Slovakia – Supreme Court, 29/7/2014, M.L.J. in Ministry of Interior of the Slovak Republic, Presidium of the Police Force, Foreign and Border Police, Directorate of the Foreign and Border Police Sobrance, Department of the Border Control Podhoroď, 1Sža/21

Country of Decision:
Country of Applicant:
Date of Decision:
29-07-2014
Citation:
M.L.J. in Ministry of Interior of the Slovak Republic, Presidium of the Police Force, Foreign and Border Police, Directorate of the Foreign and Border Police Sobrance, Department of the Border Control Podhoroď, 1Sža/21/2014
Court Name:
Supreme Court of the Slovak Republic
National / Other Legislative Provisions:
Slovakia - Act No 460/1992 Coll.
the Constitution of the Slovak Republic Art. 8(1)
the Constitution of the Slovak Republic Art. 8 (2)
the Constitution of the Slovak Republic Art. 143(1)
Slovakia - Act No 480/2002 Coll. on Asylum and amending certain other Acts §22 (1)
Slovakia - Act No 404/2011 Coll. on the Residence of Aliens and amending certain other Acts § 77(1)
Slovakia - Act No 404/2011 Coll. on the Residence of Aliens and amending certain other Acts § 88a (1)(a) point 1
Slovakia - Act No 404/2011 Coll. on the Residence of Aliens and amending certain other Acts § 88 (2)
Slovakia - Act No 404/2011 Coll. on the Residence of Aliens and amending certain other Acts § 88 (3)
Slovakia - Act No 404/2011 Coll. on the Residence of Aliens and amending certain other Acts § 88 (4)
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Headnote: 

The Respondent erred in detaining the Applicant under § 88a (1)(a) point 1 of Act No 404/2011 Coll. on the residence of aliens and amending certain other Acts in proceedings relating to administrative expulsion to the Ukraine, despite being aware of the Applicant’s intention to apply for asylum. The Respondent also incorrectly assessed whether Ukraine is a safe third country as he failed to take into account recent information on the current situation in Ukraine. Moreover, in assessing the risk of absconding, the Respondent asked improper questions. As such the Respondent's conduct violates principles of good governance.

Facts: 

The Respondent decided to detain the Applicant in relation to proceedings concerning his administrative expulsion to Ukraine, as the Applicant had irregularly crossed the external border from the territory of Ukraine to Slovakia and the Respondent had concluded that in this case there was a risk of absconding.

The Regional Court in its decision stated that the decision of the Respondent was to be revoked and ordered the immediate release of the Applicant from the detention facility.

The Respondent appealed against the court’s ruling, arguing that the Court had incorrectly concluded that the respondent was aware that the Applicant applied for asylum during the first interview. In the Respondent’s view the second error of the court concerned recognition of the unfeasibility of objections to return the Applicant to Ukraine. 

Decision & Reasoning: 

The Supreme Court of the Slovak Republic confirmed that deprivation or restriction of personal freedom contravenes the constitutional order of the Slovak Republic, international commitments in the area of protection of fundamental rights that Slovakia is bound by and provisions of the Return Directive, if at the moment of deciding whether to detain the person in question it became evident that he crossed the border to Slovakia with the intention of applying for asylum. Hence, it is unlikely that the purpose of detention - in this particular case returning the person to the country from which he crossed the border - will be feasible to realise on account of the ongoing asylum application process. As long as the alien is staying in Slovakia in order to apply for asylum, such a person cannot be considered as an ‘illegal person’ while residing in Slovakia. Instead of the time when the Applicant applied for asylum, it was crucial that the Respondent was aware of the existence of such intention when deciding whether to detain him.

The Supreme Court upheld the conclusions of the Regional Court that Ukraine had been wrongly evaluated as a safe country of origin. When performing such assessment the authority should have taken into account the latest country information. A country cannot be considered as a safe country of origin merely because it has ratified the readmission agreement with the EU and other international conventions. The Court further stated that the relevant authority has an obligation to deal not only with the legality of entry and residence of the asylum-seeker in Slovakia but also impediments which prevent returning him to the country from which he crossed the border.

The Supreme Court also dealt with the applicant’s objection that the respondent, when assessing the risk of absconding, had asked suggestive and ambiguous questions. The Regional Court had not addressed this argumentation, thereby failing to provide responses to arguments in its decisions as set out in Art. 46 (1) of the Constitution. Although the Code of Administrative Procedure does not address techniques of questioning, the court determined that "allowing to ask questions, which contain the desired answer, misleading questions or questions that include the facts that are to be ascertained from the deposition or the statement" would be contrary to the principles of good governance as it would place the Applicant in a disadvantageous position.

Outcome: 

Appeal denied. The Supreme Court affirmed the decision of the Regional Court.

Observations/Comments: 

This case summary was written by Viktoria Skrivankova, a gradute of LLB Law and Human Rights at Essex University and a graduate of LLM European Law at Leiden University.

The case summary was proof read by Lukas Guttek.

Case Law Cited: 

Slovakia - Constitutional Court III. ÚS 239/06, no. 62/2006 Zb. ÚS

Slovakia - Constitutional Court I. ÚS 217/05, no. 30/2006 Zb. ÚS

Slovakia - Constitutional Court II. ÚS 147/2013 dated 9th October 2013

Slovakia - Supreme Court 1Sža/5/2013 dated 3rd May 2013

ECtHR - Nolan and Others v Russia, Application No. 2512/04

ECtHR - Rashed v Czech Republic, Application No. 289/07

ECtHR- Shamsa v Poland, Application no. 45355/99

ECtHR - Singh v. the Czech Republic, Application No. 60538/00, UP

ECtHR - Amuur v. France, Application No. 19776/92

ECtHR - Conka v Belgium (Application no. 51564/99)