Czech Republic - Supreme Administrative Court, 17 June 2015, 1 Azs 39/2015 - 56

Country of Decision:
Country of Applicant:
Date of Decision:
17-06-2015
Citation:
1 Azs 39/2015 - 56
Court Name:
The Supreme Administrative Court
National / Other Legislative Provisions:
Czech Republic - Administrative Procedure Code (500/2004 Coll)
Czech Republic - Aliens Act (326/1999 Coll.)
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Headnote: 

The criteria for detention under Article 28(2) of Dublin III Regulation must be assessed against the length and conditions of detention and must be precisely evaluated with regard to the impact on a child. Failure to do so renders the decision to detain unlawful. 

Facts: 

The facts of the case pertain to Kosovan nationals, one of whom was a minor. Before arriving in the Czech Republic they applied for international protection in Hungary. The Czech authorities lodged a take back request under the Dublin III Regulation and subsequently ordered their detention under Article 28(2) of the Regulation on grounds of a significant risk of absconding for a period of 90 days.

Upon appeal against the administrative decision the Brno Regional Court found that such detention did not interfere with the family rights of the applicants, it was not against the best interests of the child as the applicant could, with the permission of the parents, leave at any time and that the detention of the parents was warranted due to the serious risk of absconding in light of the applicant’s intention to leave for Germany.

The applicants subsequently appealed to the Supreme Administrative Court advancing that the Court’s finding that there was no deprivation of liberty of the minor was inconsistent with Article 5(1) of the ECHR and relevant jurisprudence, such as Muskhadzhiyeva and others vs Belgium, which found that a deprivation of liberty occurs when a minor cannot leave the facility as they have nowhere else to go.  De facto detention was therefore imposed on the child and as such against the UN Convention on the Rights of the Child.

Moreover, the decision to detain was in violation of Article 28(2) of the Dublin III Regulation as less coercive means were available. Indeed, the criteria relating to the risk of absconding in national law is imprecise and is therefore in violation of Article 5 of the ECHR. 

Decision & Reasoning: 

The Supreme Administrative Court first assessed the three conditions required to be met under Article 28(2) Dublin III for detention to be lawful. The Court found a risk of absconding in light of the onward journey from Hungary and attempted onward movement to Germany.

With regards to the second criterion, the Court also found that the detention was proportional given that there were no other detention facilities in the Czech Republic and that the family would be kept together. This was also viewed against the serious risk of absconding.

The Court thirdly assessed the requirement of other less coercive alternative measures. Highlighting that the Regional Court had solely engaged with Article 123b of the Immigration Act which does not provide for alternative measures to detention, the Supreme Administrative Court referenced Muskhadzhiyeva and others v Belgium  and Popov v France advancing that both cases do not rule out that detention of minors is unlawful, instead illegality of detention hinges on the suitability of detention conditions for the child. Referencing an Ombudsman report from 2015 which found conditions for children in detention to breach Article 3 ECHR the Supreme Administrative Court found that the criteria for detention under Article 28(2) of Dublin III must be assessed against the length and conditions of detention and must be precisely evaluated with regard to impact on the minor child.

The Court found that the administrative authority and regional court had not taken into account the impact of conditions on the child. Moreover, whilst the regional court denied that any alternatives to detention were open to the applicants other families had been previously transferred out of the facility to a reception centre. As this alternative was available at all times the administrative authority was obliged to take this into account in its decision to detain.

The Supreme Administrative Court concluded that the decision of the regional court, which completely failed to examine the conditions in which the minor was detained in, along with the parents, was unlawful.

Outcome: 

The judgment of the regional court is annulled and the case is referred back for further proceedings.

Observations/Comments: 

This case summary was written by Vladimira Vysna, a student at BPP Law School.

Other sources cited: 

Ombudsman report on conditions in detention following on from a visit on the 13-14 October 2014, Ref. 27/2014 / NZ / IP.