Slovenia - Constitutional Court, 18 December 2013, U-I-155/11
| Country of Decision: | Slovenia |
| Court name: | Constitutional Court of the Republic of Slovenia |
| Date of decision: | 18-12-2013 |
| Citation: | U-I-155/11 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The contested judgment is unconstitutional as it does not provide a clear way of assessing the jurisdiction of the third country when dealing with the application. It also reveals that the situation of the Applicant for international protection is unclear in the event that the application is rejected by the third country and the Applicant is not allowed to enter its territory, and shows that it is unclear as to what the Applicant can contest in this procedure.
An efficient legal system that would stop the extradition to a country in which the Applicant could be exposed to inhuman treatment has to have suspensive effect.
Facts:
The Applicant filed a request with the Constitutional Court to assess the constitutionality of Articles 60, 61, 62 and 63 of the Act on International Protection (ZMZ) which govern the institution of a safe third country. According to the Applicant, the concept of defining countries as safe third countries is not in accordance with the Constitution of the Republic of Slovenia and international law. This way of deciding applications for international protection enables enables automatic decision-making and serial rejection.
The Applicant also stated that the ZMZ articles are unconstitutional because they are unclearly worded in the places where they link the Applicant for international protection to a safe third country in which the Applicant was 'staying' before he arrived in the Republic of Slovenia. In practice, the authorities also use these provisions in cases in which the Applicant merely crossed a third country, without having an actual or legal bond with the third country.
He also stated that the concept of the safe third country is unconstitutional because it does not provide for a suspensive appeal against a rejection of an application for international protection.
Decision & reasoning:
The Constitutional Court believes that the Applicant's statement that the concept of the safe third country is in itself inconsistent with the principle of non-refoulementdoes not hold true. The non-refoulement principle does not give the Applicant the right to select the country of protection. The safety of the third country can be assessed in each individual case or in general. The Applicant needs to have the possibility of refuting the assumption as regards the safe third country. The legal criteria for assessing a safe third country (analogue to the criteria stipulated in Article 27(1) of the Procedures Directive) fulfil the requirements originating from the non-refoulmement principle. In the event that a government defines a safe third country in conflict with the legal criteria, judicial protection is ensured in administrative proceedings.
As regards the term »staying«, the Constitutional Court found that it is not precise enough and that it includes a wide range of situations that can differ greatly as regards the intensity of the Applicant's contact with the territory of the third safe country on the basis of which the individual may be returned to this country (logical connection). On the one hand, this enables the explanation that, for the presence of a logical connection, it is sufficient for the Applicant to undoubtedly arrive from the mentioned third country. On the other hand, the term also enables the explanation offered by the Applicant, that only legal residence in a third country represents a logical connection. This allows the possibility of various uses in essentially similar cases, as well as the possibility for state bodies to arbitrarily decide concerning the rights of individuals. Because the removal of the applicant for international protection to a third country can represent a threat to his rights as stipulated in Article 18 of the Constitution (prohibition of torture), a demand for clear and specific directives is of special importance. Due to the unclear wording as regards assessing the jurisdiction of the third country for examining the application, the contested ZMZ provision is not in accordance with the Constitution. Apart from this, it is also unconstitutional due to the unclear position of the applicant for international protection, if, once his application is rejected, the third country does not allow him to enter its territory, and the unclear circumstances, as to what the Applicant can contest in this procedure.
According to the established position of the Constitutional Court, the non-suspensive nature of the action in administrative proceedings does not necessarily effect Article 25 of the Constitution (right to appeal), because the plaintiff has a right to appeal and to demand a temporary postponement of the implementation. However, the non-refoulement principle provides that, when assessing applications for international protection, states must ensure that the procedure that does not hinder the real possibility for the Applicant to prove the merits of the application. In asylum cases, the ECtHR has - taking ECHR Article 3 into account - adopted the view that an efficient appeal against removal to a country in which the Applicant could be exposed to inhuman treatment needs to have suspensive effect in itself. According to the ECtHR, the demand for temporary suspension of the implementation cannot be a substitute for automatic suspension. The Constitutional Court concluded that the contested provision was unconstitutional because, when taking into account the irreparable damaging consequences that the Applicant could experience if inhuman treatment took place, accelerating and increasing the efficiency of the procedure and reducing costs for the state cannot be constitutionally acceptable objectives for limiting the right to judicial protection and the right to appeal.
Outcome:
The Constitutional Court ruled partially in favour of the appeal, annulled Article 60 and the first paragraph of Article 62 of ZMZ and ruled that Article 63 of ZMZ is not in accordance with the Constitution of the Republic of Slovenia.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Bahaddar v The Netherlands (Application no. 25894/94) |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - T.I. v United Kingdom (Application no. 43844/98) |
| CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP) |
| Germany - Federal Constitutional Court, 14 May 1996, 2 BvR 1938/93 |
| ECtHR - Amuur v. France, Application No. 19776/92 |
| ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08 |
| CJEU - C-534/11 Mehmet Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie |
| ECtHR - Muminov v. Russia, Application No. 42502/06 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| CJEU - C-69/10, Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration |
| ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04, |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| Slovenia - Supreme Court of the Republic of Slovenia, 14. februar 2013, I Up 39/2013 |
| Slovenia - Constitutional Court, 21 April 2005, U-I-131/04 |
| Slovenia - Constitutional Court, 4 October 2007, U-I-24/07 |
| Slovenia - Constitutional Court, 9 December 1999, Up-209/99 |
| Slovenia - Constitutional Court, 19 February 2009, Up-2501/08 |
| Slovenia - Constitutional Court, 1 December 2005, U-I-219/03 |
| Slovenia - Constitutional Court, 29 June 2000, Up-78/00 |
| Slovenia - Constitutional Court, 7 December 2006, U-I-238/06 |
| Slovenia - Constitutional Court, 17 September 2009, Up-763/09 |
| Slovenia - Constitutional Court, 14 November 2013, U-I-146/12 |
| Slovenia - Constitutional Court, 2 April 2009, Up-1970/08 |
| Slovenia - Constitutional Court, 24 October 2003, U-I-18/02 |
| Slovenia - Supreme Court, 6 October 2011, I Up 466/2011 |
Other sources:
ECRE Information Note on the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, IN1/1072006/EXT7JJ, 2006
ECRE Guidelines on fair and efficient procedures for determining refugee status, September 1999
UNHCR, ExCom Conclusion No. 8 (XXVIII) 1977, e (vii)