CJEU Judgment: Case C-528/15 Al Chodor, 15 March 2017

Wednesday, March 15, 2017

On 15 March 2017, the CJEU has delivered its judgment in case C-528/15 Al Chodor, which relates to the interpretation of Article 28 of the Dublin III Regulation on the conditions of the detention of asylum seekers pending a transfer to another Member State. The case relates to an Iraqi male and his two minor children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act. The detention was challenged before a Regional Court, which ruled it to be unlawful since the Czech legislation contained no objective criteria defining “risk of absconding”, despite the existence of settled case-law on the matter. After an appeal against the Regional Court’s decision, the Supreme Administrative Court referred a question for a preliminary ruling on the need for objective criteria in the legislation to define a ‘risk of absconding’.
To reach its conclusion, 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, Article 2(n) of the Dublin III Regulation requires the criteria to establish a ‘risk of absconding’ to be ‘defined by law’. The Court understood that, since there are different language versions qualifying the scope of the term ‘law’ (some referring to law in the general sense, while others referring to it in a stricter sense, i.e. legislation), the meaning should be ascertained by referring to the purpose and general scheme of the rules. It noted that the meaning of Article 6 of the Charter of Fundamental Rights should be defined in light of the established case-law of the ECtHR, which requires any measure on deprivation of liberty to be accessible, precise and foreseeable.
The CJEU concurred with the Opinion of Advocate General Øe that 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 Court ruled that the 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) is inapplicable and detention on this ground must be declared unlawful.


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