The applicant, a national of the Russian Federation, was apprehended by the Police and Border Guard Board (PBGB) as a supect of illegal border crossing on 27 October 2020. He lodged an application for international protection and was detained by the PBGB on the basis of the Law on the Grant of International Protection to an alien (AGIPA). By order of 29 October 2020, the Tartu Administrative Court granted the PBGB’s application to detain the applicant in a detention centre until the grounds for detention ceased to exist, but not later than 29 December 2020. The court held that, in order to rule on an application for international protection, it is for the PBGB to determine the facts relevant to the proceedings. The applicant appealed and by order of 16 December 2020, the Tartu County Court dismissed the appeal and upheld the order of the administrative court. The applicant appealed before the Supreme Court.

The Supreme Court held that Article 8 (3) of Directive 2013/33/EU provides an exhaustive list of grounds for detention and national law may not extend grounds for detention. Thus, in accordance with Article 8 (3) (d) of Directive 2013/33/EU, § 36 ^ 1 (2) (5) of the AGIPA must be interpreted as meaning that an applicant for international protection can only be detained under this provision if he is already detained in order to enforce the obligation to leave and on the basis of objective criteria and the assessment of the circumstances of the individual case, there are reasonable grounds to believe that the person applied for international protection solely for the purpose of postponing the obligation to leave or avoiding expulsion. 

The Supreme Court also noted that the CJEU clarified that the Directive 2008/115/EC concerns only the return of illegally staying third-country nationals and does not aim to harmonize all national rules governing the stay of aliens in a Member State (CJEU, Case C-329/11 Achughbabian, p. 28). Nor does the Directive preclude the detention of a third-country national in order to determine whether or not he or she is legally present. It is clear from recital 17 in the preamble to the Directive that the conditions of initial detention of third-country nationals suspected of staying illegally in a Member State are governed by national law.

If at the time of the actual detention of the person there are not yet clear circumstances that would justify the detention of the person according to the AGIPA and Directive 2008/115/EC, including the illegality of the person's stay, the detention may be based on § 9 1 the basis for the detention of persons who have crossed the external border illegally in conjunction with § 11 4 (1) of the OLEPA and § 46 of the Law Enforcement Act. It is possible to switch from detention on the basis of AGIPA to detention on the basis of OLEPA, if important circumstances have been clarified and preparations for the deportation of a person are being prepared.

The court concluded that neither the PBGB nor the courts have convincingly justified the existence of a risk of absconding in the present case. The risk of absconding cannot be inferred from the fact that the person concerned also tried to go to Latvia before coming to Estonia and considered moving to Finland. In a situation where the main purpose of the person was to flee from the Russian authorities and did not have any personal links with Estonia, these were rational considerations, which does not mean that the person would like to leave Estonia. On the other hand, the prior correspondence of the person concerned with the PBGB shows that he considered Estonia to be a safe country of destination and was interested in applying for international protection in Estonia. Nor can the risk of absconding be inferred from the fact of irregular border crossing. Furthermore, the view expressed by a person in the judicial proceedings that he wishes to have his application for international protection settled in another country expresses his dissatisfaction with the actions of the PBGB officials, but is not sufficient to establish a risk of absconding. Thus, the court uphheld the appeal and annulled the orders of the Administrative Court and the District Court as regards the detention of the person concerned on the ground of incorrect application of substantive law.