Nejvyšší správní soud
National case details
Registration ID: 10 Azs 122/2015 - 88
Instance: Appellate on fact and law
Case status: Final
Area of law
Relevant principles applied
1 June 2015
Decision, Ústí nad Label District Court
24 September 2015
Request for preliminary ruling, Supreme Administrative Court
15 March 2017
Decision on preliminary ruling Case C-528/15, CJEU
20 April 2017
Appeal rejected, Supreme Administrative Court
Identification of the case
- Right to liberty and security (art. 6 CFREU)
- Paragraph 129, Law No 326/1999 on the residence of foreign nationals in the Czech Republic and amending other laws
- Arts. 6, 52(1), 3, Charter of Fundamental Rights of the European Union
- Recital 9 and Recital 20, Art. 2(n) and Arts. 28(1-3), Regulation (EU) No 604/2013
- Art. 8(1), Art. 8(2) and Art. 8(3)(f), Directive 2013/33/EU
Summary of the case
The facts, as recalled by the CJEU and the referring court, show that Mr. S.A.C. and his two daughters (the Respondents) emigrated into the European Union following ISIL occupation of their village in Iraqi Kurdistan. The Respondents made an asylum application in Hungary, where they were first questioned by the authorities. On 7 May 2015, the Respondents were questioned by the Czech Foreigners Police Section (the Applicant) near Ústí nad Labem, after being stopped while traveling and failing to produce identification documents. Citing a serious risk of absconding, the Applicant detained the Respondents in accordance with Paragraph 129(1) of the Law on the Residence of Foreign Nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Respondents appealed their detention, with the Ústí nad Labem Regional Court ordering their release on the grounds that Czech law did not establish objective criteria for gauging the risk of absconding. After their release, the Respondents left for an unknown destination. The Applicant appealed the decision of the Ústí nad Labem Regional Court at the Supreme Administrative Court, claiming that absence of objective criteria for assessing the risk of absconding in Czech law does not render the Dublin III Regulation inapplicable. There was disagreement as to whether Articles 2(n) and 28(2) of the Dublin III Regulation, together with Paragraphs 129(1) of the Law on the Residence of Foreign Nationals, constituted a sufficient legal basis for the detention of asylum seekers in the absence of objective criteria for assessing the risk of absconding in national law.
- Administrative judicial enforcement
Annulment of the judicial decision of the Ústí nad Labem Regional Court ordering the release of the Respondents.
Does the sole fact that a law has not defined objective criteria for assessment of a significant risk that a foreign national may abscond [within the meaning of Article 2(n) of the Dublin III Regulation] render detention under Article 28(2) [of that Regulation] inapplicable?
In the follow-up judgment subject of this case note, the referring court closely emulated the reasoning of the CJEU in its preceding preliminary ruling. First, the referring court recalled the CJEU’s assessment of the Applicant’s submissions, which cited the directly applicable nature of a Regulation, and suggested that consequently, there was no need for transposition. The CJEU agreed, but noted that direct applicability does not rule out the necessity of implementing measures. Further, the CJEU cited Article 28(2) of the Dublin III Regulation, which explicitly requires objective criteria to be “defined by law”. A reference to Article 8(3)(f) of the Reception Directive also confirmed this finding. The referring court therefore concluded that the absence in national legislation of objective criteria for assessing the risk of absconding (as Paragraph 129(4) of the Law on the Residence of Foreign Nationals had not yet entered into force at the material time) lead to a situation of unlawfulness which rendered the application of Article 28(2) of the Dublin III Regulation void. Second, the referring court recalled the CJEU’s argument that settled administrative practice, even if confirmed by case law, cannot constitute a sufficient legal basis for the detention of asylum seekers. In reaching this conclusion, the CJEU reasoned that due to the unclear nature of the term “law” in Article 28(2) of the Dublin III Regulation, both the wording and the context of the Regulations needed to be relied upon. Noting the recitals of the Dublin III Regulation, the CJEU further stated that the context of the Regulation was that of improving the effectiveness of the Dublin system, and improving the protections offered to asylum seekers. Moreover, the CJEU underscored that under the Regulation detention must be proportional, is justified only where no less coercive measures can be applied, must be as short as possible, and must be based on objective criteria laid down in law. Thus, the CJEU found that any restriction on the right of liberty must be laid down in national legislation and must respect the essence of the right and the principle of proportionality, with Article 5 ECHR providing the minimum standard of protection. Finally, the referring court echoed the CJEU’s reasoning that restricting the right to liberty of asylum seekers is subject not only to the presence of a legal basis, but also to an assessment of the rule’s clarity, predictability, accessibility and protection against arbitrariness. The CJEU further remarked that any legislation authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable to avoid a risk of arbitrariness and bad faith on the side of the authorities. The referring court sided with this conclusion of the CJEU, noting that only a binding provision of general application, containing objective criteria for assessing the risk of absconding, could satisfy these requirements. Consequently, the appeal of the Foreigners Police Section was dismissed as unfounded.
Role of the Charter and role of the general principles on enforcement
In the present case, the Charter of Fundamental Rights has been found relevant for several reasons related to Article 6 and Article 52 of the Charter. These provisions were cited by the CJEU in its preliminary ruling as well as the follow-up judgment of the referring court, which closely emulated the reasoning of the CJEU. Article 6: The CJEU noted on several occasions that limitations to the right to liberty of asylum seekers as enshrined in Article 6 of the Charter may occur, provided that there is a significant risk of absconding. For instance, the Court made a reference to Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) of the same Regulation, to substantiate links to Article 6 of the Charter. There is also a direct comparison between the rights protected in Article 6 of the Charter and Article 5 of the ECHR, both related to the right to liberty. Article 52: The CJEU relied upon Article 52(1) of the Charter when deciding whether the absence of objective criteria for assessing the risk of absconding deemed Article 28(2) of the Dublin III Regulation inapplicable in the present case. The Court used Article 52(1) as evidence for its conclusion that indeed, a general, binding rule of national law was required for Article 28(2) of the Dublin III Regulation to be lawfully applicable. Moreover, the Court relied on Article 52(3) to reiterate that the ECHR, especially Article 5 thereof, would provide the minimum standard in the present case, while recalling that EU law may go beyond this minimum standard.
Law No 326/1999 on the residence of foreign nationals in the Czech Republic and amending other laws
Paragraph 129 […] 4) The police shall decide to detain a foreign national for the purpose of his transfer to a State bound by directly applicable legislation of the European Union only if there is a significant risk of absconding. There is considered to be a significant risk of absconding in particular where the foreign national has stayed in the Czech Republic illegally, has already previously avoided transfer to a State bound by directly applicable EU legislation, or has attempted to abscond or expressed an intention not to comply with a final decision to transfer him to a State bound by directly applicable EU legislation, or if such an intention is apparent from his behaviour. There is also considered to be a significant risk of absconding where a foreign national who is to be transferred to a State bound by directly applicable EU legislation which is not immediately adjacent to the Czech Republic cannot lawfully travel to that State independently and cannot provide the address of a place of residence in the Czech Republic. * Please note: Paragraph 129(4) was undergoing legislative process as a suggested addition to Paragraph 129 at the material time of the reference.
Constitution of the Czech Republic (1993)
Article 3 The Charter of Fundamental Rights and Basic Freedoms forms part of the constitutional order of the Czech Republic.
Charter of Fundamental Rights and Freedoms (1992)
Article 8 (1) Personal liberty is guaranteed. (2) No one may be prosecuted or deprived of her liberty except on the grounds and in the manner specified by law. No one may be deprived of her liberty merely on the grounds of inability to fulfil a contractual obligation. […] (5) Nobody may be placed in custody, except on the grounds and for the period of time laid down in a law, and only on the basis of a judicial decision. […]
Summary – 200 words maximum It ought to be noted that anyone subject to the jurisdiction of a Czech court enjoys protections enshrined in the Czech Constitution and the Czech Charter of Fundamental Rights and Freedoms. The Supreme Administrative Court made its final decision in respect of these fundamental rights as enshrined in Czech law. The ECHR is relevant to the extent that the CJEU preliminary ruling, relied upon substantially in the national case subject of this case note, recalls that it provides for a minimum standard of protection in European law, not only in relation to Article 5 ECHR, read in conjunction with Article 52(3) CFREU, but also the document as a whole. As such, the safeguards for access to justice are amply referenced by the CJEU and referenced by the referring court in the present case. In both the CJEU preliminary ruling and its citations in the follow-up national case, the CFREU is recognised as providing an additional level of protection above the minimum standard established by the ECHR. Moreover, the cited CJEU preliminary ruling also drew on Article 6 to deduce additional criteria under which the detention of asylum seekers is lawful when applying the Dublin III Regulation. Most notably, the contribution of the CFREU to resolving this case may be found in introducing the criterion of proportionality, as laid down in Article 52(1) CFREU.
The Foreigners Police Section claimed in its initial appeal that the absence of a generally binding provision in national law did not preclude the application of Article 28(2) of the Dublin III Regulation, because Regulations are themselves directly effective in the legal systems of EU Member States. Although the CJEU did not dispute this interpretation, it added that a Regulation may still require additional implementing measures on the side of Member States in order to be effective, as per the Court’s rulings in Vlaamse Dierenartsvereiniging (C-42/10) and Janssens (C-45/10 and C-57/10).
In the present case, the principle of proportionality was chiefly applied to the detention of asylum seekers. The references CJEU preliminary ruling referred to Article 52(1) of the Charter to underscore that limitations to fundamental rights are subject to the principle of proportionality. This is also the case in Article 28(2), as well as Recital 20 of the Dublin III Regulation. In effect, the principle of proportionality was discussed as one of the criteria which ought to be present in a generally binding provision of national law governing the detention of asylum seekers, in order to be compatible with European law.
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-42/10, Vlaamse Dierenartsenvereniging and Janssens
- CJEU C-45/10 and CJEU C-57/10, Vlaamse Dierenartsenvereniging and Janssens
- CJEU C-550/14, Envirotec Denmark
- CJEU C-63/15, Ghezelbash
- CJEU C-601/15, N.
- Kruslin v France App no 11801/85 (ECtHR 24 April 1990)
- Mooren v Germany App no 11364/03 (ECtHR 9 July 2009)
- Del Río Prada v Spain App no 42750/09 (ECtHR 21 October 2013)
Preliminary reference; Conform interpretation with EU law as interpreted by the CJEU.
To determine whether the absence in Czech national legislation of objective criteria for assessing the risk of absconding rendered the detention of asylum seekers under Article 28(2) of the Dublin III Regulation inapplicable.
Determination that the absence in Czech national legislation of objective criteria for assessing the risk of absconding renders the detention of asylum seekers under Article 28(2) of the Dublin III Regulation inapplicable, rejection of the appeal of the Applicant by the Supreme Administrative Court.
Additional notes on the decision
Requirement to lay down objective criteria for the assessment of the risk of absconding of asylum seekers in a generally binding provision in order for Article 28(2) of the Dublin III Regulation to be applicable.
The existence of Czech case law and consistent administrative practice concerning the detention of asylum seekers who pose a significant risk of absconding are deemed not to be sufficient to satisfy the criterion of objective criteria laid down in law – a generally binding provision is required.
On the fundamental rights involved: also CFREU, art. 52.