4. Procedural guarantees 4.4. Access to asylum procedures from detention Council Regulation (EC) No. 343/2003 – Dublin II Article 3.1 Member States shall examine the application of any third-country national who applies at the border or in their territory […] for asylum. All EU Member States are State Parties to the 1951 Convention relating to the Status of Refugees. As such, they are bound to guarantee to refugees the rights enshrined in the Convention. To do this, fair and efficient procedures must be put in place to determine who qualifies as a refugee. There has to be unimpeded access to such procedures.245 Article 18 of the EU Charter of Fundamental Rights enshrines a right to asylum. In addition, Article 19 of the Charter contains a prohibition of return to torture, degrading and inhuman treatment or punishment, which reaffirms the obligations of Article 3 ECHR. The Asylum Procedures Directive246 sets forth minimum standards for the processing of applications for international protection and the Dublin II Regulation establishes a mechanism to ensure that each application for international protection is reviewed, regardless of where these are submitted.247 In principle, no EU country prohibits request for international protection by persons in detention. However, in practice a number of obstacles may render this difficult. This section will touch upon some of these, without, however, commenting on the fairness or efficiency of domestic asylum procedures as such. One obstacle relates to information and legal counselling, which is generally more difficult to access for a person in detention as compared to persons hosted in open facilities. In consideration of such difficulties, the Asylum Procedures Directive explicitly foresees a duty by states to allow access by legal counsellors to detained asylum 245 This obligation has been consistently reaffirmed by the Executive Committee of the UNHCR Programme. See Conclusions on International Protection No. 71 (XLIV) – 1993 at (i), No. 74 (XLV) – 1994 at (i), No. 82 (XLVIII) – 1997 at (d) (ii), No. 85 (XLIX) – 1998 at (p), No. 87 (L) – 1999 at (j) and No. 100 (LV) – 2004. 246 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. Article 3 specifies that the minimum standards set forth in the Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States. 247 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national at Article 3.1. seekers.248 This is in practice not always the case. For example, in Austria, the Human Rights Advisory Board concluded that due to limited access to legal counselling and legal information, legal advice and representation depends heavily on the self-initiative of the person detained and adequate financial means.249 In Hungary, if asylum seekers wish to contact a lawyer in the guarded shelter for foreigners in Nyírbátor, they need to write an official request to the commander in advance and then wait for the lawyer’s visit.250 In Latvia, information leaflets on asylum are not freely available, but distributed only on an ad hoc basis or upon request.251 A second obstacle derives from restrictions in the communication with the outside world, including access to telephones and restrictions to receive visits. In Cyprus, for example, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found that some detainees were forbidden any contacts with the outside world252 in order to prevent the submission of an asylum application. Finally, a third set of obstacles is of a procedural nature. Domestic legislation may require persons who entered in an irregular manner to submit an application for asylum immediately or within a short time frame,253 something which is difficult to achieve in the absence of legal counselling, as is often the case in detention facilities. Moreover, applications submitted by persons in detention may be considered as abusive and processed in an 248 At Article 16.2. The Commission has tabled amendments to the Directive suggesting to strengthen information and counselling in detention facilities, see Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast), COM(2009) 554 final, 21 October 2009, proposed Article 7. 249 Austria, Menschenrechtsbeirat, Rechtsschutz für Schubhäftlinge, 2008, pp. 12f. 250 Information regarding the need for written requests was provided to the researchers by the Hungarian Helsinki Committee as regards the facility in Nyírbátor. See also UNHCR, Being a Refugee How Refugees and Asylum Seekers Experience Life in Central Europe, July 2009, p. 22. 251 Information provided by the Latvian State Border Guards. See also: I. Pūce (2005) Report on the Situation of Fundamental Rights in Latvia, EU Network of Experts on Fundamental Rights, available online at: http://cridho.cpdr.ucl.ac.be/documents/Download.Rep/Reports2005/ NationalReport/CFRLatvia2005.pdf, p. 26. 252 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, visit 8-17 December 2004, paragraph 37. 253 See, for example, Estonia, OLPEA Section 20 16 or Slovakia (Aliens Act, Article 12(2), where applications can be rejected as ill-founded if they are not submitted immediately after crossing the border. In Slovenia, the Supreme Court held that applying for an international protection only 5 days after an alien’s placement in detention amounts to abuse of the asylum procedure (decision VS18555, 11. 4. 2007, available at: http://ius. info/Baze/sovs/ji000572.htm). In Belgium, applications for international protection have to be launched within 8 days from the irregular entry into the territory, (Law on Foreigners, Article 50). In the Czech Republic, the law stipulates a term of seven days for applying for international protection from detention, which is counted from providing the information of the possibility to seek protection by police (Section 3b/1 Asylum Act). 47