Prof Dr Boštjan Zalar
High Court Judge of the Administrative Court of the Republic of Slovenia
Ad hoc Judge of the European Court of Human Rights
Transposition of the Art. 32 of the Procedures Directive no. 2005/85/EC into national legal order :
With the Art. 32 the Procedures Directives offers several different options to the Member States how to transpose subsequent application procedure into domestic legal order. The Slovenian legislator has used the option under Art. 32(2)(b) in conjunction with Art. 32(2)(a) of the Procedure Directive. Under this option the subsequent application procedure is applicable only after a final negative decision or decision based on withdrawal of the asylum application has been taken. In Slovenia, an administrative decision becomes final after the judgment of the Supreme Court (or judgment of the Administrative Court if none of the parties appealed against judgment of the Administrative Court) is delivered to the parties. The Administrative Court and the Supreme Court did not encounter any problems concerning the correct transposition of the Art. 32 of the Procedures Directive into domestic legal order.
The major legal issues concerning the interpretation of provisions of subsequent application were partly resolved in 2006 by the Constitutional Court and furthermore in the the middle of 2008 and at the end of 2010 by the Administrative Court. These legal issues in relation to the EU law and the European Convention of Human Rights (hereinafter : the ECHR) were the following.
Rules of evidence (burden and standard of proof) :
In ruling from December 2006 the Constitutional Court decided that the provision in the International Protection Act (at that time : Asylum Act) according to which the relevant new circumstances which can provoke a subsequent application procedure are only those circumstances that have occurred after the final decision in the previous procedure, is not acceptable from the standpoint of the absolute protection against torture and inhuman treatment (Art. 3 of the ECHR). According to the ruling of the Constitutional Court the circumstances that were in place already during or before the start of the previous procedure can be relevant too. That ruling of the Constitutional Court was important and still is important, since it reaffirms that in case of subsequent application procedure there is an exception concerning the formal rules of evidence. Namely, in a subsequent application procedure the applicant has a formal burden of proof to submit a particular new evidence which show that relevant circumstances in the light of his/her application on refugee status or subsidiary protection “significantly add to the likelihood” that he/she fulfills criteria for international protection.  Furthermore, according to that ruling of the Constitutional Court in case of the subsequent application procedure the first instance authority is bound by the evidence submitted by the applicant and has no obligation ex officio to examine additional evidence. 
In my opinion this standard of not sharing the burden of proof between the applicant and the state can only be applicable in practice provided that in case of doubt within the subsequent application procedure the benefit of doubt whether the submitted evidence is sufficient or not the new procedure on asylum application should be (re)opened. Otherwise, rules of evidence according to the case law of the European Court of Human Rights (hereinafter : the ECtHR) could be jeopardized and the right to an effective remedy from the Article 47(1) of the Charter of Fundamental Rights of the EU (hereinafter : the Charter) and from the Art. 39(1) of the Procedures Directive in conjunction with the right to asylum from Art. 18 of the Charter could be jeopardized as well. Speaking in terms of ECHR, if the applicant in his/her request for subsequent procedure has an arguable claim in relation to Art. 3 of the ECHR, then rules of evidence concerning Art. 3 of the ECHR based on the case law of the ECtHR, which are relevant also for the EU law, need to be applied.  Here, it is important to note also that in Slovenia applicants have the right to free legal assistance on all three levels of decision making and adjudication and this includes subsequent asylum procedure.
The issue that was not part of that ruling of the Constitutional Court from December 2006 is the question whether an applicant in a subsequent application procedure must submit a written documentary evidence or is it sufficient that he/she orally raise some relevant facts concerning his/her claim for international protection. This question was resolved by the Administrative Court in the middle of 2008. The argument of the first instance authority (Ministry of Interior) was that the submitted evidence must be a written documentary evidence and that new facts presented in the oral statement cannot be a sufficient evidence. The Administrative Court rejected that argument. In its interpretation the court relied on the General Administrative Procedure Act were an oral statement of the applicant is acceptable as a mean of evidence as well. But, primarily the court relied on literal interpretation of the Procedures Directive which in Article 32 and 34 uses the terms “further representations or the elements /.../ new elements or findings. In French version of the Procedures Directive the following terms are used : de nouvelle declaration /.../ les éléments de la demande /.../ des nouveaux éléments ou des nouvelles donnés /.../des éléments ou des faits nouveaux apparaissent ou sont presentés /.../ and in Italian language : /dichiarazione /.../ gli elementi della domanda /.../ siano stati addotti dal richiedente elementi o risultanze nuovi rilevati /.../. The court came to the conclusion that it is acte claire that Procedures Directive does not demand from the applicant to submit written documentary evidence. Oral statement on new facts could be enough and in this case the applicant was a Roma from Kosovo who stated the new fact that she was a victim of a raped in her country of origin. The court took the view that it is not always reasonable to expect that victim of a rape would expose facts about rape at the early stage of procedure. On this point the Administrative Court made a reference to judgment of ECtHR in case of Hilal v. U.K. (para. 64), to the decision of the UN Committee for Human Rights in case of Hatami v. Sweden and to the decision of the UN Committee against Torture in cases of Haydin v. Switzerland, Tala v. Switzerland, Alan v. Switzerland. 
This position of the Administrative Court is very important, because the Art. 32(6) states that Member States may decide to further examine the application only if the applicant was, through no fault of his/her own, incapable of asserting the situations in the previous procedure. This condition, therefore, in the Procedure Directive and in the International Protection Act is not an absolute one, if a person has an arguable claim in relation to Art. 3 of the ECHR.
The Supreme Court upheld the aforementioned judgment of the Administrative Court from May 2008 and the legislator later on amended the International Protection Act by provision which now states that alien may submit new documentary evidence or may orally present new facts to the case which significantly add to the likelihood that he/she fulfills criteria for refugee status or subsidiary protection.
Other procedural rules and issues concerning legal status of person requesting subsequent application :
Article 34 of the Procedures Directive (further) directs the Member States to develop additional specific procedural rules concerning subsequent application including time-limits for submission of evidence and limitation of personal interview. However, there is a very important provision in the second paragraph of Art. 34(2) according to which procedural limitations must not render impossible access to a new procedure or result in the effective annulment or severe curtailment of such access. This is the so called basic principle of effectiveness as the general principle of EU law established already in 1976 in non-asylum related cases.  The very same standard of effectiveness was established in asylum related judgment of the ECtHR in case of Bahhaddar v. the Netherlands. 
Concerning the legal status of applicant in subsequent application procedure in Slovenia it is important to note that if the authority finds out that the applicant did not fulfill his/her burden of proof, the request for subsequent application is rejected and at that point the Aliens Act becomes applicable to the alien. If the applicants fulfills his/her burden of proof, then the authority opens the new procedure and only on that point the applicant gets the status of asylum applicant. Otherwise, during the entire subsequent procedure according to International Protection Act a person has not a status of asylum seeker. During the entire subsequent procedure based on national law in Slovenia a person who requests subsequent application has a status of an alien.
Restriction on the freedom of movement or personal liberty in subsequent application procedure :
According to the constitutional-friendly interpretation of the International Protection Act, today, in my opinion it is not possible to detain a person who files a request for subsequent application, because national provisions on the restriction of movement or personal liberty refers only to asylum seekers and an alien who submits a request for subsequent application does not have a status of asylum seeker. I doubt that this was an intention of the government and the parliament to exclude persons in subsequent application procedure from detention. But, now the International Protection Act only says that if an alien files a request for subsequent application he/she is “accommodated” in the Center for Aliens which is a competent authority for deportation of aliens. In my opinion, this provision does not fulfills the criteria for the quality of provisions on detention developed by the ECtHR in relation to Art. 5(1)(f) of the ECHR in the judgment of the Grand Chamber in case of Saadi v. the U.K.  Concerning the quality of national law it is necessary that the law is clear, understandable, foreseeable and accessible.  Our national law is not clear and foreseeable and could not pass the test of arbitrariness, that is why, in my opinion, there is no legal ground for detention of the applicants for subsequent asylum procedure in Slovenia.
Right to effective legal remedy and access to court :
The Art. 32(1)(d) of the Procedures Directive specifically states that Member States “shall ensure” that applicants for asylum have the right to effective remedy before a court or tribunal against a decision not to further examine the subsequent application pursuant to Art. 32 and Art. 34 of the Procedures Directive. However, what does effective legal remedy means in concrete terms ? There is no doubt in Slovenian legal order that an applicant has a right to full judicial review of facts and law in administrative dispute against the negative decision to re-open the asylum procedure. However, an integral part of the right to effective legal remedy is also a suspensive effect of the lawsuit against the decision of the first instance authority. On this point we had a problem that was resolved by the Administrative Court. Namely, only the literal interpretation of the International Protection Act very clearly leads to the conclusion that a lawsuit against the administrative decision on rejection of request for subsequent procedure has no suspensive effect. The Ministry had tried to endorse this interpretation in practice, but the Administrative Court has prevented this by the constitution-friendly and international-law-friendly interpretation, based on the judgments of the ECtHR in cases of Čonka v. Belgium (paras. 82-83), Gebremedhin v. France (paras. 65-66) and Abdolkhani and Karimnia v Turkey (paras. 58, 59, 108, 116). According to this well-established case-law a lawsuit against the administrative decision, which can provoke deportation and the risk of violation of the right from the Art. 3 of the ECHR, must have a suspensive effect.  Therefore, in actual practice the Ministry of Interior always waits with the eventual execution of deportation until the judgment becomes final. So, in fact, although this is not written in Slovenian law, a lawsuit has an automatic suspensive effect and the party does not need to file a request for interim measure. The Supreme Court upheld that interpretation and judgment of the Administrative Court. 
 Ruling of the Constitutional Court in case U-I-238/06-19 from 7 December 2006, paras. 13-15.
 This means that after the applicant submits relevant evidence the burden of proof shifts to the Government to dispel any doubt about real risk concerning Art. 3 of the ECHR (N.A. v. the U.K., para. 111 ; Saadi v. Italy, para. 129) and this includes necessary assessment of the conditions in the receiving country based on country of origin information (Mamatkulov and Askarov v. Turkey, para. 67 ; N.A., v. U.K., para. 110). Substantial ground for believing that a person would be exposed to a real risk means that an applicant need not to prove that subjection to ill-treatment or persecution is more likely than not (Saadi v. Italy, para. 140).
 Judgment of the Administrative Court in case U 992/2008-5 from 7. May 2008 (also U 1805/2008-24 from 10. December 2008).
 See for example judgments of the Court of Justice of the EU in non-asylum related cases : Comet 45/76 ; Rewe 33/76 ; Johnston 222/84, para. 17 ; Graham J. Wilson C-506/04, paras. 43-46 ; Santex Spa C-327/00, paras. 51 and 54. In non-asylum related case 199/82 (San Giorgio) the ECJ stated that a duty to submit a formal evidence, for example a written evidence, might be against the right to effective judicial remedy if there are objective reasons that party practically is not able to provide such evidence or if such rule place to much evidentiary burden on a party even if this burden derive only from the judicial interpretation and it is not regulated explicitly in the statute (see also case 104/86, Commission v. Italy and Case C-129/00, Commission v. Italy).
 In Bahhaddar the ECtHR says : “Even in case of expulsion to a country where there is a alleged risk of ill-treatment contrary to Article 3, the formal requirements and time limits laid down in domestic law should normally be complied with, such rules being designed to enable the national jurisdictions to discharge their case-load in orderly manner. Whether there are special circumstances which absolve an applicant from the obligation to comply with such rules will depend on the facts of each case. It should be borne in mind in this regard that in applications for recognition of refugee status it may be difficult, if not impossible, for the person concerned to supply evidence within a short time, especially if – as in the present case – such evidence must be obtained from the country which he or she claims to have fled. Accordingly, time-limits should not be so short, or applied so inflexibly, as to deny applicant for recognition of refugee status a realistic opportunity to prove his or her claim” (ibid. para. 45).
 According to the well-established case-law of the ECtHR the national law may regulate different legal grounds for detention but any legal ground in national law must fall under one purpose covered by the Art. 5 paragraph 1.a). to f.). This means that asylum seeker may be detained only in view to deportation or prevention of unauthorized entry. if not, the act of detention is automatically against the ECHR. But, only compliance with national procedural and material law is not sufficient (Saadi v. U.K. para. 67).
 Koktysh . Ukraine, para. 73.
 Judgments of the Administrative Court in cases I U 1929/2010 from 21. December 2010 and 29. December 2010.
 Judgment of the Supreme Court in case I Up 684/2011 from 17 February 2011.