Up-748/16

Reference no.:
Up-748/16
ECLI:
ECLI:SI:USRS:2018:Up.748.16
Abstract:
The principle of the child's best interests requires that in a procedure for granting international protection an applicant who is a minor and who is unaccompanied in the state must be ensured all procedural rights that enable him or her to present the elements necessary to substantiate his or her application as completely as possible.
 
The position of the Supreme Court that the omission of an additional personal interview referred to in Article 45 of the International Protection Act merely entails a violation of non-essential procedural requirements that could have affected, but did not affect, the legality or correctness of the decision of the Ministry of Interior deprives the applicant, who is an unaccompanied minor, of one of the procedural rights he is ensured by the International Protection Act. It therefore entails a violation of the principle of the child's best interests.
 
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[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
 
The Position of Children in International Protection Procedures
 
By Decision No. Up-748/16, dated 25 April 2018 (Official Gazette RS, No. 39/18), the Constitutional Court decided on the constitutional complaint of an applicant for international protection against a judgment of the Supreme Court. The Supreme Court upheld the appeal of the Ministry of Internal Affairs (the MIA) and dismissed the applicant’s action against an administrative decision by which in the procedure for granting international protection the complainant was granted subsidiary protection, but not the status of a refugee.
 
In the procedure for granting international protection, the complainant, who was an unaccompanied minor, was able to personally file an application for international protection. However, prior to adopting a decision, the administrative authority did not ensure that the complainant underwent an additional personal interview, which is required by Article 45 of the International Protection Act. The complainant was opposed to the position of the Supreme Court that failure to carry out an additional personal interview on the basis of Article 45 of the International Protection Act only entails an infringement of procedural requirements that vitiated the procedure but did not affect the lawfulness or correctness of the decision of the MIA.
 
In its assessment, the Constitutional Court took into consideration that the principle of a child’s best interests requires that in a procedure for granting international protection, unaccompanied minors must be ensured special procedural guarantees. In a procedure for granting international protection, a personal interview is necessary in order to fully and correctly establish the state of the facts. Furthermore, the establishment of the state of the facts is based on the allegations of the applicant for international protection, hence the decision of the competent authority depends above all on how convincing, credible, and consistent the allegations made by the applicant to his or her benefit are. The principle of a child’s best interests requires that in a procedure for granting international protection applicants for international protection that are unaccompanied minors must be ensured all procedural guarantees in order to present the elements that are necessary to substantiate the application as comprehensively as possible. Since in the procedure for granting international protection at issue a personal interview was necessary in order to correctly and fully establish the state of the facts, and since the applicant was a minor, the Constitutional Court assessed that the position of the Supreme Court that failure to carry out a personal interview merely entails an infringement of the procedural requirements that vitiated the procedure resulted in a violation of the principle of a child’s best interests determined by the first paragraph of Article 56 of the Constitution. It annulled the judgment of the Supreme Court and remanded the case thereto for new adjudication.
Note:
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Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
A. B., C.
Date of application:
07.09.2016
Date of decision:
25.04.2018
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03919