Slovakia - Migration Office, 18 January 2011, M.S.A. v. Ministry of the Interior of the Slovak Republic – 1Sža/102/2010

Facts:

The applicant illegally crossed the border of Greece as the Member State applying Council Regulation (EC) No 343/2003, and a procedure was opened under the Dublin Regulation concerning the acceptance of responsibility by Greece for examining the applicant’s asylum application. As the competent Greek authority failed to respond to the application within the set deadline of one month, Greece became responsible, within the meaning of Article 18(7) of the Dublin Regulation, for examining the applicant’s request. Greece subsequently agreed to accept responsibility. The applicant, in support of his application for voluntary acceptance of responsibility, which he justified by his very poor psychological state and unfavourable situation and the failure of the asylum system in Greece, submitted to the administrative authority a psychological assessment from a clinical psychologist and a medical report from a psychiatrist as well as a UNHCR report, which the administrative authority, however, failed to pay any attention to in its decision. The administrative authority decided to reject the asylum application as inadmissible on the grounds that Greece was competent for examining the application within the meaning of the Dublin Regulation.

The applicant filed an appeal at the regional court, which upheld the decision of the administrative authority. The applicant then filed an appeal with the Supreme Court of the Slovak Republic.

Decision & reasoning:

In the procedure, the Supreme Court dealt with the question of the application of Article 3(2) of the Dublin Regulation (the sovereignty clause), and the administrative authority’s obligation to address the applicant’s arguments and evidence and then to justify its decision.

The Supreme Court agreed with the regional court’s opinion that the application of Article 3(2) of the Dublin Regulation depends solely on the Member State’s decision as to whether or not it will accept responsibility. This is not a legal right which the administrative authority must decide on ex lege. In this case, however, the applicant expressly requested the application of Article 3(2) of the Dublin Regulation, and in support of his application provided specific evidence which was completely disregarded by the administrative authority.

For this reason, according to the Supreme Court, the absence of any reasoning in the defendant’s decision not to apply Article 3(2) of the Dublin Regulation led to a vagueness in the contested decision, since neither the applicant nor the court reviewing the administrative authority’s contested decision knew about the deliberation by which the administrative authority was guided when making the decision.

In its decision, the Supreme Court emphasised that a decision to reject an application as inadmissible on the ground that it was the responsibility of another Member State within the meaning of the Dublin Regulation grossly prejudices the rights guaranteed by the European Convention for the Protection of Human Rights and Freedoms. In the proceedings before the administrative authority and the court, the applicant himself objected to the infringement of Article 3 and Article 5(1) and (4) of the European Convention for the Protection of Human Rights and Freedoms, and the administrative authority was therefore required to address the applicant's submissions and decide on those documents and arguments that had a basis in law.

 “In the opinion of the appeal court, the fact that the defendant disregarded the documents provided by the applicant in support of his request for an application of Article 3(2) of the Dublin Regulation and omitted to provide an argument in the decision as to why it did not uphold the application, marks a failure to satisfy the requirements of the generally accepted legal principles of administrative procedure, because it neither assessed nor justified in the decision the outcomes of such actions.”

In the opinion of the Supreme Court, it is not acceptable in this case to depart from the generally accepted legal principles of administrative procedure, in particular the right to be informed of the reasons on which an administrative act is based (Resolution 77/31 of the Committee of Ministers of the Council of Europe of 28 September 1977).

Outcome:

Appeal allowed

The Supreme Court of the Slovak Republic amended the decision of the regional court by annulling the decision of the Ministry of the Interior – Migration Office and referring the decision back to it.

Observations/comments:

Chamber comprising JUDr. Igor Belko, President of the Chamber, and Ing. JUDr. Miroslav Gavalec and JUDr. Elena Berthotyová PhD, members.

Other sources:

Resolution 77/31 of the Committee of Ministers of the Council of Europe of 28 September 1977

Intervention of the UNHCR in the case of M.S.S. v. Belgium and Greece in proceedings before the European Court of Human Rights on 1.9.2010