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Slovenia - Supreme Court of the Republic of Slovenia, 14. februar 2013, I Up 39/2013
Country of Decision:
Country of Applicant:
Date of Decision:
14-02-2013
Citation:
I Up 39/2013
Court Name:
Supreme Court of the Republic of Slovenia
Keywords:
Relevant Legislative Provisions:
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Recital 22
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Recital 27
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 27 > Art 27.2 (a)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Recital 27
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 27 > Art 27.2 (a)
National / Other Legislative Provisions:
Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act)
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Headnote:
When rejecting an application for international protection under the safe third country concept, Article 27 (2) (a) of the Procedures Directive needs to be taken into account. According to this article, the "connection" between the Applicant and the safe third country needs to be ascertained during the process.
Facts:
The Ministry of Interior rejected the application for international protection of a family from Afghanistan without a substantive hearing. The decision was issued in accordance with national provisions on the safe third country (paragraph 1 of Article 63 of the International Protection Act) and on the basis of the evidence that prior to arrival in Slovenia, the Applicants spent between 10 and 15 days in the Republic of Croatia, which Slovenia considered to be a safe third country.
The Administrative Court of the Republic of Slovenia dismissed the decision of the Ministry of Interior and returned the case for a fresh procedure, as Article 27 (2) (a) of the Procedures Directive was not taken into account. According to this Article, the Ministry should have established a connection between the asylum seeker and the third country in question on the basis of which it would be reasonable to return the asylum seeker to that country. According to the Administrative Court, mere ‘presence’ on the territory of a third country cannot constitute a link or a close tie between the Applicant and the third country.
The Administrative Court was also of the opinion that the Defendant should determine whether Croatia was truly a safe third country for the Plaintiffs in the sense that it does not send applicants to Greece after the judgment of theECtHR.
The Ministry filed an appeal against the judgment of the Administrative Court.
Decision & Reasoning:
The Supreme Court agreed with the Administrative Court that the provision of the International Protection Act of "presence" in a safe third country has to be interpreted in accordance with Article 27 (2) (a) of the Procedures Directive. The Supreme Court was also of the opinion that the stated provision of the Procedures Directive should always be applied, which means that it is necessary to determine the "connection" between the applicant and the safe third country in every procedure.
The Procedures Directive does not provide a definition of this "connection". This is a legal standard that needs to be determined on a case-by-case basis. However, the term "connection" should not be interpreted too broadly. According to the Supreme Court, it is not necessary for direct or indirect contact to have taken place between the Applicant and the authorities or institutions within the concerned third country; it is enough if the circumstances of the individual case reveal that the Applicant had objective and subjective possibilities to establish contact with the authorities of the safe third country.
However, the Supreme Court did not agree with the Administrative Court that it would be easier for the Defendant to gather evidence that Croatia is not a safe country for the Plaintiffs. According to the Supreme Court, the provision in the second paragraph of Article 63 of the International Protection Act is clear and requires the Applicant to submit evidence that the country in question is not a safe country. The Ordinance on the proclamation of the Republic of Croatia as a safe third country declares that Croatia respects the prohibition on removals that would violate the prohibition of torture and other cruel, inhuman or degrading treatment, and the Plaintiffs failed to present evidence that would state otherwise.
Outcome:
The Supreme Court dismissed the appeal of the Ministry and confirmed the contested judgment of the court of first instance.
Observations/Comments:
The judgment by the court of first instance was issued under reference number I U 1/2013 on 9. 1. 2013.
