Czech Republic / The Supreme Administrative Court / 5 Azs 13/2013 - 30 O. K. v The Ministry for Homeland Security

Key facts of the case:

The Plaintiff was confined by the police on 20.5.2013 and the very same day an administrative proceeding about his expatriation commenced. On the 24.05.2013 the plaintiff stated that he requests international protection according to s.3 of the Asylum Act. The defendant then issued a decision n.OAM-97/LE-BE-PS-2013, which stated that the plaintiff is obliged to remain in the facility for confinement of foreigners in B.B. until he leaves The Czech Republic, but it can’t exceed 29.9.2013. On 31. 7. 2008 the plaintiff was found guilty by a decision of Prague 1 District Court and sentenced to expatriation for 5 years from the 11. 11. 2008 till the 11.11.2013. However, the plaintiff failed to behave according to the decision and has never left European Union. He had travelled to Italy, France and Germany and then he returned to The Czech Republic on 19.05.2013 from France without a valid visa not knowing that expatriation sentence had not yet expired. The confinement on the 20.5.2013 followed. The Plaintiff filed a suit against the decision of confinement in the Regional Court in Prague. It did rule in favour of the defendant. The Plaintiff appealed to the Supreme Administrative Court. The court stated in its reasoning that the District Court was right about its reasoning as for the interpretation of a term “public order” in s.46a (1) (c) of the Asylum Act. If the plaintiff endangers public order, it is possible to confine him. Then the Supreme Court stated, that endangering the public order here means: “Threat of such a behaviour, that will constitute real, present and enough grave threat to one of the fundamental interests of society. It is also necessary to consider individual circumstances of life of every particular foreigner and consider his life situation”. The administrative court stated that the confinement according to s.46a (1) (c) is in compliance with article 5 (1) of the European Convention on Human Rights and Article 6 of the Charter of Fundamental Rights of the European Union.The appeal was rejected.

Paragraphs referring to EU Charter: 


The Supreme Administrative Court, on the ground of the reasoning above, reached a conclusion, that a provision s.46a (1) (c) of the Asylum Act, even in respect with the case law of the Court of Justice of the European Union and The Supreme Administrative Court, which shall be considered while applying and interpreting this provision, deprives partly or completely a person of a right to liberty in compliance with article 5 (1) of the European Convention on Human Rights and Article 6 of the Charter of Fundamental Rights of the European Union, which has according to Article 52 (3) of the Charter the same meaning and scale of protection as Article 5 of the Convention.

Deciding body (original language): 
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