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On 22 and 23 March 20201 Forum for Human Rights in cooperation with the International Commission of Jurists and the Judicial Academy of the Czech Republic has organized a judicial training for Czech judges and judicial assistants on Selected discourses of asylum and migration law from the international and national perspective. The seminar was attended also by lawyers from the Office of the Public Defender of Rights of the Czech Republic as well as asylum judges from Slovakia. The seminar was a part of the FAIR PLUS project, co-financed by the European Union. You can review the program of the seminar here.

In the first session, Hugo Storey, a recently retired judge of the Upper Tribunal (UK) and the former Chairperson of the European Chapter of the IARMJ, spoke about Article 46 of the Asylum Procedures Directive (APD) which covers the need for ex-nunc effective remedy in decisions about asylum. Lively discussion unfolded, especially related to the specific obligations of higher administrative courts related to examinations of facts and law when reviewing decisions about access to international protection. Especially the question whether the Czech rules of procedures are legislatively adjusted to the approach of Article 46.3 APD, which requires that an “effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs.”

The Vice-President of the Polish Supreme Administrative Court and Professor at the University of Łódź Jacek Chlebny shared his experience with filing preliminary references with the Court of Justice of the European Union (CJEU) in cases regarding judicial review of natinal visa cases. He also spoke about the European Court for Human Rights (ECtHR) case M.K. and Others v Poland, which concerned the State practice of systematic push back of asylum seekers at the borders between Poland and Belarus. The judge stressed the need for individual assessment in all such cases. The question of the lack of suspensive effect of the refusals of entry was further discussed among participants. 

The event further covered the issue of the right to family life of migrants. Nuala Mole, senior lawyer from the AIRE Center, discussed the right to private and family life especially in the context of termination of stay – in cases of expulsion and refusal to renew residence permits or refusal to regularise. She focused the relationship between the European Convention on Human rights and the Convention on the Rights of the Child in the context of the right to family life, especially the “best interest of the child” principle and the need for the authorities to demonstrate that the best interests of the child have been taken into consideration when children may be affected by the decision. Jan Kratochvíl, a judge of the Prague Municipal Court, commented on this issue from the national jurisprudence perspective. 

During the second day of the seminar Prof. Bostjan Zalar, Senior High Court Judge of the Administrative Court of Slovenia and President of the European Chapter of the IARMJ, discussed he role of the courts in the judicial review of immigration detention from international and EU law perspective. Prof. Zalar offered a historical perspective on the issue of immigration detention from Magna Carta to ELI’s Checklists for Judges criteria for lawfulness of immigration detention. He also covered differences in the CJEU and ECtHR case-law, focusin on the looking at the concept of “choice” in the transit zone on borders and at the airports. 

John Stanley, Deputy Chairperson of the International Protection Appeals Tribunal (Ireland), explained the details about the Irish case-law related to the definitions and identification of vulnerable persons. Alexandra Dubová, a lawyer from Forum for Human Rights, analysed the legal regulation of vulnerable persons in EU and Czech law and pointed to the problematic question of identification and protection of vulnerable persons in the Czech Republic. A discussion followed regarding the actual obligations of judges to identify vulnerable persons in asylum and related proceedings. Marie Lukasová from the Ombudspersons office and the CPT member addressed identification of victims of torture or other inhuman and degrading treatment in the asylum procedures. 

Finally, doc. Helena Tužinská, an anthropologist from Bratislava University, spoke about communication with migrants: an ethnography of interpretation in the asylum judicial proceedings. She presented her recent research into judicial decisions in immigration matters, and the concept that translation among two actors might not be enough, as concepts and terms might mean different things in different cultural settings. In her discourse, she suggested that judges, or administrative officers, are a social group themselves having a certain reference framework, understanding and a way of thinking, and expect others including asylum seekers and other foreigners to think in the same way. The interpretation needed is not only linguistic, but a broader transmission of concepts or cultural experiences. Credibility, substantiation and impartiality of interpreters was also discussed by Prof. Tužínská, questioning the understanding of a judge, what honesty means, or the ability of police reports to capture the experience of an asylum seeker, for instance.  

All children regardless of their age must have access to procedural rights when they are accused of criminal acts, the Council of Europe’s European Committee of Social Rights decided in a landmark case (No. 148/2017) brought by the International Commission of Jurists (ICJ) and Forum for Human Rights.

The ICJ and Forum lodged a complaint challenging the failure of the Czech Republic to provide for legal assistance to children under the age of 15 (the age of criminal responsibility in the Czech Republic) in the pre-trial stage of proceedings and failure to provide alternatives to formal judicial proceedings for them.

The European Committee of Social Rights, which is responsible for oversight of the European Social Charter of 1961, found the Czech Republic was violating the rights of children under 15, who face proceedings in the child justice system but are below the age of criminal responsibility. The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter. Human rights protected under the European Social Charter are legally binding on States party to it.

“The Committee’s decision is ground-breaking in many ways, yet two implications are revolutionary. First, it clearly emphasises the inter-dependence between fair-trail rights and child’s well-being. In modern human rights law, there is no such a thing as a clear-cut division between civil and political rights and social rights. But most importantly, the decision undermines paternalistic attitudes towards young children who enter the juvenile justice system and makes clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, based on the restorative justice principles,” said Maroš Matiaško, senior legal consultant of Forum.

The decision of the European Committee on Social Rights should lead to fundamental changes in the Czech child justice system, Forum for Human Rights and the International Commission of Jurists said today.

“We brought this case to ensure that children below the age of criminal responsibility do not have lower standards of protection of their rights compared to the older children in the child justice system,” said Karolína Babická, ICJ Legal Adviser. “We expect the Czech Republic to swiftly implement the decision of the Committee and ensure that all children regardless their age have access to procedural rights and alternative procedures like settlements and conditional termination or withdrawal of prosecution.”

The legal findings come following a collective complaint submitted to the European Committee on Social Rights by Prague-based Forum for Human Rights and the International Commission of Jurists in 2017.

The Committee’s decision is built on two legal grounds, (I) mandatory legal representation for all children in conflict with the law regardless of age already in the pre-trial stage and (II) their access to alternatives in line with restorative justice principles.

On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four grounds:

• Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.
• Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.
• Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.
• The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.

In relation to the second legal ground, the Committee emphasised that diversion (alternatives to punishment, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases and diversion options should be availablefrom as early as possible after contact with the system, before a trial commences, and throughout the proceedings. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system.

It may be left to the discretion of States Parties to decide on the exact nature and content of diversion measures, and to take the necessary legislative and other measures for their implementation, though there are relevant standards that should be taken into account, especially those developer by the UN Committee on the Rights of the Child.

Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.

Read the full decision here.

See more information about the case here.

For further information contact:

Legal capacity has no impact on the right to receive allowance for personal assistance. This is the main message of the judgment of the Regional Court in Banská Bystrica in the matter of not granting allowance for personal assistance to a client with a mental disability, whom we had assisted with the preparation of the lawsuit. The financial allowance for personal assistance is one of the most powerful tool of independing living for persons with disabilities in Slovakia. Yet, the approach of authorities deciding on its award is not always straightforward.

Together with SOCIA – Social Reform Foundation we have therefore supported clients who were refused allowance for personal assistance despite having fullfilled the legal criteria. In January 2021, the Regional Court in Banská Bystrica decided in favour of one of our clients (judgement no. 30Sa/9/2020). The court held that:

Deprivation or restriction of legal capacity, or mental disability as such, cannot be a reason not to grant the allowance for personal assistance. The objective of personal assistance, that is the support of social inclusion and independent living, may differ from case to case and depends on needs of the individual person.

We want to thank SOCIA – Social Reform Foundation for having supported the case and our lawyers Maroš Matiaško and Adam Máčaj for having prepared the lawsuit.

FORUM together with its partner the International Commission of Jurists (ICJ) is holding an online training seminar on the rights of children who are suspected or accused of violating the law within the European Union.

The training (16-18 February 2021) focuses on the right of a child in conflict with the law to an individual assessment, under Article 7 of EU Directive 2016/800 on procedural safeguards for children suspected or accused in criminal proceedings. The individual assessment of the particular circumstances and needs of the child provides an important guarantee which, if implemented through a rights-based approach, can ensure that the best interests of the child are protected and that the child’s rights are upheld throughout the criminal justice process.

The training brings together some of the key professionals involved in implementing individual assessments in the Czech Republic and Slovakia – over 20 lawyers and 20 social workers from both countries working in the field of child justice. Speakers at the training will consider the approach to the individual assessment in light of international human rights law as well as experiences from other EU Member States. They will explore the potential of the restorative justice approach to ensure that the child has practical and effective opportunity to actively participate in the proceedings.

See the full agenda here:

in English
in Czech
in Slovak.

This project was funded by the European Union’s Rights, Equality, and Citizenship Programme (2014-2020). The content of this publication represents the views of FORUM only and is its sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

FORUM supports inclusive education of children with disabilities. That is why we filed an individual complaint with the UN Committee on the Rights of Persons with Disabilities (CRPD) in a case concerning a young boy with intellectual disability who was prevented from continuing his education on a high school. The case is directed against Slovakia.

We want to thank our lawyers Maroš and Adam for their excellent work, as well as Marek Varga and his parents for their courage to fight for their rights. We also thank Socia – Social Reform Foundation for supporting the case.

The European Committee of Social Rights has today found the Czech Republic responsible for large-scale and discriminatory institutionalisation of children with disabilities and Romani children in early childhood care institutions, criticising the failure of the country to adopt and implement an appropriate deinstitutionalisation strategy. In a decision released today, the European Committee found violations of the rights of particularly vulnerable Roma children and children with disabilities under the age of 3, specifically the obligation to ensure appropriate social and economic protection to children, under Article 17 of the 1961 Charter.

The legal findings come following a three-year inquiry by the European Committee. The inquiry was triggered when a consortium of three organisations: the Prague-based Forum for Human Rights, the Validity Foundation, and the European Roma Rights Centre; filed a joint collective complaint in 2017 and provided evidence documenting the violations. The UN Special Rapporteur on the right to health, as well as LUMOS, supported the litigation with their interventions. 

Commenting on the decision, Maroš Matiaško, Chair of the Forum said: “The Committee’s message is very strong. Institutions are harmful to children, and from the legal point of view, the Government must take all necessary steps to deinstitutionalise the existing system of early childhood care. This systemic change must be built on the principle that all children have the right to benefit from a family environment, regardless of their situation or needs.”

ERRC Legal Manager, Senada Sali, welcomed the Committee’s acknowledgement that “both Romani children and children with disabilities are faced with disproportionate care risks in comparison with the majority population, and that in that regard – States must ensure appropriate social and economic protection to young children, with particular attention paid to the situation of disadvantaged and vulnerable groups of children.”

Ann Campbell, Co-Executive Director, Validity (Mental Disability Advocacy Centre) highlighted that: “The Committee’s decision makes it clear that international law will not accept the continued institutionalisation of children. States must provide in-home and community-based services necessary to make sure that all children, especially Roma children and children with disabilities, grow up with stable, loving caregivers. We look to the Czech Government to now lead the way in this endeavour.”

The decision is built on three legal grounds. First, the committee found that the State’s failure to reduce the number of young children placed in institutions, to provide young children with appropriate services in family-based and community-based services within a reasonable time, and to the maximum use of available resources, violates Article 17 of the 1961 Charter. The European Committee found that existing legislation in the Czech Republic allowing for institutionalisation of young and vulnerable children, and the ongoing maintenance of residential children’s centres under the Health Care Act, does not conform with obligations under Article 17 of the Charter.

Second, in assessing measures taken by the Czech Government to reform the existing system, the European Committee found that the Czech Government have failed to take significant and targeted steps to deinstitutionalise the existing early childhood care system, and instead  provide young children with services in family-based and community-based settings. The Committee also found that this was in violation of Article 17 of the Charter. 

Finally, the European Committee emphasised the importance of collecting relevant data which are indispensable to the formulation of an adequate policy and the adoption of appropriate measures. As the Czech Government has failed to provide any evidence or relevant information on the adoption of measures to improve the provision of appropriate family and community-based services for Romani children and children with disabilities, there was also a violation of the 1961 Charter on this ground. 

The Czech Republic must now implement measures in response to the decision.

The full decision of the European Committee of Social Rights can be found here.