Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Mohamad Zakaria

Case Number: C-12/12

Relevance of Decision

The case is relevant because it clarified the scope of Article 13 of the Schengen Border Code and the right to appeal established therein.

Facts of the case

Mr Zakaria is a third country national with permanent residence in Sweden. He was flying from Beirut to Copenhagen (Denmark) via Riga (Latvia) with final destination Lund (Sweden), because Copenhagen was closer to his home in Sweden. At Riga airport he was stopped for a document inspection and the border guards finally allowed him to enter Latvia’s territory.

However, due to the inspection, Mr Zakaria missed his flight to Copenhagen. Moreover, Mr Zakaria complained that the inspection occurred in an offensive and provocative manner, which violated his human dignity. Consequently, he lodged a complaint with the Head of the State border control and sought compensation for non-material harm. The Latvian authorities dismissed his complaint for compensation. Mr Zakaria appealed before the Local Administrative Court, the Regional Administrative Court of Appeal. His appeal was declared inadmissible because under national law it was not possible to appeal the decision of the Head of the State border control before ordinary courts and, hence, lacking the main action, it was also not possible to bring action for the damages connected to the same entry. Mr Zakaria appealed the decision before the Supreme Court. The Supreme Court finally decided to refer the case before the CJEU.

Legal Questions

The legal questions arising from this case are the following:

  1. whether Article 13(3) of the Schengen Border Code provides persons with a right of appeal not only against a decision refusing entry into a Member State, but also against infringements committed in the procedure leading to the adoption of a decision authorising entry.
  2. whether, if the answer to the first question is in the affirmative, the abovementioned provision requires the Member State to guarantee an effective remedy before a court or before an administrative body which, from an institutional and functional perspective, provides the same guarantees as a court.

Court Findings

With regard to the first question, the CJEU clarified that Article 13(3) of Schengen Borders Code obliges Member States to establish a means of obtaining redress only against decisions to refuse entry.

The CJEU, however, did not reply to the other questions, as these were raised solely in the event of a positive reply to the first one and the referring court did not provide sufficient element for the CJEU to decide the case.