19 September 2023
The webinar started by welcoming the participants. It was stated that the workshop is part of the Central European Professors’ Network project, which is coordinated by the Central European Academy, an institution established by the University of Miskolc in Hungary. This was followed by the presentations of the workshop participants.
Tereza Kučerová, a doctoral student and judge of the regional court in Čeky Budějovice, was the first to speak. The topic of her paper was: Deciding on an application for the granting of a residence permit in a situation where classified information is the basis for the decision. In her presentation, the colleague focused on situations where classified information plays a crucial role in deciding on permanent residence for foreigners. Often it is information that concerns the key public interests of the Czech Republic, such as the security and sovereignty of the Republic, the threat of terrorist attacks, cyber security and others. For these reasons, the number of subjects having access to the given information is limited, which on the one hand is completely logical, on the other hand the access of foreigners to this data must be solved as well as the access of administrative bodies and courts that subsequently make decisions. An analysis of the relevant case law was also a part of the presentation.
The second speaker was Šimon Otta, internal doctoral student and assistant judge of the Supreme Administrative Court of the Czech Republic. His paper was devoted to the issue of protection of the Czech Republic against illegal migration. The colleague carried out a thorough analysis of legal regulations and instruments that are supposed to help in the fight against illegal migration. He focused on both constitutional regulations and laws. Examples of the practical use of these tools were also given, and the decision-making activity of the courts was not neglected either.
This was followed by a presentation by a member of the project’s research team, Kateřina Frumarová, who works as an associate professor at the Department of Administrative Law at the Faculty of Law of the Palacky University in Olomouc. The topic of the paper was: Specifics of judicial protection in matters of international protection in the Czech Republic. In the Czech Republic, the procedure for granting asylum (respectively international protection) is a single-instance administrative procedure. Therefore, judicial protection has a very important position in these proceedings. This is provided to unsuccessful applicants for international protection within the framework of administrative justice, first in the form of a lawsuit against the negative decision of the Ministry of the Interior and then in the form of a cassation complaint to the Supreme Administrative Court. In addition to the specifics of this judicial protection, the main attention was devoted to the analysis of the so-called inadmissibility of the cassation complaint. If the cassation complaint does not significantly exceed the complainant’s own interests (that is, the unsuccessful asylum seeker), the Supreme Administrative Court will reject it without dealing with the merits of the case and the substance of the cassation complaint.
The paper concentrated on the very essence of the institution of an inadmissible cassation complaint, its consequences, as well as its introduction within the framework of the decision to grant international protection. The analysis also addressed the question of what the meaning of the institution of inadmissibility in the broader context of an administrative judicial protection is and whether its anchoring specifically to the matters of international protection is appropriate and justified. Furthermore, it was also examined whether this significant limitation of judicial protection does not curtail the rights of applicants for international protection, i.e. whether it is a procedure compatible with constitutional and international legal standards in this area.
Although the primary impetus for its adoption was the effort to reduce the enormous burden on the Supreme Administrative Court and the related delays in proceedings, I think its meaning and functions should be evaluated more on a conceptual level. In my opinion, more judicial instances certainly do not mean a greater level of judicial protection. Further review does not necessarily increase the effectiveness of a legal protection, on the contrary – it can lead to delays in proceedings and the negation of effective legal protection, which should mean, among other things, speed. The inadmissibility lies in the selection of cases with a certain jurisdictional overlap. The inadmissibility is left to the Supreme Administrative Court to assess for itself which cassation complaints it will deal with meritoriously. I think that this is a logical and reasonable opinion, where unacceptability can be considered a legal tool that maintains a balance between the interest in justice in each individual case and the interest in the effectiveness of the objective law. After all, this fact is also evidenced by the fact that from 2021 the inadmissibility of cassation complaints was significantly extended outside the area of international protection. The current Section 104a of the Code of Administrative Justice provides: If a cassation complaint in matters in which a specialized single judge decided before the regional court does not substantially exceed the complainant’s own interests, the Supreme Administrative Court will reject it as inadmissible. It is therefore an institute that has its justification and future within the concept of administrative justice in the Czech Republic. From de lege ferenda point of view, I think it is an institution that has its justification and future within the broader concept of administrative justice in the Czech Republic (not only within the framework of the asylum agenda). In my opinion, the prospective decision-making model of higher courts should continue to be reflected more in the Czech judiciary. The Czech judiciary is multi-instance, so there is no reason why the activities of the highest courts should not primarily focus on ensuring the uniformity of decision-making and the interpretation of key legal problems and issues.
In this presentation, statistical data was also provided, which related to the frequency of lawsuits and cassation complaints in asylum cases. Attention was also paid to the degree of (un)success of appeals submitted by asylum seekers to Czech courts.
In the following presentation, attention was paid to the concept of the so-called safe country in the light of the Czech Asylum Act. The presentation was given by my colleague Adéla Hepová, who is an internal doctoral student and at the same time served as the chairperson of the Misdemeanour Commission in the past. Attention was paid to the essence of the concept of safe countries. Furthermore, it was explained what procedural consequences the application of this concept has for asylum seekers and how this institute is applied in the Czech regulation of the asylum procedure. As part of the discussion, attention was also paid to the so-called territorial exceptions to this concept, which represent a controversial aspect. At present, the admissibility of exceptions is even addressed by the Court of Justice of the EU.
The penultimate presentation was devoted to the temporary protection of refugees from Ukraine in the territory of the Czech Republic. The contribution was prepared by a doctoral student and at the same time a regional office worker, Roman Kočí. The paper presented the concept of temporary protection, its legal basis, function and essence. Furthermore, it was analysed how this protection is provided to Ukrainian refugees in the Czech Republic and what rights and opportunities it brings to them during their stay in the Czech Republic. Problematic aspects of the current practice were also pointed out.
The last presentation was about a subjective but very interesting issue related to the provision of a free legal assistance to refugees. The paper entitled „Changes in the Provision of Free Legal Aid to Refugees in the Czech Republic – Comparison of the Legal Status before 2023 and in 2023” was presented by Štěpán Vencl. The colleague is an internal doctoral student and simultaneously works as a lawyer (attorney). In his presentation, the colleague paid attention to how and by which entities free legal aid was provided to refugees in the Czech Republic before 2023. The regulation at that time was much more friendly to refugees, free legal aid could be provided mainly by non-governmental and charitable organisations that dealt with the issue of migration and asylum. Subsequently, the colleague emphasized that in 2023 there were fundamental and negative changes in this area. In essence, the conditions for awarding free legal aid were changed in such a way that the aforementioned entities were excluded from the possibility of providing free legal aid. On the contrary, it can be provided by law firms, but they do not often specialise in the field of migration and asylum. As part of the discussion, it was stated that these areas should not be a matter of profit and lobbying. Primarily, the protection of the rights and freedoms of migrants and the best possible standard of assistance for these persons should be taken into account.
Each of the above presentations was followed by a short discussion by the participants of the scientific workshop. It can be stated that the presentations that were made as part of this dissemination event were interesting and up-to-date and touched on many important aspects related to legal regulation and practice in the field of migration and asylum (not only) in the Czech Republic. At the end, all participants were thanked for taking part and giving such high-quality and interesting presentations. The workshop was then concluded.
Kateřina Frumarová
