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Slovenia / Supreme Court of the Republic of Slovenia / I Up 10/2018

Appellant: The Republic of Slovenia, Ministry of the Interior; Other party: international protection applicant.

Policy area:
Borders and Visa
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court of the Republic of Slovenia
Decision date:

Key facts of the case:

The case originated from an application for international protection by an applicant. The problem emerged when the state ceased to provide the applicant material support for reception and health protection at the moment the transfer decision (to transfer him to Croatia) became enforceable. That meant that he was informed, that he had to empty his room at the asylum facilities, return his international protection seeker’s card and also lost the right to any financial assistance. He was left without accommodation or any support, and only survived with the help of acquaintances and friends, in a poor health state, which was known to the defendant. He filed an action against that act of the state (not specifying the exact body, which was responsible for the infringement) and the Administrative Court granted hid, deciding, that such treatment of the applicant constituted a violation of the right to human dignity from Art. 1 of the Charter and Art. 34. Of the Constitution of the Republic of Slovenia. The defendant filed an appeal against this decision with the Supreme Court of the Republic of Slovenia, however the latter agreed with the court of first instance and dismissed the appeal.

The Supreme Court found, that in line with EU law (Reception Directive, Dublin III Regulation, considering the CJEU’s judgment in the Cimade case, para. 55.) a “final decision”, which is the point, up to which an applicant enjoys the rights under the Reception Directive and the Dublin III Regulation, does not mean “the processing of the application for international protection” and that the provision of minimum reception conditions only ends with the actual transfer of the applicant to another country. A transfer decision therefore does not constitute a “final decision” on the application and cannot result in the termination of rights, emanating from the Reception Directive; a different interpretation could lead to a violation of Art. 1 of the Charter. An interpretation of Art. 78. ZMZ-1, which led to the termination of rights at the moment of enforceability of the decision, with which the competent body rejected the application as inadmissible and determined another member state as responsible, was found incompatible with EU law, including Art. 1 of the Charter. Since an “EU loyal” interpretation is not possible, this provision has to be, from the decision of the Supreme Court on, disregarded.

Key legal question raised by the Court:

The key question was, whether the national provision (Art. 78. Of the International Protection Act (Zakon o mednarodni zaščiti: ZMZ-1), which stipulates that rights that the applicant enjoys based on that article only last until the enforceability of the decision of the competent administrative body on the application”. The question was, whether such a provision is compatible with EU law, including Art. 1 of the Charter, since it means, that the applicant loses any rights between the time of the enforceability of the transfer decision and the actual transfer to another member state.

Outcome of the case:

The Supreme Court upheld the judgment of the court of first instance (i.e. the Administrative Court). It found, that the defendant (Republic of Slovenia and the Ministry of the Interior, acting on its behalf), should not have used Art. 78. of ZMZ-1, since the article is incompatible with EU law. Therefore, it violated the applicant’s right to human dignity from Art. 1 of the Charter. The defendant was ordered to remedy the position of the applicant.