Slovenia - Supreme Court, 16. december 2009, I Up 63/2011

Facts:

The Ministry of Interior (MI) rejected the application for international protection without a substantive hearing merely on the basis of the national provisions regarding the safe third country. The MI handed over the Applicant to the Republic of Croatia, which is declared a safe third country by ordinance, even before the court issued a judgment on the case in hand, as an appeal against the decision to reject does not suspend the decision. The court of first instance nevertheless considered the appeal and found that the Ministry’s decision was unlawful. The Ministry of Interior appealed against this judgment.

Decision & reasoning:

The Supreme Court ascertained that the Defendant did not give the Plaintiff the opportunity to argue that the Republic of Croatia is not a safe third country for him before rejecting his application, even though this is implicitly stipulated in the second paragraph of Article 63 of the ZMZ.

The Supreme Court was also of the view that, by handing over the Plaintiff to the Republic of Croatia without awaiting the decision as regards the Plaintiff's appeal and application for an interim injunction (although the Defendant was notified of the appeal and the filed application for an interim injunction), the Defendant violated the Plaintiff's constitutional right to effective judicial protection and legal remedy as stipulated in Articles No 23 and 25 of the Constitution of the Republic of Slovenia. Although the ZMZ provisions do not implicitly state that an appeal against the decision issued in accordance with the first paragraph of Article 63 of the ZMZ  suspends the extradition of the Applicant to a safe third country, suspending the enforcement of the decision of the Supreme Court already by its very nature binds the Defendant becausethe effect for the Applicant  of dismissing his application is the same as rejecting his claim for international protection, which according to the explicit provisions of the fourth paragraph of Article 74 of the ZMZ has a suspensive effect. Otherwise, practically all judicial review procedures dealing with a safe third country will be nullified by the immediate extradition of the applicants to such a country, for once the applicant is extradited to a foreign country he is no longer under Slovenian jurisdiction.

The Supreme Court agreeed that the Ordinance issued by the Government of the Republic of Slovenia on the proclamation of safe third countries binds the Defendant; however this is a rebuttable presumption. In the event of altered, for example, exceptional circumstances, the relevant wording of the Ordinance would - despite the adopted Ordinance - allow the Defendant to find that the institution of the safe third country concept will not apply due to such circumstances.

In the grounds of its decision, the Defendantdoes not need to state which information as regards the situation in the third country was used when the Government of the Republic of Slovenia decided that a particular country was a safe third country. Of course, the Defendant needs to deliver this documentation to the court of first instance when asked to do so by the court, when the Applicant for international protection contests this Ordinance and the court considers that the safe third country as declared by the Ordinance does not meet the criteria for such a declaration, or in the event  that the circumstances of a specific case indicate that a particular country, despite being proclaimed a safe third country is not safe for a particular applicant. A case-by-case consideration of the safety of the country for the individual applicant should not be ruled out; however there is no doubt that, according to the explicit provisions of the second paragraph of Article 63 of the ZMZ, the Applicant is entitled to provide evidence that the country in question is not a safe third country for him anytime during the procedures dealing with the safe third country.

Outcome:

The Supreme Courtdismissed the appeal of the Ministry and supported the judgment of the court of first instance. 

Observations/comments:

At the time ofthe ruling of the Supreme Court, the fourth paragraph of Article 74 read: "An appeal against a judgment refusing the request suspends the enforcement." Despite the judgment of the Supreme Court, the legislaturelater adopted an amendment to paragraph 4, Article 74 by adding the sentence "In the case of all other decisions pertaining to this Act, an appeal does not suspend their enforcement.”