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CJEU - Case C-528/15, Policie ČR,Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Salah Al Chodor, Ajlin Al Chodor, Ajvar Al Chodor
Objective criteria to define a ‘risk of absconding’ must be established in a binding provision of general application. In the absence of that, Article 28(2) of the Dublin III Regulation is inapplicable and detention on this ground must be declared unlawful. The existence of case-law confirming a consistent administrative practice by domestic law-enforcement authorities does not suffice to conform to Article 28 of the Dublin III Regulation.
The Al Chodors, who are Iraqi nationals of Kurdish origin, travelled via Turkey to Greece and, while in Hungary, were stopped and fingerprinted by the police. With the aim of joining family members in Germany, they continued their journey but were stopped by the Czech police and detained under Paragraph 129(1) of Czech Law No 326/1999, read in conjunction with Article 28(2) of the Dublin III, i.e. to secure transfer procedures under the ground of a “serious risk of absconding”.
The Czech police determined the existence of a ‘serious risk of absconding’ on the basis that the Al Chodors did not have a residence permit nor accommodation in the Czech Republic, had previously absconded and intended to travel to Germany.
The Al Chodors successfully appealed against the detention decision: a Czech Regional Court ruled the detention unlawful as the Czech legislation did not lay down the objective criteria for the assessment of a risk of absconding.
The Foreigners Police Section appealed on a point of law before the Supreme Administrative Court, arguing that the provision conditioned the assessment of a “risk of absconding” to three aspects: the need for an individual assessment, the proportionality of the decision, and the impossibility of employing a less coercive measure. Therefore, the Supreme Administrative Court submitted the following question to the CJEU for a preliminary ruling: does the sole fact that a law has not defined objective criteria for assessment of a significant risk of absconding render detention under Article 28(2) of the Dublin III Regulation inapplicable?
First, the Court recalled that, despite having immediate effect in the national legal systems, some of the provisions of Regulations may necessitate the adoption of measures by national authorities for their implementation. In that sense, the definition of the criteria to assess a “risk of absconding” is a matter for national law.
Second, the Court had to determine if the word “law” in Article 2(n) (which requires the criteria to assessing a risk of absconding to be “defined by law”) can be understood as including settled case-law which confirms a consistent administrative practice. The CJEU noted that the Dublin III Regulation provides greater guarantees in relation to detention than did the Dublin II Regulation, highlighting the greater focus of the EU legislature on the judicial protection of applicants (as per Ghezelbash, para 33). Detention under the Dublin III Regulation must be proportional and is only justified where other less coercive measures cannot be applied effectively. Additionally, Article 6 CFR read in the light of the ECtHR interpretation of Article 5 ECHR sets forth that any deprivation of liberty must be sufficiently accessible, precise and foreseeable. By analogy, these safeguards are to be in place when identifying a risk of absconding, which is the basis for detention. To the CJEU, it follows from the reasoning above that only a provision of general application could meet such requirements.
Therefore, the CJEU concludes that settled case-law confirming a consistent administrative practice, such as that on the part of the Czech Foreigners Police Section, cannot suffice to conform to Articles 2(n) and 28(2) of the Dublin III Regulation. The objective criteria to assess a “risk of absconding” must be established in a binding provision of general application and, in the absence of such provision, detention on this ground is unlawful.
Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. The absence of such a provision leads to the inapplicability of Article 28(2) of that regulation.
The findings were in line with the Opinion of Advocate General Øe.
On the same day of the decision, the UK Home Office issued a regulation laying down the criteria to be considered when identifying a significant risk of absconding in the UK, thus acting in accordance with the Al Chodor decision.
Al Chodor has been cited amongst many District Courts in France who have found domestic legislation to not sufficiently define the objective criteria of a risk of absconding under Article 2(n) DR III. The Courts have found the detention to, therefore, be unlawful (TGI Paris 17/01187; TGI Douai 17/00400 18 March 2017; 17/00401 TGI Lille 18 March 2017).
ECtHR, Kruslin v France, Application No 11801/85
ECtHR - Mooren v. Germany [GC], Application No. 11364/03
CJEU - Case C-601/15 PPU, J. N. v Staatssecretaris van Veiligheid en Justitie
CJEU - C-550/14, Envirotec Denmark, 26 May 2016, EU:C:2016:354
CJEU - Joined Cases C 42/10, C-45/10 and C-57/10, Vlaamse Dierenartsenvereniging and Janssens, 12 April 2011, EU:C:2011:253
Austria - Administrative Court: Verwaltungsgerichtshof, 19 February 2015, Case RO 2014/21/0075/15
Del Rio Prada v Spain (no. 42750/09), 21 October 2013