Slovenia - The Administrative Court of Republic of Slovenia, 21 April 2011, Judgment I U 677/2011

Country of Decision:
Country of Applicant:
Date of Decision:
21-04-2011
Citation:
I U 677/2011
Court Name:
The Administrative Court of the Republic of Slovenia
National / Other Legislative Provisions:
Slovenia - Act on International Protection Art 50(2)
Slovenia - Act on International Protection Art 50(3)
Slovenia - Constitution Art 23
Slovenia - Constitution 156
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Headnote: 

A decision terminating the procedure is unlawful and it is not in the function of providing access to the asylum procedures and the protection of the principle of non-refoulement, if the Asylum authority immediately and automatically as soon as the applicant failed to appear for the personal interview, even though he was regularly summoned and informed of the consequences if he does not appear, issued a decision to close the case, without firstly carrying out reasonable activities within the reception centre in order to establish why the applicant did not attend the interview.

In the event that a national legal norm is not in compliance with EU law, the court does not suspend the procedure for assessment of constitutionality of the disputed provision, but ignores the disputed legal provision and directly uses a clear and unconditional provision of secondary EU law with a direct effect. The obligation to ignore the national norm in such cases also applies to administrative authorities.

Facts: 

The applicant, residing in an open reception centre was properly informed about the date of his interview, but on the day of the interview he did not appear in the interview room (inside the reception centre). The Asylum authority issued a decision closing the case within a few hours and delivered it to the applicant who was inside the reception centre, but did not come to the interview because he thought it is going to be the next day. He was immediately taken to the closed centre for foreigners.

The applicant appealed the decision, claiming that despite the provisions in the law (first aliena of Article 50(2) and Article 50(3)) that state that if the applicant does not appear at the interview without prior excuse, his application is considered withdrawn and the Asylum authority has to close the case, in his case, the Asylum authority used this provision too rigidly, as the only thing that the Asylum authority should have done is ask at the reception of the reception centre, which is 10m from the interview room, to check if the applicant is in the reception centre and ask if he is planning to attend the interview or not. The applicant also claimed that first aliena of Article 50(2) is unconstitutional. 

Decision & Reasoning: 

The Court ruled that the Asylum authority wrongly applied Article 50(2) because it used only its linguistic interpretation, which is not in compliance with EU law. The Court did not suspend the procedure for assessment of constitutionality of the disputed provision, because it is an established practice of the CJEU (C-106/77, Simmenthal; C-213/89, Factortame) that in such cases the national court should ignore the disputed legal provision and directly use a clear and unconditional provision of secondary EU law with a direct effect. The obligation to ignore the national norm in such cases also applies to administrative authorities (C-118/00, Larsy; C-198/01, CIF)

The decision of the Asylum authority is unlawful for the following reasons:

It does not result from Article 20(1)(a) of Procedures Directive 2005/85/EC (‘APD’) that if the applicant fails to attend a personal interview, the Asylum authority stops the procedure and orders the applicant to immediately leave the country. In such cases Article 20(1) of the APD foresees either discontinuation of procedure or a rejection on the merits. Both of these options would have the function of providing the applicant access to the asylum procedure and the protection of the principle of non-refoulement. The contested decision did not, however, fulfil this function since the Asylum authority acted immediately and automatically as soon as the applicant failed to appear for the personal interview by issuing a decision to close the case without firstly carrying out reasonable activities within the reception centres to see why the applicant did not attend the interview. This is still the case notwithstanding that the applicant was regularly summoned and informed of the consequences if he does not appear.

The Court does not find it incredulous that the applicant has made a mistake regarding the date of the interview. It is also essential that the applicant did not prevent or significantly hamper the procedure, since he was in the immediate vicinity of the place where the interview should have been carried out. It is exactly for this purpose (to prevent the hampering of the procedure) that Article 20 of the APD was adopted and not to punish the applicant.

The problem of non-compliance with the APD occurs when the Slovenian legislation is assessed from the perspective of Article 20(2) of the Directive. This provision says that Member States shall ensure that the applicant who reports again to the competent authority after a decision to discontinue is taken, is entitled to request that his/her case be reopened. According to the Slovenian legislation, the applicant, who did not explicitly withdraw the application, nor has it been finally rejected, cannot request a re-opening of a procedure as it is allowed by the APD.

Unlawfulness of the contested decision is not only linked to secondary EU law, but also to primary EU law. The right to asylum is a fundamental human right (Article 18 of the Charter). A fundamental human right could be restricted only in accordance with the principle of proportionality. In this case the restriction of this right is prescribed by law, however this procedure does not respect the essential content of that right since the Asylum authority applied the disputed legal provision in such a way that the applicant did not have any other means available to have his application examined on the merits. Furthermore, the disputed legal restriction on the right to asylum goes beyond what is necessary and it does not correspond to the objectives of general interest recognised by the Union, since the restriction is not necessary to protect certain rights of others or for the efficient management of the procedure. The interference with the right to asylum is therefore also not in accordance with Article 52(1) in conjunction with Article 18 of the Charter. 

Outcome: 

The Court annulled the decision and returned the case to the Asylum authority for new adjudication. 

Case Law Cited: 

CJEU - C-257/00, Givane

CJEU - C- 283/81, Cilfit

CJEU - C-198/01, CIF

CJEU - C-118/00, Larsy

CJEU - C-213/89, Factortame

CJEU - 106/77 Simmenthal II