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Czech court says asylum seekers must not be detained, Interior Ministry disagrees

7.8.2015 21:40
The Bělá-Jezová foreigner detention facility in the Czech Republic. (PHOTO:  Google Maps)
The Bělá-Jezová foreigner detention facility in the Czech Republic. (PHOTO: Google Maps)

The Czech Police are not permitted to detain asylum seekers in refugee camps on the basis of suspicion that they might pose a flight risk as stipulated by the European Union's Dublin Regulation. Wednesday's edition of the Czech daily Lidové noviny reported that the Regional Court in Ústí nad Labem has ruled against the practice.    

The EU regulation requires states to define the concept of a "flight risk" for themselves, which the Czech Republic has yet to do. According to the daily, police give the Dublin Regulation as the reason most asylum seekers in the Czech camps are being detained.  

The Czech Interior Ministry, however, is insisting that the police are justifiably detaining asylum seekers on Czech territory without authorization. The ministry has been defending itself against repeated court decisions against it on the matter by filing cassation complaints arguing that other jurisprudence backs the police procedure.

Iraqi man detained with his two young daughters wins case

The Regional Court in Ústí nad Labem reviewed the case of an Iraqi man who was traveling through the Czech Republic with his two young daughters to visit relatives in Germany. In May police arrested the family and detained them in the camp at Bělá pod Bezdězem.  

Police justified the detention by referring to the Dublin Regulation, which requires asylum-seekers be returned to the country where they first entered the Schengen Area. The Iraqi man filed suit, won his case in June, and was subsequently released.

The former detainee is now with his relatives in Germany. In its verdict, the court said the case was the first time an objection had ever been filed against the use of the Dublin Protocol on the basis of its lack of grounding in Czech domestic legislation.  

Previous lawsuits just complained about the course of the administrative procedure, not its basis, the daily reports. This means other migrants also can appeal on the basis of the verdict - of the approximately 500 asylum seekers in two detention camps, Bělá pod Bezdězem  and Zastávka near Brno, most have been detained precisely on the basis of being a "flight risk" per the Dublin Regulation, according to police.  

Interior Ministry: Courts rule differently on similar cases, police are justified in detaining asylum seekers

According to the Interior Ministry, the Police are following the law on the residence of foreign nationals, which among other things establishes that "police shall detain, for the necessary amount of time, a foreign national who has entered into or resided on the territory of the Czech Republic without authorization." The ministry also said it is aware of other decisions made by administrative courts this summer which have also concluded in three specific cases that the current Czech legislation does not thoroughly reflect the Dublin Regulation.    

"However, it is necessary to point out that these are just decisions in specific cases that are not of a precedential nature and that it would, therefore, be preliminary at this moment to apply any particular court decision from an individual case across the board to all cases. The Police of the Czech Republic have filed cassation complaints against those verdicts and the Supreme Administrative Court has not yet made a decision on those complaints. That is why the Interior Ministry and the Police of the Czech Republic are continuing to proceed in accordance with the existing law and the practices that work," said ministry spokesperson Lucie Nováková.  

"What is essential, though, is the fact that the courts are making different decisions about similar cases. The Interior Ministry has a verdict from the Regional Court rejecting an illegal migrant's complaint in a similar case, and it also has a standpoint issued by the Supreme Administrative Court on a cassation complaint from June 2015 stating that a detention performed per the Dublin Regulation was correct," she said.  

Czech Television asked the Supreme Administrative Court about that claim. The court told them it has never provided any such commentary on such a verdict.

Association for Immigration Law:  Asylum seekers are not supposed to end up in prison facilities

Lawyers from the Association for Immigration Law are convinced that persons seeking asylum in EU countries should not end up in detention facilities under a quasi-prison regime after being detained in the Czech Republic. These lawyers believe asylum seekers should wait for their formalities to be handled in refugee centers with looser rules.    

"A facility for the detention of foreign nationals is not primarily intended for asylum seekers. It is the final stop for those whom the Czech Republic wants to deport after they have resided illegally on Czech territory for a long time," Jiřina Neumannová, a lawyer with the association, told the Czech News Agency.    

In such a facility, detainees must hand over their mobile telephones and money to the authorities and are locked into their sleeping quarters from the outside. At a reception center, however, people are able to move freely in an enclosed campus, while at a residential center they are even able to access the outside world after being granted permission, the lawyer said.

She pointed out that currently even children are being housed in detention facilities. According to the head of the refugee facilities administration, Miloslav Koudelný, the children are not considered detained in such facilities but are just "accommodated together with the detained" adults, and families are eventually moved from such facilities to centers that are more relaxed.    

The Aliens Police, according to its head, Milan Majer, apprehended mainly economic migrants from Kosovo traveling west through Czech territory at the beginning of the year. Now the detainees are mainly people from Afghanistan, Iraq, Pakistan and Syria.  

Detainees who have requested asylum in another European country are returned to that country by the Czech Republic under the Dublin Regulation. Hungary, however, has temporarily halted its reception of such returnees as it is not managing to keep up with the influx of asylum seekers.  

The Czech Government has decided to receive 1 500 refugees by the end of 2017. Roughly 1 100 of them are supposed to be from EU countries dealing with large-scale onrushes of immigrants.

According to the Association for Immigration Law, the Czech Republic could, for example, aid overwhelmed Hungary, which has tens of thousands of asylum seekers, right now. Neumannová said she believes asylum seekers in Hungary now have very slim chances of being granted protection.

The Czech Republic, in her view, should not wait to successfully return asylum seekers there, but should provide protection to some people now. "That would be a humanitarian gesture toward these people and a gesture of solidarity to Hungary and other EU states overburdened by asylum seekers," the Association said.  

Both Czech laws and the Dublin Regulation would permit such a move, according to the Association. Such an approach would be more constructive than repression.  

After their deadlines expire, asylum seekers detained in the Czech Republic are released. They are then supposed to transport themselves to Hungary or elsewhere.

Customarily they do then leave the country. "These people disappear somewhere. They will wander around Europe. They will be moving outside of the system, and the consequence of that could be a problem. Closing our eyes to reality aids nothing," Neumannová said.  

The Czech Interior Ministry has announced that it does not have enough capacity in its detention facilities for foreign nationals. Despite criticisms of them, it will therefore gradually be opening up other detention facilities with strict regimes and a capacity of several hundred beds, including one in the building of a former prison.

The Dublin system is the name of a mechanism operating within the EU Member States, Iceland, Lichtenstein, Norway and Switzerland, through which a single state is designated to handle a foreign national's request for international protection no matter which country the request was filed in. The aim of the system is to eliminate situations in which proceedings on a foreign national's request are conducted either simultaneously or in serial fashion by several states to which the foreign national has intentionally relocated for that purpose.

The system is also supposed to prevent a situation in which no state takes responsibility for examining an individual's request for international protection. For those seeking international protection, the Dublin system generally means the applicant has the right to have a request evaluated only in one state.

The Dublin system arose from the need to legislate rules for asylum seekers after the first Schengen Agreement on freedom of movement was signed in 1990. In that same year the "Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities", the so-called Dublin Convention, was adopted and entered into effect in 1997; the states that were party to it at the time were all of the EU Member States, Iceland and Norway.

In 2003 a regulation establishing the criteria and mechanisms for determining the state responsible for examining an individual's application was adopted (so-called Dublin II), and in 2007 many changes were proposed to the system, which resulted in the adoption of a new regulation (so-called Dublin III), which took effect on 1 January 2014. The currently applicable regulation establishes a set of criteria according to which the State is designated for deciding an asylum request.

Those criteria include, for example, the asylum seeker's family ties, whether the applicant holds a residence permit or visa in a particular state, whether the applicant entered a state's territory without authorization, and whether the applicant is seeking asylum for the first time. Each state can, either for humanitarian reasons, or at the request of another state, or on the basis of its own decision, for any reason, take over the processing of an asylum seeker from another state and examine the request for international protection even if the asylum seeker does not meet the criteria for asylum.

Dublin III also regulates the mutual communications between states for the purpose of a Dublin proceedings, the deadlines for each task within the framework of the proceedings, the deadlines and rules for the transfer of persons between states, etc. It expressly regulates the right of the applicant to information and the option for one state to receive information about an asylum seeker from another state under strictly established conditions.

The system basically means that the country through which an asylum seeker first enters the EU or where the asylum seeker is living bears the main responsibility for handing asylum requests and has been targeted for criticism in recent years primarily by the southern countries of the European Union, which complain that they must receive a disproportionate number of refugees. Critics believe the Dublin system is out of date and unfair to the border states of the EU even as it privileges the interior and northern states. 

ČTK, ryz, translated by Gwendolyn Albert
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Cizinci, Ministertsvo vnitra, Policie, Soud, refugee



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