Facilities for the Detention of Foreigners
In the course of the second quarter of 2006, systematic visits were carried out in four facilities for the detention of foreigners [the provisions of Section 1 (4) (b) of the Public Defender of Rights Act]. One of the reasons for these visits was in particular the amendment to Act No. 326/1999 Coll., on the Residence of Foreigners on the Territory of the Czech Republic as amended, which has led, as of January 1, 2006, to a transfer of facilities for the detention of foreigners (hereinafter FDF) under the Refugee Establishments Administration of the Ministry of the Interior of the CR (hereinafter REA). Until then, these establishments had been governed by the Police of the CR.
FDF are establishments where persons of foreign citizenship are restricted in their freedom of movement. They are issued with a decision on detention in accordance with the provisions of Section 124 (1) of Act No. 326/1999 Coll. on the Residence of Foreigners on the Territory of the Czech Republic as amended (hereinafter the Act). The amendment mentioned above aims to ensure that limitations of the rights and freedoms of detained foreigners do not exceed the extent necessary for the purposes of their detention. Internal regulations governing the running of such establishments should measure up to those common in reception centres of asylum facilities, with the difference that foreigners in detention facilities do not have the right to leave the facility in the course of their detention (except in certain cases defined by law). Changes have been made to the regime governing receiving of visitors, to the conditions of leave from the facility with children; there is a greater focus on the need for leisure activities, and on the provision of psychological and social care. The scope of activities governed by the internal regulations of the facility (hereinafter IR) was also substantially broadened. Provisions governing the obligations of foreigners placed within the facility have been further specified as has the procedure to be followed by the Ministry of the Interior of the CR (hereinafter the Ministry) and the Foreign and Border Police (hereinafter the FBP) on ending the period of detention. In the sense of the Convention on the Rights of the Child special conditions have been introduced for the detention of children aged between 15 and 18 residing in the Czech Republic unaccompanied by a legal representative. Since the coming into force of the amendment, the Police of the CR merely carry out necessary indispensable activities and tasks entrusted to them by the provisions of Section 164 and subsequent laws. At present, the Police of the CR merely ensures security along the perimeters of facilities and security in areas with so-called high security regime.
Law and order within FDF is ensured by a private security agency (hereinafter PSA).
The employees of the Office visited all four existing facilities (Poštorná, Frýdek–Místek, Velké Přílepy and Bělá-Jezová).
Number of foreigners
Explanations: * Foreseen capacity
MR – moderate regime; HSR – high security regime; AD – adolescents; UM – unaccompanied minors
It was ascertained that FDF apply non-uniform practice when instructing foreigners of the rights linked to their legal position as detained foreign nationals. In certain facilities such instructions were limited to providing information on the possibility of submitting a request for the granting of asylum. In other cases, foreigners were also informed of the possibility of taking legal action in administrative proceedings against the decision on their detention and of the possibility of submitting a motion for release during the time of their detention on the grounds that the reasons for their detention have expired.
At the recommendation of the Defender, the Head Office of the Foreign and Border Police undertook to incorporate in its internal administrative acts the obligation of the Police to provide individuals detained in facilities for the detention of foreigners with complete written instructions, informing them of their right to take legal action in administrative proceedings against the decision on detention and of the possibility to declare their intention to request asylum.
FDF often fail to provide translations of internal facility regulations in all the necessary language versions as well as translations of the forms: Information to foreigners on the internal regulations of the facility for the detention of foreigners and Information to foreigners on the handling of money or private belongings placed in custody.
At the recommendation of the Defender, the Refugee Establishments Administration promised to take prompt remedial measures.
Files lack records of whether relatives of detained foreigners residing legally in the CR or authorities for the social and legal protection of children have been informed of a foreigner’s detainment. If no such records are on file, it would be desirable if the police officer receiving the foreigner to the facility requested this information and entered it in the files. Alternatively, if the officer learns that such steps have not yet been taken, he may inform the authorities himself of the foreigner’s detainment in accordance with the law.
At the recommendation of the Defender, this non-uniform practice was addressed as of July 1, 2006, in a directive of the Chief of the Foreign and Border Police. This Directive specifies the obligation of police officers to inform detained foreigners of their right to inform a third party – a relative, authority for the legal and social protection of children, embassy (consular office) – of their detainment. At the same time, a uniform template for instructions to foreigners has been introduced.
Visits must often be conducted in the presence of employees of the PSA, even in moderate security regime facilities.
At the recommendation of the Defender, the Refugee Establishments Administration declared that foreigners would in each case be informed of their right to request that the visit takes place in complete privacy. Such a request will, however, always be subject to consideration with regard to its individual character.
Police officers fail to provably inform foreigners of the reasons for which they have been placed in high security regime detention or of their right to lodge complaints to contest such placement. A confirmation of the fulfilment of these obligations must be signed by the detained foreigner, and deposited as proof in his/her file.
At the recommendation of the Defender, a modification of a directive of the Chief of Foreign and Border Police has broadened the duty of police officers in the following sense: in the case of the placement of a foreigner in detention with high security regime, the foreigner must be informed of the reasons for this placement, the period for which he/she may be detained in such a way and of the right to lodge a complaint. A written record must be made of this notification by the police officer. At the same time, the department of the Ministry of the Interior responsible for asylum and migration policy initiated an amendment to Act No. 326/1999 Coll., on the Residence of Foreigners on the Territory of the Czech Republic and on Amendments to Certain Other Laws, as later amended, to reflect the above.
The statute of “medical facilities” remains unclear as it does not correspond, de facto and de jure, to current legislation is thus affecting the operation of these facilities as well as their capacity to provide health care.
At the recommendation of the Defender, this area has been addressed by specialised departments of the Ministry of the Interior.
In one such facility, cameras had been installed in the living quarters of foreigners with moderate security regime. The director of the facility and the police claimed they were not in use. On the contrary, cameras in areas with a high security regime were fully functional and in use. This measure encroaches upon the privacy of detained foreigners and is a violation of their right to personal integrity and privacy as laid down by Art. 7 (1) and Art. 10 of the Charter of Fundamental Rights and Freedoms. The installation and operation of a camera surveillance system in cells or rooms where foreigners are of may be placed has no legal basis and fails to comply with the first condition of encroachment into the private life of an individual – empowerment by law to encroach upon/restrict the right to privacy. For this reason it is irrelevant that the possibility of camera surveillance was established by an internal regulation of the Police of the CR issued by the Ministry of the Interior. This regulation elaborated upon a measure that is not governed by law, and as such, stood outside the law.
At the recommendation of the Defender, the Refugee Establishments Administration removed the cameras from the rooms of foreigners.