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

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.