Slovenia - Constitutional Court, 18 December 2013, U-I-155/11

The Constitutional Court believes that the Applicant's statement that the concept of the safe third country is in itself inconsistent with the principle of non-refoulementdoes not hold true. The non-refoulement principle does not give the Applicant the right to select the country of protection. The safety of the third country can be assessed in each individual case or in general. The Applicant needs to have the possibility of refuting the assumption as regards the safe third country. The legal criteria for assessing a safe third country (analogue to the criteria stipulated in Article 27(1) of the Procedures Directive) fulfil the requirements originating from the non-refoulmement principle. In the event that a government defines a safe third country in conflict with the legal criteria, judicial protection is ensured in administrative proceedings.

As regards the term »staying«, the Constitutional Court found that it is not precise enough and that it includes a wide range of situations that can differ greatly as regards the intensity of the Applicant's contact with the territory of the third safe country on the basis of which the individual may be returned to this country (logical connection). On the one hand, this enables the explanation that, for the presence of a logical connection, it is sufficient for the Applicant to undoubtedly arrive from the mentioned third country. On the other hand, the term also enables the explanation offered by the Applicant, that only legal residence in a third country represents a logical connection. This allows the possibility of various uses in essentially similar cases, as well as the possibility for state bodies to arbitrarily decide concerning the rights of individuals. Because the removal of the applicant for international protection to a third country can represent a threat to his rights as stipulated in Article 18 of the Constitution (prohibition of torture), a demand for clear and specific directives is of special importance. Due to the unclear wording as regards assessing the jurisdiction of the third country for examining the application, the contested ZMZ provision is not in accordance with the Constitution. Apart from this, it is also unconstitutional due to the unclear position of the applicant for international protection, if, once his application is rejected, the third country does not allow him to enter its territory, and the unclear circumstances, as to what the Applicant can contest in this procedure.

According to the established position of the Constitutional Court, the non-suspensive nature of the action in administrative proceedings does not necessarily effect Article 25 of the Constitution (right to appeal), because the plaintiff has a right to appeal and to demand a temporary postponement of the implementation. However,  the non-refoulement principle provides that, when assessing applications for international protection, states  must ensure that the procedure that does not hinder the real possibility for the Applicant to prove the merits of the application. In asylum cases, the ECtHR has - taking ECHR Article 3 into account - adopted the view that an efficient appeal against removal to a country in which the Applicant could be exposed to inhuman treatment needs to have suspensive effect in itself. According to the ECtHR, the demand for temporary suspension of the implementation cannot be a substitute for automatic suspension. The Constitutional Court concluded that the contested provision was unconstitutional because, when taking into account the irreparable damaging consequences that the Applicant could experience if inhuman treatment took place, accelerating and increasing the efficiency of the procedure and reducing costs for the state cannot be constitutionally acceptable objectives for limiting the right to judicial protection and the right to appeal.