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ACCESS TO ADMINISTRATIVE JUSTICE IN ORDER TO SEEK FUNDAMENTAL RIGHTS - Slovenian case study - conclusion

Generally, at first instance the Ministry of Interior is the determining authority for granting refugee status. Traditionally, the Administrative Court of the Republic of Slovenia performs a judicial review of administrative acts and decisions, including asylum and immigration cases. Nevertheless, it has a legal power to conduct a full review of law and facts, and may also adjudicate in so called full jurisdiction dispute, which means, that it may itself grant asylum, as well. According to the legislation on granting protection to aliens, an alien may be granted protection in one of the following forms: the refugee status or subsidiary protection under International Protection Act, temporary protection under the Temporary Protection Act, permission to tolerated stay within the territory of Slovenia under the Act on Aliens.

In respected case Mr. M. C., who is a German citizen, expressed on 2nd June, 2009 the intention to file an application of international protection in the Republic of Slovenia for the first time.

His intention was declared inadmissible by an administrative decision of the Ministry of interior as competent authority issued on 3rd of June, 2009.

The applicant filed a lawsuit before the Administrative Court of the Republic of Slovenia. He argued that he has a right to access the procedure of recognition the refugee status or the subsidiary protection status under Geneva Convention and under Constitution of the Republic of Slovenia.

Upon consideration of the respective case, the Administrative Court of the Republic of Slovenia as the court of first instance was able to dismiss the administrative decision of the administrative body. It was also decided, that Ministry of Interior has to conduct (individually) the administrative consideration of the respective case of Mr. M.C. The Slovenian Constitution has several provisions that relate to foreign nationals. Article 22 of the Slovenian Constitution states, that everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local communities authorities and bearers of public authority that decide on his rights, duties or legal interests. The Constitution does not make any difference between terms foreign nationals and EU Member states nationals (except Slovenians). Article 48 of the Slovenian Constitution states, that the right to asylum shall be recognised for foreign nationals and stateless persons. Judges who are bound to the Constitution, Community law, international treaties and statutes must interpret all the provisions of the asylum legislation which tend to transpose the Procedures Directive and the Procedures directive itself in a compliance with fundamental rights. Judges may apply statutory provisions of national legislation insofar as they are consistent with the relevant international agreements. Otherwise, they must stop proceeding and refer the issue of the constitutional validity of the statute to the Constitutional Court (Article 156 of the Constitution).

Ministry of interior succeeded with appeal, filed at the Supreme Court of the Republic of Slovenia as the court of second instance in asylum cases. The Supreme Court quashed the judgement of the Administrative Court and overturned the lawsuit of the applicant Mr. M.C.
A constitutional complaint to the Constitutional Court as the last possible legal remedy in in the case of human rights violation in a procedure before the Supreme Court in the respective case has not been filed.

Darinka Dekleva Margu─Ź
Judge of Administrative Court
of the Republic of Slovenia