After having determined the legal basis for the return of the plaintiff to Croatian police (Article 6 (3) of the Return Directive in connection with Agreement and Protocol) and finding the CFREU to be applicable (see part “Relation of the case to the EU Charter” of this template), the AC carefully elaborated the correct interpretation of the Agreement and Protocol, namely an interpretation, consistent with the Return Directive, Procedural Directive and fundamental rights in question.
The AC found that the Procedural Directive imposes certain positive obligations to the national authorities (police, border control etc.). These obligations concern giving information and assistance to provide opportunity and de facto enable the potential asylum seekers to apply for international protection. As Slovenia failed to transpose the relevant provisions of the Procedural Directive into the domestic legal system, it interpreted both bilateral treaties consistently with the said provisions (see Section “Use of Judicial Interaction techniques”).
Later, the AC turned to the fundamental rights. Here, it relied heavily on the jurisprudence of the ECtHR and the CJEU and their interplay (see Section “Relation between the EU Charter and ECHR” of this template).
First, it developed the legal rules concerning non-refoulement (Article 3 ECHR, Articles 4 and 19 (2) CFREU). In cases where the plaintiff has an arguable claim, the competent national authorities have an obligation of strict scrutiny of the potential violation of the absolute right. According to the ECtHR, the strict scrutiny obligation entails that the court or the administrative authority thoroughly, comprehensively, objectively, even proprio mutu, verifies the relevant circumstances taking into consideration the country of origin information. In addition, strict scrutiny also means that, if the applicant proves to a sufficient extent that the return could result in torture or degrading or inhumane treatment, the burden of proof shifts to the national authorities. According to the jurisprudence of the Strasbourg Court, the fact that it is disputable between the state and the applicant, whether the later has actually asked to file the application for asylum, or not, is not relevant, if the information concerning the country, to which the asylum seeker could be returned, show systemic deficiencies, capable of constituting inhumane or degrading treatment. The ECtHR even held that in such cases, the fact that the applicant had failed expressly to request asylum does not exempt the state from fulfilling its obligations under Article 3 ECHR (Hirsi Jamaa and others v. Italy, para. 133.) and that the wish to apply for asylum may be expressed not only by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection. The AC connected this with Article 8 of the Procedural Directive, and noted that Article 8 was invoked also by the ECtHR in the above mentioned cases.
It then turned to the principle of mutual trust (see “Relation between the EU Charter and ECHR”). By invoking Jawo, paras. 88, 89, the AC recognized that the obligations of the state partially depend on the nature of the procedure and the country of return in question. However, it reiterated the wording from Jawo, para. 89 that “the Common European Asylum System and the principle of mutual trust depend on the guarantee that the application of that system will not result, at any stage and in any form, in a serious risk of infringements of Article 4 of the Charter” and concluded that the essential standards concerning non-refoulement have to be the same not only under the Dublin Regulation regime, but also under the Return Directive. Nevertheless, mutual trust demands that the MS presume that the other MS comply with the Charter, safe in exceptional circumstances. Yet, when the MS cannot be unaware that such flaws exist in another MS, they have an obligation to verify whether a risk of degrading or inhuman treatment exists individually for the person at hand. This is done by obtaining information concerning the situation on the field and even asking the competent authority of the MS for clarifications and assurances.
The AC then explained, again by invoking jurisdiction of both ECtHR and CJEU, when the situation in the country in question would amount to inhumane and degrading treatment.
Turning to the facts of the present case, it found that there has been a violation of procedural aspect of non-refoulement. The Slovene authorities could not have been unaware of the numerous reports of NGO’s (AI etc.) and press (the Guardian, DW etc.) concerning the Croatian police violence and untenable circumstances in the Bosnian Refugee camps. Some of the reports were sent to the Slovene police - the AI for example demanded the police to stop returning migrants on the basis of the Agreement and was in communication with the police, which gave a formal reply. Despite being aware of the situation, the Slovene authorities did not verify, whether the return of the plaintiff to Croatia could entail a risk of inhumane or degrading treatment. The AC underlined that the fact that it was disputable between the parties if the applicant had asked for asylum or not, is irrelevant, when the state is confronted with such information as in the case at hand, since non-refoulement is an absolute right (para. 369, 373). Such factual circumstance is also impossible to clearly establish in the judicial procedure. The AC found an additional violation of the procedural aspect in the fact that the plaintiff was not given an opportunity to defend himself (to give a statement) against the act of return.
The AC however did not find a violation of the material aspect of non-refoulement. The plaintiff did not maintain that he was a victim of police violence, neither did he invoke specific circumstances, that would make him vulnerable. He merely stated that he was an object of the procedure, which is not sufficient to attain the minimal level of severity under Article 3 ECHR (4 CFREU). Regarding the conditions in the Miral Refugee camp in Bosnia, the AC held that, despite miserable living conditions, according to the standards from the jurisprudence the Strasbourg and the Luxemburg court, the plaintiff has failed to show that he was subjected to inhumane or degrading treatment.
- Prohibition of collective expulsion
The AC again carefully and thoroughly dissected the content of the right in question, leaning on the jurisprudence of both top Europe’s courts. In para. 426 it summarized the relevant general principles:
“Expulsion of aliens has to be of collective nature; the burden of proof is on the state, which has to prove beyond doubt (by submitting official documents) that the alien had sufficient real (de facto) possibilities, to defend himself against the expulsion with arguments, that need to be taken into consideration by the authorities; this possibilities are provided, if the alien was adequately informed of the aim of the procedure, if he was afforded adequate legal assistance and the help of an interpreter in order to be able to follow the procedure, if his personal circumstances were considered individually and objectively. To a certain extent, the political context of the measures, the latest policy and instructions for the use of bilateral agreements are relevant. In these kind of proceedings, it is relevant, whether the alien’s actions have in any way contributed to the fact, that an individual decision was not issued; if the return decision is connected to the risks of violation of non-refoulement, the alien is entitled the to a legal remedy with suspensive effect to challenge the act of return.”
Then these principles were assessed in the light of the case at hand. The AC found that none of the safeguards mentioned above was guaranteed to the plaintiff, since he was unaware of the fact that he was in a return procedure. This was confirmed by the fact that the return to Croatia was not mentioned in any of the (official) documents in the case-file. The plaintiff was not given legal assistance, there was no interpreter and his personal circumstances were not taken into account. Further, the AC held that it was not unimportant, that the General Director of the Slovene Police issued the instruction in the end of May 2018, allegedly ordering a stricter approach, and that the sharp fall of the asylum applications could probably be attributed to a certain extent to the said instruction. In addition, the AC underlined that the plaintiff acted in good faith, since he did not resist arrest and as he even called the police on his own initiative a few hours after crossing the border when he came to Slovenia from Velika Kladuša (Bosnia) for the first time. He was nevertheless deported back to Croatia and Bosnia, and as a result acted differently the second time. Finally, the plaintiff had no legal remedy to challenge the return decision. The AC therefore concluded that the interference with the prohibition of collective expulsion was not justified under Article 52 (1) of the Charter, since it was not prescribed by law and necessary, as the police could proceed in a manner described in the general principles above, without endangering the legitimate aim of protection of rights of others.
- Right to asylum
Regarding the right to asylum from Article 19 (1) of the Charter, the AC invoked the procedural obligations related to non-refoulement and prohibition of collective expulsion. It found that, since the plaintiff did not have the opportunity to cooperate and understand the procedure, was unable to defend himself against return, and the police neither payed due regard to his individual circumstances nor to the potential inhumane or degrading treatment resulting from the Croatian police or the poor conditions in the Bosnian refugee camps, it is clear, that, the case-file does not show, that the plaintiff had a genuine opportunity to express his wish to apply for international protection. The AC then invoked C-36/20, VL, 25 June 2020, paras. 63, 64, 66, 69-71, 73, 75-78, 82 to support its conclusion. It held that, in VL, the CJEU held that other authorities which are likely to receive applications for asylum, but are not competent for the registration under national law (in VL, this was the investigation judge, in the case at hand, this was the police), have an obligation to proprio mutu inform applicants of the possibility to lodge the application for international protection and added that if such obligation would not exist, the purpose of the Procedural Directive, namely to ensure effective, simple and fast access to the procedure for international protection, would be endangered. (para. 465) As the documents in the case-file did not show that the plaintiff failed to express the wish to apply for asylum, after he had been informed of his right to do so, the AC found an interference with the right to asylum, which was neither prescribed by law, nor did it respect the essence of this right or was necessary.