mutual trust

Asylum

Upravno sodišče Republike Slovenije

Administrative Court of the Republic of Slovenia

I U 443/2023-17

26 April 2023

ECLI:SI:UPRS:2023:I.U.443.2023.17

The case is currently pending before the Supreme Court.

A and others v. North Macedonia, App. no. 55798/16, 5.4.2022, para. 112, 114, 116, 121-123;
A. B. and others v. Poland, App. no. 42907/17, 30.6.2022, para. 52; 
A. I. and others v. Poland, App. no. 39028/17, 30.6.2022, para. 41-42, 55; 
N.D. and N.T. v Spain, App. no. 8675/15 in 8697/15, para. 180, 201; 
Shahzad v. Hungary, App. no. 12625/17, 8.6.2021, para. 59, 62, 65; 
M. H. and others v. Croatia, App. no. 15670/18, 43115/18, 18.11. 2021, para. 295-304)
Khlaifia and Others v. Italy, app. no. 16483/12, 15 December 2016
Tarakhel v. Switzerland, App. no. 29217/12, 4.11.2014
Soering v. the United Kingdom, para. 88, 
J.K. and others v. Sweden, para. 80, 90; 
F.G. v Sweden, para. 156
Interim orders under Article 39 ECHR in: Camara v. Belgium (App. no. 49255/22), Msallem and 147 Others v. Belgium (App. no. 48987/22), Al-Shuja and Others v. Belgium (App. no. 52208/22)
L.M. and others v. Russia, para. 100;
M. A. and Others v. Lithuania, app. no.  59793/17, 11 December 2018
M. S. S. v Belgium and Greece, app. no. 30696/09, 21 January 2011
Ilias and Ahmed v. Hungary, app. no. 47287/15, 21 November 2019
Gebremedhin v France, app. no. 25389/05, 26.4.2007, §66
Abdolkhani and Karimnia v Turkey, app. nos. 30471/08, 22.9.2009, §108.

The Administrative Court (the AC) heard a case concerning an asylum seeker, a Burundi national receiving psychiatric treatment, who initiated an administrative dispute against the decision of the Ministry of the Interior to transfer him to Croatia under the Dublin regulation.

The case raises the following legal issues:
-    When during the Dublin return procedure, the obligation of the national authorities to verify the risk of inhumane or degrading treatment and to seek individual assurances from the competent authorities of the country of return applies and what information must the asylum seeker present in the procedure to trigger such an obligation?
-    Consistent failure to comply with EU and ECHR standards concerning the requirement of systemic deficiencies in the country of return by the Ministry of the Interior
-    Whether the Ministry of the Interior can appeal to the judgment of the Administrative court, which quashes the decision of the Ministry and remands the case to it for fresh adjudication? 

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Articles 3a and 18 of the Constitution

International Protection Act, Articles 2 (point 22), 13, 14, 42, 70.

Administrative court:
I U 1975/2013, 27 December 2013
I U 1686/2020, 7. 12. 2020
I U 136/2022-8, 23. 3. 2022.
I U 1807/2011, 21. 10. 2011;
I U 405/2022-8, para. 43 do 54.
I U 1222/2022, 21. 9. 2022

Supreme court:
I Up 251/2016, 15. 3. 2017
I Up 193/2022, 7. 12. 2022  


Constitutional court:
Decision no. U-l-155/11-13 of 18 December 2013
Decision no. Up-613/16 of 28 September 2016, para. 14.

A Burundi national tried to reach Slovenia crossing the Croatian territory and was illegally returned to Bosnia on multiple occasions by the Croatian police before finally arriving to Slovenia. His application for asylum was dismissed on the ground that Croatia was the state responsible for reviewing his application under the Dublin Regulation. He initiated an administrative dispute challenging the said decision of the Ministry of the Interior. He argued his return would worsen his health condition (he suffered psychically and has been seeing a psychiatrist) and that he should be able to seek asylum in Slovenia.

The Administrative Court (the AC) annulled the decision of the Ministry of Justice and remanded the case to it for a fresh decision. According to the AC, there were two reasons for illegality of the decision of the Ministry (see para. 68).

1)    The Ministry failed to comply with the obligation to verify and assess special needs of the applicant concerning his health condition;
2)    The Ministry wrongly interpreted EU law, CJEU jurisprudence and standards stemming from the case law of the ECtHR, and operated under a wrong assumption that the State may deny a Dublin return only if there are systemic deficiencies in the country of return and not in other cases, when there is a risk of violation of Article 4 of the Charter, not necessarily resulting from systemic deficiencies.

As to the first reason for illegality of the decision, the AC relied on the standard of “particularly serious state of health” from C. K. and others v Slovenia, C-578/16 PPU, para. 66. It first verified to what extent the Ministry was informed about the health condition of the applicant. It found that Ministry did not have enough information in the initial phase. The applicant did tell the authorities that he fled Burundi since the police intimidated him, that he was afraid of a violent government and that he was maltreated by the Croatian police. However, this was not enough to trigger the obligations from C. K. and others. However, the Ministry was later presented with the applicant’s medical record, showing that he started regularly seeing a psychiatrist, who found the applicant was afraid of the police, prescribed antidepressants and sleeping pills. He also underwent a radiological check-up since he felt pain in the stomach and throat. According to the AC, such information are not necessarily decisive from the perspective of “particularly serious state of health”, but are sufficient to trigger Article 13 of the International Protection Act (the IPA) obligation concerning early identification of (vulnerable) persons with special needs (the AC found that the applicant could fall under the definition of such person from Article 2, point 22 of the IPA. However, taking into account the applicants’ health status, the requirements from the C.K. and others v Slovenia, paras. 73-76, and the fact that some reports showed that Croatia is experiencing difficulties in reception of people with special needs, the AC ruled that the Ministry should have assessed whether the applicant had special needs and if such special needs were confirmed, should have obtained individual assurances from the Croatian authorities concerning his reception. The AC concluded that the Ministry did not comply with such obligations, which are triggered when the applicant has an “arguable claim” about a potential Article 4 CRF violation if returned. In ascertaining whether such arguable claim exists, the competent authority has to rely on objective, reliable, accurate and sufficiently updated information and has to obtain such information proprio mutu, if necessary. 

As to the second ground, the AC found that the Ministry disregarded not only the CJEU jurisprudence and case law of the ECtHR, but also the jurisprudence of the AC, the Supreme Court and the Constitutional court, since it has treated systemic deficiencies as a sine qua non condition for preventing a Dublin return under Article 3 (2) (see para. 65 of the judgment of the AC). It ruled that such approach is contrary to the absolute nature of Article 4 of the Charter (prohibition of torture, inhumane or degrading treatment).

The AC then explained the legal standards the Ministry will have to comply with in the new procedure. In particular, the AC underlined the “arguable claim” standard, which triggers the obligation of the Ministry to specifically verify the risk of inhumane or degrading treatment for the person at hand.   

Then the AC turned to the question, whether the Ministry of the Interior can appeal against the judgment of the AC, which quashes the decision of the Ministry and remands the case to it for fresh adjudication. The AC developed an entirely new legal position. Relying on the jurisprudence of the CJEU and Article 47 of the Charter, the AC found that the established national jurisprudence, according to which the Ministry could appeal against the decision of the AC, is contrary to EU law, since it counters the principles of equivalence and efficiency by allowing the Ministry to appeal only in cases concerning asylum, but not in other comparable administrative disputes (for more, see “6. elements of judicial dialogue”).

The EU Charter featured prominently in the case. It was used as a legally binding parameter along with the jurisprudence of the CJEU and the ECtHR. It was also used to counter the established national jurisprudence that allowed the Ministry to appeal against the decision of the AC, quashing the decision of the Ministry and remanding the case to it for fresh adjudication.

The EU Charter and the ECHR (and the jurisprudence of both CJEU and the ECtHR) were used as mutually reinforcing tools to grant the applicant the protection required by the European standards. The case shows that the level of protection under both instruments is comparable.

Consistent interpretation, disapplication of national law in favour of EU law and mutual recognition.

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In the part of the reasoning concerning the “right” to appeal of the Ministry, the AC started by declaring that the case of E.N., S.S., J.Y. from 30 March 2023 created a new legal situation in Slovenia. It first invoked paragraphs 27-30, where the CJEU ruled that EU law (Article 27 of the Dublin regulation in relation to Articles 18 and 47 of the Charter) requires only one and not two judicial instances. The AC then relied on Diouf, C-69/10, para. 69, where the CJEU explicitly referred to the “individual” as a holder of the right to appeal, and argued that this could be sufficient to find that the Ministry cannot appeal against the decision of the AC, especially as the text of Article 27 of the Dublin regulation explicitly grants the right to appeal to the asylum seeker or alien and not to the competent national authority and since human rights are granted to individuals and private legal persons, and not the state authorities. Nevertheless, the AC extended its reasoning, again relying on CJEU’s decision in E.N., S.S., J.Y, where the CJEU invoked the principle of procedural autonomy of member states and ruled that it allows them to have two instances of judicial review under two cumulative conditions: “those rules are not, in situations covered by EU law, less favourable than in similar situations under domestic law (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness)”. The AC ruled that in contrast to the Dutch regulation at stake in E.N. S.S., J.Y., which was “applicable to all administrative law appeal proceedings” (see para. 32), the Slovenian legislation, namely Article 70 (4) of the IPA granted the appeal to the administrative authorities exclusively in proceedings concerning asylum, whereas there was no similar provisions in other fields of administrative law. In fact, Article 70 (4) of the IPA merely provides that “an appeal to the Supreme Court is allowed against the judgments of the Administrative Court”. The national jurisprudence interpreted this provision as granting the right to appeal not only to the individuals, but also to the Ministry. The Court found that such interpretation is at odds with the Article 27 of the Dublin regulation in relation to Article 47 of the Charter. Relying on Simmenthal, C-106/77, para. 23, RS, C-430/21, paras. 51-53 and Torubarov, C-556/17, paras. 73-74, the AC ruled that it had to ignore Article 70 (4) as interpreted by the Slovenian courts.

The AC invoked the decisions of the Constitutional court, the Supreme Court and the Administrative court to show that the practice of the Ministry of the Interior, according to which systemic deficiencies are a precondition for denying a Dublin return, is wrong not only from the point of view of European standards, but also under national law. It thus shows an increased level of illegality and an unambiguous character of the illegality.

The AC used the jurisprudence of the CJEU and the ECtHR throughout its reasoning in order to show the Ministry and the Supreme Court (hearing appeals against the decisions of the AC) that a hierarchically higher European courts support the positions of the AC. The aim is to convince the Supreme Court (and the Ministry) that the positions of the AC are backed by the CJEU and the ECtHR, giving its own decision a stronger argumentative force.

In the part of the reasoning concerning the “right” to appeal of the Ministry, the AC uses the CJEU jurisprudence to solve a conflict of judicial interpretation involving Article 47 of the EU Charter. The AC could simply rely on the principle of consistent interpretation to rule that this principle requires that Article 70 (4) of the IPA is interpreted as granting the right to appeal only to the applicants and not the Ministry. However, the AC decided to rely on the principle of supremacy as well in order to clearly indicate that the interpretation, adopted by the Slovenian courts and the Ministry is contrary to EU law and that the AC has a specific obligation under EU law to ignore such interpretation. EU law thus empowered the AC to go against the constant jurisprudence of the national supreme court.

For now, there is no impact of the decision beyond the case at hand. It will be interesting how the Supreme court will handle the decision of the AC, which essentially stripped it of its jurisdiction to hear appeals from the Ministry of the Interior in asylum and migration law cases.

N/A

Yes

No

Yes, but only on a few occasions. The case law of the CJEU and the ECtHR featured much more prominently than the national caselaw.

N/A

N/A

See Impact on Legislation/Policy

See also a similar case: Administrative Court, Judgment and Order I U 641/2023-8 of 3 May 2023

Mohor Fajdiga, University of Ljubljana

1.    Administrative Court, judgment and order I U 443/2023-17, 26 April 2023
2.    Supreme Court – pending