Slovenia - Constitutional Court, 18 December 2013, U-I-155/11

Country of Decision:
Country of Applicant:
Date of Decision:
18-12-2013
Citation:
U-I-155/11
Court Name:
Constitutional Court of the Republic of Slovenia
National / Other Legislative Provisions:
Act ratifying the Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia on the readmission of persons whose entry or residence is illegal
Ordinance on the proclamation of the Republic of Croatia as a safe third country
Slovenia - Ustava Republike Slovenije (Constitution)
Slovenia - Ustava Republike Slovenije (Constitution) - Art 22
Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act)
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Headnote: 

The contested judgment is unconstitutional as it does not provide a clear way of assessing the jurisdiction of the third country when dealing with the application. It also reveals that the situation of the Applicant for international protection is unclear in the event that the application is rejected by the third country and the Applicant is not allowed to enter its territory, and shows that it is unclear as to what the Applicant can contest in this procedure.

An efficient legal system that would stop the extradition to a country in which the Applicant could be exposed to inhuman treatment has to have suspensive effect.

Facts: 

The Applicant filed a request with the Constitutional Court to assess the constitutionality of Articles 60, 61, 62 and 63 of the Act on International Protection (ZMZ) which govern the institution of a safe third country. According to the Applicant, the concept of defining countries as safe third countries is not in accordance with the Constitution of the Republic of Slovenia and international law. This way of deciding applications for international protection enables enables automatic decision-making and serial rejection.

The Applicant also stated that the ZMZ articles are unconstitutional because they are unclearly worded in the places where they link the Applicant for international protection to a safe third country in which the Applicant was 'staying' before he arrived in the Republic of Slovenia. In practice, the authorities also use these provisions in cases in which the Applicant merely crossed a third country, without having an actual or legal bond with the third country.

He also stated that the concept of the safe third country is  unconstitutional because it does not provide for a suspensive appeal against a rejection of an application for international protection.

Decision & Reasoning: 

The Constitutional Court believes that the Applicant's statement that the concept of the safe third country is in itself inconsistent with the principle of non-refoulementdoes not hold true. The non-refoulement principle does not give the Applicant the right to select the country of protection. The safety of the third country can be assessed in each individual case or in general. The Applicant needs to have the possibility of refuting the assumption as regards the safe third country. The legal criteria for assessing a safe third country (analogue to the criteria stipulated in Article 27(1) of the Procedures Directive) fulfil the requirements originating from the non-refoulmement principle. In the event that a government defines a safe third country in conflict with the legal criteria, judicial protection is ensured in administrative proceedings.

As regards the term »staying«, the Constitutional Court found that it is not precise enough and that it includes a wide range of situations that can differ greatly as regards the intensity of the Applicant's contact with the territory of the third safe country on the basis of which the individual may be returned to this country (logical connection). On the one hand, this enables the explanation that, for the presence of a logical connection, it is sufficient for the Applicant to undoubtedly arrive from the mentioned third country. On the other hand, the term also enables the explanation offered by the Applicant, that only legal residence in a third country represents a logical connection. This allows the possibility of various uses in essentially similar cases, as well as the possibility for state bodies to arbitrarily decide concerning the rights of individuals. Because the removal of the applicant for international protection to a third country can represent a threat to his rights as stipulated in Article 18 of the Constitution (prohibition of torture), a demand for clear and specific directives is of special importance. Due to the unclear wording as regards assessing the jurisdiction of the third country for examining the application, the contested ZMZ provision is not in accordance with the Constitution. Apart from this, it is also unconstitutional due to the unclear position of the applicant for international protection, if, once his application is rejected, the third country does not allow him to enter its territory, and the unclear circumstances, as to what the Applicant can contest in this procedure.

According to the established position of the Constitutional Court, the non-suspensive nature of the action in administrative proceedings does not necessarily effect Article 25 of the Constitution (right to appeal), because the plaintiff has a right to appeal and to demand a temporary postponement of the implementation. However,  the non-refoulement principle provides that, when assessing applications for international protection, states  must ensure that the procedure that does not hinder the real possibility for the Applicant to prove the merits of the application. In asylum cases, the ECtHR has - taking ECHR Article 3 into account - adopted the view that an efficient appeal against removal to a country in which the Applicant could be exposed to inhuman treatment needs to have suspensive effect in itself. According to the ECtHR, the demand for temporary suspension of the implementation cannot be a substitute for automatic suspension. The Constitutional Court concluded that the contested provision was unconstitutional because, when taking into account the irreparable damaging consequences that the Applicant could experience if inhuman treatment took place, accelerating and increasing the efficiency of the procedure and reducing costs for the state cannot be constitutionally acceptable objectives for limiting the right to judicial protection and the right to appeal.

Outcome: 

The Constitutional Court ruled partially in favour of the appeal, annulled Article 60 and the first paragraph of Article 62 of ZMZ and ruled that Article 63 of ZMZ is not in accordance with the Constitution of the Republic of Slovenia.

Other sources cited: 

ECRE Information Note on the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, IN1/1072006/EXT7JJ, 2006

ECRE Guidelines on fair and efficient procedures for determining refugee status, September 1999

UNHCR, ExCom Conclusion No. 8 (XXVIII) 1977, e (vii)

Case Law Cited: 

Slovenia - Supreme Court, 6 October 2011, I Up 466/2011

Germany - Federal Constitutional Court, 14 May 1996, 2 BvR 1938/93

CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP)

ECtHR - T.I. v United Kingdom (Application no. 43844/98)

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

ECtHR - Bahaddar v The Netherlands (Application no. 25894/94)

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

ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08

ECtHR - Muminov v. Russia, Application No. 42502/06

Slovenia - Constitutional Court, 24 October 2003, U-I-18/02

Slovenia - Constitutional Court, 21 April 2005, U-I-131/04

Slovenia - Constitutional Court, 4 October 2007, U-I-24/07

Slovenia - Constitutional Court, 9 December 1999, Up-209/99

Slovenia - Constitutional Court, 19 February 2009, Up-2501/08

Slovenia - Constitutional Court, 1 December 2005, U-I-219/03

Slovenia - Constitutional Court, 29 June 2000, Up-78/00

Slovenia - Constitutional Court, 7 December 2006, U-I-238/06

Slovenia - Constitutional Court, 17 September 2009, Up-763/09

Slovenia - Constitutional Court, 14 November 2013, U-I-146/12

Slovenia - Constitutional Court, 2 April 2009, Up-1970/08