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).
6. At the outset, the Supreme Court clarifies that, in accordance with established practice, the right to defence, which encompasses the right of every person to be heard and have access to his file, is one of the fundamental rights which are an integral part of the EU acquis and are stipulated in the Charter of Fundamental Rights of the European Union (hereinafter: the Charter). It is a general principle of law and the right of every person to be heard, before any individual measure which could have a negative effect on his interests is adopted. The purpose of this rule, according to which the addressee of a decision, that adversely affects his position, must be able to present his views before it is adopted, is, to enable the competent authority to effectively take into account all relevant elements. In order to ensure effective protection of the person in question, the purpose of this rule is, inter alia, that the person may correct an error or invoke facts relating to his personal situation, which justify the adoption or non-adoption of the decision or its specific content. The right in question also implies that the administrative authority must take due account of the observations made by the person concerned, while carefully and impartially examining the relevant elements of the present case and justifying its decision in detail. The court's control of an alleged violation of the right of a person to be heard within the administrative procedure /.../ must therefore verify, in light of the personal factual and legal circumstances of each individual case, whether, because of procedural violations, the possibility of a better defence was actually taken away from the people invoking them, to the extent that the administrative procedure could have a different outcome.
6. Vrhovno sodišče uvodoma pojasnjuje, da je v skladu z ustaljeno prakso pravica do obrambe, ki zajema pravico osebe, da se izjasni, in pravico dostopa do spisa, ena temeljnih pravic, ki so sestavni del pravnega reda EU in so zajete v Listini Evropske unije o temeljnih pravicah (v nadaljevanju Listina). Gre za splošno pravno načelo oziroma pravico, da se vsaka oseba izjasni pred sprejetjem kakršnega koli posamičnega ukrepa, ki bi lahko negativno vplival na njene interese. Namen pravila, v skladu s katerim mora biti naslovniku odločbe, ki posega v njegov položaj, omogočeno, da predstavi svoja stališča, preden bo ta sprejeta, je v tem, da se pristojnemu organu omogoči, da učinkovito upošteva vse relevantne elemente. Da bi se zagotovilo učinkovito varstvo te osebe, je namen pravila med drugim, da lahko ta oseba popravi napako ali uveljavlja dejstva v zvezi z njenim osebnim položajem, ki utemeljujejo sprejetje ali nesprejetje odločbe ali njeno določeno vsebino. Navedena pravica pomeni tudi, da mora upravni organ ustrezno upoštevati pripombe, ki jih je zadevna oseba povedala, pri tem pa skrbno in nepristransko proučiti upoštevne elemente obravnavane zadeve in svojo odločbo podrobno obrazložiti. Nadzor sodišča glede zatrjevane kršitve pravice osebe, da se izjasni v upravnem postopku /.../ mora torej glede na osebne dejanske in pravne okoliščine vsakega posameznega primera zajemati preverjanje, ali je bila zaradi postopkovnih kršitev osebam, ki so se nanje sklicevale, dejansko odvzeta možnost boljše obrambe in to v taki meri, da bi lahko imel ta upravni postopek drugačen rezultat.