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WG Asylum-Immigration > Meetings > Vienna 4-5 June 2009 > A overview of the main problematic issues of immigration and asylum law under Slovenian jurisprudence

A overview of the main problematic issues of immigration and asylum law under Slovenian jurisprudence

In line with the title of my presentation, I will divide my contribution into two parts. In the first part, I will briefly explain the general situation of Slovenian case law in the field of immigration disputes. In the second part, I will present three problematic issues of asylum case law in Slovenia.

As an introduction I should note that in immigration disputes the Administrative Court is actually the last and the only instance of adjudication, because only in asylum cases do parties have the right to appeal a judgment of the Administrative Court to the Supreme Court. In other administrative disputes, including immigration, the parties only have a so-called "exceptional" legal remedy against a judgment of the Administrative Court; however, the Supreme Court is very restrictive in accepting these remedies.

The interesting features of Slovenian case law on immigration are the following:

We have neither important nor difficult immigration disputes that would be relevant from the standpoint of Community law or the ECHR.

Even in terms of workload we do not have many immigration cases at all. There were a few cases related to the so-called Schengen Border Code, [1] but these cases did not raise any serious questions of material or procedural law.
Even if I depart from the strict legal term of immigration disputes under Community law, I have to say that we have not yet experienced any serious cases concerning freedom of movement of EU citizens. For example, there are only 82 citizens from other EU Member States who have permanent residence permits in Slovenia.

Traditionally, Slovenia is a very homogeneous society in terms of ethnicity, race, religion and culture; whether this is also reflected in decision making and adjudication is another question, which is mostly beyond the scope of my presentation. In any case, nothing important is happening in the field of jurisprudence on immigration in Slovenia.

The situation is quite different in the field of asylum. In terms of statistics and our workload we experienced a huge drop in the number of asylum disputes in the past 2 years. Although this could be a very suitable opportunity to improve the quality of adjudication, we still have three basic unresolved legal questions and these include issues that relate to standards of a fair trial.

I will start with a problematic issue in our case law in which immigration and asylum issues overlap. In the case of a subsequent asylum application, when an alien files a new asylum application after his/her previous application has been rejected, our national law states that the alien must submit new evidence to justify the new procedure for refugee status or subsidiary protection. At that point he/she is not yet an asylum seeker, but rather an alien. If the administrative authority determines that he/she did not submit sufficient evidence, his/her claim for a subsequent procedure is rejected. He/she is then subject to general immigration law on deportation of aliens. The unresolved question in these procedures is whether the term "new evidence" in the national law means that a party must submit formal, documentary evidence or whether it is sufficient that an alien who claims a subsequent procedure only substantiate new facts in an oral statement. The first interpretation was developed by the Ministry. In certain administrative disputes the Administrative Court adopted the position of the Ministry, and this interpretation is also supported by the Supreme Court. However, in some cases the Administrative Court supports the interpretation that an oral statement of new facts constitutes sufficient evidence and that it is not necessary that the party submit documentary evidence. The issue is important for effective realisation of the right to seek asylum.

The reason we have two different interpretations is that the first interpretation is based solely on national law, while the second interpretation is based on a grammatical interpretation of Community law and on the principle of proportionality in relation to the international right to seek asylum under international law. The difference in these two approaches is the most common reason for important differences in adjudication if we compare the case law of the Administrative Court to the case law of the Supreme Court.

The second interpretation is based on the argument that this issue falls under Community law and that our national law is an implementing act of the Community law. Consequently, the court is convinced that in these cases we have to take into consideration what the EU Procedures Directive says on this issue. The Court determined that the English version of the Directive uses the wording further representations of the elements, new elements or findings (Art. 32 of the Procedures Directive); the French version uses the terms /.../de nouvelle declaration /.../, /.../ les éléments de la demande /.../ (32(1)), /.../ des nouveaux éléments ou des nouvelles donnés /.../ (32(3)); and the Italian version of the text uses the terms: /dichiarazione /.../, /.../gli elementi della domanda /.../ (32(1)), /.../ elementi o risultanze nuovi rilevati /... (32(3)). Therefore, the Directive does not use the term "documentary evidence". In a similar way, Article 34 of the Procedures Directive, which gives a certain margin of procedural autonomy to the Member States, says that national rules may oblige the applicant to indicate facts and substantiate evidence which justifies a new procedure. The text of Art. 34 in the Italian and French versions are the same. Based on this, the court stated it is acte clair that the EU Directive does not require documentary evidence and that it would be against Community law if the national law is interpreted more restrictively than the Procedures Directive. In addition, the Court stated that under the first interpretation, which requires that an alien must provide documentary evidence, the limitation to seek the right of asylum would be disproportional. This limitation would not be necessary in a democratic society, especially considering the fact that on many occasions and for objective reasons asylum seekers cannot obtain documentary evidence and since in these cases the absolute right to protection against inhuman treatment may be at stake. A relevant case is now pending before the Supreme Court. If the Supreme Court does not change its interpretation, the Administrative Court might refer the case to the Constitutional Court. The Administrative Court is not allowed to pose the question to the ECJ due to par. 1 of Art. 68. of the Basic Treaty. [2]

The second problematic issue refers to procedural standards for the use of COI in administrative procedure. According to our national law we have so-called "general" COI and "specific" COI. The law defines general COI as “information on the country of origin, especially in respect of the socio-political situation and legislation, while specific COI are detailed and profound, related exclusively to the concrete case – they may also include information on the actual realisation of rules in the country of origin.” Further literal interpretation of the national law leads to the conclusion that only specific COI have to be presented to the party so that he/she can respond to that information before the authority reaches a decision. This rule is very unreasonable, since COI is only in very exceptional cases related exclusively to the concrete case. Therefore, we are actually dealing only with general COI, and in the case of general COI it is not necessary (according to our law and interpretation of the Ministry and the Supreme Court) that the administrative authority be obliged to give a party an opportunity to be informed about that COI before the authority reaches a decision. By establishing this difference between general and specific COI the Government has very effectively avoided or overturned the previous position of the Constitutional Court according to which if the administrative authority uses any kind of COI, it must provide the applicant with the opportunity to react to that information. However, the Constitutional Court recently, in March 2009, [4] changed its position. [4] Based on this new position, we now have a legal situation in which both general and specific COI are considered matters of general knowledge, which means that as soon as the Ministry establishes a certain COI, no additional proof and no assessment whatsoever of COI is necessary, because COI is a well-established fact per se. The applicant may indeed prove the opposite, in the view of the Constitutional Court, but only in the procedure before the Administrative Court, because the Ministry has no obligation to reveal a general COI to the applicant before issuing a decision, which means that in the future, facts will be established for the first time before the Administrative Court in accordance with the principle of equality of arms. [5]

The third problematic issue in our case law has the strongest and most persistent impact on access to the asylum procedure for asylum seekers. Our law says that the administrative authority rejects an asylum application as manifestly ill-founded if /.../. There are 16 circumstances listed in the law under which the authority automatically rejects an asylum application as manifestly ill-founded. These circumstances, for example, are the following: if the applicant has no good reason for not applying for international protection at the earliest possible time; if the applicant’s argumentation is based on a false identity or forged document, or if that applicant does not expose relevant information or documentation of his/her identity or nationality; if the applicant deliberately destroyed a passport or any other document that might be relevant to the procedure; if the applicant conceals having lodged a previous asylum application in another country, in particular if he/she uses a false identity; if the applicant files an application in order to postpone forced removal; if the applicant despite his/her assurance does not a submit a certain document on time; if the applicant submits a second application based on different information concerning his/her identity; or if the applicant tried to enter another state illegally and was arrested by the police or returned to Slovenia.

The Ministry, the Supreme Court and the Constitutional Court still hold the position that as soon as the administrative authority establishes one of these 16 circumstances it may reject the application in accelerated procedure as being manifestly ill-founded and no further examination of the conditions for international protection is necessary. [6] This is not in accordance with the Procedures Directive. The Procedures Directive, too, lists certain circumstances under which Member States may prioritise a procedure, but the Procedures Directive does not clearly say what is meant by accelerated procedure in terms of procedural guarantees. What is certain is that the Directive does not state anywhere that such an application shall or may be automatically rejected as manifestly ill-founded without considering other relevant facts in the case. [7]

However, there is some light at the end of the tunnel, namely that the Constitutional Court developed three important constitutional standards regarding the use of provisions on accelerated procedure.
In case of doubt, even under accelerated procedure, the decision must be taken for the benefit of the applicant; furthermore, provisions on accelerated procedure must be interpreted restrictively. [8] The third constitutional standard regarding accelerated procedure is the crucial one for the solution of the problem. The Constitutional Court states that conditions for using provisions of accelerated procedure are fulfilled “only when an applicant invokes elements which cannot under any circumstances mean persecution in terms of Art. 9 of the Qualification Directive”, in other words, “as soon as the administrative authority has to assess the intensity of a human rights violation under the conditions of the Geneva Convention, the case cannot be decided in accelerated procedure. [9] These three constitutional standards were based on the argument that an eventual negative decision could have serious consequences for the asylum applicant’s right, which has an absolute nature. [10] Here, I would like to point out that this formula of the Constitutional Court fits with the position of the ECtHR, which applies fair trial standards in relation to Art. 3 of the ECHR if a party has a so-called "arguable claim", otherwise Art. 3 and Art. 13 of the ECHR are not applicable at all.

However, the Supreme Court recently stated that this interpretation of the Constitutional Court can no longer be relevant, since the law was changed after the Constitutional Court gave its interpretation. [11] In my opinion this is not the right argumentation, because the Constitutional Court gave its interpretation based on constitutional procedural standards and not based on the text of the statute, which must be in accordance with the Constitution.

Recently, the Administrative Court adjudicated the case of a Tamil from Sri Lanka who actually presented the very same case that was adjudicated by the ECHR in N.A. v. United Kingdom. The Administrative Court followed the standards of the ECtHR by saying that since the applicant has an "arguable claim", his claim should not be assessed in accelerated procedure. The case is now pending before the Supreme Court. If the Supreme Court holds the position that the accelerated procedure may be used regardless of the fact that an applicant has an arguable claim, the Administrative Court could refer the case to the Constitutional Court due to the contradiction between the authoritative interpretation of accelerated procedure adopted by the Supreme Court and the constitutional right to protection against torture and inhuman treatment. In its argumentation the Administrative Court might use the decision of the ECtHR in K.S.R. v. U.K. from July 2008, where the ECtHR said the following: While it is in principle acceptable for Contracting States to set procedural requirements for the submission and consideration of asylum claims and to regulate any appeals process from adverse decisions at first instance, the automatic and mechanical application of such procedural requirements will be considered at variance with protection of the fundamental value embodied in Article 3 of the Convention. This position goes back to the judgment of the ECtHR in the case of Jabari v. Turkey.

[1] Regulation No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders, O J L 105, 13. 4. 2006.

[2] For an explanation of which court may be considered the final court in terms of Art. 234. of the Basic Treaty, see judgments of the ECJ in the cases C-99/00, 4 June 2002 (Lyckeskog, Sweden) and C-210/06 of 16 December 2008 (Cartesio, Hungary).

[3] Up-2393/08 of 18 March 2009.

[4] Recently, 6 (out of 9) new constitutional judges were elected.

[5] In order to present a better picture of the partcular case Up-2393/08 of 18 March 2009, I would say that in the given case where the Constitutional Court adopted that position the conrete COI referred to the fact that an applicant from Sierra Leone or Liberia had claimed that he was attacked by a rebel leader, while the Minstry found out based on COI that at that time the leader was already dead and that the rebels had been disarmed.

[6Judgments of the Supreme Court in cases: I Up 35/2005 of 19 January 2005, I Up 197/2005 of 16 February 2005, I Up 106/2008 of 17 April 2008, I up 563/2008 of 10 December 2008; rulings of the Constitutional Court in cases: Up-240/2005 of 21 April 2005, Up-794/2005 of 20 October 2005, Up-1525/06-23 of 21 June 2007, Up-2195/06-14 of 11 September 2007, Up-2214/06 of 20 September 2007.

[7] For more on this see: Zalar, Boštjan, 2008, Constitutionalisation of the Implementing Act of the Procedures Directive – The Slovenian Perspective, Europan Journal of Migration and Law, 10, 187–217.

[8] Rulings of the Constitutional Court in cases: Up-1187/06 and Up-1458/06 of 19 October 2006, Up-1525/06 of 21 June 2007.

[9] Ruling of the Constitutional Court in cases: Up-1187/06 of 13 July 2006, Up-1187/06-15 of 19 October 2006, Up-2214/06-17 of 20 September 2007.

[10] Ruling of the Constitutional Court in cases: U-I-238/06 of 7 December 2006, Up-2214/06-17 of 20 September 2007.

[11] Judgments of the Supreme Court in cases: I Up 1/2009 of 22 January 2009 and I Up 107/2008, I Up 354/2008, I Up 533/2008.