Author
In practice, detained persons are informed of both the reasons for their detention and the possibility to challenge the detention decision before an administrative court exclusively through the written detention decision. The decision, including the instruction on available remedies, is interpreted into a language the person understands, which is also the language used during the detention proceedings preceding the issuance of the decision.
However, at that stage, persons are not specifically informed about the possibility of being represented by the Centre for Legal Aid, a private lawyer or a non-governmental organisation. As a result, the right to an effective remedy may remain largely an abstract concept for detainees at the start of their detention period. Information about the Centre for Legal Aid is typically provided only after placement in the detention facility, while information about the availability of legal assistance from non-governmental organisations is generally not provided by the authorities. In practice, detainees often learn about the possibility of NGO representation informally from other detained persons.
Detained applicants for international protection have the right to challenge their detention before an administrative court by lodging an administrative action. There is no automatic review of the lawfulness of detention. Applicants may be represented in detention-related judicial proceedings by an attorney, the Centre for Legal Aid, or a non-governmental organisation providing assistance to third-country nationals.
The applicant may seek the annulment of a decision on detention or extension of detention. Where the applicant has already been released from detention, he or she may seek a declaration that the detention decision was unlawful. An administrative action challenging detention must be lodged within seven days from the notification of the decision on detention or the decision on extension of detention.
Applicants may also request release from detention through judicial proceedings. An administrative action requesting release from detention may be lodged at any time during the period of detention, including repeatedly. Where the administrative court has dismissed a previous action, a new action without invoking new grounds may be submitted only after the expiry of 30 days from the date on which the previous court decision became final.
Jurisdiction in detention cases lies with the Administrative Court in Bratislava and the Administrative Court in Košice, while cassation complaints are decided by the Supreme Administrative Court.
The administrative action is formally submitted to the police authority which issued the contested detention decision. The defendant authority is required to forward the administrative action to the competent administrative court within five working days of its submission, together with its written observations and the administrative case file.
The lodging of an administrative action does not have suspensive effect, meaning that the detention decision remains enforceable pending the outcome of judicial review.
The administrative court must decide on the administrative action at a hearing within seven working days from the date on which the action is submitted to the court. This time limit does not apply where the applicant has already been released from detention.
Where the administrative court finds an administrative action challenging detention decision to be well-founded, it may issue a judgment which, depending on the circumstances of the case:
- annuls the contested decision on detention, extension of detention or extension of the detention period and orders the immediate release of the applicant from detention;
- imposes, following the taking of evidence, a less coercive measure under the applicable legislation which fully replaces the contested detention decision, and orders the immediate release of the applicant (full jurisdiction of the court);
- annuls the contested decision where it contains remediable defects and remits the case to the police authority for further proceedings; or
- declares that the contested detention decision was unlawful.
Where the administrative court finds an administrative action requesting release from detention to be well-founded, it may issue a judgment which, depending on the circumstances of the case:
- orders the defendant authority to release the applicant from detention without delay; or
- following the taking of evidence, orders the defendant authority to release the applicant without delay and imposes a less coercive measure under the applicable legislation.