Slovenia - Administrative Court of the Republic of Slovenia, I U 835/2016, 14 June 2016

Country of Decision:
Country of Applicant:
Date of Decision:
14-06-2016
Citation:
I U 835/2016
Court Name:
Administrative Court of the Republic of Slovenia
National / Other Legislative Provisions:
Slovenia - International Protection Act (ZMZ) - Article 71
Slovenia - International Protection Act (ZMZ) - Article 71(4)
Slovenia - International Protection Act (ZMZ) - Article 84
Slovenia - International Protection Act (ZMZ) - Article 84(1)
Slovenia - International Protection Act (ZMZ) - Article 84(2)
Slovenia - Aliens Act Article 2
Slovenia - Aliens Act Article 68
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Headnote: 

The applicant’s asylum application was rejected in Croatia and he received an order to leave the country in 30 days. The Slovenian Asylum authority detained the applicant due to the risk of absconding, because he left Croatia before receiving a decision in his asylum procedure. The Court ruled that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding (the applicant actually respected the order to leave the country) and therefore the applicant does not present a risk of absconding. The Court also held that the measure was not necessary, that the Asylum authority incorrectly referred to its discretionary powers in this matter and that the objective criteria to determine when someone presents the risk of absconding (from Article 68 of Aliens Act-2) have not been applied.

Facts: 

The Asylum authority issued a detention order for the applicant for the purpose to execute the Dublin transfer to Croatia (Article 28(2) of Dublin III Regulation and Article 84(2) of International protection Act-1 (IPA-1)). The applicant stated that he was detained in Croatia and was told that he would be released if he applied for asylum. His application was rejected and he was given a 30-day deadline to leave the country. When he arrived in Slovenia he firstly applied for asylum, but then withdrew his application. When his freedom of movement was restricted, he applied for asylum again.

The Asylum authority is of the opinion that the applicant presents the risk of absconding because of his opportunistic behaviour regarding his applications for asylum in Croatia and Slovenia. Such behaviour confirms the belief of the authority that the applicant will leave the reception centre in Slovenia and try to continue his journey to another Member State, thereby making it impossible to be transferred to the Croatian authorities.

The Asylum authority also assessed whether a less restrictive measure could be used, i.e. detention in the area of reception centre, and concluded that it is necessary to impose a more stringent measure, since the detention on the territory of the reception centre is proved to be inefficient as security is not sufficient to prevent persons from leaving the reception centre.  

The applicant argues that the Asylum authority wrongly ascertained that it had discretion in applying Article 28(2) notwithstanding that the article provides no such discretion. The applicant also complains that the authority did not assess the risk of absconding according to objective criteria laid down in the law and that the conclusion that he presents the risk of absconding is incorrect, since he only left Croatia once he got a negative decision and therefore there is no reason to think that he would not wait for the decision in Slovenia . In addition, the applicant argued that the authority did not conduct the necessity test, since Croatia did not yet respond to the take back request and therefore the detention is not yet necessary. Lastly the applicant advanced  that the authority’s conclusion that less restrictive measures cannot be used is incorrect since it is not the applicant’s fault that the only alternative to detention foreseen in the law cannot be used because of inappropriate security arrangements in the reception centre and that the inability to use less coercive means of detention should refer to the situation in relation to the applicant, and not to the general circumstances of ensuring order and security in the reception centre.

Decision & Reasoning: 

The Court ruled that according to Article 28(2) of Dublin III Regulation and Article 84(2) of IPA-1, an asylum seeker can be detained in order to enable the implementation of the Dublin procedure only if there is a significant risk of absconding and that detention is proportionate and less restrictive means cannot be used effectively, as well as that the detention is necessary for the implementation of the transfer under the Dublin procedure.

The Court recognised that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding from Croatia, since the applicant actually respected the order to leave the country and therefore the applicant does not present the risk of absconding. The Asylum authority did not asses the risk of absconding according to the objective criteria defined in the law.

The Court also agrees with the Applicant that since the transfer to Croatia was not yet confirmed, the deprivation of liberty cannot be considered as necessary. 

Outcome: 

Appeal was granted and detention order quashed. According to the second subparagraph of Article 9 of Directive 2013/33/EU, in connection with the Article 28(4) of the Dublin III Regulation, in the case where "in the context of judicial review it turns out that the detention was illegal, the applicant should be immediately released." According to Article 71(4) of IPA-1, an appeal against the judgment of the administrative court is permitted only in the circumstances described in Article 73(1) of the Act on Administrative Dispute-1, which in the present case are not present, as the Court did not change the Asylum authority’s decision on the basis of different factual findings. This means that this judgment is final and effective as soon as it is served to the applicant. Therefore, the applicant should be immediately released from detention in the Aliens Centre.

Case Law Cited: 

Slovenia - Supreme Court: I Up 26/2016, 15.3.2016

Slovenia - Administrative Court: I U 801/2016, 7.6.2016