Subsidiary protection detention and accelerated procedure in Slovenian jurisprudence on asylum
The purpose of this paper is to present three different issues of asylum law, which raise relevant question of international importance, since they all affect either or a common tradition of constitutional law standards of the Member States. The selected issues will be presented through the analyses of the practice of the first level of decision making (the Ministry of Interior), the second independent instance (the Administrative Court of the Republic of Slovenia), the third independent instance (the Supreme Court) and the Constitutional Court. The basic characteristics and competences of these authorities in asylum procedure are the following:Manual word wrap
The Ministry of the Interior is the determining authority for refugee status. The Administrative Court has a status of a High Court. It is an independent and impartial court. Judges hold lifetime appointments. The Administrative Court deals with all sorts of administrative disputes, not just asylum cases. However, at the moment, six judges are specialised in adjudication of asylum disputes and asylum disputes represent around 1/5 of their workloads.  Traditionally, the Administrative Court perform a judicial review of administrative acts and decisions and this holds also for asylum and immigration disputes. However, this judicial review traditionally means that the Administrative Court has a legal power to conduct a full review of law and facts, and may also adjudicate in full jurisdiction, which mean that it may determine a refugee status, as well.  TManual word wrap
The Administrative Court has no backlogs in asylum disputes. The Administrative Court adjudicates manifestly ill-founded cases in 7 days and the other asylum cases within 30 days.  These are the instructive time limit, which are respected. The procedure before the Supreme Court represents the third instance, or the second instance within the judicial branch. An appeal against a judgment of the Administrative Court to the Supreme Court has no limitation except a time limit and that errors in assessment of facts in the judgment of the Administrative Court can be the subject of review of the Supreme Court only if those facts were established in the procedure before the Administrative Court. Based on the Article 40 of the Asylum Act, the asylum seeker has permission to remain in Slovenia until the final ruling of the Supreme Court. The last possible legal remedy in Slovenia is a constitutional complaint to the Constitutional Court of the Republic of Slovenia in the case of a human rights violation in a procedure before the Supreme Court.
2. SUBSIDIARY PROTECTION
The subsidiary protection or the so called complementary protection or humanitarian protection represents an important aspect of divergence in refugee law between Member States of the European Union.  This divergence is expected to be gradually changed by the harmonisation that is regulated in the Qualification Directive.  Before the adoption of the Qualification Directive the humanitarian asylum raised several legal questions of procedural and substantial nature, which caused delay in conducting those asylum disputes; furthermore the case law from that period show, what was the attitude of decision makers and judges in respect of this aspect of international protection. These attitudes will probably reflect also in the application of the transposed subsidiary protection after the 10 October 2006. The very recent case law on the subsidiary protection confirm that these kind of disputes still cause a considerable delay in decision making process and adjudication. For example, the case of Mahija and Ramiz Berisha v. the Ministry of Interior (U 425/2007) involved a question, if a deportation of asylum seeker to his country of origin due to his/her health situation and interruption of medical treatment in Slovenia could violate his right from the Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention). In this case an applicant filed an asylum application on 28 July 2005, the determining authority issued two decisions, the Administrative Court adjudicated twice and the Supreme Court as well, so that the decision became final in April 2007. In case of Halilović v. the Ministry of Interior (U 480/2007), which involve the similar legal question as in the case Mahija and Ramiz Berisha, each of the three above-mentioned authorities had to decide three times, the fourth judgment of the Supreme Court in this case is to be expected in July 2007, so that the whole procedure lasted from 13 October 2005 and is still not concluded. The case of Ribić and Others v. the Ministry of Interior (U 762/2007) involves a health situation and medical treatment of two applicants in addition to the question weather significant integration of children in school system in Slovenia could have any impact on the subsidiary protection. In this case applicants filed an asylum application on 23 December 2004, the determining authority had issued five decisions, the Administrative Court issued four judgments and the Supreme Court already adjudicated once and an appeal against the judgment of the Administrative Court to the Supreme Court is expected.Manual word wrap
In the following two subsections the relevant question from the administrative practice and jurisprudence in relation to subsidiary (or humanitarian) protection are examined, firstly in the period before the transposition of the Qualification Directive with the commentary on its impact on actual interpretation of subsidiary protection and secondly in the period after February 2006, when the Article 2(e) and Article 15 of the Qualification Directive have been transposed into Asylum Act.
2.1.SUBSIDIARY PROTECTION IN THE PERIOD BEFORE THE TRANSPOSITION OF THE ARTICLES 2(e) AND 15 OF THE QUALIFICATION DIRECTIVE
From the very beginning the Asylum Act (Article1(3)) contained a provision that defined humanitarian asylum. Until 2001, Article 1(3) provided that Slovenia shall grant asylum on humanitarian grounds to aliens that request protection if their deportation to their country of origin might pose a threat to their safety or physical integrity in the sense of Article 3 of the Convention. In 2001 this provision was amended.  The amended provision provided that Slovenia shall grant humanitarian asylum if the deportation of an alien to his or her country of origin might pose a threat to his or her safety or physical integrity in the sense of the Convention. The purpose of this amendment cannot be found in the explanatory memorandum of this amendment. The government that proposed the amendment stated in its argumentation that it is a matter of the discretion of the administrative authority whether it will grant humanitarian asylum or not. From the practice of the determining authority in that period it could be concluded that the Ministry of the Interior in fact considered humanitarian asylum a matter of its discretion. However, this was not so clearly the case with the judges of the Administrative Court. Namely, from some exceptional judgments of the Administrative Court it could be concluded that the majority of the four judges in a specialised division did consider humanitarian asylum as a matter of the discretionary power of the administrative authority.  However, in a number of cases the Administrative Court granted the lawsuit, quashed the decision of the Ministry of the Interior and returned the case to the first instance authority, because the first instance authority had not checked whether the conditions were fulfilled for granting humanitarian asylum, since in the opinion of the Administrative Court in those cases the facts showed some indications for the aforementioned conditions. With regard to the wording of Article 3(1) of the Asylum Act, which is a more relevant method for interpretation in comparison to the statement in the explanatory memorandum of the amendment, a humanitarian asylum was not a matter to be decided through the discretionary power of the first instance authority or of the relevant court in a judicial procedure. The law states "shall grant" and not "may grant", and this is the reason why, there was no discretionary power in decision making or adjudicating on humanitarian asylum. Manual word wrap
These initial uncertainties with the legal nature of humanitarian status have no impact on actual interpretation of subsidiary protection, since under the Qualification Directive there is no doubt that a subsidiary protection, like refugee status as being two forms of international protection, are not matters of administrative discretion. 
The second matter, related to the first, which caused uncertainties in the examined period, is the procedural question of whether the applicant had an obligation to expressly claim humanitarian asylum within the asylum procedure or whether it was the obligation of the determining authority and also of the Administrative Court to determine ex officio whether the conditions for humanitarian asylum are fulfilled.  In case I-Up-1445/2002 of 15 January 2003 the Supreme Court stated that the determining authority was not obliged to establish facts relevant for humanitarian asylum because the applicant did not claim it. The case law on the humanitarian status from that period shows that the humanitarian status was relevant in cases of specially disadvantaged asylum applicants, such as mothers with small children, who have no place to go back to in their country of origin, or sick persons that would be forced to interrupt their medical treatment in the case of return to their home countries .  In these cases the fact that the applicant did not actually claim humanitarian asylum during the administrative procedure does not preclude the court from considering humanitarian asylum ex officio.  This position of the Administrative Court would be a correct one even within the period after the transposition of the Article 15 of the Qualification Directive. On this subject the UNHCR strongly supports ex officio consideration of subsidiary protection needs by the same body, once Geneva Convention’s grounds have been exhaustively examined.  Manual word wrap
The third matter that caused uncertainties in the practice of humanitarian asylum was the interpretation of the notion of "safety or physical integrity in the sense of the Convention". A logical method of interpretation leads to the conclusion that the change from the previous formulation "safety or physical integrity in the sense of article 3 of the Convention" to the later formulation "safety or physical integrity in the sense of the Convention" meant that the material grounds for humanitarian asylum became broader after the amendment. It was not only the Article 3 of the Convention that was relevant for humanitarian asylum, but other provisions from the Convention could be relevant as well. According to the case law of the European Court of Human Rights (hereinafter referred to as the ECHR), the concept of "private life" covers a person’s physical and moral integrity (Article 8 of the Convention).  The concept of private life is a broad one that is not susceptible to exhaustive definition.  For example, in the Costello-Roberts case the ECHR established that corporal punishment of a child does not attain a level of severity that is sufficient to bring it within the scope of the Article 3 of the Convention, but the ECHR concluded this does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording (in relation to disciplinary measures) protections that go beyond that given by Article 3 of the Convention.  This means that an asylum applicant that is persecuted in his or her home country could be granted a humanitarian asylum not only under Article 3 of the Convention, but also under Article 8 – if there would be "substantial grounds for believing that the person concerned, if expelled or extradited, would face a real risk of being subjected"  to treatment that violates his or her private life, and that attains a level of severity warranting protection under Article 8 of the Convention and not a level of severity under Article 3 of the Convention. Of course, in that case the purpose of the Convention has to be taken into consideration as well as the principle of proportionality under the Convention. In addition there are several other provisions in the Convention that could provoke the application of the Convention in an asylum procedure for the purpose of subsidiary protection. These are, for example: the right to life (Article 2 and Article 1 of the Protocol 6 to the Convention);  the right to family reunification or the right to respect for private and family life (Article 8);  the right to a fair trial or the protection against the risk of flagrant denial of justice (Article 6(1));  the right to a hearing within a reasonable time (Article 6(1));  the right to access to a court or the right to an effective legal remedy (Article 6(1) and Article 13);  the right to liberty and the security of person (Article 5);  and protection against discrimination (Article 14) in relation to a particular substantial right under the Convention;  Article 4 of Protocol No. 4 to the Convention, Articles 2, 3, 4 and 1 of Protocol No. 7 to the Convention. 
However, this broader interpretation of humanitarian status in relation to other provisions from the Convention and not just Article 3 and Article 1 of the Protocol 6 to the Convention was not adopted by administrative judiciary - despite the fact that amendment to the Asylum Act did not relate humanitarian status only to Article 3 of the Convention. Even the Constitutional Court adopted a position that “despite the fact that the Amendment to the Asylum Act made a broader legal ground for humanitarian status by changing it from the Article 3 of the Convention to the entire Convention, the basic constitutional ground for humanitarian status remains Article 18 of the Constitution.  The Constitutional Court says that the reason for this conclusion is “in the nature of torture, inhuman and degrading treatment and this is supported also by the case law of the European Court of Human Rights in relation to the protection of rights of asylum seekers.” Manual word wrap
From this interpretation it is not clear why “the nature” of torture, inhuman or degrading treatment could be used as an argument against the clear fact that the legislator had enlarged a legal ground for humanitarian asylum from the Article 3 to the entire Convention. In any way, what is very clear from these developments is that a restrictive interpretation of humanitarian status from the period before February 2006 can be considered as a reasonable prediction that courts will adopt a restrictive interpretation also under the transposed provisions of the subsidiary protection from the Qualification Directive. The recent case law which is described in the next section confirms this argument.
2.2. SUBSIDIARY PROTECTION AFTER THE TRANSPOSITION OF THE ARTICLES 2(e) AND 15 OF THE QUALIFICATION DIRECTIVE
By the Amendment to the Asylum Act, adopted by the Parliament (Official Journal no. 17/2006), the transposition of very few definitional and interpretative provisions relating to refugee protection and subsidiary protection have been fulfilled.  In fact, apart from the provision on the internal protection (Article 8 of the Qualification Directive) it was only the legal institute of subsidiary protection (Article 2(e) and Article 15) that was transposed by this Amendment to the Asylum Act The Amendment came into force on 21. February 2006.  Obviously, from the standpoint of definition of subsidiary protection the Qualification Directive introduced a much more restrictive definition of subsidiary protection from the definition of humanitarian asylum that was previously regulated in the Article 1(3) of the Asylum Act.Manual word wrap
It seems that Amendment to the Asylum Act does not try to incorporate the provisions of the Qualification Directive on subsidiary protection word-for-word. It is possible to conclude that either the national legislator intentionally wanted to establish higher level of protection as it is regulated in the Qualification Directive or the translation of the Qualification Directive into Slovene is not adequate. For example, while the Article 2(e) and Article 18 of the Qualification Directive use the term “third country nationals or stateless person”, the Asylum Act is broader, since it uses the word “alien” (or “foreigner”) with the explanation that “alien” means every-one who is not a citizen of Slovenia.  Furthermore, the Asylum Act did not transpose the last part of the Article 2(e) of the Qualification Directive, that is /.../ “and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”. This means that subsidiary protection under the Asylum Act is broader than it is under the Qualification Directive in the respect of exclusion clause from Article 17(1) and (2) of the Qualification Directive. Concerning the standards of proof the term “substantial ground” is adequately translated into Slovene; the term “real risk” could be differently translated, since the legislator uses the term “substantiated risk”. The part of transposition which could cause an important difference in relation to the Qualification Directive is the fact that instead of the term “believing” the national legislator uses the term “to be convinced”. Article 15(c) of the Qualification Directive has been wrongly translated (transposed) in two aspects. Instead of the term “person”, the legislator uses the term “personality” and instead of the term “indiscriminate”, the legislator uses the term “arbitrary”.Manual word wrap
However, there was no case until now before the administrative judiciary which would raise question on the correct transposition of the subsidiary protection to the national legislation. The only and the major question in relation to the subsidiary protection thus still relates to the interpretation (the scope) of the “inhuman or degrading treatment“. Two cases brought this issue before the courts in relation to the health situation of asylum seeker, who claimed that deportation to his country of origin would terminate his medical treatment in Slovenia and this would violate his right from the Article 3 of the Convention. The Administrative Court relied on the case-law of the European Court of Human Rights (hereinafter referred to as the ECHR) by the following argumentation: 
The standard of proof in relation to Article 3 of the Convention is that the court must determine whether there are substantial grounds for believing that the person concerned, if expelled or extradited, would face a real risk of being subject to torture, inhuman and degrading treatment.  Since the right from Article 3 of the Convention is an absolute right, the court must subject all the circumstances surrounding the case to a rigorous scrutiny . In so doing the court must assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on the applicant’s state of health.  It is not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that article.  Since the Article 3 of the Convention corresponds to the Article 18 of the Constitution Act, the Administrative Court said in the aforementioned judgment that it will apply the same standards as the ECHR. However, the Administrative Court noted that the circumstances of the relevant cases which were brought before the ECHR show that standards for potential violation of Article 3 of the Convention are set extremely high. The fundamental criteria for the assessment whether a particular health situation of a person reaches a severity of inhuman and degrading treatment were established in case of D. v. the United Kingdom. In this case the ECHR says that “aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian consideration at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.  The reason that these standards were set in the aforementioned case extremely high are the following three. The ECHR said:Manual word wrap
the applicant in case D. v. the United Kingdom is in the advanced (critical) stages of a terminal (fatal) and incurable illness, Manual word wrap
while he may have a cousin in St. Kitts, no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man and there is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island, Manual word wrap
he has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. 
Although the ECHR set these standards for the alien who served his prison sentence, the ECHR in its later case law did not adopt a more generous approach. The other cases of the ECHR that the Administrative Court considered in the above-mentioned judgments where the following:Manual word wrap
In case of Salkić v. Sweden the applicants were Muslim family who originate from Republika Srpska. In a medical certificate, the psychologist stated both children (of 14 and 8 years) were in need of serious and long term treatment, they both show signs of depression, one has expressed clear suicidal thoughts, both had a typical “Bosnian syndrome” and if they were to be expelled to Bosnia and Herzegovina both would be at grave risk of permanent psychiatric damage with a possibility of fatal consequences. Nevertheless, the ECHR took the position that “the applicants have been through traumatic experiences in the past and have suffered from the uncertain situation in their lives which they have endured. Each member of the family is suffering from rather severe mental health problems. However, several of the doctors and psychiatrists with whom the applicants were in contact while in Sweden seemed to agree that the vulnerable health status of the family was primarily due to their unstable living situation and anxiety about their future. Moreover, the children’s problems appeared to emanate from the fact that their parents were incapable of providing them with security, support and care.” The relevant fact for the ECHR was also that the family has managed to establish contact with the health care system in Bosnia and Herzegovina (judgment of the ECHR in case of Salkić v. Sweden). In its judgments, the Administrative Court also pointed out an emphasis made by the ECHR in case of Salkić that “having regard to the high threshold set by the Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that the applicants’ expulsion to Bosnia and Herzegovina was contrary to the standards of Article 3 of the Convention. The ECHR took the same position also in case of Hukić v. Sweden. From this, the Administrative Court concluded that in cases where the direct responsibility for the infliction of harm rests on Contracting State, the standards for exceptional circumstances could not be so high. In case of Hukić v. Sweden circumstances relate to a family where a minor suffered from Down’s syndrome and epilepsy for which he had received no treatment or care in Bosnia and Herzegovina. As a four years’ old the boy could not yet walk, stand or eat by himself. His legs were shaking, he had a low immune defence and was lacking thyroxin – a hormone that regulates the metabolic activity of the body by controlling the rate of oxidation in cells and, when too low, retards growth and mental development in children. Applicants alleged that a child had been treated in a degrading manner by physicians and people in their surroundings. In Sweden a boy was receiving treatment (Lamictal) and rehabilitation measures which were essential for his development and to which he was responding positively. Medical certificates showed that he was in need of regular examination and treatment (rehabilitation training, physiotherapy, occupational therapy, special education and speech therapy). It was very important that he followed continuous treatment on several levels in order to have some quality of life. This sort of treatment was not available in Bosnia and Herzegovina. Physicians stated that he was reacting very well to the treatment and for this positive development to continue it was an absolute prerequisite that he remain in Sweden or another Western country where he could receive the same treatment. As to the facts of the case the ECHR took into account a letter of two physicians from University Clinic in Tuzla, submitted by the applicants that at the Clinics for Children’s Diseases it was possible to diagnose epilepsy, to prescribe Lamictal treatment and to have a child followed by neuro-paediatricians, endocrinologists, cardiologists, clinical genetics and other specialists. However, they could not promise that it would be possible to include a child in programmes of neuro-developing and stimulating exercises, speech pathology, psychological treatment or to include a child in a special school or pedagogical programme. There were not enough institutions to receive and help all children with special needs and s parents were forced to care for their children and to implement necessary treatment in accordance with their financial capabilities. Furthermore, the ECHR noted that all ten cantons in Bosnia and Herzegovina provided social and child protection within 79 local centres and there were special programmes for the social and health protection of children and families, the mentally handicapped, the elderly and civilian war victims. The ECHR also pointed out that in August 2001 the Act on the Protection of Mentally Handicapped Persons was adopted. The final argumentation of the ECHR was the following: “The ECHR does not question that the fourth applicants’ handicap is of a serious nature and that he is in need of support and treatment to enable him to develop and improve his quality of life. In this respect the ECHR observes that there is care and treatment available in the applicants’ home country, although not of the same standard as in Sweden and not as readily available. The Clinic for Children’s Diseases in applicants’ home town, can provide treatment and rehabilitation for children with Down’s syndrome. Moreover, there exist special programmes for the mentally handicapped and children. The ECHR is aware that the care and treatment, if specialised, most probably would come at considerable cost for the individual. However, the fact that the forth applicant’s circumstances in Bosnia and Herzegovina would be less favourable that those enjoyed by him in Sweden, cannot be regarded as decisive from the point of view of Article 3 of the Convention. The ECHR considered that Down’s syndrome cannot be compared to the final stages of a fatal illness.”Manual word wrap
Similarly as in the case of Tomić v. the United Kingdom (judgment of 14 October 2003 and later in case of Rrustemaj and Others v. Sweden) the ECHR relied also on the fact that the case concerns deportation to another High Contracting party to the Convention, which has undertaken to secure the fundamental rights guaranteed under its provisions. Manual word wrap
In order to acknowledge the standards of the ECHR in relation to inhuman and degrading treatment from the Convention and in relation to the subsidiary protection from the Asylum Act (and Qualification Directive), the Administrative Court in case of Mahija and Ramiz Berisha v. the Ministry of Interiror and in caase of Halilović v. the Ministry of Interior cited also circumstances from the case of Rrustemaj and Others v. Sweden (judgment of 15 November 2005). In this case applicants were ethnic Albanians from Kosovo, where mother has been diagnosed as suffering from Post-Traumatic Stress Disorder and depression and she had entertained thoughts of committing suicide and she had been admitted to a psychiatric clinic on two occasions The three children only knew life in Sweden, children have never been to Kosovo, the applicants said that they would have nowhere to live in Kosovo and children had integrated into Swedish society. The ECHR declared the application inadmissible by applying the same standards as in the aforementioned cases. Regarding the children’s situation the ECHR stated that it would be a great change for them to move to Kosovo, but they would no longer have to live in the current, very insecure situation  which has, naturally, had a negative impact on them, resulting in nightmares and aggressive behaviour; moreover, they would continue to have support and care of their parents.Manual word wrap
In both aforementioned cases the Administrative Court decided the lawsuit of applicants to be unfounded based on the standards of the ECHR, since the health situation of the applicant could in no way be compared to the aforementioned cases of the ECHR. However, the Administrative Court added two important arguments: Manual word wrap
First, is that in cases which raise questions on subsidiary protection the determining authority has to respect the fact that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting state in the first place, the task of securing the rights and liberties it enshrines”. This means that national authorities and courts may adopt higher standards as they are set by the ECHR, however, according to the opinion of the Administrative Court this was not necessary to do under the circumstances of the given cases. And secondly, the Administrative Court pointed out that the standards of the ECHR do not take into account other provisions from other international agreements, because the ECHR is not obliged to respect them. In relation to subsidiary protection the most relevant could be the principle from the UN Convention on the Rights of the Child, according to which in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration (Article 3(1) f the Convention on the Rights of the Child. The Qualification Directive makes reference to the UN Convention of the Rights of the Child in recital 12.  Manual word wrap
Furthermore, it is reasonably to predict that in some cases children (as asylum seekers) could be integrated in Slovenian school system due to long lasting asylum procedures. If they would be (together with their parents) in such a way strongly integrated in a society and if they established a “home” in Slovenia, their deportation to the country of their citizenship could violate their right to private life (Article 8(1) of the Convention). In that case a principle of proportionality should be applied (Article 8(2) of the Convention) and a non-discrimination principle.  A non-discrimination principle could be relevant especially in relation to the right to education, if children would be for longer period of time integrated in Slovenian school system. For example, in the more recent case-law of the ECHR, based on the concept of the Convention as being a “living instrument,” could cause some ambiguities, whether right to education in terms of an effective and non-discriminatory access to educational institutions is applicable also to illegally staying third-country nationals. Namely, the ECHR states that the right to education from Article 2 of the Protocol no. 1 “guarantees everyone within the jurisdiction of the Contracting States a right to access to educational institutions existing at the given time”.  Manual word wrap
However, even if the Administrative Court would find out that the given circumstances of such case do not reach the threshold of inhuman or degrading treatment from the Article 15(b) in conjunction with UN Convention of a Rights of the Child, the decision of the determining authority could still be partly quashed, because the determining authority adopts two decisions in asylum cases. First decision is that the asylum applications are unfounded, and secondly the determining authority decides that asylum applicants have to leave Slovenia immediately after the decision becomes final. An obligation to leave Slovenia immediately after a decision becomes final could non-proportionally infringe the right to private life of asylum seekers, since the rejected asylum seekers would not have an appropriate time limit to prepare for their return to the country of their citizenship, especially if they have no place to go in their country, while they have establish private life in the private home of their relatives in Slovenia. The Case of Ribić and Others v. the Ministry of Interior raises these issues and is now pending before the Administrative Court.Manual word wrap
Manual word wrap
3. DETENTION OF ASYLUM SEEKERS
Judicial control of detention of asylum seekers (and illegally staying third country nationals) is one of the milestones for the preservation of the rule of law, especially under the circumstances of intensive security concerns in the European societies. To simplify this topic, there is a fundamental requirement that detention of persons is not arbitrarily regulated or arbitrarily decided in individual case. It is important to note that the EU law does not regulate detention thoroughly. The Qualification directive has no provision on this point, the Procedures Directive has only a very general provision of Article 18,  while the Reception Directive regulates only restriction on freedom of movement.  Only the forthcoming directive on common standards and procedures in member States for returning illegally staying third country nationals intends to regulate the issue of detention a little more thoroughly.  This means that the basic standards for detention of asylum seekers are set in the case-law of the ECHR, in the Constitutional law and national legislation of the Member States.
In judicial review of legality of decision of the determining authority to detain asylum seekers according to the Article 27 of the Asylum Act,  the Administrative Court took the starting point from the case of Amuur v. France.  The first legal question for the Administrative Court was whether the detention of asylum seekers in the Asylum Home or in the Centre for Foreigners means restriction (or deprivation) of personal liberty (Article 5 of the Convention, which corresponds to the Article 19 of the Constitution Act) or whether it means restriction (or deprivation) of freedom of movement (Article 2 of Protocol 4 to the Convention, which corresponds to the Article 32 of the Constitution Act). Despite the fact that Article 27 of the Asylum Act uses the term (a temporary restriction of) "freedom of movement", the Administrative Court said that this provision should be interpreted in light of the judgment of the ECHR in the case of Amuur, where the ECHRs states that in order to determine whether someone has been deprived of his liberty the starting point must be his/her concrete situation, and account must be taken of a whole range of criteria such as type, duration, effects and manner of implementation of the measure in question and that the difference between deprivation of and restriction of liberty is merely one of degree or intensity, and not of nature or substance. Because of the need of assessment of those criteria, a hearing of an applicant before a court, as provided in the Asylum Act, is so important. If the Administrative Court would establish in the specific case that the restriction of personal liberty is at stake, then the prescribed procedural guarantees for review of legality of such decision from Asylum Act would need to be interpreted in respect of the procedural guarantees from the Article 5(2), (3) and (4) of the Convention. However, if the Administrative Court would establish that under the given factual circumstances restriction of freedom of movement is at stake, then the procedural guarantees from the Asylum Act would need to be interpreted in the light of procedural guarantees from the Article 2 of the Protocol no. 4 to the Convention. But in both cases the right to effective legal remedy from Article 13 should be respected as well. The Administrative Court compared the actual circumstances of the given case  with the circumstances from the case of Amuur v. France and concluded that the contested decision means a restriction of freedom of movement and not a restriction on the right to liberty and security of person.  However, this was not a judgment that would have an importance of a precedence, since the Administrative Court adopted the standard of the ECHR that the question whether it is a restriction of personal liberty or a restriction of freedom of movement at stake depends on actual circumstances of each individual case.
In relation to detention under the Asylum Act the Administrative Court also applies standard of the ECHR, which is taken from the well-established practice of the principle of proportionality. The first instance authority developed a practice of restriction of freedom of movement of asylum seekers in case when asylum seeker does not provide an official document with a picture as a proof of his/her identity. In the opinion of the Administrative Court this is not an expressly stated reason (legal ground) for restriction of freedom of movement in the Asylum Act. Furthermore, it is quite a normal circumstance that an asylum applicant does not possess official document if he/she is a genuine refugee. Therefore, the Administrative Court holds an opinion that the first instance authority has no right to restrict freedom of movement if a decision to restrict freedom of movement of asylum seeker is based solely on the fact that an asylum applicant has no official document with a picture as a proof of his/her identity, because according to the ECHR interference with human right needs to be prescribed by law in a manner that it does not allow arbitrariness.  However, the case-law of the Supreme Court supports the practice and interpretation of the first instance authority. Manual word wrap
Furthermore, the Administrative Court stands on the position that the determining authority should apply a principle of proportionality (a necessity test) in those cases, because the text of the Article 27 of the Asylum Act uses the expression “if it is required”; furthermore the Article 27 regulates two measures which restrict freedom of movement in two different ways, so that freedom of movement may be more or less restricted and thirdly interference with those human rights (either of the Article 2 of the Protocol no. 4 to the Convention or the Article 5) must be in accordance with the principle of proportionality (Article 15(3) of the Constitution).  In contrast to this, the Supreme Court stands for the interpretation that a necessity test need not to be part of decision making and adjudication in those matters, since interference is prescribed by law. 
The interesting feature of the divergence between the case law of the ECHR, case law of the Administrative Court and case law of the Supreme Court is that there was never a question between parties in administrative disputes nor in the professional debate in Slovenia, which concrete provision of Article 5 could be used as the legal ground in case of the restriction of liberty and security of person.  For the circumstances of restriction of personal liberty of asylum seekers in Slovenia, the second limb of Article 5(1)(b)  could be more suitable (as the Article 5(1)(f)) , because the asylum seekers have a prescribed obligation in the Asylum act to present all relevant facts of the case truthfully (Articles 24 and Article 29 of the Asylum Act ) and they must not abuse the asylum procedure (Article 27 and Article 36 of the Asylum Act),  while on the other hand it is factually impossible to prevent a person to effect unauthorised entry into the country, since in reality those asylum seekers already entered (as illegal immigrants) and stayed for several days in the country, before they apply for asylum. However, if the second limb of Article 5(1(b) would be considered as a legal ground for detention of asylum seekers, then the principle of proportionality would need to be applied,  which is not the case with the Article 5(1(f) of the ECHR. In case of Saadi v. the United Kingdom the ECHR reiterated the approach from cases of Chahal v. the United Kingdom and Čonka v. Belgium. Namely in the case of Chahal the ECHR expressly determined the question whether the second limb of Article 5(1)(f) contained a “necessity test” (principle of proportionality). The ECHR said that “Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary” and that in this respect Article 5(1)(f) provides a different level of protection from Article 5(1)(c). However, “any such deprivation of liberty is justified under Article 5(1)(f) only for as long as deportation proceedings were in progress. If the proceedings were not prosecuted with due diligence, the detention would cease to be permissible under the provision”.  In case of Saadi v. the United Kingdom deportation proceedings were not in progress, that is why the ECHR used the second limb of the Article 5(1)(f) of the ECHR and according to the ECHR a decision based on the second limb of Article 5(1)(f) does not need to apply a necessity test; there is, therefore, “no requirement in Article 5(1)(f) that the detention of a person to prevent his effecting an unauthorised entry in to the country be reasonably considered necessary.”  Instead of necessity test, the ECHR applied certain kind of arbitrariness test. Under this standard “the State has a broader discretion to decide whether to detain potential immigrants than is the case for other interferences with the right of liberty. All that is required is that the detention should be a genuine part of the process to determine whether the individual should be granted immigration clearance and/or asylum, and that it should not otherwise be arbitrary, for example on account of its length.”  Manual word wrap
However, the ECHR went even further in its argumentation so that this judgment substantially affects legal question of rather national character. Namely, the ECHR stated that detention of a person is a major interference with personal liberty and must always be subject to close scrutiny. Where individuals are lawfully at large in a country, the authorities may only detain if – as the Court expressed the position in Vasilieva (referred to above) - a reasonable balance is struck between the requirements of society and the individual’s freedom. The position regarding potential immigrants, whether they are applying fro asylum or not, is different to the extent that, until their application for immigration clearance and/or asylum has been dealt with, they are not authorised to be on the territory.” Manual word wrap
This position of the ECHR means that the Administrative Court could no longer stand on the position that detention of asylum seekers in Slovenia comes under the regulation of Article 2 of Protocol no. 4 to the Convention, but it is a subject of the first or the second limb of Article 5(1)(f), because it cannot be considered any more that asylum seekers are “authorised to be on the territory”, or they are not “lawfully within the territory of a State” in terms of Article 2 of the Protocol no. 4 to the Convention. However, the judgment in case of Saadi should have no affect on national jurisprudence on the use of proportionality principle, since this principle is enshrined in the Article 15(3) of the Constitution Act and in the Article 27 of the Asylum Act. But as I describe, on this point the Administrative Court and the Supreme Court have different stands.
The Constitutional Court of the Republic of Slovenia adopted one important ruling concerning detention of asylum seekers. In case of Up-859/2006 and Up-956/2006 from 7. July 2006 the Constitutional Court stated that accommodation in the Centre for Foreigners is not adjusted to circumstances of longer period of staying in the centre, especially it is not acceptable for longer accommodation of children due to necessary respect of the principle of the best interest of the child. The Constitutional Court made reference to the Constitution Act and to the Article 3(1) and Article 22 of the UN Convention on the Rights of a Child and it said that the legitimate aim of this kind of accommodation can be attained with less restrictive measure. The Constitutional Court decided that minors have to be transferred from the Centre for Foreigners to the Asylum Home. Due to the respect of the right to family unity (Article 8 of the ECHR), since in the given cases minors were accompanied by their parents, the Constitutional Court imposed on the Ministry of Interior an obligation to transfer parents of those minors to Asylum Home, as well. It is interesting to compare this position of the Constitutional Court of the Republic of Slovenia with the position of the EU legislator in the Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member states for returning illegally staying third-country nationals.  In this proposal the EU legislator holds an opinion that putting minors in temporary custody is not in contradiction with the principle of the best interest of the child (Article 3(1) and the Article 37(b) of the UN Convention on the Rights of a Child)  – even in case of unaccompanied minors. In my opinion, the position of the EU legislator regarding the temporary custody of minors could have reasonable ground in respect of international obligations only in case that temporary custody of (un)accompanied minors would take place in specialised temporary custody facilities, which are in fact “child welfare” facilities or “children homes”. 
4. ACCELERATED PROCEDURE
The legal developments in jurisprudence on the accelerated procedure are highly relevant in Slovenia, since almost all disputes that are brought before the Administrative Court are decided by the determining authority in the accelerated procedure. These cases the Administrative Court has to adjudicate in 7 days. However, despite this requirement of promptness the rule of law in its fundamental component parts has to be preserved.
4.1. REQUIREMENT FOR ADVERSARIAL PROCEDURE
The relevant development in regard to the requirement for adversarial procedure started at the beginning of 2005. At that time, the determining authority began deciding on asylum cases without a hearing of asylum seekers, and therefore merely on the basis of the submitted application for asylum. Upon submitting an application for asylum, pursuant to Article 63 b. of the Asylum Act the asylum seeker must provide precisely determined information on a standardised form, and in addition to this he/she gives a brief statement, which actually means the standardised and short interview with the asylum seeker. Where such information provided indicates that the asylum seeker is clearly not threatened by any persecution in the country of origin, the Asylum Act permits the competent authority to deny the application in an accelerated procedure. The Administrative Court identified a problem, since the determining authority had started using the accelerated procedure in cases that were not simple, and following receipt of the asylum seeker’s statement pursuant to Article 63 b. the competent authority obtained numerous reports from various institutions regarding the situation in the country, basing its negative decision on these reports. For this reason in its ruling on case U 322/2005 of 9 March 2005 the Administrative Court took the view that the defendant could not decide in accelerated procedures, but in regular procedure, which is based on a hearing of an applicant, if in the procedure for determining the actual state of affairs it made detailed findings of facts by previously obtaining and evaluating the actual state of affairs on the basis of numerous reports from various sources on the security situation and the potential threat of persecution of the plaintiff in the country of origin. Yet this view was not implemented in administrative judicial practice, in part because the Supreme Court did not uphold it. A change came into effect with the determination of the Constitutional Court in case Up -968/05 of 24 November 2005. In this case the Constitutional Court determined that in a given case the determining authority had not decided merely on the basis of claims in the application for asylum (pursuant to Article 63 b. of the Asylum Act), but had through numerous reports verified the political situation in the given territory of the country of origin in order to assess the objective situation in the country of origin. Since the defendant also based the decision on country of origin information, the plaintiff should have had the chance prior to issuance of the decision to make a statement on these facts. Therefore, while the Administrative Court reacted to the described practice of the determining authority by the interpretation of accelerated procedure from the Asylum Act, the Constitutional Court settled this problematic issue by the requirement for the adversarial procedure from the Article 22 of the Constitution.  This ruling of the Constitutional Court brought a systematic change in the existing administrative practice and administrative case law on accelerated procedure. Here, it needs to be mentioned that the aforementioned procedural standard from the Article 22 of the Constitution is higher than the minimum standard given by the Procedures Directive. Under the Procedural Directive it is not necessary that the applicant is informed about the main argument of the determining authority and about the relevant country of origin information before he/she receives a decision. 
4.2. PROTECTION OF A RIGHT TO SEEK ASYLUM
A right to seek an asylum which is a human right of the international law (not just of the European law) could be in some circumstances in jeopardy in accelerated procedure under the Slovenian case-law and legislation. Manual word wrap
The Article 24(6) of the Asylum Act states that the decision of the competent authority does not depend on the submission of any particular formal evidence. However, according to Article 35(2), the authority decides a case and rejects an application as manifestly ill-founded if an application is based on lies and misleading information or an applicant abuses a procedure (first indent), if an applicant came exclusively for economic reasons or if it is obvious from its application (without hearing) that he/she is not persecuted in his/her country of origin (second indent), or if his/her application has been already rejected and the reasons for rejection of his/her application did not change (third indent). Article 36 defines what means to mislead or abuse of the asylum procedure.  In such cases the determining authority has a legal ground in the Asylum Act for rejecting the application as manifestly ill founded in an accelerated procedure. In my opinion the courts should interpret these provisions in such a way that the formal rules of evidence are not applied in practice. This is because it could happen that an applicant may not know that his or her documents are forged or, for example, the interpretation of the abuse of asylum procedure could be to much restrictive. In such a case it would be unfair to reject his or her claim as manifestly ill-founded and it would violate his/her right to seek an asylum. However, the experiences show that courts did not accept a ban on the formal rule of evidence in the whole of its dimensions.  Namely, in administrative practice and case-law the elements of abuses of procedure from Article 36 are not assessed in the light of the principle of the right to effective access to asylum procedure according to the Convention of 28 July 1951 relating to the status of refugees as amended by the New York Protocol of 31 January 1967 (hereinafter referred to as the Geneva Convention), based on the use of the Articles 26, 27 and 31of the Vienna Convention on the Law of Treaties.  This means that when an applicant, for example, represents his false identity, or he/she expresses his/her will to ask for asylum after being two days illegally in Slovenia (and placed in the Centre for Aliens for a deportation procedure), this, according to the prevailing case-law in Slovenia, is not considered as an element of credibility assessment, but as independent and autonomous grounds for a manifestly ill-founded application.  This kind of practice of the use of provisions of the accelerated procedure has also a decisive impact in cases when applicants do not tell the truth about already having lodged a previous application in another country of the EU. In those cases, the EURO DAC system, which was established for the purpose of implementation of Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member States responsible for examining an asylum application lodged in one of the Member States by a third-country national (hereinafter referred as the Dublin Regulation),  is used by the authority to establish sufficient grounds for an immediate decision that an application is manifestly ill-founded. Under the well-established case law, no further examination of the criteria for determination of status of refugee is necessary.  The problem is that even the Constitutional Court supported this interpretation.  However, it is quite obvious, respecting the text of at least the second indent of Article 35, paragraph 2 of the Asylum Act, that the authority or the court must examine material criteria of persecution. One applicant filed a constitutional complaint against the prevailing interpretation of the Asylum Act in this matter. He argued that it is not right that establishment of an untrue statement about filing an application in another country of the EU means an automatic rejection of the asylum application. He argued that even in the accelerated procedure the authority should assess the criteria for granting asylum. Instead of arguing that this in not in accordance with the international standard on the right of access to asylum procedure for the purpose of the Geneva Convention, he argued a violation of Article 22 of the Constitution.  Since the Constitutional Court confirmed the interpretation of the Supreme Court, it is reasonably to predict that even in the future untrue statements of applicants regarding a question of filing an application in another EU country will not be relevant for the credibility assessment, but rather to decide the case as manifestly ill-founded. This interpretation of accelerated procedure is not in accordance with the generally very low (minimal) standards of the Procedures Directive (Article 28(2), recitals 22, 23 and 24 of the Preamble of the Procedures Directive).  Manual word wrap
I can not say that this interpretation of accelerated procedure has any substantial influence on the concrete protection of asylum seekers, because I have not noticed that this interpretation would be a decisive element in any case, where there would be serious reasons to believe that an asylum seeker is a genuine refugee. However, the integrity of international refugee law should be a protected value also in manifestly ill-founded cases. The integrity of refugee law would be protected if the courts in their argumentation would apply a provision on the accelerated procedure (Article 35(2) of the Asylum Act) in conjunction with the substantial provision on refugee determination criteria (Article 1(2) of the Asylum Act) by saying that the fact that asylum applicant did not tell truth about lodging an asylum application in another Member States previously (Article 35(2) and Article 36), this is considered to be a decisive reason for his/her negative credibility assessment, which means that he/she does not need international protection in the sense of Article 1(2) of the Asylum Act. The Administrative Court delivered such argumentation in several occasions,  and in few occasions the Supreme Court did the same.  However, this is not a prevailing interpretation in administrative case-law.Manual word wrap
Manual word wrap
4.3. ASSESSMENT OF CREDIBILITY
In the majority of cases, which are decided in the accelerated procedure, the reason for negative decisions is finding of the determining authority that asylum applicant is not credible and he/she abuses the asylum procedure in order to postpone his/her deportation. Manual word wrap
Presently, there are no generally established rules, standards or criteria for the assessment of credibility in the practice of and case law on asylum in Slovenia. The exception is the position of the Supreme Court that "if an applicant does not submit any evidence for his statement, his statement must be clear, exact and consistent”. This standard corresponds to the part of standards from the Article 4(5) of the Qualification Directive. This provision of the Qualification Directive is frequently used by the determining authority and it was used even before the 10th October 2006. In administrative practice and in the case-law of the Administrative Court the Handbook on Procedures and Criteria for Determining Refugee Status  is also often used in relation to credibility assessment as well.Manual word wrap
In addition, the Supreme Court already back in 2001 introduced a standard that has an important impact on credibility assessment and rules of evidence. The Supreme Court established a standard that if there are important inconsistencies or contradictory statements in the story of the asylum applicant the administrative authority must ask the applicant to explain the reason for this inconsistency and must try to clear these up with the applicant.  Manual word wrap
For the comparison with the case-law on credibility assessment in other European countries it is perhaps worth to note that under the well-established administrative practice and jurisprudence in Slovenia, if an applicant enters Slovenia illegally and ask for asylum after being two days illegally in Slovenia, especially if he/she is caught by the police, he/she is considered not to be credible.  In the assessment of credibility his/her statement, notified by a police (but not signed by a foreigner), can be used as an evidence against his/her credibility,  although at that point he/she was not yet an asylum applicant and an asylum procedure has not yet started. I do not see problem in this restrictive approach as long as an asylum applicant is coming from the generally considered safe countries, which is in fact the case with our jurisprudence, where the great majority of applicants are coming from the former republics of Yugoslavia.
 In 2005 there were 389 lawsuits in asylum matters filed at the Administrative Court. In 2006 372 lawsuits were filed in asylum matters (Annual Report of the Administrative Court for the Year 2005 (23. 2. 2006) and for the Year 2006 (22. 2. 2007). The great majority of applicants are coming from the former republics of Yugoslavia.
 Article 39 (1) of the Asylum Act says that administrative court shall decide on the basis of findings assessed in course of the procedure at the first instance. The third paragraph of the same provision says if the administrative court determines that the authority of the first instance established incomplete or erroneous facts, or if the circumstances which gave rise to the decision of the first instance have changed, the court shall supplement the procedure, correct the above mentioned deficiencies by quashing and replacing the first instance decision with its own.
 However, this does not mean that the whole procedure is speedy, since in many occasions asylum procedures last considerable long. See introductory examples related to the subsidiary protection in section 2. of this paper.
 Humanitarian asylum is highly relevant in Slovenia, because more then 80% of all asylums that were granted to refugees in Slovenia up to 2003 were the so-called humanitarian asylums. This percentage has decreased in 2004 (Zalar, Boštjan, 2006, The Experiences and Challenges for Adjudication on Refugee law in Slovenia, International Journal of Refugee Law, 18, 1, 118-181).
 The Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (hereinafter referred to as the Qualification Directive, O J L 304/12, 30. 9. 2004, Article 2(e) and Article 15.
 Official Journal of the Republic of Slovenia, no. 67/2001.
 Judgment in case of U 2580/2005 of 20 January 2006.
 Zalar, Boštjan, 2006, The Experiences /.../ - see reference in the footnote no. 4.
 Recitals 6., 9., 25., Article 2(e) and (f) and Article 18 of the Qualification Directive. Article 18 of the Qualification Directive says „Member States shall grant subsidiary protection /.../.“ In this respect the Asylum Act has correctly transposed the provisions from the Qualification Directive.
 This is also a relevant question for the Commission of the European Communities (Communication from the Commission to the Council and the European Parliament, A More Efficient Common European Asylum System: The Single Procedure as the Next Step, Brussels, 15. 7. 2004 COM 2004 503 final, SEC 2004 937, para. 24).
 Judgment of the Supreme Court, I-Up-578/2002, 22 May 2002, judgment of the Administrative Court, U-1765/2003, 12 Nov. 2003.
 Zalar, Boštjan, 2006, The Experiences /.../ - see footnote no.4.
 UNHCR Observations on the European Commission Communication on "A More Efficient Common European Asylum System: The Single Procedure as the Next Step", COM 2004 503 final; Annex SEC 2004 937, 15 July 2004, para. 5.
 See in particular, the X and Y v. the Netherlands, judgment of 26 March 1985, Series A, no. 91, pp.11-13, paras. 22-27.
 Niemetz v. Germany, judgment of 16 December 1992, Series A, no. 251-B, p.11, para. 29.
 In case Tyrer v. the United Kingdom (judgment of 25 April 1978, Series A, no. 26) the Court held that corporal punishment may constitute an assault on a person’s dignity and physical integrity as protected under Article 3 of the Convention. However, in order for punishment to be degrading and in breach of Article 3, the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that unusual element of humiliation inherent in any punishment (Case of Costello-Roberts v. the United Kingdom, judgment of 23. February 1993, para. 30).
 This is the expression of the European Court of Human Rights in cases concerning Article 3 of the ECHR50: Soering v. the United Kingdom, judgment of 7 July 1989, Series A, no. 161, pp. 35-36, paras. 90-91; the Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A, no. 201, p. 28, para. 69; the Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A, no. 215, p. 36, paras. 107-108; the Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1859, paras. 95-97.
 Case of Osman v. the United Kingdom, judgment of 28 October 1998.
 See: Recommendation No. R (99) 23 to member states on Family Reunion for Refugees and Other Persons in Need of International Protection, adopted by the Committee of Ministers on 15 December 1999 at the meeting of the Ministers’ Deputies and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3. 10. 2003; see also judgments of the European Court of Human Rights: Dalia v. France, judgment of 19 February 1998; Boujlifa v. France, judgment of 21 October 1997, Mehemi v. France judgment of 26 September 1997, Boujaïdi v. France judgment of 26 September 1997; Bouchelkia v. France, judgment of 29 January 1997; Gûl v. Switzerland, judgment of 19 February 1996; Ahmut v. the Netherlands, judgment of 28 November 1996; Nasri v. France, judgment of 13 July 1995; Beldjoudi v. France, judgment of 26 march 1992; Berrehab v. the Netherlands, judgment of 21 June 1988.
 Soering v. the United Kingdom, judgment of 7 July 1989; Mamatkulov and Askarov v. Turkey, judgment of 4 February 2005.
 Selmouni v. France, judgment of 28 July 1999.
 Osman v. the United Kingdom, judgment of 28 October 1998.
 Chahal v. the United Kingdom, judgment of 15 November 1996; Amuur v. France, judgment of 25 June 1996.
 Beldjoudi v. France, judgment of 26 march 1992; Moustaquim v. Belgium, judgment of 18 February 1991.
 Zalar, Boštjan, 2006, The Experiences /.../ - see footnote no. 4.
 The Article 18 of the Constitution corresponds to the Article 3 of the Convention.
 Here the Constitutional Court makes reference to the UNHCR Manual on Refugee Protection and the European Convention on Human Rights, Regional Bureau for Europe, Department of International Protection (Ruling of the Constitutional Court in case of Up-422/03 of 10 July 2003, para. 6.
 The content of international protection (Chapter VII of the Qualification Directive) has been transposed by the Government Regulation, published in Official Journal no. 33/2004 (with the effect started on 19 April 2004), and by its amendments (no. 129/2004 and 112/2006).
 The rest of legal provisions from the Qualification Directive is expected to be transposed in the following months by new Asylum Act, which is now in the phase of preparation at the Ministry of Interior.
 Article 1(3) and Article 2(1)(5) of the Asylum Act.
 Judgments of the Administrative Court in case of Mahija and Ramiz Berisha v. the Ministry of Interior (U 425/2007, 28 March 2007 ) and in case of Halilović v. the Ministry of Interior (U 480/2007, 25 April 2007).
 N. v. Finland, judgment of 26 July, para. 158.
 D. v. the United Kingdom, judgment of 2 May 1997, para. 49; Bensaid v. the United Kingdom, judgment of 6 February 2001; Hukić v. Sweden, judgment of 27 september 2005; Rrustemaj and Others v. Sweden, judgment of 15 November 2005.
 Judgments of the ECHR in cases of Bensaid v. the United Kingdom (para. 35), Salkić and Others v. Sweden, D. v. the United Kingdom (para. 50), Hukić v. Sweden.
 Judgments of the ECHR in cases of Bensaid v. the United Kingdom (para. 34), Salkić and Others v. Sweden, D. v. the United Kingdom (para. 49).
 Judgments of the ECHR in cases of D. v the United Kingdom (para. 54) and Rrustemaj and Others v. Sweden.
 D. v. the United Kingdom, paras. 51 and 53.
 Ibid. para. 52.
 Ibid. para. 53.
 Apart form this concrete cases, where health conditions of applicants were relevant in terms of Article 3 of the Convention, the general position of the ECHR that „Article 3 may extend to situation where the danger emanates from the consequences to health from the effects of serious illness was taken in case of T. I. v. the United Kingdom (App. no. 43844/98, Decision of 7 march 2000).
 Applicants have remained illegally in Sweden for several years even though their applications for residence permits have been repeatedly rejected by the Swedish immigration authorities and they have been ordered to leave the country.
 Handyside Case, judgment of 7 December 1976.
 Recital 12 says that the best interest of the child should be a primary consideration of member States when implementing this Directive.
 Recital 10 of the Qualification Directive says that this Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
 Case of Leyla Şahin v. Turkey, judgment of 5. 10. 2005, para. 152.
 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for Granting and withdrawing refugee status, o J L, 326713, 13. 12. 2005. This Article says that member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum. Where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review.
 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (O J L 31/18, 6. 2. 2003). Article 7 of the Reception Directive regulates the possibility to assign certain area to asylum seeker, where he/she can move freely, the possibility to decide on the residence of the asylum seeker or the possibility to confine an applicant to a particular place.
 Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member states for returning illegally staying third-country nationals COM (2005) 391, 1. 9. 2005
 Article 27 of the Asylum Act says that „asylum seeker may be temporarily restricted in his/her freedom of movement, if this is required:
- in order to ascertain his/her identity;
- in order to prevent a spread of illness;
- due to a suspicion that he/she abuses asylum procedure in the sense of Article 36 of the Asylum Act,
- since he/she endangers life of others or property.
Article 36 states that abuse of asylum procedure means: substantiation based on a false identity or forged document; the false presentation of reasons in an application; the deliberate destruction of a passport or any other document that might be relevant for the procedure; if an applicant conceals having lodged a previous asylum application in another country, in particular if he or she uses a false identity; if an applicant files an application in order to postpone forced removal.
 Judgment of the ECHR from 20 may 1996.
 Judgment of the Administrative Court in case of U 2554/05 from 29 November 2004.
 Respecting the circumstances in cases of Cyprus v. Turkey [App. Nos 6780/74, 6950/75, 4 EHRR, (1976) Com Rep, CM Res DH (79)] and Ashingdane v. The United Kingdom (Series A 93, 1985, para. 42) the Administrative Court could also adopt the position that the right from Art. 5 of the Convention is at stake.
 For example, judgment of the Administrative Court in case of U 1097/2006 from 9 May 2006.
 For example: case I Up 1499/2006 from 25 October 2006. The Supreme Court relies on Article 75. of the Aliens Act which regulates by which document an alien can identify him/herself, although in the general provisions of the Aliens Act it is stated that Aliens Act does not apply for asylum seekers, except if this is stated in Asylum Act or in Aliens Act.
 According to the Article 27(2) freedom of movement may be restricted within a defined territory or within the particular institution, like Asylum Home or Centre for Foreigners.
 Judgment of the Supreme Court in cases I Up 1499/2006 from 25 October 2006 and I Up 1519/2006 from 8. November 2006.
 In cases where the Administrative Court relies on Article 2 of the Protocol no. 4 to the Convention the Administrative Court obviously holds an opinion that an asylum seeker whose liberty of movement has been restricted, is lawfully within the territory of a State, although he/she entered illegally.
 Article 5 (1)(b) says no one shall be deprived of his liberty save in order to secure the fulfilment of any obligation prescribed by law and in accordance with a procedure prescribed by law.
 Article 5(1)(f) says no one shall be deprived of his liberty save in case of lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country and in accordance with a procedure prescribed by law.
 This is the main reason for detention of asylum seekers in Slovenia.
 In case of Vasilieva v. Denmark the ECHR says that a reasonable balance needs to be established between the importance of securing the fulfilment of the obligations in general and the importance of the right to liberty (judgment of the ECHR of 25 September 2003, para. 38).
 Case of Chala v. the United Kingdom, judgment of the ECHR from 15 November 1996, paras. 112, 113, Čonka v. Belgium, no. 51564/99, ECHR 2002-I, para. 38.
 Case of Saadi v. the United Kingdom, para. 44.
 Ibid. para. 44.
 Ibid. para. 44. In this case a detention at Oakington (United Kingdom) centre is used only for those who did not present a risk of absconding, but only for the reason to use efficiently the so called fast-track asylum procedure.
 COM (2005) 391, 1. 9. 2005
 Article 37(b) says that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
 Respecting the particular circumstances of a given case, in this kind of asylum and immigration disputes a reference could be made to the judgment of the ECHr in case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, where the issue of holding a 5 years old unaccompanied child in a detention together with adults was at stake. (See: Comments from the Standpoint of the Rule of Law on the Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member states for returning illegally staying third-country nationals COM (2005) 391, 1. 9. 2005, based on a statement elaborated by Judge Boštjan Zalar, member and co-chair of the Working Party, April 2007).
 Article 22 regulates the principle of equal protection under the law.
 See: the Procedures Directive, Article 8(2)(b), (3), (4), Article 9(1(2), Article 10(19(d), Article 13(3) and Article 14(2).
 Abuses of procedure are: argumentation based on a false identity or forged document; the false presentation of reasons in an application; the deliberate destruction of a passport or any other document that might be relevant for the procedure; if an applicant conceals having lodged a previous asylum application in another country, in particular if he or she uses a false identity; if an applicant files an application in order to postpone forced removal.
 While the Administrative Court interpreted these provisions in the light of the respect of the ban on formal rules of evidence (judgment of the Administrative Court in case U 2374/04 of 13 January 2005), the Supreme Court did not accept the interpretation of the Administrative Court.
 Vienna Convention on the Law of Treaties: Article 26 (pacta sunt servanda); Article 27 (a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty); Article 31 (a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the subject and purpose).
 Judgment of the Administrative Court in case U 2165/2004 of 15 December 2004, judgment of the Supreme Court in case I-Up 35/2005 of 19 January 2005.
 O J L 050, 25/02/2003.
 Judgments of the Supreme Court in cases I-Up 197/2005 of 16. 2. 2005, I Up 1253/05 of 9 November 2005.
 Cases Up-240/05 of 21 April 2005 and Up-794/05 of 20 October 2005.
 Article 22 of the Constitution states that each person shall be guaranteed equality in the protection of his rights in any proceedings before a court, as well as before any governmental body, local government body or statutory authority which determines the rights, obligations or legal entitlements of such person.
 Article 28(2) of the Procedural Directive states that in the cases mentioned in Article 23(4)(b) and in cases of unfounded applications for asylum in which any of the circumstances listed in Article 23(4)(a) and (c) to (o) apply, Member States may also consider an application as manifestly unfounded, where it is defined as such in the national legislation. In my opinion this provision means that in the case of misleading or presentation of false information or documents (Article 23(4)(d)) an application should also be unfounded and then may the authority reject the application as manifestly unfounded. For a relevant comparison see also Article 8(1) and Article 12(6) of the Procedural Directive.
 For example: judgments in cases of U 2374/04 of 13 January 2005, U 2404/05 of 16 november 2005.
 Judgments of the Supreme Court in cases I Up 515/2005 and I Up 505/2005 of 11 May 2005 and case I Up 610/2005 of 18 May 2005.
 Article 36(5) of the Asylum Act.
 Judgment of the Supreme Court in case of I-Up-867/2002, 18 July 2003.
 Office of the UUNHCR, Geneva, Reedited, January 1992, paras. 203-204.
 Judgment of the Supreme Court in case of I-Up-906/2001, 24 Oct. 2001. This standard corresponds to the UNHCR’s guidelines published in the Handbook on Procedures and Criteria for Determining Refugee Status, revised, Geneva, January 1992 (principles and methods, paragraph 199), although this guideline was not cited by the Supreme Court in that judgment.
 Judgments of the Supreme Court in cases of I Up 2991/2006 of 28 March 2007, I Up 110/2007 of 1 February 2007, I up 174/2007 of 15 February 2007.
 Judgment of the Supreme Court in case of I Up 265/2007 of 28 February 2007.