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Slovenia / Supreme Court / VSRS Sodba I Up 72/2017

Appeal of the Ministry of the Interior of a decision of the Administrative Court

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court of the Republic of Slovenia
Type:
Decision
Decision date:
10/05/2017

Key facts of the case: 

The plaintiff (the Ministry of the Interior) appealed a decision of the Administrative Court (the first instance court) which abolished its decision to reject an application for international protection, finding the right to be heard in the procedure for international protection was violated.

The plaintiff had assessed that the applicant (a minor who applied for international protection in Slovenia), could not return to his home village (Izma in the province of Kunar, on the border with Pakistan) due to a well-founded fear of persecution, but could return to his country of origin and live as an internally displaced person in Kabul, where he would not be in danger. The plaintiff thus found that the applicant does not need international protection and based its decision on the option that he could live with his relatives in Kabul (namely his aunt and uncle who had shown a willingness to take care of him in the past), but in “the personal interview”, when questions were asked and he was also given the opportunity to make a statement, none of the plaintiff’s questions (or information given) was directed at this option.

With this case the Supreme Court dismissed the appeal and confirmed the contested judgment of the first instance court, finding as stated below.

Outcome of the case:

On the basis of these standards, the Supreme Court finds that in the present case the applicant’s right to be heard (make a statement) was violated, because his application for international protection was rejected, without him being given the opportunity to state the circumstances the Plaintiff (the Ministry of the Interior) considered important for the decision. The Plaintiff concluded that the applicant could not return to his home village, but could live with relatives after returning to Kabul, but at a personal interview, when questions were asked and he was also given the opportunity to make a statement, none of the Plaintiff’s questions (or information given) was directed at this option.

In the light of the foregoing and taking into account the fact that, because the international protection procedure is a single-stage procedure, the applicant was able to state the circumstances relating to the possibility of his living with relatives in Kabul only in the lawsuit before the Administrative Court, the Plaintiff should have complied with Article 9 of the General Administrative Procedure Act, which applies also in the procedure for international protection, as stipulated in Article 33 of the International Protection Act. Given the established facts of this case, the Plaintiff could adequately explain why it considered to be proven that the applicant could live with relatives after returning to Kabul, only by respecting “the principle that the parties have the right to be heard” (načelo zaslišanja strank).

The applicant has the right to explain (be heard regarding) all relevant circumstances before the decision on international protection is adopted. The Plaintiffs’ reference of previous case law of the Supreme Court could be relevant only if the applicant was given the opportunity to be heard and comment the contested circumstance (i.e. whether his aunt and uncle could in fact take care of him, help him make a living in Kabul).

In the reopening of the proceedings, the Plaintiff (the Ministry of the Interior) will have to determine, in the light of the foregoing, whether the applicant has a real possibility of economic survival in Kabul, that is to say, whether he can reasonably be expected to reside there. The hypothetical assumption that he will provide housing for himself, provide for his social and economic security or, that as a young man, he will be able to find work and survive, does not suffice in order to decide whether conditions for the applicant's internal displacement are fulfilled. It is necessary to determine whether, economic and social existence in the place of displacement is possible, at least to an extent beyond the threshold of violating Article 3 of the European convention on human rights.

With the contested judgement (UPRS I U 1835/2016 from 19 January 2017) the first instance court (the Administrative Court) abolished the decision of the Ministry of the Interior (No. 2142-596/2016/31 (1312-09) from 30 November 2016), to reject an application for international protection. The appeal is dismissed and the contested judgment is confirmed by the Supreme Court. The international protection procedure will be reopened (carried out once more).