Publication details

Expulsion of aliens, non-refoulement and issues related to (administrative) discretion

Authors

BOKOVÁ Terezie BRAŽINA Radislav SKULOVÁ Soňa BEDNÁŘOVÁ Markéta

Type Appeared in Conference without Proceedings
MU Faculty or unit

Faculty of Law

Citation
Description Despite the notorious statement that states are, on the basis of their sovereignty, free to exercise their right to expel aliens, precluding them from further staying in their territory and entering it for a specified period of time again, the field of states’ discretion in the area of administrative expulsion of aliens is to a great extent limited through international human rights law. Building on the core principle of non-refoulement (and in particular the analysis of its content in case law of ECtHR), this paper presents its expression in Czech national legislation including also evaluation in which extent the Czech legislation meets the requirements of case law of ECtHR. Arguing that full compliance with the said principle requires appropriate institutional and procedural setting for administrative expulsion proceedings, it tries to identify possible shortcomings of the Czech approach, which is based on outsourcing the refoulement-risk assessment to an institution different from the one conducting the actual expulsion proceedings. In doing so, the paper relies on judicial reflection of the law and its application as well as a ‘mini study’ of administrative decisions. The authors also deal in this context with general issues of limits and principles of administrative discretion and their expression in relevant legislation, and administrative practice. Turning to comparative perspective, it looks into German and Austrian legal framework to see whether they are better or worse fitted for finding a solution to the central question: how to ensure that a state exercises its power to expel, but safely meets its international obligation under the principle of non-refoulement.
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