CYIL vol. 8 (2017)

PETR VÁLEK CYIL 8 ȍ2017Ȏ This legal framework, however, did not cover the relation between the sending State and its national in a situation when consular protection was invoked. This legal vacuum led to many misunderstandings between Czech nationals on one side, and diplomatic missions and consular posts on the other, as to what the Czech “representatives offices” must do and what the limits are to their involvement. In order to fill in this vacuum, the Act on Foreign Service contains Chapter IV on the exercise of consular service, which deals primarily with consular protection. The scope of consular protection is outlined in § 17(2) of the Act through a demonstrative list of possible scenarios when consular protection is provided, both to Czech citizens and unrepresented citizens of the EU. This provision is a transposition of Article 9 of the above-stated Council Directive 2015/637: 17 “The consular protection includes help in particular a) in case of restriction on personal freedom, b) to the victims of crimes, f ) during an extraordinary event abroad that has a harmful impact from powers and effects caused by a human activity, natural powers, as well as accidents that threaten life, health, property or the environment, if a higher number of persons is affected.” The first sentence of the subsequent § 17(3) of the Act is based on Article 36(1)(b) of the Vienna Convention on Consular Relations: “The representative office provides appropriate help to a citizen restricted in personal freedom, if he or she so requests.” The will of such a citizen is respected, as consular practice has shown that not every citizen wants to involve the Czech “representative office” in case of his or her arrest, as they prefer to protect their reputation vis-à-vis the Czech authorities, employer, family etc. Nevertheless, the second sentence provides for a higher standard not contained in the Convention: “[The representative office] informs such a citizen of his or her fundamental rights under the domestic law of the State where he or she is located and on the conditions for obtaining legal aid and follows whether the treatment of such citizen complies with minimal recognized international standards and local legal regulations.” While this provision is beneficial for Czech citizens, it undoubtedly puts new demands on the Czech consular officers, who will have to make themselves familiar with the domestic law of the receiving State, in particular with its constitutional law (in order to know the “fundamental rights”). 17 Council Directive (EU) 2015/637 of April 20, 2015, on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/ EC, Article 9: “The consular protection referred to in Article 2 may include assistance, inter alia, in the following situations: (a) arrest or detention; (b) being a victim of crime; (c) a serious accident or serious illness; (d) death; (e) relief and repatriation in case of an emergency; (f) a need for emergency travel documents as provided for in Decision 96/409/CFSP.” c) in case of emergency, d) in relation to death, e) to minors who are abroad without accompaniment,

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