U-I-59/17

Opravilna št.:
U-I-59/17
ECLI:
ECLI:SI:USRS:2019:U.I.59.17
Evidenčni stavek:
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 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.
Opomba:
¤
Dokument v PDF obliki:
Vrsta zadeve:
review of constitutionality and legality of regulations and other general acts
Vrsta akta:
statute
Vlagatelj:
Human Rights Ombudsman
Datum vloge:
19.04.2017
Datum odločitve:
18.09.2019
Vrsta odločitve:
decision
Vrsta rešitve:
annulment or annulment ab initio
Dokument:
AN03961