Slovenia - Supreme Court of the Republic of Slovenia, 3 April 2012, I Up 163/2012

Facts:

As the Appellant failed to provide any evidence (with the exception of his statement), the Ministry took into account the conditions stipulated in Article 21(3) of ZMZ, which states :

„When the Applicant cannot show any evidence in the procedure, the competent authorities should take into account the following conditions:

– that he has done his best to back his application;

– that he has given good reasons as to why he could not submit any evidence;

– that his statements are in line and credible, and that they do not oppose the available specific and general information related to his case;

– that he applied for international protection as soon as possible, unless he has a good reason as to why he did not;

– that his general credibility was ascertained.”

The Ministry ascertained that the Applicant did not fulfil the conditions stipulated in points one, three, four and five of Article 21(3) and rejected the application for international protection .

The Appellant is of the opinion that Article 21(3) is in opposition to the Qualification Directive. Article 4(5) of the Qualification Directive sets five conditions as to when the Ministry does not need to confirm the Applicant's statements, even when they are not supported by evidence, but can accept them as truthful or proven. On the contrary, Article 21(3) of ZMZ stipulates (and is used in this way in practice) that if any one of the five conditions is not met by the Applicant, the state does not need to consider his statements, but can reject his application as ungrounded.

During the appeal the Appellant also demanded a psychiatric expert. He stated that in the case at hand the actual conditions were not fully ascertained, because a psychiatric expert was not appointed, and the Appellant obviously suffers from a psychological condition – paranoia. 

Decision & reasoning:

The Supreme Court ascertained that the burden of proof and statements in the international protection procedure are shared, but that a larger part of this burden is carried by the Applicant. In an appeal the Appellant can introduce new facts and new evidence only if he explains why he did not introduce them in the original administrative procedure. Even if this is the case such evidence can be accepted only if it existed already at the time of the first instance administrative procedure, but the Appellant had a justified reason not to reveal it during the administrative procedure. Due to the same reasons the Appellant cannot introduce new facts in the appeal, if he does not show that it was not his fault that he could not state these facts until the first instance procedure was brought to an end. The Appellant would thus have to state the reasons for appointing a psychiatric expert already during the administrative procedure, or at the latest during the appeal. The Supreme Court also added that the psychological health of the parties in court procedures is assumed as a fact. 

As regards the compliance of Article 21(3) of the ZMZ with the Qualification Directive the Supreme Court is of the opinion that this is a given fact. The conditions in Article 21(3) are almost word by word taken from Article 4(5) of the Directive. In the same sense as regards the meaning this issue is also treated in the UNHCR Manual for Procedures and Criteria for Recognising Refugee Status, which also uses the term „general credibility“. In a number of its judgments the Constitutional Court of the Republic of Slovenia ruled that in the procedures for international protection the basis for ascertaining the actual state in an individual case lies in the statements of the Applicant, which means that the decision of the authorities depends mainly on how convincing, credible and consistent these statements are. According to the Supreme Court the general credibility of the Applicant is an internationally recognised standard that takes into account numerous conditions when assessing the Applicant’s level of credibility, who does not have any material evidence to prove his persecution. However, the Applicant’s general credibility will provide the necessary trust in his statement as regards his persecution for the state to grant him international protection even without any material or other evidence, merely on the basis of his statements. 

Outcome:

The Supreme Court rejected the appeal of the Appellant and confirmed the contested judgment of the Court of First Instance.

Observations/comments:

When ascertaining whether Article 23(3) complies with the Qualification Directive, the Supreme Court dealt merely with the use of the term general credibility, but failed to take a stand as regards the Appellant’s arguments that the use of Article 22(3) was wrongfully introduced into Slovenian legislation. The essential difference lies in the fact that in Slovenia it is enough for one of the conditions stipulated in Article 4(5) of the Directive (Article 22(3) of the ZMZ) not to be fulfilled and the state can reject the application without any further consideration of the Applicant’s statements. However, Article 4(5) of the Qualification Directive clearly states that the state can skip this obligation only if all conditions from this Article are fulfilled.