Slovenia - Supreme Court of the Republic of Slovenia,18 June 2015, I Up 60/2015

Country of Decision:
Country of Applicant:
Date of Decision:
18-06-2015
Citation:
I Up 60/2015
Court Name:
The Supreme Court of the Republic of Slovenia
Keywords:
National / Other Legislative Provisions:
Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act)
Slovenia - Zakon o splošnem upravnem postopku (ZUP) (General Administrative Procedure Act )
Slovenia - Zakona o mednarodni zaščiti (ZMZ) (International Protection Act) - Article 56
Slovenia - Zakona o mednarodni zaščiti (ZMZ) (International Protection Act) - Article 57
Slovenia - The law on General Administrative Procedure Act - Article 237/ 2 (3) (7)
Slovenia - The Law on Administrative Disputes - Article 76
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Headnote: 

If the applicant for international protection claims that there are flaws within the asylum procedure of a responsible Member State (in line with Article 3 of the Dublin III Regulation), the examining state is still under an obligation to investigate the systematic procedural flaws in line with the reversed burden of proof. 

Facts: 

In the first instance a national of Afghanistan requested international protection in Slovenia three times. The procedure had been stopped twice, on account of the applicant leaving the asylum centre. Upon the initial leave of the reception centre the applicant requested international protection in Italy, wherein a residence permit was granted. He later left to Switzerland which subsequently sent him back to Italy. He later went to Slovenia and lodged an asylum application for the second time, however the procedure was again stopped on account of the applicant’s leave of the centre. When he filed the request in Slovenia for the third time the Ministry of Interior decided that it would not consider the application, on account of Italy’s responsibility under the Dublin Regulation. The Ministry of Interior lodged a take charge request to Italy. In line with Article 22 of Dublin III Regulation Italy tacitly accepted the request and, consequently the obligation to take charge of the applicant.

On appeal to the Administrative Court (Court of First Instance) against the proposed transfer the Court of First Instance decided that the Ministry of Interior should not have lodged a take charge request to Italy, as  the third application was a subsequent application provided for in Articles 56 and 57 of Slovenian International Protection Act (IPA). The Administrative Court held that Slovenia had become the country responsible under the Dublin Regulation and the decision of the official authority was held to be unlawful.

Furthermore, the Applicant’s objections concerning the systematic shortcomings of the Italian asylum procedure were justifiable. The Ministry of Interior had not established evidence to the contrary, simply referring to research published by the European Asylum Support Office (EASO) as well as relying on a lack of reporting from the United Nations High Commissioner for Refugees.

The Ministry of Interior filed for an appeal before the Supreme Court.

Decision & Reasoning: 

The Supreme Court agreed with the Appellant that the second request for international protection has not been dealt with substantively, since the applicant left the asylum centre and therefore Slovenia did not accept the responsibility for the examination of the request according to the IPA or the Dublin III Regulation. Furthermore, the conditions set out in Article 56 of IPA relating to a subsequent application had not been fulfilled. The applicant left the asylum centre and the procedure was therefore stopped. However, Article 56 does not apply given that the previous asylum application has to be withdrawn explicitly. Most importantly, the applicant did not lodge a new request for a subsequent procedure, a procedural requirement for such an application.

Additionally, the Supreme Court found that there is no legal justification for the Administrative Court’s finding that the Ministry of Interior should have considered the request or that it had become the responsible Member State in line with Article 17 of Dublin III Regulation. Since a subsequent asylum application was not lodged and the first procedure had been stopped on account of the applicant’s leave of the asylum centre, the Administrative Court was incorrect in claiming that Slovenia had become the responsible Member States under the Dublin Regulation.

However, and in line with Article 3(2) of Dublin III Regulation, an asylum seeker shall not be transferred to a country with systematic flaws in the asylum procedure and reception conditions which could result in inhuman and degrading treatment within the meaning of The Charter of the Fundamental Rights of the European Union (EU Charter).

The determining Member state shall examine the criteria to determine if another Member State can be designated as responsible. If a transfer cannot be made to any Member State or to the first with which the application was lodged, the determining State shall become responsible.

Based on this Article the Supreme Court determined that the provision provides an obligation to the Member States not to return the applicant a Member State with systematic flaws in both the reception and procedural system.  Notwithstanding that the Common European Asylum System was founded on mutual trust, including respect for the Geneva Convention and the European Convention on Human Rights (ECHR), Member States can face difficulties and shortcomings. In some States there can be a serious threat that the applicant will be treated inhumanely or in a degrading manner and therefore the presumption that he or she will be treated in line with the EU Charter, Geneva Convention and ECHR is rebuttable. Accordingly, when dealing with this provision it is important to first establish the existence of systematic flaws or conditions that could result in inhuman and degrading treatment.

The applicant for international protection claimed a threat of such treatment and provided supporting evidence and reports. According to the Supreme Court the Administrative Court noted that in such case the State has to first assess the circumstances and only after that can it decide about the transfer. The Ministry of Interior’s claim that all the reports submitted regarding the accommodation options were published before the Judgment in Tarakhel v Switzerland, and therefore outdated because the European Court of Human Rights (ECtHR) assessed reception conditions, and did not stop the transfer but only required that special procedures for families with small children or extremely vulnerable applicants be ensured, is unfounded.  Such an assessment is not a sufficient reason not to investigate the circumstances or not to respond to allegations of the flaws. The Administrative Court, therefore, correctly stressed that the state should have responded to the claims and that the fact that Italy is implementing the CARA and SPRAR programmes, which, amongst other things provide for suitable accommodation, does not mean the accommodation will actually be ensured.

Additionally, it is not clear how or if at all the Ministry of Interior took into account the evidence provided by the applicant. The applicant maintained that he did not have the chance to respond to some of the evidence the State took into consideration. Based on these violations of Article 237(2) sub point 3 and 7 of The Law on General Administrative Procedure Act the appeal was denied.

Outcome: 

Appeal was denied and the judgment of the Administrative Court upheld.

The Administrative Court in its judgment decided to set aside the decision of Ministry of Interior, where it decided that it will not take the request for International Protection into consideration, because the applicant will be transferred to Italy. 

Observations/Comments: 

This case summary was written by Zoja Bajželj, LL.M of International Laws, University of Maastricht.

Case Law Cited: 

Slovenia - Supreme Court I Up 253/2014

Slovenia - Supreme Court I Up 276/2014

Slovenia - Supreme Court I Up 40/2014

Slovenia - Supreme Court I Up 298/2013

Slovenia - Supreme Court I Up 384/2013

Supreme Court I Up 139/2010