Up-229/17, U-I-37/17

Reference no.:
Up-229/17, U-I-37/17
ECLI:
ECLI:SI:USRS:2019:Up.229.17
Abstract:

[The text published below is a summary prepared for the annual report.]

International Protection and the State’s Duty to Cooperate

 

By Decision No. Up-229/17, U-I-37/17, dated 21 November 2019, the Constitutional Court decided on the constitutional complaint of an applicant for international protection whose application for international protection in the Republic of Slovenia had been dismissed. The decision thereon of the administrative authority had first been confirmed by the Administrative Court and subsequently also by the Supreme Court. The decisions of both courts were based on the position that the complainant failed to seek protection from the alleged persecution before the competent authorities in his country of origin, and therefore he could not successfully invoke international protection, which he could only avail himself of if the state authorities of his country of origin were not able to ensure his adequate protection. It was namely established that the complainant did not report six out of the alleged total of seven acts of violence (including rape) to the police, even though the police had accepted his report in connection with a social media post for consideration. In accordance with the findings of the Supreme Court, the complainant neither claimed nor demonstrated, for example, that, in his country of origin, the judicial system for the detection, prosecution, and punishment of criminal offences does not function or that access to such protection is not ensured and that the practical or legal basis for the functioning of the protective institutions and bodies is not provided. With the exception of a social media post, he did not report any of the alleged acts. The one report that he filed was accepted by the police.

 

The Constitutional Court found that the reasoning of the Supreme Court does not raise any constitutional concerns. If in his or her application for international protection an applicant relies on the inability of his or her country of origin to protect him or her from persecution, it is undoubtedly the applicant’s duty to prove the claims that could substantiate the alleged inability of the state of origin to provide protection. An applicant must in particular prove that he or she had turned to the prosecuting authorities of his or her state of origin, but they did not want to protect him or her or were unable to do so. An official report on such acts is not merely a formality that an applicant has to fulfil before he or she can lodge an application for international protection in another country. By reporting an incident, the applicant namely enables the authorities of the country that is deciding on his or her application for international protection to verify whether the competent authorities of the applicant’s country of origin had in fact taken it into consideration. Only following such does the state’s so-called duty to cooperate enshrined in the first paragraph of Article 4 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 arise. In accordance with this provision of the Directive, in spite of the applicant’s duty to submit all the evidence needed to substantiate his or her application, it is the duty of the Member State to assess the relevant elements of the application in cooperation with the applicant. This requirement in fact entails that if, for whatever reason, the evidence submitted by the applicant for international protection is not complete, up to date, or relevant, the Member State must actively cooperate with the applicant at that stage of the proceedings in order to ensure that all evidence substantiating the application is obtained. 

 

Therefore, the duty to report incidents to the competent authorities of the country of origin does not entail an unreasonable requirement that an applicant has to fulfil before he or she can apply for international protection in another country. As the complainant failed to substantiate the alleged violations of human rights and fundamental freedoms, the Constitutional Court dismissed the constitutional complaint.

Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts constitutional complaint
Type of act:
statute individual act
Applicant:
A. B., C.
Date of application:
09.03.2017
Date of decision:
21.11.2019
Type of decision adopted:
decision
Outcome of proceedings:
dismissal rejection
Document:
AN03995