Estonia, Tallinn Circuit Court, 22 February 2016 3-15-2423

Identification of the case

• Right to liberty and security (art. 6 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Art. 264(2),(5),(6), Code of Administrative Court Procedure (Halduskohtumenetluse seadustik) of 2011
• Art. 361(1),(2)(4), Act on Granting International Protection to Aliens (Välismaalasele rahvusvahelise kaitse andmise seadus, VRKS) of 2005

• Art 8(3), Directive 2013/33/EU

Summary of the case

The applicant who was issued a precept to leave Estonia, applied for an asylum in the time of being detained with his wife and three children in the detention centre. After applying for an asylum he was detained on the grounds of the Act on Granting International Protection to Aliens. In this case the Police and Border Guard Board applied for an extension of the period of the detention of the applicant. According to the application, the applicant presented a risk of absconding. As a matter of fact, wife and children of the applicant were released from the detention centre and arbitrarily left from the accommodation centre to join the woman’s brother in Finland. The Police affirms there were no reasons to believe that the applicant was not going to follow them. The Administrative Court extended the period of the applicant’s detention. In the proceedings of the Administrative Court a court hearing was held, but the appellant did not participate, because there was only one Farsi interpreter in Estonia who was at the moment in a foreign state. In the appeal to the Circuit Court, the appellant claims that his procedural rights have been violated, due to the fact that it abstained from holding an oral hearing. It was not possible to secure the participation of an interpreter in a court hearing because of incapacity of administrative authorities. The Police and Border Guard Board filed the application for extending the period of detention of the applicant after the expiry of terms and there was not enough time to find an interpreter. The Circuit Court held an oral hearing and heard out the appellant by the medium of a Farsi interpreter.

• Administrative judicial enforcement

annulment of the administrative decision

The Circuit Court found that the administrative court violated the obligation to hear out the appellant. The court summons were only sent to his representative and not to the appellant himself. The fact that the only Farsi interpreter was not available at the moment did not preclude the obligation of the Police and Border Guard Board to find alternative ways to secure the applicant an opportunity to participate to an oral hearing. The administrative court should have tried, in cooperation with the Police and Border Guard Board, to find an interpreter from a foreign country (for example through video or telephone conference).

The Circuit Court further eliminated the procedural violation by hearing out the appellant in the hearing in Circuit Court. The Court also concluded that the application of the Police and Border Guard was grounded. Due to previous reasons, the procedural violation of the administrative court does not give grounds to annul its ruling. On the side of the correctness of the content of the permission granted to Police and Border Guard Board, it is important that the representative of the appellant participated in the oral hearing in the administrative court and had the opportunity to protect the interests if his client.

The Court found that Art. 361(2)(4) had to be interpreted in accordance with Art. 8 (3)(b) of the Directive 2013/33/EU. According to Art. 8, an applicant may be detained only in order to determine the elements founding the application for international protection, which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant. At the time of filing the application to court for the extension of the detention period, the applicant had not given the necessary explanations to Police and Border Guard Board. The Court affirms not to have certainty that the applicant does not leave arbitrarily to follow his family to Finland in case of relocation in accommodation centre. At the time of settling the appeal, there was still a need to determine elements on which the applicant´s application for asylum was based.

Role of the Charter and role of the general principles on enforcement

In the ruling there are no reference to the Charter but in the opinion of the author of a present summary the connection exists (Articles 6 and 47 of the Charter).

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to a fair trial

Elements of judicial dialogue

Conform interpretation with EU law as interpreted by the CJEU.

The Court used the interpretation technique and the citation to the EU law to explain the subject matter of the Art. 361(2)(4).

Additional notes on the decision