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Slovenia / Administrative Court / I U 36/2020-11

Unnamed plaintiff, citizen of the Republic of North Macedonia; defendant: Ministry of Justice
Deciding body type
National Court/Tribunal
Deciding body
Administrative Court
Type
Decision
Decision date
19/02/2020
ECLI (European case law identifier)
ECLI:SI:UPRS:2020:I.U.36.2020.11

Karta praw podstawowych Unii Europejskiej

Title II: Freedoms

Article 18 - Right to asylum

Title VI: Justice

Article 47 - Right to an effective remedy and to a fair trial

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  • Slovenia / Administrative Court / I U 36/2020-11
    Key facts of the case:
    The plaintiff was apprehended in Slovenia on the basis of an Interpol notice. In the Republic of Macedonia, of which they are a national, they were convicted for a criminal offence, and sentenced to imprisonment for four years. A Slovenian district court (okrožno sodišče) then found that under the Criminal Procedure Act (Zakon o kazenskem postopku) the conditions for the plaintiff’s extradition to Macedonian authorities were met, a decision later reaffirmed by a higher court (višje sodišče). According to the Criminal Procedure Act, it is finally up to the Minister of Justice to decide whether a person is subject to extradition or not. In their written submission to the ministry responsible for justice, the plaintiff opposed their extradition. Among other things, they stated that they were subject to unfair trial in their country of origin, and that they also received threats from unknown person based in their home country while staying in Slovenia. They claimed that upon extradition they might be subject to torture, inhuman or degrading treatment in their home country, this being a violation of the Slovenian Constitution and Art. 3 of the EHCR. They further noted that they provided for their child with special needs that was living in Slovenia, and that the extradition would deny the plaintiff’s right under Art. 8 of the ECHR. The plaintiff also lodged an application for international protection (i.e. asylum) in Slovenia, and warned that their extradition before the final resolution of their asylum case would involve violation of the International Protection Act (Zakon o mednarodni zaščiti), the 2011 Qualification Directive and the Geneva Convention. In the decision issued by the Ministry of Justice, the state authorities found that it was not probable that the plaintiff would be submitted to torture, inhuman or degrading treatment upon extradition, that the child’s mother could provide for the child during the plaintiff’s sentencing, but failed to take a position on the plaintiff’s asylum claims. As the decision ultimately allowed for the plaintiff’s extradition, they lodged an appeal with the Administrative Court.
     
    Key legal question raised by the Court:
    The subject of court hearing was the decision issued by the Ministry of Justice allowing for the plaintiff’s extradition to their home country. The court assessed whether in the situation at hand, where an extradition procedure and an asylum procedure were simultaneously taking place, it was possible to extradite a person before a final decision on their asylum application was handed down.
     
    Outcome of the case:

    The court noted, among other things, that international human rights law required that an appropriate assessment of all relevant circumstances related to the protection against inhuman treatment under Art. 3 of the ECHR or such circumstances in connection with an asylum application had to be carried out. Only after establishing that there is no risk of a violation of Article 3 of the ECHR, it is possible to carry out extradition under a bilateral agreement in connection with criminal proceedings or the execution of a criminal sanction. It further noted that extradition was permissible under international law only after the asylum procedure was finally concluded. The court found that the defendant failed to consider the obligation to respect the right to asylum under Article 18 of the EU Charter of Fundamental Rights in

    conjunction with effective judicial protection under Article 47 of the EU Charter. According to the court, it failed to take into account whether, in the event of extradition before the decision on the application for international protection is issued, the plaintiff would have enjoyed effective judicial protection in relation to that decision even after extradition. If the plaintiff were granted international protection, this would mean that the competent minister would have to reject the request for the extradition of the plaintiff under the Criminal Procedure Act. The court thus found the decision on extradition premature. Under the Administrative Dispute Act (Zakon o upravnem sporu), when, in the procedure prior to the issuance of the administrative act, the rules of the procedure were not applied, and this affected or could have affected the legality or correctness of the decision, this shall constitute a substantial violation of procedural provisions. The court, as a result, annulled the decision issued by the Ministry of Justice, and returned the case to the state body in question for a new procedure. The Ministry of Justice was also ordered to reimburse the plaintiff for the costs of judicial proceedings.

     
     
  • Paragraphs referring to EU Charter

    “24. In the challenged decision, the defendant summarizes the views of the criminal courts regarding the risk of a possible violation of Article 3 of the ECHR, which is an absolute right, and a possible violation of the right to family life under Article 8 of the ECHR, which is not an absolutely protected right. However, in the challenged act, the defendant did not proceed from an international obligation to respect the right to asylum under Article 18 of the EU Charter of Fundamental Rights in conjunction with effective judicial protection under Article 47 of the EU Charter. It therefore failed to take into account whether, in the event of extradition before the decision on the application for international protection is issued, the plaintiff would have enjoyed effective judicial protection in relation to that decision even after extradition. Namely, if the plaintiff were granted international protection, this would mean that the competent minister would have to reject the request for the extradition of the plaintiff on the basis of the third paragraph of Article 530 of the ZKP.* This, in turn, could lead to an inadmissible situation where the plaintiff has already been handed over to the Republic of North Macedonia, even though his extradition should in fact have been refused. This, however, as the plaintiff claims in his application, would constitute a violation of the provisions of the Geneva Convention.”

  • Paragraphs referring to EU Charter (original language)

    “24. Tožena stranka sicer v izpodbijani odločbi povzema stališča kazenskih sodišč glede tveganja za morebitno kršitev 3. člena EKČP, ki je absolutna pravica, ter morebitno kršitev pravice do družinskega življenja iz 8. člena EKČP, ki ni absolutno zavarovana pravica. Vendar pa v izpodbijanem aktu tožena stranka ni izhajala iz mednarodne obveznosti glede spoštovanja pravice do azila iz 18. člena Listine EU o temeljnih pravicah v zvezi z učinkovitim sodnim varstvom iz 47. člena Listine EU. Ni torej upoštevala, ali bi tožnik v primeru izročitve pred odločitvijo o prošnji za mednarodno zaščito, glede te odločitve, imel zagotovljeno učinkovito sodno varstvo tudi po izročitvi. Če bi namreč tožniku bila priznana mednarodna zaščita, bi to pomenilo, da bi moral pristojni minister, na podlagi tretjega odstavka 530. člena ZKP, zahtevo za izročitev tožnika zavrniti. To pa bi lahko pripeljalo do nedopustne situacije, da bi bil tožnik že predan Republiki Severni Makedoniji, čeprav bi njegova izročitev pravzaprav morala biti zavrnjena. To pa bi, kot to navaja tožnik v tožbi, pomenilo kršitev določb Ženevske konvencije.”