Slovenia - Constitutional Court of the Republic of Slovenia, judgment Up-613/16, 28 September 2016

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Headnote: 

The Constitutional Court ruled that Member States are obliged to examine all circumstances which are important from the perspective of the principle of non-refoulement, when deciding on a Dublin transfer to a responsible Member State. Due to the absolute nature of the protection afforded by the principle of non-refoulement, the assessment must take into account all the circumstances of the particular case, including the applicant's personal situation in the transferring country. In this context, it should also be assessed whether the mere removal of an individual to another country due to their health status is contrary to the requirements arising from the principle of non-refoulement. Thus, when the Supreme Court did not consider the circumstances that are important in terms of respect of the principle of non-refoulement, it infringed the applicants' right to equal protection under article 22 of the Constitution.

Facts: 

The applicants appealed against a Dublin transfer decision to Croatia and their appeal reached the Constitutional Court. Although Croatia is a responsible Member State according to Article 12 of Dublin III Regulation, the applicants argued that Croatia is not a safe country for them because they would not be provided adequate accommodation and medical care regarding their personal circumstances (new-born baby and mental health issues of the mother). The transfer of the mother may adversely affect her state of health, which could, in turn, deepen her depression and there is a risk of hetero-aggressive and auto-aggressive behaviour.

Decision & Reasoning: 

The Constitutional Court stated that Member States’ right of control over the entry, residence and expulsion or extradition of foreigners is established in international law (Vilvarajah and Others v. United Kingdom, 30.10.1991, para 102 and Chahal v. United Kingdom, 15.11.1996, para 73). However, the sovereignty of the country is limited with an obligation that the State must not remove, expel or extradite an individual to a country in which there is a serious risk of them being subjected to inhuman treatment (the principle of non-refoulement as codified in Article 18 of the Constitution, Articel 3 of ECHR, Article 19(2) of EU Charter and Article 33(1) of Geneva Convention).

The Dublin III Regulation is based on the principle of mutual trust, which is why all Member States count as safe third countries. This means that handing the applicant to another Member State without the in-merit examination of their claim is permitted. However, inter-State confidence may not be absolute. The safety of Member States can therefore be challenged (M.S.S. v. Belgium and Greece, 21.1.2011 and N.S. v. Secretary of State for the Home Department, and M. E. and others v Refugee Applications Commissioner, the Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, 21.12.2011). The applicant must be given an individual assessment of their personal circumstances. A Member State cannot transfer an asylum seeker to another Member State if the competent authority has determined that the Member State is not safe for them.

During the procedure it has been established that there are no systemic deficiencies in the Croatian asylum system. However, this does not mean that the applicants can only challenge the safety of a responsible MS if the risk of inhuman and degrading treatment would result from systemic deficiencies (Tarakhel v. Switzerland, §104 and Mehrdad Ghezelbash v. Staatssecretaris van Veiligheid en Justitie, C-63/15, 7.6.2016, §§51-54). The recital 32 of the Dublin III Regulation expressly states that Member States are bound by their obligations under instruments of international law, including relevant case law of the ECtHR. Article 3(2) of Dublin III Regulation regulates only one factor when the transfer to another Member State would not be permissible. Member States are obliged to respect other international obligations. They are obliged to comply with the requirements of the principle of non-refoulement, as laid down in Article 33 of the Geneva Convention and Article 3 of ECHR. If the transfer to another Member State therefore constitutes an infringement of the principle of non-refoulement, the use of the sovereignty clause (Article 17(1)) becomes exceptionally mandatory.

Article 3 of the ECHR applies in cases where the risk of inhuman and degrading treatment arises from deliberate actions of state authorities or other independent organisations in the receiving country. However, because of the absolute nature of the protection afforded by Article 3, the ECtHR took the view that the appeal can be assessed in the light of Article 3 also in cases where responsibility for the causes of the risk that an individual will be subject to inhuman and degrading treatment, cannot be directly or indirectly attributable to the receiving State or when these causes themselves would not constitute a breach of Article 3. When examining the appeal in light of Article 3, the ECtHR takes into account all the circumstances of the particular case, therefore, the applicant's personal situation in the country which will transfer the applicant to another country (D. v. United Kingdom, 2.5.1997, §49 and Bensaid v. United Kingdom, 6.2.2001, §§34, 35). In this context it should also be considered whether the mere removal of an individual to another country breaches Article 3, taking into account all the circumstances, including the latest information on an individual's health (Ahmed v. Austria, 17.12.1996, §43, D. v. United Kingdom, §50 and Bensaid v. United Kingdom, §35).

It follows that the competent authorities and courts in the case when the applicant submits that the responsible Member State is not a safe country, have to consider all the circumstances, which are important in terms of respect of the principle of non-refoulement. This means that the competent authorities and the courts have to take into account the applicant’s state of health. They shall also take into account the applicant's personal situation in the Republic of Slovenia. They should consider whether a mere transfer of the applicant would be contrary to the requirements arising from the principle of non-refoulement.

The Supreme Court only took into account the state of health of the applicant and the child when assessing the situation in Croatia. The Supreme Court did not consider whether the mere transfer of the complainants may constitute a violation of Article 3 of the ECHR and Article 18 of the Constitution, or did not explain why the abovementioned claims could not influence the decision. Thus, when the Supreme Court did not consider the circumstances that are important in terms of respect of the principle of non-refoulement, it infringed the applicants' right to equal protection under article 22 of the Constitution. 

Outcome: 

The Supreme Court judgment is quashed and the case is returned to the Supreme Court for reconsideration.

Subsequent Proceedings : 

The Supreme Court suspended the procedure and referred a preliminary reference to the CJEU, C. K. and Others, Case C-578/16 PPU. The questions posed to the Court are the following:

1.       Is the interpretation of rules concerning application of discretionary clause from Article 17(1) of Dublin III Regulation, considering the nature of this provision, in the final competence of the court of the Member State, i.e., does it absolve the court, where there is no legal remedy against its decision, to submit the request to the CJEU on the basis of Article 267(3) of the Treaty on the Functioning of the European Union?

2.       Is assessment of circumstances from Article 3(2) of the Dublin III Regulation (in cases such as the case presented) sufficient to meet the requirements of Article 4 and Article 19(2) of The Charter of Fundamental Rights of the European Union in conjunction with Article 3 of the European Convention on Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention?

3.       Is Article 17(1) of the Dublin III Regulation to be interpreted as meaning that the application of discretionary clause by a Member State, in order to provide efficient protection against infringement of the right from Article 4 of The Charter of Fundamental Rights of the European Union in cases such as the case presented, is obligatory and that it inhibits the transfer of an applicant for international protection to the responsible Member State, that has accepted its responsibility in accordance with this Regulation?

4. Does the discretionary clause from Article 17(1) of the Dublin III Regulation provide grounds for the applicant for international protection, or another person subject to a transfer procedure pursuant to this Regulation, to claim its application, which has to be assessed by the competent administrative bodies or courts of the Member State, or are the stated state authorities and courts of the Member State obliged to assess the cited circumstances ex officio?

Case Law Cited: 

Slovenia - Constitutional Court Up-1427/09, 20.10.2011

ECtHR - N v United Kingdom (Application no. 26565/05)

ECtHR - Dragan & others v Germany (2004) Application no. 33743/03)

ECtHR - D v. United Kingdom, Application No. 30240/96 (UP)

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Ahmed v Austria, Application No. 25964/94 (UP)

Slovenia - Constitutional Court U-I-155/11, 18.12.2013

ECtHR- Fazlul Karim v. Sweden, Application no. 24171/05

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - Kochieva and Others v. Sweden (dec.), no. 75203/12

Slovenia - Constitutional Court, Up 21/11

Slovenia - Constitutional Court Up-78/00, 29.6.2000

Slovenia - Constitutional Court U-I-238/06, 12.7.2006

Slovenia - Constitutional Court Up-763/09, 17.9.2009