U-I-59/17

Reference no.:
U-I-59/17
Objavljeno:
Official Gazette RS, No. 62/2019 and OdlUS XXIV, 14 | 18.09.2019
ECLI:
ECLI:SI:USRS:2019:U.I.59.17
Act:
Aliens Act (Official Gazette RS, No. 1/18 – official consolidated text and 9/18 – corr.) (AlA-2), Arts. 10b.2.2., 10b.2.3, 10b.2.4, and 10b.3
Operative provisions:

The second, third, and fourth sentences of the second paragraph and the third paragraph of Article 10b of the Aliens Act (Official Gazette RS, No. 1/18 – official consolidated text and 9/18 – corr.) are abrogated.

 
Abstract:
When the Constitutional Court reviews the constitutionality of a law falling within the scope of EU law it must consider the Charter of Fundamental Rights of the European Union and the case law of the Court of Justice of the European Union that was formed on the basis thereof when reviewing the consistency of the challenged provisions with the Constitution.
 
The content of the first paragraph of Article 33 of the Geneva Convention and of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms is encompassed by Article 18 of the Constitution. The mentioned constitutional provision includes the requirement to observe the principle of non-refoulement, which prohibits the direct or indirect return of individuals to a country in which they may face treatment violating the right to the prohibition of torture.
 
The principle of non-refoulement ensures individuals the right to enter and to stay in the country where they seek protection and the right to fair and effective proceedings in which they are ensured a substantive review of whether their surrender could put them at a real risk of inhuman or degrading treatment.
 
The removal of individuals who claim that they need protection from a country without assessing whether substantial reasons have been demonstrated that justify the conclusion that there exists a real risk that by their removal from the country they may face inhuman treatment is consistent with the principle of non-refoulement only if the third country is safe (i.e. the safe third country concept). A third country is safe if it provides such individuals effective protection against a violation of the principle of non-refoulement. The safe third country concept, which is based on the rebuttable presumption of mutual trust among countries, is consistent with the principle of non-refoulement if the third country is obliged to fulfil comparable international obligations.
 
When individuals are surrendered to another EU Member State, a precise and individual assessment of all the circumstances that are relevant from the viewpoint of respect for the principle of non-refoulement must be ensured. Individuals must be guaranteed with certainty access to proceedings that ensure an assessment of whether substantial reasons have been demonstrated that justify the conclusion regarding the existence of a real risk that by their removal from the country they may face inhuman treatment.
 
A situation wherein the existence of a state is threatened and a real risk exists that due to the changed circumstances concerning migration its inhabitants will face inhuman treatment is regulated by Article 92 of the Constitution.
 
A statutory regulation that limits the types and number of circumstances by which it can be demonstrated that a serious risk exists that individuals will face inhuman treatment due to their surrender to another country and a regulation that cannot guarantee individuals with certainty access to proceedings that ensure an assessment of whether substantial reasons have been demonstrated that justify the conclusion that there exists a real risk that by their removal from the country they may face inhuman treatment do not allow for effective exercise of the right determined by Article 18 of the Constitution. Therefore, this entails an interference with the right determined by Article 18 of the Constitution. Interferences with such right are inadmissible.
 
 
__________________________________________________________________________________________
 
[The text published below is a summary prepared for the annual report.]
 
Aliens Act
 
By Decision No. U-I-59/17, dated 18 September 2019 (Official Gazette RS, No. 62/19), upon the request of the Ombudsman for Human Rights, the Constitutional Court decided on the constitutionality of the second, third, and fourth sentences of the second paragraph and of the third paragraph of Article 10b of the Aliens Act. The challenged provisions regulated the special legal regime governing the treatment of persons who express an intention to submit an application for international protection during a time of changed circumstances in the field of migration. In the second paragraph of Article 10b of the Aliens Act, the legislature temporarily and in a certain area substituted the general provisions of the International Protection Act, which regulate the handling of international protection applications differently (i.e. normally). The special regime governing the treatment of “motions to submit an application for international protection” in fact entailed that the Police should perform an identification procedure and establish the identity of the alien in conformity with the law that regulates the tasks and powers of the Police, and that, notwithstanding the provisions of the law regulating international protection, the Police would reject such motion as inadmissible and transfer the alien to the relevant neighbouring country if in the neighbouring EU Member State from which the alien entered the state there are no systemic deficiencies related to asylum procedures and reception conditions for applicants that might expose them to the risk of torture or inhuman or degrading treatment.
 
In order for the special legal regime to enter into force, the National Assembly would first have to establish, by a special decision, that the changed circumstances in the field of migration cause or could cause a situation in which public order and peace or internal security are or could be jeopardised, such that the functioning of the central institutions of the state and the provision of its vital functions is or could be rendered difficult. The National Assembly should decide on the entry into force of the special legal regime by observing the principle of proportionality. The special legal regime governing the treatment of aliens who express the intention to submit an application for international protection would hence enter into force in special circumstances in the state in the field of migration.
 
The Constitutional Court assessed the challenged statutory provisions from the viewpoint of their conformity with the principle of non-refoulement (Article 18 of the Constitution). The principle of non-refoulement is an international legal principle that prohibits states from removing, expelling, or extraditing a person to a country in which there exists a serious threat that the person will be subjected to the death penalty, torture, or any other inhuman or degrading treatment or punishment. The principle of non-refoulement ensures individuals the right to enter and to stay in the country where they seek protection and the right to fair and effective proceedings in which the competent authority assesses whether by their removal, expulsion, or extradition this principle could be violated. A state may only exceptionally expel, remove, or extradite an applicant for international protection if it is convinced that the third country is safe (i.e. the safe third country concept). A third country is safe if it provides applicants effective protection against a violation of the non-refoulement principle. An essential requirement when applying the safe third country concept is to ensure an individual procedure in which the individual can rebut the presumption that the third country is safe. In the procedure, the individual may adduce all the circumstances by which he or she can prove that there exists a serious threat that as a result of being extradited to that country he or she would be subjected to inhuman treatment. The same requirements also apply when extraditing individuals to another EU Member State. Due to observance of the non-refoulement principle, the safe third country concept may only be applied if the third country in advance and expressly assures that it will allow entry and access to a fair and effective procedure or if there exists an obligation of the state extraditing the individual that in the event of the denial of entry into a third state it will by itself ensure the individual concerned access to a procedure that is in conformity with the fundamental principles and values required by the non-refoulement principle. On the basis of the challenged provisions of the Aliens Act, an alien who during a time of special circumstances expresses the intention to submit an application for international protection can only rebut the presumption that the neighbouring EU Member State is not safe by adducing the existence of systemic deficiencies in the neighbouring country, health-related circumstances, the existence of family ties with an alien with health issues, or the fact that he or she is an unaccompanied minor. An alien would not be able to adduce other circumstances that could be relevant from the viewpoint of the protection of the non-refoulement principle. Furthermore, the Aliens Act did not regulate the position of an alien who has to leave the Republic of Slovenia on the basis of an enforceable order if the neighbouring EU Member State denies his or her entry.

In its assessment, the Constitutional Court had to take into consideration the circumstances in which the introduction of the special legal regime would be admissible. It held that special circumstances at a time of changed circumstances in the field of migration within the meaning of the second paragraph of Article 10a of the Aliens Act do not entail the existence of a state of emergency referred to in Article 92 of the Constitution. According to the Constitutional Court, the Constitution does not allow for the interpretation that the second paragraph of Article 10a of the Aliens Act regulates circumstances in which the existence of the state would be jeopardised and weighty reasons would be demonstrated that would justify the conclusion that there exists a real risk that due to changed circumstances in the field of migration the inhabitants of the Republic of Slovenia would be exposed to inhuman treatment (a state of emergency). The circumstances in which the state would no longer be able to effectively ensure public order or internal security as a result of which the existence of the state would be threatened are regulated by Article 92 of the Constitution. The Constitution enables the legislature to declare a state of emergency whenever there exists a great and general danger. In contrast, the legislature defined the circumstances in which the introduction of the special legal regime is admissible with the concepts “threat to public order”, “jeopardised internal security”, “difficulty in the functioning of the central institutions of the state”, and “difficulty ensuring the provision of the vital functions of the state”, which encompass a very broad set of different factual circumstances in society. Thereby, the legislature determined the circumstances in which the introduction of the special legal regime is admissible in a conceptually open manner. Since it follows from the statutory text that the introduction of the special legal regime is admissible already when the functioning of the most important state authorities could be rendered difficult as a result of changed circumstances in the field of migration and even in a situation where negative consequences of changes in the field of migration have not yet even occurred, it was not possible to concur, not even on the statutory level, that Article 10a of the Aliens Act addresses circumstances in which the existence of the state is threatened and the inhabitants of the Republic of Slovenia are exposed to inhuman treatment as a result of the changed circumstances in the field of migration.
 
Under the Constitution, a limitation of human rights can only be assessed in ordinary circumstances (Article 15 of the Constitution) and during a war and state of emergency (Article 16 of the Constitution). There is no third option (tertium non datur). Since the circumstances referred to in the second paragraph of Article 10a of the Aliens Act do not entail a state of emergency in the state, the Constitutional Court was only able to assess the challenged provisions in conformity with the criteria of constitutional case law that apply in ordinary circumstances (i.e. when there is no state of emergency).
 
The legislature has the duty to regulate the procedure that enables effective exercise of the right determined by Article 18 of the Constitution. The regulation determined by the second and third paragraphs of Article 10b of the Aliens Act did not ensure aliens who, during a time when the special legal regime is in force, submit an application for international protection access to a fair and effective trial in either the neighbouring EU Member State or the Republic of Slovenia. In addition, for aliens who claim that due to their individual circumstances the neighbouring EU Member State is not a safe third country, the challenged two provisions limited the types and number of circumstances by which they could challenge the presumption that the neighbouring EU Member State is safe.
 
An essential requirement when applying the safe third country concept is namely to ensure an individual procedure in which an individual can rebut the presumption that the third country is safe. From the case law of the ECHR and the CJEU, it follows that also when extradited to a neighbouring EU Member State an individual must have the possibility to adduce in the procedure all the circumstances by which he or she can prove that there exists a serious threat that as a result of being extradited to the EU Member State he or she would be subjected to inhuman treatment. The number and types of such circumstances must not be limited in advance. Therefore, the challenged statutory regulation did not enable effective exercise of the right determined by Article 18 of the Constitution and entailed an interference with that right.
 
On the basis of the challenged constitutional case law, also taking into consideration the case law of the European Court of Human Rights and of the Court of Justice of the European Union in the field of migration, the Constitutional Court proceeded from the fact that the right determined by Article 18 of the Constitution cannot be limited. Interferences with this right are always inadmissible. Consequently, the Constitutional Court abrogated the second, third, and fourth sentences of the second paragraph and the third paragraph of Article 10b of the Aliens Act.
Password:
1.5.51.1.17.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Annulment - Of a statute.
1.2.51.4.3 - Constitutional Justice - Types of claim - Capacity to file a petition with the Constitutional Court - Concrete review of norms - Human rights ombudsman.
2.1.3.2.1 - Sources of Constitutional Law - Categories - Case-law - International case-law - European Court of Human Rights.
2.1.3.2.2 - Sources of Constitutional Law - Categories - Case-law - International case-law - Court of Justice of the European Communities.
2.1.1.4.14 - Sources of Constitutional Law - Categories - Written rules - International instruments - Charter of Fundamental Rights of the European Union.
2.1.1.4.3 - Sources of Constitutional Law - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
5.3.3 - Fundamental Rights - Civil and political rights - Prohibition of torture and inhuman and degrading treatment.
5.1.4 - Fundamental Rights - General questions - Emergency situations.
5.1.1.3 - Fundamental Rights - General questions - Entitlement to rights - Foreigners.
5.1.3 - Fundamental Rights - General questions - Limits and restrictions.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
Legal basis:
Art. 18, Constitution [CRS]
Art. 43, Constitutional Court Act [CCA]
Note:
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Document in PDF:
The full text:
 
U-I-59/17
18 September 2019
 
DECISION
 
At a session held on 18 September 2019 in proceedings to review constitutionality initiated upon the request of the Ombudsman for Human Rights, the Constitutional Court
 
 
decided as follows:
 
The second, third, and fourth sentences of the second paragraph and the third paragraph of Article 10b of the Aliens Act (Official Gazette RS, No. 1/18 – official consolidated text and 9/18 – corr.) are abrogated.
 
 
REASONING
 
 
A
 
1. The applicant claims that Article 10b of the Aliens Act (hereinafter referred to as the AlA-2) is inconsistent with Articles 2, 14, 18, 22, 25, and 34 of the Constitution. Allegedly, the second paragraph of Article 10b of the AlA-2 does not enable respect for the principle of non-refoulement, therefore it is allegedly inconsistent with Article 18 of the Constitution, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR), the first paragraph of Article 33 of the Convention and Protocol Relating to the Status of Refugees (Official Gazette FPRY, MP, No. 7/60, Official Gazette SFRY, MP, No. 15/67, Official Gazette RS, No. 35/92, MP, No. 9/92 – hereinafter referred to as the Geneva Convention), and the second paragraph of Article 19 of the Charter of Fundamental Rights of the European Union (OJ C 202, 7 June 2016 – hereinafter referred to as the Charter). The principle of non-refoulement allegedly ensures individuals the right to enter and to stay in a country where they seek protection and the right to fair and effective proceedings in which the competent authority assesses whether by their removal, expulsion, or extradition this principle would be violated. The regulation determined by the second paragraph of Article 10b of the AlA-2 is allegedly inconsistent with Article 18 of the Constitution since it does not allow an applicant for international protection to object to transfer to another country due to subjective circumstances that are important from the viewpoint of the protection of the non-refoulement principle. An individual should have the possibility to rebut, in an individual procedure, the assumption regarding the safety of the third country due to subjective circumstances. The applicant states that in C. K., H. F., A. S. v. Republic of Slovenia, C-578/16 PPU, dated 16 February 2017, the Court of Justice of the European Union (hereinafter referred to as the CJEU) adopted the position that Article 4 of the Charter must be interpreted as meaning that even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of  Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29 June 2013, pp. 31–59 – hereinafter referred to as the Dublin III Regulation) can take place only in conditions which exclude the possibility that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article. Allegedly, the non-refoulement principle prohibits both indirect and direct refoulement. The Republic of Slovenia is allegedly obliged to observe the requirements of the non-refoulement principle even if it surrenders an individual to another European Union (hereinafter referred to as EU) Member State. In this respect, the applicant also draws attention to the ECtHR Judgment of the European Court of Human Rights (hereinafter referred to as the ECtHR) in Ahmed v. Hungary, dated 14 March 2017, in which the ECtHR established that when surrendering aliens to the Republic of Serbia, Hungary inter alia also violated Article 3 of the ECHR. The applicant stresses that the right determined by Article 18 of the Constitution is an absolute right, which may not be limited. The second paragraph of Article 10b of the AlA-2 is allegedly inconsistent with Article 22 of the Constitution, since in the procedure it allegedly does not allow an alien to adopt a position regarding all the circumstances that are important from the viewpoint of the protection of the non-refoulement principle. The applicant opines that the interference with the right to the equal protection of rights is not proportionate, given that the applicant for international protection must not bear too heavy a burden of proof that he or she is at risk [of serious harm] and that he or she must be ensured a detailed and precise assessment thereof, and that, when in doubt, the application should be decided in his or her favour.
 
2. The second paragraph of Article 10b of the AlA-2 is allegedly inconsistent with Article 25 of the Constitution, as a filed appeal allegedly does not have suspensory effect. The execution of an order rejecting a statement of intention to submit an application for international protection allegedly has irreparable consequences for the alien if inhuman treatment would occur following his or her surrender. The applicant opines that the right to an appeal is ineffective if the alien is removed from the state even before the legal remedy is decided on. In the opinion of the applicant, the challenged regulation enables collective expulsions, which are allegedly prohibited by Article 4 of Protocol No. 4 to the ECHR and Article 34 of the Constitution.
 
3. The second paragraph of Article 10b of the AlA-2 is allegedly also inconsistent with the second paragraph of Article 14 of the Constitution. The legislature allegedly regulated in a different manner the position of an alien who, following the entry into force of the decision of the National Assembly referred to in the second paragraph of Article 10a of the AlA-2, unlawfully enters the territory of the Republic of Slovenia and is in the area where the measure referred to in the second paragraph of Article 10a of the AlA-2 is implemented, and the position of an alien who unlawfully enters the territory of the Republic of Slovenia and is outside the area where such measure is implemented.
 
4. In the opinion of the applicant, the second paragraph of Article 10b of the AlA-2 is also inconsistent with the principle of the clarity and precision of regulations (Article 2 of the Constitution). Allegedly, the law unclearly regulated the position of aliens whom a neighbouring EU Member State will not allow to enter the country after rejecting a statement of intention to submit an application for international protection. The unclear regulation allegedly allows the executive authorities to act arbitrarily. The applicant opines that also the third paragraph of Article 10b of the AlA-2, which regulates how unaccompanied minors must be treated, is inconsistent with the principle of the clarity and precision of regulations. Allegedly, identification of the mentioned group according to appearance, behaviour, and other circumstances enables the executive branch of power to act arbitrarily. The third paragraph of Article 10b of the AlA-2 allegedly determines the legal position of unaccompanied minors in an imprecise manner.
 
5. The applicant claims that the third paragraph of Article 10b of the AlA-2 is inconsistent with the first paragraph of Article 14 of the Constitution, as it treats unaccompanied minors differently compared to accompanied minors. With respect to unaccompanied minors, the procedure determined by the second paragraph of Article 10b of the AlA-2 allegedly does not apply, whereas accompanied minors will be treated in accordance with a special procedure determined by the second paragraph of Article 10b of the Constitution. The applicant opines that a child’s extreme vulnerability is the essential factor that prevails over the factors related to unlawful entry into the country. Therefore, the applicant is of the opinion that there are no objectively justifiable grounds for interfering with the right to non-discriminatory treatment.
 
6. In the first part of the reply, the National Assembly summarises the opinion of the Legislative and Legal Service in the legislative procedure for adopting the Act Amending the Aliens Act (Official Gazette RS, No. 5/17 – hereinafter referred to as the AlA-2D). Allegedly, the Legislative and Legal Service drew attention in its opinion to the requirement of the clarity and precision of regulations when interfering with human rights and fundamental freedoms. Allegedly, the AlA-2 temporarily prevented aliens expressing the intention to submit an application for international protection from accessing the asylum procedure. In the opinion of the Legislative and Legal Service, such a regulation entails a temporary suspension of the right of asylum determined by Article 48 of the Constitution. The circumstances on the basis of which the National Assembly adopts a decision to apply Article 10b of the AlA-2 are allegedly not of such nature as to entail a state of emergency as referred to in Article 92 of the Constitution. The content of the measure determined by Article 10b of the AlA-2 allegedly interferes with the rules of asylum law and with human rights and fundamental freedoms to a greater extent than the Constitution allows in the circumstances of a state of emergency or war. The fact that the decision of the National Assembly referred to in the second paragraph of Article 10a of the AlA-2 was adopted by a supermajority cannot significantly affect the assessment of the admissibility of the measure. When assessing the measure determined by Article 10b of the AlA-2, it is allegedly necessary to take into account the requirements of the non-refoulement principle when introducing the safe third country concept. As regards the safe third country concept, applicants for international protection should be ensured individual treatment and the possibility to rebut the presumption of the safety of the third country in question. The Legislative and Legal Service drew attention to the fact that on the basis of the Dublin III Regulation also the presumption of the safety of EU Member States is rebuttable. Allegedly, the Dublin III Regulation ensures individuals individual assessment of all personal circumstances. The requirement of the individual treatment of individuals as regards the safe third country concept allegedly also follows from the ECtHR case law. When assessing the safety of a third country, it is allegedly necessary to take into account the possible inhuman lodging conditions, the deficient functioning of the asylum system, etc. The Legislative and Legal Service opines that the procedure for identifying aliens determined by the second paragraph of Article 10b of the AlA-2 does not ensure individual assessment.
 
7. The Legislative and Legal Service also opines that the second and third paragraphs of Article 10b of the AlA-2 inappropriately defined the vulnerable group of unaccompanied minors. The procedure for identifying specific circumstances and the vulnerability of an individual is allegedly deficient, as the criteria for identifying these specific circumstances are allegedly unclearly determined. In the procedure for identifying the members of vulnerable groups, legal remedies are allegedly not ensured. Since legal supervision over decision-making by the Police is allegedly not ensured, the regulation allegedly enables a high degree of arbitrariness when identifying vulnerable persons. The procedure determined by the second and third paragraphs of Article 10b of the AlA-2 allegedly enables splitting families at the border and thus interferes with the right to the protection of family life.
 
8. In the second part of the reply, the National Assembly summarises the positions of the Government, which proposed the adoption of the challenged statutory provisions. Allegedly, in the field of international protection, EU law does not allow for expeditious and effective assessment of applications in the event of a mass inflow of migrants. In the event of mass migration, the application of the safe third country concept, which is regulated by the International Protection Act (Official Gazette RS, No. 16/17 – official consolidated text – hereinafter referred to as the IPA-1), is allegedly unsuitable, and conducting procedures on the basis of the Dublin III Regulation impossible. The National Assembly states that the challenged provisions allow for the return of aliens to other EU Member States, all of which are state signatories to the Geneva Convention and the ECHR. Therefore, every applicant whose application will be assessed by another EU Member State should allegedly have ensured appropriate admission, care, and assessment [of his or her application] in an appropriate procedure. Allegedly, a Member State that faces a significant number of aliens on its border has the duty, in the event of exceptional situations, to apply all available measures and to prevent circumstances that could entail a basis for proclaiming a state of emergency. At the EU level, there allegedly do not exist appropriate solutions and mechanisms enabling effective management of mass illegal immigration and thus prevention of a threat to public order and internal security. The measure at issue is allegedly intended to ensure effective management of mass illegal immigration and to prevent a threat to internal security. Allegedly, the state does not carry out measures when there exists a serious threat that an individual will be subjected to torture, inhuman or degrading treatment, or punishment in the state to which he or she will be directed, when medical circumstances render it impossible, or when dealing with an unaccompanied minor. The measure determined by the second paragraph of Article 10b of the AlA-2 is allegedly extraordinary, limited in time, and only carried out on the basis of a decision of the National Assembly, which must be adopted by a majority of the votes of all deputies. In the opinion of the National Assembly, in circumstances in which as a result of mass migration the functioning of the state would be significantly hindered, but where such would not entail a state of emergency as referred to in Article 92 of the Constitution, it is admissible to restrict, in conformity with the principle of proportionality, the right to international protection. Such measure allegedly does not entail a suspension of the Geneva Convention, but merely a temporary postponement and territorial restriction of the acceptance of applications for international protection in the event all other possibilities are exhausted and it becomes impossible to implement the IPA-1. In a situation in which public order and internal security are seriously threatened, it is allegedly admissible for the state to interfere with the right of asylum. Allegedly, the state does not regulate the principle of non-refoulement, as it allegedly refers exclusively to persons coming from safe third countries. Slovenia is allegedly not obliged to ensure rights to an unlimited number of migrants, i.e. applicants for international protection. In the opinion of the National Assembly, Article 10b of the AlA-2 does not interfere with any human right that it is inadmissible to restrict. Therefore, the request to review the constitutionality of Article 10b of the AlA-2 is allegedly unfounded.
 
9. In its reply, the Government stresses that Article 10b of the AlA-2 regulates the conduct of the competent authorities in changed circumstances in the field of migration that could result in a threat to public order and safety in the Republic of Slovenia. In the opinion of the Government, there are no appropriate solutions on the EU level or mechanisms for tackling mass migratory pressures. Allegedly, the state must not allow uncontrolled or unlimited immigration, as by doing so it would in fact deny the foundations of the state and the entire constitutional regulation. The legal order in force, including treaties and case law, are allegedly not adapted to the new phenomenon of mass migration. Due to the imperfectness of the legal order, i.e. the lack of a uniform European policy in this field, the Member States are allegedly forced to search for their own measures to ensure internal security and public order. The addressees of the measure determined by Article 10b of the AlA-2 are allegedly persons who entered the Republic of Slovenia from other EU Member States, in which equal standards under the common asylum policy apply as in the Republic of Slovenia.
 
10. Allegedly, on the basis of Article 10a of the AlA-2, the measures determined by Article 10b of the AlA-2 can be applied even before circumstances would arise that would directly threaten the existence of the state and would require a state of emergency to be declared. The Government opines that Article 10b of the AlA-2 must be interpreted in conjunction with Article 10a of the AlA-2. When assessing the measure determined by the second paragraph of Article 10b of the AlA-2, the determination of the circumstances in which the application of this measure is admissible is allegedly of key importance. Allegedly, only in the event circumstances arise that could threaten public order and internal security is the application of the challenged provision allowed. The challenged provision allegedly does not entail the abrogation of human rights and the declaration of a state of emergency, but only a limitation of the right of asylum determined by Article 48 of the Constitution. The law allegedly determines supervisory mechanisms. It is allegedly possible to remove a temporary measure; the Government allegedly has the duty to inform international organisations, and the implementation of the measure allegedly only refers to a part of the territory of the Republic of Slovenia. When assessing the proportionality of the measure determined by the second paragraph of Article 10b of the AlA-2, it allegedly has to be taken into consideration that, potentially, a significant number of international protection applications would result in the collapse of the asylum system as regards providing basic accommodation to and care for applicants for international protection. Such a situation could result in a movement of migrants into the state that the state would not be able to control.
 
11. Furthermore, the Government states that, on the basis of Article 72 of the Treaty on the Functioning of the European Union (consolidated version, OJ C 202, 7 June 2016 – hereinafter referred to as the TFEU), EU Member States may depart from secondary EU legislation, provided that such is necessary to maintain public order and peace, and to ensure internal security. Whether public order and national security are threatened is allegedly assessed according to the criteria of EU law. If the burden on the state due to applicants for international protection were so great as to render it unable to cope with the circumstances, then the state allegedly has the obligation to differentiate between citizens and aliens. Therefore, the challenged provision allegedly only entails the determination of the manner of exercise of the right of asylum.
 
12. The Government opines that the measure determined by Article 10b of the AlA-2 cannot entail an interference with the non-refoulement principle, as it does not enable the refoulement of individuals to the territory of countries in which they could be put at risk. The measure at issue allows individuals to be refouled merely to the territories of neighbouring safe EU Member States. Allegedly, in all EU Member States, the equal minimum standards of the common European asylum system apply. All Member States are signatories to the Geneva Convention and the ECHR and allegedly observe the principle of non-refoulement. Therefore, the presumption that they are safe third countries applies. Allegedly, the challenged provision does not enable indirect refoulement. In the event of systemic deficiencies in the asylum system in a neighbouring EU Member State, it is not admissible to apply the measure at issue. According to the Government, a violation of the principle of non-refoulement cannot occur if there are no systemic deficiencies in the neighbouring EU Member State. Allegedly, in changed circumstances in the field of migration, the state is obliged to prevent the collapse of the asylum system, which could result in violations of Article 18 of the Constitution with respect to individuals who are already on the territory of Slovenia. The Government further states that the Dublin Regulation III enables the automatic transfer of asylum seekers, who may only rebut the presumption that an EU Member State is safe in the event systemic deficiencies in the asylum system are objectively established. The Government states that the wording of Article 10b of the AlA-2 is substantively equal to the wording contained in the Dublin III Regulation, therefore the existence of systemic deficiencies in the asylum system and the conditions for the reception of asylum seekers in the neighbouring country should allegedly be assessed in accordance with the standards imposed by the CJEU. In accordance with Article 10b of the AlA-2, it is inadmissible to transfer an alien with health issues; therefore, the challenged provision is allegedly also consistent with the case law of the ECtHR. The Government opines that the allegation that Article 10b of the AlA-2 is inconsistent with Article 22 of the Constitution is unfounded. The measure determined by Article 10b of the AlA-2 enables the individual treatment of every alien, the issuance of an administrative act, and a legal remedy against the decision. In the procedure, the all legally relevant facts, which the aliens allegedly also have the possibility to state in the procedure.
 
13. The Government opines that the second and third paragraphs of Article 10b of the AlA-2 are not inconsistent with the principle of the clarity and precision of regulations, as they do not determine how to treat an alien who is not allowed to enter the neighbouring EU Member State after the issuance of the order by which a statement of intention to submit an application is rejected. Allegedly, aliens are obliged to apply for international protection in the state to which they were directed; therefore, the Republic of Slovenia may direct an alien who has come unlawfully from a neighbouring EU Member State to that state without its consent. Allegedly, the identity of individuals is established on the basis of Article 41 of Article 41 of the Police Tasks and Powers Act (Official Gazette RS, Nos. 15/13, 23/15 – corr., and 10/17). In order to establish identity, the Police allegedly have the right to inspect individuals and, concurrently, the possibility to obtain information regarding these individuals, including their age. Allegedly, this is the reason that an unaccompanied minor is defined in Article 10b of the AlA-2 in more detail than in the IPA-1.
 
14. The regulation is allegedly not inconsistent with the right to a legal remedy. The Act allegedly enables the filing of an appeal against an order rejecting a statement of intention to submit an application for international protection. Allegedly, individuals can exercise this right both on the territory of the Republic of Slovenia and outside thereof. In the opinion of the Government, the suspensory effect of an appeal would nullify the purpose of the challenged statutory provision.
 
15. The Government also dismisses the allegation that the challenged provision is inconsistent with the principle of equality because the procedures referred to in the second paragraph of Article 10b of the AlA-2 will not be carried out in a certain area. By means of such a solution, the Government ensured the proportionality of the interference with the right to the freedom of movement of aliens. It further explains that also the IPA-1 enables different treatment of asylum seekers in view of the location where they expressed the intention to file an application for international protection (airport and port procedures). The unequal treatment of accompanied and unaccompanied minors is allegedly justified in the opinion of the Government. Unaccompanied minors are allegedly the most vulnerable group of aliens; therefore, under the legislation in the field of migration, they are treated better than accompanied minors.
 
16. The Government also rejects the allegation of the applicant that the challenged provisions enable the collective expulsion of aliens. The procedure is allegedly individualised, as individuals are issued individual administrative acts. In the procedure, the Police allegedly establish the existence of the conditions for granting exceptions to the application of the measure. Therefore, also the allegation of the applicant that [the measure] violates the right to human dignity is allegedly unfounded.
 
17. In its opinion, the Government further stressed that the number of filed applications for international protection is increasing and that the procedures envisaged by the IPA-1 and EU law are long-lasting and complex. Therefore, according to the Government, changed circumstances in the field of migration would result in the inability to implement the IPA-1 and above all the inability to ensure aliens a basic minimum standard of living. What is allegedly attempted is that applicants for international protection are ensured rights in the scope and under conditions that simultaneously ensure public order or national security and the unhindered performance of state functions. The solutions in the AlA-2D are allegedly prepared by observing the principle of proportionality. Allegedly, the objective of the Act is to protect public order, national security, the functioning of the central institutions of the state, and to ensure its vital functions and the consequent protection of the human rights of all its citizens, including persons who are granted international protection and applicants for international protection, and to simultaneously prevent that the existence of the state and the functioning of its legal order and sub-systems are directly threatened, which would require the proclamation of a state of emergency. In the opinion of the Government, international law, EU law, and the Constitution do not prevent such conduct.
 
18. The applicant submitted an opinion on the reply of the National Assembly and the opinion of the Government. It further stated that the identification procedure and the procedure for ascertaining the identity of aliens cannot fulfil the requirement of the individual treatment of every alien. The assessment of whether an individual belongs to the vulnerable group of minors should allegedly be carried out with respect to all aliens, not only aliens who express the intention to submit an application for international protection. The applicant does not concur with the allegation of the Government that the measure determined by the second paragraph of Article 10b of the AlA-2 would be ineffective if an appeal against an order rejecting a statement of intention to submit an application for international protection had suspensory effect. With this sole argument the Government is allegedly unable to substantiate the proportionality of the interference with the right to an effective legal remedy. The formal possibility to file a legal remedy allegedly means that the legal remedy is ineffective. In accordance with the case law of the ECtHR, the right determined by Article 3 of the ECHR is an absolute right that may not be restricted even in instances where the existence of a nation is threatened. Allegedly, it is inadmissible to balance the weight of the interference with the mentioned right and the interests of the community as a whole. The ECtHR allegedly stressed that also when faced with a substantial influx of migrants and asylum seekers, states must observe the absolute nature of the right determined by Article 3 of the ECHR. The ECtHR has allegedly also assessed the procedural aspects of the protection of the non-refoulement principle. Also during transfer between EU Member States, individuals should have the right to challenge the safety of a country. When drafting the challenged provision, the Government allegedly overlooked the recent case law of the ECtHR and the CJEU as regards the necessity to take into consideration all the circumstances that are important from the viewpoint of respecting the non-refoulement principle. The latter does not allow the state to merely take into account systemic deficiencies in the asylum procedure. In the opinion of the applicant, the Government confirmed that the statutory regulation at issue is unconstitutional precisely with the statement that the competent authorities will decide whether to reject a statement of intention to submit an application for international protection without the consent of the neighbouring country.
 
 
B – I
 
Scope of the Constitutional Assessment
 
19. The applicant alleges that it challenges Article 10b of the AlA-2; however, from its allegations it follows that it claims that the second, third, and fourth sentences of the second paragraph and the third paragraph of Article 10b of the AlA-2 are unconstitutional. Consequently, the Constitutional Court carried out a review in such scope. The applicant alleges that the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2 are inter alia inconsistent with Article 18 of the Constitution, which ensures respect for the non-refoulement principle.
 
20. The second paragraph of Article 10b of the AlA-2 determines: “If an alien who is attempting to illegally enter the territory of the Republic of Slovenia at a border crossing point or who has illegally entered such territory from a neighbouring EU Member State, and is staying in the area where this Article is implemented, expresses, following the entry into force of the decision of the National Assembly of the Republic of Slovenia referred to in the second paragraph of the preceding Article, his or her intention to apply for international protection, the Police shall perform an identification procedure and ascertain the identity of the alien in accordance with the law regulating police tasks and powers. Notwithstanding the provisions of the law regulating international protection, the Police shall reject such statement of intention as inadmissible if in the neighbouring EU Member State from which the alien entered the state there are no systemic deficiencies related to asylum procedures and reception conditions for applicants that might expose them to the risk of torture or inhuman or degrading treatment, and transfer the alien to that country. An appeal against the order shall not suspend the execution thereof. Appeals shall be decided on by the ministry responsible for the interior.”
 
21. The third paragraph of Article 10b of the AlA-2 determines: “The preceding paragraph shall not apply where the health condition of the alien manifestly renders it impossible to implement the measure referred to in the preceding paragraph or where the alien is a family member of an alien with respect to whom it is impossible to implement such measure due to his or her health condition or where due to the person’s appearance, behaviour, or other circumstances it appears that the person concerned is an unaccompanied minor.”
 
 
B – II
 
The Influence of EU Law on the Review
 
22. On the basis of the first paragraph of Article 78 of the TFEU, the EU shall develop a common policy on asylum, subsidiary protection, and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention and other relevant treaties. In conformity with the third paragraph of Article 78 of the TFEU, the Council may, on the proposal of the European Commission, in the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries, adopt provisional measures for the benefit of the Member States concerned. On the basis of the second paragraph of Article 78 of the TFEU, the European Parliament and the Council adopted multiple regulations and directives that regulate EU asylum policy. The procedure for the treatment of aliens who enter the EU area with the intention of obtaining international protection is regulated by Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (OJ L 180, 29 June 2013, pp. 60–95 – hereinafter referred to as the Procedures Directive II). From recitals 8 and 12 to the Procedures Directive II, it follows that its objective is to ensure a common asylum procedure by which individuals are ensured an equal level of procedural treatment irrespective of the fact in which Member State they filed an international protection application. The determination of the criteria and mechanisms for determining the Member State responsible for deciding on an international protection application filed by a third country national or a person without citizenship and for carrying out the procedure for surrendering or accepting applicants for international protection between EU Member States are regulated by the Dublin III Regulation. Article 33 of the Dublin III Regulation regulates mechanisms for early warning, preparedness and crises management if it is found that the application of the Dublin III Regulation may be jeopardised because it is established that there exists a substantiated risk of particular pressure on the asylum system of a Member State and/or due to problems in the functioning of the asylum system of a Member State.[1] A part of the common asylum policy is also Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ L 212, 7 August 2001 – hereinafter referred to as the Temporary Protection Directive), which determines minimum standards for granting temporary protection in the event of the mass influx of displaced persons from third countries who cannot return to their countries of origin and which supports the balancing of the expectations of Member States when receiving these persons and the consequences of such reception. The application of this Directive is triggered by a Council Decision adopted on the proposal of the European Commission. From the above it follows that EU law regulates the procedure regulating the treatment of persons who enter the EU area with the intention of applying for international protection, the procedure for surrendering and receiving such persons within EU Member States with the intention of ensuring a common European asylum system and the [fulfilment of] the obligations of EU Member States and institutions in the event of the mass influx of displaced persons or in the event of significant pressure on the asylum system of a Member State. Hence, in the field of asylum policy, EU law imposes certain obligations on EU Member States and institutions.
 
23. The second and third paragraphs of Article 10b of the AlA-2 regulate the procedure for the treatment of individuals who upon entering the Republic of Slovenia express the intention to submit an application for international protection and the procedure for surrendering these persons to a neighbouring EU Member State in changed circumstances in the field of migration. The challenged provisions of the AlA-2 fall in the area in which the EU shares competence with the Member States (point (j) of the second paragraph of Article 4 of the TFEU).[2] From the third paragraph of Article 3a of the Constitution there follows the requirement that all state authorities, including the Constitutional Court, must, when exercising their competences, apply EU law in accordance with the legal regulation of this organisation [i.e. the EU].[3] When assessing the regulations that fall in the field of EU law, the Constitutional Court must take into account Article 3a of the Constitution. On the basis of the third paragraph of Article 3a of the Constitution,[4] it must take into account primary and secondary EU legislation and the case law of the CJEU.[5] In conformity with the first paragraph of Article 51 of the Charter, Member States shall apply the provisions of the Charter only when they are implementing EU law.[6] The requirement that the Charter be observed is only binding on Member States when acting within the scope of EU law.[7] However, not every national measure in a field falling within the competences of the EU requires the application of the Charter.[8] When assessing whether the national regulation refers to the implementation of EU law within the meaning of Article 51 of the Charter, the following needs to be assessed: (i) whether the objective of the national legislation is the implementation of EU law; (ii) what the nature of the national legislation is and whether in addition to the objectives encompassed by EU law it also pursues other objectives; (iii) and whether there exists a special regulation of EU law in that field that can affect this field.[9]
 
24. The National Assembly and the Government allege that in EU law there are no appropriate solutions and mechanisms to ensure internal security and effective management of mass illegal immigration, which poses a threat to public order and internal security. Allegedly, on the basis of Article 72 of the TFEU, EU Member States may depart from secondary EU legislation, provided that such is necessary to maintain public order and peace, and to ensue internal security. From the legislative file it follows that the Republic of Slovenia has always advocated the triggering of a mechanism on the EU level in the event of the mass influx of displaced persons as referred to in the Temporary Protection Directive, but the European Commission, which acts as the proposer of the application of the mechanism at issue, did not opt for that possibility, without providing reasons for such.
 
25. Without a doubt, the challenged statutory provisions extend to the field of EU law. When assessing a regulation that is relevantly connected with EU law,[10] or regarding which EU law, also without specific secondary legislation, imposes on Member States certain obligations, the Constitutional Court must, when determining the substance of human rights and fundamental freedoms, take into consideration primary EU law, in particular the Charter and the case law of the CJEU. In such instances, the Constitutional Court may apply national standards regulating the protection of fundamental rights if the application thereof does not jeopardise the level of protection guaranteed by the Charter as interpreted by the CJEU and does not interfere with the primacy, unity, and effectiveness of EU law.[11]
 
 
B – III
 
The Non-Refoulement Principle (Article 18 of the Constitution)
 
26. The non-refoulement principle is an international legal principle that prohibits the state from removing, expelling, or extraditing the applicant to a state in which there exists a serious threat that he or she will be subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment (hereinafter referred to as inhuman treatment). In conformity with the first paragraph of Article 33 of the Geneva Convention, the expulsion or forced return of a refugee to the borders of a territory in which his life or liberty would be jeopardised due to race, religion, citizenship, affiliation with a certain social group, or a certain political belief are prohibited.[12] The non-refoulement principle is also regulated in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Official Gazette RS, No. 24/93, MP, No. 7/93 – CTOCIDTP), which in the first paragraph of Article 3 expressly prohibits the prosecution, expulsion, or extradition of a person to another state where there are substantial grounds for believing that he [or she] would be at risk of being subjected to torture. Article 18 of the Constitution determines that no one may be subjected to torture or to inhuman or degrading punishment or treatment. It follows from the established constitutional case law that Article 18 of the Constitution prohibits a person regarding whom there exists a real threat that, in the event he or she returns to the state which he or she came from, he or she will be exposed to inhuman treatment from being extradited or expelled to that state.[13] Hence, the observance of the non-refoulement principle is protected within the framework of Article 18 of the Constitution.
 
27. When assessing a statutory regulation from the viewpoint of Article 18 of the Constitution, the Constitutional Court must take into consideration that the non-refoulement principle is also protected under Article 3 of the ECHR. The Constitutional Court has already adopted the position that the content of Article 3 of the ECHR is encompassed in Article 18 of the Constitution; therefore, when carrying out an assessment from the viewpoint of Article 18 of the Constitution, the Constitutional Court must also take into consideration the case law of the ECtHR.[14]
 
28. Also the second paragraph of Article 19 of the Charter guarantees protection in the event of removal, expulsion, or extradition. However, in conformity with that provision of the Charter, no one may be removed, expelled, or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment. Article 4 of the Charter regulates the prohibition of torture; it determines that no one may be subjected to torture or to inhuman or degrading punishment or treatment.
 
29. The CJEU adopted the position that the common European asylum system is based on complete and general application of the Geneva Convention and the assurance that no one will be sent back to an area where he or she was persecuted.[15] The fundamental right ensured by Article 3 of the ECHR is part of the general principles of EU law.[16] The CJEU adopted the position that the prohibition of inhuman or degrading treatment as referred to in Article 4 of the Charter corresponds to the prohibition referred to in Article 3 of the ECHR and that, within those limits, its content and scope are – in conformity with the third paragraph of Article 53 of the Charter – equal to that determined by the ECHR.[17] It stated that the right determined by Article 4 of the Charter has an absolute nature.[18] The CJEU also adopted the position that when interpreting Article 4 and the second paragraph of Article 19 of the Charter, the case law of the ECtHR must be taken into consideration.[19]
 
30. In accordance with the established international law, states have the right to supervise the entry of aliens, the granting of residence permits, and expulsions or extraditions.[20] However, the sovereignty of a state is limited by the prohibition on removing, expelling, or extraditing a national to a state in which there exists a serious risk that he or she will be subjected to inhuman treatment (the non-refoulment principle). In its case law, the ECtHR developed the position that the removal, expulsion, or extradition of an individual to another state are prohibited where substantial grounds for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment have been shown.[21] The non-refoulement principle includes both direct refoulement and indirect refoulement, where the applicant is surrendered to a state in which there is no real risk of him or her of being subjected to inhuman treatment, but where there exists the possibility that he or she would be surrendered by that state to a state wherein there exists a real risk of being subjected to inhuman treatment.[22]
 
31. The non-refoulement principle ensures an individual who applies for [international] protection the right to enter a state and to stay therein.[23] It ensures him or her the right of access to a fair and effective procedure in which the competent authority must assess whether this principle could be violated were he or she to be removed, expelled, or extradited.[24] The applicant must also be ensured a detailed and meticulous assessment that also includes the assessment that the removal of the person concerned from the state will not result in his or her life or liberty being jeopardised or him or her being subjected to inhuman treatment.[25] The removal from a state of an individual who claims that he or she needs [international] protection without a detailed and meticulous assessment of the person’s claims that there exists a real risk of being subjected to inhuman treatment as a result of his or her removal from the state entails a violation of the non-refoulement principle.[26] The requirements that follow from the mentioned international instruments and Article 18 of the Constitution are also binding on the legislature when regulating the procedure in which the removal of an individual from the state is decided on. The procedure must be designed in such a manner that individuals are ensured respect for the guarantees determined by Article 18 of the Constitution.[27]
 
The Safe Third Country Concept
 
32. A state may only surrender an individual to a third country without assessing whether surrender to that state would put his or her life or liberty in jeopardy if the third country is safe (i.e. the safe third country concept). Whenever a state applies the safe third country concept, it must assess, prior to surrendering the individual concerned, the safety of the third country, in order to observe the non-refoulement principle. By Decision No. U-I-155/11, the Constitutional Court has already determined the conditions that must be fulfilled in order for a third country to be considered safe. A third country is safe if it ensures applicants effective protection against a violation of the non-refoulement principle. The effective protection must last as long as the risk that the applicant will be subjected to inhuman treatment in his or her country of origin persists. The third country can provide such protection in two ways: by issuing a residence permit or by providing access to a procedure that includes procedural guarantees that have been formulated in international law.[28] Hence, the third country must allow individuals to enter the state[29] and to access a fair and effective procedure in conformity with the non-refoulement principle. The third country can only be deemed safe if it observes human rights and fundamental freedoms and ensures that individuals will not experience violations of these rights.[30] Hence, only a state that has ratified the Geneva Convention and the ECHR and observes the provisions thereof and the supervisory mechanisms envisaged in the two conventions can be considered a safe third country.[31]
 
33. States can assess whether a third country is safe on a case-by-case basis or in general. When applying the general approach, the assessment of the safety of a country is based on the principle of mutual trust. If the conditions listed in the preceding paragraph of the reasoning are fulfilled, a state can be justifiably confident that the third country offers effective protection from violations of the non-refoulement principle. However, trust between states must not be absolute. Applicants must have the possibility to rebut the presumption that the third country is safe. They must have the possibility to prove, in an individual procedure, that the third country concerned is not safe for them in particular.[32]
 
34. The ECtHR adopted the position that also the presumption that EU Member States are safe must be rebuttable. According to the ECtHR, the reason for the occurrence of the risk that an individual could be subjected to inhuman treatment does not change the level of protection offered by the ECHR. Independently of the reason for the occurrence of the risk, the state is obliged to carry out a meticulous and individual assessment of the individual’s situation and suspend the surrender if there is a real risk of the individual being subjected to inhuman treatment. The risk that an individual would be subjected to inhuman treatment can also occur due to other reasons, not only due to systemic deficiencies in the asylum system in an EU Member State.[33]
 
35. The circumstances that the ECtHR takes into account when carrying out an assessment from the viewpoint of Article 3 of the ECHR include the gender, age, and health condition of the individual concerned.[34] Also relevant from the viewpoint of Article 3 of the ECHR can be the suffering of an individual due to a physical or mental illness that developed independently of the alleged violations if the individual’s suffering increased as a result of the measures of the state (detention, expulsion from the state, etc.) or if there is a looming danger that such will occur.[35] The ECtHR adopted the position that the responsibility of the state determined by Article 3 of the ECHR also cannot be excluded in instances where an individual wholly dependent on state support in a situation of extreme material poverty that is incompatible with human dignity encounters the indifference of the competent institutions or their inactivity when resolving his or her material distress.[36] As a general rule, the ECtHR applies Article 3 of the ECHR in instances where the risk of the occurrence of inhuman and degrading treatment follows from the intentional conduct of state authorities or other organisations in the state of reception that are independent of the state. However, due to the absolute nature of the protection that Article 3 of the ECHR offers, the ECtHR reserved for itself a sufficient degree of adaptability such that it can also apply Article 3 in other instances. In conformity therewith, it adopted the position that it is admissible to assess the application of an applicant for international protection from the viewpoint of Article 3 of the ECHR also in instances where it is not possible to directly or indirectly attribute responsibility for the reasons for the occurrence of the risk that an individual will be subjected to inhuman and degrading treatment to the state of reception or where these reasons in and of themselves would not even entail a violation of the requirements stemming from Article 3 of the ECHR. When assessing an application from the viewpoint of Article 3 of the ECHR, the ECtHR also assesses the complainant’s personal situation in the state that will surrender the applicant to another state, including the latest information concerning the individual’s health.[37] In such framework, it also assesses whether the removal itself of an individual to another state would be contrary to the requirements that follow from Article 3 of the ECHR.[38] When carrying out an assessment from the viewpoint of Article 3 of the ECHR, the ECtHR also takes into consideration whether an individual is a member of a deprivileged and vulnerable social group that needs special protection.[39]
 
36. It follows from the case law of the CJEU that the surrender of an individual to another EU Member State can only be carried out in circumstances in which the surrender cannot result in a real risk that the person concerned would be treated in an inhuman or degrading manner within the meaning of Article 4 of the Charter.[40] The CJEU adopted the position that, when surrendering a person, the authorities of a Member State, including courts, must not neglect to carry out an assessment of the elements likely to demonstrate that the surrender could entail a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.[41]
 
37. The CJEU adopted the position that the circumstances by which an individual demonstrates that surrender to another EU Member State could entail a real risk of inhuman treatment must attain a particularly high level of severity.[42] Allegedly, ["]that particularly high level of severity is allegedly attained where the indifference of the authorities of a Member State would result in a person wholly dependent on [s]tate support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity.["][43] That threshold is not attained in situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment,[44] or where the social protection and/or living conditions are more favourable in the Member State surrendering the individual than in the Member State to which the individual will be surrendered.[45]
 
38. It follows from the above that the circumstance that a state transfers an individual to another EU Member State cannot affect the scope of the protection that the non-refoulement principle enshrined in Article 18 of the Constitution guarantees. A precise and individual assessment of the individual’s circumstances must also be ensured when the individual is surrendered to another EU Member State. In the event an applicant claims that an EU Member State is concretely not safe for him or her, the competent authorities and courts must assess all the circumstances that are relevant from the viewpoint of respect for the non-refoulement principle.[46]
 
39. A third country only ensures individuals effective protection if it allows them entry into its territory and access to a procedure with all the procedural guarantees in which the individual will be provided a substantive assessment that concludes that his or her removal from the country will not put his or her life or liberty at risk, or subject him or her to inhuman treatment.[47] If it is not possible for the third country at issue to allow entry and access to a fair and effective procedure, there is a risk that no state will assume the obligation to substantively assess [the application] from the viewpoint of the non-refoulement principle. Therefore, in assessing whether a third country is safe, the consent of the third country allowing entry into its territory is key.[48] Due to observance of the non-refoulement principle, the safe third country concept may only be applied if the third country, in advance and expressly, gives an assurance that it will allow entry and access to a fair and effective procedure or if the state that surrenders the individual is itself obligated, in the event of the denial of entry into a third country, to ensure the individual concerned access to a procedure that is in conformity with the fundamental principles and values required by the non-refoulement principle.[49] Only in such manner is the applicant ensured – in at least one state with certainty – access to a fair and effective procedure that will assess whether his or her direct or indirect return to the country of origin could entail a violation of the non-refoulement principle.
 
 
B – IV
 
Assessment of the Challenged Provisions from the Viewpoint of Article 18 of the Constitution
 
40. The Constitutional Court first had to assess whether the challenged second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2 fulfil the above-mentioned requirements as follow from Article 18 of the Constitution.
 
41. By the second paragraph of Article 10b of the AlA-2 the legislature determined a special treatment regime for aliens who express an intention to submit an application for international protection, once the National Assembly adopts the decision referred to in the second paragraph of Article 10a of the AlA-2. By the second paragraph of Article 10b of the AlA-2, the legislature temporarily and on a certain territory substituted the general provisions of the IPA-1 that regulate the handling of international protection applications after the intention to submit such is expressed. During the time when the decision of the National Assembly referred to in the second paragraph of Article 10a of the AlA-2 is in force, the competent authorities must consider an expressed intention to submit an application for international protection on the basis of the second paragraph of Article 10b of the AlA-2, not on the basis of the IPA-1.[50]
 
42. At the border, a police procedure must be carried out against an alien who expresses the intention to submit an application for international protection. The Police must carry out an identification procedure and ascertain the identity of the alien in conformity with the law regulating police tasks and powers. Once the identification procedure is completed, the Police assess (1) whether the alien[51] is attempting to illegally enter the territory of the Republic of Slovenia at a border crossing or whether he or she has already illegally entered the territory of the Republic of Slovenia, (2) whether he or she has arrived from a neighbouring country that is an EU Member State (i.e. the Republic of Croatia, Hungary, the Republic of Austria, or the Italian Republic), and (3) whether he or she is located in the area determined by the decision of the National Assembly referred to in the second paragraph of Article 10a of the AlA-2 (the first sentence of the second paragraph of Article 10a of the AlA-2). If the conditions determined by the second sentence of the second paragraph of Article 10b of the AlA-2 are fulfilled, by an order the Police reject the statement of intention to submit an application for international protection and direct the alien to the neighbouring EU Member State.
 
43. By the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2, the legislature determined the conditions under which the provisions of the IPA-1 apply in exception to the treatment of aliens who have submitted a statement of intention to file an application for international protection, despite the decision of the National Assembly referred to in the second paragraph of Article 10a of the AlA-2. The Police do not reject an alien’s statement of intention to submit an application for international protection (1) if in a neighbouring EU Member State from which the alien entered there exists systemic deficiencies relating to the asylum procedure and the conditions for the reception of applicants that could cause a risk of inhuman treatment, (2) if the health condition of an alien manifestly renders his or her transfer to the neighbouring EU Member State impossible, (3) if the alien is a family member of an alien whom it is not possible to transfer to the neighbouring EU Member State due to his or her health condition, or (4) if according to the appearance, behaviour, or other circumstances thereof, the person concerned is considered to be a unaccompanied minor.
 
44. It follows from the above that the procedure referred to in the second and third paragraphs of Article 10b of the AlA-2 is not intended for substantive consideration of an application for international protection. It is a procedure in which the Police decide whether to consider an alien’s statement of intention to submit an application for international protection on the basis of the second paragraph of Article 10b of the AlA-2 or on the basis of the IPA-1. If the Police decide to consider a statement of intention in accordance with the special regime determined by the second paragraph of Article 10b of the AlA-2, the procedure for treating an alien in the Republic of Slovenia concludes with the issuance of an order rejecting the statement of intention, and the alien must leave the territory of the Republic of Slovenia. On the basis of the second paragraph of Article 10b of the AlA-2, an alien who submits a statement of intention to file an application for international protection is not able to file, before a competent authority referred to in the seventh indent of Article 2 of the IPA-1[52], an application for international protection and to state the reasons by which he or she substantiates the need for protection. On the basis of the second paragraph of Article 10b of the AlA-2, an alien must leave the territory of the Republic of Slovenia without the Police (or some other authority) substantively assessing whether there exist weighty reasons that justify the conclusion that there exists a real risk that as a result of the removal of the person from the state he or she may be exposed to inhuman treatment.
 
45. The two statutory provisions challenged regulate the procedure for the treatment of aliens who claim the need for international protection and their surrender to a neighbouring EU Member State. On the basis of the second paragraph of Article 10b of the AlA-2, the competent authority adopts the individual act that serves as the legal basis for surrendering an alien claiming the need for international protection to a third (i.e. neighbouring) country that is an EU Member State. This means that the two statutory provisions challenged fall within the field that is protected by the right determined by Article 18 of the Constitution.[53]
 
46. From the constitutional case law it follows that surrendering an individual claiming to need protection to a third state without assessing whether surrender to that state would put his or her life or liberty at risk or would subject him or her to inhuman treatment is only in conformity with the non-refoulement principle if the third country is safe.[54] Nevertheless, by the second paragraph of Article 10b of the AlA-2 the legislature did not determine the criteria or the manner of assessing the safety of a third country. However, it follows from the second paragraph of Article 10b of the AlA-2 that it regulates transfer to the neighbouring EU Member State.[55] The CJEU adopted the position that it can be assumed that all EU Member States observe fundamental rights, including the rights based on the Geneva Convention and the ECHR, and that Member States can mutually trust each other in this respect.[56] In these circumstances, it must be assumed that the treatment of applicants for international protection in every EU Member State is in conformity with the Charter, the Geneva Convention, and the ECHR.[57] Hence, by determining in the second paragraph of Article 10b of the AlA-2 that surrender is only admissible to neighbouring EU Member States, the legislature regulated the special concept of neighbouring EU Member State by a general assessment of the safety of the given state, which is based on the principle of mutual trust between EU Member States.[58] Together with determining the special legal regime determined by the second paragraph of Article 10b of the AlA-2 in changed circumstances in the field of migration, the National Assembly declares neighbouring EU Member States to be safe third countries. Therefore, the concept of a safe EU Member State, which was introduced by the second paragraph of Article 10b of the AlA-2, must be distinguished from the safe third country concept determined by Article 53 and the European safe country concept determined by Article 56 of the IPA-1. The National Assembly as well confirms the same in its reply, in which it claims that the safe third country concept as determined in international law does not apply in the event of mass migration.
 
47. An essential requirement when applying the safe third country concept is to ensure an individual procedure in which an individual can rebut the presumption that the third country is safe. From the case law of the ECHR and the CJEU (see Paragraphs 34 and 36 of the reasoning) it follows that also when extradited to a neighbouring EU Member State an individual must have the possibility in the procedure to adduce all the circumstances by which he or she can prove that there exists a serious threat that as a result of being extradited to another EU Member State he or she will be subjected to inhuman treatment (see Paragraphs 35 and 37 of the reasoning). The number and types of such circumstances must not be limited in advance.
 
48. On the basis of the second paragraph of Article 10b of the AlA-2, an alien has the possibility in the procedure to adduce certain circumstances by which he or she can prevent a statement of intention from being rejected and his or her transfer to a neighbouring EU Member State. In such manner, the legislature enabled aliens to challenge, in certain instances, the safety of a neighbouring EU Member State. However, the legislature exhaustively limited the circumstances by which an alien can challenge the safety of a neighbouring EU Member State. In a procedure an alien can adduce systemic deficiencies in the neighbouring state, health-related circumstances, the existence of family ties with an alien with health issues, or the fact that he or she is an unaccompanied minor; however, he or she cannot adduce other circumstances.
 
49. The second paragraph of Article 10b of the AlA-2 does not regulate the position of an alien who has to leave the Republic of Slovenia on the basis of an enforceable order if the neighbouring EU Member State denies his or her entry. An order rejecting a statement of intention does not oblige a neighbouring EU Member State to accept an alien. This means that aliens do not have advance assurance that the neighbouring EU Member State will allow them entry into its territory and ensure access to a fair and effective procedure in which they will be provided a substantive assessment [with the conclusion] that their removal from the country will not put at risk their life or liberty, or subject them to inhuman treatment. The second paragraph of Article 10b of the AlA-2 does not determine that in the event of the rejection of entry into the neighbouring EU Member State the Republic of Slovenia will by itself ensure an alien access to a fair and effective procedure.[59] This means that in the procedure for submitting a statement of intention to file an application for international protection, during which the special legal regime determined by the second paragraph of Article 10 of the AlA-2 is in force, an alien is not with certainty ensured access to an effective and fair procedure in which he or she is guaranteed a substantive assessment concluding that his or her direct or indirect transfer to the country of origin will not cause a risk to his or her life or liberty or expose him or her to inhuman treatment.
 
50. From the case law of the ECtHR it follows that the prohibition of torture (Article 3 of the ECHR) is a fundamental value in democratic societies and is closely connected with ensuring human dignity.[60] The ECtHR has already adopted the position that an increased influx of migrants or applicants for international protection does not absolve the state of fulfilling the obligations resulting from the non-refoulement principle. The mere fact that it is more difficult to ensure the established standards in the field of the positive obligations of the state, which is a consequence of the increased influx of migrants, does not justify that they be lowered.[61] Nevertheless, the ECtHR adopted the position that when assessing the state of the facts, also the general situation in which the facts occurred must be taken into consideration.[62]
 
51. In their reply and opinion, the National Assembly and the Government allege that it is only admissible to enforce the special legal regime determined by Article 10b of the AlA-2 in circumstances determined by the second paragraph of Article 10a of the AlA-2. Therefore, in order to assess the constitutionality of the challenged provisions, the Constitutional Court had to assess the effect of the circumstances in the state referred to in the second paragraph of Article 10a of the AlA-2 on the assessment of constitutionality.
 
52. On the basis of Article 10a of the AlA-2,[63] the special legal regime regulated by Article 10b of the AlA-2 is activated when special circumstances in the state occur or could occur as a result of changes in the field of migration. In order for the special legal regime to enter into force, the National Assembly must first establish, by a special decision, that changed circumstances in the field of migration cause or could cause a situation in which public order and peace or internal security are or could be threatened, such that the functioning of the central institutions of the state and the vital functions thereof are or could be rendered difficult. The National Assembly must decide on the entry into force of the special legal regime by observing the principle of proportionality.
 
53. By determining the circumstances in which the entry into force of the special legal regime is admissible, the legislature determined the situation in the state in which it is necessary, in order to ensure protected values, to introduce a special legal regime that inter alia regulates the treatment of persons who have expressed the intention to submit an application for international protection.
 
54. In its opinion, the Government claims that Article 10a of the AlA-2 regulates circumstances in which the collapse of the asylum system threatens due to the uncontrolled movement of migrants, which the state would no longer be able to control due to the limited capacities of the security forces. These circumstances are allegedly such that it is no longer possible to ensure public safety in the state, as a result of which the general dissatisfaction of the citizens would occur because of the situation in the state. Due to the uncontrollable influx of migrants, exceptionally high additional costs could be incurred, which could affect the fulfilment of requirements as to fiscal discipline and ensuring the common management of debt. In the opinion of the Government, the existence of a threat to public order and internal security will be assessed according to criteria of EU law.[64] There would be a threat to public order or national security in the event of irregularities in the functioning of the institutions of the Republic of Slovenia and its most important services.[65] According to the Government, due to the occurrence or possibility of the occurrence of changed circumstances in the field of migration, the performance of state tasks in the field of international protection and of ensuring basic care, health care, and schooling could be rendered difficult. Allegedly, uncontrollable or unlimited immigration would negate the foundations of the state and its constitutional regulation. The special legal regime would enter into force before circumstances would arise that would directly threaten the existence of the state and require a state of emergency to be declared. In the legislative file it is stated that the possibility of a broad interpretation of EU law concepts such as public order and internal security allows that the effect of factual occurrences in society on numerous fields in the state ([such as] social security, the economic situation, the unemployment rate) is taken into consideration when determining whether public order and internal security are threatened.[66] In its reply, the National Assembly stated that these are circumstances in which the functioning of the state is rendered significantly difficult due to mass migration or in which the state is approaching a situation in which public order and peace are significantly threatened. It stated that the legal order currently in force is not adapted to the phenomenon of mass migration. The Republic of Slovenia is allegedly not obliged to ensure rights to an unlimited number of migrants, as the international legal order cannot impose obligations that are unfulfillable.
 
55. By introducing a special legal regime, the legislature protects two values: legal order and peace and, [secondly,] internal security. Legal order and peace are fundamental legal values that allow the unhindered functioning of a state governed by the rule of law.[67] Internal security is one of the subsystems of the national security of the state.[68] It entails ensuring protection of the constitutional regulation and of the institutions of the democratic political system, ensuring the continuous functioning of the system of state power on the entire territory of the Republic of Slovenia, ensuring the observance of human rights and fundamental freedoms, combatting crime, as well as judicial and parliamentary supervision over the functioning of the security and intelligence services.[69] Changed circumstances in the field of migration have the capacity to create a situation that is a threat to the effective exercise of cogent norms and fundamental moral principles, and to the effective provision of internal security. The actual functioning of the legal order is a [pre]condition for the existence of the state. If a greater number of people no longer implemented a significant number of norms, in particular those that are fundamental to the existence of a certain legal order, the existence of the state could be threatened.[70] Therefore, it can be concluded that by introducing a special legal regime the legislature protects two values that are essential to the functioning of the state.
 
56. In deciding on the entry into force of the special legal regime the National Assembly must observe the principle of proportionality. The principle of proportionality requires the National Assembly to balance, when deciding on the entry into force of the special legal regime, the degree to which public order and internal security, as defined in the second sentence of the second paragraph of Article 10a of the AlA-2, are threatened, against the weight of the interference with the rights of persons who have expressed the intention to apply for international protection as a result of the entry into force of the special legal regime. The degree to which public order and internal security are threatened must be such that it renders difficult the functioning of the central institutions of the state and ensuring its vital functions. Also the statutory text that follows, which determines the condition that ensuring vital functions must be rendered difficult, confirms such interpretation. Changed circumstances in the field of migration must render difficult the exercise of the essential tasks of the most important authorities of the state. It follows therefrom that the legislature did not have in mind circumstances in which the most important authorities of the state are made unable to exercise their powers, as it suffices that they are merely hindered in the exercise of their essential tasks. The entry into force of the special legal regime is admissible already where there exists the mere possibility of the occurrence of circumstances wherein due to changed circumstances in the field of migration public order or internal security could be threatened such that the functioning of the central institutions of the state and of its vital functions could be rendered difficult. The legislature allows the special legal regime for aliens to enter into force already in a situation wherein there exists a mere possibility that the protected values could be threatened. 
 
57. The National Assembly claims that the objective of the introduction of the special legal regime is to prevent the occurrence of circumstances that could be the basis for proclaiming a state of emergency. Hence, the National Assembly claims that the second paragraph of Article 10a of the AlA-2 does not regulate circumstances wherein the existence of the state would be threatened. The positions of the Government as to the types of circumstances in which it is admissible to introduce the special legal regime oppose each other. On the one hand, the Government claims, as does the National Assembly, that the second paragraph of Article 10a of the AlA-2 regulates circumstances in the state in which the existence of the state is not yet threatened, while public order and internal security are. On the other hand, the Government claims that the state is obliged to protect its right to existence. The Government also claims that the second paragraph of Article 10a of the AlA-2 is intended to regulate circumstances wherein the state is no longer able to fulfil its obligations. From the mentioned claims of the Government it follows that the second paragraph of Article 10a of the AlA-2 also regulates circumstances in which the existence of the state is threatened and weighty reasons are demonstrated that justify the conclusion that there exists a real risk that due to changed circumstances in the field of migration the inhabitants of the Republic of Slovenia will be exposed to inhuman treatment.
 
58. The Constitution does not allow for the interpretation that the second paragraph of Article 10a of the AlA-2 regulates circumstances in which the existence of the state is threatened and weighty reasons are demonstrated that justify the conclusion that there exists a real risk that due to changed circumstances in the field of migration the inhabitants of the Republic of Slovenia will be exposed to inhuman treatment (a state of emergency). The circumstances in which the state would no longer be able to effectively ensure public order or internal security, as a result of which the existence of the state would be threatened, are regulated by Article 92 of the Constitution.[71] The Constitution enables the legislature to declare a state of emergency whenever there exists a great and general danger. Not even application of the principle of proportionality can lead to a different conclusion, i.e. the principle on which the decision that a special legal regime will be introduced must be based.
 
59. Also the established methods of interpretation of Article 10a of the AlA-2 do not support such an understanding. The legislature defined the situation in which the introduction of the special legal regime is admissible with the concepts “threat to public order,” “threatened internal security,” “difficulty in the functioning of the central institutions of the state,” and “difficulty in ensuring the functioning of the vital functions of the state,” which encompass a very broad set of different factual situations in society. Thereby, the legislature determined the circumstances in which the introduction of the special legal regime is admissible in a conceptually open manner. Since it follows from the statutory text (see Paragraph 56 of the reasoning) that the introduction of the special legal regime is admissible already when the functioning of the most important state authorities could be rendered difficult as a result of changed circumstances in the field of migration and even in a situation wherein negative consequences of changes in the field of migration have not even occurred yet, it is not possible to concur, not even on the statutory level, that Article 10a of the AlA-2 addresses a situation in which the existence of the state is threatened and the inhabitants of the Republic of Slovenia are exposed to inhuman treatment as a result of changed circumstances in the field of migration.
 
60. The Constitution regulates the limitation of human rights and fundamental freedoms in ordinary circumstances (which are not a state of emergency) in the third paragraph of Article 15 of the Constitution. The temporary suspension and restriction of rights during a war and a state of emergency are regulated by Article 16 of the Constitution. Hence, under the Constitution, a limitation of human rights can only be assessed in an ordinary situation (the third paragraph of Article 15 of the Constitution) and during a war or state of emergency (Article 16 of the Constitution). There is no third option (tertium non datur). From Paragraphs 58 and 59 of the reasoning it follows that by Article 10a of the AlA-2 (changed circumstances in the field of migration) the legislature did not regulate the promulgation of a state of emergency. This means that the Constitutional Court must assess the challenged statutory regulation in conformity with the criteria of constitutional case law that apply in an ordinary situation (i.e. when there is no state of emergency).
 
61. The legislature has the duty to regulate the procedure that enables effective exercise of the right determined by Article 18 of the Constitution. The regulation determined by the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2 does not ensure aliens who submit an application for international protection during a time when the special legal regime is in force access to a fair and effective procedure in either a neighbouring EU Member State or the Republic of Slovenia by which that individual will be ensured a substantive assessment that concludes that the transfer cannot cause an actual risk that the person concerned will be treated in an inhuman or degrading manner (Paragraph 49 of the reasoning). Furthermore, for aliens who claim that due to their individual circumstances the neighbouring EU Member State is not a safe third country, the challenged two provisions limit the types and number of circumstances by which the mentioned aliens could challenge the presumption that the neighbouring EU Member State is safe (Paragraph 48 of the reasoning). Such regulation does not allow effective exercise of the right determined by Article 18 of the Constitution. Therefore, the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2 interfere with the right determined by Article 18 of the Constitution.
 
62. From the established constitutional case law[72] and the case law of the ECtHR[73] and the CJEU[74] it follows that the right determined by Article 18 of the Constitution cannot be limited. Interferences therewith are inadmissible.[75] Therefore, the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2 are inconsistent with Article 18 of the Constitution and the Constitutional Court abrogated them.
 
63. Since the Constitutional Court abrogated the second sentence of the second paragraph and the third paragraph of Article 10b of the AlA-2, the legal basis for issuing an order rejecting a statement of intention to submit an application for international protection no longer exists. Consequently, the two provisions that regulate the legal remedy against the rejecting order cannot be applied. Therefore, the Constitutional Court also abrogated the third and fourth sentences of Article 10b of the AlA-2.
 
64. On the basis of the third paragraph of Article 3a of the Constitution, the Constitutional Court is obliged to ensure the full effectiveness of EU law also in procedures to review constitutionality. The concept of public order as justification for denying fundamental freedoms must be understood narrowly such that the scope thereof cannot be determined unilaterally by each Member State without any control by EU institutions.[76] Since the challenged provisions of the AlA-2 did not concern the fulfilment of obligations under EU law, their abrogation due to the established unconstitutionality cannot affect the effective implementation of EU law. Therefore, the decision of the Constitutional Court does not depend on whether the allegation of the Government – i.e. that on the basis of Article 72 of the TFEU the state has the right to depart from secondary EU legislation – is well-founded. The same applies to the second paragraph of Article 4 of the Treaty on European Union (consolidated version, OJ C 202, 7 June 2016 – hereinafter referred to as the TEU).[77]
 
65. Since the Constitutional Court established that the second, third, and fourth sentences of the second paragraph and the third paragraph of Article 10b of the AlA-2 are inconsistent with Article 18 of the Constitution, it did not assess the other allegations of the applicant.
 
 
C
 
66. The Constitutional Court adopted this Decision on the basis of Article 43 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12) and the fifth paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS Nos. 86/07, 54/10, 56/11, and 70/17), composed of: Dr Rajko Knez, President, and Judges Dr Matej Accetto, Dr Dunja Jadek Pensa, Dr.Dr. Klemen Jaklič, Dr Etelka Korpič – Horvat, Dr Špelca Mežnar, Dr Marijan Pavčnik, Marko Šorli, and Dr Katja Šugman Stubbs. The Decision was adopted by eight votes against one. Judge Jaklič voted against and submitted a dissenting opinion. Judges Accetto, Jadek Pensa, Jaklič, Knez, and Mežnar submitted concurring opinions.
 
 
 
Dr Rajko Knez
President

[1] Cf. the CJEU Judgment in Khadija Jafari and Zainab Jafari, C-646/16, dated 26 July 2017, Para. 95 of the reasoning.
[2] In the areas in which the EU has shared competence with other Member States, both the EU and the Member States may legislate and adopt legally binding acts. The Member States exercise their competence to the extent that the EU does not exercise its competence (the second paragraph of Article 2 of the TFEU). When the EU adopts measures in a certain field, Member States may no longer exercise their competence (V. Trstenjak, M. Brkan, Pravo EU, Ustavno, procesno in gospodarsko pravo EU [EU Law: The Constitutional, Procedural, and Commercial Law of the EU]), GV Založba, Ljubljana 2012, pp. 214–215.
[3] See Decision of the Constitutional Court No. U-I-146/12, dated 14 November 2013 (Official Gazette RS, No. 107/13, and OdlUS XX, 10), Para. 32 of the reasoning.
[4] The third paragraph of Article 3a of the Constitution determines: "Legal acts and decisions adopted within international organisations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organisations."
[5] The first and second paragraphs of Article 3a of the Constitution determine the procedural and substantive conditions for transferring the exercise of part of its sovereign rights to an international organisation (M. Avbelj, Slovensko ustavno pravo v odnosu do prava EU [Slovene Constitutional Law in Relation to EU Law], in: I. Kaučič (Ed.), Pomen ustavnosti in ustavna demokracija [The Importance of Constitutionality and Constitutional Democracy], a collection of papers entitled Dvajset let Ustave Republike Slovenije [Twenty Years of the Constitution of the Republic of Slovenia], Ustavno sodišče Republike Slovenije, Ljubljana 2012, p. 346). The first paragraph of Article 3a of the Constitution constitutionally enabled the Republic of Slovenia to transfer the exercise of part of its sovereign rights to international organisations, primarily to the EU, and thereby at least partially denies the Constitution the power it was attributed in a classical étatist spirit when adopted (M. Cerar in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije, Dopolnitev – A [Commentary on the Constitution of the Republic of Slovenia, Supplement – A], Fakulteta za državne in evropske študije, Ljubljana 2011, p. 74).
[6] See the CJEU Judgments in Åklagaren v. Hans Åkerberg Fransson, C‑617/10, dated 26 February 2013, Para. 19 of the reasoning; Cruciano Siragusa v. Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo, C‑206/13, dated 6. March 2014, Para. 20 of the reasoning; and in the joined cases Eurosaneamientos and Others v. ArcelorMittal Zaragoza SA and Francesc de Bolós Pi v. Urbaser SA, C‑532/15 and C‑538/15, dated 8 December 2016, Para. 52 of the reasoning.
[7] See the CJEU Judgment in Cruciano Siragusa v. Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo, Para. 22 of the reasoning.
[8] See the CJEU Judgment in Víctor Manuel Julian Hernández and Others v. Reino de España (Subdelegación del Gobierno de España en Alicante) and Others, C-198/13, dated 10 July 2014, Para. 36 of the reasoning.
[9] Cf. the CJEU Judgments in Daniele Annibaldi v. Sindaco del Comune di Guidonia and Presidente Regione Lazio, C-309/96, dated 18 December 1997, Paras. 21 through 23 of the reasoning; Yoshikazu Iida v. Stadt Ulm, C-40/11, dated 8 November 2012, Para. 79 of the reasoning; and Cruciano Siragusa v. Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo, Para. 25 of the reasoning.
[10] See the CJEU Judgment in Åklagaren v. Hans Åkerberg Fransson, Para. 19 of the reasoning.
[11] See the CJEU Judgments in Stefano Melloni v. Ministerio Fiscal, C-399/11, dated 26 February 2013, Para. 63 of the reasoning; and Åklagaren v. Hans Åkerberg Fransson, Para. 29 of the reasoning.
[12] From the second paragraph of Article 33 of the Geneva Convention it follows that the benefit of the right determined by the first paragraph of Article 33 of the Geneva Convention may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
[13] See Decisions of the Constitutional Court No. Up-78/00, dated 29 June 2000 (Official Gazette RS, No. 66/2000, and OdlUS IX, 295); No. U-I-238/06, dated 7 December 2006 (Official Gazette RS, No. 134/06, and OdlUS XV, 83); and No. Up-763/09, dated 17 September 2009 (Official Gazette RS, No. 80/09).
[14] See Decision of the Constitutional Court No. U-I-155/11, dated 18 December 2013 (Official Gazette RS, No. 114/13, and OdlUS XX, 12), Para. 11 of the reasoning.
[15] See the CJEU Judgment in the joined cases N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, dated 21 December 2011, Para. 75 of the reasoning.
[16] See the CJEU Judgment in Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie, C-465/07, dated 17 February 2009, Para. 28 of the reasoning.
[17] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 67 of the reasoning; Abubacarr Jawo v. Bundesrepublik Deutschland, C-163/17, dated 19 March 2019, Para. 91 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, C-297/17, C-318/17, C-319/17, and C-438/17, dated 19 March 2019, Para. 89 of the reasoning.
[18] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 69 of the reasoning; and Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 78 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 87 of the reasoning.
[19] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 68 of the reasoning; and Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie, Para. 28. of the reasoning; and Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v. Moussa Abdida, C-562/13, dated 18 December 2014, Para. 47 of the reasoning.
[20] The ECtHR Judgments in Vilvarajah and Others v. the United Kingdom, dated 30 October 1991, Para. 102 of the reasoning; and Chahal v. the United Kingdom, dated 15 November 1996, Para. 73 of the reasoning.
[21] See the ECtHR Judgment in Soering v. the United Kingdom, dated 7 July 1989, Para. 91 of the reasoning.
[22] See Decision of the Constitutional Court No. U-I-155/11, Para. 22 of the reasoning; and the ECtHR Judgments in M. S. S. v. Belgium and Greece, dated 21 January 2011, Para. 286 of the reasoning; J. K. and Others v. Sweden, dated 23 August 2016, Para. 78 of the reasoning; and Ilias and Ahmed v. Hungary, Para. 113 of the reasoning.
[23] See Decision of the Constitutional Court No. U-I-155/11, Para. 22 of the reasoning.
[24] See Decisions of the Constitutional Court No. U-I-155/11, Para. 23 of the reasoning; and No. U-I-189/14, Up-663/14, dated 15 October 2015 (Official Gazette RS, No. 82/15), Para. 26 of the reasoning.
[25] See Decisions of the Constitutional Court No. Up-763/09, Para. 7 of the reasoning; and No. U-I-189/14, Up-663/14, Para. 26 of the reasoning. The procedural standards regarding the procedure for deciding on the removal of an individual from the state have also been developed in the case law of the ECtHR (see the Judgments in Vilvarajah and Others [v. the United Kingdom], Jabari v. Turkey, dated 11 July 2000, Bahaddar v. the Netherlands, dated 19 February 1998, and Salah Sheekh v. the Netherlands, dated 11 January 2007).
[26] See Decision of the Constitutional Court No. U-I-155/11, Para. 22 of the reasoning.
[27] See Decision of the Constitutional Court No. U-I-292/09, Up-1427/09, dated 20 October 2011 (Official Gazette RS, No. 98/11, and OdlUS XIX, 27), Para. 14 of the reasoning.
[28] See Decision of the Constitutional Court No. U-I-155/11, Para. 24 of the reasoning.
[29] See the ECtHR Judgment in Amuur v. France, dated 25 June 1996, Para. 48 of the reasoning.
[30] By signing a treaty, a state commits to fulfilling the obligations thereof in good faith. Therefore, the fact that a state is a signatory to a treaty can represent a basis for trusting that the third country at issue will act in conformity with its international obligations (H. Battjes, European Asylum Law and International Law, Martinus Njihoff Publishers, Lieden/Boston 2006, p. 413).
[31] See Decision of the Constitutional Court No. U-I-155/11, Paras. 23–24 of the reasoning. Cf. the CJEU Judgment in the joined cases N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Para. 102 of the reasoning. Similar criteria for the determination of a safe third country have also been adopted by the German Federal Constitutional Court (Judgment dated 14 May 1996, BVerfGE 94, 49). Cf. G. S. Goodwin-Gil and J. McAdams, The Refugee in International Law, 3rd Edition, Oxford University Press, Oxford 2007, pp. 359–396; H. Battjes, op. cit., pp. 397–419; and S. H. Legomsky, Legal and Protection Policy Research Series, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection, UNHCR, Department of International Protection, Geneva 2003, pp. 50–79.
[32] See the CJEU Judgment in the joined cases N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Para. 99 of the reasoning; and the ECtHR Judgment in M. S. S. v. Belgium and Greece, Paras. 342 and 345 of the reasoning.
[33] Cf. the ECtHR Judgment in Tarakhel v. Switzerland, dated 4 November 2014, Para. 102 of the reasoning.
[34] See the ECtHR Judgments in Kudla v. Poland, dated 26 October 2000, Para. 91 of the reasoning; M. S. S. v. Belgium and Greece, Para. 219 of the reasoning.
[35] See the ECtHR Judgment in N. v. the United Kingdom, dated 27 May 2008, Para. 29 of the reasoning.
[36] See the ECtHR Judgment in M. S. S. v. Belgium and Greece, Para. 253 of the reasoning.
[37] See the ECtHR Judgments in D. v. the United Kingdom, dated 2 May 1997, Para. 49 of the reasoning; and Bensaid v. the United Kingdom, dated 6 February 2001, Paras. 34 and 35 of the reasoning.
[38] See the ECtHR Judgments in Ahmed v. Austria, dated 17 December 1996, Para. 43 of the reasoning; D. v. the United Kingdom, Para. 50 of the reasoning; and Bensaid v. the United Kingdom, Para. 35 of the reasoning.
[39] See the ECtHR Judgments in M. S. S. v. Belgium and Greece, Para. 251 of the reasoning; Oršus and Others v. Croatia, dated 16 March 2010, Para. 147; I. G. and Others v. Slovakia, dated 13 November 2012, Para. 123; and Tarakhel v. Switzerland, para. 99. of the reasoning.
[40] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 65 of the reasoning; A. S. v. Republic of Slovenia, C-490/16, dated 26 July 2017, Para 41 of the reasoning; and Khadija Jafari and Zainab Jafari, Para. 101 of the reasoning.
[41] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 75 of the reasoning; Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 88 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 90 of the reasoning.
[42] See the CJEU Judgments in Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 91 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 89 of the reasoning.
[43] See the CJEU Judgments in Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 92 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 90 of the reasoning.
[44] See the CJEU Judgments in Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 93 of the reasoning; and in the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 91 of the reasoning.
[45] See the CJEU Judgments in Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 97 of the reasoning.
[46] The competent authority has the duty to assess those reasons for the voidability of the presumption of the safety of an EU Member State that the individual concerned claims in the procedure. The scope in which the relevant facts and information are assessed hence primarily depends on the allegations and claims of the individual. However, the competent authority must also by itself collect all necessary data and it is not limited to merely the allegations or the adduced evidence (cf. Decision of the Constitutional Court No. U-I-292/09, Up-1427/09, Para. 18 of the reasoning.
[47] See Decision of the Constitutional Court No. U-I-155/11, Para. 23 of the reasoning.
[48] Cf. H. Battjes, op. cit., pp. 402–403, and S. H. Legomsky, op. cit., pp. 53–55 and 89, and G. S. Goodwin-Gil and J. McAdams, op. cit., p. 395. Cf. also the second paragraph of Article 31 and the third paragraph of Article 32 of the Geneva Convention.
[49] The fourth paragraph of Article 38 of the Procedures Directive II determines that where the third country does not permit the applicant to enter its territory, Member States must ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. Article 60 of the IPA-1 determines that in the event a safe third country or a safe European third country denies the applicant entry into its territory, the competent authority must examine the application for international protection.
[50] In conformity with Article 36 of the IPA-1, it is not admissible to remove from the territory of the Republic of Slovenia a person who expresses the intention to submit an application for international protection until the application is decided on. Article 35 of the IPA-1 determines that a person who expresses the intention to submit an application for international protection in the Republic of Slovenia and who illegally entered or illegally extended his or her stay in the Republic of Slovenia must submit the application for international protection in the shortest time possible. Following the preliminary procedure determined by Article 42 of the IPA-1, the person must submit before a competent body a statement of the intention to file an application for international protection. The procedure for granting international protection formally begins by submitting an application with the competent authority (the first and second paragraphs of Article 44 of the IPA-1). In conformity with the first paragraph of Article 41 of the IPA-1, in the procedure for granting international protection it is assessed whether an applicant fulfils the conditions to be granted international protection in the Republic of Slovenia. Expressing the intention to submit an application for international protection on the basis of the IPA-1 does not entail filing an independent application that the [competent] authority would decide on by an administrative act, but is merely a phase in the procedure for granting international protection, which continues with the phase of filing an application for international protection and the procedure for deciding on the application.
[51] An alien means a person who is not a citizen of the Republic of Slovenia (the first indent of Article 2 of the AlA-2). An alien means a person as defined by the AlA-2, with the exception of EU citizens and persons under international protection (the fifteenth indent of Article 2 of the IPA-1).
[52] The seventh indent of Article 2 of the IPA-1 determines the following: “[C]ompetent authority" shall mean the ministry responsible for the interior, which conducts international protection procedures and takes decisions therein pursuant to [the IPA-1].”
[53] See Decisions of the Constitutional Court No. U-I-155/11, Para. 31 of the reasoning; and No. U-I-189/14, Up-663/14, Para. 23 of the reasoning.
[54] See Decision of the Constitutional Court No. U-I-155/11, Para. 22 of the reasoning.
[55] These are the Republic of Croatia, the Republic of Austria, the Italian Republic, and Hungary.
[56] See the CJEU Judgment in the joined cases N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Para. 78 of the reasoning.
[57] Ibidem, Para. 80 of the reasoning.
[58] The IPA-1 regulates the safe third country concept and the safe European third country concept. It also regulates a special procedure for declaring a safe third country and a safe European third country. In conformity with the second paragraph of Article 54 of the IPA-1, the Government designates a safe third country with due regard for the criteria referred to in the first paragraph of Article 54 of the IPA-1. The Government designates a safe European third country with due regard for the criteria referred to in the first paragraph of Article 57 of the IPA-1 (the first paragraph of Article 57 of the IPA-1). The Government must notify the European Commission of the declaration of a country as a safe third country or a safe European third country (the third paragraph of Article 54 and the third paragraph of Article 57 of the IPA-1).
[59] When introducing the safe third country and the safe European third country concepts, the legislature regulated the position of an applicant for international protection whose entry into the territory of such country would be refused following the rejection of the application for international protection on the basis of the second paragraph of Article 55 or the second paragraph of Article 58 of the IPA-1. In such an instance, the competent authority must abrogate the order rejecting the application for international protection and consider the application by itself (Article 60 of the IPA-1).
[60] See the ECtHR Judgments in Selmouni v. France, dated 28 July 1999, Para. 95 of the reasoning; Gäfgen v. Germany, dated 1 June 2010, Para. 87 of the reasoning; and Bouyid v. Belgium, dated 28 September 2015, Para. 81 of the reasoning.
[61] Cf. the ECtHR Judgment in Khlaifia and Others v. Italy, dated 15 December 2016, Para. 184 of the reasoning.
[62] Cf. ibidem, Para. 185 of the reasoning.
[63] Article 10a of the AlA-2 determines the following:
“(1) The ministry responsible for the interior shall regularly monitor the migration situation, in particular on the basis of the information gathered by national authorities, other EU Member States, EU institutions, and other relevant international and intergovernmental organisations.
(2) If the ministry responsible for the interior assesses, on the basis of the information gathered by the authorities and institutions referred to in the preceding paragraph, that the changed circumstances in the field of migration in the Republic of Slovenia might endanger, or has already endangered, the public order or internal security of the Republic of Slovenia, and thus possibly hamper the functioning of its central institutions and the provision of its vital functions, it shall propose that the Government of the Republic of Slovenia propose that the National Assembly of the Republic of Slovenia decide, taking into account the proportionality principle, on the application of Article 10b of this Act for no longer than six months, and determine the area where this measure is to be implemented. The National Assembly of the Republic of Slovenia shall adopt a decision thereon by a majority vote of all deputies. Following the same procedure, the National Assembly of the Republic of Slovenia may, on the proposal of the Government of the Republic of Slovenia, extend the application of Article 10b of this Act every six months if the reasons therefor still exist. Prior to the Government's consideration, the National Security Council shall deliver an opinion on the proposal to apply and extend the application of Article 10b of this Act.
(3) In the proposal referred to in the preceding paragraph, the ministry responsible for the interior shall prepare an assessment of the possible consequences of the changed circumstances in the field of migration as to their adverse effect on the public order and internal security of the Republic of Slovenia, which could possibly hamper the functioning of its central institutions and the provision of its vital functions. The assessment shall take into account the situation in the countries from which the aliens intend to enter or have entered the Republic of Slovenia and the migration situation in the region, the number of aliens staying illegally in the state and aliens with a decision granting permission to stay, the number of applicants for international protection and persons under international protection in the Republic of Slovenia, the accommodation and integration capacity of the Republic of Slovenia for all those categories of aliens, and the possibility of implementing the Act governing international protection, as well as any other factors that might adversely affect public order and internal security.
(4) The Government of the Republic of Slovenia shall provide a monthly report to the National Assembly on the implementation of Article 10b. As soon as the reasons referred to in the second paragraph of this Article cease to exist and the implementation of Article 10b of this Act is no longer necessary, the ministry responsible for the interior shall propose that the Government of the Republic of Slovenia propose that the National Assembly of the Republic of Slovenia decide on the early cessation of the application of Article 10b of this Act. The National Security Council shall submit an opinion on the proposal. The National Assembly of the Republic of Slovenia shall adopt a decision thereon by a majority vote of all deputies.
(5) The decision referred to in the preceding paragraph may also be proposed by at least ten deputies of the National Assembly of the Republic of Slovenia. The National Security Council shall submit an opinion on the proposal.
(6) The Government of the Republic of Slovenia shall notify the Secretary General of the Council of Europe, the Secretary General of the United Nations, the United Nations High Commissioner for Refugees and the European Commission of the grounds for the application of Article 10b of this Act, the application thereof, and the cessation of its application.”
[64] Article 72 of the TFEU determines the following: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.”
[65] See also the Draft Act Amending the Aliens Act, EPA 1703 – VII – urgent procedure (Gazette of the National Assembly dated 10 January 2017).
[66] Ibidem.
[67] See M. Pavčnik, Teorija prava, Prispevek k razumevanju prava [Theory of Law: Contribution to Understanding Law], 5th revised edition, Zbirka Pravna obzorja, Ljubljana 2017, p. 507.
[68] The national security system is composed of the defence system, the internal security system, and the system of protection from natural and other disasters (see the Resolution on the Strategy regarding the National Security of the Republic of Slovenia, Official Gazette RS, No. 27/10 – hereinafter referred to as the RSNS-1).
[69] See Point 5.1. of the RSNS-1.
[70] Cf. L. Pitamic, Naravno pravo in narava prava [Natural Law and the Nature of Law] (1956), in: L. Pitamic, Na robovih čiste teorije prava [On the Edges of the Pure Theory of Law] (Ed. M. Pavčnik), Slovenska akademija znanosti in umetnosti, Pravna fakulteta v Ljubljani, Ljubljana 2005, pp. 110–111.
[71] In conformity with the first paragraph of Article 92 of the Constitution, a state of emergency shall be declared whenever a great and general danger threatens the existence of the state.
[72] See Decisions of the Constitutional Court No. U-I-238/06, Para. 14 of the reasoning; No. U-I-292/09, Up-1427/09, Para. 18 of the reasoning; and No. U-I-189/14, Up-663/14, Para. 46 of the reasoning.
[73] See the ECtHR Judgments in M. S. S. v. Belgium and Greece, Para. 218 of the reasoning; and Chahal v. the United Kingdom, Para. 79 of the reasoning.
[74] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, Para. 69 of the reasoning; Abubacarr Jawo v. Bundesrepublik Deutschland, Para. 78 of the reasoning; and the joined cases Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik Deutschland v. Taus Magamadov, Para. 87 of the reasoning.
[75] See Decisions of the Constitutional Court No. U-I-238/06, Para. 14 of the reasoning; No. U-I-292/09, Up-1427/09, Para. 18 of the reasoning; and No. U-I-189/14, Up-663/14, Para. 46 of the reasoning.
[76] See the CJEU Judgments in Omega Spielhallen- und Automatenaufstellungs GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, C-36/02, dated 14 October 2004, Para. 30 of the reasoning; and Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, C-208/09, dated 22 October 2010, Para. 86 of the reasoning.
[77] The second paragraph of Article 4 of the TEU determines the following: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
U-I-59/17   
27 September 2019
 
 
 
Concurring Opinion of Judge Dr Matej Accetto regarding Decision No. U‑I‑59/17, dated 18 September 2019
 
 
 
1. In the present case I was able to vote in favour of both the decision and the reasoning without significant reservations. In this concurring opinion, I will first present the additional reasons for my vote and my own understanding of the decision, also in light of the expressed allegations regarding the motives of the majority when adopting the Decision at issue, due to which my opinion will also include a more general consideration of the role of separate opinions and the regulation thereof.
 
 
I As to the Decision
 
2. The motives of the Government and of the legislature, who conceptualised and adopted the challenged statutory regulation, are actually understandable: like numerous other states, the migrant crisis put Slovenia in fear of mass immigration that would surpass the housing and organisational capacities of state institutions and would perhaps even threaten the life of the residents of Slovenia from the perspective of housing and safety. The disputed statutory regulation was adopted in an effort to prevent this imagined worst-case scenario; this regulation attempted to establish a mechanism for coping with such mass immigration by which Slovenia would protect itself from the worst outcome.
 
3. However, according to the assessment of the Constitutional Court, as explained in the reasoning of the Decision, the challenged regulation goes against the fundamental commitments of the state relating to the right to international protection, including the right to a fair trial, the protection of human dignity, and the prohibition of torture and inhuman treatment, which follow from the non-refoulement principle protected by Article 18 of the Constitution and numerous international documents on human rights protection. These and other commitments concerning the protection of human rights are elevated to a constitutional level precisely because they are recognised as values of the most fundamental importance, which are to be given priority before the daily interests or goals of state authorities. In other words: these commitments are fully expressed precisely when ensuring the protection thereof is not completely unproblematic or even beneficial from the viewpoint of other commitments or state authorities. For instance, freedom of expression is important precisely when someone does not like the expressed thoughts; the inviolability of one’s dwelling is important precisely when the Police, for example, wish to search certain premises without an appropriate court decision. From the viewpoint of the functioning of state authorities, constitutional commitments and prohibitions are stressed as an important and visible expression of the limits of admissible conduct precisely in order for the holders of political power to not overstep these limits in certain circumstances, even if – in their view – with best intentions! I do not wish to claim that the Government or the legislature are not aware of the importance of human rights or that they wish to overstep the limits of their protection without reflection; however, this helps one understand why, when in doubt, the delineation and protection of these limits – in the concrete circumstances of an individual legislative or executive measure and in accordance with an appropriate procedure – is entrusted to the judiciary as an independent branch of power.
 
4. In my assessment, it is undoubtedly true that the statutory regulation in the case at issue overstepped these limits, both from the aspect of the Slovene constitutional regulation and international human rights law. Nevertheless, the present Decision does not convey the message that Slovenia must open its doors wide and generally issue residence permits to everyone who desires one. It does, however, convey the message that by means of the mentioned reasons and in the chosen way it is not possible to blatantly deny new arrivals or applicants the possibility of a fair procedure in which it is ascertained, in view of the specific positions of the individuals concerned, whether removal, expulsion, or removal to another state would in their case entail inadmissible conduct that is inconsistent with the non-refoulement principle.
 
5. To me, at least, the following argument is not convincing in this context: that proportionality is intrinsically embedded in the mechanism and that the entry into force of the special regime is in any case only possible when due to the untenable burdens on the functioning of state institutions and consequently on the well-being of the residents of Slovenia two absolute rights go against each other and that the protection of aliens from inhuman treatment can only be ensured by way allowing the residents of Slovenia to be inhumanly treated. Such a worst-case scenario appears so extreme to me already at the principled level that it clashes with the idea of the “ordinary” process of legislating, which is supposed to strive towards preventing extraordinary circumstances from arising in the first place, in which one would mull over declaring a state of emergency. Since the disputed regulation envisages the entry into force of the special regime also in the event the functioning of state institutions has not yet been affected, however – on the basis of an assessment of the situation in the proximity of Slovenia – there only exists the possibility that such circumstances may arise, as a result of which the functioning of the state’s vital functions or of its central institutions could be threatened, the mentioned argument is even less convincing, in my view.
 
 
II As to Separate Opinions in General
 
6. As in the final part of my opinion I will briefly respond to the already expressed and restated allegations as to the motive of the majority when deciding on the matter at issue, and in particular because in a full two years [at the Constitutional Court] I have already several times contemplated, independently of the circumstances of concrete cases, the advantages and disadvantages of the Slovene regulation governing the drafting of separate opinions, in the next part of my opinion I will first state some general considerations regarding the role and regulation of separate opinions.
 
7. From a comparative point of view, constitutional courts or the highest state courts have different regulations and judicial practices, and also the opinions of commentators are split as to their advantages or disadvantages, from both the aspect of the authority of judgments and the courts themselves and the aspect of ensuring the independence of judges, as well as from other aspects. There is no need to comprehensively analyse such positions, but a concise review of different positions outlined in a special report of the Venice Commission on separate opinions at constitutional courts, which was published last December, is useful,[1] and in my view it can serve as a relevant reference text for consideration of the nature and regulation of separate opinions.
 
8. After analysing the main aspects of the regulation of separate opinions, this report of the Venice Commission states six concrete recommendations,[2] with which I agree, of which the following two appear to me to be of key importance in the context of this debate. The first of the two – which on the list of recommendations is in fact second – (I translated all quotations into Slovene) reads as follows [in the original English text]:[3]
 
“The legitimacy of judicial decision-making will only be ensured by separate opinions that remain loyal to the court and its institutional role. Therefore, separate opinions should focus on explaining that the matter could be dealt with differently, perhaps, in a better way, but not that the solution chosen by the majority was of poor quality.”
 
9. The second one – which on the list of the Venice Commission is the fourth one – reads as follows:[4]
 
“It is important for the quality of judgments and for the collegiality within the court for the majority to be able to react and respond to a written separate opinion and to amend the findings or the reasoning of the majority, if necessary. Should the majority decide to change their reasoning in view of the separate opinion, the dissenting or concurring judge should then have the right to withdraw or change his or her dissenting or concurring opinion within a short period of time. This requires for the majority to obtain the dissent in writing before the final judgment is announced, sent to the participants or published.”
 
10. In this part of the report of the Venice Commission, two provisions of the Rules of Procedure of the German Federal Constitutional Court and of the Slovene Constitutional Court are added to illustrate the discourse on the right of the majority to a response; the former contains a provision regulating the right of a judge to request a revote or that the case be examined anew before a decision is annulled, while the latter is the provision of the third paragraph of Article 72 of the Rules of Procedure of the Constitutional Court: “Separate opinions are submitted to other Constitutional Court judges, who may comment on such within three days. A Constitutional Court judge who has submitted a separate opinion may reply to such comments within three days.” The report of the Venice Commission – and this will be the last quote from that text – then continues by illustrating the optimal regulations, with which I myself would also gladly concur on a principled level:[5]
 
“Ideally, both texts (the majority opinion and the separate opinion(s)) should be prepared at the same time (when the attempt to influence the majority opinion has finally failed), so that the separate opinion does not appear to be a type of “rebuke” to the majority or even to a particular judge-rapporteur, because of an alleged mistake they have made. It should rather be a parallel interpretation of a particular legal problem, usually concerning a conflict of values, for example why a minority would give preference to one constitutional value rather than another, preferred by the majority.”
 
11. As I have already said, I concur with all of the mentioned recommendations of the Venice Commission, also with that which states that the texts of both the decision and separate opinions should ideally be prepared at the same time and would thus already at the starting point confront different or opposing positions, similarly as they do at the Supreme Court of the United States, but I am aware that this would certainly lengthen the time for deciding on an individual case and would certainly require more comprehensive consideration of the adaptation of the regulation. Insofar as it is already relevant, here I also add my own assessment as to the starting question concerning the advantages and disadvantages of separate opinions: in my view, separate opinions are beneficial and welcome for both the functioning of the court and the development of the legal regulation, including those opinions that are critical of majority positions, in particular if the central point of the criticism is constructive and directed at the content of the reasoning, and not at other judges. Similarly as the Venice Commission, I myself am also of the opinion that it would be better if separate opinions fully abstained from expressing negative or disrespectful value judgments regarding the other judges or the majority decision, but I am also of the opinion that setting formal ethical rules would be a very difficult and thankless task and that in any event it would still be better to publish disputable separate opinions together with the majority decision than to allow the majority of judges to prevent the publication thereof. It is true, however, that perhaps in such instances the second recommendation of the Venice Commission quoted above would be even more important, namely that other judges should be able to respond to a concrete separate opinion.
 
12. The regulation in force at the Constitutional Court envisages, partly differently than the above-described ideal drafting of the majority decision and separate opinions, that first the final version of the majority decision is prepared, and then the judges can prepare – within a seven-day time limit, as a general rule – possible separate opinions, in which they present the arguments that they expressed during the consideration of the case and which dictated their decision. Hence, in general it holds true that, substantively, a separate opinion only contains that which has already been said at a session; however, in terms of its length, a written opinion is often longer than the positions that were orally explained at a session, therefore the regulation also envisages the possibility that other judges respond to a separate opinion when they consider such necessary. In this respect, the Slovene regulation contains both possibilities that were stated in the above-quoted report of the Venice Commission: in addition to the mentioned possibility of other judges submitting comments regarding a certain separate opinion[6] to which the author of the opinion can then reply, it also contains the possibility of a motion for a revote – which is similar to the German regulation – on the basis of which, if the motion is accepted, the case is decided on anew.[7] When a separate opinion leads to a motion for a revote, this can lead to individual votes changing, to adapting the reasoning of the decision, or even to drafting a different decision, and in conjunction therewith, also to the adaptation of the positions of individual judges. I myself have also already experienced such instances of revotes and of repeated consideration during my time at the Constitutional Court and in my opinion these instances confirm that separate opinions – the readers of which are inherently other Constitutional Court judges – are beneficial, even if due to such process an already drafted separate opinion becomes irrelevant and in the repeated decision-making the judge can substantially adapt the separate opinion or abandon it completely.
 
 
III The Reaction in the Case at Issue
 
13. In light of the above conclusions, in the final part of this opinion I will briefly respond to the allegations that Judge Jaklič initially expressed in the context of the announced concurring opinion before he submitted a motion for a revote in the case; more concretely, I will respond to those allegations from his initially drafted opinion by which he states that the majority decided “in a political and also in an intellectually malnourished manner, instead of in a legally and intellectually fair manner” and that the majority wished to avoid the essential substantive question, because then “the desired result, which is known in advance (‘but, does this mean that we will be unable to abrogate the Act?’), is no longer ensured.” When drafting the present opinion, I did not yet know whether this allegation will also be written in the same manner in the dissenting separate opinion that Judge Jaklič announced during the revote, but since in the short discussion during the repeated decision-making he announced that he would keep this allegation in his opinion, I think it is appropriate that I respond thereto.
 
14. As far as I understand this relatively cutting allegation, it means that the majority adopted its decision according to political motives beyond law, due to which it strove to adopt the decision that the challenged statutory provision be abrogated no matter what, irrespective of the fact that the legal arguments for such a decision were lame. To reinforce such a view, the initially drafted separate opinion included the quote of a statement allegedly made by one of the judges during the consideration of the case that allegedly proves such inclination of the majority. I admit that I do not remember exactly such statement being made during the consideration, and particularly not the inclination that, according to the mentioned claim, it allegedly demonstrated – i.e. that it was a statement expressing the inclination of the judge (or a representation of the inclination of all eight judges forming the majority) towards a certain politically opportune and (at least intellectually) unfair and legally unconvincing decision. The described characterisation in the (initially drafted) separate opinion of how the majority acted therefore seems erroneous to me and also not entirely compatible with the recommendations of the Venice Commission, which I described above and with which I myself also agree. In my assessment, this is true, although I am completely willing to believe that Judge Jaklič indeed remembers the statement he quoted to reinforce his allegation.
 
15. Let me explain: in almost any legal discussion of such kind there can sometimes appear a gap between the (legally conditioned) will and the (legally conditioned) power; for instance, in constitutional decision-making when one is confronted with the limits of the powers or the role of the judicial branch of power in light of the principle of the separation of powers, and also with the limits of the powers of the constitutional court in relation to the regular judiciary. If, for example, a complainant in his or her constitutional complaint claims that the regular courts erroneously decided in a certain case of his or hers, but they did not commit a violation of a certain human right or fundamental freedom, an individual judge, when analysing such a case, can perhaps even agree that the decision of the courts was not (entirely) correct, but the correctness of the decision is in and of itself not yet a question that concerns constitutionality or a part of the constitutional right to judicial protection. Therefore, the Constitutional Court, which is not merely another regular court instance, cannot assess whether the challenged judgment was correct from the perspective of substantive law.[8] Similarly, after analysing a certain statutory regulation it is possible to come to the conclusion that from the judicial point of view the regulation is perhaps not the best or unproblematic, but because of that not necessarily also unconstitutional, as it is the legislature that, within the admissible margin of discretion, chooses between different constitutionally admissible possibilities of statutory regulation. The fact that a judge draws attention to this gap or to the limitations within the framework of judicial review or questions it in the context of an open exchange of opinions at a non-public session of the court does not appear unusual or incorrect to me, and it is also not a special characteristic of our judicial reasoning.[9] In any event, in my view it does not mean that such a judge, when seeking the correct – in his or her assessment – decision purposely disregarded legal arguments and succumbed to political or any other non-legal motives; such (self-)questioning is also a part of legal substantiation or the argumentative path towards the decision that in the assessment of the judge at issue is dictated by all of the relevant circumstances of the concrete case.
 
16. To conclude: during consideration of the case at issue I myself did not notice any politically motivated result-oriented inclination, which by avoiding addressing challenging legal dilemmas would force [the judges] towards abrogating the challenged statutory regulation no matter what. As usual, I understood the – relatively numerous – discussions at the sessions as a joint search for the final decision and for the formulation of the argumentative path, both of which should be dictated by means of a legal assessment, and then during the first voting the formulated decision – at least the part concerning the operative provisions – was unanimously supported by all judges. For this reason, the described allegation in the initially drafted separate opinion of Judge Jaklič surprised me; and since the Judge announced that he would keep it also in his new separate opinion, I considered it appropriate that it does not remain without any response.
 
 
Dr Matej Accetto
        Judge
 
 

[1] See the European Commission for Democracy through Law (Venice Commission), Report on Separate Opinions of Constitutional Courts, Opinion No. 932/2018, CDL-AD(2018)030, Strasbourg, 17. December 2018 – concerning the overview of the positions as to the advantages and disadvantages of separate opinions, see in particular pp. 6–11.
[2] All six recommendations are included in the analysis of the report and summarised in the conclusion – see ibidem, p. 17. The first one states that separate opinions should be a right of judges and not a duty; the second one speaks of the nature of separate opinions (for more detail, see the text of the present opinion below); the third one states that separate opinions should always be the ultima ratio, which are only used after a judge did not succeed in affecting the majority decision in the discussion; the fourth one refers to the right of the majority to respond to a separate opinion (for more detail, see the text of the present opinion below); the fifth one mentions the possibility of special provisions of a code of conduct or ethics that would deal with separate opinions, but also the simultaneous need for even a [separate] opinion that breaches the code of conduct or ethics to be published regardless whether or not a procedure has been launched against the author thereof; while the sixth states that separate opinions should always be published – not only upon the request of the author – together with the majority decision.
[3] Ibidem.
[4] Ibidem.
[5] Ibidem, pp. 14–15.
[6] Last but not least, in that time they can also join the separate opinion and, in line with common practice, add a short note stating that they are joining.
[7] Article 68 of the Rules of Procedure of the Constitutional Court.
[8] See, e.g., Decision of the Constitutional Court No. Up-85/03, dated 17 December 2003 (Official Gazette RS, No. 133/03, and OdlUS XII, 115), Paras. 6 and 7 of the reasoning.
[9] For instance, in Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991), a case before the Supreme Court of the United States, Judge O’Conner, in her separate opinion, which was joined by two other judges, wrote the following in relation to the question of whether the action of an attorney who in the process of selecting the members of a jury used a peremptory challenge can be attributed to the state: “As much as we would like to eliminate completely from the courtroom the specter of racial discrimination, the Constitution does not sweep that broadly.” I myself also already wrote years ago about the issue of the possible gap or the two necessary sides of convincing legal argumentation – see M. Accetto, Will and Legal Power [Volja in pravna moč], IUS column, 2 August 2010, text accessible at: https://www.iusinfo.si/medijsko- sredisce/kolumne/57623 (accessed 27 September 2019), wherein – in addition to describing my own experience studying in the USA and practical experience gained in Great Britain – I added another case from the case law of lower American courts.
 
U-I-59/17           
3 October 2019
 
 
Concurring Opinion of Judge Dr Dunja Jadek Pensa regarding Decision No. U‑I‑59/17, dated 18 September 2019 
 
 
I concur with the Decision and most of the reasons of the decision of the majority. The same applies to the fundamental message of its conclusion, namely that the content of the second paragraph of Article 10a of the Aliens Act (Official Gazette RS, No. 1/18 – official consolidated text and 9/18 – corr. – hereinafter referred to as the AlA-2) does not justify that the challenged part of Article 10b of the AlA-2 is constitutionally admissible. But I can only concur to some extent with the reasons provided in that part. The decision-making process raised questions that led me to answers that are (partially) different than those provided in the mentioned part of the Decision. Allow me to explain.
 
 
I
 
The final part of the reasoning of the Decision focuses on the declaration of a state of emergency – which is regulated by Article 92 of the Constitution for an instance wherein a significant and general danger threatens the existence of the state. The reasons provided are that (1) the second paragraph of Article 10a of the AlA-2 does regulate the declaration of a state of emergency and does not address a situation wherein the existence of the state is threatened (Paragraphs 59 and 60 of the reasoning); and that (2) for the constitutional review it is important that “the temporary suspension and restriction of rights during a war and a state of emergency are regulated by Article 16 of the Constitution” and not by the third paragraph of Article 15 of the Constitution, which regulates “a limitation of human rights and fundamental freedoms in an ordinary situation” (Paragraph 60 of the reasoning). For this constitutional framework, also the following seems important to me.
 
 
II
 
Firstly, Article 16 of the Constitution contains two paragraphs; the first and second paragraphs of Article 16 of the Constitution (in simplified terms) address the declaration of war or a state of emergency as constitutionally (in)admissible grounds for restricting or suspending human rights or fundamental freedoms; while from the wording of the second paragraph it follows that the Constitution does not allow any extraordinary temporary suspension or restriction of some rights, which (inter alia) include the right determined by Article 18 of the Constitution.[1], [2] Secondly, I can deduce from the above that, according to the Constitution, this prohibition applies a fortiori in a situation wherein the reason for the statutory regulation that interferes with the right determined by Article 18 of the Constitution is the protection of public order and peace, but the degree to which these values are threatened from the aspect of safety does not reach the level of a state of emergency. This is precisely what is stressed in the Decision: the challenged regulation, which interferes with the right determined by Article 18 of the Constitution, protects public order and peace in the state, but in Article 10a of the AlA-2 the declaration of a state of emergency is not regulated, nor does this provision refer to a situation wherein the existence of the state is threatened.
 
Thirdly, in this context I find the express prohibition determined in the second paragraph of Article 16 of the Constitution important. The Constitution is an indivisible whole. Therefore, it cannot be important merely that the second paragraph of Article 16 of the Constitution is not a relevant basis for decision-making in the case at issue, because it is not the declaration of a state of emergency that it regulates. Nevertheless, [the Decision] should have focused on this paragraph.[3] But since it did not, I believe that one key constitutional dilemma remained unanswered: whether this constitutional prohibition perhaps excludes the admissibility of an interference with the right determined by Article 18 of the Constitution on grounds of the protection of public order and peace. If the Constitution prohibited it, the balancing of the “degree to which public order or safety are threatened or the degree to which the rights of persons who expressed the intention to apply for international protection are interfered with” (Paragraph 56 of the reasoning) would lose – I suppose – its constitutional basis.
 
Fourthly, even if we answered the question raised in the affirmative and it were accepted that the protection of public order and peace does not entail (in and of itself) constitutionally admissible grounds for an interference with the right determined by Article 18 of the Constitution, this answer would not be sufficient. It namely fails to answer the question of whether in the case at issue perhaps the first part of the third paragraph of Article 15 of the Constitution is relevant.[4] Why is that so?
 
The third paragraph of Article 15 of the Constitution is an explicitly written general limitation clause[5] that takes into account (inter alia) that the exercise of rights in the circumstances of a life situation must be limited by the exercise of the rights of others. This is the topic of the first part of the third paragraph of Article 15 of the Constitution, which reads as follows: “Human rights and fundamental freedoms shall be limited only by the rights of others [...].”[6] In such context, I believe that also the first sentence of the first paragraph of Article 5 of the Constitution is important, which binds the state to protect human rights and fundamental freedoms in its territory – in relation to all holders of rights.
 
Fifthly, the unavoidability of the mutual influence between the positions that a right (or rights) ensure(s) can in the circumstances of the case at hand also raise the issue of a collision of values of equal constitutional importance. Such positions are in life not excluded even when rights of an absolute nature are at issue[7] and the values protected thereby are inviolable in accordance with the Constitution.[8] A priori, not even the search for an answer to the question of what should form the concrete content of the obligation of the state as regards the protection of an absolute right in concrete circumstances is excluded. The Constitution is an indivisible whole. This is precisely why the positive obligations of the state in relation to an individual, which, for example, should prevent the possibility of inhuman treatment, cannot be considered without taking into consideration the spectrum of the state’s positive obligations to concurrently protect a value of equal constitutional importance also in relation to third persons. Such answers are sought on two levels. At the first level, the resolution of such dilemmas is attempted by determining the constitutional scope of the protection of the right, taking into account the concrete situation,[9], [10] with regard to which the core of the right that must never be affected is determined by means of categorical prohibitions.[11] The second level addresses the question of the possible admissibility of the state’s interference with rights of such nature due to its duty to concurrently protect a value of equal constitutional importance in relation to third persons.[12] In my opinion, constitutional answers to these questions must be sought in the first part of the third paragraph of Article 15 of the Constitution.
 
This process gives rise to many further questions of an ethical and legal nature, inter alia also to the fundamental dilemma regarding the limitations that are embedded in some human rights due to which protected values – e.g. the inviolability of one’s life when two situations that are both protected by the right to the inviolability of human life, which understandably belongs to both subjects, come into conflict – evade co-measurability, or it can become evident that they are not co-measurable in the circumstances of a concrete case. I will leave this and many other questions aside. In fact, the circumstances of the case at issue did not elicit in me these considerations, as is evident from my reasoning below.
 
 
III
 
By introducing the special legal regime in Article 10b of the AlA-2, the legislature protects two values: legal order and peace, and internal security. In view of its objective, I therefore understand the assessed measure as a measure designed to fulfil the positive obligations of the state relating to the maintenance of public order and peace and internal security. I believe that in this field of its functioning the state has numerous positive obligations and that in this field the state and its bodies have a broad margin of appreciation regarding assessment, evaluation, and organisation. In contrast to the negative aspects of rights, which as subjective rights protect individuals from active interferences by the state, the positive obligations of the state in the field of the protection of public order or peace and of ensuring internal security, which should enable everyone to exercise his or her rights, are not determined in advance.[13] How a state ensures these obligations, which are a condition for the protection of all human rights and fundamental freedoms in the territory of the Republic of Slovenia, which is what the Constitution ensures in the first sentence of the first paragraph of Article 5, falls within the field of its responsibility. In this complex, it should be understood that the state is responsible for everything and to every human being.[14] This is precisely why the selection of an individual measure that should contribute to the protection of public order and peace and internal security must not be inconsistent with the Constitution.
 
 
IV.
 
In the case at issue, it was necessary to answer the question of whether the selection of the measure that should contribute to the protection of public order and peace and internal security is in conformity with the right determined by Article 18 of the Constitution. In this assessment I proceeded from the regulation of the first sentence of the second paragraph and of the third paragraph of Article 10a of the AlA-2. This is where the conditions for adopting the decision of the National Assembly are determined and thus for the measures determined by Article 10b of the AlA-2 to be applied. Without this decision, the challenged part of the second paragraph of Article 10b of the AlA-2 remains a dead letter.
 
The essence of the first sentence of the second paragraph of Article 10a of the AlA-2 was to determine in advance on an abstract level a future situation that would justify the authorisation granted to the National Assembly to trigger, by a decision, the measure determined by Article 10b of the AlA-2. Of key importance for the decision of the National Assembly is anticipating a future threat and making an assessment of its (potential) effect on public order and peace and internal security in the state due to the arrival of displaced persons who express the intention to submit an application for international protection. However, when a future threat is anticipated, uncertainty is unavoidable. No matter how precise and diligent an analysis of the given data is, the shifting thereof into the future cannot be reliable. Thus, also the authorisation given to the National Assembly by Article 10a of the AlA-2 to adopt a decision that triggers the application of Article 10b of the AlA-2 is based on an uncertainty. On the other hand, the consequences of the measure determined by Article 10b of the AlA-2, which is triggered by a decision of the National Assembly referred to in Article 10b of the AlA-2, are completely determined. The positive obligations of the state that should ensure effective exercise of the right determined by Article 18 of the Constitution are diminished. Furthermore, the legislature allowed the special legal regime for aliens to be applied even in a situation wherein, according to assessments, there exists a mere possibility that the protected values could be jeopardised.
 
I can deduce the following from this characteristic of the regulation of the second paragraph of Article 10a of the AlA-2. The decision of the National Assembly is based on uncertainty as to anticipation of a future threat, the proportions thereof, and its potential effect on the situation in the state. Hence, it is also based on uncertainty as to whether the ability of the state to ensure public order and peace and internal security in its territory can be diminished to such an extent that the state would no longer be capable of fulfilling even its positive obligations in the field of protecting its residents from inhuman treatment. Nevertheless, observance of the principle of proportionality is concurrently prescribed, which inherently can only be integrated in a collision of known and co-measurable constitutionally protected values. I believe that the obligation to observe proportionality determined by Article 10a of the AlA-2 therefore lacks a constitutional basis. I doubt that such an authorisation to trigger the application of the challenged part of Article 10b of the AlA-2 conferred on the National Assembly, which interferes with the right determined by Article 18 of the Constitution, is compatible with this right.
 
 
  V
 
I concur that the right determined by Article 18 of the Constitution has a special place among the constitutionally protected values (Paragraph 50 of the reasoning). I add that Slovene theory draws attention thereto, on the basis of the wording of the second paragraph of Article 16 of the Constitution.[15] I concur that in the constitutional case law this right is attributed an absolute nature and that the challenged measure reduces the positive obligations of the state in the field of protection of this right. It thereby unavoidably negatively affects the possibility of its effective exercise. This is so despite the fact that there is no content in the first sentence of the second paragraph of Article 10a of the AlA-2, I believe, that calls for consideration of the question of whether due to a collision of values of equal constitutional importance in the case at issue perhaps the first part of the third paragraph of Article 15 of the Constitution is relevant. Therefore, I concur with the fundamental message of the conclusion of the reasoning of the Decision, i.e. that the second paragraph of Article 10a of the AlA-2 does not justify that the interference with the right determined by Article 18 of the Constitution regulated in the challenged part of Article 10b of the AlA-2 is admissible.
 
I think that it is not necessary to answer the difficult question of whether the regulation of Article 10a of the AlA-2 is perhaps also aimed at a situation wherein there exists a real threat that the residents of the Republic of Slovenia will be exposed to inhuman treatment due to the changed circumstances in the field of migration (cf. Paragraph 59 of the reasoning). Even if it is perhaps also aimed at such a situation, I doubt that merely because of that it could compatible with the right determined by Article 18 of the Constitution.
 
Conclusion. The reference to the positive obligations of the state in the field of ensuring public order and peace does not suffice to justify the constitutional admissibility of the measure at issue. Considering that the challenged regulation is inconsistent with the right determined by Article 18 of the Constitution, the statements that refer to Article 72 of the Treaty on the Functioning of the European Union (consolidated version, OJ C 202, 7 June 2016) lose their importance. Furthermore, the allegation that the challenged part of the second paragraph of Article 10b of the AlA-2 only departs from the secondary EU legislation is erroneous. Even if it holds true that the secondary legislation requires Member States to ensure individual assessment of whether the presumption of a safe country is rebuttable, and also regarding the obligation that persons who express the intention to submit an application for asylum be enabled to remain in the territory of the state until the right to judicial protection is exhausted, namely with respect to a decision on transfer (which follows the dismissal of an application for international protection), this cannot be decisive. What is of key importance is that these requirements stem from the positive obligations in the field of the protection of the right determined by Article 18 of the Constitution (see section B – III of the Decision). Merely because they are regulated by secondary EU legislation does not mean by any means that they are excluded from the field of protection of this right. The secondary legislation (and the International Protection Act, Official Gazette RS, No. 16/17 – official consolidated text) regulates these requirements precisely in order to ensure that exercise of this right is ensured in conformity with the positive obligations of the state in the field of the protection of the right to the prohibition of torture.
 
 
Dr Dunja Jadek Pensa
Judge
 
 
 

[1] Article 16 of the Constitution, entitled Temporary Suspension and Restriction of Rights, reads as follows:
“Human rights and fundamental freedoms provided by this Constitution may exceptionally be temporarily suspended or restricted during a war and state of emergency. Human rights and fundamental freedoms may be suspended or restricted only for the duration of the war or state of emergency, but only to the extent required by such circumstances and inasmuch as the measures adopted do not create inequality based solely on race, national origin, sex, language, religion, political, or other conviction, material standing, birth, education, social status, or any other personal circumstance.
The provision of the preceding paragraph does not allow any temporary suspension or restriction of the rights provided by Articles 17, 18, 21, 27, 28, 29, and 41.”
[2] L. Šturm in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 206. “The second paragraph of Article 16 of the Constitution determines an unconditional prohibition on the temporary suspension or restriction of the rights provided by Articles 17, 18, [...].”
[3] As regards the importance of the text of the Constitution for its interpretation, see, e.g. M. Tushnet, The United States: Eclecticism in Service of Pragmatism, in: J. Goldsworthy (Ed.), Interpreting Constitutions: A Comparative Study, Oxford University Press, Oxford 2006, p. 48.
[4] L. Šturm, op. cit., p. 206: “The second paragraph of Article 16 of the Constitution determines an unconditional prohibition on the temporary suspension or restriction of the rights provided by Articles 17, 18, [...]. Considering that the Constitution, except under the conditions determined by the third paragraph of Article 15, does not allow any restriction or abrogation of the listed constitutional rights, it establishes a hierarchy between constitutional rights in such manner.”
[5] As regards the importance of the limitation clause, which is included in the majority of modern catalogues of human rights and which follows (in simplified terms) from the fact that in certain instances rights must be limited, see M. Klatt and M. Meister, The Constitutional Structure of Proportionality, Oxford University Press, Oxford 2012, pp. 18 et seq.
[6] The third paragraph of Article 15 of the Constitution reads as follows: “Human rights and fundamental freedoms shall be limited only by the rights of others and in such cases as are provided by this Constitution.”
[7] Cf. in this respect A. Barak, Proportionality, Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, pp. 29 et seq.
[8] Cf. Judgment of the First Panel of the German Federal Constitutional Court No. 1 BvR 357/05, dated 15 February 2006.
[9] Ibidem.
[10] Cf. M. Klatt, M. Meister, The Constitutional Structure of Proportionality, Oxford University Press, Oxford 2012, pp. 39 et seq.
[11] Cf. M. Herdegen in: T. Maunz and G. Dürig, Grundgesetz- Kommentar, Vol. 1, C. H. Beck, Munich 2009, pp. 30 et seq.
[12] Cf. C. Bumke and A. Voßkuhle, German Constitutional Law, Introduction, Cases, and Principles, Oxford University Press, Oxford 2019, p. 100.
[13] Cf. Judgment of the First Panel of the German Federal Constitutional Court No. 1 BvR 357/05, dated 15 February 2006.
[14] This thought is derived from From the Conversations and Lessons of the Old Man Named Zosim [Iz pogovorov in naukov starca Zosima], F. M. Dostojevski, The Karamazovi Brothers [Bratje Karamazovi] (translation V. Levstik), second part, Vol. 6, Cankarjeva založba v Ljubljani, Ljubljana 1989, p. 142.
[15] L. Šturm, op. cit., p. 206.
 
Number: U-I-59/17
Date: 27 September 2019
 
 
DISSENTING OPINION OF JUDGE DR.DR. KLEMEN JAKLIČ REGARDING DECISION NO. U-I-59/17, DATED 18 SEPTEMBER 2019
 
  
As to the limits of the “Migration Act”
and the limits on the conduct of the Constitutional Court
in a democratic society
 
 
At the centre of the review of constitutionality at issue is the question of whether the legislature may, in certain special circumstances, deny aliens coming from a safe third country – a country that is a signatory to the prohibition of torture and inhuman treatment stemming from international, European, and constitutional national acts and that does not have systemic deficiencies in this field – detailed and comprehensive individual treatment as regards denial of their entry into a new safe country and of their stay in its territory.
 
It is utterly indisputable that in ordinary circumstances such cannot be done if an alien claims that in his or her individual instance there nonetheless exists a threat that in a country that is otherwise safe and to which he would be returned he or she would nevertheless be tortured or treated inhumanly, or that that country would return the alien to a state where such would allegedly occur. As soon as an alien claims that there exists such a threat and until a final decision regarding his or her claims is adopted, that person has, in ordinary circumstances, the right to enter the country of reception (i.e. the new safe country) and to stay there until the adoption of a final decision on his or her application.
 
However, in the case at issue, the Constitutional Court is not faced with the question of how to act in ordinary circumstances. On the contrary, the whole point of the reviewed amended articles of the Act at issue is to attempt to answer that question in a situation wherein special, entirely extraordinary circumstances arise. In Article 10a of the AlA-2, the legislature stipulated that it is for the National Assembly to decide, upon the proposal of the ministry [responsible for the interior] and the Government and by taking into account the principle of proportionality, whether the regime determined by Article 10b [of the same Act] (which prescribes the possibility that such applications of aliens who come from so-called safe countries, i.e. those which are signatories to the mentioned constitutional documents, are expeditiously rejected) should potentially apply. In accordance with the express provision of Article 10a, such assessment or balancing in accordance with the principle of proportionality as to whether to potentially apply the regime determined by Article 10b is only performed when a situation so very exceptional occurs wherein the functioning of the state’s vital functions or of its central institutions could (potentially) be threatened. And even in such circumstances, as already mentioned, Article 10a expressly requires that the National Assembly take into account the principle of proportionality when deciding whether to apply Article 10b.
 
It is completely indisputable that the Act at issue regulates an extraordinary, even exceptional situation wherein we, as the state, committed to protecting human rights would be faced with the thankless task of resolving a difficult dilemma – which of the contradicting sets of equally fundamental and equally “absolute” human rights to protect, as in such exceptional circumstances it becomes apparent that the state, whatever action it takes, will interfere with one or the other, or even with one and the same (sic!) “absolute” human right. Whoever maintains intellectual fairness must not turn a blind eye, like the majority of this Court, to the fact that such unusual circumstances can occur at a certain point in time – in view of the changed circumstances in the migration reality – and that the Act was intended to regulate precisely that in advance (the majority [of judges], conversely, attribute the Act untrue content, as if the purpose of Article 10b was to deny rights in an ordinary situation, sic!). Let us take a look at a hypothetical situation. In changed circumstances, it could someday happen, for instance, that from all the neighbouring countries, crowds of millions of people in need of help pour onto the Slovene border and into Slovene territory. Let us imagine the circumstances in which their temporary stay at the border and in Slovenia could be completely bearable, provided that such crowds would be appropriately distributed in the safe countries in proximity. In the event that Slovenia, in conformity with Article 10b, were not allowed under any condition to reject their applications for entry and stay, but would have to accept each and every one of them until a final decision is adopted, such could entail, under certain circumstances, that Slovenia would allow and thus also by itself cause torture and inhuman treatment of significant proportions, and such in circumstances in which it could have easily prevented this torture of significant proportions by applying Article 10b, both on the territory of Slovenia and on the territory of the neighbouring countries. It is possible to imagine a scenario in which during such a mass arrival of crowds, which we as humanity are obliged to take care of, Slovenia would run out of funds to a degree that would threaten the functioning of the central vital institutions and thus of the state as such. In the midst of winter, thousands of people, both aliens and citizens, would be dying and freezing. Since we would be obliged to unselfishly share the assets of society with such a radically increased number of people in order to save lives and to provide for other basic human needs, which otherwise is the right thing to do, it is a fact that the remainder of citizens and foreigners would be victims as well; first those from the lower social class, who would be the first to be left without the urgently necessary support of the national social system (the vital functions of the state would be incapacitated), and then those in hospitals, to whom it would no longer be possible to provide basic health care, which in ordinary circumstances would enable persons to regain their health easily, whereas then such health care would no longer be accessible and would amount to death, severe suffering, or a permanent deterioration of health. At least a major part of the population would also experience severe forms of hunger, which in accordance with international case law is likewise a form of torture and inhuman treatment. We can imagine numerous other situations wherein the commitment to accept [such crowds] and to provide them full procedural treatment in some manner of extraordinary circumstances would lead to mass interferences with the most fundamental absolute human rights – to mass violation of the prohibition of torture. In accordance with the established interpretation of European supranational and national constitutional courts, a number of forms of the non-fulfilment of the minimum conditions ensuring a life worthy of a human being fall within the definition of torture and inhuman treatment. The essence of exceptional scenarios lies in the fact that they expose the undeniable fact that, unfortunately, in life there also exist such “collisions” of two “absolute” and equally fundamental human rights, even of the same human right (sic!), where the state is faced with the thankless task of resolving the following dilemma: the inability to exclude torture or inhuman treatment in the event of the removal [of migrants], on the one hand, and, in the described circumstances, even significantly more severe torture and inhuman treatment of mass proportions, on the other. Whoever would claim that the thankless task of resolving this dilemma does not exist or cannot exist would not speak the truth and would not be acting in an intellectually fair manner and one would need to question the intention of that person.
 
Since such or similar exceptional situations are, naturally, possible, it is legitimate and necessary that also the legislature thinks of them in advance, as the body that is tasked with regulating the circumstances in a certain state, and that is even obliged, in this thankless task, to observe the principle of proportionality at least in the event of a collision of the same rights. This is precisely what the legislature expressly wrote in the statutory provision, as it prescribed in Article 10a that the National Assembly decide on the application of Article 10b in exceptional, extraordinary situations, upon the proposal of the ministry and the Government, “by observing the principle of proportionality.” If we observe the principle of proportionality, this provision perhaps tells us at least that once the applications are rejected and the crowds appropriately and systemically distributed among the safe countries in proximity such that mass torture and inhuman treatment would not occur – it would perhaps be consistent with the Constitution or even constitutionally necessary to adopt a decision, as the alternative, i.e. that by accepting people we cause mass inhuman treatment and torture or we know that that is what we will cause, is unacceptable precisely due to the prohibition of (even more severe and even) mass forms of torture or inhuman treatment. If this is so, the Act could perhaps be – due to the cleverly written condition of proportionality regarding the decision that the regime determined by Article 10b is to be applied – consistent with the Constitution. Such concurrently entails that the underlying reasons of the majority, which erroneously force the idea that we are assessing ordinary circumstances and erroneously presuppose that a violation of the absolute prohibition of torture can only occur in one direction and not in the other, are logically inconsistent and do not attempt to resolve the real dilemma that lies at the core of the issue and hence remains unresolved and even untouched.
 
After I persistently attempted to make the majority address the issue and resolve the described dilemma, the majority ultimately decided to circumvent the core of this issue in an unusual way. Instead of addressing the question of whether the law is unconstitutional despite the fact that in exceptional circumstances it envisages, as regards an unavoidable interference with “absolute” rights (which, as one can tell, are perhaps in the end really not so absolute – I am leaving this question open for now) that it is necessary, whether one likes it or not, to observe the principle of proportionality, the majority simply fabricated the concept that the assessed statutory provisions all of a sudden regulate encroaching rights in ordinary, not extraordinary circumstances (sic!). However, this “circumventing manoeuvre” is not valid and the majority dared to apply it despite the fact that it is clear not only to the legislature but to all Slovenes who followed the adoption of these special statutory provisions amid lively discussions that the purpose of the statutory amendments at issue was to regulate the situation in extraordinary circumstances, i.e. changed circumstances wherein the “vital functions of the state” and the functioning of the central institutions are or would be threatened, as expressly determined by the statutory diction. By such a forceful reinterpretation of the statutory amendments at issue, the wording thereof, as well as a reinterpretation of the completely known purpose, i.e. by claiming that it was meant to deny human rights in perfectly ordinary circumstances, the majority acted, in my opinion, unfairly in relation to the legislative branch of power. What motive led the majority to not only avoid the central intellectual challenge of responding to the thankless task of resolving the dilemma at the core of the assessed regulation, but also to change the purpose and the meaning of the statutory provision is something that I leave to the citizens of Slovenia – in the name of which the Court is supposed to adjudicate – to make a final assessment thereon. My assessment is that instead of addressing the core of the legal and intellectual dilemma, which is a difficult and thankless task, although it is decisive, the majority rather let itself confirm the “correct” position among the prestigious political battles concerning these statutory amendments that we witnessed. Thereby, whether one likes it or not, it decided in a political and also in an intellectually malnourished manner, instead of in a legally and intellectually fair manner. The eternal battle between the will and the mind.
 
Since the majority was unwilling to delve into the core of the issue and assess it (as follows from the above-described thankless task of resolving this dilemma, the result of a fair assessment would be anything but clear), also I myself did not have the possibility to comprehensively and in an intersubjective manner examine this legal and intellectual essence and to adopt a position thereon, an essence which now, unfortunately, has been swept under the rug. I knew of this dilemma from my exclusively academic profession before I assumed office as a Constitutional Court judge. I know that this is a first-class constitutional dilemma that also and in particular the highest court of every democratic state based on the Enlightenment idea is called on to resolve. Hence, as regards the core substantive question, my position in this separate opinion is on purpose not (yet) explained. Notwithstanding that, the underlying reasoning of the majority is so unacceptable to me and internally contradictory (with the argument that the prohibition of torture is absolute and that balancing is not allowed, the majority carried out precisely a balancing, namely such that in exceptional circumstances the majority made the decision to carry out torture of even greater proportions obligatory with constitutional power, whereby it violated its own underlying reasoning for the decision) that I could not vote in favour of a decision that is in its entirety based on such basis, nor could I vote in favour of the conclusion, which was based on the incorrect reinterpretation of Article 10a (i.e. that the regulation at issue concerns ordinary circumstances), that only Article 10b is unconstitutional. The essence is namely hidden in Article 10a and the Court did not wish to assess that, although it could have done so and, in my assessment, also should have done so.
 
The place where in my assessment there could nevertheless lie an unconstitutionality is the imprecision of Article 10a and, consequently, the unconstitutionality of Article 10b (however, we unfortunately did not decide to abrogate the two Articles on this consistent basis, with which I perhaps could have concurred). Even though it is clear that the purpose of the assessed statutory amendments is to regulate extraordinary and exceptional situations wherein the vital functions of the state are (or could be) threatened and, as a result, also the fundamental human rights in the territory where Slovenia is obliged to implement the observance thereof, the wording of the amended provisions could nonetheless be elaborated in more detail. In particular, due to the fact that the question concerns a possible interference with the most fundamental rights, it would perhaps be necessary, in accordance with the principle of predictability and precision, i.e. a requirement determined by Article 2 of the Constitution, to prescribe in more detail what, concretely, it means that at a certain point in time the vital functions of the state are (or could be) threatened, and how exactly such a situation differs from exceptional circumstances or war, which is in principle completely possible. The fact that the Constitution expressly only mentions exceptional circumstances, on the one hand, and ordinary state of affairs, on the other, but not any third, fourth, or fifth exceptional circumstances, naturally does not in any way prevent [the adoption of the position] that, as regards the relevant differences, exceptional circumstances on the ground should be considered differently than ordinary circumstances. The position that the Constitution only mentions ordinary and exceptional circumstances or war is the reason behind the view that by the assessed statutory amendments the legislature wished or had to regulate an ordinary situation (tertium non datur) is only another substantively empty formalism by which the majority attempted to avoid deciding on the presented substantive core of the dilemma; however, this is where the desired result, which is known in advance (“but, does this mean that we will be unable to abrogate the Act?”), is no longer ensured.
 
 
 
A P P E N D I X
 
I wrote the above dissenting opinion already when the first decision in the case at issue was drafted on 26 June 2019. A formal revote then followed – I changed my vote and voted against the decision, because the reasons in my own separate opinion convinced me that I disagree with the majority to the point that I cannot concur with the decision. So, in revoting, I voted against, for the reasons I described in the dissenting opinion above; therefore, I am leaving the separate opinion unchanged in its entirety.
 
Today, on 27 September 2019, I add thereto this “Appendix”, in which I act in accordance with the oath I took stating that I would act in accordance with my conscience and as an independent judge. Therefore I wish to inform the public that, following my decision to vote against the decision and the drafting of my dissenting opinion, there were inadmissible pressures on me to change the content of my separate opinion, and also complete untruths were stated ex post so that some of my colleagues would be cleared before the public of the criticism I expressed in my separate opinion. I am obliged to protect my judicial independence by publicly revealing such behaviour of some my colleagues, which is inadmissible in a democratic society.
 
The pressures exerted on me were even such that outside formal sessions of the Court different parts of my separate opinion were shown to me – i.e. my thoroughly and honestly substantiated positions and perceptions – and it was suggested that I change them! I rejected as fiercely as possible the suggestions that I change in any way the content of my separate opinion, because the conclusions and revelations contained therein are true and thoroughly substantiated, although they are unfavourable to the position of the majority. If necessary to protect my judicial independence, which is something I took an oath to do in front of the citizenry, I will also publicly speak of the details of this part of such pressure.
 
Moreover, after I rejected the pressure to change the content of my separate opinion in order to protect my judicial independence, the improprieties did not cease. Subsequently, as we formally reached a new decision (i.e. the revote mentioned above), Judge Accetto attempted to relativise the claims in my separate opinion by announcing that in his separate opinion, which he was only about to start drafting, he would polemicise against the allegation in my separate opinion that the approach in the decision-making was result-oriented. However, in doing so he stated a direct untruth. He claimed that none of the judges said the words that I quoted at the end of my separate opinion. I revealed therein that a part of the logic in the decision-making of some of the judges was that if we take into account the principle of proportionality when interpreting the challenged Article, which in “torture-torture” dilemmas is inherently unavoidable and which is also expressly required by the challenged Article, “such entails that we will be unable to abrogate the Act”, which was the “argument”, which dispelled any doubt as to which line of argumentation should have been chosen. Judge Accetto was opposed to this part of my separate opinion so that after the revote, in his separate opinion, which he did not submit before the revote, he would be able to relativise my claim regarding the decision-making and thus show before the public a different image of the Court’s decision-making (i.e. one that is not result-oriented) than it actually had been. However, his denial that such a claim had been made is untrue. It was the reporting judge who made the quoted statement and I also protested against that statement at the time, in the same way as I have already done a number of times when either the same judge or any of my other colleagues expressly acknowledged the result-oriented manner of decision-making of the current composition of the Constitutional Court. Namely, I have heard a number of times statements unacceptable to me, such as: “this is the right result, we must find out the easiest way to reach that decision.” Every time, including in the case at issue, I responded with criticism to such statements. In fact, both in legal theory and among constitutional law professionals, result-based decision-making is unanimously considered to be worthy of utter contempt, as it entails a violation of judicial independence and impartiality. A judge must always remain open as to the end result and must only follow the line of argumentation, whatever result such argumentation eventually leads to. The result becomes known only at the very end, when nothing but argumentation leads – or does not lead – you there. This is the only way the role of an independent and impartial judge is realised. It has happened too many times that the current composition of the Court acted oppositely, and sometimes individual judges – as in the case at issue – even added completely inappropriate express statements to such actions, which did nothing less than expressly acknowledge the result-oriented decision-making. All of the above is incompatible with the notion of independent and impartial constitutional adjudication as understood by the free democratic tradition of the West.
 
Judge Accetto hence felt the call to relativise in front of the public this part of my criticism by means of an untruth that he can include in his separate opinion (he is writing it after he has already read mine, whereas I cannot do the same) and thus create the impression among the public that everything was perfectly fine during decision-making and that no statements were made as to the result-oriented decision-making. Ideally, some of the other judges would then join his separate opinion in that part and the impression would be created in the public that Judge Jaklič stated an untruth. I allow the possibility that perhaps Judge Accetto did not hear the problematic statement during the session (although such a statement should have “awoken” every judge from an inattentive state), but his past conduct in a similar situation where admitting the truth was at issue does not support such a benign interpretation.
 
When decision-making in a very similarly politically charged case was at issue, namely in the Second Track of the [Divača–Koper] Railway Line case, where even the protagonists were the same and where the leaders of the then leading party in the Government – SMC – were strongly involved in the case at issue, Mr Vili Kovačič, as a participant in proceedings, requested that Judge Accetto be recused. He alleged that Judge Accetto cooperated with the political leaders of the SMC Party when drafting the Party’s programme. At the time of decision-making on his eventual recusal due to the appearance of impartiality, he expressly dismissed this claim, stating that he did not cooperate when the programme was being conceptualised and that hence there were no grounds for him to be recused. For this reason, my fellow Constitutional Court judges did not recuse Judge Accetto at that time.[1] But note well: Judge Accetto did not speak the truth at the time. And he knew he did not. He namely cooperated in the conceptualisation of the programme of the SMC Party, and very much so. He submitted relatively extensive and detailed written suggestions and considerations in the process of the conceptualisation of the Party’s programme. He sent them, inter alia, directly to Dr Brglez and Dr Cerar, and he also explained that formally he would not become a member of the Party, although he would remain a “silent supporter” (the quoted words are his own from these [written] exchanges). Since when deciding on his (non-)recusal I knew of his involvement in the conceptualisation of the programme, my conscience did not allow me to [not] vote in favour of his recusal – based on the untrue statement that Judge Accetto manifestly made when we voted on his (non-)recusal, namely that he was not involved in the conceptualisation of the programme – and I did not vote in the same way as the majority (i.e. to not recuse him), based on his untrue explanation. When I announced at the time that I would submit a dissenting opinion to his non-recusal (although I did not provide the reasons for such in the same detailed manner as I have done herein, I nevertheless indicated them in an abstract manner), there was a similar avalanche of pressure on me from some of my colleagues as is the case now, i.e. in the case at issue. At the time, I then abstained from drafting a separate opinion in order to calm down the judges, but I nonetheless maintained that my conscience did not allow me to vote in favour of non-recusal, because I was only able to vote in favour of recusal, and that is what I did.
 
Judge Accetto did not speak the truth then, he misled the Slovene public, and one of the effects of this untruth was that he participated in decision-making in a politically charged case on the basis of untrue explanations that he provided when his (non-)recusal was being decided on. This is a severe irregularity incompatible with the role of constitutional decision-making in a free democratic society. I am revealing it because a similar phenomenon just repeated itself. This same judge wishes, in order to protect the ostensible authority of the Court, and perhaps his own appearance in public, to relativise my true statement regarding the fact of how the reporting judge also in the case at issue, as she has also done a number of times before, accompanied the result-oriented decision-making of the Court with a statement that also verbally and expressly acknowledged such inappropriate decision-making. Due to the fact that such practice during the proceedings occurs repeatedly, as obviously at the time of Judge Accetto’s (non-)recusal it was not a one-off excess, it is crucial for the citizens to realise in what kind of composition the Court is adjudicating in Slovenia. A court of such composition oversteps the constitutional procedural limits in a free democratic society. My conscience and the oath I took require me to state that directly and without whitewashing it.
 
Finally, in order to protect my judicial independence, I should add that this same judge has agitated for limiting the possibility of submitting separate opinions. For instance, he proposed that the majority should have the possibility to submit replies to separate opinions, whereas the authors of separate opinions should not have the possibility to submit a rejoinder to such reply of the majority. The citizenry can also form their own opinion as to how “democratic” such a proposal is and regarding the spirit it reveals.
 
 
 
Dr.Dr. Klemen Jaklič
Judge
 
 

[1] Order No. U-I-191/17, dated 11 January 2018. Consequently, also Order No. U-I-1072/18, dated 13 September 2018.
U-I-59/17
3 October 2019
 
 
Concurring Opinion of Judge Dr Rajko Knez regarding Decision No. U-I-59/17, dated 18 September 2019
 
 
I Foreword
 
1. I voted in favour of the abrogation of the parts of Article 10b of the Aliens Act mentioned in the operative provisions.[1] In this concurring opinion, I expose in particular the dimension of European Union (hereinafter referred to as the EU) law and its rules on migration, of which I am indeed critical, and international rules, i.e. negative and positive obligations that the state cannot derogate from even in the event of circumstances threatening national security and public order. These dimensions guided me in understanding the constitutional provisions that represent the framework for the assessment of the challenged provisions. Furthermore, as to public opinion, I can imagine that the decision will be received with disapproval by a part of the public. This motivated me to provide additional explanations through the prism of the mentioned international obligations. The complex issue of displaced[2] persons and migrations also exceed the solutions of one sole EU Member State.
 
2. In fact, also within international alliances and integration processes states retain the competence to regulate questions that pertain to their sovereignty, in particular questions regarding national security and public order.[3] But in the pursuit of these objectives, the framework of internationally accepted obligations and of EU obligations limit the legislature. The Constitution limits it as well. Hence, the legislature is not completely free also when regulating the issue of national security. The statutory regulations, including the challenged Article 10b of the AlA-2, were proposed by the Government in an expedited procedure, arguing that in the event of changed migration circumstances the Republic of Slovenia could be faced with a situation that poses a threat to public order and national security. The Constitutional Court established that by the amendment to the Act, i.e. by the second, third, and fourth sentences of the second paragraph and by the third paragraph of Article 10b of the AlA-2, Article 18 of the Constitution was violated.[4] Therefore, the obvious question is whether it is appropriate to regulate the issue of the mass arrival[5] of displaced persons in some other way. Since the question of mass arrival, which is the ratio of the challenged Article 10b in conjunction with Article 10a of the AlA-2,[6] is a part of international and EU law rules, it is also necessary to consider the paths outside the frameworks of the legislative competences of an individual Member State. Or is the legal framework of the common European asylum policy[7] already now also appropriate for instances of the mass arrival of displaced persons to the borders (in particular the external borders of EU Member States), even when such situations “collide” with the objective of ensuring public safety? When answering these dilemmas I do not proceed merely from the rules of the common European asylum policy and the case law of both of the highest European courts, but also from the plans and proposals for the future regulation of this field.[8] In the proposed drafts changing the rules of the European asylum policy the deficiencies of the current system are namely reflected, in which also the legislature saw grounds for adopting the challenged provision of the AlA-2.
 
3. This is a dimension of EU and international rules from which also the decision stems; I myself attribute some greater importance to this dimension of these rules because what is at issue are not only aspects of what it is that international and EU law regulate and how much leeway they allow national regulations to have; the question is also what the nature of their regulations is and whether the regulations are effective, whether the states also have some other possibilities and procedures, not only measures at the national legislative level, and whether the international and European framework of rights and procedures in the event of the mass arrival of displaced persons and refugees is determined by either international rules and the rules of EU legal acts or by the case law of the highest European courts, i.e. the CJEU and the ECtHR. In Section II below, I will outline a position as to the effectiveness of EU law in the field of migration, under Section III I will elaborate on the reactions to its deficiencies and the currently known plans for the future regulation of European asylum policy in order to facilitate an understanding of a critical view of the current regulation. Under Section IV, which will be the central part of this opinion, I will focus on the reasons for the unconstitutionality of the challenged provision and I will apply international rules, EU rules, and the case law of European courts, while in Section V I will obiter dictum present my personal view on how to resolve the complex question of displacement, to which various reasons apply that do not cancel out each other.
 
 
II The Mass Arrival of Displaced Persons and the Effectiveness of EU Rules
 
4. There are various reasons for the mass migration of displaced persons to the borders of EU Member States. The Constitutional Court does not rule thereon, but they are important for understanding the problem. The amendment of the AlA-2 was initiated as a consequence of the mass arrival of displaced persons at the borders and territory of the Republic of Slovenia via the so-called Balkan Route, namely in circumstances where one EU Member State publicly announced that it was ready to accept displaced persons from crisis areas, and during that time the mass border crossings created issues for all Member States and non-Member States on their way to their final destinations.[9] Namely, every opening and closing of the border of one state can pose a threat to another state. In the international community, in which we should strive towards cooperative actions, mutual assistance, and courtesy, the unilateral actions of one state with consequences that appear in other states are the cause of actions of these other states that are also unilateral. The mass arrival of displaced persons poses issues in particular to those EU Member States with borders that constitute the external borders of the EU (in the event of such arrivals by sea and land).[10] The common European asylum policy namely primarily determines their responsibility[11] to ensure such treatment of individuals upon their entry into the EU that their fundamental human rights will not be violated. This is a question of law. The rules of the common European asylum policy also determine that, in accordance with the principle of solidarity, displaced persons are then accepted in all Member States. But this is no longer a mere question of law, but also of fact, and in this question also the values of an individual society and of the EU Member State at issue are reflected.[12] Even prior to the entry into force of the Dublin III Regulation, which is based on the solidarity and mutual trust of the Member States, [13] Directive 2001/55/ES determined this.[14] But this Directive was never used (!), despite the fact that EU Member States indeed faced the mass arrival of displaced persons.
 
5. The Directive regulates a system that is to be activated in the event of the mass arrival of displaced persons. It is activated by EU institutions, and Member States decide on its activation via a vote in the EU Council (the Council of Ministers).[15] The Directive is based – which is very important – on solidarity between the Member States and on balancing the efforts of the EU Member States when accepting refugees.[16] In other words, I believe that the EU does regulate the question of the mass arrival of displaced persons; this is the very same issue that is also addressed by Article 10b in conjunction with Article 10a of the AlA-2. However, it does so from another point of view because it does not proceed from the premise of the protection of public order and national security, but from the premise of the protection of refugees; it determines minimum standards that must also be fulfilled in the event of the mass arrival of displaced persons; it prohibits the return of persons (the non-refoulement principle), [and ensures] individual treatment and the observance of human rights; it does not envisage the possibility that displaced persons can be kept outside the territorial borders of the state, but it requires that these persons be allowed to enter the state and that the [asylum] procedure be carried out. It is hence based on the approach that humanitarian reasons overrule all others, i.e. that also other EU Member States must accept migrants,[17] etc.[18] The Directive requires – this is important to an understanding of the topic – individual treatment despite the fact that the pressure of mass arrivals exists. It envisages treatment in the territory of a Member State.[19] So, if there is a collision between the mass nature [of border crossings] and human rights, international rules do not allow exceptions in the sense that a departure from the fundamental postulates of the protection of human rights and fundamental freedoms is enabled in advance.
 
6. Another factor of key importance with respect to the mentioned Directive is the fact that the entire mechanism, including the mechanism of solidarity, is triggered by a decision of the European Council (hence, it is not a decision of an individual EU Member State or of a number of them in which mass arrivals are in fact happening), to which the European Commission attaches an appropriate motion. Hence, the question of when there is a mass arrival of displaced persons in a certain Member States is not a sovereign question to which that Member State would reply on its own, as this lies within the competence of EU institutions. Furthermore, the final decision rests with the EU Council, i.e. the institution in which the representatives of EU Member States harmonise the interests of Member States and confront them with the interests of the EU. This is in fact in conformity with the rule of the so-called balance of interests, which is the fundamental rule for the partition of powers between EU institutions (the European Commission represents the interests of the EU, the European Council represents the interests of the Member States, and the European Parliament the interests of European voters, with regard to which the European Commission has a monopoly on proposing measures to be adopted in legislative procedures). I believe that this starting point helps to understand the non-application of the Directive.
 
7. The decision to trigger the mechanism at issue due to the mass arrival of displaced persons hence depends on those who will have to accept them; the EU Member States decide thereon – all of them. But the majority consists of those states that do not have external borders on migration routes, where mass arrivals are most often encountered. In other words, if [Member States] do not respond to the summons of a Member State that it expects to have or already has problems with mass border crossings of displaced persons, such entails fewer obligations for the other Member States. Also the EU itself indirectly recognises such (because there exist tensions between Member States).[20] Also Directives that regulate the standards for accepting applicants for international protection and the standards and procedures in Member States regarding returning illegally residing citizens of third countries do not effectively resolve the question of the mass arrival of displaced persons.[21],[22] Directive 2013/33/EU requires individual treatment, the special treatment of vulnerable groups (minorities, children, the elderly, retirees, pregnant women, parents in one-parent families with children who are minors, mentally ill persons, abused persons, victims of human trafficking), legal protection and at least one instance of judicial protection, and legal assistance free of charge. In Article 18, Directive 2008/115/EC determines an exception for instances of a large number of displaced persons, as it envisages shorter terms for individual treatment, but not more than that.[23]
 
8. I am critical of the regulation for multiple reasons, but among them is not the reason that the regulation does not allow more and longer-lasting exceptions, similarly as the challenged provision of the AlA-2 allows. I am critical of the regulation because it has become apparent that it is not effective, it is not sustainable, and it causes different burdens on Member States, which the principled obligation of solidarity between Member States does not balance out. These are the reasons that are tightly connected with the reasons for the challenged regulation. I namely agree with the claim that the migration crisis (which reached its peak before the Act was adopted) has demonstrated numerous weaknesses, limitations, and deficiencies in its implementation in EU Member States, and in particular that the rules are not effective in the event of the mass arrival of refugees. Equally important is the realisation that there is a disproportionate burden on EU Member States with external borders and that there is no effective management mechanism that would lessen this burden and appropriately distribute it among all EU Member States. Consequently, there are (were) unsupervised arrivals and unlawful migration flows.[24] These circumstances are notoriously well known.
 
9. The Republic of Slovenia has always advocated the triggering of a mechanism on the EU level in the event of the mass arrival of displaced persons, but the European Commission, which, in accordance with the relevant Directive, acts as the proposer of the application of the mechanism at issue, did not opt for that possibility without providing reasons for such. In other words, the Directive that regulates precisely the question of mass arrivals remains unused and as such also ineffective. In fact, the solution is theoretical only on paper, but in reality this is not so. In such circumstances, it is possible to understand the desire of EU Member States to regulate situations involving mass arrivals by themselves. However, in doing so they collide, as I have stated above, with limitations. But understanding such a tendency does not also a priori entail its justification.
 
 
III Reactions to an EU asylum policy that is not sufficiently effective
 
10. Hence, the EU does not only regulate migration and asylum policy, procedures, and substantive rules, but also the central disputed element, which the disputed amendment to the AlA-2 regulates – i.e. the mass arrival of displaced persons. It regulates it, as described, ineffectively and I can concur with those arguments of the Government and of the legislature that refer to this criticism. We are hence facing a European problem and a European solution is determined, but it is ineffective. The question of the effectiveness of the rules of conduct of the state, when faced with the pressure of numerous refugees, is, without the following also a question of national security. What to do in such a situation when it is not disputable that the EU authorities that have competence to regulate the common European asylum policy do not react and when the system is ineffective? The founding Treaties envisage (judicial) procedures or a legal remedy, but in such case this does not entail disrespect for EU law (by either Member States or EU institutions). The system as such is simply not effective. The system has never been triggered. The European Parliament, as stated above, sees the reason in the tensions between the Member States. Also the system of solidarity between Member States does not function appropriately.[25] Hence, a Member State cannot trigger a procedure against “someone”. On the one hand, it is limited by a Directive that is ineffective, and, on the other, by primary regulations, including the Charter, and at the same time it does not have at its disposal a procedure by which it could require the more effective functioning of the system in the event of the mass arrival of displaced persons. The above-mentioned leads to the thought that a Member State would therefore have to find a way to change rules that are ineffective. This entails that they would have to trigger legislative procedures within EU institutions that would ultimately lead to the rules being changed. But I believe that in the period when the legislature adopted the AlA-2D it would not be appropriate to trigger such a procedure (insofar as it would be limited to only the common European asylum policy).[26]
 
11. Firstly, because an initiative to change the rules of the common European asylum policy had been ongoing at that time already. This procedure is in fact not yet complete. It envisages different treatment and procedures in the event of mass arrivals. It will remain an obligation of the EU Member State where a refugee first arrives (i.e. the first EU Member State in the territory of which the refugee enters, which is usually a state with an external Schengen border when the refugee arrives by land or sea). In the process of registering [displaced persons] the responsible Member State will have to identify those who represent a security risk or whose applications for international protection are unfounded at first sight, and then it will have to initiate transfer to an EU Member State with which there exists a genuine connection. This connection will be determined, provided that these rules are adopted, according to possible family ties, prior residency, schooling, etc. Insofar as such connections do not exist, a relatively automatic distribution of refugees will occur, namely in one of the four EU Member States that until that moment accepted the lowest number of refugees, and thus their fair share in participation in the acceptance of refugees will be ascertained. This percentage will be calculated according to a Member State’s gross national income and population, which will enable that the Member States that are bigger and wealthier will also accept a higher number of refugees. Furthermore, the refugees will be able to choose between four of the least burdened EU Member States. This constitutes so-called vertical solidarity.[27]
 
 
12. Furthermore, (secondly), also the highest two European courts have already decided in cases concerning the treatment of displaced persons or refugees in the event of a mass arrival and at that time explained what the negative and positive obligations[28] of the EU Member States and of the Council of Europe and the signatories of the ECHR are. It is, in particular, the latter aspect that is important, because in contrast to the former (i.e. the changes to the common European asylum policy that have not yet been adopted), the rules that its sets, which the states must observe, are determined via individual reviews. Such does not entail that the legislature was not allowed to react by a legislative measure; what is essential is the question of whether the legislative measure follows the mentioned requirements.
 
 
IV The AlA-2D and the question of conformity with EU and ECHR rules.
 
13. The legislature decided to amend the AlA-2, by which it enacted a special system regarding changed circumstances and also a specific manner of treatment of individuals in the event of mass arrivals. In fact, the Ombudsman only challenged the latter, i.e. the rules on the treatment of individuals (Article 10b), but they are tightly connected with the circumstances that trigger Article 10b. These circumstances are determined by Article 10a. Therefore, it is necessary to understand and apply both provisions in tight conjunction – and in this respect I also concur with the reasoning in the Decision. What do Article 10a and 10b of the AlA-2 mean in the context of European and international obligations?
 
14. The mentioned two provisions introduce changed circumstances in the field of migration and the measures to be taken in such circumstances. This is a collision between the mass nature of such arrivals and the protection of human rights and the objective of ensuring national security. The second paragraph of Article 4 of the Treaty on EU determines that “[i]n particular, national security remains the sole responsibility of each Member State.” This does not entail that in the regulation of the dimension of national security it is not necessary to observe EU law or also international obligations to which also EU law itself directs. So, this rule does not provide a carte blanche.[29] The legislature thus collided with the principles and rules that call for the individual treatment of individuals, the regulation of returning them to a safe country, and the prevention of them being trapped in areas near the border (push backs) also in instances of mass arrivals, and thus also collided with the principle of mutual trust between Member States (this principle is in fact violated automatically once [the authorities] depart from the system of the common European asylum policy). As is – in my opinion correctly – underlined in the Decision, not only is it not possible in the event of extraordinary circumstances to depart from the individual provisions of the Constitution (even the temporary de iure abrogation and limitation of rights due to the extraordinary situation is not possible regarding some fundamental human rights, such as the inviolability of human life, the prohibition of torture, the protection of dignity, the presumption of innocence, etc.), but this also applies to international obligations and obligations under the Charter. This also applies to the prohibition of inhuman treatment (see Article 3 of the ECHR[30] and Article 4 of the Charter;[31] this is also a prohibition that follows from Article 18 of the Constitution).
 
15. Hence, the legislature introduced the so-called “changed circumstances in the field of migration”; these are the circumstances that I classify between the normal situation in the state and extraordinary circumstances as allowed by Article 92 of the Constitution. Hence, the Constitution does not regulate such a situation, i.e. changed circumstances in the field of migration.[32] This special legal regime should be introduced before circumstances would occur in which a state of emergency could be declared.[33] The regime determined by Article 10a of the AlA-2 is regulated in a relatively abstract and undefined manner (it refers to the functioning of the central institutions of the state being rendered difficult and public order or internal security being threatened), and these abstract criteria are also only determined as a mere possibility. This level alone, i.e. potentiality, allows the authorities to respond. In doing so, the principle of proportionality must be taken into account, which means that the measure must be balanced with the consequences. Furthermore, the circumstances in the neighbouring countries are also to be taken into account. This is what the third paragraph of Article 10a of the AlA-2 determines. Hence, by the principle of proportionality, the legislature also introduced a balancing between measures and consequences. It envisaged balancing, which as a principle is only possible when rights that are not absolute are concerned. In the reasoning of the Decision it is explained that the balancing of proportionality is not in conformity with the absolute nature of the human right determined by Article 18 of the Constitution (i.e. the prohibition of inhuman treatment, similarly as Article 3 of the ECHR and Article 4 of the Charter require).[34]
 
As mentioned above, also the Constitution, in the second paragraph of Article 16, does not allow that – even if there is a state of emergency. This is even less possible in a situation that the legislature determined as “changed circumstances in the field of migration,” which does not attain [the level of] a state of emergency. In other words, neither international or EU law nor a state of emergency allows a departure from Article 18; consequently, “the changed circumstances in the field of migration cannot attain it either.”[35]
 
16. I concur with the absolute nature of Article 18 of the Constitution, which consequently hinders balancing in accordance with the principle of proportionality.[36] But I can also imagine that in individual instances it is not possible to completely and immediately ensure the negative and positive obligations of the state and that, therefore, there can temporarily be an actual situation in which the question is raised as to whether the criteria of inhuman treatment are de facto fulfilled.[37] I believe that the actual inability to ensure protection can also affect its absolute nature. This influence is possible, as I will explain below by reference to decisions of the ECtHR, but it is not possible to limit in advance or to derogate from the requirements of Article 18 of the Constitution[38] (or of Article 4 of the Charter and Article 3 of the ECHR).[39] Such a regulation causes, inter alia (as is also stated in the Decision), the return of individuals to a neighbouring country or that they are pushed back along the fence without effective legal remedies. This is a question of the effectiveness of guarantees, and they are also at the heart of the question of pushing back along the border, which can be a consequence of such a regulation (the “push back” approach or “summary return”).[40] A regulation that prevents effective procedures and appropriate procedural guarantees is only a step on the path to causing the denial of rights.[41] In the mentioned three-sided collision of the mass nature [of arrivals] and the protection of human rights and the objective of ensuring national security, human rights may not be set aside. The legislature must not in advance determine circumstances in which it could treat displaced persons contrary to the absolute nature of this right, i.e. in an inhuman or degrading manner (Article 18 of the Constitution).
 
17. Also the decision of the ECtHR in Khlaifia,[42] Paragraphs 184 and 185, demonstrates the mentioned differentiation between legal regulation (de iure) and actual circumstances (de facto). There is an important difference between legal regulation (the sphere of law) and actual circumstances (the sphere of actual circumstances).[43] I believe that Paragraph 50 of the decision appropriately draws attention thereto. In Paragraph 185 of the mentioned judgment the ECHR explained that it must not adjudicate artificially and must not take into consideration the circumstances in which Italy found itself, and also cannot deny these circumstances.[44] The ECHR determined that these circumstances are exceptionally difficult. The case in fact concerned deprivation of the liberty of migrants in the accommodation centre on Lampedusa, and subsequently on ships in the port of Palermo, and the group return of migrants to Tunis by referring to the bilateral agreement between Italy and Tunis. The conditions to which the complainants were exposed in the accommodation centre and on the ships allegedly reached the level[45] of inhuman and degrading treatment (Article 3 of the ECHR), and at the same time they were expelled en masse (Article 4 of Protocol No. 4 to the ECHR). The ECtHR concurred that the conditions in which the applicants were kept in the accommodation centre were not appropriate for detention, which lasted multiple days. But the complainants did not claim that the Italian authorities treated them badly or that they did not have sufficient food or water. Therefore, the ECtHR concluded that the conduct to which the complainants were exposed did not exceed the level of severity required to entail a violation of Article 3 of the ECHR. The ECtHR also did not establish a violation of that provision in relation to the limitation of movement on the ship, as the complainants did not succeed in proving the allegations.
 
18. From the Khlaifia case it hence follows that the negative and positive obligations of the state due to the increased arrival of refugees do not diminish, but the court has a limited understanding for the circumstances of the concrete case.[46] These are instances when the actual circumstances of a certain situation in the state (as explained above) are disregarded and also circumstances wherein the international community should respond.[47] The feeling that the latter claim has an illusory character can be, understandably, completely correct (in particular, according to the experience of the current effectiveness of the participation of all Member States in the reallocation of refugees). This is also why this question should have been regulated in the new rules of the common European asylum policy and not left to arbitrary and spontaneous decisions of individual states (in particular because I cannot imagine that the difficulties in accepting a mass of displaced persons at the border of one state would not cause actual difficulties (a domino effect) in the neighbouring state).[48] This concerns more than just the absence of the solidarity that EU directives (unsuccessfully) introduced; it does not concern the solidarity that follows the procedure for the registration and acceptance of displaced persons, and also not the solidarity that would arise several logistical steps prior thereto, but the source of mass pressure, i.e. precisely the situation that the state itself would wish to prevent. Just the opposite of solidarity.[49] This is also why not only unilateral national regulations but also any other ex ante agreements on an international level that depart from the currently applicable rights that states must ensure displaced persons and refugees would diminish the already achieved level of human rights.[50]
 
19. I see the regulation determined by Articles 10a and 10b of the AlA-2 as a smaller frame of functioning in a significantly broader framework of international commitments.[51] It is limited by the requirements as to the individual treatment of individuals, the non-refoulement principle, the legal protection of individuals (i.e. procedures in which individuals can protect their rights sufficiently effectively, not only before the authorities of the executive branch of power, but also before independent courts), the prohibition of inhuman treatment, etc.[52] Despite the fact that the legislature attempted to justify the legal framework of Articles 10a and 10b of the AlA-2 for reasons of national security and public order, it collides, in any event, with the obligation to ensure positive and negative fundamental human rights.[53] The increased arrival of displaced persons does not in and of itself justify the denial of these rights by either the highest national or international legislation, but an understanding of the actual circumstances is – importantly – enabled. Therefore, not even a situation that is not (precisely) defined in advance can change that. By national rules, and all the more if they are not determinate, as in the case at issue, (or if they are undefined, abstract, and enable their application even under the condition of potential fulfilment), it is not admissible to allow a situation that would initiate activities of the authorities in power that would be inconsistent with the above-mentioned starting premises of the superior national and international acts (Article 18 of the Constitution, Article 3 of the ECHR, and Article 4 of the Charter).[54] If such a situation were allowed in advance and also allowed balancing, that would also entail, in my opinion, that the test of proportionality would collide with human dignity.[55]
 
 
V An Overview of the Reasons for Migrations and their Connection with Regulation of the Consequences Thereof
 
20. Personally, I see the de lege lata regulation in Europe (in the Council of Europe, the EU, international rules, and EU rules), the rules determined in the Constitution, and the case law as the achievement of a level of the development of law, and to the benefit of the individual – in particular an individual as vulnerable as a displaced person, i.e. a refugee – that does not hinder the development and upgrading of the common European asylum policy in the future. Such policy should also be sensible outside the framework of migrations; migration should be assessed as a consequence, not as an independent occurrence. Namely, it would be necessary to affect the flow of migrations much more actively. Currently, this flow runs in one direction, towards the EU. Refugees come to the EU from both crisis areas and from socially and economically vulnerable states, in particular from the south and east.[56] The mentioned consideration understandably exceeds the explanation why I voted in favour of the decision (and is in this respect obiter dictum), but it is tightly connected with the central part of the separate opinion under Section IV above.
 
21. In this respect, it is not only a question of law, but also of ethics and of the ethical nature of the functioning of states (not only EU states), and also of the values of society. The rules on how to act as regards displaced persons and refugees are legal rules, and the question of how the assistance that needs to be offered is distributed and how the Member States along the external EU borders are assisted[57] is also a question of values (i.e. of solidarity). Furthermore, the acceptance of displaced persons is only one part of the policy as regards the relations with poorer states and crises areas. Stemming from the dignity of individuals, mutual assistance, and solidarity, developed states should do more to ensure that the poorer reach them. In the EU, these values are not always the reality. I will only name one example determined by EU rules: the so-called blue card. The rules, in particular, facilitate the transfer of highly qualified individuals and intellectuals from third states. The EU offers them an easier start and endeavours to integrate them into European society. So, it invites them to come from states wherein precisely these individuals would be the most needed in the development of their society. Instead of assisting, we often accept those on whom the poorer and vulnerable state could rely. It is in particular these groups of individuals whom we should help stay in their environment, where they could contribute the most to the development of the state and society from which they come. EU authorities could help (more easily than an individual Member State) redirect the economy so as to help vulnerable states and reroute globalisation and globalisation trends also such that people who cannot see any solution other than to leave their homes and families are provided work and a settled life.[58] This trend of migrating into Europe could be limited, and at the same time economic cooperation could be broadened.[59] The absence of such a policy that would help vulnerable states attain at least such a level of economic prosperity that would curb migration and also prevent inter- and intrastate conflict (namely, not only migrations that are connected with economic status and poverty are concerned) will, I believe, always be reflected in a more or less mass exodus. In other words, if we had directed such an ethical policy towards poor states already in the past, we would have reduced – this is my assessment – the mass arrival of displaced persons in Europe.
 
22. In fact, Europe itself experienced an example of such development when foreign assistance and the economic idea of trading between the then primary members of the European Economic Community (in the 1950s, during the time of the Cold War) assisted in limiting mass emigration and caused the growth and revival of the internal market (the latter joins and integrates Europe even today). Hence, the key idea was to increase economic opportunities and to ensure peace, co-existence, and development. Similarly, also today this can be a model, but it is being forgotten. In addition to a political decision, economic incentives from Member States and their economies and public and private sources of financing are necessary.[60]
 
23. I believe that it will be impossible to turn back the migration trend by regulating borders and denying basic (absolute) human rights, as these are merely reactions to the consequences and not an approach towards remedying the reasons that lie at the source. As also seen from this perspective, not only from the viewpoint of the de lege lata and de lege ferenda rules of the common European asylum policy, it is all the less justifiable (also in the event of mass arrivals) to depart from Article 18 of the Constitution.
 
24. I wrote above that proposing that EU institutions adopt legislative initiatives to change the rules of the common European asylum policy would have no effect and I stated two reasons therefor: firstly, since the EU is already doing this (actually, this process already started when the AlA-2D was in the process of being adopted), and secondly, because the highest courts in Europe have already decided to ensure standards for the protection of human rights and the negative/positive obligations of the state also in the event of mass arrivals. But it would be sensible to think in broader terms, i.e. to create such circumstances that would reduce the need for migrations (i.e. as regards the source). Such actions would not show immediate results. A certain time window is necessary. Hence, it would be necessary to think of a strategy (i.e. the EU and Member States should not only be “firefighters” but also the “architects”) that would be compatible with humanity and human dignity and that would help guide the conditions for living in those places where the source of the weakness of a certain society lies. This would be ethical and sustainable in the long run, with fewer exoduses.
 
 
 
 
                                                                                               Dr Rajko Knez
                                                                                                    Judge
 
 

[1] The Aliens Act (Official Gazette RS, No. 1/18 – official consolidated text and 9/18 – corr. – hereinafter referred to as the AlA-2). The amendment to the Act in which the legislature included the challenged Article 10b is dated 26 January 2017 (the Act Amending the Aliens Act, Official Gazette RS, No. 5/17 – hereinafter referred to as the AlA-2D).
[2] I also use the term displaced persons, as used by the EU and international law, which distinguishes it from the term “migrants”. Refugees are in fact not migrants, as they do not wish to migrate, but are forced to migrate due to the circumstances in the specific vulnerable area where they live. See the definition in Directive 2001/55/EC, Article 2, Paragraph (c). It is precisely displaced persons who are at the centre of mass arrivals and exoduses, not so much other types of migrations.
[3] Europe is the only continent where discretion as to the question of the equal treatment of aliens is limited by international guarantees regulated by international courts whose decisions are obligatory. See C. Grabenwarter, Opening of the Judicial Year ECHR – Seminar – 27 January 2017), accessible at: http://www.echr.coe.​int/Documents/Speech​_20170127_Grabenwart​er_JY_ENG.pdf (21 July 2019).
[4] In this opinion, I do not summarise the detailed reasons stated in the reasoning of the Decision of the Constitutional Court. The regulation as determined by Article 10b of the AlA-2, including the concept that a neighbouring EU Member State is always a safe third country without the individuals being able to challenge that presumption, does not enable effective exercise of the right determined by Article 18 of the Constitution, which means that it is also inconsistent with Article 3 of the ECHR and Article 4 of the EU Charter of Fundamental Rights (hereinafter referred to as the Charter). See also Para. 61. of Decision of the Constitutional Court. In fact, according to the established case law of the ECtHR, Article 3 of the ECHR prohibits the extradition or removal of an applicant for asylum or any rejection if the individual faces a real risk that he or she will be subject to inhuman treatment in the state to which he or she is to be expelled. For an assessment of Article 3 of the ECHR, these cases significantly differ from other cases with mere national circumstances. In instances of expulsion, assessment of the correct application of Article 3 of the ECHR starts already with potential risks at the moment of expulsion. So it is an ex nunc assessment. But also for such cases it holds true that the ECtHR does not allow balancing with the public order or other interests of the state. Although the prohibition of expulsion entails an expression of a negative obligation, it also includes procedural aspects of protection of the rights of an applicant for asylum that form a positive obligation. See P. van Dijk and others (Ed.), Theory and Practice of the European Convention on Human Rights, 5th Edition, Intersentia, Cambridge 2018, pp. 416–421. A starting point for such an approach can also be found in the case Soering v. the United Kingdom, dated 7 July 1989. That case concerned a German citizen who was allegedly extradited to authorities in the USA due to a homicide. Before the ECtHR, the applicant claimed that the threat of the death penalty is contrary to Article 3 of the ECHR. The ECtHR concurred. Similar applies as regards the question of the return of refugees and other persons who due to extradition would be under the threat of inhuman treatment or torture. For more on this, see also M. B. Dembour, Who Believes in Human Rights?, Reflections on the European Convention, Cambridge University Press, Cambridge 2006, pp. 85–87.
[5] See the definition in Directive 2001/55/EC, Article 2, Paragraph (b).
[6] The opinion that the Government submitted in the procedure on 21 June 2017 explains, in Section IV, the circumstances of migration pressures with which it was faced in 2015 and at the beginning of 2016, and states that at the EU level there are no appropriate solutions or mechanisms.
[7] The Common European Asylum System – CEAS.
[8] In conformity with the rule tempus regit actus, I do not use the latter [documents] for the purpose of a review of the constitutionality of the Act at issue, but only as an argument to reply to the question of whether the rules of the common asylum policy currently in force are appropriate for the mass arrival of displaced persons.
[9] In other words, in a certain way there was an effect that was potentially similar to the mass effect of the discretion clause determined by Article 17 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180, 29 June 2013, pp. 31–59) (hereinafter referred to as the Dublin III Regulation). In accordance with that Article, every Member State can state that it is responsible for reviewing the status of individuals, third country citizens, and individuals without citizenship. This provision applies to individual procedures. During the refugee crisis in 2015 and 2016 it was not applied; a general invitation was applied and from the legal point of view it is not possible to speak of the application of that provision.
[10] N. Oven, in The Issue of the Aliens Act (Problematika Zakona o tujcih), Pravna praksa, Nos. 45/46 (2017), pp. 9–11, comes to a similar conclusion as regards the consequences and the question of the crossing of borders and of enabling access to destination Member States.
[11] See Article 7 of the Dublin III Regulation.
[12] I believe that they are not the same in all Member States. Historic circumstances are also connected therewith. For instance, also according to the criterion of the multicultural character of society, both in history and today, the Member States differ from one another. This also applies to the readiness to accept displaced persons. As regards the differences concerning asylum rules and approaches, see A. Leerkes, How (un)restrictive are we? ‘Adjusted’ and ‘expected’ asylum recognition rates in Europe, Research and Documentation Centre (WODC) Cahier 2015-10, accessible at: https://www.wodc.nl/binaries/cahier-2015-10-full-text-nw_tcm28-74139.pdf (25 June 2019).
[13] See recital 22.
[14] The Directive is based on Article 78 of the Treaty on the Functioning of the EU, which confers on the European Parliament and the EU Council the competence to adopt the rules of the common system of the temporary protection of displaced persons in the event of a mass arrival. Point (c) of the second paragraph of the mentioned Article determines such. Hence, the Directive follows from the viewpoint of the protection of displaced persons and not from the viewpoint of EU Member States that are facing mass arrivals.
[15] See the first paragraph of Article 5 of Council Directive 2001/55/EC dated 20 July 2001 on minimum standards for granting temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ L 212, 7 August 2001, pp. 12–23).
[16] See recitals 7 and 8 of the Directive and Chapter VI, which determine the measures on the basis of the principle of solidarity.
[17] In conformity with Article 25, other Member States must accept displaced persons; the EU Council necessarily and quickly helps in that. The same applies with respect to financial assistance. In conformity with Article 26, Member States must cooperate therein, enable transport, etc. 
[18] See Articles 3, 5, 6, and 7 of Directive 2001/55/EC.
[19] See Articles 8 and 11 of Directive 2001/55/EC. It follows from Article 22 that in individual cases humanitarian reasons prevail over forced removal.
[20] The European Parliament states: "The 2001 Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons is still in force but has never been applied so far, not even during the peak of the migration crisis, most probably due to the vagueness of its terms and tensions between the Member States in the Council over burden-sharing." (Migration and Asylum: A challenge for Europe, p. 6). Also the petition of France, separate from the EU, for displaced persons to be redistributed in a solidary manner (the new solidary mechanism dated 22 July 2019) did not earn the approval of more than merely 14 EU Member States. Accessible at: https://euobserver.com/political/145514 (23 July 2019)
[21] Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24 December 2008, p. 98; Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ L 180, 29 June 2013, p. 96; Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180, 29 June 2013, p. 60.
[22] In Section V of this separate opinion, I upgrade the question of the effectiveness of the rules of the common asylum policy in the EU with obiter dictum.
[23] See the final thought in Point 5 of this opinion, supra.
[24] The reasons for the change in the common European asylum policy are therefore urgent. For more on this, see: T. Tridimas, Competence, Human Rights, and Asylum: What Price Mutual Recognition?, in: S. Garben and I. Govaere (Eds.), The Division of Competences between the EU and the Member States, Reflections on the Past, the Present and the Future, Hart Publishing, Portland 2017, p. 158. Not only theorists, but also the EU itself assessed that the system of the rules in force of the common European asylum policy, starting with the Dublin III Regulation, is not appropriate for mass arrivals of displaced persons. See S. Maas and others, Evaluation of the Dublin III Regulation, DG Migration and Home Affairs, Final Report, Brussels 2015, p. 4.
[25] Proof of that is the special and telling attempt of EU Member States, upon the initiative of France (July 2019), outside the framework of EU rules, to resolve migration [issues] by means of a solidarity mechanism. All the more telling is the list of the (merely) 14 Member States that responded. Accessible at: https://euobserver.com/political/145514 (1 September 2019). In fact, many people connect the lack of solidarity with the historical context, namely that some Member States were not open to international cooperation in the past and thereby also maintained a situation that cannot be deemed multicultural diversity. The latter affects the readiness to accept displaced persons and migrants, with the resulting consequences in the social structure. I concur therewith.
[26] However, my opinion would be different if the subject of decision-making were questions as to mitigating the reasons for migration. For more on this subject, see the concluding part of this separate opinion.
[27] A question is also raised as to what the continuation of the procedure will be, in view of the fact that the term of office of the deputies of the European Parliament has already ceased (in 2019), even before they decided on these changes. The new composition of the European Parliament is not, in principle, bound by the proposals of the previous composition. For more on this, see: S. Nicolosi, Unfinished Business: The European Parliament in the Negotiations for Reform of the Common European Asylum System, 23 June 2019, accessible at: http://eulawanalysis​.blogspot.com/ (24 June 2019).
[28] In this opinion I do not polemicise as to the negative and positive obligations that follow from Article 3 of the ECHR. For more on the transition from negative to positive obligations, see: M.-B. Dembour, op. cit., pp. 81–87, and P. van Dijk and others, op. cit., p. 385.
[29] See Article 6 of the Treaty on EU, which requires that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of EU law.
[30] As regards Article 3 of the ECHR, the ECtHR wrote that it reflects one of the fundamental values of democratic societies, i.e. a societal value that is connected with the dignity of individuals and is thus a fundamental basis of the Convention. See P. van Dijk and others, op. cit., p. 383.
[31] See the cases N.S. and others, C-411/10, dated 21 December 2011; Jawo, C-163/17, dated 19 March 2019; C. K. and others, C-578/16 PPU, dated 16 February 2017. Article 4 of the Charter is to be interpreted in light of Article 3 of the ECHR. Returning a person to a Member State wherein the applicant for international protection would be subjected to significant poverty is a violation of Article 3 of the ECHR. See also the Judgment of the ECtHR in M. S. S. v. Belgium and Greece, dated 21 January 2011.
[32] See Para. 60. of the Decision. The Constitution regulates the limitation of human rights and fundamental freedoms in ordinary circumstances (which are not a state of emergency) in the third paragraph of Article 15 of the Constitution. The temporary suspension and restriction of rights during a war and state of emergency are regulated by Article 16 of the Constitution. Hence, in accordance with the Constitution, a limitation of human rights can only be assessed in an ordinary situation (the third paragraph of Article 15 of the Constitution) or during a war or state of emergency (Article 16 of the Constitution). There is no third option (tertium non datur). I opine that an extraordinary situation in the field of migration is still not a state of emergency, and that therefore the third paragraph of Article 15 [of the Constitution] applies.
[33] The deficiency of the Slovene legal system also lies in the fact that the circumstances in which a state of emergency can be declared are not defined. I opine that the legislature should adopt such normative framework.
[34] Whether the absolute nature of these rights enables balancing, i.e. the question of a conflict as regards the right itself (when situations collide regarding which the simultaneous inhuman treatment of two individuals or groups is looming and a question is raised as to whether such treatment of an individual or group should be prevented on account of the other, i.e. to balance), is not non-polemicisable in theory. See S. Smet, Conflicts between Absolute Rights: A Reply to Steven Greer, Human Rights Law Review, Vol. 13, No. 3 (2013), pp. 469–498. See also N. Simonsen, Is Torture Ever Justified?: The ECtHR judgment in Gäfgen v. Germany, 2019, accessible at: https://www.ejiltalk​.org/%E2%80%98is-torture-ever-justified%E2%80%99-the-european-court-of-human-rights-decision-in-gafgen-v-germany/. See also C. Costello, The Human Rights of Migrants and Refugees in European Law, Oxford University Press, Oxford 2016, pp. 179–230.
[35] See also Article 17 of the ECHR, which determines that [“n]othing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.[”]
[36] The case law of the ECtHR does not allow the balancing of proportionality when an absolute right is at issue. Nevertheless, in Caloc v. France, dated 20 July 2000, the ECtHR decided that the French Police did not violate Article 3 of the ECHR when they threw the plaintiff to the floor, because that was proportionate to preventing him from fleeing. The argument that the prohibition of torture or inhuman treatment is absolute and may not be limited, and that it does not allow the application of the doctrine of non-proportionality is also advocated by M. Šipec in the commentary on Article 18 of the Constitution (in: M. Avbelj (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Nova Univerza, Evropska pravna fakulteta, Ljubljana 2019, p. 148. The same is also stated by M.-B. Dembour, op. cit., p. 35.
[37] The ECtHR Judgment in Khlaifia and others v. Italy, dated 15 December 2016. So, the absolute nature is nevertheless softened by actual circumstances. See footnote 44, infra. See also the Judgment in Aboya Boa Jean v. Malta, dated 2 April 2019, where the ECtHR assessed the deprivation of the liberty of migrants (Article 5 of the ECHR) and reiterated that, as regards violations of the Convention, all factual circumstances must be taken into consideration, and then concluded that, due to the circumstances, the departure (in accordance with national law) (regarding time) was reasonable, and that in such instance there was no violation of the Convention. It was really not a question of Article 3 of the ECHR, but such circumstances are similar to circumstances that arise once “the borders close”. People become trapped in an intra-state territory, which entails the deprivation of liberty, i.e. detention. According to Directive 2008/115/EC (the so-called EU Return Directive). In July 2019, the European Commission filed an action against Hungary because it established that the conditions of detention in Hungarian transit areas, in particular the withholding of food, did not observe the material conditions referred to in the Return Directive and the Charter (accessible at: https://europa.eu/rapid/press-release_IP-19-4260_en.htm, 1 September 2019; see also the cases listed in footnote 40 below.
[38] Also in conjunction with the second paragraph of Article 16 of the Constitution (i.e. that despite the declaration of a state of emergency the rights determined by Article 18 cannot be restricted).
[39] It is debatable whether it also allows the balancing that I describe in footnote 34 – balancing within the right itself determined by Article 18 [of the Constitution] (or if, in conformity with the principle of proportionality, someone can be treated less humanely than someone else). I opine, firstly, that the prohibition of the restriction of rights determined by Article 18, which follows from the second paragraph of Article 16 extends (also if extraordinary measures are concerned) all the more to situations that are not extraordinary, and secondly, if restriction of the rights determined by Article 18 is prohibited and if also balancing can lead to a limitation (the application of the principle of proportionality), then the latter can also be a restriction that is not allowed. As stated above, this question is debatable and I can also understand if someone advocates a different position. Various authors also draw attention to aspects of the application and interpretation of the principle of proportionality that would correspond to necessary reasons in society (see: Grant Huscroft, Bradley W. Miller, Grégoire Webber (Ed.), Proportionality and the Rule of Law, Rights, Justification, Reasoning, Cambridge University Press, Cambridge 2014).
[40] See the case Hirsi Jamaa and others, dated 23 February 2012, Paras. 99 and 100; the case Čonka v. Belgium, dated 5 February 2002, Paras. 61–63; the case Khlaifia and others, dated 15 December 2016, Para. 156. Mass expulsion (Article 4 of Protocol No. 4 to the ECHR) also entails a so-called push-back approach or summary return. So-called pushing along the border or keeping people in the territory along the border and pushing them into another state also fall into this category. From the case Hirsi Jamaa and others, Para. 180. That is precisely the essence of the problem in the case at issue; we are not addressing so much the question of whether someone obtains international protection and whether he or she can even stay in the state, but the step that precedes it – i.e. whether such an application made by an individual should even be processed.
[41] In Hirsi Jamaa (see footnote 40, supra), Para. 175, the ECtHR adopted the position that preventing legal remedies (for challenging) decisions rejecting entry or return results in legal remedies being effective only in theory and in an illusory manner. Also the rule determined by the Act that prevents an assessment of whether the state to which a person is returned is safe (considering the personal circumstances of that concrete person) does not fall within the group of rules for which one could claim that they enable effective legal protection. In fact, that is prevented already at the very beginning of the procedure, as these are not reasons due to which the authorities should even initiate legal procedures. See also the reasoning of the Decision, Paras. 33–40, and the determination that follows in Paras. 44, 47, and 49 of the Decision.
[42] The ECtHR Judgment in Khlaifia and others v. Italy, dated 15 December 2016.
[43] By saying this, I do not claim on a principled level that these “two worlds” can differ, but that the actual circumstances can prevent or hinder the observance of such rules. “The first one would namely entail a violation of the rule of law, in particular of the requirement of consistency between law in books and law in action. Some inconsistency is acceptable and even expected; but if the gap between the two is too big and the law in action excessively differs from the law ‘in books’, a situation can arise wherein any genuine legal order will replace a sort of split (i.e. double) system of governance.” Matija Žgur, For Whom the Bell (of Law) Tolls? The Legal and Social and Political Exclusion of Non-Documented Immigrants [Komu (pravo) zvoni? O pravnem in družbeno–političnem izključevanju nedokumentiranih imigrantov], Pravnik, Vol. 136, Nos. 3–4 (2019), pp. 185–186 and the other sources quoted therein.
[44] What was at issue was the question of numerous or mass arrivals that Italy was procedurally unable to regulate in a timely and appropriate manner. See Paragraph 26 of the Judgment. The particularity [of that case] also lies in the fact that no one requested asylum and therefore there was only the question of the procedure [that is to be applied] in the event of illegal entry into the state. In fact, this does not change the question concerning the application of Article 3 of the ECHR. See Paragraph 27 of the Judgment.
[45] The ECtHR requires a certain minimal level of severity of the violation. This severity is assessed on a case-by-case basis. In Ireland v. the United Kingdom, dated 18 January 1978, the ECtHR defined that the assessment depends on the circumstances of the case, the nature of the violations, the relativity of the circumstances, the length of their duration, the physical and psychological effects, as well as circumstances such as gender, sex, the health status of the individual, the victim, etc. These circumstances do not form an exhaustive list. In Gäfgen v. Germany, dated 1 June 2010, the interrogation during which the suspect was threatened with torture lasted 10 minutes, which was an important circumstance for the ECtHR to qualify that conduct as inhuman and not as torture.
[46] The ECtHR also assess the de facto violation. In Ilias and Ahmed v. Hungary, it decided that 23 days spent in a transit area of 110 m2 between two states, unable to enter Hungary, and without appropriate information on his rights and the procedures for invoking rights, entailed a violation of the fourth paragraph of Article 5 and Article 13 in conjunction with Article 3 of the ECHR. The ECtHR decided that the national rules were not sufficiently clear and predictable, and that the violation occurred de facto. The mentioned Judgment must also be understood in light of a case such as M.S.S. v. Belgium and Greece, wherein the ECtHR decided that refugees must also be protected from significant material poverty and that also the lack of such protection entails a violation of Article 3 of the ECHR. Furthermore, the CJEU decided similarly in Jawo, C-163/17, dated 19 March 2019, and underlined that the principle of mutual trust between Member States is the essence of the Common European Asylum System.
[47] In this context, also the size of an individual state faced with an exodus is not a negligible element. Mass arrivals and the connected logistical and other issues also do not have equal weight in a big or small state, in accordance with the definition of equality (i.e. similar in similar circumstances and different in different circumstances).
[48] This is what the third paragraph of Article 10a of the AlA-2 requires must be taken into account. I interpret this in such a way that the measures adopted by Slovenia should not affect the neighbouring states. But if I am right in that they would affect them, then the balancing of proportionality is significantly diluted.
[49] Even if it were not displaced persons who are at issue, the duty of Member States to assist each other would stem from the principle of international courtesy. This holds all the more true in the event of exoduses.
[50] Also the ECtHR stressed in Khalifia that the absolute nature of the right to the humane treatment of individuals entails established case law (see Para. 184 of the Judgment). Even when inhuman treatment occurs unintentionally, it is not justifiable.
[51] Hence, the national framework is not merely limited; it also cannot exist on its own without having an effect on other states.
[52] The above does not follow merely from the above-mentioned EU rules, but also from Article 33 of the Convention Relating to the Status of Refugees. I opine that it is precisely individual treatment that is the essence of the problem when the state is faced with a mass of refugees at its borders. Since individual treatment requires time, as well as, significantly, procedures and legal remedies, logistical issues arise together with actual questions concerning the capacity to conduct such procedures on the ground, i.e. in situ. In such context, it would be sensible to proceed not only from existing circumstances, but also from the [question of whether] one could anticipate a mass arrival of displaced persons, which would enable the appropriate organisation of procedures.
[53] By joining the EU, the Member States significantly curbed their sovereignty. EU rules, including those in the founding treaties, also apply in areas that are tightly connected with national security (and which pursue the free movement of persons, the functioning of the internal market, the exercise of social rights in all EU Member States, etc.). All these elements limit the freedom of Member States, including the freedom that was traditionally classified within the limits of national security. From this perspective, the provision (of Article 4 of the Treaty on EU) that national security remains the sole responsibility of each Member State is, to some degree, “cosmetic”. For more on this, see: F. Di Benedetto, Defining the Notion of "National Security" under Article 4(2) TEU. What is Really Left of Member States' Sovereignty?, Czech Yearbook of International Law, Vol. 10 (2019), p. 87.
[54] See also the Judgment of the German Federal Constitutional Court 1 BvR 357/05, dated 15 February 2006, which abrogated the provision of the Safety of Airspace Act (Luftsicherheitsgesetz), which enabled the shooting down of an airplane if it was [intended to be] used to harm the lives of individuals (i.e. for terrorist acts). The mentioned Court limited the abrogation to instances in which there are also individuals in the airplane who do not participate in the criminal offence, i.e. passengers. From the reasoning of the Court, it also follows that the legislature cannot regulate precisely and in advance the types of circumstances that may exist on the plane. The lack of direct contact with the situation [on board] and without seeing it also entails that [any action is] a speculation that can lead to an erroneous decision. See Paras. 125–135 of the Judgment of the German Federal Constitutional Court. In fact, the presented case does not address the issue of inhuman treatment but the right to life; however, I opine that, nevertheless, an important message of that Judgment is that enabling certain measures in advance, measures that interfere with fundamental human rights in circumstances that are not precisely predictable in advance and can be speculative, is incompatible with the Constitution.
[55] As regards the dimensions of the test of proportionality that can cause fundamental rights to be diluted, see: Kumm, Walen, Human Dignity and Proportionality: Deontic Pluralism in Balancing, in: Huscroft, Miller, Webber (Eds.), Proportionality and the Rule of Law. Rights, Justification, Reasoning, Cambridge University Press, Cambridge 2014, pp. 67–68.
[56] The United Nations High Commissioner concluded, for 2019, that the number of displaced persons from such areas attained the highest level since 1950; 71 million of the world’s population are displaced, and 25 million are refugees. Accessible at: https://www.unhcr.or​g/figures-at-a-glanc​e.html (26 June 2019).
[57] The rule that the EU Member States on the external borders of the EU are to be burdened without care being taken for the effective distribution and logistical questions after the entry [of displaced persons] is, in my opinion, one of the most disputable rules in the common migration policy of the EU. This rule is based on mutual trust; however, the burdening and “isolation” of these states (in the sense that the other Member States do not accept displaced persons) in and of itself entails a negation of trust.
[58] One of the essential characteristics of undeveloped economies is precisely a lack of organisation – most often, individuals act independently and in a disconnected and unorganised manner. The key characteristic of economic endeavour is precisely organisation and connectivity. This reduces tensions and leads towards progress by approaching the saying ubi bene ibi patria, which has been proven to be right a number of times.
[59] For more on this, see P. Collier, The Future of Capitalism – Facing the New Anxieties, Allen Lane, 2018, pp. 20, 118–122, 197–198, 209.
[60] For more on this, see: ibidem, pp. 112–122. Similar is also stated by Noam Chomsky, who stresses that the economic path is in fact a one-way path; i.e. that vulnerable states are above all subject to exploitation. See N. Chomsky, Who Rules the World, A Metropolitan Book, New York 2017, p. 54. He also draws attention to the fact that the states that generate the rules for migration in fact do not wish to accept migrants. Similarly, and appropriately in my opinion, he also stresses that the “picture” of the migration paths of today reflects the historical interventions of Western states (which are not so distant in time) in the states that are vulnerable today (ibidem, pp. 256–258).
 
U-I-59/17
27 September 2019
 
 
Concurring Opinion of Judge Dr Špelca Mežnar regarding Decision No. U‑I‑59/17, dated 18 September 2019
 
 
Since non-lawyers will perhaps find the reasoning of our Decision in its entirety complex and too lengthy, in this opinion I will attempt to explain in simple terms the key reasons stated and draw attention to some dilemmas to which the Decision does not provide (final) answers.
 
In light of our Decision, many people will ask themselves why this Act, which attempts to prevent a situation in which Slovenia would become a “pocket” for thousands of trapped aliens – because some neighbouring states would direct aliens to our territory – is unconstitutional. Is it not true that the Act [is intended to] prevent a situation wherein the uncontrollable arrival of aliens would paralyse the life of the residents of Slovenia and our public order and peace?
 
Yes, the Act undoubtedly effectively resolves precisely this problem. Nevertheless, effective resolution of crisis situations that mass migration can cause does not absolve the state from the obligation to observe fundamental human rights. Slovene independence and our state are based on the observance of human rights. In accordance with the Constitution, human rights may only be suspended during a war or state of emergency. The legislature admits that the abrogated provision would not apply in a state of emergency but in special circumstances. The special circumstances referred to in Article 10a of the AlA-2 are certainly not normal, but neither do they entail a state of emergency.
 
The right that the legislature interfered with by the AlA-2 (i.e. the non-refoulement principle) is absolute. It is not admissible to interfere with such a right. Slovenia may resolve in many ways the problems that would occur, due to an ineffective European asylum policy, in its territory, but it must not resolve them by suspending this fundamental right of individuals (who bear no guilt). This is an established position and it has been undisputed in the case law of the ECtHR, the CJEU, and the Constitutional Court for many decades already. The legislature was well aware of the above. Even before the deputies of the National Assembly adopted the Act, the Legislative and Legal Service of the National Assembly clearly warned that the proposed provision was unconstitutional and it did so with the same arguments that the Ombudsman stated and with which the Constitutional Court concurs. Therefore, at least for connoisseurs of international and constitutional law, the abrogation of the Act will come as no surprise.
 
The disputed provision (i.e. Article 10b of the AlA-2) was adopted as a direct reaction of the authorities in power to the situation that occurred in the autumn of 2015. At that time, approximately 500,000 people crossed Slovenia on their way to the north of Europe (and less than 200 applied for international protection). The Act, which fairly obviously departed from the constitutional and international standards regarding the protection of human rights, was well-accepted by the public due to its efficiency and simplicity. The Government and the legislature thus made an excellent move: they raised their public approval rating and passed the hot potato to the Constitutional Court – as if saying “you tell us how to resolve the migration crisis if the Act is unconstitutional.”
 
The decisions of the Constitutional Court are rarely supported by the majority of the public. The one at issue will probably not be supported either. But the Constitutional Court does not exist in order to be popular. Our task is to protect the rights of people, of individuals, irrespective of their citizenship[1] – in particular when the time and situation are not rosy as regards their protection.
 
...
 
1. What did the Constitutional Court actually decide on?
 
Our Decision deals with the specific situation of mass unlawful border crossings. The abrogated Act regulates this in the following way: Let us say that a person who wishes to apply for international protection in Slovenia unlawfully comes here from a neighbouring safe country, which is an EU Member State. In accordance with EU rules, that person should have applied for asylum already in the first safe country.[2] The Slovene Police therefore return the person to the neighbouring state [from which the person came] (if there are no systemic deficiencies in that state) and rejects the person’s statement of intention to file an application for international protection. There is an exception in place for minors, for persons with medical issues, and for their family members – the Police must not reject their applications; instead, the competent authorities are to decide thereon individually. The described regime applies if the National Assembly declares special circumstances in which, due to the mass arrival of aliens, public order or safety in Slovenia are threatened.
 
The Decision of the Constitutional Court requires that prior to expulsion to a neighbouring state, individual treatment (instead of rejection) must be ensured to persons, in addition to the mentioned groups, whom, due to their personal (subjective) circumstances, return to the neighbouring state would negatively affect to such an extent that it would amount to inhuman treatment. Even if a person is in Slovenia illegally and the Police intend to return him or her to the neighbouring safe state, that person, as an applicant for international protection, has the right to be safe from expulsion (even to a safe neighbouring state), which for this concrete person could lead to torture. The fact that there are special circumstances in the state also cannot be a reason for a different decision.
 
This position is not new; the Constitutional Court amply explained it already in 2013 in case No. U-I-155/11. In the case law of the ECtHR it has even existed much longer; numerous judgments of the ECtHR are quoted in the Decision.
 
2. Why does the Constitutional Court speak of “torture” if the neighbouring state to which the Police would return an alien is safe?
 
This is question is relevant. The word “torture” sounds scary and leads to associations with practices of physical authoritarian violence, which we do not tolerate. If the neighbouring state is safe (and, as a general rule, all EU Member States are safe states), it does not torture people.
 
In law, the concept of “the prohibition of torture” has a different, broader, meaning. It includes various forms of actions by the state that in and of themselves do not entail violence at all, but which ultimately can amount to a person being treated badly (inhumanly). For instance, in the framework of the prohibition of torture, the state must ascertain whether a homosexual Kosovan citizen who encountered problems in Kosovo on account of his or her sexual orientation (e.g. physical violence perpetrated by other residents) and who therefore applied for international protection in Slovenia would be exposed to the “threat of torture” or inhuman treatment if returned to Kosovo.[3] This is not (merely) Police or other violence perpetrated by Kosovan state authorities; it can also be violence perpetrated by society or by other individuals with regard to whom the state does not react appropriately. Even though Kosovo is a safe country,[4] it can pose a threat of torture to a concrete individual.
 
The described situation is an example of the application of the non-refoulement principle. The non-refoulement principle is protected in the framework of Article 18 of the Constitution, which prohibits torture. This message is not new – it is rooted in Slovene constitutional case law (Article 18 of the Constitution)[5] and in the case law of the ECtHR (Article 3 of the ECHR)[6] and CJEU (Article 19 of the Charter)[7].
 
3. Which international acts regulate the non-refoulement principle?
 
Also in international and constitutional law, the non-refoulement principle is protected within the framework of the more general prohibition of torture. The prohibition of torture is enacted by Article 3 of the European Convention on Human Rights (the ECHR), Article 33 of the Geneva Convention, Article 3 of the Convention Against Torture, and Article 4 and the second paragraph of Article 19 of the EU Charter on Human Rights.
 
The principle of the non-refoulement of a person to a foreign state does not only apply to illegal border crossings, but also in other instances, e.g. when foreign citizens are extradited in order for criminal procedures to be carried out or sentences executed, on the basis of international arrest warrants, etc.
 
4. Does the concept of a safe state entail that the return of people to that state is always safe?
 
No. The concept of a safe state was created to facilitate the return of people to safe states. The state assesses in advance the safety of some states.[8] If it establishes that they are safe, the presumption applies that return thereto is safe and therefore the non-refoulement principle cannot be violated. The return of people to Croatia (or Kosovo) is in principle safe, because Croatia (and Kosovo) are considered to be safe.
 
However, this is merely a presumption, which is rebuttable. The non-refoulement principle requires that an individual has the possibility to prove that a state that is otherwise safe is not safe for him or her personally due to subjective reasons on his or her side (e.g. family relations, nationality, belonging to a certain vulnerable group or minority which in the neighbouring state can be subject to prosecution). For instance, someone could claim that as a transvestite he or she would be in danger in Croatia.[9] It does not necessarily mean that this will be so, but the Constitution at least guarantees such person that the Slovene authorities must not return such person to Croatia until his or her claims are rebutted.
 
5. So, did the Constitutional Court abrogate the Act only due to a reason that is relevant only exceptionally?
 
No. This was not the sole reason for the abrogation. The legislature also did not envisage a solution to a situation wherein a neighbouring state would not accept returned aliens. The return of applicants for international protection to a neighbouring safe state (without assessing their application) is namely only admissible if the neighbouring state is willing to ensure that it will consider their application. If it does not want to accept them, it is clear that it does not want to do so. In such instances, the applications of the applicants would not be considered anywhere and they would stay trapped at the border between the two states.
 
6. Would these persons then stay in Slovenia forever?
 
No. They would stay in Slovenia until the competent authority assesses that return to the neighbouring state is safe. If it assesses that return to the neighbouring state is not safe, it carries out the procedure for deciding on the application for international protection. If the person is not entitled to international protection, he or she must leave Slovenia.[10]
 
The abrogation of Article 10b of the AlA-2 means that the regular procedures for considering [the applications of] aliens apply. From these procedures there follow the obligations of neighbouring EU Member States to accept persons who arrived illegally in Slovenia in accordance with the Dublin III Regulation. An equal obligation can also stem from a bilateral agreement, e.g. the International Agreement between Slovenia and Croatia.[11]
 
7. What effect does the Decision of the Constitutional Court have on granting asylum?
 
It does not have an effect. Our Decision is not related to granting asylum. The abrogated Article 10b does not regulate the procedure and conditions for granting international protection. Other provisions serve this purpose, and the Decision of the Constitutional Court has no effect thereon.
 
8. Why did the Constitutional Court not balance the interference with the non-refoulement principle with the damage that the residents who live here would sustain?
 
Because an assessment of proportionality is not admissible when the prohibition of torture is at issue.[12]
 
The non-refoulement principle is a fundamental human right, which knows no exceptions and allows no interferences (i.e. it is an absolute right). Torturing a human is not admissible and justifiable in any case under any conditions. Torture is not admissible even when other human lives are at stake on the other side of the scale.[13] 
 
The test of proportionality does not apply in relation to the prohibition of torture. Any interference with that right automatically entails a violation thereof. This makes the prohibition of torture a very special and specific right. As regards other human rights (life, freedom, dignity, expression, privacy, etc.), interferences are only admissible if they are “proportionate”; but regarding the prohibition of torture there is no balancing of other rights at all.[14]
 
A discussion of the proportionality of an interference with the prohibition of torture and with the non-refoulement principle are only sensible if one denies the absolute nature of this right. It is namely only on the basis of this presumption that any discussion of “the damage on the other side of the scale” is possible. Such an approach would entail a significant departure from the case law of the ECtHR, the CJEU, and the Slovene Constitutional Court, as well as that constitutional standards would be lowered.
 
9. Can the legislature depart from the non-refoulement principle in the special circumstances determined by Article 10a of the AlA-2 when it can no longer ensure individual treatment (i.e. taking into consideration all personal circumstances) because the number of aliens who crossed the border is simply too high?
 
No, it must not do that, because the non-refoulement principle is absolute, without exception. The non-refoulement principle is protected in the framework of the prohibition of torture, which is deemed to be an absolute right. The prohibition of torture is a fundamental value of democratic societies. The ECtHR does not allow states to ever interfere with this right.[15]
 
Understandably, in the event of the mass arrival of aliens this makes it very difficult to respond effectively. However, for the time being, the Slovene and international standards are clear and know no exceptions for special circumstances. Neither during the 2015 migrant crisis[16] nor in the event of mass flight from Africa to Europe (in particular to Italy during the Arab Spring,[17] or during the war on terror[18] did the ECtHR and the CJEU depart from the requirements that apply in ordinary circumstances. These requirements are high and require each state to treat a person individually before it transfers him or her to another state. The scope and content thereof also apply in special circumstances.[19]
 
10. Can the legislature depart from this absolute nature at least in a state of emergency?
 
Our Decision does not provide an explicit answer to this question. But I also think it does not rule out such a possibility.
 
11. Are not special circumstances (i.e. the changed circumstances due to mass migration referred to in Article 10a of the AlA-2) the same as a state of emergency?
 
No. A state of emergency is a constitutional category (Article 92 of the Constitution), whereas the changed circumstances are a statutory category (Article 10a of the AlA-2). The National Assembly may only declare a state of emergency if the existence of our state is threatened. Mass migrations, which are mentioned in Article 10a of the AlA-2, do not threaten the existence of the state, although they can render its functioning significantly difficult. A state of emergency and such special circumstances are therefore (in accordance with the legislature’s will) two different categories, both substantively and by their legal qualification.
 
The special circumstances referred to in Article 10a of the AlA-2 are also not normal, ordinary circumstances in the state. These special circumstances are somewhere in between ordinary circumstances and a state of emergency. The legislature has the right and competence to regulate special circumstances due to the mass arrival of aliens. However, in doing so it cannot count on the Constitutional Court to assess them as if a state of emergency were declared. The declaration of a state of emergency is regulated in the Constitution and it has significant consequences for human rights (Article 16 of the Constitution); therefore, it must be completely clear when and why the National Assembly (or the President of the state) decides to adopt such a measure.
 
The legislature did not decide to limit the interference with the non-refoulement principle (returning aliens to neighbouring countries without assessing their personal circumstances) to a situation wherein a state of emergency is declared beforehand, even though it could have done so. If it had done so, the Constitutional Court would be faced with a different and more difficult task.
 
12. Is not the requirement of absolute protection in the circumstances of mass migrations excessively strict for states as it is not realistically possible to observe such a requirement?
 
Yes, I can concur with that. I myself also have difficulty imagining how a state could possibly be able to provide individual treatment to hundreds of thousands of aliens on the basis of all their alleged personal circumstances. If it is no longer possible to fulfil the requirements that follow from international obligations and from the Constitution, it is perhaps time to consider if they should be changed. It is just that the Constitutional Court is not the first in line to do so.
 
The executive and legislative branches of power in Slovenia have at their disposal appropriate measures such that in the event of a state of emergency they can protect the existence of our state and its residents. However, until a state of emergency is declared, the legislature must not depart from the non-refoulement principle. This is the fundamental message of our Decision and this is why the Constitutional Court abrogated the challenged provision.
 
 
 
 
                                                                                       Dr Špelca Mežnar
                                                                                               Judge
 
 

[1] Only a few constitutional rights are held exclusively by the citizens of the Republic of Slovenia (such rights are, e.g., the right to vote and the right to social security).
[2] The first safe country is not necessarily a neighbouring country.
[3] Cf. Judgment of Administrative Court No. I U 411/15.
[4] See Article 1 of the Ordinance determining the list of safe countries of origin, Official Gazette RS, No. 38/19.
[5] Cf. Decision of the Constitutional Court No. U-I-155/11.
[6] Cf. The Judgment[s] in M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland, dated 4 November 2014; N. v. the United Kingdom, dated 27 May 2008; Ahmed v. Austria, dated 17 December 1996; D. v. the United Kingdom; Oršuš and others v. Croatia, dated 16 March 2010; and I.G. and others v. Slovakia, dated 13 November 2011.
[7] See the CJEU Judgments in the joined cases N.S. v. the Secretary of State for the Home Department and E.M. and others v. the Refugee Applications Commissioner, the Minister for Justice, Equality and Law Reform; C.K., H.F., and A.S. v. the Republic of Slovenia; Abubacarr Jawo v. the Federal Republic of Germany; in the joined cases Bashar Ibrahim and others v. the Federal Republic of Germany; Bashar Ibrahim and others v. the Federal Republic of Germany; and in The Federal Republic of Germany v. Taus Magamadov.
[8] See Footnote 4.
[9] See, e.g., the 2016 movie The Constitution of the Republic of Croatia, by director Rajko Grlić.
[10] In 2018, international protection in the Republic of Slovenia was granted to 102 persons (mostly from Syria and Eritrea, and to 818 persons in the entire 1995-2018 period. For comparison: at the end of 2018, 176,000 foreigners resided in Slovenia on the basis of a valid residence permit, mostly citizens of Bosnia and Herzegovina, Kosovo, and Serbia.
[11] The Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia on the Transfer and Acceptance of Persons whose Entry or Residence is Illegal, Official Gazette RS, Mednarodne pogodbe [Treaties], No. 8/06.
[12] See the ECtHR Judgment in Ireland v. the United Kingdom, dated 18 January 1978, Paragraph 162 ("It follows that the prohibition under Article 3 of the Convention is an absolute one and that there can never be under the Convention, or under international law, a justification for acts in breach of that provision.") Cf. Battjes, Hemme, In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed, Leiden Journal of International Law, Vol. 22, No. 3, 2009, pp. 583–621. See also Paragraph 62 of the reasoning in this case and Footnotes 72, 73, 74, and 75.
[13] See the ECtHR Judgment in Gäfgen v. Germany, dated 1 June 2010, Para. 107 of the reasoning.
[14] See the ECtHR Judgment in Ireland v. the United Kingdom, dated 18 January 1978, Paragraph 163 ("The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and, under Article 15, Para.  2, there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation"). Cf. E. Lehto, The Applicability of Article 3 of The European Convention on Human Rights at the Borders of Europe, Helsinki Law Review, No. 1, 2018, p. 69. Despite the absolute prohibition of torture, the ECtHR only seldom establishes a violation of Article 3 of the ECHR. The reason lies in particular in the difficult criteria that the conduct of the state must fulfil in order for it to entail “torture” or “inhuman treatment”.  For more on this subject, see Lehto, pp. 54–77.
[15] Cf. the second paragraph of Article 15 of the ECHR.
[16] See the CJEU Judgments in C. K., H. F., A. S. v. Republic of Slovenia, C-578-16, dated 16 February 2017; Abubacarr Jawo v. Federal Republic of Germany, dated 19 March 2019; Bashar Ibrahim and others v. Federal Republic of Germany; and Federal Republic of Germany v. Taus Magamadov, dated 19 March 2019.
[17] See the ECtHR Judgment in Khlaifia and others v. Italy, dated 15 December 2016.
[18] See the ECtHR Judgment in Ramirez Sanchez v. France, dated 4 July 2006, Para. 115 of the reasoning. ("Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.")
[19] See the ECtHR Judgment in Ireland v. the United Kingdom, dated 18 January 1978, Para. 163 ("The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and, under Article 15, Para. 2, there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation").
 
 
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Human Rights Ombudsman
Date of application:
19.04.2017
Date of decision:
18.09.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03961