The website for critical discussion about migration in Central and Eastern Europe.
7. 7. 06
Pavel Uhl
Zdroj: migrationonline.cz

Shortcomings of the Czech Republic’s Asylum Policy

In the past 17 years, the Czech Republic (and its legal predecessor) has been one of the countries striving to honor the principles of democracy and the rule of law. The required attributes of a democratic state governed by the rule of law typically include the granting of asylum to refugees. Asylum policy is one of the indicators used to gauge the level of development and protection of rights in all societies. This is reflected in an image presented by the media that simplifies reality in an attractive way. The legal framework governing asylum and specific asylum policies of Czechoslovakia and later the Czech Republic developed over time and their content was to a certain degree characteristic of the existing state of society, level of legal awareness and existing public administration. This article starts with a brief overview of developments pertaining to the right to asylum in modern history and then shifts its focus to the situation in the Czech Republic.

Growing significance of the right to asylum in modern states
The modern right to asylum represents the right of a state to provide protection to a certain person from actions of another state with the reasons for granting asylum reflecting policies and interests of the granting state. Asylum was often granted to persons with privileged positions vis-à-vis the political or religious values that the granting state adhered to. Strategic reasons also played a significant role. A person who has been granted asylum was indebted to the granting state and often able to provide strategic information or know-how. This was nothing unusual at a time when state loyalty was a legitimate subject of a person’s choice.

It was only with the advent of modernity that the concept of asylum began changing. Asylum justifiably started to be perceived as a subjective right of persons derived from certain legally defined facts. In the catalogue of human rights – if we choose to include it – the right to asylum is an inconspicuous child of the 20th century. It does not appear in traditional human rights documents and makes its debut only in legal documents of the 20th century. Its significance grew hand in hand with historical developments related to World War I, World War II and the Cold War. After World War II, the definition of refugees found its permanent place in international law, being derived from the situation of refugees in their country of origin. The definition of asylum was, legally speaking, stabilized in a descriptive position, partially disregarding individual viewpoints.. Within the communist bloc, the interest-based concept of asylum policies survived in some aspects of asylum laws at least until the end of 1980s.

From the point of view of laws in force, asylum consequently became the only subjective right which in its positive form evidences the so-called universalistic concept of human rights which is based on the notion that human rights are universally valid regardless of cultural, social and political context. Asylum is granted based on actual and legal realities positioned outside of state sovereignty. Subjective rights are protected by national laws within the limits of their enforceability while the state generally perceives other legal phenomena positioned outside of its power in the context of reciprocity or usefulness. In contrast, the right to asylum is an actual application of internal standards of protection of subjective rights (although in a modified and reduced form) to a situation where one state’s laws cannot be applied in line with the traditional concept of state sovereignty and international law because the situation is to be assessed by another state based on its own considerations. This is true not only for granting the status itself but also for implications in the form of absolute protection from the state of origin and the international dimension of such protection. In this respect, we may mention other rights derived from principles similar to those used to substantiate the right of asylum, including the right not to be extradited to a country where there is a danger of unacceptable treatment or various obstacles to free movement of persons.

Development of asylum law in the Czech context
The issue of asylum in formerly communist countries is both positively and negatively speaking in the tow of historical experience with political emigration. Political emigration has been a part of the Czech historical tradition ever since the Battle of White Mountain. It is perceived in the context of a slightly schizophrenic understanding of Czech history as a tragedy (personal and national), remedy and betrayal at the same time.

Shortly after the Velvet Revolution, Czechoslovakia adopted a law with the ambition to meet the requirement of having an asylum policy on par with (stipulated) international standards. In the early 1990s, Europe witnessed historical developments that led to a number of refugee waves, starting with the war in the former Yugoslavia and ending with the breakup of the USSR and the ensuing conflicts. The Czech Republic’s asylum policy was created together with policy covering foreigners and the legal norm providing the framework for granting asylum in general was adopted in 1990. Initially, the Czech asylum policy was shaped to a large degree by the romantic notion of its general beneficialness and openness to all those in need in accordance with the Asylum Act. However, it was rather swiftly (seemingly) ‘professionalized’ in a reaction to the original ideas, factors such as alienation, routine and general restrictiveness. A major milestone for the Czech asylum policy was the reform of the legal framework applicable to foreigners as well as the reform of the country’s visa policy (implemented by the government)1/. On the one hand, this led to tightening of the existing relatively liberal foreigner regime; on the other hand, this resulted in transferring a large number of long-term residents into a visa-required regime preventing them from enjoying semi-legal status (legal in regards to remaining in the country, illegal in regards to employment, etc.). Many people who had until then lived in the Czech Republic semi-legally decided to legalize their stay temporarily but at the same time for the longest time possible by applying for asylum. What followed was a dramatic increase in the number of asylum applications and an overburdening of the system which in turn led to tightening of the asylum procedure. The current situation is characterized by ongoing tightening and the parallel process of the asylum policy’s ‘Europeization’. The process of amending the Asylum Act involved a number of factual and legal paradoxes and was tainted by phenomena contrary to the rule of law.

Tightening of and non-compliance with procedural standards
Substantive legal conditions of asylum granting do not change as they stem from cogent international law standards or the constitutional order of the given country, the change of which is usually far from easy. On the other hand, international law offers practically no procedural standards and the same is true to a certain extent for constitutional law which makes it possible for asylum law to limit procedural rights guaranteed by the constitution. A country wishing to effectively limit the inflow of refugees or those who claim to be refugees without carefully searching for the border between these two groups may utilize the tool of procedural eligibility to actually limit access to asylum as such. The Czech Republic decided to move in this direction. Many amendments to the Asylum Act were from the very beginning aimed at curtailing procedural rights through shortening various deadlines for application of these rights2/, limiting rights related to participation in the asylum process such as the right to refer to the applicant’s file prior to deciding on asylum or making it harder to obtain legal representation.

In addition, the administrative body deciding about applications often did not even need a legal basis for limiting procedural rights, contending itself with non-compliance with law (this maneuvering room has been significantly curtailed after the adoption of the new Code of Administrative Justice). An example of this practice would be the refusal to allow making copies of documents in the applicant’s file, maintaining the file in a form that prevents control and review, etc. Such procedural obstructions also include the administrative body’s maintaining its own database about countries of origin which is not accessible to the general public. The administrative body uses its own discretion to select documents from the database and include them in individual files, thus creating its own picture of facts relevant for decision-making. The method of selection cannot be reviewed in any way and it is clear in specific cases that the database does not provide information favorable for applicants. On the contrary, the database contains information detrimental to applicants which may be confirmed in certain cases by comparing other database systems with which the administrative body works. This, however, is usually beyond the applicant’s means which makes asylum inaccessible to those who are not adequately skilled in coping with procedures. Some information systems are referred to only in a general manner (usually databases of news agencies) and only abstracts are added to the file (sometimes) which cannot fulfill the same informative role as the entire database.

Another issue and possibly the key obstructive feature of the Czech asylum policy is the prolongation of proceedings by the respective administrative body, something which is attractive to those who abuse the asylum procedure and deterring to those who really need it due to prolonged uncertainty.

Inadequacy of the system
While the amount of money earmarked for the asylum policy is far from insignificant, one may conclude that in regards to assessing individual cases, the funding and support (especially intellectual) available is somewhat lacking. With respect to decision-making in administrative proceedings, one can seriously question whether this inadequacy is intentional or not. An informed assessment of a specific asylum case requires knowledge of the Czech Republic’s laws, familiarity with the situation in the country of origin and its legal framework as well as knowledge of the principles of international law. In reality, however, decisions made in the course of administrative proceedings are of poor professional quality in all four mentioned aspects. The language used in decisions is difficult to understand, their structure is disorganized and decisions are full of repeating statements which casts doubt over individualization of decision-making3/. The proceeding itself is in fact executed in a contradictory way when the applicant makes certain claims and the administrative body tries to disprove him – this concept of a proceeding is in direct contradiction to the notion of an administrative proceeding4/. Decisions often negate basic principles of international law regarding the imputability of states for their actions and disregard legal specifics of individual states. This affects the examination of the requirement to use all possibilities of legal remedy, etc.

Such inadequate decision-making as an aggregate does not provide for material review. If a standard is born based on repeating activities, it is a standard wherein quality is only secondary. Review of the results of applying such standard usually does not lead to major modifications of this standard (at least in the foreseeable future), but only to rectification of the most blatant errors. The reason for reviewing an activity does not lie in reaching a new level of decision-making quality, but rather in assessing the decisions under review in an individual and general context, with the general context being to a certain extent the aggregate of all decisions made by the given administrative body over time. The quality of the administrative body’s decision-making is therefore the key aspect of asylum policy.

Judicial regression
When voicing doubts with respect to the quality of administrative decision-making which forms the basis of the asylum policy as a whole, one must also comment on the rulings of courts which complement the policy and provide a framework for it. While decisions made by courts are legally as well as actually only an addition to activities of administrative bodies, they may take the form of either self-limiting decisions or activist decisions, with this dimension of decision-making being applicable both to the scope of powers and their content. As regards the Czech Republic’s asylum policy, we note that the judiciary has not been a radical determining factor or an asylum policy reformer. This was true before the administrative justice reform and remains true today.

Prior to the reform of administrative justice, complaints against the two-tier procedure (i.e. against the final decision) had been heard by courts in accordance with part 5 of the Code of Civil Procedure. Reviews were considered as strictly reviewing lawfulness, not materiality of decision-making, which in the case of the entitlement concept of asylum merged into one aspect. Court decisions made at that time were the responsibility of High Courts (specifically the High Court in Prague as the only territorially pertinent court). The High Court in Prague laid down a basic legal framework for court rulings in two areas. This legal framework in turn influenced the given administrative body’s decision-making.

In the first area of decision-making, interpretation boundaries were created as regards the question of what is permissible as reason for granting asylum. On the one hand, the court repeatedly ruled that if a country violates human rights, be it rights protected by the institution of asylum, it may constitute excessive behavior commonly found also in democratic countries and such fact alone cannot be a reason for granting asylum (e.g. Ref. No. 5 A 758/2000-35). On the other hand, the court was of the opinion that a state of general distress when rights protected by the institution of asylum are violated is also not a reason for granting asylum (e.g. Ref. No. 6 A 518/97-24). The intersection of these two marginal situations which have ruled out the majority of cases reviewed by courts is therefore such persecution by a state which is active, deliberate and has reasons that are “eligible” as regards asylum (relevant for granting of asylum). It is necessary to add that the court in its judicature (e.g. Ref. No. 6 A 709/2001-21) interpreted the concept of a state’s responsibility (i.e. imputability of actions of public officials vis-à-vis a state’s responsibility) contrary to the established interpretation prevalent in international law which must be applied when interpreting norms of international law as is the case with asylum. An example is the maximally restrictive interpretation of a state’s responsibility for the actions of its bodies which were later as a result of the above-mentioned judicature practically always considered by the administrative body to be actions of private individuals, etc.5/ A similarly restrictive interpretation prevailed also as regards the issue of ‘well-founded fears’. In the second area of decisions, the judicature could not steer clear of interpreting the term “political persuasion,” setting rather strict requirements with regard to the ability of formulating such persuasion in a concrete manner. Concerning other acts of discrimination and persecution relevant for granting asylum, it was stated that their objective existence must be proven (e.g. Ref. No. 5 A 707/2000-23). This condition contradicts reality in that it is often the case that motives for discrimination may not be real but rather alleged or presumed or may lie in affiliation or other feature covered by the right to asylum as it has been formulated6/. Specific decisions completely disregarded the actual situation in the given country of origin7/, the portrait of which was often concealed underneath false impressions stemming from the administrative proceeding. With some overstatement, the judicatures of the High Court in Prague resulted in a concept of asylum corresponding to an elitist political status for procedurally adroit, politically conscious and publicly known members of opposition who were lucky enough that their states made it known that they intended to persecute these specific individuals for reasons undoubtedly sufficient for granting asylum8/. A state may interpret its responsibilities stemming from its commitments under international law as restrictively as it chooses, down to the very minimum prescribed by international law, but it may not travel beyond this minimum, which the author believes was the case here.

After the reform of administrative justice, there was no substantial shift in decision-making, only a period of inconsistency. This was due to the partial staff-related continuity at the highest level of administrative courts. The cancellation of an appeal stage and full review stage of administrative decision-making led to the introduction of a double cassation principle into the decision-making concerning asylum at all stages9/ without providing compensation for the absence of a full review related above all to ascertaining the state of facts.

The effective distancing of the judiciary from asylum issues was apparent also at the time of debates concerning one of the last amendments to the Asylum Law. The Supreme Administrative Court strived to modify the existing regulations so that cassation complaints would not be admissible in asylum matters as an extraordinary remedy. After some discussions, lawmakers decided otherwise, basing their decision on an actual social consensus among various interested parties (including the court as well as the Public Defender of Rights and several NGOs) reached at the Constitutional and Legal Committee of the Chamber of Deputies. The author feels no need to list the relevant arguments as they have been mentioned before in scholarly publications but wishes to add that many of the arguments presented by the Supreme Administrative Court were valid. However, the situation called for a different solution as efforts to eliminate the last cassation complaint level would only eliminate the effects of a pathological situation, not its root causes which would have been only reinforced. Undoubtedly, the purpose of judicial review of administrative actions as used in Central Europe is to review certain cases embodying controversial issues. The system was not designed to necessarily review a priori everything. If this is the case, however, the system is naturally overtaxed not only by the sheer volume of work, but also by burn-out syndrome and the loss of sensitivity to certain details. The system’s inadequate capacity results in overload at point of output, a logical consequence of underestimating certain investments at point of input. The above-mentioned efforts were a sign of such burning-out.

The discussed manifestations of inadequacy can be corrected and dealt with in individual cases. However, it will require some effort and significant professional skills including knowledge of law and circumstances in countries of origin. The problem is deeper than necessary also because asylum issues are completely outside of the interests of those practicing law, i.e. attorneys, with legal services being provided to asylum seekers by NGOs. These organizations are to a large degree funded (in lump sums and insufficiently) by the administrative body in the context of which they are supposed to defend views compatible with the interests of asylum applicants. The description of this situation alone casts doubt on its effectiveness. Attorneys choose not to get involved and the appointment of representatives before courts usually comes too late when things are headed in the way intended by the first-tier administrative body. The system of designating providers of legal services based on the Act on Advocacy has not proven to be a workable solution for the purpose of asylum proceedings and furthermore, one may have legal doubts with regard to its applicability considering the wording of the Asylum Act.

Speaking from a sociological perspective, the legal concept of asylum in the Czech legal order and especially the relevant decision-making have been influenced to a certain extent by the historical experience of Czechoslovakia after World War II which tied political emigration with a targeted, easily identifiable, describable and evident repression. In this sense, the justice system was democratic and reflected the general perception of the problem at hand in line with a generally shared idea that was merely legally formulated. The fact that the system failed to apply abstract legal assumptions of international asylum law to situations that were socially and politically different tells us the same. In defense of the justice system, we must note that at the time when it was laying down the foundations for its decision-making processes in the area of asylum, it could not have been deciding in any other way than based on background information established by the relevant administrative body, with the shift from reality of facts established in this manner being discussed above. The main problem has been and still is in the fact that shortcomings of the asylum procedure are distributed over a lengthy proceeding and taken alone do not represent systemic errors; in total, however, they produce systemic dysfunctionality.

Political regression
Apart from judicial regression, the Czech asylum policy is characterized by political regression. Decisions regarding politically relevant issues usually fall under the responsibility of relevant administrative bodies. With respect to asylum policy, it can be said about the executive as well as the legislative branch that they are generally speaking given only minimum consideration. The room thus available is taken up by deliberate actions of a clerical lobby which to a certain degree substitutes politics without an explicit political legitimization. Decisions are subsequently made by relevant bodies only formally and there is no political debate about issues (if there is a debate, it is marginal or even farcical10/). Generally speaking, a political system of a democratic society as a whole more or less truthfully reflects the society’s structure. This is also true for the judiciary, with the two statements being neutral, not judgmental. On the contrary, the author is something of a deviation from the norm involving passivity of political representatives who are content with vague awareness of the issues at hand. This is not affected by arguments about the exclusive character of the right to asylum in the context of law in general as this attribute alone does not necessitate a higher degree of attention. Shift in the respective sphere of politics is possible only provided that there will be a shift in the perception of the issue by the general public as well as by experts. This is true for the judiciary as well as other components of the system of public authority.

What is there to do with the shortcomings of the Czech Republic’s asylum policy?
The above problems, described here as shortcomings, deserve in the end of this article at least some constructive comments so that the author cannot be accused of absolute nihilism. The conclusion will focus on a single need. It is beyond doubt that decisions regarding asylum are for many reasons professionally demanding. Due to the importance of asylum, each question deserves to be dealt with in a competent way and it is not so important whether this takes the form of an administrative decision, judicial decision or other specific decision. However, the current situation is indefensible considering the hierarchy of various issues which, according to law, must be solved at various levels of examination. If the right to asylum is really a major right in the catalogue of rights, it must be viewed in the light of such value, especially considering that decisions pertaining to most rights are made at the first level by courts, although in most cases, the stakes are far from being as high as when compared to the values protected by the right to asylum. The author believes that it is necessary to build a solid decision-making system at the first level of deciding about asylum issues so that review activities truly review cases and assess high quality proceedings, the results of which cannot be distrusted as far as facts are concerned. This will require a transparent database of information about countries of origin accessible to all parties participating in proceedings and also the fulfillment of legal and professional service requirements during asylum proceedings from their very start. Decision-making must be independent and the decision-making body must be completely separated from the Ministry of Interior in its constitution as well as function, as the Ministry of Interior perceives itself as a barrier and regulator of immigration. If such a system is created at two decision-making levels both of which would have the opportunity and capacity of evidencing, judicial review may be limited to only one institutional level which by itself will be without suspensory effect. I believe that a concentration of powers at one point of proceedings will have a larger impact on fairness and speed of proceedings than their allotment into a number of procedural phases, the shortcomings of which amalgamate.

1The government withdrew from visa waiver agreements without the Parliament’s approval.
2There is no rational reason for shortening the generally applicable two-month period during which legal action may be taken as specified by general regulations in the area of administrative justice (Section 72 of the Code of Administrative Justice) to 15 days (Section 15 of the Asylum Act), especially when the proceeding in which the decision being appealed is issued is almost always longer than foreseen by law. A longer (original) period would mean a higher chance of preparing an informed appeal and consequently lesser workload for the judiciary.
3One certainly cannot hope for the substantiation of a decision to contain an overview of the proceedings, description of findings and finally legal grounds for the decision.
4It is also interesting to note that representatives of the Ministry of Interior publicly embrace this concept of administrative proceedings in the media and in semi-official texts which only demonstrates the sheer deterioration of legal awareness in the given public policy sector.
5Needless to say, for example the concept of homeland as it is understood by asylum law must subsume from the point of view of international law also other subjects of international law such as a warring party if it controls a part of territory or population, etc.
6It may be useful to note that the Czech Republic’s criminal law has had experience with a similarly absurd statement; however, the consequences were quickly remedied.
7A good example would be the frequent requirement to utilize all legally available means of remedy, which is interpreted practically as utilizing all means of remedy available in accordance with Czech law for the purpose of a constitutional complaint. This requirement, however, is often absurd or even impossible to fulfill in the conditions of a concrete country. In other cases, all legally available means have been utilized but the administrative body, under the influence of the Czech legal system, came to a contrary conclusion (without any detailed analysis of available legal sources).
8The term ‘political activity’ (opinion) is not defined by law and must be interpreted considering the prevalent doctrine of political science which defines it as any effort to influence the sphere of public administration and take part in the life of the polis (πολις).
9This, however, is a common attribute of administrative justice.
10One only needed to follow the debates about amendments to the Asylum Act in the Parliament.

The author is an attorney in Prague.
7. 7. 06
Zdroj: migrationonline.cz

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