J.D. v Border Police, Ministry of Interior
SI: The Administrative Court ruled that the national police committed collective expulsions to Bosnia Herzegovina
The applicant, located in Bosnia and Herzegovina filed a lawsuit against the Slovenian border police authorities (Ministry of Interiors). He claimed to be physically returned from Slovenia to Croatia on 16 August 2019 together with some other migrants based on bilateral agreement with Croatia from 2006. He claimed that during his stay at the police station he was prevented from submitting an application for international protection in Slovenia, although he was in a procedure detained and and punished for illegally crossing the border. He had crossed the border from Croatia to Slovenia on 15 August 2019 with the intention to apply for asylum and altough he repetaeldy told the police officers who placed him in custody that he wanted to apply for asylum, he was not given such opportunity. In Croatia he was subject to informal chain refoulement to BiH. He ended up in kamp Miral, where he claimed to be confronted with inhuman and degrading living condition for almost a year.
The Administrative Court of Slovenia allowed the action and found that the Slovenian police had violated the EU Charter, Article 18 (the right to access to asylum procedure), Article 19 § 1 (the prohibition of collective expulsions) and Article 19 § 2 (the principle of non-refoulement) in its procedural dimension. The Administrative Court did not find violation of material component of the right from Article 19(2) Charter as regards the situation that the applicant was faced with in Croatia and in the kamp Miral. The Administrative Court took into account the principle of mutual trust between Member States. As regards access to legal procedure and prohibition of collective expulsion, the Administrative Court based its methodology of reasoning on case law of the ECtHR (including the right to information, access to legal assistance and to interpreters) and case law of the CJEU in relation to Article 6 and 8 and recitals 25-28 of the Procedures Directive. The Administrative Court also adjudicated on non-pecuniary damages and imposed an obligation to the Ministry of Interior to allow the applicant to come to the territory of Slovenia for the purpose of examining his asylum application.
Based on appeal of the Ministry of Interior, the judgment of the Administrative Court was quashed by the Supreme Court (I Up 128/2020 from 28 October 2020) and the case was sent back in its entirety to the Administrative Court. The Supreme Court examined only part of the judgment of the Administrative Court which relate to violation of Article 18 of the Charter and reasoned that the contested judgment is not clear and understandable and that it is also not clear whether case law of the ECtHR and CJEU that was used in the judgment of the first instance court is relevant for that particular case or not. The Supreme Court gave instruction that in a subsequent procedure the Administrative Court should make clear whether the applicant is considered as to be illegally staying third country national (under Return Directive) or asylum seeker (under Procedure Directive) during his stay in Slovenia in August 2019.
The Administrative Court issued a new judgment on 7 December 2020 (I U 1686/2020-126) and decided in the same way as in the first court proceedings except that it gave instruction to the applicant that he may claim pecuniary damages in the proceedings before the civil court. The applicant was throughout the court proceedings represented by professional attorney at law.
The judgment refers to the EASO Judicial analysis Asylum procedures and the principle of non-refoulement, 2018.
Access to procedures; Border procedures; EASO Professional Development Series; Legal Aid;
Supreme Court Database Slovenia
EASO Courts and Tribunals Network
Slovenia, Administrative Court [Upravno sodišče], J.D. v Border Police, Ministry of Interior, UP00039681, ECLI:SI:UPRS:2020:IU1490.2019.92, 22 June 2020. Link redirects to the English summary in the EASO Case Law Database.