention for the purpose of  Dublin transfers, namely that detention can only be ordered when the requirements of Art. 28 subsection 3 Dublin III Regulation No 604/2013 are fulfilled. Otherwise the protective purpose of the regulation would be circumvented.

Therefore the Federal Court examined if section 62 (3) first sentence No. 5 of the Residence Act complies with the ‘risk of absconding’ detention ground defined in Art. 2(n) of the Dublin III Regulation. According to this provision there is a risk of absconding when there are reasons, in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third- country national or a stateless person who is subject to a transfer procedure may abscond. The Federal Court stated that this provision is an exception to the principle in EU Law that the content of Regulations shall not be specified by national law. In other words, Art. 2(n) of the Dublin III Regulation No 604/2013 imposes the obligation on member states to set the criteria for the existence of a risk of absconding in the national provisions.

The Federal Court then surmises the divergent opinions on the question as to whether the German national provision complies with EU Law. According to the Federal Government this is indeed the case, whereas the academic community are rather of the opinion that section 62 (3) of the Residence Act cannot be applied to Art. 28 (3) Dublin III Regulation because of the prohibition of analogy on the basis of Art. 104 (1) sentence 1 of the German Basic Constitutional Law. According to this position the national provision lacks objective criteria which determines the existence of a ‘risk of absconding’.

The Federal Court agreed with the latter opinion of the academic community on the basis of the following:

1. A comparison with the wording in the French and English versions of Art. 2(n) of the Dublin III Regulation shows that it was the intention of the EU legislator that the criteria for the existence of a risk of absconding is determined by a parliamentary act. EU Law requires uniform application of its provisions which is why the same interpretation applies to the German version of the Dublin III regulation. Therefore the German national legislation is obliged to regulate the requirements for detention of a foreigner in case of a Dublin transfer in a predictable, measurable and controllable manner.

2. A comparison between the wording in Art. 2(n) of the Dublin III Regulation and Section 62 (3) first sentence No. 5 of the Residence Act shows that the definition of ‘risk of absconding’ in the German provision and the requirements for the existence of a risk of absconding in the Regulation do not differ from each other. In other words, the German definition is  superfluous , it is without further content and can therefore not provide any criteria to determine the existence of a risk of absconding.

The German Federal Court then presented relevant German higher court case law which provided criteria to determine the existence of a risk of absconding. However, the Court noted that the trial judge is still responsible for investigation and assessment of the circumstances that justify the presence of a risk of absconding. Therefore, the trial judge has an extensive margin of appreciation that in the German legal system is only limitedly verifiable by higher courts. In this regard, the Regulation is quite explicit and does not grant any margin of appreciation as it requires objective criteria that is defined by law.

The German Federal Court concludes that because of the previously stated reasons, Section 62 (3) first sentence No. 5 of the Residence Act clearly does not comply with Art. 2(n) of the Dublin III Regulation which is why a preliminary reference to the CJEU is not necessary.

The German Federal Court then examined if the requirements for detention in accordance with Section 62 (3) first sentence No. 1-3 of the Residence Act were fulfilled. It came to the conclusion that this was not the case although Section 62 (3) first sentence No. 2 and 3 complies with the requirements in Art. 28 Dublin III.

Outcome:

Appeal granted.

Observations/comments:

By amending law from 01 August 2015 the legislator implemented the provisions of the Regulation into the German Residence Act. Now Section 62 (3) first sentence No. 5 refers to Section 2 (14) of the Residence Act, which names groups of cases that indicate a risk of absconding.

This summary was written by Layla Ansari, LLM student (IUC Torino)