Slovakia - Constitutional Court, 31 May 2011, S.H.T., III.ÚS 110/2011-39

Facts:

The Constitutional Court accepted the appeal of S.H.T., an  Afghan national, which alleged breach by the Supreme Court, in judgment No 9 Sža 11/2010 of 29 September2010, of his fundamental right to be free from torture or cruel, inhuman or degrading treatment or punishment under Article 16(2) of the Constitution of the Slovak Republic and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)..

The Appellant stated in the appeal that the contested judgment the Supreme Court upheld the decision of the Regional Court in Košice, No. 1 Saz 2/2010-84 of 22 June 2010, which upheld the decision of the Migration Office of the Ministry of the Interior of the Slovak Republic, No. ČAS: MU-33-32/DS-Ž-2009 of 5 March 2010. According to the Appellant, the Migration Office rejected his asylum application as inadmissible, which in essence meant he would be transfered to Greece as the state responsible for receiving him. The Appellant, as an Afghan national, pointed out that if he was transferred to Greece there was no guarantee that he would be admitted to asylum proceedings, in view of the shortcomings in the system of asylum law and practice in that state. At the same time, he expressed fears that subsequent expulsion to his country of origin – Afghanistan – would raise real concerns of a threat to life due to serious harm to his person. Referring to various documents by organisations dealing with the protection of human rights and fundamental freedoms and the provision of protection and assistance to refugees, the Appellent therefore requested that the Slovak Republic apply Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin Regulation“) and assume responsibility for his asylum application. Since the Supreme Court agreed that there was no need to apply Article 3(2) of the Dublin Regulation in the case, which resulted in the transfer of the Appellant do Greece, the Appellant expressed the view that his fundamental right under Article 16(2) of the Constitution and Article 3 of the ECHR had thereby been infringed. 

Decision & reasoning:

The Constitutional Court set aside the judgment of the Supreme Court, No 9 Sža 11/2010 of 29 September 2010, and referred the case back to the Supreme Court.

As the wording of Article 16(2) of the Constitution and Article 3 of the ECHR is essentially identical, the Constitutional Court took the view that there are no differences between them in terms of the requirements which they impose on the scope of protection. Moreover, in its jurisprudence onthe protection of fundamental rights and freedoms enshrined in the Constitution, the Constitutional Court normally takes into account and applies the jurisprudence of the ECtHR in respect of comparable human rights and fundamental freedoms guaranteed by the Convention in line with the Slovak Republic’s commitments arising, among other things, (mainly) from Article 1(2) of the Constitution. In view of the similar content of Article 16(2) of the Constitution and Article 3 of the Convention, it may therefore be concluded that the jurisprudence of the ECHR in respect of Article 3 of the Convention is also entirely relevant and applicable to the protection of fundamental right under Article 16(2) of the Constitution.

The Constitutional Court concluded that, before reaching a decision in the Appellant’s case, the Supreme Court had underestimated the importance of his fundamental rights under Article 16(2) of the Constitution and Article 3 of the Convention and, referring formally to the legislation and the importance of the administrative authority’s discretion, had consistently failed to assess the circumstances of the given case, which resulted in constitutionally significant shortcomings in its decision. In doing so, the Constitutional Court relied on the content of the contested Supreme Court judgment and the opinions and statements of official bodies concerned with human rights protection, including the rights of refugees, but mainly on the jurisprudence of the ECtHR.

In reviewing the Regional Court’s decision to uphold the Migration Office’s rejection of the Appellant’s asylum application and in relation to the possibility of applying Article 3(2) of the Dublin Regulation (the so-called sovereignty clause), the Supreme Court referred to the provisions of Section 245(2) of the Civil Procedure Rules. According to these provisions, when considering a decision by an administrative authority acting on the basis of a legally sanctioned discretion (administrative discretion), the Court may only review whether the decision exceeded the limits and perspectives provided for by law. The Court cannot assess the efficiency and appropriateness of the administrative decision.

The Supreme Court thus held that its duty in the case was not to assess whether the administrative authority (Migration Office) had decided correctly in not applying Article 3(2) of the Dublin Regulation, but rather to review whether the administrative authority had decided within the limits of the law.

The Constitutional Court agreed with the view of the Supreme Court that there was no legislation requiring the Slovak Republic, as a Member State of the European Union, to assume responsibility for assessing the application for asylum of a third country national within the meaning of Article 3(2) of the Dublin Regulation. It also agreed with the view of the Supreme Court that the cited Article 3(2) of the Dublin Regulation leaves it to the discretion of the Member State to assume or not to assume responsibility for assessing the asylum application of a specific person.

The Constitutional Court did not, however, unreservedly share the views of the Supreme Court, as it held that, even though there is no such duty explicitly set out in law, in view of the fact that the Appellant in thsi case sought protection of his right enshrined in Article 3 of the Convention (and also the fundamental right under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee, these proceedings should have included application of the standards of protection arising from Article 3 of the Convention (as well as from Article 16(2) of the Constitution) which secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution and therefore take precedence over the law.

The absolute nature of the right under Article 3 of the Convention means that it is applicable to all people, in every place and at every time, and is not limited in any way i.e. there are no exemptions associated with the exercise of this right. This is also confirmed by the wording of Article 15(2) of the Convention, according to which derogation from Article 2 is not permitted, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4(1) and 7 (e.g. IV. ÚS 331/08).

A potential breach of the absolute prohibition on ill-treatment within the meaning of Article 3 of the Convention and Article 16(2) of the Constitution places a procedural obligation on the state to ensure an effective official investigation of the alleged ill-treatment. The term “effective” includes, first and foremost, the attributes of thoroughness, speed, independence and impartiality (similarly, for example, III. ÚS 70/01, III. ÚS 86/05, III. ÚS 194/06).

Based on the cited jurisprudence of the Constitutional Court, but above all following the conclusions of the ECtHR set out in the decision of M.S.S. v Belgium and Greece of 21 January 2011, the Constitutional Court is of the opinion that the Supreme Court should also have considered the jurisprudence of the ECtHR, as well as the absolute nature of the right under Article 3 of the Convention (and the fundamental right under Article 16(2) of the Constitution), and, in connection with this, should have examined the circumstances of the case again. It is expected of the Supreme Court that protection of an Appellant and his rights will comprise more than a mere formal application of the law which leaves the matter of which options to exercise to the discretion of the administrative authority in the circumstances of the case in question, and which does not require the Supreme Court to review the appropriateness and efficiency of an administrative decision, but limits it solely to assessing the limits laid down by law. It should thus also carefully consider the circumstances of the given case.

In the contested case, neither the administrative authority (the Migration Office), the Regional Court nor, primarily, the Supreme Court which might as the last in the series of instances, have eliminated the adverse effect of the decisions made by the Slovak public authorities concerning the personal life of the Appellant, considered it necessary to apply Article 3(2) of the Dublin Regulation. The Supreme Court relied on the wording of the law (which does not place a duty on the administrative authority to apply the cited article), on the acceptance and guarantee from the Greek side and, despite information from official sources concerning the unfavourable state of Greek asylum law and practice, the unacceptable and inhumane conditions created for asylum applicants and the failures of the competent Greek authorities in some cases, allowed the transfer of the Appellant from the Slovak Republic to Greece, which was an infringement of his rights. 

Outcome:

The fundamental rights of S.H.T. to be free from torture or cruel, inhuman or degrading treatment or punishment under Article 16(2) of the Constitution of the Slovak Republic, and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, were infringed by judgment of the Supreme Court of the Slovak Republic No 9 Sža 11/2010 of 29 September 2010.