Article 19 - Protection in the event of removal, expulsion or extradition
Key facts of the case:
In accordance with the International Protection Act, an individual may be granted subsidiary protection, if he or she does not meet the criteria for a refugee status and if there is reason to believe that with the return to the country of origin, he or she could face death penalty or execution, torture or inhuman or degrading treatment or punishment, or serious and individual threat to life and person of a civilian due to arbitrary violance in situations of international or internal armed conflict. The decision to grant subsidiary protection is by nature temporal.
The applicant was initially granted subsidiary protection; however, a request for an extension was rejected by the Ministry of the Interior. The basis for that was Article 106 of the International Protection Act, which prevented the Ministry of the Interior from taking into account a different factual basis than the one on which the initial decision was based. It could only decide whether the facts or reasons on which subsidiary protection was granted still exist, and was not allowed to extend protection on a different factual and legal basis. The appeal was rejected by the Supreme Court and the applicant filed a constitutional complaint with the Constitutional Court and asked for a constitutional review of Article 106 of the International Protection Act. It supposedly prevented the applicant from listing additional facts and circumstances that supported his application for subsidiary protection, other than those already invoked in the initial request for international protection. The applicant claimed that the law violated the non-refoulment principle and it was therefore incompatible with the Constitution (Articles 17., 18., 34. and 35.) and Article 3 ECHR. The non-refoulment principle is, in line with the Constitutional Court’s case law, included in Article 18 of the Constitution which prohibits torture, inhuman or degrading treatment or punishment, and which was the main basis for the Constitutional Court’s decision.
Outcome of the case:
The Constitutional Court found that with a decision not to extend subsidiary protection, the person affected loses all the rights associated with subsidiary protection, including the right to reside in Slovenia. It means that such decision could amount to a violation of Article 18 of the Constitution and the non-refoulment principle enshrined therein. The procedural aspect of this Article requires that an applicant has the right to raise any relevant circumstance which could affect the competent authority’s decision whether or not a return of the applicant could mean a violation of Article 18 of the Constitution. The applicant has a right to a fair and effective proceedure. The Constitutional Court held that the legislator interfered with the non-refoulment principle, contained in Article 18 of the Constitution, by limiting the scope of the Ministry’s assessment, which - in line with the fact that this right is of an absolute nature - was not permissible. It repealed the relevant part of Article 106 of the International Protection Act and also granted the applicant’s constitutional complaint due to the violation of Article 18 of the Constitution. It repealed the relevant decision and remitted the case for a new decision to the Administrative Court.
16. The protection in case of removal, deportation or extradition is also guaranteed by the second paragraph of Article 19 of the Charter of the Fundamental Rights of the European Union (hereinafter: the Charter), which has the same validity as the Treaty on the Functioning of the European Union (hereinfter: TFEU). In line with this provision of the Charter no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.