Slovenia - Constitutional Court of the Republic of Slovenia, 10 October 2012, Up-21/11
| Country of Decision: | Slovenia |
| Court name: | Constitutional Court of the Republic of Slovenia |
| Date of decision: | 10-10-2012 |
| Citation: | Up-21/11 |
Keywords:
| Keywords |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
As the Republic of Slovenia agreed to readmit the Applicant in accordance with the terms defined in the Dublin Convention, he should be treated as an applicant for international protection from the moment he entered the country. Taking this into account, it was not acceptable to apply measures that are stipulated in the legislation for foreigners who did not apply for international protection. The Applicant’s freedom of movement could be restricted only under the terms and conditions that are used for Applicants for international protection.
In the case at hand there were no grounds on which to restrict the Applicant’s right to personal freedom. By housing the Applicant in an Asylum Centre for a disputed period of time, his right to personal freedom was unacceptably restricted.
Facts:
On his return to Slovenia, the police issued an order with which they restricted the Applicant’s movements to the Asylum Centre. This restriction was based on the Aliens Act (Ztuj-1) and the Dublin Regulation. According to the Supreme Court, the Applicant obtained his status as an applicant for international protection only once the full application for international protection was handed in, thus the International Protection Act (ZMZ) could not represent the basis for restricting his movements until the full application was handed in.The Applicant believed his freedom was unlawfully restricted without appropriate ruling. According to the Applicant, his movements could be restricted only under the terms and conditions stipulated in Article 51 of the International Protection Act.
Decision & reasoning:
In its judgment, the Constitutional Court considered that the circumstances in which the Applicant was handed over to the Republic of Slovenia on the basis of the Dublin Regulation were key. In accordance with point (d) of the first paragraph of Article 20 of the Dublin Regulation, the Member State that re-accepts the application of an asylum seeker also has to allow the Applicant to re-enter its territory. When a Member State re-admits a person seeking international protection, it accepts the responsibility that it will check the grounds for his application for international protection in accordance with the national legislation and the procedural and material standards of EU legislation dealing with asylum. One of the basic goals of the Dublin Regulation is to enable the Applicants 'effective access to procedures for obtaining refugee status’ in at least one Member State. The obligation of the Member State to deal with the application for international protection is defined in point (b) of the first paragraph of Article 16 of the Dublin Regulation and represents an important principle in this Regulation. This principle also defines the obligation to re-admit the Applicant for international protection. The Applicant is thus ensured effective access to procedures for obtaining international protection in a Member State that is - taking into account the standards and mechanisms defined in the Regulation - responsible for the application. This prevents the appearance of so-called refugees in orbit, i.e. applicants for international protection who are shuttled from one country to another, without having their application processed, which practically annuls their right to international protection.
Taking into account the guidelines found in the EU legislation dealing with asylum seekers, it is unacceptable to equate the position of the Applicant with the position of a foreigner who is in the process of being removed from the country and thus has his movements restricted under the terms and conditions stipulated in Article 56(1) of the Aliens Act.
Because the Republic of Slovenia agreed to re-admit the Applicant, he should have been treated as an Applicant for international protection (and not as an foreigner) from the moment he entered the country. By re-admitting him into the country, the Republic of Slovenia accepted the responsibility to deal with the application in accordance with point (b) of the first paragraph of Article 16 of the Dublin Regulation. For the case in hand, it is thus not truly important to distinguish between an Applicant for international protection and a person who expressed his intent to hand in an application for international protection. The Applicant could thus have his movement restricted only under the conditions defined in Article 51 of the International Protection Act.
Outcome:
The Constitutional Court ruled that by taking away the Applicant’s liberty, his right to personal freedom as defined in the first paragraph of Article 19 of the Constitution was violated. The Constitutional Court ruled in favour of the appeal and annulled the judgments of the Supreme and Administrative Courts.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Amuur v. France, Application No. 19776/92 |
| ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08 |
| ECtHR - Guzzardi v. Italy, Application No. 7367/76 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| Slovenia - Constitutional Court, 3 December 2009, Up-360/09 |
Other sources:
M. Hermann in: Hailbronner K. (ed.), EU Immigration and Asylum Law, München 2010, commentary to Article 1 of the Dublin regulations , pp. 1376, 1378.
M. Hermann in: Hailbronner K. (ed.), EU Immigration and Asylum Law, München 2010, commentary to Article 16 of the Dublin regulations , pg. 1416.
H. Battjes, European Asylum Law and International Law, Martinus Nijhoff Publishers, Leiden/Boston 2006, pg. 388.
Spijkerboer/Arbaoui in: Hailbronner K. (ed.), EU Immigration and Asylum Law, München 2010, commentary to Article 2 of the Procedures Directive , pg. 1260.