Supreme Administrative Court submitted a motion to the Constitutional Court to declare a provision regarding periodical review of lawfulness of detention unconstitutional

Namely, the provision in question is §129(3) of the Act on Residence of Foreign Nationals in the Czech Republic no. 326/1999 Sb. that states that a foreigner is entitled to request release from detention no earlier than 30 days from coming into force of the detention decision, decision regarding extension of detention, if he/she did not file a petition to the court, and if so, 30 days after coming into force of the negative decision of the court.

Supreme Administrative court has concluded that this provision is unconstitutional. It is namely in contradiction with the right to personal freedom and right to a fair trial. That is why it has filed a motion to Constitutional court.

In practice, a detained person is entitled to request review of the lawfulness of the detention only once if he/she is detained for a longer period than 30 days (foreigners can be detained for 90 days, with a possible prolongation for 180 days, in extreme cases up to 545 days), when publication of the negative decision of the court in writing lasts 30 days and another review of the decision is possible only 30 days after that. A foreigner is not in practice entitled to file a request for release at any moment of his/her detention (if he filed a petition to the court), which contravenes to the right to a periodical review of the lawfulness of detention.

Number of the application at Supreme Administrative court: 8 Azs 26/2018-49.