Slovenia - Supreme Court of the Republic of Slovenia, 1 April 2015, Judgment I Up 39/2015

Facts:

Following notification that the applicant would be returned to Italy under Dublin, the applicant verbally threatened employees of a reception centre and fought with another asylum applicant. As a result, the applicant was detained in the “Centre for Foreigners” on the grounds that this was necessary due to “justified reasons of endangering other people’s lives or property” (third alinea of Article 51(3) of AIP). 

Decision & reasoning:

Depending on the nature of the case and the way the measure is carried out, the limitation of freedom of movement can grow into deprivation of liberty. Whether detention in the “Centre for Foreigners” constitutes a limitation of freedom of movement or a deprivation of liberty depends on several specific circumstances such as: the nature of the measure, its length, its effects and the way it is implemented.

The applicant stated that he perceives the Centre for Foreigners to be a prison where he cannot move freely and where he can only eat and sleep. He cannot use his personal belongings, he is dressed in the clothes of the centre and he can only spend one hour outdoors in the inner-courtyard of the centre. He is constantly under police surveillance and when transported to a hospital due to a broken arm, he was handcuffed.

The Supreme Court judged that the detention in the “Centre for Foreigners” constituted a deprivation of liberty of the applicant in the sense of Article 5 of the ECHR and Article 6 of the Charter of Fundamental Rights of the EU, which is one of the fundamental rights of a human being.

Deprivation of liberty can only be carried out when prescribed by law and when carried out following the procedure prescribed by law. This also results from the case law of the ECtHR relating to Article 5 of the Convention.

The AIP does not provide any basis for the deprivation of liberty, but only the restriction of movement, therefore the detention of the applicant in the Centre for Foreigners, which according to the Court constitutes a deprivation of liberty, is not lawful.

Furthermore, it is not evident from the detention order, what are the reasons that justify that the applicant represents a threat to the life or property of others, as confirmed by the Migration Office. The aggressive behaviour was limited to the time when the applicant found out that he would be transferred to Italy under Dublin. His behaviour constitutes a violation of the house rules of the reception centre, for which sanctions are foreseen. If the violation of the house rules grows into threats to life or property, the Migration Office can restrict the applicant’s freedom of movement, but it cannot deprive him of his liberty. 

Outcome:

The appeal of the Migration Office was dismissed and the judgment of the Administrative Court confirmed. 

Observations/comments:

This judgment is one of several judgments that were issued last year in which the Supreme Court maintained its position that an asylum seeker cannot be detained in the Centre for Foreigners because this constitutes a deprivation of liberty, for which there is no legal basis in the AIP.

The new AIP which is currently being debated at the Parliament foresees modification of the provisions related to detention. Once in force, the AIP will provide a legal basis for detaining asylum seekers in the Centre for Foreigners.