Author
The national law as such does not provide for access to free legal assistance for the review of detention, due to a general lack of legal framework for free legal aid.
The detainees are entitled to request the court to appoint them a free of charge representative for the proceedings in which they challenge the legality of their detention.[1] However, typically the detainees will need legal assistance in order to submit such a request in the first place. In the proceedings in front of the regional courts, the detainees can be represented by NGOs providing legal counselling to asylum seekers.[2] In the proceedings in front of the SAC, a representation by an attorney at law is obligatory.[3] The detainees can again request the court to appoint them an attorney free of change.
Asylum seekers may face obstacles in accessing legal assistance in detention. Legal counsels are usually present in each of the detention centres once or twice per week for only about 2-3 hours. Typically, the detainees are requested to register for legal counselling ahead in order to organize adequate translation. If a detainee fails to register, they may not be able to get in touch with the counsel which may result in missing important deadlines. Furthermore, it may be difficult to organize interpretation for some of the rare languages. Moreover, as the interpretation is usually organized via phone, the understanding may be limited due to the lack of visual support, the difficulty in building trust between the interpreters and the detainees, and the poor voice transmission quality resulting from the bad reception due to the remoteness of the places where the detention facilities are located.
Moreover, as explained above, at present, the counselling is provided by an attorney at law, selected on the basis of a public tender by the MoI, and NGOs, on the basis of a grant provided by the MoI, following the changes in the funding of legal counselling implemented after 2022.
In the past, OPU, as well as some of the courts, noted doubts regarding the quality of legal counselling provided by the attorney at law hired by the MoI.[4] Following the end of provision of legal aid in detention facilities by OPU by the end of 2022, where OPU no longer had access to the detention facilities, several clients kept turning to OPU by post and phone, citing lack of trust towards the new legal aid providers. In the few cases that OPU could follow, it observed that the lawsuits prepared by the attorney were typically extremely short (1-2 pages). Typically, the attorney would repeat the personal history of the client, state they do not agree with the detention decision and request the court to assign the client a legal representative paid by the court. This newly assigned attorney would then have to supplement the lawsuit with additional argumentation, typically within deadlines of just a few days. Notwithstanding the fact that such a system is even more costly for the national budget, it can also endanger the chances of asylum seekers and detainees in succeeding in the relevant proceedings. Per the Administrative Procedure Code, all the relevant points of appeal have to be included in the original submission. After the time-limit for bringing the matter to court expires, it is only possible to provide additional argumentation on the points of appeal already included in the original submission, but not to add new ones. Accordingly, it is crucial that the original submission includes, at least in short form, all of the relevant points of appeal. While these requirements have been rendered less stringent resulting from EU law requiring the court to ex officio verify that all legal conditions for the detention are met, some courts are not aware of this obligation and a good quality lawsuit remains fundamental for the success of a case. Shortcomings of the system for legal aid for detainees as well as the quality of legal aid provided by attorneys after 2022 are apparent also based on the inquiry of the Ombudsperson (see above).[5]
Detainees do not have access to their mobile phones and have only limited access to the internet due to unstable internet connection in some of the detention facilities. They have access to a phone booth located in the corridors of the detention centre. This can make contact between detainees and their lawyers challenging as the lawyers are unable to contact the detainees directly and flexibly in case of need.
On the other hand, lawyers can visit their clients during the visitation hours of the detention centre. They have to request an entry permit from the RFA.
Meetings are usually held in private. The only exception is when the detainee is held in a strict regime section. In this case, a police person will usually be present, although such practice is contrary to the law.[6] This practice has been criticized by the Ombudsperson.[7]
Lawyers can request to be accompanied by an interpreter. In a case where the legal counselling is funded through an MoI grant, the interpreter can be paid from this budget. However, due to the remote location of the detention centres, the limited budget which would not allow to cover the costs of transport and time spent in transport, and the variety of languages spoken by the detainees, the interpretation is, however, usually organized on a distance basis through phone calls. In a case where the person pays their own private lawyer, they would also have to cover the costs of the interpreter.
[1] Section 46a(6) of the Asylum Act; section 35(10) of the Administrative Justice Code.
[2] Section 35(5) of the Administrative Justice Code.
[3] Section 105(2) of the Administrative Justice Code.
[4] Martin Kopa, ‘Zrcadlové bludiště azylového práva’, in Víceúrovňová spravedlnost: Soudní ochrana v kontextu interakce národního, nadnárodního a mezinárodního systému, Odborné sympozium pořádané Ústavním soudem u příležitosti předsednictví České Republiky v Radě Evropské unie (Constitutional Court of the Czech Republic, February 2023, page 33, available here.
[5] [5] Public Defender of Rights, Access to free legal aid for foreigners deprived of their liberty, report No KVOP-28177/2025, 16 July 2025, available in Czech here.
[6] Section 144(4) of the Immigration Act.
[7] Public Defender of Rights, inquiry report No 3728/2017/VOP, 25 April 2018, available here.