Slovenia - Constitutional Court, 20 October 2011, U-I-292/09-9

Country of Decision:
Country of Applicant:
Date of Decision:
20-10-2011
Citation:
U-I-292/09-9
Court Name:
Constitutional Court of the Republic of Slovenia
Keywords:
National / Other Legislative Provisions:
Slovenia - Ustava Republike Slovenije (Constitution)
Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act)
Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act) - Art 52
Slovenia - Ustava Republike Slovenije (Constitution) - Art 22
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Headnote: 

The third paragraph of Article 22 of the International Protection Act (ZMZ) which states that the competent authority does not need to take into account the country of origin information in the event the applicant is found to be not credible, is unconstitutional.

The credibilityassessment must always be the result of a comprehensive assessment of the applicant's statements and conduct before and during the procedure for obtaining international protection.

Facts: 

The Ministry of the Interior (MI) rejected the Applicants’ applications for international protection. Based on the evaluation of the Applicants’ statements and conduct during the procedure, the MI ascertained that their general credibility was not established. The MI was of the opinion (and the Supreme Court agreed with this in the proceedings), that, as the Applicants failed to show general credibility, the court did not have to verify the information on the country of origin as stipulated in the third paragraph of Article 22 of the ZMZ. The position of the MI until now was that the rejection of an application for international protection does not automatically lead to deportation to the country of origin, which in turn means that the rejection of the application does not lead to the infringement of the principle of non-refoulement if the country of origin information is not verified when the Applicant has been found non-credible during the procedure for obtaining international protection.

Decision & Reasoning: 

The Constitutional Court ascertained that the principle of non-refoulement is a generally accepted international principle that needs to be respected as stipulated in the Geneva Convention (Article 33 (1)), CAT (Article 3), ECHR (Article 3) and the Qualification Directive (Article 21 (1)).

The Constitutional Court further stated that when assessing asylum matters under Article 3 of the ECHR, the European Court of Human Rights takes the view that it is forbidden to extradite an individual to another country when there are clear indications that this individual could be exposed to torture or inhuman or degrading treatment or punishment. The risk is primarily assessed according to the facts that were known or should be known to the Contracting State at the time of expulsion or extradition of the applicant. In the ECtHR ruling, current information on the situation within the country obtained after the national authorities have reached their final decision is also important. However, establishingthat there are serious violations of human rights in a certain country does not represent sufficient grounds to uphold the appeal. The ECtHR always assesses whether the Appellant’s personal situation might mean that his extradition to the country of origin would be in violation of Article 3 of the ECHR. It also assesses the overall credibility of the Applicant's statements as submitted to the national authorities during and prior to the ECtHR proceedings.  

According to the usual position of the Constitutional Court, Article 18 of the Constitution (prohibition of torture) prohibits the extradition or exile of an individual for whom there are clear indications that he could be exposed to inhuman treatment if extradited back to his country of origin. As the legally binding rejection of the application for international protection means that the Applicant may be forcibly removed to the country from which he came, the Constitutional Court believes that the rejection of an application for international protection must also include an assessment that the forced deportation will not lead to his freedom or life being endangered and that the Applicant will not be subjected to torture or inhuman or degrading treatment or punishment in this country.

Within the procedure forgranting international protection, the competent authority needs to assess (1) whether the circumstances that lead to the Applicant applying for international protection are such that the individual may feel threatened and (2) whether this fear is objectively well-founded. When assessing the first point, it has to take into account the statements made by the Applicant in their entirety as well as any other evidence and reach a reliable assessment as to the credibility of these claims. When assessing the second point, it has to include the assessment of the situation in the country into which the Applicant would have to return in the event that his application was rejected. The competent authority also has to gather all necessary data on its own and should not merely depend upon the statements or evidence submitted by the Applicant.

Outcome: 

The Constitutional Court ruled that Article 22 (3) is not in compliance with the Constitution, and upheld theconstitutional appeal, annulled the judgment of the Supreme Court and remanded the case for reconsideration.

Observations/Comments: 

Full text of the judgment in Slovenian is available here

Other sources cited: 

S. Rakočević, Nekatera pravna vprašanja glede priznavanja statusa begunca in načelo nevračanja (non-refoulment) (Some legal issues regarding the recognition of refugee status and non-refoulment) , Pravnik, Vol. 55, No. 6–8 (2000), pg. 468;

R. Thomas, Assessing the Credibility of Asylum Claims: EU and UK Approaches Examined, European Journal of Migration and Law, Vol. 8, No. 1 (2006), pg. 79–96;

K. Hailbronner (ed.), EU Immigration and Asylum Law, Commentary on EU Regulations and Directives, Verlag C. H. Beck oHG, München 2010, pg. 1024.

Case Law Cited: 

Constitutional Court, Up-2012/08, 5 March 2009

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

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

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

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

ECtHR - Said v Netherlands, Application No. 2345/02

ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05)

ECtHR - Nasimi v Sweden (Application no 38865/02) (unreported) 2004