Implementing judgments in the field of asylum and migration on odd days IV. Examples of (non)implemented judgments: common themes among the studied countries National reports show the following common areas in terms of the non-implementation of judgments: (1) immigration detention (Cz, Hun, Pl, Slo), (2) EU relocation scheme (Cz, Hun, Pl), (3) collective expulsion and access to asylum (Hun, Pl, Slo), (4) access to classified data in national security cases (Pl, Sk), (5) statelessness (Cz, Hun) (6) effective remedies against expulsion (Cz, Hun, Pl, Sk) and (7) disregard of court’s instructions in repeated asylum procedures on the merits (Hun, Sk, Slo). IV.1. Immigration detention Czechia When it comes to the implementation of the European courts’ judgments concerning immigration detention, no major non-implementation issues have been reported. In the Arslan case,28 the CJEU held that the domestic provision allowing for the detention of asylum seekers was in compliance with EU law. The Al-Chodor judgment,29 concerning detention under Dublin Regulation, according to which a definition of serious risk of absconding has to be established in domestic legislation, was “implemented” even before the CJEU adopted the judgment.30 Similarly, legislation had been amended even before the ECtHR issued a judgment in the Singh case,31 where a violation of Art. 5(1) of the Convention was found due to the excessive length of detention and lack of due diligence and a violation of Art. 5(4) was established due to the length of the proceedings relating to the applications for release.32 Two ECtHR judgments concerning de facto detention at an airport due to entry refusal decisions are also considered as implemented by the CM, as in both cases the relevant legislation was amended after the judgment. Following the Rashed case,33 where the Court found a violation of Art. 5(1) and 5(4) of the Convention, as the applicant did not have access to an effective and speedy judicial review and the domestic legislation was of insufficient clarity to prevent arbitrariness regarding the applicant’s right to liberty, the procedure and time-limits on entry refusal decisions were specified in the Asylum Act and judicial review proceedings for such decisions were introduced. Following the Buishvili case,34 where the Court found the breach of Art. 5(4) because the court reviewing the refusal of entry did not have the competence to decide on the lawfulness of the detention and to order the release, if the detention is unlawful, the relevant sections of the Asylum Act and the Act on Residence of Foreigners were amended. If a court annuls a Ministry of Interior (MoI) decision on the refusal of entry, the MoI does not issue a new decision but takes, without delay, all necessary measures to transfer the individual to an open reception facility for asylum seekers outside the airport. The person’s release is thus a consequence of the reviewing court’s decision. When it comes to the immigration detention of children, however, non-implementation of domestic court judgments has been observed. 28 29 30 31 32 33 34 C-534/11 Arslan, 30 May 2013. C-528/15 Al-Chodor, 15 March 2017. Relevant amendments to the legislation entered into force on 18 December 2015. Although OPU continues to argue that, the definition is still overbroad resulting in a de facto automatic detention of every foreigner who comes to Czechia after having applied for asylum in a different Member State. Singh v. the Czech Republic, appl. no. 60538/00, 25 January 2005. In 2002, the domestic authorities amended the Criminal Procedure Code, obliging the courts to decide on an application for release within five working days. In their action report to the CM, the authorities also provided statistics showing a decrease in the length of detention from 2001 to 2004. Rashed v. the Czech Republic, appl. no. 298/07, 27 November 2009. Buishvili v. the Czech Republic, appl. no. 30241/11, 25 October 2012. 12