Country Profile - Czech Republic

Introduction – Legal System
Constitutional Act No. 1/1993 Coll., the Constitution of the Czech Republic (further Czech Constitution)
Resolution of the Presidium of the Czech National Council of the 16 of December 1992 on the declaration of the Charter of Fundamental Rights and Basic Freedoms
Asylum Act - Act No. 325/1999 Coll., on Asylum.,(zákon č. 325/1999 Sb., o azylu)

 
 
 

Introduction – Legal System

The Czech legal system belongs to so called "continental" or civil law legal tradition. Therefore legal acts, and not the judiciary, have the most important and binding role. Legal acts can be divided into constitutional acts (pieces of legislation which have a strict process of adoption) and acts (bills/laws). All constitutional acts and bills (and some decisions of the Constitutional Court) are published in the official Collection of Laws (Sbírka zákonů). Only these laws are binding.

Constitutional Acts stand above all other bills. As regards international treaties (typically those concerning human rights), Acts that are promulgated and ratified with the consent of the Parliament are part of the Czech legal order. If such a treaty states something contrary to a bill, the treaty shall apply.

The main (particularly for the subject of EDAL) and most important documents of constitutional law are:

This document presents the main and most important principles of the Czech legal system, for example the rule of law and governance etc. It also distinguishes the main powers in the state: the executive power, the legislature and the judiciary.

The Charter contains a list of rights very similar to other human rights bills. It includes basic human rights, political rights and to some extent social and cultural rights.

Importantly the Charter also states that the Czech Republic

"shall grant asylum to aliens who are being persecuted for the assertion of their political rights and freedoms. Asylum may be denied to a person who has acted contrary to fundamental human rights and basic freedoms."

This provision, or rather the first sentence, clearly mirrors the provision of the Asylum Act (below). However, it should be noted here, that next to this provision the Czech Republic is also bound by the 1951 Geneva Convention and its Protocol, which forms part of the Czech legal order.

The entrance of foreigners or "aliens" and their residence in the Czech Republic is governed by act no. 326/1999 Coll., on the Residence of Aliens on the Territory of the Czech Republic (Aliens Act)Although there are some situations, typically the entrance and the termination of residence on Czech territory, where the Aliens Act applies even to those seeking international protection, the main piece of legislation for applicants for international protection, refugees and beneficiaries of subsidiary protection is Act No. 325/1999 Coll.,on Asylum., as amended (further the Asylum Act).

The Asylum Act exhaustively describes the procedure for granting and withdrawing international protection, including the procedure for granting  residence permits on these ground, travel documents, integration programmes or issues related to material conditions (health, housing etc.).

Procedure at the Ministry of Interior (MOI)

The responsible body for first instance decisions on international protection is the Department of Asylum and Migration Policy of the Czech Ministry of Interior (further MOI or the Ministry)1.There is only one application for international protection (single procedure) and the MOI decides if some form of protection (asylum or subsidiary protection) should be granted or not. It is also only the MOI which can decide on granting or withdrawing international protection. The appellate body cannot make a decision on an application for international protection (see further appellate procedures).

It should be noted that the procedure for granting international protection belongs to administrative procedures and it is therefore also governed by the general law on administrative procedures - Law No. 500/2004 Coll., Code of Administrative Procedure.2This law has a more detailed provisions on fact finding and assessment, e.g. the obligations of administrative bodies to give reasons for their decisions and how decisions should be reasoned according to law etc.

According to § 3a of the Asylum Act a foreigner or "alien" can express her/his declaration of intention to apply for international protection orally or in writing. Such declaration can be done only in the territory of the Czech Republic (not for example through an embassy). It must be done so either at the police or at the MOI. At the police the foreigner can disclose her/his intention to apply for asylum if she/he is at

a)    the border crossing
b)    at the reception centre
c)    at the department of Aliens Police at Regional Headquarters in case she//he came there voluntarily
d)    in a detention centre (with the exception of those detained for the purpose of return on the basis of a readmission agreement or detained in relation to a directly applicable legal act of the EU3)

In cases where the applicant for asylum is in hospital or in prison the intention can be disclosed to the MOI.

Reception Centre

In practice, persons legally entering or residing in the Czech Republic will go a reception centre and disclose her/his intention to apply for international protection there. Persons coming illegally will have to apply either in a detention centre, or if possible, at the border (typically at an international airport). The applicant should then be transferred to a reception centre. 

However it should be possible, if a person is found to be on Czech territory illegally and declares that she/he wants to apply for asylum, for the police to allow her/him to do so at one of the relevant places without taking her/him into detention. Grounds for detention are very strict and in general the purpose of detention is to enforce an expulsion order (§ 124 of the Foreigners Act). If a person seeks international protection, and the procedure for granting international protection has commenced, the decision on expulsion cannot be enforced by the police at that time.

If not detained or transferred to a reception centre, a foreigner that pronounced their intention to seek international protection in the above mentioned way, can be obliged, within 24 hours, to return to the reception centre by her/his own4means. In this reception centre he/she will file an application for international protection.

At the reception centre the applicant is required to have his/her dactyloscopic finger prints screened and to be photographed in order to verify identity. Furthermore, the applicant is obliged to hand in her/his travel documents and undergo a personal check-up. Personal items are also checked in cases where there is a reasonable suspicion that she/he is hiding something that might be seen as important to the decision making process, e.g.  a travel or another document, or a life or health-threatening substance such as alcohol or some other addictive substance or electronic communication device. Applicants are also obliged to undergo a medical check-up to determine whether they suffer from a disease that is threatening their life or health, or the life or health of other people. Special age tests can also be ordered when the applicant states he/she is a minor.

After performing all these necessary measures, applicants for international protection are transferred to an open residential centre where they await the the first instance decision. The Ministry may also decide on the applicant´s obligation to remain in the reception centre even after all the above-mentioned measures had been carried out (§ 46a of the Asylum Act), for up to 120 days, particularly when their identity has not been confirmed (they have no valid travel document or the travel document is forged), or in cases where they might be a danger to state security or public order. This means that the person cannot leave the centres’ premises. The Ministry should not issue such decisions to applicants that belong to vulnerable groups: families with minors or handicapped children, unaccompanied minors, severely handicapped persons, pregnant women, people who were subjected to torture or rape or subjected to other forms of severe physical, psychological or sexual violence.

Applicants may challenge such a decision at a regional court (same type of court as described below), according to the place of residence of the applicant for international protection, within a deadline of 30 days.

There is a similar obligation for applicants who apply for international protection at the airport (§ 73 of the Asylum Act). Here the MOI can decide that the applicant is not allowed to enter the territory of the Czech Republic and she/he has to stay at the airport reception centre for up to 120 days.

Asylum Interview

In the application for international protection, which in practice is conducted as an interview, an employee of the Ministry writes down answers on given questions. These include factual information about the applicant and her/his family, religious belief etc. Separately the applicant also states her/his reasons that lead her/him to flee the country of origin. Following the application, one or more interviews are conducted with the applicant in order determine the reasons for the application in detail and verify the statements given. Such an interview is again conducted by the employee of the MOI and an interpreter is present. During the procedure applicants have the right to communicate in their mother tongue or in a language they are able to speak. During the entire procedure, they are entitled to an interpreter free-of-charge, costs are funded by the state. If they want, they can invite another interpreter of their choice, however, at their own expenses. In reasonable cases or upon explicit request, the MOI if it is in its capacity, will ensure that the interview is conducted and interpreted by a person of the same sex as the applicant.

The interview is one of the most important steps of the asylum procedure as it is the only space for the applicant to describe the problems she/he faced in their country of origin. Applicants also have the possibility of presenting further evidence to the Ministry to prove their statements during the procedure.

Representation

Applicants older than 18 years have the right to act on their own in the international protection procedure. Minors must be represented, however during the filing of the application they are represented by their lawful representative (father, mother), and if that is not possible, they are assigned a guardianIf applicants cannot act on their own due to their health, the OAMP will assign them a guardian for the procedure. During the procedure applicants are also entitled to request legal assistance from another person or permit this person to represent them during the procedure. This could be a lawyer from the Czech Bar Association (Česká advokátní komora) or a lawyer from an NGO working with refugees and migrants. However no provision of Czech law allows them to be granted free legal aid or free legal representation for the international protection procedure. NGOs offer free legal advice and representation where possible (if there is enough funding secured by them).

During the entire procedure, the applicants for international protection are also entitled to keep in contact with the United Nations High Commissioner for Refugees (UNHCR) or to turn to non-governmental or non-profit organisations dealing with the protection of rights of international protection seekers. They receive a list of such organisations immediately after having made an application for international protection.

Decision

A decision on the application shall be issued by the Ministry within ninety days from the day the person applied for international protection. In cases when it is not possible to make a decision the Ministry may, for reasonable cause, extend the period; however, they must inform all the parties to the procedure in writing immediately 5. The final decision should be received by the applicant themselves, regardless of their elected representative. The decision enters into effect on the date it is delivered to the applicant. The asylum procedure may be terminated by the following:

  1. asylum is granted
  2. asylum is not granted but subsidiary protection is granted
  3. asylum or subsidiary protection is not granted
  4. asylum or subsidiary protection may not be granted (exclusion clause)
  5. asylum application is rejected as manifestly unfounded
  6. procedure on international protection is terminated (i.e. inadmissible repeated applications)

Refugee Status           

The Ministry will grant asylum to the applicant according to § 12 of the Asylum Act, should the asylum procedure conclude that the applicant

  1. has been persecuted for asserting her/his political rights and freedoms, or
  2. has well-founded fear for being persecuted for reasons of race, sex, religion, nationality, membership of a particular social group or political opinion in the country of which he/she is a citizen or, in case of a stateless person, in the country of his/her last permanent residence

The Ministry will also grant asylum according to §13 of the Asylum Act, in cases where it is reasonable to grant asylum to a family member of a recognised refugee who has been granted asylum in accordance to §12 or §14. The Ministry can also grant "humanitarian asylum" in accordance with the §14 of the Asylum Act where, although there are no reasons to grant asylum in accordance with § 12, it is a case requiring special consideration.

In cases when asylum is granted, applicants for international protection are at this moment officially recognised as refugees. They obtain permission to reside in the Czech Republic which entitles them to reside permanently in the territory. Recognised refugees also obtain a special travel document.

Subsidiary Protection Status

The Ministry will grant subsidiary protection in accordance with § 14a to an applicant who does not meet the requirements to be granted asylum but it has established during the procedure that there is an actual risk of serious harm upon her/his return to the state of origin or the state of their last permanent residence. 

The Asylum Act defines serious harm as:

  1. imposition or enforcement of capital punishment,
  2. torture or inhuman or degrading treatment or punishment of an applicant for international protection,
  3. serious threat to life or human dignity by reason of malicious violence in situations of international or internal armed conflict, or
  4. if the fact that the alien leaves the country would contradict international obligations

The Ministry can grant subsidiary protection in accordance to §14b of the Asylum Act to a family member of the beneficiary of subsidiary protection in particular cases. In cases where subsidiary protection is granted, its beneficiaries will obtain a permission card which grants legal residence in the territory of the Czech Republic. This however is limited to the duration of the grant of subsidiary protection (minimum 12 months). Beneficiaries may apply for an extension within a minimum of 30 days before the expiry date. Here the MOI again decides if the actual risk of serious harm still persists and if this is found to be the case, the protection status is prolonged for minimum of 24 months. The Aliens Act also allows, after 5 years of subsidiary protection status to apply for permanent residence. In cases of granted asylum (refugee status) the residence is permanent (no time limits of protection).

Where no reasons were found for granting one of the above-mentioned forms of international protection, the Ministry will issue a decision not to grant, i.e. a negative decision in the matter. The person then receives an exit order and she/he should leave the territory (unless an appeal procedure follows).

Exclusion

The Asylum Act also allows (§15 & 15a) the MOI to decide that international protection (asylum or subsidiary protection) cannot be granted if the applicant:

  1. committed a crime against peace, a war crime or a crime against humanity within the meaning of international documents which contain provisions on such crimes,
  2. committed a serious non-political crime outside the Territory prior to the filing of the application for granting of asylum, or
  3. committed acts that are contrary to the principles and goals of the United Nations

Manifestly Unfounded Applications

The Ministry can reject an application for international protection as manifestly unfounded according to § 16. This occurs for example in cases where the applicant:

  • states economic reasons only, states incorrect information about identity or state citizenship without serious reasons or refuses to provide such information, provides apparently dubious information, with the purpose of creating obstacles preventing an examination of the case
  • applies for international protection merely in order to escape general poverty
  • comes from a state considered as a safe third country or safe country of origin,
  •  damaged or concealed travel documents or any other important document, or presented a forged or tampered travel document or any other important document,
  • or has applied for international protection in order to avoid expulsion

In the case of manifestly unfounded applications, the Ministry the case is assessed in the so-called accelerated procedure, where the decision must be taken within 30 days from the first day of the procedure.

Withdrawn Applications

The MOI can also terminate (discontinue) the procedure according to §25 of the Asylum Act if, for example, the applicant has withdrawn the application for international protection, obtained citizenship of the Czech Republic 6or died; furthermore if the applicant does not attend the interview without a legitimate excuse or fails to provide information necessary for comprehensive examination of the matter or if the applicant has entered a territory of another state illegally or has attempted to enter the territory of another state etc.

Inadmissible Applications

The asylum procedure is also terminated in cases where applications are deemed inadmissible in accordance with § 10 of the Asylum Act. Inadmissible applications are submitted by EU citizens, when other EU member states are competent for its examination or applications where an applicant was granted refugee status by another EU member state or could have found satisfactory protection in the first country of asylum. Inadmissible applications are also such applications that are submitted repeatedly without providing new evidence or information that had not already been provided (for reasons she/he is not to blame) subject to the examination of her/his previous application for international protection.

Appeal Procedure 

Whatever type of the decision (above) is issued by the MOI it can be questioned (appealed) in accordance with the Law No. 150/2002 Coll., Code of Administrative Justice. Code of Administrative Justice states § 65) that:

"Anyone who claims that their rights have been prejudiced directly or due to the violation of their rights in the preceding proceedings by an act of an administrative authority whereby the person’s rights or obligations are created, changed, nullified or bindingly determined (hereinafter “decision”) may seek the cancellation of such a decision, or the declaration of its nullity, unless otherwise provided for by this Act or by a special law."

Therefore, in accordance with this general provision and §32 of the Asylum Act, the asylum seeker can appeal 7against the decision of the MOI to a regional court (krajský soud) according to their registered place of residence. In the appeal it must be declared:

"counts of charges from which it must be clear for which factual and legal reasons the complainant considers the statements of the decision illegal or null."

During the appeal procedure (with suspensive effect) the person remains an applicant for international protection. In practice, if a person obtains a negative decision and is issued with an exit order, after appealing, the applicant’s card for international protection is returned to her/him. She/he then awaits the decision of the court.

Suspensive Effect

The appeal has to be filed within 15 days of receiving the MOI decision. In general it has suspensive effect (automatically, stipulated by the law). It does not have suspensive effect in cases when the procedure is terminated according to § 25 of the Asylum Act (for example inadmissible applications) or when the person has been granted subsidiary protection and the appeal, in part concerns asylum. Secondly it does not have suspensive effect in two cases when application is rejected as manifestly unfounded and when the applicant comes from a safe country of origin or safe third country or has not asked for protection in a country of her/his citizenship. However suspensive effect may still be granted by the regional court if the applicant requests it.

Regional Courts

At the regional courts specialised judges decide on matters of international protection. Hearings are rarely obligatory but have to be ordered if the appellant requests it (§ 51 of the Code of Administrative Justice). The court decides if the decision of the MOI and the pervious procedure was legal and that the rights of the person have not been breached (e.g. right to an interpreter or contact with a lawyer etc.). In practice this means that the court should go through the whole file of the administrative procedure and ensure that the MOI considered all the facts, circumstances and information in accordance with the law (Asylum Act, Code of Administrative Procedure etc.) and that these are also mirrored in the reasoning of the MOI decision. New evidence is allowed in rare cases.

The Code of Administrative Justice also allows for a legal representative to be assigned, including specialised NGOs, if the applicant cannot afford it.

The court then decides if the decision of the MOI is in accordance with the law or not. If it is the former - the appeal is dismissed (and the MOI decision is therefore confirmed). If it is the latter the decision of the MOI is cancelled and the case is returned to further proceedings. In these following proceedings the MOI usually has to gather more information or carryout a new interview and decide on the matter again.

Supreme Administrative Court (SAC)

The applicant (and also the MOI) is also entitled to challenge the negative decision of the regional court by the so-called cassation complaint (in the EDAL case summaries the general term ‘appeal’ is used) to the Supreme Administrative Court. The possibility of such a review by the Supreme Administrative Court was slightly narrowed in 2005 and only complaints that are of general interest (outside the interest of the applicant's case only) will be admissible. However, in practice, the SAC defines situations that belong to such a category widely and tries to look into all complaints that appear to have important grounds (arguable claims of rights breached by the MOI or by the regional court decision). The cassation complaint generally has suspensive effect by law (except cessation complaints submitted by applicants at an international airport and those obliged to stay in a reception centre according to § 46a of the Asylum Act).  

There is usually no hearing at the SAC and the applicant must be represented by a lawyer from the Czech Bar Association (not an NGO as is possible at appeal). However there is the same possibility of assigning the applicant a lawyer if she/he cannot afford it.  

The SAC can either reject the complaint (and this is the final decision in the matter) or cancel the decision of the Regional Court and return it for re-rexamination. It can also cancel the decision of the Regional Court together with the administrative decision of the MOI and return the case directly to the MOI for re-examination. 

To access case law from the Czech Republic on matters pertaining to asylum law please see here.

Permanent residence under section 67 of the Aliens Act

Permanent residency is issued to an alien who resides in the Czech Republic for an uninterrupted period of 4 years of temporary residency after the termination of the international protection procedure under the condition that the last international protection procedure took 2 years. This period includes the appeal procedure and the cassation procedure. The requested length of the stay in the Czech Republic involves staying based on long-term visas,  based on long-term residency permits or based on permanent residency, the period spent in the procedure seeking international protection and the period when an alien was suffering from ill-health on the territory.  
 
Under section 67(2) the alien applying for this permanent residency can only be a minor (under the age of 18), an alien with long-term health deficiencies and a single alien above the age of 65. 
 
Under subpara. 3 the Ministry of Interior has the discretion to grant permanent residency also to parents of minors and aliens with long-term health deficiencies, aliens who are entrusted with a care of minors and aliens with health deficiencies and, finally, aliens who are direct relatives in ascending or descending line with regards to beneficiaries of this permanent residency under the condition that personal care of such an alien is required.
 
An alien can also submit his/her application for this form of permanent residency in case of a "special consideration". 
 
Under subpara. 7, the requirement of uninterrupted stay and the requirement of the last international protection procedure taking 2 years is not applicable to an alien where there is a "special consideration", especially if the alien seeking this form of permanent residency is a minor under the age of 15 years or a health deficiency of the applicant has occurred during his/her stay in the Czech Republic.
 
The procedure is usually initiated by families with minors under the age of 15 as parents can seek family reunion. Other forms of residency permissions concern asylum and subsidiary protection beneficiaries, however, section 67 of the Aliens Act also deals with unsuccessful applicants for international protection, giving families with minors a chance to gain a residency permit.

[1]This department is responsible for migration and asylum policy as a whole, including international protection procedures. It has many separate divisions that handle only a specified part of the migration procedures but decisions are always issued by the MOI (Department of Asylum and Migration Policy).

[2]This and other important documents relevant to administrative procedures and justice are available in English on the website of the Supreme Administrative Court www.nssoud.cz

[3]The Asylum Act refers here to the Dublin Regulation. Here it should be noted that this provision excluding those detained according to readmission agreements or return on the basis of a directly applicable legal act of the EU, is pending a review at the Czech Constitutional Court. The provision was  changed significantly last year and it now excludes for asylum applications only those returning in accordance with a readmission agreement with another EU member state (not for example with the Ukraine or Vietnam, as before.

[4]In some cases the duty follows after the moment the foreigner is released from hospitalisation, custody or prison, he/she is obliged to return to the reception centre.

[5]This provision has been used a lot lately and very few applications are decided in 90 days

[6]In practice this is almost impossible as to grant citizenship a foreigner has to be on the territory with permanent residence. This situation may occur after the birth of a minor asylum seeker where the parent is a recognised Czech citizen.

[7]In the EDAL summaries the term appeal is used as it is general term but the translation of the Code of Administrative Justice uses the word ‘complaint’. Also other terms could also be appropriate, for example ‘action in court’, or ‘suit’ etc.

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Resource category: 
Country Overview
Resource country: 
Czech Republic
Resource date: 
21-02-2014