Czech Republic – Constitutional Court, 1 December 2009, Pl. ÚS 17/09
| Country of Decision: | Czech Republic |
| Country of applicant: | Ukraine |
| Court name: | Constitutional Court |
| Date of decision: | 01-12-2009 |
| Citation: | Pl. ÚS 17/09 |
| Additional citation: | Act. N. 9/2010 Coll. |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
Headnote:
A time limit of seven days to submit an appeal against the decision on a manifestly unfounded asylum claim is too short to ensure an effective remedy.
Facts:
The asylum application submitted by a national of the Ukraine was rejected by the Ministry of the Interior (MOI) as manifestly unfounded. This decision was delivered to the applicant on the 3rd of March 2008 and he was given information that the deadline for submitting an appeal was seven days. The applicant submitted an appeal on the 5th of March 2008, i.e. after two days. During the appeal he informed the Court that he was not able to specify the grounds for the appeal and requested the Court to appoint a lawyer to fulfill his appeal. The Court decided to appoint a lawyer and gave to the lawyer (and the applicant) a deadline of the remaining five days to submit the appeal. This decision was delivered to the lawyer on the 3rd of April. On the 10th of April the lawyer submitted the appeal. The Prague City Court rejected the appeal in its decision of the 23rd of April 2008 stating that the appeal was submitted late because the five day deadline expired on the 8th April 2008.
The applicant then submitted an appeal to the Supreme Administrative Court (SAC) against this decision claiming that; the five day deadline to submit the appeal was too short; it included two weekend days; it was not possible for the appointed lawyer to meet the applicant in person or to become familiar with the applicant´s file in such a short time.
Decision & reasoning:
The SAC while reviewing the case concluded that the legal provision Art. 32.2(a) of the Asylum Act (providing for a seven day time-limit) cannot be interpreted in any way to meet the criteria of the Czech constitutional order (including the Czech Charter of Fundamental Rights and Freedoms). Hence the SAC proposed that the Constitutional Court abolish the above mentioned legal provision of the Asylum Act.
The Court stated:
Establishing deadlines of different lengths to submit appeals for two groups of rejected asylum seekers (a group of asylum seekers rejected for manifestly unfounded reasons and a group of asylum seekers rejected after a full assessment of the asylum claim for not meeting the criteria of the refugee definition) is not in line with the principle of equal rights for different groups of asylum seekers. However, the exhaustive list of reasons to reject an asylum claim as manifestly unfounded, as well as the 30 days deadline of the MOI to decide such claims, are justified and acceptable.
Nevertheless it is also necessary to guarantee equal access to the Court to the group of asylum seekers rejected due to their failure to establish the grounds of their claims.
The time limit of seven days, however short, cannot be considered arbitrary. However, the circumstances in which an appeal has to be made could result in the process being considered unconstitutional.
The proportionality between the deadline and the strict principle of concentration (the requirement to produce all arguments within this time-limit) puts a heavy burden on the applicant, including the requirement to produce quality legal argumentation (both legal and factual) from the beginning of the judicial procedure. In addition, there is no way for an applicant to extend the deadline.
The applicant finds himself, as an asylum seeker in specific situation, where he is not familiar with the Czech system and with Czech law, does not know the Czech language, does not have any support net, has no contacts and is dependent on outside help. Thus, the strict formal procedural requirement (of the concentration) is hard to fulfill. The seven days deadline, in practice always shortened by the two weekend days, creates a disproportionate pressure on the applicant.
Also, the appeal to the Court is the only legal remedy available to rejected asylum seekers. The time limit cannot be accepted in these cases as sufficient; it makes the remedy only an illusion, not an effective remedy that is guaranteed by the Czech Charter of Fundamental Rights and Freedoms and according to the Art 13 of the ECHR.
Outcome:
The legal provision of Art 32.2(a) of the Act No. 325/1999 (Asylum Act) was abolished.
Observations/comments:
Even after this decision Czech government did not take any steps to cancel (for example during other amendments of the Asylum Act) other two remaining provisions of the Asylum Act, which apply exactly of the same time limit for an appeal. The Constitutional Court could not cancel these provisions due to procedural rules. It was only in 2011 that an amendment was adopted cancelling the seven days limit in all asylum appeals.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Constitutional Act (No. 1/1993 Coll.) |
| Czech Republic - Charter of Fundamental Rights and Freedoms |
Other sources:
Resolution of the Presidium of the Czech National Council of 16 December 1992 on the declaration of the Charter of Fundamental Rights and Basic Freedoms as a part of the constitutional order of the Czech Republic.