Slovakia - Constitutional Court of the Slovak Republic, 20 February 2012, Petition for constitutional protection by K.H., IV. ÚS 308/2011-90

Facts:

The Migration Office of the Ministry of Interior of the Slovak Republic revoked the complainant’s protection status on the grounds that the complainant represented a danger to the security of the Slovak Republic. It failed to provide reasons for its decision in accordance with Section 52(2) of the Asylum Act, merely stating that it was a matter of the security interests of the Slovak Republic.

The complainant appealed against this decision to the Regional Court in Bratislava, seeking to have the Migration Office’s decision set aside due to the absence of a statement of reasons for the decision and due to a discrepancy with the contents of the files, since there was no evidence in the administrative file of the Migration Office proving the existence of a danger to the security of the Slovak Republic. The Regional Court in Bratislava upheld the decision of the Migration Office. It accepted the view of the Migration Office that it was not possible to provide a statement of reasons for the decision, since Section 52(2) prevented it from stating in greater detail the reasons that led to the revocation of protection status. The aim was to try to avoid publication of the sources of information showing that the person represented a danger to the security of the Slovak Republic. With regard to the objection that the decision was at variance with the contents of the files, since it was not clear from the administrative file what reasons led to the decision of the Migration Office, the Regional Court stated that if the administrative file included evidence of the activity that might threaten the constitutional system, territorial integrity, sovereignty and security of the Slovak Republic, it would not achieve the purpose of the cited Section 52(2) of the Asylum Act, i.e. to conceal the scope and source of the information and the method by which it was obtained. The Regional Court refused to hear  this evidence, failed to take cognisance of the secret information despite a request from the complainant, and upheld the decision of the Migration Office. The complainant appealed against the decision of the Regional Court to the Supreme Court of the Slovak Republic. The Supreme Court agreed with the procedure of the Regional Court and upheld the contested judgment of the Regional Court as factually correct.

The complainant appealed against the decision and procedure of the Supreme Court of the Slovak Republic to the Constitutional Court of the Slovak Republic, arguing an infringement of his fundamental rights laid down in Article 47(3) and 48(2) of the Constitution of the Slovak Republic, in conjunction with Article 1(1), Article 12(1) and Article 13(4) of the Constitution, and Article 4(4), Article 37(3) and Article 38(2) of the Charter of Fundamental Rights and Freedoms, and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, he sought to have the judgment of the Supreme Court of the Slovak Republic set aside and requested that a provisional measure be issued suspending the contested decision.

The Constitutional Court of the Slovak Republic accepted the complaint and suspended the judgment of the Supreme Court of the Slovak Republic.

Decision & reasoning:

The Constitutional Court of the Slovak Republic decided:

1. The fundamental right of the complainant to respond to all of the evidence under Article 48(2) of the Constitution of the Slovak Republic and under Article 38(2) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 13(4) of the Constitution of the Slovak Republic and Article 4(4) of the Charter of Fundamental Rights and Freedoms was infringed by the judgment of the Supreme Court of the Slovak Republic and the procedure preceding its issuance.

2. The judgment of the Supreme Court of the Slovak Republic is set aside and the case is referred back to that Court

3. The remaining part of the complaint was not upheld.

It was clear from the content of the complaint that the complainant’s fundamental objection was the court’s confirmation of the Migration Office’s decision to revoke protection status, arguing the security interests of the Slovak Republic despite the fact that they had not taken cognisance of the evidence on the basis of which the Migration Office had decided. In the opinion of the Constitutional Court of the Slovak Republic, the basis on which the competent authorities decide must be clear from the file of the administrative authority and also from the court file, even where no explicit reason is provided in the statement of reasons for their decision. The Constitutional Court disagreed with the statement of the Supreme Court of the Slovak Republic that the purpose of the classified information would be defeated if the evidence on which the Migration Office based its case were placed on file, as the complainant would automatically have an opportunity to take cognisance of the information, resulting in a threat to the security of the Slovak Republic. The confidential information regime is governed by Act No 215/2004 Coll. on the protection of confidential information and amending certain other acts as amended. Among other things, this Act defines the legal and natural persons who are designated to take cognisance of confidential information. The authorised persons holding a special status within the scope of their role include judges. For this reason, the Supreme Court could have and should have requested the documents containing the confidential information in order to evaluate whether the proper consideration thereof might exceed the boundaries and perspectives laid down by the law, and only thus could it have reached a conclusion as to the lawfulness of the Migration Office’s decision. The procedure of the Supreme Court in conjunction with the procedure of the Regional Court resulted in an infringement of the fundamental right of the complainant to respond to all of the evidence, under Article 48(2) of the Constitution of the Slovak Republic and under Article 38(2) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 13(4) of the Constitution of the Slovak Republic a Article 4(4) of the Charter of Fundamental Rights and Freedoms.

The Constitutional Court did not, however, find an infringement of the fundamental right to equality of participants in proceedings under Article 47(3) of the Constitution of the Slovak Republic and Article 37(3) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 12(1) of the Constitution of the Slovak Republic, since the administrative procedure and the decision-making in the judicial review are not adversarial  procedures.  

Outcome:

The Constitutional Court decided the following:

1. the fundamental right of the complainant to respond to all of the evidence taken under Article 48(2) of the Constitution of the Slovak Republic and under Article 38(2) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 13(4) of the Constitution of the Slovak Republic and Article 4(4) of the Charter of Fundamental Rights and Freedoms was infringed by the judgment No 10 Sža/10/2010 of the Supreme Court of the Slovak Republic of 12.1.2011 and by the  procedure preceding its issuance.

2. Judgment No 10 Sža/10/2010 of the Supreme Court of the Slovak Republic of 12.1.2011 is set aside and the case is referred back to that Court.

3. The remaining part of the complaint was not upheld. It was clear from the content of the complaint that the complainant’s fundamental objection was the court’s confirmation of the Migration Office’s decision to revoke protection status, arguing the security interests of the Slovak Republic despite the fact that they had not taken cognisance of the evidence on the basis of which the Migration Office had decided. In the opinion of the Constitutional Court of the Slovak Republic, the basis on which the competent authorities decide must be clear from the file of the administrative authority and also from the court file, even where no explicit reason is provided in the statement of reasons for their decision. The Constitutional Court disagreed with the statement of the Supreme Court of the Slovak Republic that the purpose of the classified information would be defeated if the evidence on which the Migration Office based its case were placed on file, as the complainant would automatically have an opportunity to take cognisance of the information, resulting in a threat to the security of the Slovak Republic. The confidential information regime is governed by Act No 215/2004 Coll. on the protection of confidential information and amending certain other acts as amended. Among other things, this Act defines the legal and natural persons who are designated to take cognisance of confidential information. The authorised persons holding a special status within the scope of their role include judges. For this reason, the Supreme Court could have and should have requested the documents containing the confidential information in order to evaluate whether the proper consideration thereof might exceed the boundaries and perspectives laid down by the law, and only thus could it have reached a conclusion as to the lawfulness of the Migration Office’s decision. The procedure of the Supreme Court in conjunction with the procedure of the Regional Court resulted in an infringement of the fundamental right of the complainant to respond to all of the evidence, under Article 48(2) of the Constitution of the Slovak Republic and under Article 38(2) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 13(4) of the Constitution of the Slovak Republic a Article 4(4) of the Charter of Fundamental Rights and Freedoms.

The Constitutional Court did not, however, find an infringement of the fundamental right to equality of participants in proceedings under Article 47(3) of the Constitution of the Slovak Republic and Article 37(3) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 12(1) of the Constitution of the Slovak Republic, since the administrative procedure and the decision-making in the judicial review are not adversarial  procedures.  

Subsequent proceedings:

Supreme Court of the Slovak Republic, ruling No 10 Sža/4/2012 of 11.4.2012 – setting aside the decision of the Regional Court in Bratislava and referral  for further proceedings.

Regional Court in Bratislava, Judgment No 9 Saz/37/2012 of 3.10.2012 – setting aside the decision of the Migration Office of the Ministry of Interior of the Slovak Republic under Section 250j(2)(b) of the Civil Court Procedure and referral back to the defendant.  

Migration Office of the Ministry of Interior of the Slovak Republic – decision on an application for extension of subsidiary protection. The remaining part of the complaint was not upheld.