Czech Republic - S.A.CH, A.A.CH. and A.A.CH. v. Police of the Czech Republic, Regional Directorate of Ústí nad Labem, 42A 12/2015-78

Facts:

The applicant was detained by the national authorities together with his two minor children under § 129 (1) of the Aliens Act taken together with Article 28(2) of the Dublin Regulation. The applicant filed a claim to quash the detention decision of the police arguing that § 129 (1) of the Alien Act does not contain a list of objective criteria for determining a serious risk of absconding as required by Art. 2(n) of the Dublin III Regulation. 

Decision & reasoning:

First, the Court decided that the minor applicants had locus standi and were parties to the proceedings concerning the restriction of liberty of their father, since their right to family life could be directly affected by the outcome of the proceedings, despite the fact that they were formally not deprived of their liberty.

Second, the Court addressed the material issue regarding whether the applicant could be detained under § 129(1) of the Aliens Act taken together with Article 28(2) of the Dublin Regulation, if national law did not set out objective criteria for determining the existence of the serious risk of absconding.

The Court started by stating that under Article 2(n) of Dublin regulation the “risk of absconding” had to be based on reasons which were supported by objective criteria set out by law. Then it continued by performing a comparative language analysis of the provision to determine that the criteria had to be set out in the form of “law”, and not any other subordinate legal norm.

Although in general EU Regulations do not require transposition into national law, due to its formulation the given provision of the Dublin Regulation is an exception to the rule - it obliges Member States to establish objective criteria for assessing the risk of absconding in national law.

The Court then proceeded to assess whether § 129 (1) of the Aliens Act contained the required list of objective criteria. Textual analysis showed that it did not. Teleological analysis demonstrated that according to the national provision, unless the alien entered and resided in the country irregularly, it would be impossible to detain him under Article 28 of the Dublin Regulation at all. Provided that irregular entry and residence were considered to be the only objective criterion necessary, in all cases where the national law required assessment of the possibility of detention under the Dublin Regulation, the risk of absconding would exist. Such interpretation could not be accepted as it was purely self-serving. Furthermore, this law had been adopted before the Czech Republic became a member of the EU and thus was certainly not a reaction to the obligations under the Dublin Regulation.

Since the national law does not outline objective reasons for assessing the risk of absconding, the legislation under Article 28 of the Dublin Regulation is not applicable in the Czech Republic, and thus the decision of the defendants was unlawful. 

Outcome:

Application granted. 

Subsequent proceedings:

The police have appealed the judgment and the case went to the Supreme Administrative Court (SAC).

The 10th senate of the SAC decided to stay the proceedings and refer the case to the CJEU for the preliminary ruling with the following question:

Does the sole fact that the law did not define objective criteria for assessment of the serious risk of absconding [Art. 2 (n) of the Reg. no. 604/2013)..] result in the inapplicability of the institute of detention under Art. 28 § 2 of the Dublin Regulation? (unofficial translation).

The SAC argues that the “law” is not only the legislation but also judicial and administrative practice. According to SAC the practice of the Czech police with regard to detention of foreign nationals under Article 28 of Dublin Regulation was foreseeable, not arbitrary and based in law as interpreted by SAC. According to SAC, it would be overly formalistic to require a legislative definition of serious risk of absconding and such definition would not enhance the legal certainty of foreign nationals in any way.

The whole decision is available here: http://www.nssoud.cz/files/SOUDNI_VYKON/2015/012210Azs_1500088_20150924125155_prevedeno.pdf

It is worth noting that this judgment was also followed by other courts on both the municpal and regional level:

Observations/comments:

According to the Court, this decision is the first of its kind in the Czech Republic, as the previously decided cases only concerned situations where the national authorities did not assess the risk of absconding properly or where they did not assess it at all. This is the first decision that addresses the lawfulness of the provision. 

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.

The case summary was proof read by OPU.