CASE OF BUISHVILI v. THE CZECH REPUBLIC
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Order release);Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens
5. The applicant, Mr Artur Buishvili, is a Georgian national who was born in 1975 and is currently an asylum seeker in the Czech Republic. 6. On 7 March 2011 the applicant was transferred to the Czech Republic from the Netherlands under EU Regulation no. 343/2003/EC (the Dublin Regulation) and applied for asylum. He was held at the reception centre for asylum seekers at Prague airport. On his arrival he handed the staff of the reception centre medical records issued in Georgia and the Netherlands, showing that he was suffering from hepatitis C and had been treated at a hospital neurology department. 7. On 9 March 2011 the Ministry of the Interior (“the Ministry”) refused the applicant entry to the territory of the Czech Republic: that is, it refused to allow him to leave the reception centre. The applicant had not been interviewed before the decision was taken. He applied for judicial review, seeking to have the refusal quashed, arguing in particular that his medical condition was incompatible with his being in the reception centre. 8. On 6 April 2011 the Prague Municipal Court (městský soud) quashed the refusal, on the grounds that the Ministry had first to consider whether the applicant was a vulnerable person under section 73(7) of the Asylum Act, in view of his medical condition, and thus whether he was to be allowed to enter the country. It added that the applicant must be heard in person. 9. On 11 April 2011 the Ministry again refused the applicant entry to the country. It held that he was suffering from an ordinary illness, which did not require any specialist treatment, and that he was receiving appropriate treatment at the reception centre. 10. On 13 May 2011 the Municipal Court rejected the applicant’s request for judicial review of the second refusal, stating that his state of health did not require him to be hospitalised. Moreover, as his medical treatment had not yet started, his transfer to a medical facility was not necessary. If the situation changed a fresh assessment might be required. 11. On 28 April and 23 May 2011 the applicant once again requested leave to enter the country. The Ministry did not decide on his requests, relying on section 73(6) of the Asylum Act, which stipulated that a foreigner was not entitled to lodge a new request for leave to enter the country until one month had passed since the rejection of a previous one. It added, though, that it was proprio motu continuing to review the existence of the reasons for the applicant’s detention. 12. On 6 June 2011 the Ministry granted the applicant entry to enable him to have medical treatment. It took into account his latest medical reports; the impossibility for him to have treatment at the reception centre and the impossibility for him to have treatment at Motol Hospital because of lack of facilities. 13. On 27 October 2011 the Supreme Administrative Court (Nejvyšší správní soud) quashed the 13 May 2011 judgment and remitted the case to the Municipal Court, holding that it was insufficiently reasoned. 14. On 10 November 2011 the Municipal Court again rejected the applicant’s request for judicial review. The applicant did not lodge an appeal on points of law, as by then he was no longer detained. 15. The asylum proceedings seem to be still pending. 16. On 19 April 2011 the applicant was examined by a specialist at Motol Hospital, who concluded that he was suffering from hepatitis C and that the requisite medical treatment should begin as soon as possible following further examinations. 17. On the same day a doctor at the reception centre, noting the results of the applicant’s examination at Motol Hospital, informed the applicant’s lawyer in writing that the reception centre was unable to provide adequate treatment for his client. He added that it was not appropriate for the applicant to be held at the reception centre, because of the psychological stress caused by the medical treatment he required, and that he should be transferred to an open asylum facility. 18. During May 2011 several other medical reports confirmed that the applicant’s condition required urgent specialist treatment, which was not available at the reception centre. 19. In a letter of 26 May 2011 the reception centre doctor informed the Ministry of the Interior that the applicant’s state of health had been stabilised, that an appropriate diet was being provided, and that he was being provided with medication to enhance his liver function. He further stated that the medical care was adequate and that the applicant was under the permanent supervision of medical personnel. The doctor admitted that his previous assessment had been based on the assumption that a sudden deterioration of the condition was possible; however, this had not been confirmed later. He concluded that the recent care was fully comparable to the care provided to ordinary citizens, and was appropriate to the applicant’s actual state of health. 20. The relevant domestic law and practice are set out in the Court’s judgment, Rashed v. the Czech Republic, no. 298/07, 27 November 2008. 21. With effect from 1 January 2011 a new paragraph 5 was introduced into section 73 of the Asylum Act (no. 325/1999) setting a time-limit of seven working days for a court to decide on a request for judicial review of a decision of the Ministry refusing entry to the Czech Republic to an asylum seeker who was being held at an airport reception centre. If the judicial review quashes the decision, the Ministry must issue a new decision within three days or grant the asylum seeker entry. 22. Under section 73(7) of the Asylum Act the Ministry shall allow asylum seekers to enter the territory if they are unaccompanied minors, a family including minors, people with serious health problems, pregnant women, or people who have been tortured or subjected to other forms of psychological, physical or sexual violence. 23. Article 9 § 4 of the International Covenant on Civil and Political Rights (“the ICCPR”) provides a similar guarantee as Article 5 § 4 of the Convention: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. The Human Rights Committee, which is empowered to interpret the ICCPR, has on numerous occasions expressed the opinion that the court mentioned in Article 9 § 4 of the ICCPR must have the power to order release if the detention is unlawful (see, for example, A. v. Australia, no. 560/1993, § 9.5, 3 April 1997, and Danyal Shafiq v. Australia, no. 1324/2004, § 7.4, 31 October 2006).