Judgement of the City Court in Prague, No. 7 A 7/2005 of 20 June 2005

The applicant, a Slovak national, brought action for annulment of the decision of the Ministerstvo vnitra (Ministry of the Interior of the Czech Republic).

The Ministerstvo vnitra rejected, without further examination, the asylum application, because the conditions set forth in Protocol No. 29 on asylum for nationals of Member States of the European Union ("Protocol") were not met.

The applicant argued that the examination of her application was formalistic and mechanical, and that her personal situation and the situation of her family have not been taken into consideration.

An additional claim made by the applicant was to transfer her asylum application for further proceedings to the Republic of Malta, because Malta has granted asylum to her daughter. She further argued that the decision of the Ministry cannot be reviewed, as the Protocol is inapplicable. Restriction of asylum for nationals of other member states became part of Czech asylum legislation (Zakon c. 326/1999 Sb., o azylu as amended by zakon c. 57/2005 Sb.) only after the examination of her application.

The applicant required in oral observations the interrogation of witnesses. She admitted her nationality of the member state of the European Union. Her case, however, shall be examined individually. Asylum granted to her Roma daughter by Malta, her Hungarian ethnicity and other circumstances shall be taken into consideration.

According to the court, the legal framework of the case is apparent, by virtue of the Treaty of Accession (ratified by the Czech Republic) and its Act Concerning the Conditions of Accession, the provisions of founding treaties are, as from the moment of the Accession, i.e. the 1st May 2004 - binding on new member states.

According to Article 10 of the Constitution of the Czech Republic, duly published international treaties to the ratification of which the Parliament has given its consent and by which the Czech Republic is bound, form part of the (Czech) legal order. If a treaty provides something other than that which a statute provides, the treaty shall prevail.

At the time of the contested decision, the Zakon o azylu did not contain any provision as to the applications for asylum of nationals of other member states.

According to the Protocol - forming integral part of the Treaty Establishing the European Community - applications for asylum of nationals of other member states can only be considered if conditions set out in the Protocol are met.

In the case of the applicant, however, these conditions were not met. The Czech Republic is not empowered to continue proceedings in the application. The Ministry has not erred in rejecting the application without further examination.

As an obiter dictum, the Court noticed that by virtue of Article 18 of the EC Treaty, the applicant enjoys the right of free movement within the territory of the Member States. According to the case law of the European Court of Justice, the provision is directly effective. Taking into account the right of the applicant to move freely within the European Union, the creation of a similar right by asylum is redundant.