U-I-221/00

Reference no.:
U-I-221/00
Objavljeno:
Official Gazette RS, No. 66/00, Official Gazette RS, No. 113/00 and OdlUS IX, 258 | 09.11.2000
ECLI:
ECLI:SI:USRS:2000:U.I.221.00
Act:
Asylum Act (Official Gazette RS, No. 61/99) (ZAzil), Art. 40.2.2
Operative provisions:
Art. 40.2.2 of the Asylum Act (Official Gazette RS, No. 61/99) is annulled. The Supreme Court must decide on the appeal against the administrative court decision by which it was decided on the suit against the decision issued in the procedure for granting asylum within fifteen days from its receipt.
Abstract:
Since Art. 40.2.2 of the Asylum Act excludes the appeal against a decision of the court which decides within the judicial review of administrative acts at the first instance, it is inconsistent with the right to a legal remedy (Art. 25 of the Constitution).

For the interference is not in conformity with the principle of proportionality (Art. 15.3 of the Constitution) it is inadmissible.
Password:
Constitutional Court, decision making according to the principle of linking issues (abstract review).
Asylum.
Right to legal remedies.
Constitutional Court - determination of a manner of the implementation of a decision.
Constitutional Court, review of the constitutionality of a statute within constitutional-complaint proceedings.
Principle of proportionality.
Judicial review of administrative acts, right to appeal against a first-instance decision.
Principles of a state governed by the rule of law.
Statute, statutory interpretation, systematic interpretation.
Constitutional Court, decision making according to the principle of linking issues (appeal).
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 2, 15, 25
Judicial Review of Administrative Acts (ZUS), Art. 69
Constitutional Court Act (ZUstS), Arts. 30, 40.2, 43, 59.2
Note:
In the reasoning of its decision, the Constitutional Court referred to its case No. U-I-34/95, dated 29 October 1997, Official Gazette RS, No. 73/97 - DecCC VI, 138.
Document in PDF:
The full text:
U-I-221/00-6
9 November 2000


D E C I S I O N

At a session held on 9 November 2000 in proceedings commenced on the basis of Art. 59.2 and Art. 30 of the Constitutional Court Act (Official Gazette RS, No. 15/94), the Constitutional Court

d e c i d e d a s f o l l o w s:

1. Art. 40.2.2 of the Asylum Act (Official Gazette RS, No. 61/99) is annulled.

2. The Supreme Court must decide on the appeal against the administrative court decision by which it was decided on the suit against the decision issued in the procedure for granting asylum within fifteen days from its receipt.

R e a s o n i n g

A.

1. The Constitutional Court commenced proceedings for the review of the constitutionality of Art. 40.2.2 of the Asylum Act (hereinafter ZAzil) within the proceedings deciding on constitutional complaint No. Up-78/00, pursuant to Art. 59.2 and Art. 30 of the Constitutional Court Act (hereinafter ZUstS). It stated in the decision dated 29 June 2000 (Official Gazette RS, No. 66/00) that it would review in the proceedings whether the right to appeal determined in Art. 25 of the Constitution was violated by the challenged provision and whether such regulation was in conformity with the principles of a state governed by the rule of law determined in Art. 2 of the Constitution.

2. The National Assembly did not reply to the ruling on the commencement of the proceedings for the review of the mentioned provision.

B.

3. In accordance with Art. 40.2.2 of ZAzil, proceedings are finally completed by the service of an administrative court judgement. By means of established methods of the interpretation of legal norms it is not possible to find a different interpretation from the one that this provision excludes the appeal against an administrative court judgement.

Pursuant to Art. 39.5 of ZAzil, the Judicial Review of Administrative Acts Act (Official Gazette RS, Nos. 50/97 and 70/00 - hereinafter ZUS) is applied only if ZAzil does not determine otherwise. Art. 40.2 of ZAzil cannot be understood differently from that it determines the moment of the beginning of finality in a different manner from that prescribed in ZUS.

Such a meaning is confirmed by a systematic interpretation.

Arts. 38, 39 and 40 of ZAzil regulate a procedure for deciding on the suit against a decision reached at the first level, i.e. against a decision of the Ministry of the Interior as a competent public administration body. An administrative court is in all provisions - often even explicitly - mentioned exclusively in connection with the jurisdiction for deciding on a suit. It also follows from the Bill of the Asylum Act prepared for the first debate that the legislature determined in ZAzil the judicial review of administrative acts in the framework of a one-level procedure. It is stated in the explanation of the Bill that the principle of two instances is incorporated in it and judicial protection is simultaneously ensured (National Assembly Reporter, No. 78/98, pp. 40-41). The note of the Secretariat of the National Assembly for Legislation and Legal Affairs, dated 26 May 1999, that in regulating the finality according to ZAzil the institution of appeal pursuant to ZUS was to be respected, was not taken into consideration.

4. Art. 40.2.2 of ZAzil is contrary to the right to legal remedies (Art. 25 of the Constitution). By Art. 25 of the Constitution everyone is guaranteed the right to appeal or to any other legal remedy against the decisions of courts and other state authorities, local community authorities and bearers of public authority by which their rights, duties or legal interests are determined. According to an established constitutional review, this right guarantees the principle of Štwo or moreĆ instances as regards deciding by the courts and other bodies, i.e. deciding by a second-instance body concerning all questions which are important for deciding on a right or obligation (Decision No. U-I-34/95 dated 29 October 1997, Official Gazette RS, No. 73/97 and DecCC VI, 138). Art. 40.2.2 of ZAzil which excludes the appeal against a decision of the court which decides within the judicial review of administrative acts at the first level represents an interference with the mentioned constitutional right.

5. In accordance with an established constitutional review, the restrictions of constitutional rights are permissible if they are in conformity with the principle of proportionality. This means that a restriction must be needed and necessary for reaching a pursued constitutionally legitimate goal and in proportion to the importance of that goal (Art. 15.3 of the Constitution).

6. It is possible to conclude from the materials discussed in the legislative debates that the legislature decided for the disputed provision after consideration was given to the basic starting-point in the preparation of ZAzil, i.e. the adjustment of this subject matter with the obligations deriving for the state from adopted international conventions and other documents, and from aquis communautaire. In determining bodies competent for deciding on the granting of asylum it considered the Resolution of the European Council on Minimal Safeguards in Asylum Procedures dated 20 June 1995 (the Bill of the Asylum Act, National Assembly Reporter, No. 78/98, p. 29). The Resolution gives states a wide field of discretion in determining a first-instance body which decides on requests for the granting of asylum, however it requires judicial protection or the protection against a body which has the possibility to independently decide on the appeal against a negative decision (Indent 8). The mentioned circumstance cannot by itself substantiate a need to interfere with a constitutional right, in particular since the mentioned Resolution is not an internationally binding instrument. Furthermore, this Resolution does not prevent a state from guaranteeing a higher level of rights from the one defined in it as minimal. The second possible reason for the different regulation of an administrative-judicial procedure as defined in ZUS is the speeding up of the procedure. The fastest possible carrying out of a procedure on the one hand shortens the period of an applicant's uncertainty and, on the other hand, reduces the expenses of the state incurred in connection with the applicant's residence in it. The interest in the fastest possible carrying out of an asylum procedure is constitutionally legitimate. The selected means is needed and necessary for its achievement. The exclusion of one judicial instance shortens the procedure; there is no other way for achieving the same goal. However, the pursued goal does not outweighs the weight of an interference with the right to appeal. The affected person will alone deliberate whether they are more interested in the fast completion of a procedure or in the higher probability of a lawful decision. The financial interest of the state also cannot outweigh the exclusion of an appeal and thereby a higher risk that the reached negative decision is unlawful. The exclusion of an appeal in Art. 40.2.2 of ZAzil is thus not admissible.

7. The Constitutional Court annulled Art. 40.2.2 of ZAzil for reason of the established inconsistencies with the Constitution. It did not raise the question of whether a different restriction of the appeal against an administrative decision on the (non)granting of asylum would be constitutionally permissible.

8. Since the Constitutional Court annulled the mentioned provision already for reason of its inconsistency with Art. 25 of the Constitution, there was no need to enter the review of whether the provision was also inconsistent with the principles of a state governed by the rule of law (Art. 2 of the Constitution).

9. For the mentioned provision which represents an exception from the general rule determined in ZUS is annulled, ZUS is applied also to decisions reached within asylum procedures.

Thus, in the case of the filing of a permissible appeal, decisions become final after the expiration of an appeal against first-instance judgements and their service.

10. On the basis of Art. 40.2 of ZUstS, the Constitutional Court also determined a time limit for the decision of the Supreme Court on the appeal. By determining a shorter time limit for filing a suit in the administrative court and by determining a time limit for an administrative court decision the legislature clearly expressed the legitimate intention that asylum procedures are finally completed as soon as possible. In cases in which in ZUS as a system statute, regulating the judicial review of administrative acts, a time limit for the deciding of a first-instance administrative court is determined, also a half shorter time limit for deciding on an appeal is determined (Art. 69.4 and 5 of ZUS). Giving consideration to this legislature's decision the Constitutional Court determined a time limit of fifteen days for deciding on an appeal in asylum matters in which an administrative court is obliged to decide in thirty days (Art. 39.4 of ZAzil). Concerning the character of the decision reached on the basis of Art. 40.2 of ZUstS, this regulation applies until a possible different statutory regulation is adopted.

C.

11. The Constitutional Court reached this decision on the basis of Arts. 30, 40.2, 43 and 59.2 of ZUstS, composed of: Franc Testen, President, and Judges: Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk and Dr. Dragica Wedam Lukić. The decision was reached by six votes in favor to one against. Judge Fišer voted against, who also gave a dissenting opinion.


P r e s i d e n t :
Franc Testen
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Constitutional Court on its own initiative
Date of application:
13.01.2000
Date of decision:
09.11.2000
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN02271