Slovenia - Administrative Court of the Republic of Slovenia, 28 July 2011, I U 1353/2011

Facts:

Upon his arrival to the Republic of Slovenia the Applicant arrived at the Asylum Centre and asked for international protection of his own free will. During the procedure he failed to produce a single document that would prove his identity. The Ministry of the Interior (MI) obtained data from the EURODAC base which clearly indicated that the Applicant had previously applied for international protection in Italy and Austria.

Once the Applicant handed in his application for international protection the MI decided to restrict his movements while trying to establish the identity of the Applicant (reason as defined in Article 51(1)1 of the International Protection Act – ZMZ). As the basis for restricting his movements it used the fact that the Applicant’s fingerprints were found in the EURODAC base (reason as defined in Article 59(1)3 of ZMZ).

The Applicant appealed against this decision to restrict his movements.

Decision & reasoning:

The Administrative Court ascertained that in the case at hand the MI wrongfully used the ZMZ provision on restricting the movement while ascertaining the identity of the Applicant. Within asylum procedures it is not always necessary for the Applicant to prove his identity with an official identification document in order to avoid the restriction of personal movement. The fact that a person illegally fled the country of origin without identification papers can be a result of persecution, while, on the other hand, the fact that the person left the country of origin legally and with his identification papers might be an element that speaks against the credibility of the asylum seeker. In the continuation of its legal explication the Administrative Court refers to the Supreme Court judgment I Up 46/2010 on 25. 2. 2010, according to which the fact that the Applicant entered the Republic of Slovenia without any documents is not a sufficient reason to restrict his movements while ascertaining his identity. The Defendant can afflict this measure upon the Applicant only if there are doubts as regards the credibility of the stated identity, which the Defendant needs to explain. At this it is of great legal importance whether the Applicant possessed an identification document or whether such a document was issued to him in the country of origin. Also important for ascertaining the Applicant’s identity is the Applicant's general credibility and his reasoning as to why he does not have or cannot provide a document that would prove his identity.

When questioned in court, the Applicant explained that he does not possess an identification document and that due to the situation in his country of origin he never possessed one. During the hearing the Applicant did not show any signs of not being credible when answering questions linked to his identity or his activity in the country of origin. The court concluded that the MI wrongfully restricted the movement of the Applicant while trying to ascertain his identity, for it did not find a legally relevant doubt as regards the identity of the Applicant and did not follow the established legal and court practice in this field; it also failed to prove a necessary direct connection between the Applicant's restriction of personal freedom and the official procedure for obtaining the document.

The Administrative Court is further of the opinion that the order to restrict the movements was unlawful also because the MI did not apply the measure of proportionality in its decision, as stipulated in the national constitutional and judicial practice and Article 52(1) of the Charter of Fundamental Rights of the European Union. The measure of restricting personal freedom would have to be in direct correlation with the intent to ascertain the Applicant’s identity and would ensure that the Applicant would not flee in the event that he had indicated that he presented a flight risk or could in any other way obstruct the procedure as stipulated in the Dublin regulation to be carried out. Prior to restricting his movement the Defendant would have to ascertain that it is impossible to fulfil the legal intent with a measure that would not violate the Applicant’s human rights so drastically.

Finally, the Administrative Court also ascertained that the above mentioned legal explication as to why the contested order is against the law also holds true for the second reason given for restricting movement – the presence of the Applicant’s  fingerprints in the EURODAC base. The conclusion does not reveal what facts did the Defendant use to implicitly decide that the Applicant present a flee risk. At the hearing in the main court proceedings the Court was convinced that the Applicant showed no signs that he wanted to flee, especially when his statement as regards the persecution in his country of origin and the social problems he experienced in Italy were taken in to account and combined with the fact that once he arrived to Slovenia he came to the asylum centre of his own free will. 

Outcome:

The Administrative Court ruled in favour of the appeal and rejected the MI’s decision.

Subsequent proceedings:

The MI appealed against the judgment, however the Supreme Court confirmed the contested judgment by passing judgment I Up 423/2011 on 15. 9. 2011.