The applicant, a Belarusian national, arrived in Estonia after he was refused international protection in Lithuania and a decision was taken to expel him from Lithuania. On 25 December 2021 the person arrived in Estonia in order to avoid being placed in the centre of asylum seekers in Lithuania and deported to Belarus.

The applicant was detained in Estonia by the Police and Border Guard Board (PBGB) on 4 January 2022. On 5 January 2022, the PBGB detained the applicant on the basis of Article 28(2) of the Dublin III Regulation as an application for international protection was also lodged with Lithuania and the PBGB considered that there was a risk of absconding. On 7 January 2022, the person lodged an application for international protection with the PBGB based on political reasons.

On review of the detention in Estonia, by order of 7 January 2022, the Tallinn Administrative Court granted permission to detain the person due to a risk of absconding. On 11 February 2022, the Tallinn Circuit Court dismissed the appeal brought by the applicant, confirming that there was a risk of absconding. The Circuit Court also agreed with the Administrative Court that the person concerned submitted an application for international protection on 7 January 2022 with the aim of preventing removal from Estonia, as the application for international protection was submitted after the Tartu Administrative Court, by order of 6 January 2022, granted permission to place him in a detention centre and it became clear to him that he would be expelled to Lithuania during the surrender procedure. The court also noted that in view of the identified risk of absconding, the application of less stringent supervision measures cannot be considered effective either.

The applicant lodged a further appeal before the Supreme Court. The PBGB argued that it was necessary to detain the person because a transfer procedure under the Dublin III Regulation was initiated and it intended to make a take back request to Lithuania in respect of the person concerned. The PBGB noted that it did not indicate that the purpose of detention (transfer to Lithuania) would have changed after the person lodged an application for international protection in Estonia. The PBGB further noted that there was no need to submit a new application for authorisation to the administrative court, since the administrative court had already granted permission to detain the person concerned for the same purpose on the previous day.

The Supreme Court agreed with the courts that, in the case of the person concerned, there were grounds for detention and placement in a detention centre. The court noted that it had previously clarified that if the person whose detention is requested by the PBGB for the purpose of transfer to another Member State is an applicant for international protection, that person may be detained on the basis of Section 36.1 (2)(7) of the Act on Granting International Protection to Aliens (AGIPA) only if there is a significant risk of absconding and the other conditions laid down in Article 28 of the Dublin III Regulation are met (Decision No 3-20-1943/36 of 8 June 2021 of the Administrative Chamber of the Supreme Court).

The Chamber agreed with the courts that, taking into account the background and past behaviour of the person concerned, there was a risk of absconding which was significant given his unauthorised departure from Lithuania in order to avoid being placed in a centre for asylum seekers there and subsequently deported to Belarus and his unwillingness to return to Lithuania. The court argued that the detention of the person concerned for the purpose of transfer to Lithuania was proportionate and that less severe alternative coercive measures were not available.

However, the Supreme Court did not agree with the view of the courts that the person concerned could be detained on the basis of Section 361(2)(4) and (5) and considered that since the PBGB requested that the person concerned be detained for the purpose of transfer to Lithuania, he could only be detained on the basis of Section 36.1 (2)(7) of AGIPA.

The appeal was partially dismissed and the court amended the grounds of the order of the circuit court in the part by which the circuit court found that detention of a person is also justified on the basis of Section 36.1 (2) (4) and 5) of the AGIPA.