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Czech Republic
Country of Decision : Czech Republic
Court Name : CZ: Constitutional Court [Ústavní Soud]
Date of decision : 27/11/2018
Type : Judgment
ECLI : ECLI:CZ:US:2018:Pl.US.41.17.1
Case Number/Citation/ Document Symbol : Pl. ÚS 41/17

Constitutional Complaint on the Annulment of §169r (1) Article 172 (6) of Act no. 326/1999 Coll. On the Residence of Aliens in the Territory of the Czech Republic as amended

A group of 18 Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the petitioners") proposed to the Constitutional Court that in the Act No. 326/1999 Coll., On the Residence of Foreign Nationals in the Czech Republic and on Amendments to Certain Acts, hereinafter referred to as the "Aliens Act"), repealed the provisions of Section 169r (1) j) and § 172 para. 6. The Senators also proposed that the Constitutional Court should annul the provisions of Section 46a (9) with the provision of Section 73 (8) of Act c. 325/1999 Coll., On Asylum, as amended (hereinafter referred to as the "Asylum Act"). The proposal was thematically divided according to the contested provisions into two separate units: the question of constitutionality of the suspension of proceedings by the administrative authority in some cases concerning the residence permit in the Czech Republic [see above § 169r (1) j) of the Aliens Act] [...] According to the appellants, [...]The unconstitutionality of the provisions restricting judicial review of the restriction of personal liberty, the petitioners gradually reiterate, inter alia, by restricting the judicial review of certain decisions restricting personal liberty and creating an unjustified, disproportionate and disadvantageous exception to the standard procedure for judicial review of administrative decisions; they also create unequal treatment between persons deprived of their liberty under the Aliens Act or the Asylum Act and persons deprived of their liberty under other provisions of Czech law, indirectly discriminating against the first group of persons on the basis of citizenship; without substantive reasons, denied to foreign nationals the right to compensation for damages caused by an unlawful decision; without any substantive justification, denies certain persons the right to recover the costs of court proceedings; they also constitute an interference with the right to property, as some detention facilities for aliens have to cover the cost of their stay in detention facilities without being able to reach a declaration of illegality to restrict their personal freedom and, finally, the contested provisions create an inappropriate relationship between their purpose and the possible consequences of their application. To these claims, the petitioners are repeatedly repeatedly returning, which the Constitutional Court has adequately taken into account in the remainder of the recapitulation of their submissions. Before the adoption of the contested provisions, there was the possibility of repealing the decision restricting personal liberty even when that limitation of personal freedom had ceased to exist. The contested provisions lead to the complete exclusion of judicial review of a decision on the restriction of personal liberty, unless that limitation ends before the administrative court decides to proceed against such a decision. The right to judicial protection under Article 36 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) guarantees the right of a person who claims to reduce his rights as a result of a decision by a public authority to a meritorious decision in the matter [...] The Constitutional Court found the contested provision of § 169r (1) j) of the Act on the Residence of Foreign Nationals contradicts the right of access to court under Article 36 paragraph 1 of the Charter and the judicial review of decision-making by public authorities under Article 36 paragraph 2 of the Charter, both in conjunction with Article 4 of the Constitution of the Czech Republic, with the right to protection against unauthorized interference with private and family life, in accordance with Article 10 (2) of the Charter. Accordingly, according to the provisions of Section 70 (1) of Act No. 182/1993 Coll., On the Constitutional Court, as amended by Act No. 48/2002 Coll., This provision was repealed on the date of publication of this judgment in the Collection of Laws. The Constitutional Court found the contested provisions of Section 172 (6) of the Act on the Residence of Aliens and Paragraphs 46a (9) and 73 (8) of the Asylum Act contradictory to the right of access to a court under Article 36 (1) of the Charter and to judicial reviewing decision-making by public authorities under Article 36 (2) of the Charter, again in conjunction with Article 4 of the Constitution of the Czech Republic, as well as the right to review the legality of deprivation of liberty under Article 5 (4) of the Convention and with the right to compensation under Article 5 5 of the Convention. Accordingly, according to the provisions of Section 70 (1) of Act No. 182/1993 Coll., On the Constitutional Court, as amended by Act No. 48/2002 Coll., These provisions were repealed on the date of publication of this judgment in the Collection of Laws.

Effective remedy; Humanitarian Protection/ Temporary Residence; Return/Removal/Deportation;

EU Charter of Fundamental Rights ; Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals); Revised Qualification Directive (Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as BIP for a uniform status for refugees or for persons eligible for subsidiary protection- recast)/or QD 2004/83/EC;

EASO Annual Report on the Situation of Asylum in the EU

Czech Republic,CZ: Constitutional Court [Ústavní Soud], Constitutional Complaint on the Annulment of §169r (1) Article 172 (6) of Act no. 326/1999 Coll. On the Residence of Aliens in the Territory of the Czech Republic as amended, 27/11/2018, ECLI:CZ:US:2018:Pl.US.41.17.1
CZ Constitutional Court rules on the right to effective remedy

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=541