CJEU: Case C-528/15 Al Chodor, Opinion of Advocate-General H. Saugmandsgaard ØE

On 10 November 2016, the Advocate-General H. Saugmandsgaard ØE published his Opinion in the case C-528/15, Al Chodor. 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. 

They appealed to the Regional Court in Usti nad Labem which found their detention unlawful and ordered their release (please see here for the original judgment, and here for an English summary). The court held that the Czech legislation contained no objective criteria defining “risk of absconding” as required by Article 2 (n) of the Dublin Regulation. Therefore, the legislation under Article 28 of the Dublin Regulation was not applicable in the Czech Republic, and the decision to detain the applicants was unlawful. The court referred in its reasoning to similar judgments of the German and Austrian highest courts. The police appealed against the judgment.

On 7 October 2015, the Czech Supreme Administrative Court requested a preliminary ruling from the CJEU, referring the following the following question: “Does the sole fact that a law has not defined objective criteria for assessment of a significant risk that a foreign national may abscond (Article 2(n) of Regulation No 604/2013) render detention under Article 28(2) of that regulation inapplicable?”

In his Opinion, the Advocate-General found that a Member State may not detain an applicant for international protection awaiting his or her transfer to another Member State, where the legislation of the first Member State has not defined objective criteria for assessment of a significant risk that a foreign national may abscond, even if such criteria follow from the judicial and administrative practice of that Member State.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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