Slovakia - N.P. v Ministry of Interior of the Slovak Republic, 1 February 2012, 10Sža/61/2011

Country of Decision:
Country of Applicant:
Date of Decision:
01-02-2012
Citation:
10Sža/61/2011
Court Name:
Supreme Court of the Slovak Republic
National / Other Legislative Provisions:
Slovakia - Ústava Slovenskej republiky (Constitution of the Slovak Replublic) - Art 47(2)
Slovakia - Civil court procedure - Part V
Slovakia - Zákon 71/1967 Zb. o správnom konaní (Act No. 71/1967 on Administrative Procedure) - §32
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Headnote: 

In the opinion of the Court, generally accepted principles of administrative procedure such as the right of a participant to be heard, the right to comment on the basis for a decision, the right to present evidence in support of one’s claims in a procedure and the right to be informed of the grounds for an administrative act (Resolution 77(31) of the Committee of Minister of the Council of Europe of 28 September 1977) must not be disregarded in the case in question.

Facts: 

The Regional Court in Bratislava upheld the decision of the Migration Office, which rejected the Applicant’s request for asylum as manifestly unfounded.

The Respondent justified its decision to reject the application as manifestly unfounded on the grounds that it had taken note of the Applicant’s previous asylum requests, and it stated that the only reason for the Applicant’s departure from her country of origin was the unfavourable economic situation; she was therefore an economic migrant who was seeking to exploit the asylum system to legalise her stay in Slovakia and thus avoid deportation. With regard to the Applicant’s claim that she was afraid she would not see her children if she returned to Moldova, as they live in Slovakia, the Migration Office argued that, in view of the facts established in relation to her two children (who have been entrusted to the care and custody of others), it had concluded that this ground was simply strategic.

The Applicant claimed in her appeal to the Regional Court in Bratislava that an error had occurred in the proceedings which affected the legality of the decision – that she had stated before the start of the admission interview on 23 May 2011 that she wished to make a statement in the presence of her lawyer, that she had chosen a legal representative for the proceedings, that the employees of the Migration Officewho conducted the interview had told her that she could make a statement even without her lawyer being present and that she had been afraid to refuse to make a statement, that she had not received a summons to the (admission) interview on 23 March 2011 and that she was thus unable to prepare for the interview. The Applicant also claimed that the Migration Office failed to establish the facts fully, that it had not addressed her case and the grounds she had presented, that she came from Transnistria, which declared independence from Moldova in 1990, and that the contested decision had been issued only two days after the admission interview took place. The Applicant also claimed in the appeal that the Migration Office had failed to consider the possibility of granting her asylum on humanitarian grounds.

In the opinion of the Regional Court in Bratislava, the claims were unfounded, and thus incapable of causing the contested decision to be set aside. The Court therefore upheld the decision of the Migration Office.

The Applicant filed an appeal against the judgment of the Regional Court in Bratislava with the Supreme Court of the Slovak Republic, in which she claimed that the decision of the court of first instance was based on an incorrect legal assessment of the case, that the court of first instance had arrived at an incorrect finding of fact on the basis of the evidence submitted, that the procedure of the Migration Office as the administrative authority contained a defect that had an impact on the legality of the decision, that the administrative authority had failed to establish the facts fully and, finally, that the administrative authority had failed to consider the possibility of granting the Applicant asylum on humanitarian grounds under Section 9 of the Asylum Act. 

Decision & Reasoning: 

Inasmuch as the Applicant claimed in the appeal that the Migration Office had, through its actions, committed a fundamental breach of the procedural obligations imposed on it by Article 47(2) of the Constitution of the Slovak Republic, the Administrative Procedure Code and the Asylum Act with regard to the fact that she had clearly expressed a wish to have a legal representative in the asylum proceedings by stating that she had “chosen a legal representative” for the proceedings, this claim was well-founded, and on the basis of the foregoing the Regional Court ought to have set aside the Migration Office’s contested decision and referred the case back to it. As the Regional Court upheld the Migration Office’s decision, the appeal court concluded that Regional Court’s decision had to be amended.

The Applicant also clearly demonstrated (as was apparent from the contents of the administrative file) that she had known nothing about the interview. It is quite clear that the administrative authority’s file included a summons dated 19 May 2011 for the Applicant to attend an oral interview, and on the back page there is a confirmation of the delivery of the document, but the summons lodged in the file has not been signed by the Applicant with a record of the date of receipt of the summons.

In the opinion of the appeal court, the Applicant knew nothing about the interview, and was thus unable to make adequate advance preparations for it, seek advice from her legal representative and set out all of the facts that were important for the assessment of her asylum application. Since she did not find out until the moment she was led in for the interview, she was denied the possibility of preparing adequately and of informing her chosen legal representative about the interview.

The procedure and decision-making of the Court in the appeal against the Migration Office’s decision not to grant asylum constitutes a procedure for reviewing the legality of the decision pursuant to Part V of the Civil Procedure Code and not a continuation of the administrative procedure. It is therefore not the role of the court of first instance or the appeal court to add to the argumentation on the merits of the  decision of the Migration Office or the legal argumentation, and neither is it their role to take evidence in relation to the facts, the finding of which is the role of the administrative procedure. In view of the foregoing, it would not be right to set aside the decision of the Regional Court and refer the case back to that Court. The appeal court concluded instead that the decision of the court of first instance should be amended so that the Migration Office’s decision be set aside, as there was a defect in the procedure of the administrative authority which might have affected the legality of the contested decision.

 The Court noted that a detailed examination of an Applicant in asylum proceedings is a primary precondition for establishing and clarifying the grounds on which the Applicant is requesting asylum. It has obvious significance in determining the scope and method of any further evidence that is to be taken, the evaluation of which must be adequately justified in the reasoning of the decision. Only by following this procedure can a proper finding of fact be achieved.

The taking of evidence by examining the Applicant to establish the grounds of an asylum application forms a necessary part of the finding of facts in the administrative procedure, and is the role not of the Court but of the Migration Office. It should be stated that the obligation to determine the facts under Section 32 of the Administrative Procedure Code rests with the Migration Office within the scope of the grounds set out by the Applicant during the proceedings.

In the opinion of the Court, generally accepted principles of administrative procedure such as the right of a participant to be heard, the right to comment on the basis for a decision, the right to present evidence in support of one’s claims in a procedure and the right to be informed of the grounds for  an administrative act (Resolution 77(31) of the Committee of Ministers of the Council of Europe of 28 September 1977) must not be disregarded in the case in question.

Outcome: 

The Supreme Court amended the judgment of the Regional Court in Bratislava, setting aside the decision of the Migration Office and referred the case back to the Migration Office.

Subsequent Proceedings : 

The Migration Office is currently conducting subsequent proceedings in the case of the Applicant.

Observations/Comments: 

President of the Bench: JUDr. Jana Henčeková, PhD., members of the bench: JUDr. Zuzana Ďurišová and JUDr. Elena Berthotyová, PhD.  

Other sources cited: 

Resolution 77(31) of the Committee of Ministers of the Council of Europe of 28 September 1977