Changes in Asylum Procedure

The European Parliament and the Council of the European Union adopted Directive no. 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection status (“Asylum Procedures Directive“), which should have been implemented into Czech law to 20 July, 2015. However, so far it has not been implemented. Currently, the bill, which amends the national regulations, especially Asylum and Aliens Act and thereby solves the whole situation, is in the legislative process. The situation benefits neither the fact that the transposition deadline has expired and the procedural provisions of the directive can be invoked directly.

Article 46 paragraph 1 of the Procedures Directive guarantees to the applicants for international protection the right to an effective remedy in front of a court against decision on their application for international protection, rejection of a proposal for a renewed examination of an application and a decision to withdraw international protection status. It also requires that the appeal proceedings before the court of first instance contain a full and ex nunc assessment of facts and law, including a possible assessment of the need for international protection under Directive 2011/95 / EU. According to Art. 51 of the Procedures Directive should be Art. 46 of this Directive is implemented into the July 20, 2015.

Transposition of the procedural directive into Czech law has been addressed by the above mentioned government bill amending Act no. 325/1999 Coll., on asylum, Act no. 326/1999 Coll., On the residence of foreign Nationals in the Czech Republic Act no. 221/2003 Coll., on temporary protection of foreigners, and other related laws. Given the current status of the legislative process it is apparent that the Czech Republic failed to transpose the directive in a timely manner, which results in the direct application of the directive described below.

Currently, the protective mechanism against the decision of the administrative authority in matters of international protection is the action, which is decided upon by the regional courts. According to section 75 subsection 1 of the Administrative Procedure Code, the cassation principle will be used within the proceedings and the regional court decides pursuant to the factual and legal situation which existed at the time of the decision of the administrative authority. This could mean that the status of many months ago would have to be taken in consideration. In contrario, the Procedural Directive is based rather on the principle of appeal, which is different from current provision in the Code. Pursuant to the principle of appeal the court itself can review the evidence and apart from acknowledgement, abolishment or returning for further consideration, it can decide the case with respect to the current facts and legal situation. Nevertheless, the Czech legislator chose another option for the transposition of right of remedy and the principle of appeal is not a part of purposed bill. The reason is the opinion that the current legislation (Section 52 of the Administrative Procedure Code), which sets forth that the court decides which of the proposed evidence will be executed and also look into new evidence, is sufficient.

Nevertheless, the Czech case-law states that decisive are still the conditions of matter at the time of the decision of the administrative authority and that the court can also take into account new evidence to confirm whether the factual status, found out by the administrative authority, was in accordance with the reality or not. As long as the provision which binds the courts to review the matter pursuant to legal and factional situation at the time of court review is missing in the Czech legal system, the Procedures Directive is not properly implemented.

The Court of Justice of the European Union in its case law grants the directives the direct effect in case, when the state incorrectly or not at all implemented the directive in the transposition period. We can understand this institute as a punishment for the member state for the careless approach. The direct effect of the directive gives the private person the opportunity to directly seek the incorrectly or not at all implemented directives. So that a certain provision could have the direct effect, it must be clear, precise and unconditional. Such provisions are those that do not allow wide measure of discretion and there is no need for implementing provision. The provisions of the Procedures Directive meet the conditions and it could be said that persons can ask for their application in court. One question remains, whether the courts have to take into account these provisions ex officio (i.e. themselves). In the case law there is no answer to this question, which makes the court procedure even more uncertain.

In the coming days we can expect many court actions from unsuccessful applicants for international protection, who can seek reassessing of their case in court. Only review of evidence will be not sufficient. It will cause that the whole process of consideration the situation will take place twice, therefore we can expect extension of the time of proceedings. On the other hand the period, during which the applicants for international protection will be able to reside legally on the territory of the Czech Republic, will logically also extend. Only time will tell us, how the Czech courts will manage this task. The indifference of the legislator could bring the Czech Republic sanctions from the European authorities or the applicants to seek their rights in the Court of Justice of the European Union.

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