TRIIAL

Slovenia, Administrative Court of Republic of Slovenia, I U 1490/2019-92, 22 June 2020 Rule of law, pushback and returns

Member State:

Slovenia

Topic:

Rule of law:

-       Principle of legality (in particular, law making powers of the executive/law making procedures)

-       Prevention of abuse of powers

-       Prohibition of arbitrariness

-       Fair Trial/Access to Justice

Trust:

Rule of law challenges affecting cooperation and mutual trust under the Return Directive

Deciding Court Original Language:

Upravno sodišče Republike Slovenije

Deciding Court English translation:

Administrative Court of Republic of Slovenia

Registration N:

I U 1490/2019-92

Date Decision:

22 June 2020

ECLI (if available):

ECLI:SI:UPRS:2020:I.U.1490.2019.92

The Supreme Court quashed the decision and returned the case to the Administrative court. ECLI of the Supreme Court Order I Up 128/2020 of 28 October 2020: ECLI:SI:VSRS:2020:I.UP.128.2020 

EU legal sources and CJEU jurisprudence:

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (the Return Directive) 

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (the Procedural Directive)

Articles 4, 18, 19 (1), 19 (2), 41, 51 (1), (2) , 52 (1), (3) of Charter of Fundamental Rights of the European Union (CFREU, the Charter)

Articles 79 (1), 79 (2) (c) (d) of the TFEU

C-411/10 and C-493/10, N. S. and M. E., 21 December 2011 

C. K. and Others v Slovenia, C-578/16 PPU, 16 February 2017

M. P. C-353/16, 24 April 2018

Jawo, C-163/17, 19 March 2019

CJEU, Opinion no. 2/13, 18 December 2014

Ibrahim, C-297/17, 19 March 2019

M'Bodj, C-542/13, 18 December 2014

Abdida, C-562/13, 18 December 2014

Tjebbes and Others, C-221/17, 12 March 2019

Hernández and Others, C-198/13, 10 July 2014

Iida, C-40/11, 8 November 2012

Pringle, C-370/12, 27 November 2012

Affum, C-47/15, 7 June 2016

C-601/15 PPU, J. N., 15 February 2016

C-18/16 K., 14 September 2017

C-404/15 and C-659/15 PPU, Aranyosi, Caldararu, 5 April 2016

C-36/20, VL, 25 June 2020

C-249/13, Boudjlida, 11 December 2014

ECtHR Jurisprudence:

M. S. S. v Belgium and Greece, app. no. 30696/09, 21 January 2011

Hirsi Jamaa v Italy, app. no. 27765/09, 23 February 2012

Ilias and Ahmed v. Hungary, app. no. 47287/15, 21 November 2019

Čonka v. Belgium, app. no. 51564/99, 5 February 2002

M. A. v. Cyprus, app. no. 41872/10, 23 July 2013

M. A. and Others v. Lithuania, app. no.  59793/17, 11 December 2018

N. D. and N. T., app. nos. 8675/15 and 8697/15, 13 February 2020

Shioshvili and Others v. Russia, app. no. 19356/07, 20 December 2016

Sharifi and Others v. Italy and Greece, app. no. 16643/09, 21 October 2014

Khlaifia and Others v. Italy, app. no. 16483/12, 15 December 2016.

Subject-matter:

The case concerns a return of an alien, allegedly an asylum seeker under a bilateral treaty, concluded between Slovenia and Croatia, in connection with Article 6 (3) of the Return Directive and the subsequent transfer from Croatia to Bosnia without issuing a return decision.

Legal issue(s):

Rule of law and mutual trust. The Administrative court had to determine whether the principle of non-refoulement, the prohibition of collective expulsions and the right to asylum were violated, when the Slovene police handed the plaintiff to the Croatian police after conducting only a short formalized standard procedure, without previously verifying the available information on inadequate conduct of the Croatian authorities and conditions in Bosnian refugee camps, or giving the plaintiff the opportunity to defend himself against the return.  

National Law Sources:

Articles 3.a, 18, 157 (2) of the Constitution

International Protection Act

Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia on the readmission of persons whose entry or residence is illegal (Official Gazette of the Republic of Slovenia, no. 8/2006) (the Agreement)

Protocol between the Ministry of the interior of the Republic of Slovenia and the Ministry of the Interior of the Republic of Croatia concerning the implementation of the Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia on the readmission of persons whose entry or residence is illegal (Official Gazette of the Republic of Slovenia, no. 8/2006) (the Protocol) 

Facts of the case:

A Cameroon national, member of Anglophone community in Cameroon, was arrested by the Slovene police after crossing the border with Croatia. He was asked to show the place, where he crossed the border and was photographed while pointing to the river Kolpa. He was then taken to a Police station, where he had to sign several documents in Slovene language that he did not understand. Then he was transferred to another Police station. After a few hours, he was driven to a different location, where he was boarded on a bus with about 30 other migrants, taken to the Croatian border and handed over to the Croatian police, which then expulsed the migrants to Bosnia, without issuing return decisions.

The plaintiff maintained that he expressed the wish to apply for asylum in Slovenia multiple times, but was ignored. When he wanted to write “Slovenia”, as destination country, the police officer took the document and thus prevented him to do so. The Ministry of the Interior (the Ministry) argued to the contrary that he never tried to apply for asylum and that he stated his destination was France for economic reasons, which the police officer wrote in the official document.

At the time of return of the plaintiff, numerous NGO reports as well as reports from international organizations, Slovene and Croatian ombudsmen confirmed the plaintiff‘s allegations on illegal returning of migrants from Slovenia to Croatia and their subsequent unlawful return to Bosnia. The Slovene Ombudsman found that the procedures conducted by the Slovene police were inadequate due to lack of a serious consideration of individual circumstances of each individual in a way that can eliminate doubt whether the person in question has expressed the wish to apply for asylum or has indeed done that, but was overheard and that consequently some persons in need of asylum could have been overlooked. The ombudsman‘s conclusions were based on his visits of the police stations close to the Croatian border and other documents, such as statistical data on asylum applications. The official police statistics of Police station, where the applicant was probably processed, showed that from January 2018 to May 2018 99,2% of aliens applied for asylum, whereas in June the percentage fell to only 3,15% and slowly increased but remained relatively low. This fall coincided with the instruction, issued by the General Director of the Slovene Police on 25th May 2018, which allegedly called for a more restrictive approach. The Croatian ombudsman as well as domestic and foreign press reported about Croatian police violence towards the migrants and poor conditions that come close to a humanitarian catastrophe in the Bosian migration camps. The reports also testified that the Bosnian asylum system was inoperative and that there was no de facto chance to seek international protection in Bosnia.

The AC decided that (I) by returning the plaintiff to the Croatian police under the Agreement, the Ministry of the Interior violated his rights from Articles 18, 19 (1) and 19 (2) of the Charter and that (II) after the finality of the judgment, the Ministry must allow the plaintiff access to the Slovene territory and submission of the application for asylum. The AC also awarded 5000 EUR and costs of the procedure to the plaintiff.

Reasoning 
(role of the Charter or other EU, ECHR related legal basis): 

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). 

  • Non-refoulement

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.[1] 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.[2]  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.[1] Yet, when the MS cannot be unaware that such flaws exist in another MS,[2] 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.[3]

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.[1]

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.[1]  

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,[1] 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[[1]] (by submitting official documents) that the alien had sufficient real (de facto) possibilities, to defend himself against the expulsion[[2]] 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.[[3]] To a certain extent, the political context of the measures, the latest policy and instructions for the use of bilateral agreements are relevant.[[4]] 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;[[5]] 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.[[6]]”  

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. 

Relation of the case to the EU Charter:

Applicability of the CFREU:

The AC dedicated a large part of the judgment (10 pages) to the question of applicability of the CFREU. It first clarified the applicable legal basis of the (material) act of return: Article 6 (3) of the Return Directive. According to the said provision “Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall [issue a return decison].” By invoking Affum, C-47/15, para. 86, the AC then held that the CJEU has held that the Member State which decides to transfer an alien to another Member State pursuant to Article 6(3) of the Return Directive, acts within the framework of the common standards and procedures established by the Directive. It further noted that the CJEU has already held that the EU law is implemented or interpreted in cases, when EU law affords discretion to the MS.[1]

However, the AC added a further layer of complexity to the question of applicability of the Charter. On the one hand, it referred to Tjebbes and Others, C-221/17, para. 30, where the CJEU held that “the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by EU law, the national rules concerned must have due regard to the latter”. On the other hand, it invoked Hernández and Others, C-198/13, paras. 36, 46, where the CJEU, opined that the mere fact that the national legislation comes within an area in which the EU has powers under the TFEU cannot render the Charter applicable. In addition, it turned to Iida, C-40/11, paras. 80–81, where the CJEU decided that even though the national provision was intended to implement EU law, the CFREU was not applicable, since the claimant did not satisfy the conditions, set by the EU Directive and the case thus fell outside the scope of EU law. It further noted that “under Article 51(2), the Charter does not extend the field of application of Union law beyond the powers of the Union, or establish any new power or task for the Union or modify powers and tasks as defined in the Treaties.”[1]

In order to resolve the issue of applicability of the Charter, the AC finally turned to the circumstances of the present case. It found that the questions governed by Agreement and Protocol (bilateral treaties for return of migrants from Slovenia to Croatia) are predominantly not left to the national law, but are regulated not only by the Return Directive, but also by the Procedural Directive. Articles 6 (1), 8 (1) (2) as well as Recitals 25 and 28 of the Procedural Directive impose obligations for the MS, which has to ensure, that: “other authorities which are likely to receive such applications, but not competent for the registration under national law, […] such the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training […] and instructions to inform applicants as to where and how applications for international protection may be lodged; that where third-country nationals or stateless persons may wish to make an application for international protection, they provide them with information on the possibility to do so; that they make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure; that organizations and persons providing advice and counselling to applicants have effective access to applicants. These obligations incumbent on “other authorities” are novel in comparison with the previous procedural directive, since the aim of the EU legislator was to take into account to a greater extent the fact that the capacity of the alien, to formulate their desire to apply for asylum, could be lowered, due to the language barrier, exhausting travel etc. The Court added that the Agreement and Protocol aim to protect the public interest (the rights of others) and thus comes within the ambit of goals from Articles 79 (1), 79 (2)(c)(d) of the TFEU. As a result, the court concluded that the Charter was applicable.

CFREU as a cornerstone of the AC‘s reasoning

As it follows from part “Reasoning (role of the Charter or other EU, ECHR related legal basis)” of this template that the Charter played a prominent role in the case at hand. The Charter (and the CJEU jurisprudence interpreting it) was thus used not only as an additional argument to strengthen the reasoning, but as a legally binding criterion. With regards to the prohibition of collective expulsion, the AC noted that there is no domestic provision, prohibiting collective expulsions and no domestic jurisprudence. (para. 405-406) As a result, the standards from Charter and the ECHR were directly applied to fill the legal lacuna in the domestic law and were therefore indispensable for the protection of fundamental rights in the present case. 

Relation between the EU Charter and ECHR:

The AC held that according to the settled jurisprudence of the CJEU[1] and the Explanations relating to the charter of fundamental rights (OJ EU C 303, 14 December 2007), the protection afforded by Article 4 CFREU (and its lex specialisprovision of 19 (2) CFREU) is equivalent to standards of Article 3 ECHR. The same was found to be true for the prohibition of collective expulsion from Article 19 (1) CFREU and Article 4 of Protocol no. 4 to the ECHR (para. 405). 

Nevertheless, the AC used the jurisprudence of both CJEU and ECHR to develop relevant legal rules, governing the case at hand. Both systems were regarded as complimentary and mutually reinforcing. According to the AC, this was necessary, since the CJEU had held that the aim of Article 52 (3) of the Charter is to ensure the “necessary consistency” between the Charter and the ECHR “without thereby adversely affecting the autonomy of Union law and that of the Court of Justice of the European Union.”[1] (para. 260) 

The AC also explained, that the presumption of equivalence of protection, established by the ECHR in cases such as M. S. S. v Belgium and Greece does not apply to the case at hand, since Article 6 (3) of the Return Directive grants discretion to the Member state. In this way the AC was able to apply the standards from both systems and not only the EU law standards under the presumption of equivalence.

The AC even provided a very detailed analysis of the development of the relationship between the ECHR and the Charter. It held that 11 months, after the M. S. S. decision of the ECHR, the CJEU rendered its famous N. S. and M. E. decision, where it accepted the ECHR standards, but at the same time established the principle of mutual trust between the members of the EU, i. e. a rebuttable presumption, that all MS respect fundamental rights enshrined in the Charter. The CJEU held that the MS may not transfer an asylum seeker to the Member State responsible under the Dublin system where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.[1]

When the AC considered the procedural aspect of the prohibition of collective expulsion, it explained that Article 47 of the Charter affords higher protection than Article 13 ECHR, since it guarantees that the remedy can be brought before an independent court, whereas under Article 13 ECHR, this is not necessary. (para. 413) 

Use of Judicial Interaction technique(s):

Consistent interpretation:

The AC found that Articles 6 (1), 8 (1) (2) as well as Recitals 25 and 28 of the Procedural Directive are not transposed by the International Protection Act, since it affords protection only to those, who filed an application for asylum and those, who expressed their wish to do so. However, the above provisions of the Procedural Directive have a broader scope. The state has to ensure procedural guarantees such as informing and interpreting also to those for whom it is possible to suppose that they wish to apply for international protection. Therefore, the AC held that the Agreement and the Protocol must be interpreted and used in accordance with the said provisions of the Procedural Directive and the fundamental rights enshrined in CFREU. It also explained why such consistent interpretation is possible and the question of direct effect therefore does not arise:

-       the provision, stipulating that the extradition and reception is to be effectuated without formalities does not mean that there should be no formalities before the act of extradition and reception;

-       Article 6 (1) (c) and (e) of the Protocol requires a record of the hearing and a report concerning the arrest – therefore, according to the AC, an adequate interview, including the potential need for international protection has to be conducted during the hearing;

-       The Preambule of the Agreement provides that the Agreement respects the Geneva Convention on Status of Refugees;

-       Article 17 of the Agreement prescribes that the Agreement does not have an impact regarding the application of the Geneva Convention, its 1967 Protocol, ECHR and the UN Convention relating to the status of stateless persons.

Direct effect:

The AC explained that the plaintiff did not invoke a violation of the right to effective judicial remedy (Article 47 of the CFREU) in connection to Article 19 (2) of the CFREU. As a result, the AC did not rule on this aspect of the case. However, in an obiter dictum, the AC held that if he did, the court would have to ignore the Agreement and directly apply Article 8 (1) of the Return Directive, which demands that return decision to be issued. 

Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts):

In addition to ECtHR and CJEU caselaw, the AC also mentioned the jurisprudence of the Constitutional Court (cases Decision U-I-155/11-13 of 18 December 2013 and Decision U-I-59/19 of 18 September 2019), but only to provide an additional argument showing that certain standards were also recognized by the Constitutional Court.

Strategic use of judicial interaction technique (purpose aimed by the national court):

The AC used the interaction techniques for multiple purposes. With regards to the prohibition of collective expulsion, it applied the jurisprudence of the ECtHR and the CJEU to fill in the legislative gap. In general, the consistent interpretation was used in order to bring the national law (the Agreement) in line with the demands of the EU and ECHR law. For example, Slovenia has failed to implement several provisions of the Procedural Directive. This inadequacy was remedied by the consistent interpretation, adopted by the AC.

Impact 
on Legislation/Policy
:

The impact of the this judgment is yet to be seen. For now, it remains limited to academic circles, since the decision was quashed by the Supreme Court. However, the new judgment, which will be issued by the same chamber of the AC, is awaited.

Other:

The police did not issue a legal, but merely a material act, which meant that the plaintiff was unable to challenge the act in an ordinary administrative dispute procedure, where the court reviews the legality of the decision. He had to start the so-called quasi administrative dispute, which allows individuals to challenge material acts that interfere with their fundamental rights. The plaintiff hence had to show a violation of fundamental rights and not merely a violation of a statutory provision. Seen from this perspective, it is even more understandable, why the AC put so much emphasis on the fundamental rights in question, and why the reasoning was so long and complex.

Author:

Mohor Fajdiga

History of the case:(please note the chronological order of the summarised/referred national judgments).
  1. Administrative Court, Judgment I U 1490/2019-92 of 22 June 2020

Supreme Court, Order I Up 128/2020 of 28 October 2020


 
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